Admin_PejuldigitalagencyIN THE SUPREME COURT OF NIGERIA
HOLDEN ATABUJA
ON FRIDAY, THE 24TH DAY OF JUNE, 2016
BEFORE THEIR LORDSHIPS
MAHMUD MOHAMMED
CHIEF JUSTICE OF NIGERIA
SULEIMAN GALADIMA
JUSTICE, SUPREME COURT
CLARA BATA OGUNBIYI
JUSTICE, SUPREME COURT
KUDIRAT M.O. KEKERE-EKUN JUSTICE, SUPREME COURT
JOHN INYANG OKORO
JUSTICE, SUPREME COURT
SC. 838/2014
BETWEEN:
BELLO OKASHETU ……………………………………… APPELLANT
AND
THE STATE………………………………………………….RESPONDENT
Court History:
– High Court from which case arose: High Court of Delta State,
Asaba Judicial Division (Coram: Omovie, J.)
– Date of High Court judgment: 25th June, 2013.
– Court of Appeal Division from which appeal arose: Court of
Appeal, Benin Judicial Division (Coram: Ogakwu (delivered
the leading judgment) Saulawa and Barka JJCA (Concurring)
– Date of Court of Appeal judgment: 9th December, 2014.
MAIN ISSUE:
Criminal Law and Procedure – Conspiracy – requirement of – duty on
Prosecution thereby – kidnapping – offence of – when complete –
ingredients Prosecution must prove to succeed – illegal possession of
firearms – ingredients Prosecution must prove to succeed thereby –
confessional statement – whether best evidence – where free and
voluntary – whether Accused can be convicted thereon – mere denial
– whether renders confessional statement inadmissible – six tests applied
by court to test the veracity of a confessional statement – attestation
OKASHETU v. STATE
-156-
(2016) 6 S.C. (Pt. II)
of confessional statement by police – effect –
judges rule – whether
provided for in the Nigerian laws – minor contradiction in evidence
– whether fatal.
Facts:
5
The Appellant was arraigned before the High Court, Asaba on
a five – count charge of conspiracy to commit armed robbery, armed
robbery, conspiracy to commit kidnapping, kidnapping and illegal
possession of firearms. The particulars of the charge are stated below:-
Count I:
10
Bello Okashetu (m) and others now at large on
or about the 8th day of March, 2011 along Illah
Road within Asaba Judicial Division conspired
amongst yourselves to commit felony to wit: Armed
Robbery.
15
Count II:
Bello Okashetu (m) and others now at large on
or about the 8th day of March, 2012 along Illah
Road within Asaba Judicial Division robbed of Mr.
20
Galvagni Renzo (m) of his two Laptops value
unknown, one International Passport, one Zenith
Bank Cheque booklet, two Hard drive discs, and
two Flash drive disc, while armed with a gun.
Count III:
25
Bello Okashetu (m) and others now at large about
the 8th day of March, 2012 along Illah Road
within Asaba Judicial Division conspired amongst
yourselves to commit felony to wit: Kidnapping.
30
Count IV:
Bello Okashetu (m) and others now at large on
or about the 8th day of March, 2012 along Illah
Road within Asaba Judicial Division kidnapped one
Mr. Galvagni Renzo (m) to unknown destination,
35
in a manner as to prevent any person entitled to
have access to him from discovering the place where
he was imprisoned
OKASHETU v. STATE
-157-
(2016) 6 S.C. (Pt. II)
Count V:
Bello Okashetu (m) and others now at large on
or about the 8th day of March, 2012 along Illah
Road within Asaba Judicial Division unlawfully had
in your possession of AK 50 Riffle, two Magazines
and twenty nine rounds of live ammunition.
5
The Accused/Appellant pleaded not guilty to all the five head
of counts. At the conclusion of the hearing, the trial court discharged
and acquitted the Appellant on the counts of conspiracy to commit
armed robbery and armed robbery but convicted him on the other
three counts of conspiracy to commit kidnapping, kidnapping and illegal
10
possession of firearms.
On appeal to the Court of Appeal, Benin, the Appellant’s
appeal was dismissed. The pivot of the lower court’s decision was its
affirmation of the trial court’s finding that Exhibit ‘A’ a confessional
statement attributed to the Appellant was indeed made by him
15
(Appellant) and that the ingredients of the offences charged were
contained therein. The Appellant was dissatisfied with the judgment of
the lower court and has appealed to the Supreme Court.
The Appellant formulated a lone issue as follows:-
20
Whether the lower court rightly affirmed the trial court’s
decision that the Prosecution proved the charges of
conspiracy to commit kidnapping, kidnapping and illegal
possession of firearms against the Appellant beyond
reasonable doubt.
25
The Respondent adopted the lone issue as formulated by the
Appellant.
Held: (Unanimously dismissing the appeal)
That the offence of conspiracy require that there should be
the meeting of the minds of the Accused persons with a
30
common intention and purpose to commit a particular offence.
It is trite law that all the Prosecution needs to prove is the
agreement of two or more persons to do or cause to be done
an illegal act or legal act by an illegal means. This is done either
by direct evidence or inference from illegal act of the Accused
persons. In Njovens v. State (1973) 5 S.C. (Reprint) 12
35
Coker, JSC. (as he then was) held at Pages 49-50 thus:-
OKASHETU v. STATE
-158-
(2016) 6 S.C. (Pt. II)
“The gist of the offence of Conspiracy is the
meeting of the minds of the conspirators. This is
hardly capable of direct proof for the offence of
Conspiracy is complete by the agreement to do
the act or make the omission complained about.
5
Hence conspiracy is a matter of inference from
certain criminal acts of the parties done in
common between them and in proof of conspiracy
the act or omissions of any of the conspirators
in
furtherance
of
the
common
design
may
be
and
very
often
are
given
in
evidence
against
10
others of the conspirators.”
That
for
the
Prosecution
to
succeed
on
the
offence
of
kidnapping it has to prove the following facts beyond reasonable
doubt.
15
(i)
That the victim was seized, and taken away
by the Accused person.
(ii)
That the victim was taken away against his
consent.
20
(iii) That the victim was taken away without
lawful excuse.
That the offence of kidnapping is complete when the victim is
carried away against his wish.
25
That on the offence of illegal possession of firearm, the evidence
of the P.W. 2 and P.W. 3 was that the Appellant was found
in possession of a gun and ammunitions. In order to prove the
offence of illegal possession of firearms the law requires the
Prosecution to establish the following ingredients:
30
(i)
That the Accused was found in possession
of firearms.
(ii)
That the firearms were within the meaning
of the Act.
35
(iii) That the Accused had no license to possess
the firearms.See the case of: State v.
Oladotun
(2011) 5 S.C. (Pt. II) 133.
OKASHETU v. STATE
-159-
(2016) 6 S.C. (Pt. II)
That there was evidence on record which the trial court believed
that the Appellant was arrested with a gun, two magazines and
29 rounds of ammunitions. The Appellant in his confessional
statement admitted the facts that the gun and ammunitions
were
recovered
from
the
car
he
was
driving.
He
however
denied ownership of the firearms. There is no dispute that the
AK 50 Riffle, cartridges and 29 rounds of ammunitions fall
5
within the definition of firearms under Section 2 of the Robbery
and Firearms Act.
In convicting the Appellant for this offence, the trial
court held thus:-
10
“The definition of firearms which include ‘gun’
and ammunition has earlier been stated in this
judgment. Having regards to the fact that the
Prosecution witnesses testified to the fact that
the Accused was in possession of a gun which
15
fact is corroborated by the Accused person in
Exhibit ‘A’, the inconsistencies as to the make
of the gun by the Prosecution witnesses has not
raised a doubt in the mind of this court that the
Accused was in possession of a gun and
ammunitions on the date of the incidence. The
20
Accused
person
has
no
licence
to
possess
the
said firearm. The court finds in respect of count
V
that
the
Prosecution
has
proved
the
count
against the Accused person beyond reasonable
doubt.”
25
That the Appellant did not challenge the principles of law on
which the trial court convicted him, his quarrel however was
with the fact that the victim of the kidnap P.W. l did not
identify the Appellant as one of the people that kidnapped
him. He also argues that the identification of the Appellant
who was not an eye witness to the kidnap of P.W. l was
30
defective.
There
was
evidence
before
the
court
which
was
believed that the Appellant was caught soon after the offence
was committed. After his arrest he made a statement to the
police
admitting
the
facts
of
this
case
as
presented
by
the
Prosecution through the three Prosecution witnesses, P.W. l
– P.W. 3. Although there was no direct identification of the
35
Appellant at the scene of the crime by the Prosecution witnesses
the Appellant by his confessional statement identified himself
at the scene of the crime. The decision of the trial judge which
was readily endorsed by the lower court was in tandem with
the decision of the Supreme Court in Ikemson v. State (1989)
6
S.C.
(Pt.
I)
114
at
134
where
Oputa,
JSC
(of
blessed
5
memory) said thus:
“The 3rd Accused – the 2nd Appellant in this
court needed no further identification. By his
confession, he identified himself.”
10
That the fact that the Appellant was arrested soon after the
crime was committed and his confessional statement admitting
complicity in the crime has completely destroyed any doubt
that may arise as to his identity and involvement in the crime.
In reacting to the facts presented by the Prosecution this was
15
what the trial judge had to say:-
“Upon
a
thorough
consideration
of
the
facts
before
me,
the
court
is
satisfied
that
the
Prosecution
has
proved
counts
III,
IV
and
V
against the Accused person beyond reasonable
20
doubt and has failed to prove counts I and II of
the charge against the Accused person beyond
reasonable
doubt.
……………..
I find the Accused person guilty in Counts III,
IV
and
V
of
the
charge
and
convict
him
accordingly on each of the said counts.”
25
That in agreeing with the trial court, the lower court placed
reliance on the confessional statement of the Appellant Exhibit
‘A’ and also on the evidence of the three Prosecution witnesses
P.W. l, P.W. 2 and P.W. 3. The confessional statement of the
Appellant was put in evidence by the Prosecution through the
30
Investigation Police officer. At the stage when the Prosecution
sought to tender the document, the Appellant’s counsel raised
an
objection
that
he
is
not
the
maker
of
same.
The
court
however admitted the statement in evidence as Exhibit ‘A’.
The
trial
court
judge,
in
placing
reliance
on
the
statement
Exhibit
‘A’
for
the
conviction
of
the
Appellant,
subjected
35
same to the veracity test as laid down in the case of: Oselola
v. The State (2012) 6 S.C. (Pt. IV) 148 wherein the cour