Jamiu Dairo V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This appeal is against the judgment of the Court of Appeal Ibadan Division delivered on 21st May 2015 affirming the conviction and sentence of death imposed on the appellant for conspiracy and armed robbery by the High Court of Ogun State holden at Ijebu-Ode per S.A. Olugbemi J. in the judgment delivered on 27th July 2012.

The appellant was charged before the trial Court on two counts of conspiracy and armed robbery as follows:

“Count I:

Statement of Offence: Conspiracy to commit armed robbery contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap.R.11), Laws of the Federation of Nigeria 2004.

Particulars of Offence: Jamiu Dairo (M) and others now at large on or about the 24th September, 2006 at Igbeba, Ijebu-Ode in the Ijebu-Ode Judicial Division conspired to commit a felony to wit: Armed Robbery.

Count II:

Statement of Offence; Armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap. R. II), Laws of the Federation of

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Nigeria, 2004.

Particulars of Offence; Jamiu Dairo (M) and others now at large on or about the 24th September, 2006 at Igbeba, Ijebu-Ode in the Ijebu-Ode, Judicial Division while armed with Firearm (gun) robbed Abimbola Bolanle of her Mazda 626 Car with registration No. LH 631 KJA and recharge card worth seven thousand naira.”

There was a third count to the charge for the offence of abetting the commission of armed robbery, but this involved only the 2nd accused. Each accused pleaded not guilty to the charges against him.

The facts of the case as presented by the prosecution are that around 6am on 26th September, 2006 after completing her morning prayers at the mosque, PW1 Mrs, Bolanle Latifat Abimbola, entered her car, a red Mazda 626 with Registration No. LH 631 KJA, to go home. As she turned into her street, she was stopped by three men who ordered her at gun point to get out of the car. While trying to loosen her seat belt to comply, one of the three men proceeded to slap her. One of the Alfas (Islamic cleric) at the mosque she had just left noticed what was happening and tried to come to her rescue. He was shot by one of the robbers.

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Eventually she came down from the car and the robbers drove it away. She made a report of the incident at Igbeba Police Station. The following day she received a call from the police that her car had been found at Owode Yewa. She travelled to Owode the same day. At the police station she was able to identify her car although the number plate had been removed. The car was released to her on bond. She was emphatic during her testimony and under cross-examination that it was the appellant who opened her car door on the day of the incident and slapped her and also collected her car keys from her.

PW2 was the Alfa who tried to assist PW1 and was shot in the process. He was able to identify the 1st accused (i.e., the appellant herein) as being the bald headed robber who wore ankara on the day. He testified that nine bullets were removed from his hand and three from his back at the General Hospital Ijebu-Ode where he was rushed to after the incident.

PW3 was the investigating police officer in the case. The case file from Owode Yewa Police station was handed over to him along with the appellant, his co-accused and some exhibits at his duty post at the Anti

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Robbery Department, State C.I.D. Eleweran Abeokuta.

He obtained a statement from the appellant, which was confessional. It was admitted in evidence and marked Exhibit A. He testified that from his investigation the appellant drove the car to Ajilete Area of Yewa South to the home of the 2nd accused and that it was while the vehicle was being washed that the police received information that the vehicle was suspected to have been stolen. The appellant and his co-accused were arrested while washing the car.

PW4 was the police officer who actually received the information about the suspected stolen vehicle and who effected the arrest of the appellant and his co-accused. He also obtained statements from them. The appellant’s statement was admitted in evidence as Exhibit G. He stated that on inspection of the vehicle, copies of the vehicle’s particulars were found. PW1 was able to produce the originals to satisfy him of her ownership of the vehicle.

The appellant testified in his own defence. He denied participating in the crime.

At the conclusion of the trial and after careful consideration of the written addresses of counsel, the trial Court

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found the appellant guilty of the two counts against him. He was accordingly convicted and sentenced to death by hanging. The 2nd accused was found not guilty of abetting the commission of armed robbery and was accordingly discharged and acquitted.

Not being satisfied with his conviction and sentence, the appellant appealed to the Court below, which on 21/5/2015 dismissed his appeal. He still feels aggrieved and has further appealed to this Court.

At the hearing of the appeal on 21/9/2017, E.U. Chinedum Esq. leading Pereboh Sanami Esq. adopted and relied on the Appellant’s Brief which was deemed filed on 3/5/2017 in urging the Court to allow the appeal. W.O. Onate Esq. adopted and relied on the Respondent’s Brief filed on 20/6/2017 in urging the Court to dismiss the appeal and affirm the concurrent findings of the two lower Courts.

The appellant formulated 3 issues for determination at paragraph 3.1 of his brief of argument. They are:

“a) Whether the learned Justices of the Court of Appeal were right in holding that the need for identification parade did not arise. (Grounds 3 and 4).

b) Whether the learned Justices of the Court of

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Appeal were right in attaching weight to or refusing to expunge Exhibits ‘A’ and ‘G’ from the record and whether this does not occasion a miscarriage of justice.

c) Whether the contradictions in the evidence of the prosecution witnesses were not substantial.”

The respondent also formulated 3 issues as follows:

“1. Whether the Court of Appeal was right in affirming the decision of the trial Court having regards to the totality of evidence adduced before the trial Court.

2. Whether the Court of Appeal was wrong in its decision affirming the admissibility of Exhibit A and Exhibit G (the confessional statements of the Appellant and the 2nd Accused person did not occasion a miscarriage of justice).
3. Whether the Court of Appeal was right in affirming the decision of the trial Court that the prosecution had proved its case beyond reasonable doubt.”

The appellants issues (a) and (c) and the respondents issues 1 and 3 are similar. The issues may be combined into one issue: whether the prosecution proved its case beyond reasonable doubt.

The appellant’s issue (b) and the respondent’s issue 2 are virtually the same. The

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appeal shall be determined on the issues formulated by the appellant but condensed into two issues as follows:

1. Whether the learned Justices of the Court of Appeal were right in attaching weight to or refusing to expunge Exhibits A and G from the record and whether this occasioned a miscarriage of justice
2. Whether the prosecution established the guilt of the appellant beyond reasonable doubt

Issue 1

Whether the learned Justices of the Court of Appeal were right in attaching weight to or refusing to expunge Exhibits A and G from the record and whether this occasioned a miscarriage of justice

I note that in arguing this issue at pages 16-20 of his brief, learned counsel formulated a different issue from issue (b) in paragraph 3.1 at page 4 of his brief where he set out the three issues for determination. He re-stated the issue as follows:

“Whether a calm and objective review of the testimonies of all the prosecution witnesses proved beyond reasonable doubt that the appellant was the actual person that committed the alleged offences.”

This is clearly not issue (b) as stated in paragraph 3.1. However, the submissions

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thereunder are in respect of the admissibility of Exhibits A and G, the extra judicial statements of the appellant. In the circumstances, I shall overlook the obvious error in stating the issue. Learned counsel must however take extra care in the preparation of briefs of argument, particularly in criminal matters. In the event that the submissions did not tally with the issues formulated, they would go to no issue thereby placing the appellant at a disadvantage in the fair resolution of his appeal through no fault of his. Enough said.

It is contended on behalf of the appellant that at the stage of tendering Exhibits A and G before the trial Court, objection was taken to their admissibility on the ground that the appellant made statements to the police in Yoruba Language while the statements sought to be tendered were made in English Language. Learned counsel submitted that the statements were nevertheless admitted in evidence on the ground that the objection only related to the weight to be attached to them. He noted that in its judgment the trial Court found that the statements were made in English Language and this finding was affirmed by the Court

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below. He argued that the lower Court used the contents of Exhibit A to resolve doubts arising from Exhibit G. He argued that Exhibit G was ambiguous and created doubt which ought to have been resolved in favour of the appellant. He argued further that the lower Court speculated that the appellant could not be a stark illiterate having regard to the fact that in his statement he stated that he attended school up to JSS3 before he dropped out and the fact that being from the South West he ought to be able to speak English Language. He submitted that speculation is not permissible in law. He referred to: Agip (Nig) Ltd Vs. Agip Petroli Int’l (2010) 5 NWLR (Pt. 1187) 348 @ 413 B-C.

He submitted that the endorsement on Exhibit G to the effect that the statement was taken in English Language and read over and translated to the accused in Yoruba supports the contention that the appellant made his statement to the police in Yoruba Language. Relying on authority of F.R.N Vs. Usman (2012) 8 NWLR (pt. 1301) 141 @ 159-160 E-A, he submitted that failure to invite interpreters of Exhibits A and G to testify renders the statements documentary hearsay, which ought to

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have been expunged from the record by the lower Court. He submitted further that failure to do so has occasioned a miscarriage of justice.

In response, learned counsel for the respondent argued that the learned trial Judge evaluated the entire evidence before him before reaching the conclusion that the prosecution had proved its case. He submitted that there was other evidence outside Exhibits A and G that proved that the appellant committed the offence. He submitted that the trial Court properly considered and resolved the issues raised regarding the admissibility of Exhibits A and G and that the lower Court was right in affirming its findings. He submitted that where there are concurrent findings of fact by two lower Courts, the apex Court would rarely disturb such findings unless they are found to be perverse or cannot be supported by the evidence before the Court or where there was a miscarriage of justice or a violation of some principle of law or procedure. He relied on: Ugwanyi vs. F.R.N. (2013) ALL FWLR (Pt. 662 1667. He urged this Court not to tamper with those findings.

The law is quite settled that a confessional statement is relevant and

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admissible in evidence once it satisfies the conditions laid down in Sections 28 and 29 of the Evidence Act, 2011. The sections provide as follows:

“28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.

29. (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.

(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained-

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding

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that it may be true) was not obtained in a manner contrary to the provisions of this section).

(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Subsection (2)(a) or (b) of this section).

(4) Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or-conduct.

(5) In this section “oppression” includes torture, inhuman or degrading treatment, and the use of threat of violence whether or not amounting to torture.”

See: Rasheed Lasisi vs. The State (2013) LPELR – 20183 (SC); Shurumo vs. The State (2010) 19 NWLR (pt. 1226) 73; Idowu vs. The State (2000) 12 NWLR (Pt. 680) 48.

A conviction can be based upon a confessional

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statement alone where it is found to be voluntarily made, direct and positive and relates to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the offence charged. See: Akpan vs. The State (1992) 6 NWLR (pt. 248) 439 @ 467 E-F. It is however the practice of the Courts, in order to safeguard the accused person’s right to fair hearing, to consider evidence outside the statement, no matter how slight, which makes the confession probable. See: Adeyemi vs. The State (2014) 13 NWLR (pt. 1423) 133; Okashetu vs. The State (2016) LPELR- 40611 (SC).

Objection to the admissibility of a confessional statement must be raised at the point of tendering it in evidence by the prosecution. Where the accused states that he did not make the statement voluntarily, a trial within trial would be conducted to determine its admissibility. See: Oseni vs. The State (2012) 5 NWLR (pt. 1293) 351; Babarinde & Ors Vs. The State (2014) 3 NWLR (pt. 1395) 568; Gbadamosi & Anor vs. The State (1992) 9 NWLR (pt. 266) 465. Where the accused person contends that he did not make the statement at all, it would be admitted in evidence and

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considered alongside other evidence tendered by the prosecution to determine the weight to be attached to it. See: Owie vs. The State (1985) NWLR (pt. 3) 470; Isong vs. The State (2016) 14 NWLR (pt. 1531) 96.

In the instant case the appellants contention was not that Exhibits A and G were not voluntary but that the statements he made to the police were made in Yoruba Language and translated into English and that the prosecution failed to tender the Yoruba version. This means, in effect, that the trial Court was right to have admitted the statements in evidence and to consider the weight to be attached to them after considering the entire case put forward by the prosecution.

In Exhibit A, which is the statement recorded at the State C.I.D Abeokuta on 27/9/2006, there is an endorsement to the following effect:

“I, Jamiu Dairo ‘m’ cannot write but I can speak English Language and I instruct the writer to write for me.”

In the said Exhibit A he also stated that he attended Muslim Primary School, Ososa and Christ Church Secondary School, Molode, Ijebu Ode but dropped out in JSS3.

In Exhibit G made on 25/9/2006 at Owode Egbado Police Station, the

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words of caution are recorded as follows:

“I of above named address having been duly cautioned in English Language that I am not obliged to say anything unless I wish to do so…”

Thereunder he made his right hand thumb impression. At the foot of the statement it is stated that the statement was taken in English Language and read over and translated to the appellant in Yoruba Language. It appears that it is this latter endorsement on Exhibit G that the appellant has seized upon to claim that he volunteered his statements in Yoruba Language. In my view, the two lower Courts were right in holding that there is nothing in Exhibits A or G to suggest that the appellant volunteered his statements in Yoruba or that he did not understand English Language. In both Exhibit A and G he was cautioned in English Language. He imposed his thumb impression on both documents immediately below the cautionary words stated to have been administered to him in English Language. In Exhibit A he states that he can speak English Language and that he had instructed the writer to record his statement.

I do not agree with the contention of learned counsel for the

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appellant that the view expressed by the lower Court to the effect that a person who had been educated up to JSS 3 level in Nigeria must be able to speak at least modest English, is speculative. As observed by the Court, the lingua franca in Nigeria is English Language. I agree with their Lordships that a person who has attended school from the primary level up to the third year of secondary school must be able to understand the English Language to a certain degree even though he may not be proficient in speaking or writing the language.

It is also pertinent to note, as observed by the Court below that the endorsement at the bottom of Exhibit A is to the effect that the statement was taken and read over to the appellant in English Language.

I am of the view that the lower Court was right when it held that there was nothing before the Court to suggest that there was a Yoruba version of either Exhibit A or G. Since there was no contention that the statements were obtained under duress, the trial Court was right to have admitted them in evidence and the Court below was right to refuse to expunge them.

This issue is accordingly resolved against the

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appellant.

Issue 2

Whether the prosecution established the guilt of the appellant beyond reasonable doubt

In resolving this issue, I shall consider the arguments under the appellant’s issues (a) and (c) and the respondents issues 1 and 3, which I have compressed.

Learned counsel for the appellant referred to Section 11 of the Robbery and Firearms (Special Provisions) Act Cap. R 11 LFN 2004 for the definition of “armed robbery” and the ingredients of the offence as laid down in Bozin vs. The State (1985) 2 NWLR (pt. 8) 465 @ 469 H, to wit:

(a) That there was a robbery or series of robberies;

(b)That each robbery was an armed robbery; and

(c) That the defendant was the robber or one of those who took part in the robbery.

See also: Bello vs. The State (2007) 10 NWLR (pt. 1043) 564 @ 588-589 H-A; Agboola vs The State (2013) 11 NWLR (Pt.1366) 619 @ 641 F-G.

It is contended by learned counsel that there was no proper identification of the appellant by pw1 and pw2 and that there was no evidence fixing him at the scene of the crime. He submitted that in the circumstances the lower Court was wrong in holding that there was no need for an identification parade. He reviewed the

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evidence of both witnesses and contended that PW1 did not state how she was able to identify the appellant as the person who opened her car door on the fateful day. He argued further that PW1 only identified the appellant after being prompted to do so by the police. He submitted that as neither PW1 and PW2 positively identified the appellant, an identification parade ought to have been conducted by the police. He referred to: State vs. Salawu (2011) 8 NWLR (pt. 1279) 580 @ 620-621 H-D. Where it was held that an identification parade would be necessary where:

a) the victim did not know the accused before and his first acquaintance with him was during the commission of the offence.

b) the victim or witness was confronted by the offender for a very short time; or

c) the victim, due to time and circumstances might not have full opportunity of observing the features of the accused.

He argued that all the above factors were present on the fateful day necessitating the conduct of an identification parade. He submitted that the lower Court was wrong to have held that the evidence of PW1 that it was the appellant who opened her car door was not

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controverted since the appellant had denied knowing PW1 and PW2. He also argued that the onus is on the prosecution to establish its case beyond reasonable doubt even where the accused person remains silent. He submitted further that an identification parade was even more imperative since the appellant and his co-accused were not arrested at the scene. He relied on Adeyemi vs. The State (2011) 5 NWLR (pt. 1239) 1 @ 30 A-B; Ndukwe Vs. The State (2009) 7 NWLR (Pt. 1139) 43 @ 79 D.

On the evidential value of the evidence led by the prosecution, learned counsel for the appellant submitted that there were substantial contradictions in the evidence to warrant the judgment of the lower Court being set aside. He conceded that it is not every contradiction in the prosecution’s case that would result in the conviction being set aside but asserted that where, as in the instant case, the contradictions are material, it would be wrong for a Court to rely on such evidence. He cited the cases of: Ejeka Vs. The State (2003) 7 NWLR (pt. 819) 408 @ 409 C-D; Alo Vs. The State (2015) 9 NWLR (Pt. 1464) 238 @ 272 H.

Learned counsel argued that there were contradictions

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between the evidence of PW1 and PW2 as to where the robbery actually took place – that while PW1 testified that the robbery took place after she left the mosque, PW2 testified that the robbery took place in front of the mosque. He also submitted that there was also contradiction between the two as to the number of robbers – that PW1 testified that there were three robbers while PW2 testified that there were two. He also referred to the evidence of PW4 who testified that when he recovered the vehicle, the owner (PW1) told him it was snatched from her at gun point at Ijebu Ode and argued that the robbery could not have taken place at three different locations.

On the issue of identification, learned counsel for the respondent in his Reply Brief, submitted that the evidence of PW1 and PW2 as to how PW1 was robbed of her red Mazda car with Reg No. LH 631 KJA at gun point and how PW2 was shot while attempting to rescue her, was substantially in line with the appellant’s confessional statements, Exhibit A and G respectively.

With regard to the first two ingredients of the offence of armed robbery, he submitted that the evidence of PW1 and PW2 had

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established not only that there was a robbery but also that the robbers were armed. He noted that PW2 was both an eyewitness and a victim and that he gave a vivid description of the appellant as being bald and also described the clothes he wore. He noted further that the stolen vehicle was recovered from the appellant and his co-accused who could not give a satisfactory account of their possession and that all these facts were corroborated in Exhibits A and G. He referred to the doctrine of recent possession as provided for in Section 148(a) of the Evidence Act, (now Section 167(a) of the Evidence Act, 2011) and the authorities of Lateef Sadiku vs. The State (2013) 11 NWLR (PT. 1364) 191 @ 214 and Eze vs. The State (1985) NWLR (Pt. 13) 429.

He submitted that the appellant had admitted in Exhibit A that he participated in the robbery. He submitted further that the Court can rely solely on a confessional statement to convict an accused. He relied on: Ofoke Nwambe Vs The State (1995) 3 NWLR (PT. 384) 385. Learned counsel submitted further that the Court considered the totality of the evidence before it and did not rely solely on Exhibits A and G. He

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submitted that the evidence pointed irresistibly to the appellant’s participation in the commission of the offence.

On the alleged contradictions in the evidence of the prosecution, he submitted that PW2’s evidence as to how he was shot when he attempted to rescue PW1 was not contradicted or challenged under cross-examination. He submitted that for contradictions in the evidence of prosecution witnesses to vitiate a conviction the contradiction must be so material as to cast serious doubt on the prosecution’s case. He also contended that testimonies of witnesses can only be said to be contradictory where they give inconsistent accounts of the same event, which is not the case in this appeal. He referred to: Enahoro vs. The Queen (1965) NMLR 265; Emiator vs. The State (1975) 9-11 SC 107; Afolalu vs. The State (2009) 3 NWLR (PT. 1127) 160; Nasiru vs. The State (1999) 2 NWLR (Pt. 589) 87. He argued that the alleged contradictions are not material enough to warrant a reversal of the lower Court’s decision. He submitted that minor variations in the testimonies of the witnesses, imbues such evidence with the imprimatur of truth. See Abogede Vs. The State (1996)

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5 NWLR (Pt. 488) 270.

With regard to proof of the prosecutions case beyond reasonable doubt, he reiterated his earlier submissions to the effect that based on the totality of the evidence, the trial Court was right to have found that the prosecution established the appellant’s guilt beyond reasonable doubt and that the lower Court was right to have affirmed the decision. He urged the Court to resolve the appeal against the appellant and to affirm the judgment of the Court below.

As rightly submitted by both learned counsel, in order to secure a conviction for armed robbery the prosecution must establish the following facts beyond reasonable doubt:

1. that there was a robbery or series of robberies;
2. that each robbery was an armed robbery; and
3. that the appellant was one of those who took part in the robbery.

See: Bozin Vs The State (1985) 2 NWLR (Pt. 8) 465; Suberu Vs. The State (2010) 8 NWLR (Pt. 1197) 586; Ikpo Vs. The State (2016) 2-3 SC (Pt. III) 88.

It is also settled law that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. It was held by this Court in Afolalu Vs. The

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State (2010) 16 NWLR (Pt. 1220) 584 that “proof beyond reasonable doubt” means proof to moral certainty, such proof as satisfies the judgment and conscience of a judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible. See also R. V. Lawrence (1932) 11 NLR 6 @ 7; R. V. Mofor (1944) 10 WACA 251. On proof of the first two ingredients of the offence, the Court below held at page 181 of the record:

“I have no doubt that it was conclusively established before the lower Court that there was a robbery. A Mazda 626 was stolen from the PW1 Mrs. Bolanle Latifat. There can also be no doubt that the robbery was an armed robbery. PW2 Alfa Balogun Owoyemi gave evidence that in the course of the robbery one of the robbers who was armed with a gun shot him as he attempted to come to the aid of PW1. The area of contention is with regard to the third ingredient which in this case is whether the appellant was one of those who took part in the armed robbery.”

It affirmed the findings of the trial Court. The findings are

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based squarely on the uncontradicted testimony of PW1 and PW2. In order to convince this Court to set aside the concurrent findings of fact made by the two lower Courts, the appellant must satisfy the Court that the findings are perverse. He must be able to show that there is no evidence to support such findings or that there was a misapplication of the law to the facts; or that there was a wrong application of some principle of law or procedure to the facts of the case resulting in a miscarriage of justice. See: Uche vs. The State (2015) 11 NWLR (Pt. 1470) 380 @ 397 E-F; Busari Vs. The State (2015) 5 NWLR (Pt. 1452) 343 @ 373 D-E: Shurumo Vs. The State (2010) 12 SC (pt. 1) 73; (2010) 9 NWLR (pt. 1226) 73.

I am satisfied that the finding of the lower Court that there was indeed a robbery and that it was an armed robbery is fully supported by the evidence before the trial Court. As observed by the lower Court, the real issue in contention is whether the appellant was one of the armed robbers. He has not convinced me that there are any facts to warrant interference with the concurrent findings of the two Courts below on proof of the first two

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ingredients.

With regard to the third ingredient, learned counsel for the appellant has argued quite forcefully that the identity of the appellant as one of the robbers was not established by the prosecution, particularly as the police did not conduct an identification parade.

In the case of the State Vs. Salawu (Supra), relied upon by learned counsel for the appellant, the circumstances in which an identification parade ought to be held to determine the identity of the perpetrators of a crime were stated by this Court (reproduced earlier in this judgment). It is worthy of note however that it was held in that case and a plethora of other cases that an identification parade is not the only means by which the identity of the person or persons who committed the crime may be ascertained. See also: Peter Adewunmi Vs. The State (2016) LPELR-40106 (SC); Fatai Vs. The State (2013) LPELR-20182 (SC); Ikemson Vs. The State (1989) 3 NWLR (Pt. 110) 455. For instance, where the appellant was arrested at the scene or is otherwise fixed at the scene, an identification parade would not be necessary.

The question whether a person is properly identified as one of

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those who participated in a crime is a question of fact to be determined by the Court having regard to the evidence adduced in that regard. See: Ukpabi vs. The State (2004) 11 NWLR (PT. 884) 439.

In Exhibit A, the appellant stated inter alia as follows:

“I, Jamiu Dairo of the above address is a native of Sagamu born to the family of Mr. and Mrs. Dairo Tayo. I attended Muslim Primary School, Ososa and proceeded to Christ Church Secondary School, Molode, Ijebu Ode in 1999 but I dropped in JSS3. I learned Motor mechanic, vulganiser and driving and now I am a commercial driver at Ibadan Garage Ijebu Ode I do not have any permanent vehicle. I know one man call Akeem surname unknown but popularly called Baba Lekan at a drinking joint at behind Central Mosgue Oyingbo Ijebu Ode and through Baba Lekan I know one Segun surname unknown at the same place. On the 20/9/2006 at about 5.pm. Baba Lekan called me on phone that I will follow him to a robbery operation, he later came on 23/9/2006 around 5p.m. with Segun and one other whom I do not know his name, we met at Oju-Ofa behind also Central Mosque and we discussed how to go and snatch car so as to enable us also rob a

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man in Idiroko Road, Yewa. We slept at that Oju Ofa a hot drink joint shop owned by one woman called Aunty Tina…The following morning 24/9/2006 at about 5.30a.m, the four of us namely myself, Segun, Baba Lekan and one other walked from the place we slept boarded Okada towards Igbeba, as we got to Igbeba Mosque area we stopped and waited to see which car to snatch. It was at that point we saw a red Mazda car around 6a.m driving by one woman as the car was coming from Mosque Segun quickly approached the women to help him to Ijebu Ode pretending to be going to somewhere, immediately myself and Baba Lekan ordered the woman to come down at the point. One Alfa appeared to rescue the woman but shot the only double barrel short gun to the Alfa and he fell down I do not know whether he die we entered and I drove the vehicle straight to Owode Ajilete Yewa to Olumide Segun’s house who collected the vehicle and asked us to go and pack the Mazda 626 red colour car at one Taye’s house also at that Ajilete……Olumide Segun removed the plate number and used superglue to clean the number written on the car wind screen. We slept on that Sunday evening 24/9/2006 to Monday

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morning 25/9/2006 around 8a.m. Olumide Segun was washing the car when some vigilante men came and stated that they suspected the car and took myself and Olumide Segun to their Office when they asked and we told them that, the red Mazda 626 car belonged to Taye and the vigilante men still insist that if the so called Taye did not come before 11am. They will report us to the Police and later called the Police who arrested us. The other two boys Segun and one other escaped even Taye did not come. I lied to the Police at Owode Egbado because I thought we will be released if we say we did not know anything about the crime.”

(Emphasis mine)

The statement is certainly confessional. It is clear, positive and unequivocal in stating the active role the appellant played in the robbery. Now, as already observed in this judgment, even though an accused person can be convicted on his confessional statement alone, it is customary for the Court to look for some other evidence outside the statement to determine whether it is probable. See: Egboghonome Vs. The State (1993) 7 NWLR (Pt. 306) 383; Ojegele Vs. The State (1988) 1 NWLR (Pt. 71) 414; Akpa Vs. The State

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(2007) 2 NWLR (1019) 500. The factors the Court should consider as laid down in the case of R. V. Sykes (1913) 1 Cr.

App. Report 233 are:

a) is there anything outside the statement to show that 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 the opportunity of committing the offence

e) Is the confession possible

f) Is the confession with other facts which have been ascertained and proved

See also: Queen Vs. Obiasa (1962) 1 ALL NLR 651.

The learned trial Judge, bearing the above requirements in mind, held at pages 72-73 and at page 74 of the record as follows:

“Again, as in the first count, the evidence of the prosecution is unimpeachable in this regard. PW1 gave a vivid account of how she was robbed of her Mazda 626 car Registration No. LH 631 KJA on 24th September 2006. PWJ an eye witness, who tried to rescue PW1, was shot by one of the robbers and nine bullets, were removed from his hand and three from his back at the General Hospital, Ijebu-Ode. Although the 1st Accused person denied the charge in his evidence in Court, I hold that the

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denial is a mere retraction of the confessional statement Exhibit ‘A’. I so believe because there is enough evidence from other witnesses to link him with the offence, I find for example that both PW1 and PW2 sufficiently identified him as one of the armed robbers who snatched PW1’s car at gun-point, shooting PW2 in the process. Also the names of one Baba Lekan which he denied under cross-examination feature prominently in Exhibit ‘K1’, an affidavit he admitted swearing to when he applied for bail in 2008. This shows the 1st Accused person to be an untruthful witness whose evidence should not be believedI am of the opinion that the confessional statement of the 1st Accused person in this case passed the above tests and weight should be attached to it by this Court and I so do. In the circumstances, I find the 1st Accused guilty of Count II as charged.”

After carefully considering the reasoning of the trial Court reproduced above vis a vis the evidence on record, the Court below affirmed the decision. I am satisfied that the lower Court took all relevant factors into consideration before affirming the judgment of the trial Court.

The

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Appellant’s confessional statement, Exhibit A, not only fixed him at the scene of the armed robbery but also gave a vivid account of all that transpired during and after the operation, including his part in it. He admitted robbing a lady of her MAZDA car near a mosque at Igbeba. He admitted ordering her to come out of the car and the fact that the Alfa who came to rescue her was shot. He also stated that he was arrested where the car was being washed. He also stated how his co-accused removed the vehicle’s plate number and erased the registration number on the wind screen. All these facts were corroborated by PW1 and PW2, PW3 and PW4. In other words, there was sufficient evidence outside of Exhibit A that gave credibility to the statement.

The appellant has failed to advance any cogent reason to warrant interference with the concurrent findings of the two lower Courts.

I have considered the alleged contradictions in the evidence of the prosecution witnesses referred to by learned counsel for the appellant. It must be stated that there is a difference between “contradictions” and “inconsistencies.” Where the evidence of one witness is

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diametrically opposed to the evidence of another, such evidence will be contradictory, as the witnesses will not be telling the same story, which would no doubt render their evidence unreliable to prove whatever fact they seek to establish. Inconsistencies on the other hand arise where the witnesses are telling the same story but with some minor variations in the details. The settled principle of law is that inconsistencies or contradictions in evidence will only be substantial enough to vitiate a conviction if the inconsistencies or contradictions are material to an issue of fact or if they are likely to create doubt in the mind of the court. See Salawu vs. The State (2011) 18 NWLR (pt. 1279) 883 @ 918 B-F; Igbi vs. The State (2000) 3 NWLR (pt. 648) 169.

In the instant case the material facts are that on 24th September 2006 there was a robbery which occurred near Igbeba mosque at Ijebu-Ode; that PW1 was robbed of her MAZDA car with Registration No. LH 631 KJA; that it was an armed robbery and PW2 was shot in the process. It was also established through the evidence of the prosecution witnesses, particularly PW1, PW2 and PW4 and Exhibit A, the appellant’s

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confessional statement, that the appellant was one of the robbers. He was arrested in possession of the car soon after it was stolen. Whether there were two or more robbers is immaterial. The fact that PW1’s car was stolen at gun point within the vicinity of the mosque is unchallenged. The fact that PW2 was shot and sustained nine bullet wounds during the robbery was also firmly established. The minor discrepancies in the evidence of the prosecution witnesses in this case were not substantial enough to warrant interference with the decision of the trial Court. The lower Court was therefore right in affirming the decision. This issue is resolved against the appellant.

In conclusion, I find no merit in this appeal. It is accordingly dismissed. The judgment of the Court of Appeal, Ibadan Division delivered on 21st May 2015 affirming the appellant’s conviction and the sentence imposed on him by the High Court of Ogun State for conspiracy and armed robbery on 27th July 2012 is hereby affirmed.

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SC.976/2015