Muritala Akibu V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Ibadan Division wherein the conviction and sentence of the Appellant herein by the trial Court was affirmed. The Appellant had been arraigned alongside a co-accused before the Ogun State High Court sitting in Ijebu-Ode, on a three count charge alleging the offence of conspiracy to commit and commission of armed robbery, in Charge No. HCJ/22C/2013.
On the 28th day of March, 2014 the trial Judge, O.A. Onafowokan J. found the Appellant guilty. The Appellant lodged an appeal at the Court of Appeal, Ibadan which also confirmed the decision of the trial Court leading to further appeal to this Court.
SUMMARY OF FACTS:
The Appellant was arraigned at the Ogun State High Court sitting in Ijebu-Ode alongside another co-Accused, Dare Alebiosu for conspiracy to commit and commission of armed robbery contrary to Section 6(b) and 1 (2) (b) of the Robbery and Firearm (Special Provisions) Act, Cap R 11, Laws of the Federation of Nigeria, 2004.
The evidence linking the Appellant to the robbery apart from the fact that
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he was allegedly recognised by PW.1 as leader of the gang that robbed her on that day of the incident, was the Appellant’s confessional statement. In his judgement delivered on 28th March, 2013, the trial Court held that the prosecution was unable to prove the offence of armed robbery charged against the Appellant but however succeeded in proving the offence of robbery against him and consequently convicted and sentenced him. The Appellant appealed to the Court of Appeal in Ibadan. In its judgement, the Court of Appeal dismissed the Appeal and upheld the conviction and sentence of the trial Court. Still being dissatisfied, the Appellant lodged further appeal to this Court vide a Notice of Appeal dated 24th March, 2016.
ISSUES FOR DETERMINATION:
The Appellant formulated two issues for determination in his Brief of Argument dated 11th February 2019, thus:
“1) Whether the Justices of the Court of Appeal were right in law when having held that identification parade was essential to clear any doubt as to the identity of the actual culprit still went ahead to affirm conviction and sentence of the Appellant by the trial Court (Ground one)
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2) Whether the Justices of the Court of Appeal were right in law when in affirming the conviction and sentence of the Appellant by the trial Court in spite of the defects and limitations on the evidence of PW.1 on the identity of the Appellant in relation to the robbery committed in the house, and in particular, the sham and charade identification parade of the Appellant conducted by the police (Ground two).”
On its part, the Respondent formulated one issue for determination, thus:
“1. Whether from the entirety of material and evidence available on the Record, the conviction of the Appellant for the offences of Conspiracy to commit robbery as well as robbery is justified in the circumstances of this case.”
CONSIDERATION AND RESOLUTION OF THE ISSUE:
While arguing his two issues together, the Appellant contended that the Court below was wrong in upholding and confirming the conviction and sentence of the Appellant despite the material defects and limitations on the evidence of PW.1 on the identity of the Appellant. The contention of the Appellant was that (he was that) he was never at the scene of the crime let alone committed the offence
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alleged. Thus, the proper way by which the prosecution can prove the identity of an accused person where it is in issue and thereby proving its case is by identification parade, see BOZIN VS THE STATE (1985) 2 NWLR (Pt.8) 465, SMITH AND EVANS VS R. (1921) 8 CR. APP R. 203, 204; GEORGE HAROLD WILLIAMS VS R. (1921) 8 CR. APP. R. 84, SUNDAY OMEGA VS THE STATE (1965) NMLR 58, WILLIAM GOSS VS R. (1973) CR. APP. R, 196.
The Appellant contended that rather than resolving the doubt in favour of the Appellant by quashing his conviction, the Court below affirmed same by erroneously relying on the pieces of evidence given by the PW.2 and PW.3 relating to the two handsets allegedly found in the possession of the Appellant and his co-accused. The Appellant relied on the case of ATTAH VS THE STATE (2010)10 NWLR (Pt.1201) 190 at 225, per Adekeye JSC, quoting the decision in ARCHIBONG VS THE STATE (2004) 1 NWLR (Pt.885) 488.
The Appellant further argued that there was no cogent explanation by the prosecution as regards the material contradictions between the evidence adduced by the PW.2 and PW.3 as regards the things/items recovered from the Appellant and his
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co-accused, and in the absence of cogent explanation, the contradiction ought to be resolved in favour of the Appellant, see JOSHUA VS THE QUEEN (1964) 1 All NLR 1, BOY MUKA & ORS VS THE STATE (1976) 9-10 SC, 305; AREHIA VS THE STATE (1982) 4 SC 78; ONUBOGU VS THE STATE (Supra).
In applying the above principle to the facts of this case, the Appellant urged this Court to resolve the two issues formulated and argued in favour of the Appellant and allow the appeal.
The Respondent filed a Notice of Preliminary Objection dated 17th May, 2017 contending essentially that the appeal should be struck-out on the ground that the Notice of Appeal of 3rd May, 2016 filed by the Appellant contained grounds of mixed law and fact and are outside the ambit of Section 233(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended).
The Respondent also challenged the appeal on the ground that it is based on concurrent findings and decisions of the trial High Court of Ogun State and Court of Appeal sitting in Ibadan for which prior leave of Court is required. The Appellant also contended that the Notice of Appeal predates the letter of consent
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dated 15th September, 2016. The Respondent referred to Section 233 (2) of the Constitution and the case of IRHABOR & ANOR VS OGAIAMIEN (1999) 8 NWLR (Pt.616) 517, 524, D-E; DAIRO VS UNION BANK OF NIGERIA PLC (2007) 16 NWLR (Pt.1059) 99, 130-131, E-F, Order 2 Rule 32 of the Supreme Court Rules, 1985 (as amended).
In its response to the substantive appeal, the Respondent pointed out that the Appellant had made a confessional statement in Exhibit B which passed all the tests as laid down in the case of ALARAPE & 3 ORS VS THE STATE (2001) 5 NWLR (Pt.705) 79, at 98-99 G-A. The Respondent respectfully submitted that despite Exhibit B alone being sufficient to justify the conviction of the Appellant, there are other pieces of evidence adduced at trial which do not only support Exhibit B but also justified the conviction of the Appellant. The Respondent asserted that the evidence of PW1- Bola Otuyelu was neither challenged nor was she contradicted under cross-examination by the Appellant’s Counsel and the trial Court was bound to accept and act on it, see LEADWAY ASSURANCE COMPANY LIMITED VS ZECO NIGERIA LIMITED (2004) 11 NWLR (Pt.884) 316, 329 A;
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AIGBADION VS THE STATE (2000) 7 NWLR (Pt.666), 686, 702-703, H-A.
The Respondent submitted that the Prosecution proved all the ingredients of the offences for which the Appellant was convicted, and the duty on the prosecution to prove the guilt of an accused person has been discharged in this case, citing the case of AGBI VS OGBEH (2006) 11 NWLR (Pt.990) 65, 123, C-E; AKALEZI VS THE STATE (1993) 2 NWLR (273) 1, 13, C-D; SHEHU VS THE STATE (2010) 8 NWLR (Pt.1195) 112, 144, E, and AFOLALU VS THE STATE (2010) 16 NWLR (Pt.1220) 584.
The Respondent contended further that any irregularity in the procedure for the identification of the Appellant as found in the Court of Appeal was and/is not sufficient to nullify or vitiate the proceedings or to exculpate the Appellant of the offences committed as there is abundant credible and cogent evidence linking the Appellant to the offences for which he was convicted. The Respondent made reference to the provisions of Section 167 (a) of the Evidence Act on presumption of stolen goods. This is because the Appellant could not explain the fact that stolen phones belonging to the PW.1 were found on him.
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The Respondent further submitted that the Appellant has not appealed against the concurrent findings of facts by the two lower Courts and urged this Court not to interfere with them as no miscarriage of justice has been occasioned, citing the case of IBIKUNLE VS THE STATE (2007) 2 NWLR (1019) 546, 567, F-H; SHEHU VS THE STATE (2010) 8 NWLR (Pt.1195) 112, 135, G-H, OKONKWO & 5 ORS VS OKONKWO & 5 ORS (2010) 14 NWLR (1213) 228, 246, E-G.
In its concluding arguments, the Respondent urged this honourable Court not to allow the Appellant rely on mere irregularity or technicality to avoid the conviction and sentence validly imposed on him for the crime he has committed, citing the case of SOLOLA & ANOR. VS THE STATE (2005) All FWLR (Pt.269) 1751. The Respondent then submitted in closing, that from the evidence, both circumstantial and confessional, brought against the accused person by the Respondent as prosecution is not just overwhelming but cogent, complete and unequivocal and thus urged this Court to dismiss the appeal as utterly devoid of merit.
In his Reply Brief incorporating Reply to the Preliminary Objection, the Appellant contended that
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the ground of appeal are of law and not of mixed law and fact as erroneously asserted by the Respondent. The Appellant replied that the letter dated 18th March, 2016 was correctly signed and that it is not a requirement of the law that letter of instruction must predate the Notice of Appeal, as the Appellant can appeal on his own and later brief a lawyer, or change the lawyer that prepared the Notice of Appeal. The Appellant then urged this Court to dismiss the preliminary objection.
I have carefully considered the arguments respectfully made by the parties. But before going into the merit of the appeal, I wish to express an opinion on the preliminary objection. Clearly, this appeal is of law and not fact or of mixed law and fact as asserted by the Respondent. It is also my view that, as rightly argued by the Appellant in his Reply brief, the letter dated 18th March, 2016 was correctly signed since it is not a requirement of the law that the letter of instruction must predate the Notice of Appeal. A party, not counsel, is the owner of the case or appeal, and could hire or fire counsel before, during or after the proceedings and may take steps (in the
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matter) before briefing a lawyer or change the lawyer that prepared the Notice of Appeal, as the case may be.
I hold that the preliminary objection is lacking in merit. It is accordingly dismissed. I hereby proceed to decide the appeal on its merit below.
The duty of the prosecution in any criminal matter is to prove the charges against an accused person beyond reasonable doubt. This is a settled position of the law. The onus of proving the guilt of any person accused of the commission of a crime lies on the prosecution and that the burden never shifts but must be discharged by credible evidence to ensure that all necessary and vital ingredients of the charge or charges are satisfactorily proved. See STATE VS JAMES GWANGWAN (2015) 13 NWLR (Pt.1477) 600, at 621, paras B-E, per Okoro JSC. See also YONGO VS COMMISSIONER OF POLICE (1992) LPELR – 3528 (SC); (1992) SCNJ 113; (1992) 8 NWLR (Pt.257) 36; OGUNDIYAN VS THE STATE (1991) LPELR-2333 (SC); (1991) 3 NWLR (Pt.181) 519, ALONGE VS IGP (1959) 4 FSC 203; IBRAHIM VS THE STATE (2015) 11 NWLR (Pt.1469) 164 at 192, paras A-B.
By virtue of S.135(1) of the Evidence Act 2011, the offence must be
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strictly proved by cogent and convincing evidence that leaves no iota of doubt or scepticism in the minds of the parties and members of the public, and I dare say this Court. The section provides:
“135. Standard of proof where commission of crime is in issue; and burden where guilt of crime etc. asserted.
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
However, the burden of proving the commission of a crime by the prosecution has constitutional limitation. Thus, where the burden shifts or a written law assumes or imposes the duty of proof of a particular fact on the accused person, the burden is not displaced by presumption of innocence. Section 36(5) provides that:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;
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Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
In this case, the Appellant could not explain the fact that stolen phones (Exhibit C) belonging to the PW.1 were found on him. This is one fact that ought to have been proved by the Appellant since the onus has shifted to him. A prudent person would have called evidence to clarify or explain the basis or circumstances under which Exhibit C “miraculously” got to his `unintended’ possession. This was not done. Section 167 (a) of the Evidence is imperative at this stage. The ‘mystery’ of these facts is best dealt with under the provision, which sates thus:
“167. Court may presume existence of certain fact:
The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that –
(a) a man who is in possession of stolen goods soon after the theft is either the
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thief or has received the goods knowing them to be stolen, unless he can account for his possession.”
I pause to assume what manner of evidence was presented by the prosecution before the trial Court and what informed the basis of upholding or affirming same by the Court below This question is not intended to be another issue for determination, but ancillary to the sole issue for determination. The penal provisions of our law gives the prosecution the choice or options for proving its case beyond reasonable doubt. A prosecutor may deploy all three options or a combination of options. The guilty of an accused may be proved by:
“(i) a confessional statement of the accused;
(ii) evidence of an eye witness; or
(iii) circumstantial evidence.”
See IGRI VS THE STATE (2012) 16 NWLR (Pt.1327) 522; OGUNO VS THE STATE (2013) 15 NWLR (Pt.1377) at 1; IBRAHIM VS THE STATE (2014) 3 NWLR (Pt.1394) 305; OGEDENGBE VS THE STATE (2014) 12 NWLR (Pt.1421) 338 and UMAR VS THE STATE (2014) 13 NWLR (Pt.1425) at 497.
In this case, beyond the seemingly overwhelming circumstantial evidence as analysed above, there is also the confessional statement of
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the Appellant as contained in Exhibit B. The law is that, by virtue of the provisions of Sections 28 of the Evidence Act, confessional statement is tenable and admissible. The section describes a confessional statement thus:
“A confession is an admission made at any time by a person, charged with a crime tending to show or suggest the inference that he committed the crime.”
Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary.
The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement does not become inadmissible even if the accused person denied having made it. See for example PARTICK IKEMSON & 2 ORS VS THE STATE (1989) 3 NWLR (Pt.110) 455 at 476 para D; JOSEPH IDOWU VS THE STATE (2000) 7 SC 50 at 62; (2000) 12 NWLR (Pt.680), at 48, NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (Pt.438) 530 at 537 para D-E; SAMUEL THEOPHILOUS VS THE STATE ( 1996) 1 NWLR (PT. 423) page 139 at 155 para A-B; AND AWOPEJU VS THE STATE (2002) 3 MJSC 141 at 151.<br< p=””
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This Court, per the Learned Onnoghen JSC in PETER ILIYA AZABADA VS THE STATE (2014) All FWLR (Pt.751) 1620, para B has made it abundantly clear in the following words:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved.
Confession in criminal procedure is the strongest evidence of guilt on the art of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof. Therefore where an accused person confesses to a crime in the absence of an eye witness to the killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved.”
In the instant case, the Appellant’s attempt at overplaying the issue of identification parade is, in my view, cheap and
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untenable. I’m in agreement with the Respondent that it was an attempt at escaping justice by relying on mere irregularity or technicality to avoid the conviction and sentence validly imposed on him for the crime he has committed. See SOLOLA & ANOR. VS THE STATE (2005) All FWLR (Pt.269) 1751. Courts generally have deliberately shifted away from narrow technical approach to justice to now pursue the course of substantial justice. See MAKERI SMELTING CO. LTD. VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 447 AT 476-477.
“The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits.”
See also AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt.364) 504, ARTRA IND. LTD VS NBCI (1997) 1 NWLR (Pt.483) 574, DAKAT VS. DASHE (1997) 12 NWLR (Pt.531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C 1.<br< p=””
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The Respondent had made a submission on the issue of concurrent findings of the two Courts below, and urged this Court not to interfere. This is not strange to us, as there has always been an answer to it based on settled position of law by the Apex Court. The law is that the Supreme Court will not interfere with concurrent findings of facts made by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of evidence; or as a result of a wrong application of any principle of substantive law or procedure.” See ARABAMBI VS ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt.959) 1 per Onnoghen, JSC (P. 46, C-E). See also OCHIBA VS THE STATE 2011 12 SC (Pt.IV) P.79″ per Rhodes-Vivour, JSC. (PP. 51-52, paras. F-B). See also CAMEROON AIRLINES VS OTUTUIZU 2011 12 SC (Pt.III) P.200; OLOWU VS NIG. NAVY 2011 12 SC (Pt.II) P.1; AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt.II) P.98.
This appeal is not an occasion where this Court would interfere with sound, just and unassailable concurrent decisions of the
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trial Court and the Court of Appeal, for reasons stated above. This is because evidence of the crime committed by the Appellant is overwhelming, both direct, circumstantial and confessional and the two Courts below us have found correctly.
In view of the foregoing and given the circumstances of this appeal, I hold that this appeal lacks merit and is accordingly dismissed. The conviction and sentence of the Appellant by the Court below are hereby reconfirmed.
SC.860/2016
