Kolade Olajide Fowosere V. The State (2016)
LawGlobal-Hub Lead Judgment Report
BOLOUKUROMO MOSES UGO, J.C.A.
This appeal is against the judgment of the Ekiti State High Court of 13/03/2014 in Charge No HAD/26C/2012, delivered by O.I.O.Ogunyemi J., convicting and sentencing to death the appellant and his two co-accused persons of two counts of armed robbery, specifically of robbing Mrs Ojesanmi Olusayo (P.W.2) and another of Mr Mathias Ref Kumar (PW6), a third count of conspiracy to murder one Olusegun Olufowobi, and a 4th count of murder of the said Olusegun Olufowobi, a Police Corporal and husband of PW1, Mrs Sherifat Olufowobi. The appellant was the 1st accused person in the Information before the trial High Court, in which he was convicted of all four charges along with his 2nd co-accused person Owhorisi Blessing while the 3rd accused, Ogundare Ojo Peter, was acquitted of counts one and two but convicted of counts three and four.
The record shows that all the crimes – that is, the two robberies and the conspiracy to murder and actual murder – were committed in the month of July 2011 but on different dates and places. Whereas Count One of the Information charged the appellant and his co-accused persons with robbing while armed, Mrs Ojesanmi (a.k.a. Odesanmi) Olusayo, P.W.2, of her N84, 000.00, laptop, computer bag, two wrist watches and three handsets at Omisanjana Quarters in Ado-Ekiti on 4th July 2011, Count Two alleged that they robbed PW6, Mr Mathias Ref Kumar, of the sum of N19, 000.00 and two handsets six days later on 10th July 2011 at Ido-Ekiti, while in Counts Three and Four all three accused persons were charged with conspiracy to murder and actual murder of Olusegun Olufowobi on 20th July 2011 at Moferere Quarters in Ado-Ekiti.
The sequence of the crimes as presented by the prosecution in evidence is that the three accused persons on 4th July 2011, between 10.30 and 11.00 pm, while armed with a gun, robbed PW2 (Mrs Odesanmi Olusayo) a school teacher, at her home in Ekute, Ado-Ekiti and robbed her of the items earlier mentioned which, in the company of her husband, she promptly reported at Ekute police station.
On the 10th of July 2011, the same three-man gang, armed with axe, cutlass and gun and in half mask, again struck at Ido-Ekiti and successfully robbed PW6, Mr Mathias Ref Kumar, a nurse with the Federal Medical Centre (F.M.C.), Ido-Ekiti, of N19, 000.00, handsets, and ATM cards with which they successfully used to later withdraw monies from ATM machines. PW6 in fact testified that while his neighbour went to report the incident to the police, he looked for the robbers throughout the night and, on his way to work at about 5.25 a.m., saw one of the robbers, whom he later identified in evidence as the appellant (1st accused), wave his car down and asked for a lift to Ado but he told him (appellant) he was not going to Ado. That person, appellant, he said, wore the same clothes he was wearing during the robbery and was also holding a bag. He added that the robbers left behind in his house a polythene bag containing a T-Shirt.
Again, the same robbers, according to the prosecution, armed as usual with axe, cutlass and gun and masked, struck again in the night of 20th July 2011 at the home of the PW1 and her now deceased Police Corporal husband, Olusegun Olufowobi and fired gun shots at the deceased from which he later died that same night. Pw1 who was the first person they accosted in the robbery testified that her deceased husband also shot back at one of the robbers – later revealed as the second accused person, Mr Blessing Owhorisi – on his chest with his service rifle. Pw1 also testified that policemen later arrived at the scene and took her husband to the State hospital in Ado-Ekiti but it was on strike and could not even admit let alone treat him. She added that the gateman of the hospital nevertheless revealed to them that some men had earlier brought a man with a gunshot injury on his chest who they claimed was shot by a policeman and he referred them to the Federal Medical Centre, Ido. His description of the men, she claimed, matched the robbers that attacked her house that night and she openly said so. She added that, following the death of her husband later that same night, she made a formal report of the incident at Ologede Police station.
It was also the case of the prosecution that, following a response by the Osun State Police Command to alerts earlier placed by the Ekiti State Command of the Police concerning the killing of the Police Cpl Olufowobi by the three-man armed-robbery gang, with one carrying a gunshot chest wound, police officers at Ekiti State Command in the next morning traced the robbers (the appellant and his co-accused persons) to Obafemi Awolowo University Teaching Hospital, O.A.U.T.H., Ile-Ife, where the wounded robber Blessing Owhorisi was taking treatment for his injuries, and arrested all three of them.
The case was said to be first investigated at Ologede Divisional Police Station in Ekiti State by PW3, Police Corporal John Ebegbuma, before it was transferred to State Criminal Investigation Department (C.I.D.) of the Ekiti State Police command Headquarters, where it was again investigated and statements, including Exhibit E from the appellant, which all turned out to be confessional, were obtained from all three accused persons before they were charged to court. The confessional statement of the appellant, Exhibit E (wrongly described as Exhibit Q in the first line of page 68 of the records even as it is correctly marked as Exhibit E and so referred to in all other parts of the same record), was tendered along with those of his co-accused persons, Exhibits G & I.
In his said confessional statement, Exhibit E, the appellant is recorded to have said thus:
I am a native of Ayetoro Ekiti born to the family of Fowosere. My father Mr. Fowosere Folorunso now late was a (sic) educationist. He was the principal of Ekiti Parapo College Ido Ekiti (sic) after a brief illness. My mother Mrs. Fowosere Florence Oluwaseun is a teacher. She is now at A. U. D. Primary School, Ayetoro Ekiti. I started my primary School at Okeosahintolu Model High School where I spent only 4 years and because of my brilliance I was given opportunity I sat for WASC and NECO in 2002. In 2004 I gained admission into University of Ife or Obafemi Awolowo University to study medicine and Surgery. In 2009, I was in 200L due to strikes and problems in the school and I applied for transcript to MADONNA UNIVERSITY, Okija/Elele in Rivers to study the same course. Presently I am a student of Madonna University. I am studying Clinical Surgery in 2nd semester of 300L. I have left school since last month May 2011. I came home to collect money from my mother and after she has given me, I went to meet a friend Blessing. He is my childhood friend. We both attended the same Secondary school and departed in JSS III. In 2009, I came across Blessing at Osi, when I met Blessings mother and (drove) collected his number and later I called Blessing on his phone to meet me, at Osi. Then I was with a friend one Benson an herberlist (sic). I was with the herbalist for money ritual. The herbalist collected a lot of money about N2000,000 from me. I was taken into the bush for 2 day but money did not come. It was after then that I called Blessing and he came to Osi in the house of the herbalist. I narrated my ordeal to Blessing and he discouraged me about rituals. He then opine that if we get gone (sic), we will get money. I and Blessing decided to get a gun and we went to one of Blessings friend called Akin that he should borrow his gun to go and rob but Akin agreed and release to (sic) gun to Blessing (sic) but the gun was too long and we later returned it to Akin. I and Blessing were with Benson the herbalist in his house for three weeks. It is blessing that has belong to Kenneth group. He goes out in the night and comes back in the early houses about 4 am. He comes home with money and material things such as clippers, handsets and clothes. Blessing use to pack those loots to his girlfriend at Ondo. Even when we gang up and robbed Blessing do steal sets and give to his girlfriend one Falaye Sunkanmi. She is a student of Adeyemi College of Edu. I remember that I and blessing robbed one Deeper life Pastor at Usi, a doctor and a nurse at Ido Ekiti, one woman at Falegan Ekiti and the two of us raped the woman, we also robbed at Iworoko with one Afobaje who conveyed us to the scene of crime. I could also recollect the robbery of Moferere. On the 20th of July 2011 after we have failed our target at Moferere at about 8pm. Here in Ado Ekiti I, Blessing and Afobaje decided to go and strike in another house at Moferere. I was holding an axe, Blessing was carrying the gun and Afobaye was carrying only bag. We were passing by a house and found the kitchen door opened I moved closer and held the woman hostage with my axe. She saw us on time and had alerted the husband who was inside the parlour by shouting Ole! Ole!! Twice. She will know because the three of us were masked. At her side I stopped her and Blessing quickly rushed to the parlour while Afobaje was also with me at the entrance of the kitchen. We were at the kitchen when suddenly we heard a gunshot. I and Afobaje quickly left the woman and rushed out for our lives. We took cover inside the bush thinking that Blessing has been killed. Later we ran out of the bush and later heard Blessings voice shouting in agony for help. I and Afobaje rushed to him and found lying helplessly on the ground. He has bullet wound on the left side of his chest. Afobaje quickly went and called an Okada man who conveyed Blessing and I was holding him to Asumpta hospital who referred us to State Hospital. At State hospital they were on strike and adviced (sic) us to go Federal Medical Centre at Ido Ekiti. We met the police on patrol at Nova junction after the motorcycle has refuse (sic) to convey us to Ido FMC. I deceived the policemen by telling them that armed robbers shot Blessing at Moferere and they helped us in getting a commercial vehicle, whose passangers (sic) were thrown away and was persuaded to convey us to Ido FMC. The vehicle conveyed I, Blessing and Afobaje to FMC Ido that night and we were referred to Ile-Ife UTH. The vehicle agreed to to (sic) convey us and he did. The vehicle collected N8,000. It was blessing that requested that I call his wife i.e. Sunkanmi and I did call her. I told Sunkanmi that Blessing armed robbers shot him on okada (sic) but I told Sunkanmi on phone that Blessing went to rob and was shot. I dont know if Sunkanmi knows Blessing robs (sic) but Blessing hardly spent 3 days at Ado Ekiti. He lives with Sunkanmi at Ondo. (Emphasis mine)
It is noteworthy that even though counsel to the appellant raised objection to the admission of Exhibit E at the time it was tendered, it was not in any way related to the voluntariness of its making neither was it even remotely suggested that appellant made it under duress or some other such influence from the police, so Exhibit E was admitted without a trial within trial.
All three complainants testified for the prosecution in addition to two police officers – Police Corporals John Ebegbuma (P.W.3) of Ologede Police Station and Adetoro Adeniyi (P.W.4) of the State C.I.D. – that investigated the case. Other witnesses for the prosecution were the medical doctor, Dr Oluwafemi Joshua Taiwo (PW5) that conducted the post mortem examination on the corpse of the deceased policeman, and one Chukwudi Eze, alias Chisco, who was also initially arrested but later released. The appellant and his co-accused persons were all represented by counsel who cross-examined the prosecution witnesses.
In their defence, the appellant and his co-accused persons individually denied complicity in any of the crimes attributed to them. The appellant in particular claimed he did not kill the deceased Mr Olufowobi; he said the day Mr Olufowobi was shot he (appellant) was watching television with his sister, whose name he did not disclose. He admitted he was arrested by the police at Obafemi Awolowo University Teaching Hospital, O.A.U.T.H., Ile-Ife along with his co-accused in the course of investigation of these cases but claimed his co-accused were just his church members and he was just preparing to return to his school, Madonna University, when somebody who claimed he saw his number saved as My Doctor in 2nd accuseds (Mr Blessing Owhorisis) handset called him to inform him that Blessing was a victim of gunshot injury, whereupon he immediately rushed to a Mathew Junction, Ado-Ekiti where he met him lying pathetically. With the aid of sympathizers, he further claimed, he rushed Blessing to Ologede Police station where the Divisional Police Officer (D.P.O.) whose name he gave as Idowu Salami immediately mobilized his junior colleague to take him and the stricken Blessing to Federal Medical Centre (F.M.C.), Ido-Ekiti, from where, upon being informed that there was no cardiologist to attend to them, D.P.O. Salami again directed them to proceed to Obafemi Awolowo University Teaching Hospital, O.A.U.T.H., Ile Ife, where Blessing was admitted. It was on the 4th day after Blessings admission at Obafemi Awolowo University Teaching Hospital, O.A.U.T.H., Ile Ife, while he, appellant, was on his way back to school and decided to visit him, he claimed, that he was arrested by the police on the allegation that he was involved in these series of crimes. He claimed to have denied complicity in the offences, adding that he was upon his arrest first taken to Ologede police station where he made a voluntary statement and there was nothing like confessional statement. He stated that if the prosecution had called the Ologede D.P.O., Supol. Idowu Salami, he would have elucidated the case.
As mentioned above, appellants co-accused persons, Blessing Owhorisi and Ogundare Peter Ojo, both of whom had mentioned the appellant as one of their gang that committed all the crimes in issue, also retracted their statements at the trial and, like appellant, claimed complete innocence.
In his judgment, the trial judge, Ogunyemi J., did not believe their claims of innocence; he rather described their evidence as carefully constructed and concocted lies which cannot hold water and held that the prosecution had proved its case against them beyond reasonable doubt, for which he convicted and sentenced each of them to death.
The appellant, being dissatisfied with that judgment and in further claim of his innocence, has lodged the instant appeal. His counsel, Ezekiel Agunbiade and Co., set out the following three issues in his brief of argument originally filed on 20/01/2016 but deemed properly filed on 23/02/2016:
1.Whether the trial court was correct in its finding that the appellant is guilty of conspiracy to murder and murder having regards to the evidence before the court.
2.Whether the trial court was correct in its finding that the appellant is guilty of the offence of armed robbery having regards to the evidence before the court.
3.Whether the judgment of the trial Court is not perverse and occasioned a miscarriage of justice upon the evaluation of the evidence before it.
On its part, the respondent, in a brief of argument jointly prepared by the Attorney-General of Ekiti State, Mr Owoseni Ajayi; Mr Gbemiga Adaramola, Director of Public Prosecutions (D.P.P), Ekiti State, and Mr Ayodeji Jayeoba, Senior Legal Officer, Ekiti State Ministry of Justice, and filed on 09/05/2016 but deemed properly filed on 24/05/2016, formulated two issues for determination as follows:
1.Whether the conviction of the appellant for the offences of conspiracy to murder and murder by the lower court is not securely anchored on unshakeable legal and evidential terra firma.
2.Whether the lower courts conviction of the appellant for the offence of armed robbery is not securely rested on sound and admissible fact.
I have no hesitation in saying that I prefer the appellants formulation of the issues – including the way they commendably argued issues two and three together – to that of the respondent and the bombastic expression its counsel employed in formulating their two issues, I now proceed to consider those issues.
Issue 1:Whether the trial court was correct in its findings that the appellant is guilty of conspiracy to murder and murder having regards to the evidence before the court.
The argument of the appellants counsel here is that neither conspiracy nor murder was proved. After defining conspiracy as consisting in meeting of the minds of the conspirators to carry out an unlawful purpose or lawful purpose in an unlawful way, counsel argued that there was no such meeting of the minds in this case as the appellant, according to them, stated that he was with his girlfriend Olubolade Sade at Crown Biz Hotel on the 20th day of July 2011 when Police Cpl. Olufowobi was shot dead.
In the case of murder, they further argued, it must be proved beyond reasonable doubt that (1) the deceased died, (2) that his death was caused by the accused person, and (3) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was the probable consequence. They conceded that there was no doubt that the deceased (Police Cpl Olufowobi) had died, but argued that the trial court relied on what they described as undated purported confessional statements of the appellant to which objection was taken at the trial before their admission. They complained that the prosecution deliberately kept away from the trial court the voluntary statement the appellant purportedly made at Ologede police station, because it was not helpful to it, and rather tendered Exhibit E which, counsel submitted, was forcefully obtained from appellant under torture, intimidation and threat to his life. They averred that the prosecution cannot pick and choose which statement of the accused to tender as it has a duty to keep all its cards on the table for the trial court to determine the guilt or otherwise of an accused person before it, stressing that the failure to produce the said statement the appellant made at Ologede Police Station meant that it was against it. They invoked the provisions of Section 167(d) of the Evidence Act 2011 as well as the cases of Onwujuba v. Obienu (1991) 4 NWLR (PT 183) 16 and Ogudo v. The State (2011) 18 NWLR (PT 1278) 1 @ p. 31.
It was further argued that, in any event, to qualify for a voluntary statement, particularly where such statement was retracted by the accused at the trial, the court ought to subject it to the Judges Rules tests of whether there was anything outside the confession to show that it was true, whether it was corroborated, whether the facts contained in the statement are true or fair and can be tested, whether the accused had the opportunity of committing the murder, is the confession possible and if it is consistent with facts which have been ascertained and proved. They submitted that there was no evidence corroborating the said confessional statement; that even though the Pw1, wife of the deceased policeman, testified that the robbers that attacked their house and killed her husband wore face masks, and so she could not recognise them, the police failed to conduct an identification parade. In the light of all that, they urged that issue 1 be resolved in appellants favour.
On their issues 2 & 3 which are (2) whether the trial court was correct in its findings that the appellant is guilty of the offence of armed robbery having regards to the evidence before the court and (3) whether the judgment of the trial Court is not perverse and occasioned a miscarriage of justice upon the evaluation of the evidence before it, learned counsel first set out the ingredients of the offence of armed robbery, namely (1) that there was robbery, (2) that the robbery was an armed robbery and (3) that the accused was part of the armed robbers, all of which they submitted must co-exist and be proved beyond reasonable doubt on direct and admissible evidence and not hearsay. It was submitted that that standard was not met in this case as none of the items allegedly robbed was found in the possession of appellant and the victims of the robbery, PW2 and PW6, categorically stated in their evidence that the robbers were masked so they could not recognise them. They repeated their submission on the necessity of identification parade which was not conducted and added that the evidence of PW6 concerning the confession allegedly made by the appellant was also hearsay and so inadmissible in so far as the doctor and PW6s wife before whom the appellant purportedly confessed were not called. They then referred to what they said was an alibi of the appellant that he was with his girlfriend Sade Olubolade at Crown Biz Hotel, which they submitted ought to have been investigated by the police and disproved but was not. They said the trial Judge based his judgment on circumstantial evidence which was not compelling, for which they urged us to set it aside and discharge and acquit the appellant of all the charges against him.
In their response the office of the Attorney-General submitted that the prosecution proved all the offences in the information beyond reasonable doubt against the appellant and so he was properly convicted and sentenced by the lower court. They particularly referred to the confessional statement, Exhibit E, made by the appellant and submitted that it was made voluntarily by him and there was no suggestion by the appellant at the time it was tendered that he did not make it voluntarily; that such a confessional statement, where direct and positive, as they claimed it was in the instant case, was enough to sustain conviction even without any corroboration; that there was in any case corroboration in the evidence of the prosecution witnesses; that the appellant by his confession identified himself as one of those who shot the deceased dead and so there was no need for further identification parade which in any case is not the only means by which a person alleged to have taken part in a crime can be identified; that the appellant has not proved that he made a statement at Ologede Police Station, and there was in fact no such statement in existence; that the burden of proof of his assertion that he made any such statement was on the appellant and he ought to have subpoenaed the police officers at Ologede to whom he purportedly made the said statement, but he failed to that; that alibi was only raised by the appellant in the witness box rather than in his statement to police so there is no way the police could have investigated such belated alibi. They cited relevant authorities and urged us to dismiss the appeal and affirm the judgment of the lower court.
Resolution of Issues
I think the three issues which the appellants collapsed into two for argument can be further conveniently compressed into a single issue of whether on the evidence before it the lower court was correct in its conclusion that the prosecution proved the offences of armed robbery, conspiracy to murder and murder of Police Cpl. Olusegun Olufowobi against the appellant, for which it convicted and sentenced him to death. In other words, did the prosecution prove the said offences against the appellant beyond reasonable doubt as required by law?
Central to this question is Exhibit E – the confessional statement said to have been made by the appellant – and whether it was indeed established that the appellant made a statement at Ologede police station which the prosecution withheld as contended by his counsel. These two questions are of utmost importance because, firstly, it is settled law that an accused person can be convicted solely on the basis of his confessional statement where it is positive, direct and proved to have been made voluntarily (Adeyemi v. The State (1991) 1 NWLR (PT 170) 679; Idowu v. The State (2000) 4 S.C. (PT 11) 50; Nwaeze v. The State (1996) 2 NWLR (PT 421) 1; Solola v. The State (2005) 11 NWLR (PT 937) 460); its retraction in court by an accused person does not affect its admissibility but rather only goes to the weight to be attached to it: Nwagbomu v. The State (1994) 2 NWLR (PT 322) 380; Egbohonome v. The State (1993) 7 NWLR (PT 306) 383; Busari v. The State (2015) ALL FWLR (PT 777) 715 @ 733. Secondly, because it is the duty of the prosecution not to persecute but to only prosecute, it must place before the court not only evidence that is unfavourable to an accused but also those favourable to him that is in its possession: Ogudo v. The State (2011) 18 NWLR (PT 1278) 1 @ p. 31. Where it is proved that any such evidence was withheld by the prosecution, the provisions of Section 167(d) of the Evidence which enjoins the court to presume that the said evidence was withheld because if produced it would have been unfavourable to the prosecution or any person so withholding it will come into play: see Onwujuba v. Obienu (1991) 4 NWLR (PT 183) 16.
I shall now consider these two issues separately.
First, the appellants contention that he actually made a statement at Ologede Police station which the prosecution withheld:
Appellant besought us to hold that he made a statement at Ologede police station denying the crimes alleged against him but the prosecution unfairly withheld it and so we should invoke section 167(d) of the Evidence Act 2011the presumption that it was withheld because it would have been unfavourable to the prosecution if produced against the prosecution and in his favour. His backed-up this contention with the cases of Onwujuba v. Obienu supra and Ogudo v. State supra. The prosecution on the other hand maintains that there was no such statement made by the appellant, and that the burden is on him to prove that he made the said statement at Ologede police station. There is no doubt that the burden of proving that he made such statement is on the appellant. That position is also supported by the same case of Onwujuba v. Obienu (1991) 1 NSCC 492 @ 497 cited by the appellants counsel. There, Kawu J.S.C., of blessed memory, delivering the judgment of the Supreme Court, stated the law thus:
Now section 148 (d) of the Evidence Act Cap. 62 [now 167(d)] reads as follows
As was held by this court in Chief Tawaliu Bello v. N.M. Kassim 1969 NMLR 148 at p. 154, the essence of the section deals with the failure to call evidence and not the failure to call a particular witness. Furthermore, before the presumption under the section can operate not only must it be shown that such evidence existed, it must be established that it was the respondent that withheld it.
So, did the appellant claiming to have made an earlier statement at Ologede Police station and so bore the onus of proving it actually establish that he made the said statement? It does not seem to me that he did. It should be noted, firstly, that the appellant only mentioned this issue of a statement made by him at Ologede in the course of his defence. Incidentally, earlier on, a policeman from Ologede police station in the person of PW3, Police Cpl. John Ebegbuma, who said he investigated the case at the said police station at the preliminary stage, had testified in support of the prosecutions case and tendered some exhibits he claimed to have recovered in the course of the investigation. Under cross-examination, Mr C.O.Omokhafe who represented the appellant and his co-accused persons led P.W.3 to admit (and establish) that the deceased policemans wife, Mrs Sherifat Olufowobi, PW1, actually made statement to the Police at Ologede police station, which statement was then tendered in evidence as Exhibit A at the instance of the appellants counsel. Interestingly, the same counsel was silent on whether the appellant ever made a statement to the said police officer or his colleagues at Ologede. What is more, the appellant even admitted that he had never known PW3, the Ologede police station I.P.O., before his testimony in court, when he (appellant) said under cross-examination in his defence (at p. 91 of the records) that:
The day I knew Officer John [PW3] was when he came to court.
All that is as opposed to the facts in Ogudo v. State relied on by the appellant, where it was established through a police officer from Birnin Gwari Police Station (PW2), that Ogudo actually made a statement to him at Birnin Gwari Police Station which the prosecution withheld. That is shown in the following extract from the judgment of Rhodes-Vivour J.S.C. at p. 27 of Ogudos case:
Relying on section 149(d) of the Evidence Act learned counsel observed that failure of the prosecution to tender the statement of the appellant made at Birnin Gwari police station, amounts to withholding vital pieces of evidence, and that is fatal to the prosecutions case. Reference was made to PW2s testimony under cross-examination where he admitted that the appellant made statement at Birnin Gwari police station which was not tendered by the prosecution.
It was against the background of this admission that His Lordship, Rhodes-Vivour J.S.C., made the pronouncements in p.31 of the judgment now relied on by the appellant, which were as follows:
The appellant made a statement at Birnin Gwari Police Station, Buruku. That was the station to which he was taken after his arrest. That statement was never tendered in court. The prosecution is expected to tender all the statements made by the accused person to the Police whether at the time of his arrest or subsequently. In this case the appellant made statement at Birnin Gwari Police Station the first Police station he was taken to after his arrest. The prosecution did not tender the statement at trial. To deprive the appellant standing trial for an offence which carries the death penalty the use of his statement made to the police to my mind renders the trial unfair.
Having failed to follow the lead in Ogudos case to establish the existence of the statement he claims to have made at Ologede Police Station, I do not see how the appellant can take advantage of the pronouncements of the Supreme Court in that case. In any event, it must be noted that in Ogudo the apex court strongly emphasized the fact that nobody came to say he was one of those robbed and/or that Ogudo was one of the robbers or among those who robbed them, or that he was armed with firearms or other offensive weapons (see p. 32-33 per Rhodes-Vivour J.S.C., and p. 47 per Muntaka-Coomassie J.S.C.), all of which prompted Rhodes-Vivour J.S.C to observe ( at p. 33 para E-F) that there is more to it than meets the eye. Some hidden agenda is at play. That is again quite unlike the instant case where not only did the victims of all three crimes testify, the appellant through his counsel also agreed that there was no doubt that police Cpl. Olusegun Olufowofobi was shot dead by armed robbers. Pronouncements of courts based on a set of facts which are different from those in a subsequent case cannot be authority for the latter, just as the ratio decidendi of a case, according to Oputa J.S.C. (of very blessed memory) in Engineering Enterprises Contractor Co. of Nigeria v. A.G. of Kaduna State (1987) 1 NSCC 601 at p. 629, does not reside in held or other suchformalitiesemployed in law reports but in the justice of the case as gathered from its material facts. The facts and justice of Ogudos case seem to me different from the instant one, I therefore hold that it is not applicable to the appellant he having failed to lay the necessary foundation for its application.
And then the issue of the confessional statement, Exhibit E, of the appellant and its consequences, if any.
Coming to Exhibit E, the confessional statement said to have been made by the appellant, it is settled that it is only where such statement is proved to have been voluntarily made that it will become admissible; see Sections 28 and 29 of the Evidence Act 2011. Of course, it is up to an accused person who contests the voluntariness of a confession credited to him to say so, and the proper time to do that is when it is sought to be tendered by the prosecution so that the court can conduct a voire dire, or trial within trial, to test the voluntariness of its making: see Godwin Ikpasa v. Bendel State (1981) 9 S.C. 5 @ 17 18; Nwagbomu v. The State (1994) 2 NWLR (PT 322) 380. In this case, as it was also earlier pointed out, the appellant raised objection to the admission of Exhibit E at the time the prosecution sought to tender it but his objection was not on the grounds that he did not voluntarily make it, it was rather that there were some discrepancies on the dates in the statement and that the investigating Police Office, Mr. Adeniyi Adetoro (PW4) did not sign it. That is even as Pw4 testified that the appellant, a 3rd-year medical student of Madonna University, Elele, Rivers State, wrote his confessional statement with his own hand. Because the objection did not relate to voluntariness of the making of the confessional statement, trial within trial was unnecessary and Exhibit E was admitted without much ado. It was only during his defence as DW1 that the appellant stated that PW4, the Investigating Police Officer (I.P.O.) threatened him that once a police man was killed somebody must be killed too, leg-chained and tortured him to point of death and even wanted to shoot his leg before the O.C. State Anti-Robbery Squad (SARS) intervened and told him not to shoot him but rather do more investigation. Notably, though, he did not even say categorically that he made Exhibit E as a result of the said intimidation and torture. What is more, even when the PW4 testified that he (appellant) made confessional statement voluntarily and even confirmed it before a superior Police Officer in Exhibit F1, appellant never denied or confronted him with all these allegations. Little wonder then that the trial Judge described the appellants denials in his defence as carefully constructed concocted lies which cannot hold water.I do not see how this court can interfere with that. In Oforlete v. The State (2000) 7 S.C.N.J. 162 @ 184; (2000) LPELR-2270 the apex per Achike J.S.C. emphasized the need for counsel to challenge evidence he does not agree with and the consequence of failure to do so thus (at p. 25 of LPELR-2270):
After all, the noble art of cross-examination constitutes a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his clients case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory if not suicidal bad practice for counsel to neglect to cross-examine a witness after his evidence-in-chief in order to impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading through other witnesses to controvert the unchallenged evidence.
With Ayoola J.S.C. adding his voice at p. 162 @ 184 on the same issue as well as the role of an appellate court in the circumstances thus:
In every case, in my judgment, it is for the trial judge to decide what the effect of failure to cross-examine a witness on a particular matter has on his evidence in regard to such matter having regard to the circumstances of the case. I venture to think that a trial judge will not readily reject the evidence of a witness on a matter in respect of which he has not been cross-examined. If he accepts the evidence on the ground that the witness had not been cross- examined upon it and prefers it to a controverting evidence which he adverted to, an appellate court will not hold that he failed to evaluate the evidence before him. (Emphasis mine)
In the result, I uphold the decision of the trial Judge giving necessary weight to the appellants confessional statement (Exhibit E) which was properly admitted in the first place. And that has far reaching consequences; because, as earlier pointed out, being voluntary, direct and positive evidence coming from the appellant himself confessing to his participation in the offences alleged against him, the court can convict on it. That is even as corroboration is desirable, the appellant having retracted it in court: see Nwagbomu v. The State (1994) 2 NWLR (PT 322) 380; Egbohonome v. The State (1993) 7 NWLR (PT 306) 383; Busari v. The State (2015) ALL FWLR (PT 777) 715 @ 733. Incidentally, such corroborative evidence is aplenty in this case as I shall soon show.
Now, this confession of the appellant also rubbishes all the submissions of the appellants counsel about identification parade. Conduct an identification parade for what, if I may ask, when the accused/appellant has with his own mouth and hand identified himself as one of the criminals? His identity is no longer in issue, and it matters not that he tried to retract his confession after coming face to face with the enormity of the evidence presented by the prosecution and its dire consequences on him. In Ikemson v. State (1989) LPELR- 1473; (1989) 3 NWLR (PT 110) 455, a case of armed-robbery like the instant one where the facts were also quite similar and it was submitted that the prosecution ought to have conducted an identification parade even when some appellants made confessional statements or had sufficient evidence on record identifying and linking them to the crimes, Oputa J.S.C. stated the position of the law on the subject and dismissed the contention thus:
In this case, the P.W.1 had enough time to observe the appellant as fair complexion and wearing a beard. These are signs of recognition and therefore of identification. Also immediately the 1st appellant was brought in, after his arrest, P.W.1 quickly, spontaneously and readily identified him as one of those who robbed him and P.W.2. This spontaneous identification of the 1st appellant will certainly carry more weight than the common place ritual of an identification parade which can be tele-guided.
The 3rd accused the 2nd appellant in this court – needed no further identification. By his confession, he identified himself. The 2nd accused was identified by his brother thief the 3rd accused who gave information leading to his arrest. The 4th accused, the 3rd appellant in this court was seen by the P.W.3 driving the very car stolen in the robbery less than 2 hours after the event. His attempted escape further identified him as one of the robbers.
Circumstantial evidence showing an accused persons involvement in the commission of the offence charged can also be evidence of identification. In a case like the one now on appeal, there is no need for an identification parade. None was in fact held and the prosecution was not the weaker for it.(Emphasis mine)
I now come to the corroborative evidence in the case which I earlier said was aplenty in the records further identifying the appellant as one of the robbers that committed the offences for which he was charged, tried and convicted.
1.Firstly, it was the evidence of the prosecution witnesses, particularly P.W.3 (Cpl John Ebegbuma) that the appellant was, on a tip-off, arrested in the company of the 2nd accused at OAUTH, Ile-Ife where 2nd accused was taking treatment for the gunshot wound inflicted on him by the deceased Police Cpl. Olufowobi in the robbery.
2. P.W.1, Mrs Olufowobi, testified that the accused persons admitted in her presence at the police headquarters that they killed her husband Olusegun, the deceased. She was not challenged on this during cross-examination.
3.PW4, Mr Adetoro Adeniyi, the I.P.O. at State C.I.D., testified that it was two of the accused persons that led the Police to the scenes of crime and those two were the 1st accused (appellant) and 2nd accused.
4.PW6, Mr Mathias Ref Kumar, the victim of the 10th July 2011 robbery, in his evidence positively identified appellant as one of the robbers when he said at p.81 of the records of appeal that:
(a)That 1st accused (appellant) was the same robber who robbed him and hailed his car for a ride in the following morning while he, pw6, was on his way to work, and that he so identified appellant to the police at State Headquarters in appellants presence (He was not challenged on this).
(b)That the appellant who had mentioned one Chisco as a fence (i.e. receiver of stolen goods), when shown PW7, Mr Chukwudi Eze, alias Chisco, by the police at its headquarters, exclaimed in PW6s presence that p.w.7 was not the Chisco he meant. (He was not challenged on this too).
(c )That the robbers forgot in his residence a nylon bag containing a T-Shirt and when he PW6 brought out the T-Shirt from the nylon bag before the police, the appellant (1st accused) identified it as belonging to Blessing, the 2nd accused (Note: he was also not challenged on this).
(d)That the appellant was the one who carried the axe and cutlass and raped a woman in the robbery of 10th July 2011; which again tallies with the account given by the appellant in his confessional statement, Exhibit E.
5.PW7, Mr Chukwudi Eze, alias Chisco, also testified that he was arrested by the police and brought before the appellant and his co-accused persons and when they were asked if he was the Chisco they mentioned, they (appellant included) said he wasnt hence he was released.
6.The appellants co-accused persons who were convicted with him, and have also had their appeals dismissed by us, all mentioned him in their confessional statements as their accomplice in all the three robberies. That is even as I am not unconscious of the fact that the appellants guilt/success of his appeal can only be determined on admissible evidence against him and not on the basis of retracted confessional statements of his co-accused persons implicating him; I am here only concerned with whether there is anything in the case corroborating his confession, which he insists does not exist in the records.
It is therefore not correct to contend, as was done by the appellants counsel, that there was nothing else connecting the appellant with the crimes alleged against him besides his confessional statement (Exhibit E) that he retracted. Everything in the case positively and definitely pointed beyond reasonable doubt to his participation in all the multiple robberies, conspiracy to murder and actually murdering of Cpl Olufowobi, for which he was charged, convicted and sentenced.
As for alibi, appellant did not raise any alibi in his extra-judicial statement but rather confessed to the crimes so the submissions of counsel about his being at a strange place called Crown Biz Hotel with his girlfriend Sade Olubolade – which places and person was never even in evidence in the trial – is of no avail to the appellant. In any case, an alibi raised for the first time in the witness box is never considered a serious defence; it is at best an afterthought and the positive evidence of the prosecution witnesses will outweigh it: Ikemson v. The State (1989) 3 NWLR (PT 110) 455 @ 479 per Oputa J.S.C. See also Sheidu v. The State (2014) ALL FWLR (PT 750) 1381 @ pages 1395 and 1405 where the apex court reconfirmed the need for accused persons to raise their defences in their extra-judicial statements as the prosecution is not expected to speculate on the kind of defence an accused person would raise during the trial.
In the light of all I have said in this judgment, it becomes quite easy for me to hold that the prosecution proved its case against the appellant beyond reasonable doubt and he was correctly convicted and sentenced for all the offences with which he was charged. His appeal therefore lacks merit and is hereby dismissed and his conviction and sentence by the High Court of Ekiti State in its judgment of 13/03/2014 is affirmed.
Other Citations: (2016)LCN/8808(CA)
