Wale Olasehinde V. State (2016)
LawGlobal-Hub Lead Judgment Report
SOTONYE DENTON-WEST, J.C.A.
This is an appeal against the judgment of Ondo State High Court sitting at Akure Judicial Division, delivered on 8/5/2014. The Appellant was arraigned before the Court on 2 count charge of conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 6(b), 1(1) and (2) of the Robbery and Firearms (Special Provisions) ACT, Cap R11, Laws of the Federation of Nigeria 2004, respectively.
Upon arraignment, the Appellant pleaded not guilty to the 2 count charge. To prove the guilt of the Appellant, the prosecution called two (2) witnesses and tendered four (4) Exhibits. While the Appellant gave evidence for himself in his defence and called no witness.
FACTS
The particulars of the offences are that on or about 28/6/2011 at Ondo Road, Akure the Appellant conspired with another at large to rob Dr. Busari Ismaila lyanda of his Toyota Camry Car, 1996/97 model and other items in the car, with pestle and axe and that the Appellant and another at large robbed Dr. Busari Ismaila Iyanda and his wife at Iyange Quarters, Oke-Ogba, Akure with a pestle and axe. The victim reported
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the incident at Fanibi Police station, Akure and at Special Anti-Robbery Squad, Akure. Pw2 who investigated the case recovered the Toyota Camry car and one of the robbed phones. The Appellant and one other were thereafter arrested in connection with the robbery and were charged to Court. The Appellant pleaded not guilty to the charges and case proceeded to trial. At the end of the trial, the learned trial Judge convicted the Appellant and sentencing him to death by hanging or firing squad as may be prescribed by the Governor.
Dissatisfied with conviction and sentencing, the Appellant filed a Notice of Appeal dated 20/5/14 but filed 22/7/2014, which was later replaced by an Amended Notice of Appeal dated and filed on 28/10/2014. The said Amended Notice of Appeal contained four (4) Grounds of Appeal.
In compliance with the rules of this Court, Adedoyin Rhodes-Vivour, Esq. settled the Appellant’s Brief of Argument dated and filed on 8/12/2015; three issues were distilled by the learned counsel for the Appellant for resolution of this appeal, as follows:
1. Whether from the totality of evidence before the learned trial Judge, the prosecution
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established the guilt of the Appellant beyond reasonable doubt.
2. Whether the identification parade carried out by the prosecution was valid and legal under the circumstances in which it was conducted.
3. Whether in view of the Appellant’s right to fair hearing, the learned trial Judge was right in proceeding to sentence the Appellant to death by hanging after conviction without affording him right of allocutus.
Respondent’s Brief of Argument was settled by A. O. Adeyemi-Tuki Esq. DPP, Ondo State and same was undated but filed on 11/4/2016, wherein the learned counsel adopted intoto the three issues as raised by the Appellant’s counsel for the resolution of this appeal.
I shall therefore resolve this appeal on the said three issues raised by the Appellant.
ARGUMENT OF ISSUE 1
Whether from the totality of evidence before the learned trial Judge, the prosecution established the guilt of the Appellant beyond reasonable doubt.
In arguing this issue, learned counsel for the Appellant referred to Section 36(5) of the Constitution, to submit that an accused person is presumed innocent until his guilt is proved. He further
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relied on Section 135(1) (2) and (3) of the Evidence Act, 2011 to argue that such proof must be beyond reasonable doubt, to secure conviction. He referred toOchiba vs. State (2011) 17 NWLR (pt. 1277) 663 @ 685-694, and Chukwu vs. The State (2007) 13 NWLR (pt. 1052) 430 @ 456 – 457. Furthering, counsel submitted that it is the duty of the prosecution to prove the charge brought against the accused person beyond reasonable doubt and that once a reasonable doubt is established, the accused must be discharged. He referred to the case of Albert Ikem vs. The State (1985) 4 SC 30 to submit that it is not the duty of the accused person to prove his innocence or lead evidence that will create reasonable doubt, but the duty of prosecution to prove his guilt beyond reasonable doubt. He relied on Esangbedo vs. State (1984) 4 NWLR (pt.113) @57; Egbe vs. King 13 WACA 105 and Ozaki vs. State (1990) 1 NWLR (pt. 124) 92 to submit that the onus on the prosecution to establish its case beyond reasonable doubt never shifts to the accused. Furthering, learned counsel called in aid the case of State vs. Azeez (2008) 4 SC 188 and The State vs. Nnolim (1994) 5 NWLR (pt. 345) 394 @
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406 as an authority that the prosecution generally, is bound to call all conceivable witness and that failure of the prosecution to call the wife of PW1 who was in the same vehicle when the alleged robbery took place, as a witness is fatal to the case of the prosecution. He referred to page 30 – 31 of the record to submit that the wife of PW1 was referred to thought out the trial as a witness and victim of the alleged armed robbery and yet was not called to testify at the trial despite the obvious fact that her testimony would have been vital and assist in resolving the missing link in the case. He referred to the case of State vs. Azeez (supra) to argue that where such necessary witness is not called, to testify at trial, same will be fatal to the case of prosecution. Learned counsel submitted that since the prosecution gave no reason for not calling the wife of PW1 to give evidence, that renders the testimony of PW1 doubtful. In the same vein, counsel submitted that even the learned trial Judge did not consider whether or not the testimony of PW1’s wife would have been relevant before arriving at its decision. He then relied on the case of Ogodo vs. The
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State (2011) MJSC Vol. 12 (pt. 1) 109 @ 129 to 130 to submit that failure to call a vital witness is fundamental a flaw as to occasion a miscarriage of justice. Learned counsel also quarreled with the fact that neither the PW1’s guardian with whom he went to incident the matter at the Police Station was called as a witness nor the alleged stolen items, nor the offensive weapon i.e. pestle and axe were produced at the trial. Learned counsel was also not happy that the prosecution failed to mention at trial whether the other stolen items such as the laptop, medical equipments of PW1 and the wife’s jewellery were recovered or not. He contended that all that was tendered was the alleged confessional statement of the Appellant.
Counsel submitted that all these failures cast a doubt on the case of the prosecution which must be resolved for the Appellant. He relied on Alabi vs. State (1993) 7 NWLR (pt.307) 511, Martins vs. State (1997) 1 NWLR (pt.481) 355. He noted that the Appellant was not arrested at the scene of the crime and the victims did not know his assailants before the incident as PW1 conceded that he did not recognize his assailants initially
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until he got to Special Anti-Robbery Squad Police Station where the Appellant and co-accused confessed that they were the assailants and begged him for forgiveness. The Appellant, said counsel, vehemently denied apologizing to PW1 at Special Anti-Robbery Squad. Counsel then argued that since PW1 had told the police that he could not identify his assailants, originally, an identification parade ought to have been conducted and same having not been done, it creates a doubt in the case of the prosecution. He referred to Okeke vs. State (1995) 4 NWLR (pt. 329) 676 @ 688 and Madagawa vs. State (1988) 5 NWLR (pt. 92) 60. He submitted further that it is not safe to convict the Appellant solely on his extra-judicial confessional statement, rather that the court ought to consider same along with other evidence led at trial to determine whether the confessional statement was voluntary or not. Counsel argued that a hardened criminal would not, on his own accord admit to committing an offence and therefore that the Appellant’s confessional statement was made under duress. He submitted that this point is germane since the Appellant testified that he was at SARS on the
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day he was arrested as motorcycle operator doing lawful business by carrying woman police officer to SARS and there and then he was arrested in connection with the robbery incident.
Reacting, learned counsel for the Respondent conceded that the law is that the accused is presumed innocent until his guilt is proved. Then counsel submitted that the necessary ingredients of armed robbery which the prosecution must prove to ground conviction are:
(a) That there was a robbery or series of robbery
(b) That the accused person was armed
(c) That the accused was one of those whom (sic) participated in the robbery.
For this, he relied on Bozin vs. The State (1998) 2 NWLR (pt.8) 456.
On ingredient (a) above, learned counsel referred to pages 30 and 31 of the Record of Appeal, wherein PW1 (the victim) while giving evidence at trial narrated how he and his wife were robbed on the night of 28/6/2011 and how he incidented the matter at Fanibi Police Station; consequent upon which the learned trial Judge found as fact that there was robbery incident, as can be seen at page 79 line 33 – 39 of the record.
On (b) above, PW1 also
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gave evidence that his assailants held an axe and a stick like a pestle and threatened to shot. Exhibit A confirms this piece of evidence as the Appellant confessed that he held a small axe and pestle.
Counsel submitted that axe and pestle comfortably fall within the definition of offensive weapon by Section 11(1) of the Robbery and Firearms (Special Provisions) Act.
On (c) above, he relied on Patrick Ikemson vs. State (1989) 1 CLRN 1 to submit that whenever the trial Court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was the person who actually committed the offence with which he is charged. He referred to Section 27(2) of the Evidence Act and Page 338 of Black’s Law Dictionary, 9th Edition on the relevance and definition of confessional statement, to submit that once a confessional statement is voluntary, free, direct and positive, it can sustain conviction. He again relied on the cases of Ikemson vs. The State (supra) and State vs. Usman Isah & Ors. (2012) 7 SC 93 @ 117 to submit that once an accused person makes a
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statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged, the statement become confessional. Learned counsel argued that albeit PW1 said he did not know the assailants but he testified that at SARS, the Appellant pleaded with him to forgive him, that he (the Appellant) was one of the persons that robbed him. Counsel noted that PW2 who was present with them at SARS also corroborated this piece of PW1’s evidence that the Appellant pleaded for his forgiveness. He referred to line 15 – 19 at page 80 of the record. He submitted that since the evidence of PW1, PW2 and Appellant’s confessional statement corroborate each other, the learned trial Judge was right to have held that the prosecution has proved beyond reasonable doubt that the 1st accused (Appellant herein) participated in the armed robbery. On the issue of witnesses, counsel relied on Ogbodu vs. The State (1986) 5 NWLR (pt. 294) 26 – 27 paras F – C and Section 200 of the Evidence Act, to submit that it is the quality of evidence adduced and not the number that matters and that the prosecution is not bound to call host of witnesses but witnesses it
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considers material to prove its case. Counsel submitted that evidence of PW1 and PW2 are cogent, reliable and positive enough to sustain conviction of the Appellant, making it unnecessary to call PW1’s wife and PW1’s guardian to further testify.
Further, counsel submitted that there is no law that requires that all items stolen must be produced at trial. In the instant case, said counsel, the stolen car was recovered from the 2nd accused. Counsel submitted that the unchallenged evidence of PW2 is that the Appellant confessed that in the company of one Blessing Fayeun, they robbed PW1 of his Camry Car and other valuables and sold the car to 2nd accused, who provided necessary information that led to the recovery of the said Toyota Camry car and one phone. He referred to page 34 of the Record of Appeal. Learned counsel furthered that it is not the requirement of the law that offensive weapon used to carry out the robbery must be produced in Court, rather what the law requires is that it must be proved that the robbers were armed at the time of robbery, which has been addressed above vide paragraph 4.07 of Respondent’s Brief. It is submitted by learned
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counsel that to raise the issue of involuntariness of the confessional statement for the first time on appeal is belated and an afterthought by the defence in an attempt to mislead this Court. Counsel argued that the Appellant’s counsel did not raise any objection at all, talkless of on ground of involuntariness when the Appellant’s confessional statement was tendered at the trial Court. He submitted finally that the confessional statement were free and voluntary. He urged us to resolve this issue for the Respondent.
ISSUE 2
Whether the identification parade carried out by the prosecution was valid and legal under the circumstances in which it was conducted.
Addressing this issue, learned counsel for the Appellant referred to the cases of State vs. Aibangbee (1998) 3 NWLR (pt. 94) @ 548 and Emenegor vs. State (2010) ALL FWLR (pt.511) 884 to submit that identification consist of evidence in form of fingerprints, palm prints, handwriting, voice identification parades, photographs or the recollection of the features of the person concerned by a witness who saw him in the act or commission which is called in question. He referred to the
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evidence in-chief of the PW1 at page 30 and 32 of the record to the effect that PW1 testified that he could not identify the Appellant even at the SARS until the Appellant and the 2nd accused confessed and pleaded for his forgiveness at SARS. Counsel submitted that showing the Appellant to PW1 at SARS amounted to identification parade and that same was improperly conducted. He relied on the case of Anthony Isibor vs. State (2011) 39 WRN 106 to submit that the usual practice is to place the suspect with others and have the witness identify the accused without any assistance; and that an identification parade with only the accused is not proper. He relied on Ikemson vs. State (supra) and Abdullahi vs. State (supra). Counsel submitted that aside from the fact that it was only the Appellant and his co-accused that were shown to PW1, PW1 also testified that he was confused and surprised when the Appellant and his co-accused started begging him but the police asked him if he did not know them. Counsel argued that it is trite that when the accused was not arrested at the scene of crime, the evidence of identification would require caution by the trial Judge before
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relying on same to convict. He relied on the case of Okah vs. State (2009) ALL FWLR (pt.453) 1358 to submit that in proper identification parade, the following factors must be evaluated, thus:
1. Circumstances in which the eye witness saw the suspect or defendant
2. The length of time he saw him.
3. The lighting condition.
4. The opportunity of close observation.
5. Any previous contacts between the two parties.
Learned counsel therefore submitted that from the evidence of PW1, PW1 neither had the opportunity to see the Appellant since the robbery was at night and there was no light, nor was he able to see them since he was ordered to lie down and he complied. Learned counsel therefore submitted that identification parade was necessary to identify who indeed were the armed robbers and the one conducted by the police was improperly done. He relied on Bozin vs. State (supra), Adamu vs. State (supra) and Adisa vs. State (supra). He urged us to hold that the identification parade was grossly improper.
Reacting, learned counsel for the
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Respondent agreed that identification parade is necessary where there is doubt as to ability of witness to recognize the suspect. However, said counsel, when there is no dispute as to the identity of the suspect of a crime, there will be no need for identification parade. He referred to Agboola vs. The State (2014) 10 ACLR 382 ratio 6.
Counsel submitted that identification parade is not necessary in this case since the Appellant had confessed that he committed the offence. He relied on Agboola vs. State (supra) to submit that it is settled in law that where an accused person confessed to an offence and the confession is found to be consistent with other relevant facts, outside the confessional statement, an identification parade become irrelevant. He referred to page 32 lines 13 ? 19 of the record to submit that PW1 testified that even at the SARS, he still cannot recognise the Appellant until the Appellant and his co-accused started to beg him for forgiveness. Counsel then submitted that the submission of the Appellant’s counsel on the necessity of identification parade is grossly misconceived given the fact that the admission of guilt of the
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Appellant in his confessional statement which was found to be voluntarily made was consistent with other relevant facts in this case. Furthering this line of argument, counsel referred to line 9 – 12 of page 33 and lines 7 to 10 of page 34 of the record to show that both PW1 and PW2 were in agreement in their various testimonies that PW1 consistently maintained that he cannot identify the Appellant until the Appellant identified himself at SARS by apologizing to him. Counsel submitted that on the strength of the above facts, that the finding of fact and conclusions of the trial Court cannot be said to be perverse since it is supported by the totality of the evidence on record. Counsel submitted that the police did not conduct any identification parade in this case because it is trite in law that when an accused person identifies himself as the perpetrator of an offence, there will be no need for identification parade.
He relied on Ikemson vs. State (supra). Furthering, counsel submitted relying on Agboola vs. State (supra) page 382 @ 388, that identification parade is necessary in all cases where there have been fleeting encounter with the victim of
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crime, and not where there are other pieces of evidence leading conclusively to the identity of the perpetrator of the offence as in the instant case. Finally on this issue, counsel relied on Theophilus Eyisi & Ors. Vs. State (2000) 15 NWLR (pt. 691) 558 to submit that the position of the Appellant that the only way to establish the identity of the Appellant is vide identification parade is erroneous. He urged us to resolve this issue for the Respondent.
ISSUE 3
Whether in view of the Appellant’s right to fair hearing, the learned trial Judge was right in proceeding to sentence the Appellant to death by hanging after conviction without affording him right of allocutus.
Addressing this issue, learned counsel for the Appellant referred to learned trial Judge’s conclusion, conviction and sentencing of the Appellant at page 82 of the record as wrong since the learned trial Judge did not ask the Appellant if he had anything to tell the Court before sentencing him to death by hanging. Counsel argued that the norm where an accused person is found guilty is, he is afforded an opportunity to plead for leniency and that this is fundamental in
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our Criminal Law. Pointedly, counsel submitted that Section 247 of the Criminal Procedure Law which is similar to Section 247 of the Criminal Procedure Act is to the effect that failure to accord the Appellant the right to plead allocutus is a deprivation of the Appellant’s fundamental right to put forward his case before the Court. Furthering, counsel relied on Section 36(6) of the 1999 Constitution (as amended) to submit that the right of allocutus is an integral part of hearing procedure in criminal trials and part of the convict’s defence as one of the right envisaged by the framers of the Constitution. He relied on the case of Ndukauba vs. Kolomo (2005) 2 MJSC 1 @ 23 and Agbahomovo vs. Eduyegbe (1993) 3 NWLR (pt. 594) 170, to submit that the right of fair hearing includes the right to be heard at every stage of proceedings and therefore that failure to give an accused a right of allocutus constitutes a flagrant violation of his right to fair hearing.
Furthering, counsel argued that the proviso to Section 247 of the Criminal Procedure Act which states that failure to accord the accused person right of allocutus does not invalidate the proceedings
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is invalid by reason of the constitutional dimension to the right of allocutus. Counsel argued strongly that a denial of fair hearing is both a denial of constitutional right and rules of natural justice which once established renders such judgment a nullity. He referred to Sokwa Motors Nig. Ltd. Vs. UBA Plc (2008) 2 MJSC 104 @ 123.
Counsel argued that at the allocutus stage, the accused is given an opportunity to state mitigating circumstances which could assist the Court in arriving at a just sentence. He urged us to resolve this issue for the Appellant and set aside the judgment of the trial Court.
Reacting, learned counsel for the Respondent submitted that the right of allocutus as enshrined in Section 247 of the Criminal Procedure Law of Ondo State, 2006 can only be invoked in a case that the Court has discretion or which the law allows a reduction of penalty for their sentencing. In the offence of armed robbery, the law does not allow for reduction of penalty once established. In any case, counsel relied on the proviso to Section 247 of Criminal Procedure Law of Ondo State, 2006 to argue that the right to allocutus is neither mandatory nor
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its denial capable of invalidating a criminal proceedings. Counsel called in aid Section 1(1) of the Robbery and Firearms (Special Provisions) Act, CAP R11 Vol. 14 LFN 2004 and the case of Federal Republic of Nigeria vs. Mohammed Usman & Anor (2012) LPPELR ? 7818 (SC) to submit that the penalty for armed robbery is mandatorily death which cannot be reduced once convicted.
Counsel submitted that even if the learned trial Judge afforded the Appellant right of allocutus, it would be to no effect since the Court does not have the power to vary or reduce the sentence of death by hanging, statutorily prescribed for armed robbery. Furthering, counsel argued that allocutus does not form part of the facilities that an accused person require in preparing for his defence and as such Section 36(6)(b) of the 1999 Constitution (as amended) which guaranteed the right of anyone charged with a criminal offence to be given adequate time and facility to prepare for his defence cannot be construed to cover the right to make allocutus in capital offences. This is because, said counsel, the defence of an accused person ends upon conviction while allocutus
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takes place after the defence of an accused person has been concluded. He urged us to resolve this issue for the Respondent.
RESOLUTION OF ISSUE 1
It is quite elementary in law that to secure conviction of an accused person, the prosecution must prove the guilt of the accused person beyond reasonable doubt. See: Ochiba vs. State (2011) 17 NWLR (pt. 1277) 663 and Chukwu vs. The State (2007) 12 NWLR (pt. 1052) 430. However, proof beyond reasonable doubt means proving the essential ingredients of the crime satisfactorily to the Court. It does not mean proof beyond absolute doubt or all shadows of doubt. The proof is sufficient if the necessary ingredients of the crime charged are satisfactorily proved. See the case of Emmanuel Eke vs. The State (2011) 2 SCNJ 57. Further, proof beyond reasonable doubt can be discharged by the evidence of a single witness that is direct, positive, cogent and reliable. See the Supreme Court decision in Olayinka Afolabi vs. The State (2010) 7 SCNJ 354. This presupposes that it is not the number of witnesses led at trial and the quantum of testimonies adduced therefrom that counts; but the quality of the evidence
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elicited from the witness(es). That been the case, the prosecution is not bound to call a host of witnesses or a particular witness before it could sufficiently prove the commission of an offence beyond reasonable doubt. See: Onavjoba vs. Obienu (1991) 4 NWLR (pt. 183) 16; Lawal Osula vs. Lawal Osula (1993) 2 NWLR (pt.274) 158 @ 159; Samuel Adaje vs. the State (1979) 6 – 9 (SC) 18 @ 28; Udofia vs. State (1981) 12 NSCC 465 @ 472 – 473; Okonofua & Anor vs. State (1981) 12 NSCC 233. Indeed, in the case of Theophilus vs. State (1996) 1 NWLR (pt. 423) 139 @ 151, the Supreme Court, per Onu, JSC (as he then was) put the issue this way:
“In the instant case, the prosecution called all material witnesses to establish its case. In doing so, it is not bound to all a host of them; one credible witness, if believed is enough. See Section 179 (1) Evidence Act CAP 112 Laws of the Federation, 1990. See also Ali vs. The State (1988) 1 NWLR (pt 68) @ 20; Alonge vs. I.G.P. (195) 4 F-S.C- 203; Anthony Igbo vs. The State (1975) 1 ALL NLR 70 and Yeboah vs. the Queen (1953) 14 WACA 484. The right of the prosecution to all the witnesses it decides to prove its
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case, it has been held, is not a mere privilege but a prerogative. See Akpan vs. The State (1991) 3 NWLR (pt 182) 646; Opeyemi vs. The State (1955) 2 NWLR (pt 5) 101 @ 107 and RV Adebanjo 2 WACA 315.”
In fact, the preference of quality evidence to quantity is so much that the prosecution is not bound in the exercise of its prerogative power, to call every eye witness to the crime to establish the commission of the crime by the accused. All that is required of the prosecution is to call such number of witness or witnesses that are necessary to establish the fact that the accused committed the offence charged. See: Ikechukwu Sunday & Anor vs. The State (2010) 7 SCNJ 112; Pius Edem Udo vs. The State (2006) 7 SCNJ 552.
On the strength of the authorities referred to above, I am inclined to and I so hold that the failure of the prosecution in this case to call as a witness the wife of PW1 (victim of the crime) to testify is not fatal to the case of the prosecution. The prosecution is not bound to call all conceivable witnesses as submitted by the learned counsel for the Appellant.
?On the issue of identification parade, identification
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parade becomes necessary in a case where there is doubt as to the identity of accused in relation to the offence. See the cases ofSamuel Attah vs. The State & Ors. (2010) 3 SCNJ 575; Kabir Almu vs. The State (2009) 4 SCNJ 152 and Bassey Akpan Archibong vs. The State (2006) 5 SCNJ 202. In the instant case, the victim of the robbery PW1 maintained that he cannot recognise his assailants because the attack was in the night and there was no light at the scene of the crime. He testified that he only saw his assailant for the first time at SARS. And that even at that, he could not recognise them, until they started begging him for forgiveness that they were the persons that attacked and robbed him on that eventful day of 28/6/2011. In otherwords, it was the Appellant and his co-accused that recognise PW1 and not otherwise. That being the case, there was no need for identification parade to be conducted.
See pages 30 to 33 of the Record of Appeal. Again, this piece of evidence was corroborated by the evidence of PW2 who also was present at SARS police station. PW2 further testified that the arrest of the Appellant was as a result of their investigation
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through which one of the robbed handset was traced to the Appellant. And upon arrest, the Appellant made a confessional statement that himself and one Blessing Fayehun robbed PW1 and his wife at Iyange Quarters, Oke-Ogba, Akure. By virtue of that confessional statement, the Toyota Camry Car robbed was recovered from the person the Appellant and his co-accused sold it to. See pages 34 to 37 of the record of appeal. When one appreciates the facts of this case, it will be clear that the learned trial Judge convicted the Appellant majorly on his confessional statement and not on the identification of the Appellant by PW1 at SARS. All other piece of evidence was only complimentary.
That being the case, the learned trial Judge was in order to have relied on the Appellant’s Confessional Statement which he found to be direct, positive, credible, cogent and corroborated in material particular in this case.
It is trite in law that Court can convict an accused person on retracted confessional statement. See: Chukwuka Ogudo vs. The State (2011) 12 SCNJ 1. Again, the test for admissibility of a confessional statement is its involuntariness and not
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its retraction. In the case of Emmanuel Eke vs. The State (2011) 3 NWLR (pt. 1235) 589 @ 603 paras A – B, the Supreme Court, per Fabiyi, JSC put the position of the law, thus:
“It should be stated clearly that the test for admissibility of a confessional statement is its involuntariness. One the issue is raised as done at the trial Court, it must be resolved or settled one way or the other before its admission or otherwise.”
See further: Agholor vs. Attorney-General Bendel State (1990) 6 NWLR (pt.155) 141 @ 151; Eguabor vs. Queen (No. 1) (1962) 1 SCNLR, 409; Olabode vs. The State (2009) 5 – 6 S.C. (pt. 11) 29.
Since the determining factor is involuntariness and not retraction of confessional statement, the learned trial Judge was in order. In the case of Akpan vs. State (2001) 15 NWLR (pt.737)745 @ 763, the Supreme Court, per Karibi-Whyte, JSC (as he then was) opined thus:
“The fact that a confession had been retracted did not mean that it couldn?t be acted upon, and relied upon for the conviction of the accused. See: Nkwudo Edamine vs. The State (1996) 3 NWLR (pt.438) 530 S.C.?
See also, Ibina vs. State
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(1989) 5 NWLR (pt. 120) 238 @ 248; Godwin Ikpasa vs. A-G Bendel State (1981) 9 S.C. 7 @28 – 29; Aremu & Anor vs. State (1991) 7 NWLR (Pt. 201) 1 @ 21 – 22; Jimoh Yesufu vs. State (1976) 6 S.C. 167; Inuwa Seidu vs. The State (1982) 4 SC 41 @ 58 – 59 and Obua vs. The State (1976) 2 S.C. 141.
On the issue of the weapons used in the robbery incident, there is no law or rule of procedure that requires that the offensive weapons used for the robbery must be produced at trial. All the law requires is that it must be proved that the robbers were armed with offensive weapon at the time of the robbery incident. See: Olayinka vs. State (2007) 9 NWLR (Pt. 1040) 561; Martins vs. State (1997) 1 NWLR (pt.481) 355 and Alabi vs. State (1993) 7 NWLR (Pt. 307) 511. On the strength of the above authorities, vis-a-vis its application to the facts of this case, this issue is hereby resolved against the Appellant. Issue 2 is resolved in favour of the Respondent.
RESOLUTION OF ISSUE 2
I have held while resolving issue No. 1 in this appeal that identification parade was not necessary in this case and that none was indeed conducted by the police in this
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case. It was beyond doubt by the evidence of PW1 as can be seen at pages 30 – 33 and that of PW2 at pages 34 to 37 of the Record of Appeal that it was the Appellant that recognised PW1 and started to beg him for forgiveness at SARS Police Station. It was not PW1 that identified the Appellant to the police as the person that robbed him and the wife. That been the case, this issue of whether or not the identification parade was properly conducted or not does not arise. The voluntary confessional statement of the Appellant and the corroboration provided by the unchallenged evidence of PW1 and PW2 were sufficient to establish the guilt of the Appellant. There was absolutely no need for identification parade and the police was right not to have conducted any.
RESOLUTION OF ISSUE 3
The learned Appellant’s counsel predicated his submissions on this issue on Section 247 of the Criminal Procedure Act. I shall reproduce Section 247 of the Criminal Procedure Act hereunder for ease of appreciation.
Section 247:
?If the Court convicts the accused person or if he pleads guilty, it shall be the duty of the Registrar to ask the accused
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whether he has anything to say why sentence should not be passed on him according to law but the omission of the Registrar so to ask him or his been so asked by the Judge or Magistrate instead of the Registrar shall have no effect on the validity of the proceedings.?
This provision is both clear and self explanatory that it is ideal that after conviction, the Registrar is expected to ask the accused or convict whether he has anything to say before sentence is pronounced on him. The same section also provided that failure of the Registrar to ask or the fact that it was the Judge or Magistrate as the case may be that asked the accused, cannot invalidate the proceedings. It is difficult to agree with the learned counsel for the Appellant submission vide Paragraph 6.5 of their Brief of Argument that failure to afford the accused right to plea of “allocutus” constitutes a breach of Section 6(6)(b) of the Constitution of Federal Republic of Nigeria 1999 (as amended). Section 6(6)(b) of Constitution of Federal Republic of Nigeria 1999 (as amended) provides:
?Every person who is charged with a criminal offence shall be entitled to….
<br< p=””
</br<
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(b) be given the adequate time and facilities for the preparation of his defence.?
It is common knowledge that the preparation and indeed the defence of an accused person ends upon conviction. That being the case, right of allocutus that comes after conviction cannot be said to be part of defence as envisaged by Section 6(6)(b) of the Constitution of Federal Republic of Nigeria 1999 (as amended).
Again, the manner of interpretation of Section 247 of the Constitution of the Federal Republic of Nigeria employed by learned counsel for the Appellant vide Paragraph 6.7 of his brief is as confusing as it is unknown to law. A section of a statute cannot be correctly interpreted without considering its proviso. But herein, the approach adopted by the learned Appellant’s counsel is such that while the first arm of Section 247 of the Criminal Procedure Act conforms with Section 6(6)(b) of Constitution of Federal Republic of Nigeria 1999 (as amended), the second arm breaches the said section of the Constitution. In other words, learned counsel carried out surgical operation on Section 247 and thereafter pick and chose the favourable parts. That cannot be. Black’s
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Law Dictionary, 8th Edition at Page 1262, defines the word “proviso”, thus:
?1. A limitation, condition, or stipulation upon whose compliance a legal or formal document?s validity or application may depend. 2. In drafting, a provision that begins with the word “provided that” and supplies a condition, exception or addition.?
This definition makes it clear that a “proviso” acts as a limitation, condition or exception to the main provision. The main provision cannot be read in isolation of the proviso, otherwise the meaning will be lost. It is trite in law that a provision or document is to be considered in its entirety rather than a clause therein in isolation. See: Chief S. O. Agbereh & Anor vs. Dr. Anthony Mimra & Ors. (2008) 1 SCNJ 409. Indeed, in the case of Nigerian Army vs. Brig. Gen. Maude Aminu-Kano (2010) 1 SCNJ 250, the apex Court held that section, subsections, clauses etc in any law made by the legislature are not made for the mere fun of it or for the purposes of meeting the whims and caprices of the interpreter; they must be interpreted to meet the circumstances, issues, conditions or situations for
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which they are made. Therefore Section 247 of the Criminal Procedure Act is clear and unambiguous.
In any event, the offence of armed robbery the Appellant was charged with and convicted is such that the Court neither has the power nor the discretion to reduce the penalty. Section 1(2)(a) and (b) of Robbery and Firearms (Special Provisions Act) are reproduced hereunder for ease of reference.
“Section 1(2)(a) – lf any offender mentioned in Subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this act to be sentenced to death.”
In interpreting the implication of this section, the Supreme Court in the case of Joseph Amoshima vs. The State (2011) 6 SCNJ 245 @ 258 Paragraph 20, per Onnoghen (JSC) put the issue poignantly thus:
?It is settled law also that where a statute prescribes a mandatory sentence in clear terms as in the instant case, the Courts are
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without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to b exercised in the matter.
It is a duty imposed by law.?
The implication of all these judicial authorities to the instant case is that even if the right of plea of allocutus was afforded the Appellant, it would still had not changed the sentence of death pronounced on him since the Court has no discretion to vary the sentence. This issue is therefore resolved against the Appellant also.
Having resolved the three issues raised by the Appellant in this appeal against the Appellant, this appeal is hereby dismissed for lacking in merit. Consequently, the conviction of the Appellant by Hon. Justice O. O. Akeredolu of Ondo State High Court, Akure Division in Charge No. AK/107C/2012, on 8/5/2014 is hereby affirmed. It is my humble view that the violence with which accused persons attack their victims in order to achieve some material gain leave much to be desired, that adequately one could be spurred to act in a manner like a ‘tooth for a tooth’ or an ‘eye for an eye’ as required in such circumstances as the law just considered,
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but NO! Justice is meant to reform as well as to deliver inherent fairness to an injured party but that injury can still be assuaged by final and a more lasting punishment that endures than a punishment that is in one swoop summarily discharged and is no more. Sometimes the naked gravity of that type of punishment muzzles out the life out of its citizens but does not necessarily improve the societal psyche and behavior for the better. So mercy displayed and used adequately to achieve an end will eventually lead society to a better fulfillment of morality.
Hence, accused persons that are convicted to life imprisonment should endeavour to use this grace given by the Court to atone for their sins and be reformed in the society.
Nevertheless, due to my deep seated conviction that no human has the right to take away another’s life, I differ on the sentencing of the Appellant by the learned trial Judge. I found succor for my conviction in the case of Benson Ukwunneyi & Anor vs. State (1989) 4 NWLR (Pt.114) 13 @ 158 Paragraph C – D, per Oputa, JSC (as he then was) opined, thus:
?I will conclude this concerning judgment by saying a
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few words about proof beyond reasonable doubt This is the policy of our law. The policy derives from the fact that human justice has its human limitations.
It is not given to human justice to see and know, as the great Eternal knows; the thoughts and actions of all men. Human justice has to depend on evidence and inferences. Dealing with the irrevocable issues of life and death, she has to tread cautiously lest she sends an innocent man to an early and ignoble death. In our system, it is therefore better that nine guilty person’s escape than that one innocent man is condemned…?
On this justification of my conviction by the apex Court, per Oputa JSC, cited above, I hereby reverse the sentence of death passed by the learned trial Judge in this case to life imprisonment.
Other Citations: (2016)LCN/8851(CA)
