Abayomi Joshua V. The State (2009)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON-WEST, J.C.A,

This is an appeal against the judgment of the Hon. Justice Kayode Bamishile delivered on 18/6/2002, sentencing the Accused Appellant to death for the offence of conspiracy and armed robbery under section (5)B and 1(2) (a) of the Robbery and Fire Arms (Special Provision) Act, 1990.

There were three accused persons who stood trial before the lower court. The Appellant herein is the 2nd accused person and he was charged along with the other accused persons as follows:

Count (1): Conspiracy .

STATEMENT OF OFFENCE

Conspiracy, contrary to section 5(b) and punishable, under section 1(2), (a) of the robbery and firearms (Special Provisions) Act Vol. XXII Cap 398 Laws of the Federation of Nigeria 1990.

PARTICULARS OF OFFENCE

Dele Gabriel (M), Abayomi Joshua (M), Adewale Adedara (M), Dele James Apeh (M) and Felix Amodu (M) on or about the 28th day of July, 1998 at Ise-Ekiti in the Ekiti State of Nigeria conspired to commit felony to wit: armed robbery.

Count II:

STATEMENT OF OFFENCE

Armed Robbery contrary to and punishable under section 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act Cap 398, Vol. XXII Laws of the Federation of Nigeria 1990.

PARTICULARS OF OFFENCE

Dele Gabriel (M), Abayomi Joshua(M), Adewale Adedara (M), Dele James Apeh (M) and Felix Amodu (M) on or about the 28th day of July, 1996 at Ise-Ekiti in Ekiti State of Nigeria robbed one Sunday Onomejoh of the sum of N300,000.00 (Three Hundred Thousand Naira) and at the time of the robbery you were armed with offensive weapons to wit: guns.

The Appellant dissatisfied with the Judgment, now appealed to this court. When the appeal came up for hearing on the 17th day of November, 2008, the Counsel to the State, Gbenga Adaramola Esq. (Asst. Chief Legal Officer announced appearance for the state whilst C.D. Obiagwu Esq. appeared for the Appellant. Obiagwu Esq adopted the Appellant’s brief which was filed on 6th day of June, 2008 and also the Appellant’s Reply Brief filed on 3rd day of November, 2008 and urged the court to allow the appeal.

Adaramola Esq., too, adopted his brief dated 15th day of October, 2008 which was deemed filed on 23rd day of October, 2008. He urged the court to dismiss the appeal.

A short recapitulation of the facts of this appeal is that, the Appellant was charged alongside 4 others on an information on 2 counts of conspiracy to commit armed robbery on or about 28th day of July, 1998 at Ise-Ekiti in Ekiti State. The Appellant who was the 2nd accused person in the lower court filed five grounds of appeal which could be found on pages 75 – 77 of the record. Finally before the appeal was heard, with the leave of this court, the Appellant filed a Further Amended Notice of Appeal containing 17 Grounds. The details of the facts shall be dealt with during the course of the determination of the issues raised for determination.

The Appellant proposed the following issues in the determination of this appeal which are:

“1. Whether the conviction of the Appellant based on Exhibits C and D, his confessional statements to the police was justified?

2. Whether the failure of the learned trial judge to evaluate the evidence of the Appellant and to make clear findings on them, occasioned a miscarriage of justice.
3. Whether the prosecution proved beyond reasonable doubt that the Appellant robbed Sunday Onomejoh on 28th July, 1996?
4. Whether Exhibits C and D, the statements of the Appellant, were confessional statement admitting the offence with which he was charged. In other words, was the conviction of the Appellant on the Exhibits C and D justified?
5. Whether the failure of the prosecution to tender the statement made by the Appellant at Ala police station left a gap in the prosecution’s case and occasioned a miscarriage of justice against the Appellant?
6. Whether the prosecution proved beyond reasonable doubt that there was agreement between the Appellant and other co-accused to justify his conviction for conspiracy to commit armed robbery?
7. Whether the imposition of the mandatory death sentence on the Appellant by the lower court under Section 1(2) (a) of the Robbery and Fire Arms (Special Provision) Act Cap 398 Laws of the Federation of Nigeria 1990 was unconstitutional. In other words, whether Section 1(2)(a) of the Robbery and Fire Arms (Special Provision) Act Cap 398 Laws of the Federation of Nigeria 1990 to the extent that it prescribes mandatory sentence of death on anyone convicted of armed robbery, is contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999, and the African Charter on Human and People’s Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990, and international treaties that Nigeria has ratified.

To these 7 issues proposed for determination, the Respondent respectfully submitted the following three issues for determination in the appeal namely:

“1. Whether the prosecution proved the charge of conspiracy and Armed Robbery against the Accused/Appellant beyond reasonable doubt.

2. Whether the learned trial judge failed to evaluate the evidence adduced by the Appellant in his defence and make a clear finding on it, and thereby occasioned a miscarriage of justice.
3. Whether the imposition of the mandatory death sentence on the Appellant was unconstitutional.”

It is appropriate in my humble view to treat this appeal under these three issues because they are more direct and succinct to the facts in issue for determination unlike the winding and the merry go round issues contained in Issues 2 to 5 of the Appellant which can all collapse into Issue 1.

ISSUE 1

Whether the prosecution proved the charge of conspiracy and armed robbery against the accused/appellant beyond reasonable doubt.

The Appellant at the trial testified on his behalf denying the charge and further retracted his alleged confessional statements, which he contended was done under duress, because Exhibits C and D the alleged confessional statements to the police was not justified. The Appellant contended that the learned trial judge ought to have looked beyond the confessional statement to prove the veracity of the confession. He conceded that the trial judge was aware of this and proceeded to find the corroboration to the alleged confession by relying on the guns and ammunition (Exhibits 7, G1 – G2 and H1 – H3) said to be recovered from the 1st accused person, which was part of the confession. Appellant submits that there is no other evidence outside the confession to support and show that the retracted confession was true, because Exhibits 7, G1 – G2 and H1 – H3 are not evidence outside confession capable of corroborating the facts contained in the confessional statement, stating that “CORROBORATIVE EVIDENCE MUST BE CREDIBLY INDEPENDENT OF THE EVIDENCE IT SEEKS TO CORROBORATE. ” (underling mine for emphasis).

Obiagwu Esq of counsel to the Appellant then referred the court to the following cases in support of this assertion namely Nsofor vs. State (2004) 18 NWLR (Pt. 905) 292, Per Oguntade JSC, at page 310 – 311.

THE QUEEN VS. OBASA (1962) 2 SCNLR 402, (1962) 1 ALL NLR 651; EDET OBOSI VS. THE STATE (1965) NMLR 307; EBHOMIEN VS. QUEEN 2 SCNLR 332 (1963) 1 ALL NLR 365; PAUL ONOCHIE & 7 OTHERS VS. THE REPUBLIC 1 SCNLR 2004; OBUE VS. THE STATE (1976) 6 S.C. 167.

Therefore Obiagwu Esq went on and on elaborating his contention on corroboration, external or outside evidence, the impossibility of the Appellant not to have committed the offence and the prosecution did not prove that he did outside the said confessional statement that was retracted. See pages 9 – 15 of the Appellant’s brief of argument.

He further argued that the failure of the learned trial judge to evaluate the evidence of the Appellant and make clear findings on them occasioned injustice or a miscarriage of justice and submitted that in several decided cases superior courts of this land have held that failure of a trial court to properly evaluate evidence before him, would lead to the Appeal Court setting aside any decision reached in the Judgment, without insistence on proof of miscarriage of justice against the Appellant. He referred the court to the following authorities KARIBO VS. GREND (1992) 3 NWLR (PT.230), 426 PAGE 643 PARAS F – G; KALIO VS. WOLUCHEM (1985) 1 NWLR (PART 4610) AT 622; OBIASO & ORS VS. OKOYE & ORS (1989) 5 NWLR (PT. 119) 80.

Emphasizing that once there is a wrong evaluation of evidence, the Judgment without more, would not stand on appeal. See page 15 to 22 of the Appellant’s brief.

In a stout response to the submission by the Appellant, the Respondent in its approach to Issue 1 stated that the issue is distilled from Grounds 1, 2, 3, 4, 5, 6, 7, 8, 12 and 13 of the Further Amended Notice of Appeal and stated that by virtue of section 138 (1) of the Evidence Act, the prosecution bears the onerous responsibility of proving alleged crimes against an accused person beyond reasonable doubt. The burden of proof required to be discharged by the prosecution must be cogent, credible and compelling evidence required to substantiate or prove elements of the offence.

In the proof of the elements constituting an offence such as armed robbery contrary to Section 1(2)(a) of the Robbery and Fire Arms (Special Provision) Act Cap 398 Laws of the Federation of Nigeria 1990, the elements are:

1. There was robbery
2. It was a robbery carried out with the use of offensive weapons
3. The accused person participated in the robbery; and that these elements have been clearly stated by the superior courts. ROBIZ VS. STATE (1985) 2 NWLR (PT. 8) 465 AT 469; NWACHUKWU VS. STATE (1986) 2 NWLR (PT. 25) 765 AT 776.

Counsel to the Respondent, Adaramola Esq., further submitted that an alleged offence could be proved by three different methods namely:

1. By direct evidence
2. By circumstantial evidence
3. By confessional evidence

and referred the court to EMEKA VS. STATE (2002) 14 NWLR (PT. 734) 66 AT 683; ADIO VS. STATE (1986) 5 S.C. 194 AT 219 – 220.

He submitted that the prosecution employed the three methods in varying degrees to prove the charge against the Appellant. How true is this assertion is now the preoccupation of this court vis-a-vis the judgment of the Trial Court. It is salient at this point to reproduce this portion of the Judgment wherein the trial court in the assessment of the evidence and evaluation of same said ”The submission of Mr. B. A Osho in his address that the confessional statement, may not be confessional in nature because of the environments they were at the time their statements were taken is not correct, the fact that accused’s statement is taken in the police station, and the accused volunteered confessional statement, do not render it, not to be confessional in nature.

The rules are as follows: When a police officer is trying to discover whether or by whom, an offence has been committed, he is entitled to question any person whether suspected or not from whom he thinks, that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not, been charged with the offence or inform that he may be prosecuted for it.

In the case of R. V. BUCHAN (1964) 1 W.L.R. PAGE 365 also at 48 Or. App. Report page 126, Lord Parker C.J. said:

“It is always permissible for a police officer to question a person in custody with reward to offences other than that for which he is held. This was the position under the old rules. It is not different under the new rules.”

It is trite law that, the guilt of accused persons can be proved by three methods namely: by confessional evidence, by circumstantial evidence, by direct evidence or eye witness evidence, see the case of EMEKA VS. THE STATE (2001) M.J.S.C. VOLUME 5 PARA 1 AT PARA 5 RATIO 9.

A confessional statement, if voluntary positive, direct, freely and positively made and satisfactorily proved is sufficient to grant conviction see section 27(1) (2) of the Evidence Act Cap 112 Law of Federation of Nigeria 1990 see the case of ADIO VS. THE STATE 1982 NWLR PART 24 PAGE 581 AT 584 RATIO 17 AND 18, case of NWAEBONYI VS. STATE (1994) 5 NWLR PART 343 PARE 138 AT 143 RATIO 5.

The Court can not gloss; over the fact that, all the three accused persons re-tracted the confessional statements they made to the police. The law is that, the fact that the accused persons have re-tracted their confessional statement may not necessarily make the statement inadmissible, see the case of R. V. ITULE (1961) ALL N.L.R. PARA 462 AT PAGE 465.”

This quotation from the judgment of the lower court in the circumstances of this appeal are core facts before the court. The retraction of the confessional statement could render the judgment impotent, because where a confessional statement is retracted, a trial within a trial ought to be held to ascertain the truth of the statement. If the confession is found to be true, voluntary, direct and positive, it is admissible in law, but if not the confession is not admissible.

See NWOSU VS. THE STATE (1998) 8 NWLR (PT. 562) 433; IDOWU VS. THE STATE (2007) 7 SC (PT. 11) 50; IHUEBEKA VS. THE STATE (2000) 4 S.C (PT. 1) 203.

Of course there is nothing sacrosanct about retraction of a confessional statement. A retracted confessional statement would however be relevant and affect the outcome of the case, if the retraction affects the main issue in the case.

The main issue in this appeal is the commission of armed robbery. The armed robbery committed in the appeal did not meet the standard in ADEOSUN VS. THE STATE (2007) 46 W.R.N. 1 AT 72 or even in the numerous cases on armed robbery where the essence is that the accused person must be armed with the offensive weapon during the course of the robbery and that the accused person took part in the said robbery. In ISMAIL VS. THE STATE (2008) 15 N.W.L.R (PART 1111) 593 the court inter-alia held that for any conflict or contradiction in any evidence of the prosecution witness to be fatal to the case, the conflict or contradiction must be fundamental to the main issue in question before the court. See ONUBOGUN VS. THE STATE (1974) 1 ALL NLR (PT. 11) 5; IBE VS. THE STATE (1992) 5 NWLR (PT. 244) 642.

Now did the trial court test the veracity of the confessional statement made by the 2nd Aocused/Appellant to the police or from other credible witnesses?

It is the duty of the trial court to test the veracity or truth of this extrajudicial confession by interrogatories from the accused person and also from other credible evidence before the court.

See NWANZE VS. THE STATE (1996) 2 NWLR (PT. 428) 1 S. C; AKINMOJU VS. THE STATE (2000) 4 S.C. PART 164.

In fact the prosecution failed woefully to discharge the burden of proof that rests squarely on their shoulder.

See CHRISTOPER OKOLO VS. COMMISSIONER OF POLICE (1977) NWLR 1.

Circumstantial evidence is not sufficient to ground conviction and this is what happened in this judgment as could be gleaned from this extract thus:

“I also note that before a conviction can be properly founded on such a re-tracted confession, it is desirable to have some evidence outside the confession which will make it probable that the confession was true.

Three guns and three cartridges were recovered from 1st, 2nd and 3rd accused persons which they confessed were used for the operation.

Also the accused persons took the I.P.O. to the scene of the incident and they told the police the role each of them played.

Each of the three accused persons confessed that they went to Ise-Ekiti and that they were armed with a gun. However the 2nd Accused person in his statement denied the allegations and stated that he was never in Ise-Ekiti and that he was only picked up in his house and because he refused to give police a bribe of N20,000.00, for bail, he was charged to court. See NWANZE VS. THE STATE (1996) 2 NWLR (PT. 428) 1; DURWODE VS. THE STATE (2000) 12 S.C. (PART 1) 1. This court in ADEOSUN VS. THE STATE (2007) 46 WRN 1 AT 72, OGUNWUNMIJU JCA stated that for prosecution to successfully prove that the accused person committed armed robbery, there ought to be proof beyond reasonable doubt in the following:

1. That there was robbery or services of robbery
2. That the accused person was armed with offensive weapon during the cause of the robbery.
3. That the accused person took part in the said robbery.”

Are the above ingredients fully established in this instant alleged robbery, that gave birth to the findings of the trial judge which led to conviction and sentencing of the Appellant? The answer is sure to be in the negative because from the facts of the case as recorded by the trial judge pertaining to the Appellant who is 2nd accused in the lower court is as follows:

“DW2 Abayomi Joshua, the 2nd accused in this case, is a motor driver, he said that, he drove his motor to Ibadan on 21/9/96 and he came back to Akure by 9.00 p.m, on the following day at 6:00 a. m., policemen came with a vehicle having with them a gun and hand cuff, they said they were looking for Friday and Lucky. They were told, that they were not at home, as a result of which all of them, in that house was arrested including the female persons. Later Friday and Lucky came, they were arrested and their room were searched.

Policemen asked them to pay N20,000.00 each to bail themselves. According to 2nd accused he said, he could not get N20,000.00 for his bail.

The 2nd accused said that, he was alleged to have stolen with Friday and Lucky, but that he told the police that he did not steal with Lucky and Friday but that both live in the same house. The 2nd accused said, how he was beaten by the police and he had to complain to the Deputy Commissioner of Police who mandated one Sergent Omitusi to take him to the hospital for treatment and when he was well, they took him back to the police station, where a statement was written by the police and the 2nd accused merely thumb printed it.

According to him, he said he only made one statement and that he did not make the 2nd statement.

And that on 21/11/96 1st accused, the 3rd accused and himself were taken to court and from court to the prison yard.

The Appellant who was charged with conspiracy and armed robbery of one Sunday Onomejoh of the sum of N300,000.00 on 28th July, 1996 at Ise-Ekiti, while armed with offensive weapons. At the trial, the prosecution relied on the statements of the Appellant to the police admitted as Exhibits C and D, and the Learned trial Judge also based his finding of guilt against the Appellant on the said Exhibits, when he said that “these statements are confessional and the court is satisfied that the statements were made voluntary.”

A glance at this evidence in open court made on oath, it could be seen that this evidence is completely not in attunement with Exhibits C and D retracted by the Appellant.

“Sworn on Bible states as follows: my names are Abayomi Joshua. I live at No. 12, Ilamo Street, Akure, I am a motor driver. I was arrested for offence of stealing.

On 21/9/96 I was in my house at Akure one boy called Friday and another boy called Lucky, we were both live in the compound at Ilamo Street Akure on getting to Ibadan on that same 21/9/96 I was driving a a motor to Ibadan before I load to come back to Akure I arrived at Akure by 9.00p.m. I off load my luggage I then went back to my house I washed my vehicle and park it. On the following day at 6.00a.m. police men came with a vehicle having with them a gun and hand cuff they said they were looking for Friday and Lucky they were told that were not at home as a result all of us in that house were arrested including the female ones.

We were taken to B divisional police station. We were in that “B” division for three days they then inquire from us if we know where Lucky and Friday have gone to, we said we did not know the whereabout. The police man said that he would not leave any of us except he see Friday and Lucky.

Our landlord sent for his son to come and bail him. The landlord went home to go and look for Friday and Lucky. Three days later police took us to State C.I.D Akure.

On getting there I inquire from my I.P.O. about my offence it was then he told me that Lucky and Friday they were looking for went to steal and since we are living in the same house after spending a week at the State C.I.D. Friday and Lucky came. They were arrested and their rooms were searched all possessions and their vehicle were brought to the station.

Police then said that people should come and bail us. i.e. those of us that were formerly arrested. The police man asked us to bring N20,000.00 each to bail ourselves. I was changed from cell to another because I do not have the sum of N20,000.00 when I was taken to another cell it was then I met those people they claim that we went to steal together.

In the night of the day I was taken from the cell to the Kanter I was asked to make statement as I was alleged to have stolen with Friday and Lucky. I told them that I am not stealing with Friday and Lucky, but that we live in the same house.

Police started to beat me.

One Ojo Omitusi Sergeant used pipe it to hit my right hand and also to remove my tooth he even shut gun at my leg. P.W.1 did not take any statement from me when the Deputy Commissioner of Police came I then complained to him that I had headache he mandated Sergeant Omitusi to take me to the hospital I was in the hospital when Sergeant Omitusi came with a paper and asked me to sign it but I refused to sign it.

When I was well was taken back to the police station where a statement was written by the police I merely thumb printed it. I only made one statement I don’t make the 2nd statement. On 21/11/96 we were taken to court and from court to the prison I was in court when exhibits F, G1, G2 were tendered .

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Lucky and Friday were not taken to the court with me. My landlord was not taken to court with me. Lucky and Friday are now dead. They were killed by the police. I did not see them when police was killing them.

Lucky and Friday did not make any allegation against me. “B” divisional police station is at Oke Aro I met 1st Accused at State C.I.D.

I would not know. I was in the police station as at the time I was arrested. I met 3rd Accused at S.E.P.U. We are not friend we did not know ourselves before I got to know their names when this case started.

1st Accused is Dele.

3rd Accused is Wale.

We have not quarrel before I know Arakale Street, Akure. I heard of Ise-Ekiti as a town, I have never been there before in the month of July 1996 I was in my town at Igbara Oke. I have been living in Akure since February 1996. I was doing my driving job.

On 28th July, 1996 I was at Akure in the morning in the night of that day I did not go to Ise-Ekiti with other accused persons.

I never joined anybody to rob Sunday Onemejo the sum of N300,000.

It is not true that I took police with other accused person to the house of Sunday Onamejo on 10/10/96. As I was in hospital between 8/10/96 to 15/10/96. I know D.S.P. Akano. I made statement to the Police. I was not taken before D.S.P. Akano.

I have never been to school since I was born. I cannot speak English I cannot write English. Exhibits C & D are not my statements to the police. I made a Yoruba statement to the police which thumb printed. I do not know the language which exhibits C & D are needed.

Exhibits D & C are long sheets where as the statement I made to the police were on short paper.

Apart from driving I followed my father to the farm. I do not hunt.

I am quite experience in the affairs of life Exhibits R – G1 & G2 are irons.

I do not know what a gun is, I have never seen a gun in life. These things before me i.e. Exhibits F – G1 & G2 are not guns. I do not know Exhibits H – H1, H2 & H3. I do not believe exhibits H, H1, H2 & H3 are cartridges.

Police told lies against me. I am not related to any of the police officers.

I have never been arrested for any offence by any police man.

I at one time had a quarrel with PW2 is palm-wine parlour over a woman i.e. January, 1996. As at that time I have not been living in Akure. It may be the reason why police charged me.

Police is telling lies that we the accused persons belong to the same gang.

I am not an armed robber.

Is because I do not have N20,000 this is why I was charged to the court.

I did not conspire with other accused persons to rob Sunday Onajemo.” (underlining mine for emphasis).

I have gone through the problem of reproducing the full testimony of 2nd Accused/Appellant in the court below. All underlined portions marked are indeed issues that call for concern especially the extra judicial killing of Friday and Lucky by the police. These were men the police in the first place came to look for in the same house where they did not find them, the police proceeded to arrest the 2nd Accused/Appellant and all others they can lay their hands on including women. The police promised not to leave them until Friday and Lucky who stole were produced. On the day they were arrested at Akure on 21/9/96 by 6.00 am, the police took them to B Divisional police station for 3 days, and later taken to state C. I. D Akure, whilst their landlords went home to look for the alleged thieves Friday and Lucky. After a week, Friday and Lucky were arrested, their rooms searched and all their possessions and vehicles were brought to the station.

Despite the fact that the said Friday and Lucky were now under police custody, they were not even charged to court to face the law instead the police did what they know best to do, they carried out extra judicial killing of the Duo as stated under oath by the 2nd Accused/Appellant during his evidence on oath before the court. This extra judicial killing of the Duo could have impacted fear in the Appellant.

The Supreme Court in MAIYAKI VS. THE STATE (2008) 15 NWLR 173 AT 220 where CHUKWUMA-ENEH JSC said:

“I must however admonish here that enough is enough of the type of raw killing which the police have timidly termed as death from accidental discharge. Our law reports are replete with such cases. Even then who otherwise by such warped defence to obvious cases of culpable homicide? Certainly not the courts nor any longer the public they are paid to protect. It is time the police did a volte-face to this type of crimes if they have to start the process of salvaging their steadily waning image in this Country.”

I must sound a note of warning here especially to the police in this country. Some unscrupulous police officers are not only engaging in this extra judicial deaths caused by accidental discharge as were the case in MAIYAKI VS. THE STATE SUPRA, wherein their Lordships of the Supreme Court cautioned the Nigerian police to stop the reckless killing of persons under the guise of accidental discharge of firearms. My clarion call to the police is pivoted on the premeditated acts of the police who intentionally in their offices decide on their own and for their pleasure to waste the lives of some people under their custody who may or may not have committed any crime. Many lives especially of strong abled bodies young men and indeed any other persons who it shall please some senior officers to eliminate from this world are usually so eliminated without the order of court or even access to court for trial of an offence if any. The courts are ousted.

There are like in every profession a wonderful crop of seasoned police officers but the acts of a few of our policemen in this direction are illegal, unconstitutional and indeed a shame to democracy. Extra judicial killings by policemen should henceforth stop, for it is not only undemocratic, it is barbaric and wicked and unless you are a relation of a victim, is only then, one would appreciate the agony, trauma and torture, this intentional extra judicial killings by policemen have caused the citizenry in Nigeria. These few officers instead of carrying out their functions of arrest, investigation, possible prosecution and maintenance of peace would rather constitute themselves to play the role of the judge or court and proceed to execute indiscriminately according to their whims and caprices, people in their custody.

In this extra judicial killings, the bodies of the victim are usually never found as in this case where the bodies of Friday and Lucky the two gentlemen the police were looking for before they arrested the Appellant. They were finally arrested and if they were extra judicially murdered, their bodies are yet to be found. Is their murderers free of liability? The answer is in the negative. See OCHEMAJE VS. THE STATE (2008) 15 NWLR, part 1109, page 57 at76 -77.

Wherein the correct legal principle is restated that even in the absence of a corpus delicti, a person can still be convicted for murder if there is a strong unequivocal and compelling evidence that the victim of the alleged crime is dead. See JOSEPH OGUNDIPE AND OTHERS VS. QUEEN (1954) 14 WACA 458; AYINDE VS. THE STATE (1972) 3 S.C. 153 AT 158 -159.

Enough of extra judicial killing which in my humble view must have effected the Appellant. It is settled law that proper evaluation of evidence involves the consideration of evidence adduced by the parties by determining their credibility and ascribing probative values to them. The trial court in this case did not follow the principle of law on the evaluation of evidence. How can you say a party made a voluntary confessional statement, when the same party says “Have heard of Ise-Ekiti as town, I have never been there before …. On 28th July, 1966, I was at Akure in the morning in the Night of that day I did not go to Ise-Ekiti with other accused persons.” This statement is clear and does not need any embellishments to factor or link to Exhibit C and D which are hereby reproduced:

…… Sometimes ago, one Dele James Apeh came to meet me in beer parlour with one man called Ramond. They both met myself and Dele Gabriel and bought some bottles of Gulder beer for us and along the line Mr. Ramond and Dele James Apeh told us that they have a job for us which they wanted our gang to do for them, they explained further that there are some huge amount of money inside their master’s house at Ise-Ekiti, and that we should go their(sic) house to remove the money, and we shall later come back to give them their own share which we consented to do for them. They took us from Akure to Ise-Ekiti where the house was shown to us and later came back. On the following day we organized our armed robbery gang and we left for Ise-Ekiti in the night to carry out the operation. We only went for the operation. We only went for the operation with one short barrel gun owned by Wale Adedara, and some knockout explosives. We fired several shots during the operation before we could succeed in removing the sum of money which was about N300.000and hurriedly left back for Akure … ”

It is the duty of this court in an appeal to determine whether there had been a miscarriage of justice or not, depending on the application of principles of law and the facts of the case. From the facts of this appeal the reliance on Exhibits C and D by the trial court is out of place because the Appellant was unequivocal in his evidence before the court when he said “I have never been to school since I was born. I cannot speak English, I cannot write English Exhibits C and D are not my statements to the police. I made a Yoruba statement to the police which I thumb printed. I do not know the language which Exhibits C and D are recorded in Exhibits C and D are long sheets whereas the statement I made to the police were on short paper.” There is no doubt there is a miscarriage of justice because the trial judge failed to consider the surrounding and other extraneous evidence in relation to the so called voluntary confessional statement when there is abundant evidence that the Appellant was beaten to a pulp, he had to request a senior police officer to order that he should be taken to hospital and he was in. the hospital between 8/10/96 – 15/10/96, so he could not have accompanied the police to the residence of Sunday Onamejo on 10/10/96 as stated by the prosecution witness. The details in Exhibit D the confessional statement vis-a-vis the other extraneous evidence pertaining to the Appellant is not sufficient to affect a conviction of the Appellant without corroboration although the Respondent submit that it is settled law that confession alone is sufficient to support conviction with out corroboration so long as the court is satisfied with the truth of the confession. He referred the court to these cases AGENU VS. THE STATE (1992) 7 NWLR (PT. 256) 749 AT 764; YUSUF VS STATE 1976 NSCC 307 AT 310 – 311; ACHABUA VS. THE STATE 1976 NSCC 714 AT 717.

Infact Exhibits C and D have not been subjected to the tests in IKPO VS. THE STATE (1959) 9 NWLR (PT. 421) 540 AT 555, which was as suggested by the Respondent as follows:

a. Is there anything outside it to show it is true?

b. Is it corroborated?

c. Are the facts stated in it true as far as can be tested?

d. Did the accused have an opportunity of committing the offence?

e. Is the accused’s confession possible?

f. Is the confession consistent with other facts which have been ascertained and proved?

The assessment of the evidence that led to the conviction of the Appellant had not addressed any of these tests or questions which if keenly applied in the case would have all been answered in the negative.

The Appellant therefore submits that it is the duty of the prosecution to show the facts contained in the statements, were indeed admission of guilt of the facts constituting the offence charged by calling other witnesses that would link the facts in the statement with the offence charged. In other words, where the statements are not direct, positive and unequivocal admission of guilt of the offence charged, the prosecution must establish by other evidence other than the statement of guilt of the Appellant.

I am obliged from the foregoing to hold that the prosecution has a duty to prove the charge of conspiracy and armed robbery against the accused/appellant beyond reasonable doubt which they have not discharged. They have failed to discharge that duty and so I resolve issue 1 in favour of the Appellant.

ISSUE 2

“Whether the Learned trial Judge failed to evaluate the evidence adduced by the Appellant in his evidence and made a clear finding on it, and thereby occasioned a miscarriage of Justice”.

This issue 2 is like a repetition of Issue 1. As already stated one or two issues would have sufficed in the determination of this appeal instead of the proliferation of issues. See OKOYE VS. CENTRE POINT MERCHANT BANK LTD (2008) ALL FWLR (PART 44) PAGE 837 – 838 PER OGEBE JSC., when he said –

“this court frowns at proliferation of issues as prosecuted by the Appellant’s brief in this appeal.”

The crux of the Appellant’s argument under this issue is that the lower court did not properly evaluate evidence adduced by the Appellant in his defence and failed to make findings on the evidence of retraction of Exhibits C and D.

The Respondent however submits that the Trial Judge properly and painstakingly evaluated the totality of evidence adduced by the Appellant in his defence to the charges against him. I have duly evaluated the evidence adduced by the Appellant when considering issue one.

In the same vein, I abide by my Ruling in issue one and accordingly find issue 2 in favour of the Appellant, because it would serve no useful purpose but would only amount to a repetition if I were to go through the log of the same. It is apparent that it is settled law that an Appeal Court must consider all issues placed before it by the parties. There are however exceptions according to the facts and circumstances of each case. As laid down by the apex court, one of such circumstances is where a consideration of one issue is enough to dispose of the appeal, the court is under no obligation to consider all the issues. See 7UP BOTTLING CO. LTD VS. ABIOLA & SONS (2001) 7 WLR (PT. 70) PAGE 1611; ANYADUBA VS. N.R.T.C. LTD. (1992) 5 NWLR 535; SANUSI VS. AMEYEGUN (1992) 4 NWLR (PT. 237) 527.

Consequently, I rule in favour of the Appellant in Issue two.

ISSUE 3

Whether the imposition of the mandatory death sentence on the Appellant was unconstitutional?

This court has no intention to pre-occupy itself with the jurisprudence of the law relating to Human Right Concept/Interpretation of the Constitutional Provisions of those concepts except where it is relevant to the instant appeal.

Shun of embellishments, the imposition of the mandatory death sentence on the Appellant was based on a conviction that was not anchored on a proper evaluation of the evidence before the trial court.

What is the constitutional provision in our laws as regards the death sentence? Of course section 33 (1) and (2) of the Fundamental Rights Provision of the Constitution of the Federal Republic of Nigeria 1999 provides as follows:

“33(1) Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.

(2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonable necessary.

In arguing in his response to this issue, counsel to the respondent says that “Appellants contention under this issue is that the mandatory death penalty imposed by the trial judge upon him is unconstitutional as it amounts to the following.:

1. Arbitrary deprivation of the life in violation of section 33 of the 1999 Constitution of the Federal Republic of Nigeria and Article 4 of the African Charter on Human and Peoples Rights.
2. Inhuman and degrading punishment in breach of section 34(1)(a) of the Constitution and Article 5 of the African Charter on Human and Peoples Rights.
3. Denial of fair hearing in breach of section 36(4) of the 1999 Constitution of Nigeria and Article 7 of the African Charter on Human and Peoples Rights.
4. Usurpation or ouster of the inherent sentencing powers of the court contrary to section 4(6) of the Constitution and thereby violating the constitutional principle of separation of powers and impugning the independence of the Judiciary contrary to Article 26 of the African Charter on Human and Peoples Rights.

The Appellant, in arguing this issue was passionately prolix, as the argument alone spanned pages from 42 to 82 of his Brief of Argument.

The Respondent in its submission argues that the issue of the constitutionality or otherwise of death penalty in Nigerian Criminal Status has been raised and laid to rest in decided cases by the Supreme Court and that it is trite as regards offences like murder or armed robbery where the mandatory punishment is death upon conviction as stipulated in the Criminal Statutes creating the offences, the trial judge has no option or discretion than to impose the penalty prescribed by law upon a finding of guilt against the accused and his conviction. He referred the court to the following: NNAMAH VS. THE STATE (2005) 9 NWLR (PT. 929) 147 AT 165.

Like Gboyega Oyewole Esq said in the Respondent’s brief, the Appellant, in his presentation of this issue 3 which is on all fours with this amplified issue 7 which reads thus:

“Whether the imposition of the mandatory death sentence on the Appellant by the lower court under section 1(2) (a) of the Robbery and Fire Arms (Special Provision) Act Cap 398 Laws of the Federation of Nigeria 1990 was unconstitutional. In other words, whether section 1(2) (a) of the Robbery and Fire Arms (Special Provision) Act Cap 398 Laws of the Federation of Nigeria 1990 to the extend that it prescribes mandatory sentence of death on anyone convicted of armed robbery, is contrary to the provisions of the Constitution of the Federal Republic of Nigeria 1999, and the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act Cap 10 Laws of the Federation of Nigeria 1990, and international treaties that Nigeria has ratified?”

Indeed the Appellant in its submissions was verbose and on this Issue 3 alone referred the court to a treaty and plethora of cases that span over 300 pages which was attached to the Appellant’s brief of eighty-five pages. I will therefore lift up only the crux of his arguments and proceed to resolve the issue as it would not be necessary to indulge in the ramifications of the submissions except where necessary.

The Appellant respectfully submits that the application of mandatory death penalty to him by trial court was unconstitutional because section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990 under which he was sentenced is contrary to the 1999 Constitution and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act 1999 (referred to hereunder as “The African Charter on Human and Peoples’ Rights). I shall proceed to quote in verbatim, the Appellant’s contention for alternative grounds in support of the above arguments namely:

1. The mandatory death penalty constitutes inhuman and degrading punishment in breach of section 34(1)(a) of the Constitution and Article 5 of the African Charter on Human and People’s Rights.
2. It amounts to arbitrary deprivation of life in breach of section 33 of the Constitution and Article 4 of the African Charter on Human and People’s Rights;
3. Its application gives rise to a denial of fair hearing in breach of Section 36(4) of the Constitution and Article 7 of the African Charter on Human and People’s Rights;
4. It amounts to usurpation or ouster of the inherent sentencing powers of the court contrary to section 4(6) of the Constitution, and thereby deprives the judiciary of an essential inherent judicial function in violation of the constitutional principle of the separation of powers. It also impugns on the independence of the judiciary in violation of the Constitution and Article 26 of the African Charter on Human and Peoples’ Rights.

On whether the mandatory death sentence is Inhuman and Degrading Treatment; he submits in the affirmative and referred the court to section 34(1)(a) of 1999 Constitution and Article 5 of the African Charter on Human and Peoples’ Rights. He submits further that it is well established that mandatory death sentences are cruel, inhuman and degrading and that nearly every court or Tribunal around the world called upon to decide the matter has come to the same conclusion, in so far as there is no clause in the relevant constitution saving such mandatory death sentence provision, There is no such saving clause in the 1999 Constitution of Nigeria. He now refers the court to the experiences in the Commonwealth, America, and even African countries like Zambia, Malawi, Uganda, Ghana e.t.c and then to State of Guyana, Bermuda, Bahamas Granada, the Philippines and indeed Trinidad and Tobago Great Britain, Fance, Italy, Australia, New Zealand, Spain and Portugal would never apply the death penalty in their criminal judicial systems.

I share his view because the world has now turned into a Global Village and the sentiments expressed by counsel for the Appellant is indeed operative in all civilized democracies, although recently the Peoples Republic of China passed a lot of death sentences.

His paper on this issue should be presented to the National Assembly as food for thought so that the law on death penalty could be thoroughly legislated upon and perhaps reviewed so that capital punishment could become abolished in our statutes. In most civilized judicial system, the death or capital punishment is no longer part of their law.

Therefore no amount of statutory interpretation, construction or reappraisal of our constitution would import into the constitution what was not originally embedded therein. We have been called upon by the Appellant in their brief to consider that the mandatory death sentence is unconstitutional because it causes the arbitrary deprivation of the right to life as enshrined in section 33 of the Constitution and Article 4 of the African Charter on Human and People’s Rights.

Section 33(1) of the Constitution provides that “Every person has a right to life. And no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria. “Whilst Article 4 of the African Charter on Human and Peoples Right provides that: “Human beings are inviolable. Every human being is entitled to respect for his life and integrity of his person. No one may be arbitrarily deprived of this right.”

It is to the joint effect of these provisions that the Appellant said that the right cannot be taken away arbitrarily. “Intentionally” in the constitution has the same effect as arbitrariness. In the instant appeal, it cannot be said that what the lower court did amount to applying the law as it deems fit in accordance with the provisions of the robbery and firearms (Special Provision Act 1990) although on a misguided and on an improper evaluation of the evidence which led to a wrong conclusion that the Appellant is guilty, whereas there is no conclusive proof of the guilty of the Appellant except that based on a bogus and retracted confessional statements Exhibits C and D which I found not sufficiently adequate and lacking in corroboration.

On the contrary, arbitrary deprivation of life could be found from the evidence before the lower court in the attitude of the police in the extra judicial murder of Lucky and Friday.

After a thorough submission by the Appellant that though the constitution provides that the execution of a death sentence in accordance with a law that provides the penalty the court of death for a criminal offence constitutes an exception to the right to life, not every law providing the penalty of death would be in accordance with the wider requirement of the rule of law that involves non-arbitrariness, and prohibition of Inhuman and Degrading treatment). As regards the arbitrariness of section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 that prescribes mandatory death penalty the court had this to say –

“the Constitutional permission of the death penalty as an exception to the right to life, does not, in itself, authorize the application of any law that violates other provisions of the Constitution or that is contrary to the requirement of the rule of law, such as prohibition of discrimination, equal protection of the law, inhuman and degrading treatment, denial of fair hearing, arbitrariness, e.t.c. In other words, even though the constitution permits the death penalty, any law that prescribes for the death sentence (or any sentence whatsoever) must comply with all requirements of constitutionality and the rule of law. This rule of constitutional conformity applies in all area of legislation and law making. An example may be found in the constitutional rule on non-discrimination. Death sentence legislation cannot be permitted if it allows discriminatory application of its provision, because discrimination is prohibited in the Constitution. Again, recently, the Supreme Court held that a town planning legislation that did not pass the test of Constitutional norm of vertical is invalid to the extend of the constitutional provision. See ATTORNEY-GENERAL OF EKITI STATE VS. ATTORNEY-GENERAL OF THE FEDERATION (2004) 18 NWLR (PT. 904) 1 S.C. Appellant further submits that similarly, section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 is not valid in so far as its provisions constitute an arbitrary deprivation of life, in addition to other constitutional grounds argued in this brief (inhuman and degrading treatment, denial of fair hearing and breach of the principles of separation of powers).

The end effect of this submission is the liberal interpretation to be given to the constitutional provision as reflected in section 33(1) of the Constitution to the effect of declaring as arbitrary the provisions of section (1) of the Robbery and firearms unconstitutional for prescribing a death penalty for anyone convicted for the offence of armed robbery. ”

The constitution is a very sacred document that cannot easily be changed at the whims and caprices of anyone, judges inclusive, nor be toyed and applied any how without due consideration. Furthermore, if the constitution is to be subject of interpretation, then it could only be done in a proper manner by a full court constituted for that purpose. The principle guiding the interpretation of the constitution discountenance frivolity and requires the court, in construing the constitution to do so with all seriousness of purpose and construct it in a manner that one section would not defeat the intents and purposes of the other. See RABIU VS. THE STATE (1981) 2 NCLR 293.

Both parties are Ad-Idem that there have been no specific pronouncement by our superior court in respect of the death sentence being abolished as it is in order jurisdictions. The position in Nigeria is that the death sentence is a reality. Even though I share the sentiments of the Appellant in respect of their submission pertaining to the scrapping of the death sentence as arbitrary, inhuman and degrading and that no man except GOD in my view has a right to take life; the Nigerian Law is so clear on the issue and needed to be properly orchestrated in the right form like the National Assembly, Judges Conference, International Federation of Women Judges Conference e.t.c.

In construction of the constitution the caution advocated by JUSTICE UMARU ABDULLAHI PCA in the case of ABUBAKAR VS. ATTORNEY GENERAL OF THE FEDERATION (2008) ALL FWLR (PART 441) PAGE 870 AT PAGE 900.

“I am about to embark on the interpretation of the provisions of the Constitution in an area which I respectfully hold to be novel in the sense that, never in the anal of this country had a court been invited to examine and determine that the second highest office in the realm is vacant. It behoves me to take the assignment with the highest sense of responsibility and caution in the interest of the country and posterity. I will therefore, be guided by the principles of interpretation of the Constitution enunciation in the case NAFIU RABIU VS. STATE (1981) 2 NCLR 293. It seems to me to be the locus classicus on construction of our constitution. It discountenanced frivolity and requires the court, in construing the Constitution to do so with liberalism and should avoid constructing it in a manner that one section would defeat the intents or purposes of another. At page 326 thereof, his Lordship, Sir Udo Udoma JSC (of blessed memory) said:

“It is the duty of this court to bear constantly in mind the fact that the present Constitution has been proclaimed the Supreme Law of the land, that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn; that it was made, enacted and given to themselves by the people of the Federal Republic of Nigeria … that the function of the Constitution is to establish a, framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities involve, ours being plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution; And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, ,lean to the broader interpretation, unless there is something in the or in the rest of the Constitution to indicate that the narrow interpretation will best carry out the objects and purposes of the Constitution.”

In view of the foregoing, unless there is constituted a full court of this court to delve into the issue of the interpretation of the offending provision of the law that is the Supreme Law and also the Statutory Law as contained in the Robbery and Firearms Act (Special Provisions) 1990 Act, I will hesitate so to do, and agree with the Respondent.

However for now, this Court appreciates the mature approach by IGUH, JSC, when confronted with similar argument on the issue of capital punishment in the case of ONUOHA KALU VS. THE STATE (1998) 13 NWLR PT. 583 AT PAGE 597 relied on by the Respondent to this effect:

“Although the arguments against capital punishment may be proper basis for legislative abolition of the death penalty, the authority for any action abolishing the death penal is clearly not a matter for the law courts. Nor have I found myself able to hold that this court is entitled to repeal or revoke laws ostensibly based upon notions of public policy or sanction simply because such laws, for one reason or the other, are said to be unacceptable to a group of persons or a section of the society. Such repeal or revocation is within the exclusive jurisdiction of the legislature except, of course, such laws are attacked by due process or law on grounds such as unconstitutionality, illegality or the like. ”

I am obliged to resolved Issue 3 in favour of the Appellant and I so do only to the extent that if there was a conviction and subsequent sentence it would not have been unconstitutional, but in this appeal, I hold that the conviction by the lower court of the Appellant is null and void, and therefore the death penalty has no effect and significance on the Appellant.

I accordingly set aside the conviction of the Appellant by the lower court and further set aside the sentence of death passed on the Appellant.

I share also the sentiments expressed by the lower court as regards the menace of armed robbers in our society and social hazards and miseries caused by these hoodlums who have recently been on the increase despite the death sentence imposed on them, that seemingly has not curbed this incessant attacks by men of the underworld. Death sentence would not and is not a proper panacea for , this menace, instead they become more hardened otherwise since the inception of the Robbery and Firearms (Special Provisions) Act 1990, the hoodlums should have abated in their nefarious activities.

We should therefore look forward to a new dimension as a panacea in resolving the incessant issue of armed robbery and effectively realizing that we are a part of the global village and seek to conform with the rest of the civilized world.

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Other Citations: (2009)LCN/3091(CA)