Niran Azeez Lawal V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal sitting at Ibadan delivered on 24th November, 2010 wherein the Court below upheld the conviction and sentence of the appellant by the Ogun State High Court sitting at Ijebu-Ode. The trial High Court in its judgment of 12th October, 2005, convicted and sentenced the appellant herein to five years imprisonment for the offence of conspiracy to commit robbery and to life imprisonment for the offence of attempted armed robbery contrary to Section 5 (b) and 2 (2) (b) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1990 (as amended) respectively.

At the Court of Appeal, the appellants conviction and sentence were however altered to a lesser offence of attempted robbery (as against attempted armed robbery) and the sentence was substituted with a sentence of fourteen (14) years imprisonment to run from the time of the appellants arrest on 7th March, 2003.

A synopsis of the facts

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leading to this appeal will suffice. The evidence of the respondent as deduced from the record shows that the PW1, one Segun Kehinde, was at all material times a commercial motor-cyclist at Ikenne in Ogun State. He plied his motor-cycle on the 7th March, 2003 looking for passengers. The appellant and his friend, one Ahmed Olatidoye paid him the sum of N100.00 to transport them from Ikenne to Aiyepe.

They commenced the journey. At a stage, the appellant complained that his pair of shoes had fallen. The PW1 turned back to the spot for him to pick up the shoes. However, as soon as the PW1 stopped the motor-cycle, the appellant’s friend punched him in the face. Both of them started to beat the PW1. He fell off his motor-cycle. The appellant and his friend struggled to snatch the motor-cycle from the PW1. In the course of the struggle, the PW1 switched off the engine of his motor-cycle.

Discovering the PW1’s said success, the appellant pulled out a pistol hidden inside his shirt. He aimed it and on the PW1 to fire but it failed to fire. His friend urged him to hit the pistol butt on the PW1s head. He complied. The effect pushed the PW1 near to

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unconsciousness. They dragged him to a bush by the road side. The appellant continued to pound the pistol butt on his head. The pistol butt gave way and broke into two pieces before he stopped.

It was the prosecution’s further evidence that PW1’s attempt to raise alarm was frustrated by the gagged condition he was subjected to by the appellant and his friend. An elderly man eventually came by the scene. Some other persons also emerged near the scene because of the little shout he was able to make. The appellant’s friend saw them. He stopped struggling to start the engine of the motor-cycle. He abandoned it and fled with the appellant. They carried the broken pistol along with them.

The PW1 struggled out of the bush. Some motorists assisted him to the hospital. His small bag containing the sum of N800.00 disappeared. He discovered that appellant and his friend fled with it. His description of their physical features to the sympathizers led to their arrest on the same day. He later left the hospital to the police station. There he identified the appellant and his friend as his attackers. The police recorded his statement.

The PW2, a police

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sergeant at Odogbolu Police Station investigated the case. The voluntary statements of the appellant to him were admitted in evidence without objection as Exhibits B and D. He visited the scene of incident with the appellant, the PW1 and many other persons on 10th, March, 2003. They searched the scene of the incident but nothing was recovered.

The PW3, a police corporal attached to the anti robbery section of the State C.I.D. Eleweran, Abeokuta, continued with the investigation of the case. He recorded the statement of the appellant. The PW3 treated the statement as confessional. He took it to his superior officer, Assistant Superintendent of Police (ASP) Lukor Agbor, who endorsed it. The statement was admitted in evidence after a trial-within-trial as Exhibit F. He visited the scene of crime on 19th March, 2003. The appellant, the PW1 and an inspector of police called Olusegun Olusade accompanied him. They searched the scene again and the butt of the shot gun was recovered on the scene. It was admitted in evidence as Exhibit L.

The appellants version of the facts is that he accompanied his friend to Ikenne-Remo on 7th March, 2003. They were

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on a visit to one brother Ibukun Gbadebo. They left his house at about 1.00pm to return to Aiyepe. The PW1 carried them on his motor-cycle at Ikenne for the journey. He accepted the negotiated fare of N100.00 for the trip.

It is his story that in the course of the journey, the PW1 asked them to add N20.00 to the fare to make for the effect of their heavy weight on the motor-cycle. They argued with him for sometime. The appellant and his friend refused to increase the fare for the PW1, reminding him of the earlier agreed sum of N100.00 for the trip. The PW1 then demanded for the N100.00. They told him that payment would be made at Aiyepe. They continued the journey. Just about three poles to their destination, the PW1 stopped the motor-cycle. He insisted on payment of the fare. The appellant paid him the agreed fare of N100.00. He insisted on N120.00. They refused to yield ground.

According to the appellant the PW1 boasted that he would use his O.P.C. status to deal with them. They started to move away. The PW1 held the appellant on the collar of his shirt. That the PW1 hit the appellant on the chest with first blows. The appellant retaliated

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like-wise. It became a fight. An old man pushing his bicycle towards Aiyepe saw them. He stopped and stepped in to separate the fight. They succeeded in stopping the fight. The elderly man heard all of them to know the cause of the fight. He reprimanded the PW1 for demanding the extra fare of N20.00. He advised them to depart in peace. He left. The PW1 rode towards Aiyepe. They continued on foot in the same direction. Some policemen, followed by the PW1 arrested them on the way.

The appellant confirmed the two visits to the scene of crime given in the evidence of PW1 and PW3. He denied assaulting and robbing the PW1. He ended his evidence by denying the respondents case.

As earlier stated, the learned trial judge found as a fact that the respondent proved its case against the appellant beyond reasonable doubt. He convicted him of conspiracy to commit armed robbery and of attempted armed robbery. The Lower Court however reduced the offence and sentence from attempted armed robbery and life imprisonment to attempted robbery and 14 (fourteen) years imprisonment respectively. Not still satisfied with the said judgment, the appellant has further

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appealed to this Court.

Notice of appeal was filed on the 21st day of December, 2010. Three grounds of appeal are contained therein. Parties filed and exchanged briefs. On the 7th April, 2016 when this appeal was heard, learned counsel for the appellant, Olakunle Agbebi Esq., adopted appellants brief settled by him. The said brief settled by him. The said brief contains two issues distilled from the three grounds of appeal alluded to above. The two issues are as follows;-

“1. Whether the learned Justices of the Court of Appeal were right when they upheld the decision of the trial Court that the prosecution proved a case of attempted robbery against the appellant beyond reasonable doubt particularly in the light of the evidence adduced.

2. Whether the learned justices of the Court of Appeal were right when they held that the trial Court properly evaluated the evidence before the Court and duly considered the defence put up by the appellant.”

Also, the learned counsel for the respondent, Mark Mordi, Esq., in the brief settled by D. D. Kelli Esq., has adopted the two issues formulated by the appellant. I shall in the

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circumstance determine this appeal based on the said two issues.

In this appeal, the learned counsel for the appellant argued issues one and two together. In the main, he opines that by Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), an accused person is presumed innocent until he is proved guilty and that by Section 138 (1) of the Evidence Act Cap. 112, the standard of proof is that beyond reasonable doubt. According to him, the burden of proof is on the prosecution. He relies on the following cases. Idemudia v. The State (1999) 7 NWLR (Pt.610) 202 at 215, Esangbedo v. State (1989) 4 NWLR (Pt.113) 57, Nwosu v. State (1998) 8 NWLR (Pt.562) 433.

On what constitutes an attempt to commit an offence, learned counsel referred to the cases of D.P.P. v. Stonehouse (1978) A. C. 55, Reg. V. Eagleton (1855) Dears C. C. 505, Ozigbo v. C.O.P. (1976) 2 SC 67, and Iden V. State (1994) 8 NWLR (Pt.365) 719 amongst others. He submitted that the proof required must be as to the inescapable inference from the available evidence that the actions of the appellant can bear no other meaning except that he would have been guilty of the

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main offence if he had not been stopped by some involuntary act.

It is his further submission that the Court of Appeal was wrong to have agreed with the Trial Court that only the testimony of PW1 was to be believed. He argued that heated arguments over transport fares have often been known to lead to the exchange of blows throughout Nigeria, so it is not impossible. According to him, if the learned Trial Judge was to rightly hold that the prosecution had succeeded in proving the offence of attempted robbery against the appellant in the instant case, then, it would have been necessary for the prosecution to have proved that there was no equivocation as to the exact interpretation to give the overt acts that occurred on the Ikenne-Aiyepe Road. That the learned Trial Judge ought to have gone on to ensure that from the evidence adduced by the prosecution, any equivocation as to whether the overt acts were an altercation resulting from an attempt by PW1 to extort money.

On the issue of evaluation of evidence, learned counsel submitted that the learned trial Judge did not evaluate the evidence given at the trial and the Court of Appeal was wrong to have

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held otherwise. That the trial Court failed to consider the defence available to the appellant particularly in the light of appellants oral evidence in Court during the trial. He argued that merely branding the evidence of the appellant as “an afterthought” was not sufficient.

The appellant’s counsel submitted again that the trial Court failed to closely scrutinize the prosecutions case to establish if indeed they had disproved the defence put forward by the appellant both in his statements and in his testimony during the trial. It is his view that the Court below failed to consider this fact.

Finally, he submitted that the confessional statement of the appellant was not subjected to the test laid down in R. V. Sykes (1913) 8 CR. App. R.233, Kanu v. R. 14 WACA 30 and Dawa v. State (1980) 8 – 11 SC.236. He urged the Court to resolve the two issues in favour of the appellant and allow the appeal.

In response, the learned counsel for the respondent concedes the submission that criminal cases must be proved beyond reasonable doubt but opines that it is not proof beyond all shadow of doubt, relying on The State v. Gwangwan (2015) LPELR

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– 248 37 (SC) at Pp 46-47 Paras A-C, Dimlong V. Dimlong (1998) 2 NWLR (Pt.538) 381 at 178.

It is his contention that there is no ground of appeal which relates to the argument in the case of R. V. Sykes (supra). He opines that the basis of the appellant’s argument regarding reliance on the confessional statement as contained at Paragraphs 6.40 – 6.51 of his brief of argument is the Lower Courts alleged failure to correctly apply the test enunciated in R. V. Sykes (supra) and not the inadmissibility of the confessional statement for its involuntariness or a failure to conduct a trial-within-trial. That there is no ground of appeal which bears relevance to the application of the test in R. V. Sykes. It is his further submission that the test is wholly inapplicable to this case as there is no appeal against the finding of the Lower Court that the appellant did not retract his confessional statement (Exhibit D.)

According to learned counsel, the test in R. V. Sykes (supra) is applicable in instances where an accused person retracts a confessional statement earlier made and not where the voluntariness of the confessional statement is the issue in

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contest. That the Court can convict solely on a confessional statement without any corroborative evidence, relying on Obasi Onyenye V. The State (2012) LPELR – 7866, Okoh V. The State (2014) LPELR – 22589 (SC).

Learned counsel further submitted that Exhibit D was tendered and admitted in evidence and the appellant who had the opportunity to either retract same or object to its voluntariness, accepted that it be admitted in evidence without any objection. He submitted further that the evidence of PW1 is sufficient corroboration in law and adequately satisfies the test in R. V. Sykes (supra) to render Exhibit D credible and reliable in assuming that corroboration is necessary. He cites and relies on the cases of Federal Republic of Nigeria V. Faith Iweka (2011) LPELR – 9350 (SC), Adekunle Oluwafemi Alo V. The State (2015) LPELP 2440 (SC).

In his further argument, learned counsel submitted that the evidence of PW1 is credible and that no legal justification has been offered to warrant this Court interfering with the concurrent findings of the two Courts below. It is his submission that the fact that an aspect of a witness’ evidence is rejected

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does not make the entire evidence unreliable. Thus, the failure to produce the gun or the butt of it did not discredit the evidence of PW1, relying on the case of Okputu-Obiode & Ors V. The State (1970) AllNLR 36.

Learned counsel submitted further that appellant failed to appeal against the findings of the Courts below that his defence relating to fare was introduced only at the defence stage in Court and as such it was an afterthought. Moreso, he submitted that the inconsistency in the appellant’s oral testimony and Exhibit D would not negative the appellant’s conviction in the face of the PW1’s clear and unchallenged evidence. That it will not be in the interest of justice to allow a man who has confessed to his crime to walk out of Court a free man simply because he had changed his mind, referring to the case of Oladeio V. State (1987) 3 NWLR (Pt 61) 364 at 427.

On the attempt by the appellant to impugn the credibility of Exhibit D, he submitted that it is not possible as there is no ground of appeal against the findings.

On the second issue, learned counsel submitted that this appeal is against the judgment of the lower Court and not

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that of the trial Court. Listing 8 points, counsel posits that the Court below clearly showed that the trial Court effectively evaluated the evidence before it. It is his further submission that the judgment of the Lower Court shows clearly that the question regarding the mental element of the offence was specifically isolated and dealt with by the Lower Court.

On the point regarding the failure to resolve the equivocation raised in the defence of the appellant, he submitted that it was addressed on pages 19 – 22 of the judgment of the lower Court.

On the whole, he urged the Court to resolve the two issues against the appellant and dismiss the appeal.

The resolution of the two issues argued above turns on the preference by the learned trial judge as upheld by the Court below of the version of evidence given by the PW1 and the reliance on Exhibit D, the confessional statement of the appellant. The appellant had queried in the first issue whether the prosecution proved the charge beyond reasonable doubt. In criminal proceeding, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt and the

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prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. As was pointed out by learned counsel to both parties in this case, by Section 36 (5) , under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused person proving his innocence before a Court of law. The duty is on the prosecution to prove the charge against an accused person beyond reasonable doubt. See Williams V. The State (1992) LPELR-3492 (SC), (1992) 10 SCNJ 74, Sebastian Yongo V. Commissioner of Police (1992) LPELR -3528 (SC), (1992) 4 SCNJ 113, Ogundiyan V. The State (1991) LPELR – 2333 (SC), (1991) 3 NWLR (pt. 181) 519.

May I state here that while it is rule that in a criminal case the onus is on the prosecution throughout to establish the guilt of the accused person beyond all reasonable doubt, though not beyond any shadow of doubt, for an accused person to be entitled to the benefit of doubt, the doubt must be genuine and reasonable one arising from some evidence before the Court.

See State V.

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Gwangwan (2015) LPELR – 24837 (SC), The State V. Aibangbe (1988) LPELR – 3208 (SC), (1988) NWLR (pt. 84) 548.

The appellant herein, though charged alongside another, with conspiracy to commit armed robbery and armed robbery, was found guilty of conspiracy and attempted armed robbery punishable under Section 2 (2) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990 (as amended). Appellant was sentenced to life imprisonment. The Lower Court however reduced the punishment to 14 years imprisonment having held that the appellant ought to have been found guilty of a lesser offence of attempted robbery only, punishable under Section 2 (1) of the same Act.

Under Section 2 (1) of the Robbery and Firearms Act (supra), in order for an act to constitute attempted robbery, the accused person must with intent to steal, assault the victim or use or threaten to use actual violence in order to obtain the thing intended to be stolen. As to what constitutes an attempt, this Court in Ozigbo V. COP (1976) 2 5C 67 held that the act must be immediately connected with the commission of the particular offence

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charged and must be something more than the mere preparation for the commission of the offence. In Ibrahim V. The State (1995) 3 NWLR (pt. 381) 35 at 45, this Court, per Pats-Acholonu, JSC stated in respect of the offence of attempt that:

“The actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime which is immediately and not mere remotely connected with the commission of it and the doing of which cannot reasonably be regarded as having any other purpose than the commission of a specific crime.”

In the instant case, evidence shows that the appellant and his co-accused beat up the PW1, whether with the butt of a gun as stated by the PW1 or with a stick as confessed by the appellant in Exhibit D (his statement to the police), the intention, to my mind, was to subdue and demobilize the PW1 in order to facilitate the commission of the crime to wit: the theft of the motor-cycle. But for the appearance of the elderly man and others, which made the appellant and his friend to abandon their nefarious activity, the offence of armed robbery or robbery would have been

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completed. The learned trial judge accepted the version of the PW1 which is in tandem with Exhibit D.

The appellant and his co-accused actually attempted to steal the motor cycle. There is no doubt about that, his later denial notwithstanding.

In Exhibit D, the confessional statement of the appellant, this is what he said:-

“In addition to the statement I made to the police before, I want to say that I came to Aiyepe from Ikorodu to steal a motor-cycle and I planned with my friend Ahmed Olatidoye on how we can do it, I came to Aiyepe on the 04/3/2003 and stayed with my friend Ahmed Olatidoye M. on the 07/3/2003, my friend Ahmed Olatidoye and myself went to Ikenne Remo and on getting to Ikenne Remo we chartered a motor-cyclist to carry us to Aiyepe.

The motorcyclist charged us the sum of N100.00k.

At about 4pm. The man carried us on his motor-cycle and headed to Aiyepe and on the way to Aiyepe I dropped my sandal from my leg on the road and I told the motor-cyclist that I wanted to take my sandal that fell off my leg and the man turned back to enable me take the sandal from the road. Immediately the man stopped his motor-cycle we

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ordered him to surrender his motor-cycle and he struggled it with us, we started to beat him. I hit the man on his head with a big stick which I picked on the ground and he fell down and Ahmed Olatidoye removed the ignition key of the motor-cycle during the struggling. We later overpowered the man and left him in the bush beside the road. Ahmed Olatidoye kicked the motor-cycle and it did not start and I also tried but it did not at start. When we realized that the motor-cycle did not start, we abandoned the motor-cycle and ran towards Aiyepe road. Some people were passing while we were struggling with the man to steal his motor-cycle. As we were running along the Aiyepe road, a white car parked beside us and some policemen in mufti get us arrested and took us to the police station. When we were searched at the station, a bunch of charm was seen on the body of Ahmed Olatidoye M. Ahmed Olatidoye would have been ridding the motor-cycle for commercial purpose at Aiyepe if we had succeeded. I did not hold a gun which I hit on the head of the motor-cyclist; it was a stick which I picked on the ground that I hit on the head of the man. I never steal a motor-cycle

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before, this is the first time I took part in stealing a motor-cycle, AZEEZ LAWAL 10/3/003.”

The above statement of the appellant agrees substantially with the evidence of PW1. From the record, the appellant did not retract the said statement.

It remained admissible evidence throughout the trial and I agree with the Court below that the learned trial judge was right to act on it. Speaking about Exhibit D, the Court below has this to say on pages 136 and 141 of the record:

“Exhibit D the confessional statement of the appellant to the police at Odogbolu was admitted in evidence without objection. It was made on 10th March, 2003, about three days after the incident.PW2 recorded it. He was not cross-examination to show it was involuntarily made. The appellant did not disown it in his evidence.

…Exhibit D was not retracted by the appellant.

He did not refer to it in his evidence.”

It is rather curious that the appellant raised the issue of disagreement over transport fare for the first time in his defence in Court. This much the Court below held that the appellant’s introduction of that line of defence for the first time at

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the defence stage of the case was rightly held by the trial Court as an afterthought. I agree. It is my view that if this fact was available at the onset, the appellant would have stated same earlier than he did. That defence was indeed an afterthought. Both the trial Court and the Court below were right to so hold.

Now, coming to the issue of corroboration and the principle in R. V. Sykes (supra), I need to state clearly that so long as the Court is satisfied with its truth, a confessional statement alone is sufficient to ground and support a conviction without corroboration. The u-turn made by the appellant in this case is of no moment.

See Federal Republic of Nigeria V. Faith Iweka (2011) LPELR – 9350 (SC), Abacha V. The State (1996) 3 NWLR (pt. 438) 530 at 533, Eghoghonome V. State (1993) 7 NWLR (Pt.367) 373. It is now trite that once the Court is satisfied, as the trial Court was in this case, that the statement is free, voluntarily made, unambiguous, direct and positive, it can convict on it. See Dawa V. State (1990) 8 – 11 S.C. 236 at 267, Jimoh Yesufu V. State (1976) 6 SC.16.7 at 173. The above proposition notwithstanding, it is however

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desirable to have outside the confession some evidence of circumstances no matter how slight which make it probable that the confession was true. See Hassan V. The State (2001) 15 NWLR (pt. 735) 184, Effiong v. The State (1998) 8 NWLR (pt.562) 362, Onochie & Ors V. The Republic (1966) NMLR 307.

The six tests enunciated in R. V. Sykes (supra) are as follows:-

“1. Is there anything outside it to show that it is true

2. Is it corroborated
3. Are the statements made in it of fact, true as far as they can be tested
4. Was the prisoner one who had the opportunity of committing the offence
5. Is his confession possible

Is it consistent with other facts which have been ascertained and which have been proved”

If one applies the above tests to the facts of this case, it is clearly seen that the evidence led by the prosecution against the appellant agrees with Exhibit D, the confessional statement of the appellant excepting that whereas PW1 said that the appellant used the butt of a gun to hit him, the appellant said in Exhibit D that he used a stick. For me, it does not make any difference, whether it was the butt of a

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gun or a stick that was used to beat the PW1, the desired effect was the same i.e. to intimidate and drive fear into the PW1 to facilitate the stealing of the motor-cycle. So whether the learned trial judge openly applied the test or not, it does not make any difference since he was satisfied that the confessional statement of the appellant was true.

The appellant had alleged that the evidence led was not properly evaluated and that his defence was not considered. If the learned trial judge did not consider the defence of the appellant, how did he come to the conclusion that it was an afterthought The Court below held the same view when it upheld the decision of the trial High Court on the said issue. I agree with the Court below that the learned trial judge carefully evaluated the evidence and considered the belated defence of the appellant before reaching its final decision on the matter.

There is no ground of appeal which challenged the action of the Court below in deleting the use of stick from the statement of the appellant, (Exhibit D). As a corollary, there is no issue to that effect. That being the case, I shall not say more on it since the

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said decision has not been properly challenged.

On the whole, it is my decision that the Court below was right in holding that the learned trial judge was right to hold that the prosecution proved its case beyond reasonable doubt. The Court below was also right to hold that the trial Court appropriately evaluated the evidence led at the trial including the consideration of the defence of the appellant.

Accordingly, I uphold the conviction of the appellant of the offence of attempted robbery contrary to Section 2 (1) of the Robbery & Firearms Act (supra) as reduced by the Court below. I also affirm the sentence of 14 (fourteen) years imprisonment imposed on the appellant. There is no appeal against the commencement date of the sentence and I shall leave it at 7th March, 2003 as decided by the Court below.

Appeal is hereby dismissed.

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