Olanrewaju Aina V. The People of Lagos State (2016)
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UZO I. NDUKWE-ANYANWU, J.C.A.
This is an appeal against the judgment of the High Court of Lagos State delivered on the 28th day of September, 2012 by Hon. Justice O. A. Williams wherein the Appellant was arraigned, tried, convicted and Sentenced to 21 years imprisonment on a two count charge of Armed Robbery contrary to Section 402(2)(a) of the Criminal Code Law Cap. C17 Vol. 2 Laws of Lagos State, 2003. The charge against the Appellant in the Court below is as follows:
“Count 1:
OLANREWAJU AINA (M)
STATEMENT OF OFFENCE 1ST COUNT, Armed Robbery Contrary to Section 402 (2)(a) of the Criminal Code Law Cap C, 17 Vol. 2 Laws of Lagos State (2001)
PARTICULARS OF OFFENCE
OLANREWAJU AINA (M) with others at large on the 5th day of February 2006 at about 11.00pm No. 37A, Glover Road Ikoyi, Lagos in Lagos Judicial Division robbed Mr. Peter Schubert at gun point of his Jewellery, wrist watch, 2(two) laptops Hp Compact Black Cross Ball Pen, Mobile Phones, Digital Cannon Camera IXUS 75 Megaphone and other personal effects all valued at One Million Naira (N1M) only.
STATEMENT OF
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OFFENCE 2ND COUNT
Armed Robbery Contrary to Section 402 (1)(a) of the Criminal Code Law Cap 17 Vol. 2 Laws of Lagos State 2004.
PARTICULARS OF OFFENCE
OLANREWAJU AINA (M) with others at large on the 5th day of February 2006 at about 11.00pm No, 37A, Glover Road Ikoyi, Lagos, in the Lagos Judicial Division did rob Mr. Shok Isani and Mariam Bla of their jewellery (bracelet, earrings, a bangle), cash of 859 US Dollars, one Laptop, 3 pieces of Mobile Phone, N400,000.00 (Four Hundred Thousand Naira) cash and other personal effects all valued about One Million Naira (N1M) only.”
The Appellant pleaded not guilty to the two count charge and the case went on for trial. To prove its case, the Prosecution called three witnesses and tendered one exhibit. The Appellant thereafter testified in his defence in a bid to extricate himself. At the end of addresses for the prosecution and the defence, the learned trial judge in its judgment found the Appellant guilty of the two counts of armed robbery and sentenced him to 21 years imprisonment on each count, to run concurrently.
It is the case of the prosecution that on the 5th day of February, 2006
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at about 11 pm, one Mr. Peter Schubert, Mr. Shok Isani and Mariam Bla were robbed at gun point and the following items were stolen from them; jewelries, wrist watch, 3 Hp compact laptops, black cross ball pen, 7 mobile phones, digital cannon camera IXUS 75 megaphone, cash of 859 US Dollars, N400,000.00 cash and personal effects valued at Two Million Naira only. The following day the Appellant was arrested when one of the stolen items (Phone) was traced to him and upon arrest was found in his possession. Confessional statement made by him was admitted without objection at the trial. However, the Appellant in his defence at the trial denied the voluntariness of the Confessional Statement. At the conclusion of the trial he was convicted and sentence to 21 years imprisonment.
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The Appellant being dissatisfied with the judgment filed a Notice of Appeal on the 28th December, 2010. In accordance with the Rules of the Court, the parties have filed their respective briefs. The Appellant’s brief was filed on 5th June, 2014 but deemed properly filed on the 15th June, 2016, while the Respondent’s brief was filed 18th February 2015 but deemed properly filed on the
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15th June, 2016.
The Appellant in his brief formulated three issues for the determination. They are as follows:
?1. Whether or not the learned trial judge did not err in law by not conducting a trial within trial when the Appellant denied that his confessional statement was voluntarily made.
2. Whether or not on the preponderance of evidence, the Prosecution has proved the offence of armed robbery against the accused beyond reasonable doubt.
3. Whether or not there was a proper identification parade to identify the Appellant.”
The Respondent on its own part adopted the issues formulated by the Appellant above.
ISSUE 1
Learned counsel for the Appellant submitted that it is trite that when the admissibility of a statement is challenged on the ground that it was not made voluntarily, it is incumbent on the judge to call upon the prosecutor to establish that it was voluntarily made by conducting a trial-within-trial. He referred to the case of Kabiru v. Ag Ogun State (2001) 5 NWLR 209; Ogoala v. State (1991) 2 Newer 175; Ekpo v. State (1982) 6 SC 22; Owie v. State (1985) NWLR 395.
He further contended that the
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Appellant having challenged the admissibility of the alleged confessional statement (Exhibit P1) on the ground that it was not voluntarily made the trial Court was duty bound to conduct a trial-within-trial. He urged the Court to reverse the decision of the lower Court due to the lower Court’s failure to conduct the desired trial-within-trial.
The learned counsel for the Respondent on the other hand submitted that the proper time to object to the admissibility of a confessional statement on the ground that it was not made voluntarily is when the statement is sought to be tendered in evidence. He relied on the case of Olayinka Afolalu v. The State (2009) 3 NWLR (Pt 1127) 167; Obisi v. Chief of Naval Staff (2004) 11 NWLR (Pt 885) 482; Asimiyu Alarape & Others v. The State (2001) 5 NWLR (Pt 705) 79.
According to counsel there was no objection to the admissibility of the Appellant’s Confessional Statement at the trial. He referred this Court to page 95 of the record of appeal. He thus urged this Court to resolve this issue in favour of the Respondent.
?It is not a general rule that each confession relieves the prosecution of its duty of
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proving its case beyond reasonable doubt.
“For a confession to form the basis of a conviction it has to be shown to be free and voluntary, positive and proved to be true”
per Mohammed JSC in Obasi v. The State (1992) LPELR 20.
It is settled law that an essential ingredient in the offence charged cannot be cured by a confession per Karibi-Whyte JSC in Obasi v. State (supra).
Moses Omozuafo, an Inspector of Police, investigated this case. He also testified as PW3. He stated in his evidence-in-chief that he investigated this case. He also took the statement of the accused. After which he took him to his superior officer. The Accused/Appellant confirmed writing his statement himself and confirmed to the Supervising officer that what was in his statement was what happened. Although it is not a requirement of the law in Nigeria, the practice of taking an accused person along with his confessional statement to a superior Police officer who reads and interpretes the statement to him and where he confirmed it is his voluntary statement has been highly commended and a wise one as giving extra assurance of fairness to the accused person and the
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voluntariness of his confession. Confessional statements not so treated should not necessarily be viewed with suspicion Dibie v. State (2007) 9 NWLR Pt. 1038 page 30; Kim v. State (1992) 4 NWLR Pt. 233 page 17.
During the trial, the IPO, PW3 tendered the confessional statement of the Accused/Appellant without an objection by his counsel and it was thereafter marked as Exhibit P1.
It was only during his examination-in-chief did the Accused/Appellant deny that the so called confessional statement he was supposed to have made was not voluntary. You will recall that the IPO, PW3 took the accused to his superior officer who confirmed that he made his statement voluntarily.
No statement by an accused is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement. Saidu v. State (1982) NSCC vol. 13 page 70.
The learned counsel for the Accused/Appellant did not object to the tendering of the confessional statement. The Appellant only reneged on it or retracted during his own testimony in Court.
“It is always for the learned counsel for the defence, in a case like this in which an accused person is
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defended by counsel, to raise an objection to the statement being tendered, on the ground that the statement was not voluntary e.g. allege facts amounting to duress before, a mini trial becomes necessary. See Queen v. Igwe (1960) 5 FSC page 55, Obidiozo v. State (1960) SCNLR page 158 (1987) 4 NWLR Pt. 67 page 748 where as in this case, counsel failed to play his part and the Statement was admitted, he cannot properly raise the absence of a mini trial or trial within trial on appeal.”
See Dawa v. State (1980) 8 – 11 SC page 236. In the instant case, on my above conclusions that the statement Exhibit P1 was duly tendered and admitted in open Court in the presence of the Appellant and his counsel who not only did not raise any objection to its admissibility, but also later addressed on it, there can be no question of a trial within trial See Okanoh v. The State (1990) 1 WLR Pt. 125 page 136.
?A confessional statement to the police does not become inadmissible because the accused that made it denies ever making it or retracts the confession on oath. The confessional statement cannot also be regarded as unreliable by the mere denial or retractions. However,
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the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. Dibie v. State (supra); Oche v. State (2007) 5 NWLR Pt. 1027 page 214, Ukpong v. Queen (No) (1961) 1 SCNLR page 53.
There was no objection to the tendering of the confessional statement of the Appellant so there was no opportunity for a trial within trial to confirm its voluntariness. The trial Judge was therefore right in admitting the confessional statement. This issue is therefore resolved against the Appellant.
ISSUE 2
Arguing issue 2, learned counsel for the Appellant referred to Section 138(1) of the Evidence Act on the burden of proof in criminal cases. He argued that to prove armed robbery the prosecution must prove three ingredients:
1. That there was a robbery
2. That the accused/appellant was armed
3. That the accused/appellant while armed participated in the robbery. He referred to Section 1(2) C23 of the Armed Robbery and Firearms (Special Provisions) Act C1990.
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He contended that the Prosecution did not prove the ingredients of the offence of armed robbery as enumerated above. He also argued that the
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prosecution instead relied heavily on what he called inadmissible confessional statement of the Appellant. He also contended that none of the alleged victims of the crime, who according to counsel are vital witnesses were called as witnesses neither were their statements tendered as exhibits. He referred to the case of Odili v. State (1977) 4 SC; Osuagwu v. State (supra).
On the other hand, learned counsel for the Respondent submitted that in a criminal trial, the prosecution has the onus of proving its case beyond reasonable doubt not beyond all shadow of doubt. He contended that it is trite that a trial Court can rely solely on the confessional statement of an accused person to convict him. He relied on the case of Ubierho v. State (2005) 5 NWLR (pt. 919) 644; Monsuru Solola & Anr. v. The State (2005) 2 NWLR (pt 937) 460; Ade v. The State (2005) 13 NWLR (pt 1103) 149.
He referred this Court to the Appellant’s Confessional statement admitted as Exhibit P1 without any objection from the defence at page 95 of the record of appeal.
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He further contended that there are three ingredients for the offence of robbery and the trial Court found the
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three ingredients was established based on evaluation of evidence. The Appellate Court will not interfere with such finding unless it was perverse. He relied on the case of Adamu Mohammed Gbedu & Ors. v. Joseph I. Itie & Ors. (2010) 10 NWLR (Pt 1202) 227.
To secure a conviction in an armed robbery the prosecutor must prove the following:
a) that there was an armed robbery.
b) that the accused was armed and
c) that the accused, while with the arm or arms, participated in the robbery.
Once the prosecutor proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility. See Olayinka v. State (2007) 9 NWLR Pt. 1040 page 561, Okosi v. A.G. Bendel State (1959) 1 NWLR Pt. 100 page 642, Martins v. State (1997) 1 NWLR Pt. 481 page 355.
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It is true that the so called confessional statement of the Appellant was admitted without objection, however the weight to be attached to it
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is what is now very important. I had earlier in issue 1 stated that there was no trial-within-trial because there was no objection by the Appellant’s counsel.
To argue that the Appellant had retracted his statement during his testimony would be taken as an afterthought. However, the weight to be attached to this piece of evidence is very important.
It is true that a free and voluntary confession, which is direct and positive and properly proved is sufficient to sustain a conviction without any corroborative evidence so long as the Court is satisfied with its truth. There is however a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence. Solola v. State (2005) 11 NWLR, Pt. 957 page 460, Nwaeze v. State (1996) 2 NWLR Pt. 428 page 1 Akinmoju v. The State (2000) 4 SC Pt. 1 page 64.
The Appellant’s confessional statement had been tendered and admitted in evidence but the trial Judge ought to test the veracity of the evidence of facts contained therein. Apart from the Appellant probably, no one witnessed this crime. It is true that the prosecution is not duty bound to call a host of witnesses
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but it is duty bound to call vital witnesses that will help in proving the guilt of the Appellant. See Olayinka v. State (2007) 9 NWLR Pt. 1040 page 561 Imhauria v. Nigeria Army 1 (2007) 14 NWLR, pt. 1953 page 76.
In the present case, there was no eyewitness who could say exactly what happened. The victims of the robbery were not called as witnesses. The investigating police officer did not investigate, the other members of the gang. PW3 did not go with his team to search the Appellant’s house in furtherance of their investigation.
The Appellant’s confessional statement even though admitted in evidence needed to be corroborated as he had retracted it. The trial judge ought to explore evidence that tend to corroborate, the statement of the Appellant.
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None of the 3 prosecution witnesses could corroborate the statement of the Appellant.
The identification parade conducted leaves a lot to be desired. The Appellant was the only one showed to the victims even though they identified him as one of the robbers. An identification parade is not a sine qua non to a conviction for a crime alleged. It is essential in the following instances (a) where the
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victim does not know the accused before and his first acquaintance with him was during the commission of the offence (b) where the victim or witness was confronted by the offender for a very short time; and (c) where the victim due to time and circumstance, might not have had the full opportunity of observing the features of the accused Ukpabi v. State (2004) 11 NWLR Pt. 884 page 439, Ebri v. State (2004) 11 NWLR pt. 885 page 589.
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Now the victims that identified the Appellant were not called as witnesses. The victims were not there to corroborate the confessional statement of the Appellant. Corroboration is a confirmation of a witness’s evidence by independent testimony. This, corroborative evidence is one, which shows or tends to show not merely that the crime has been committed but that it was committed by the accused. Nwambe v. State (1985) 3 NWLR Pt. 384 page 381, Dagayga v. State (2006) 7 NWLR Pt 980 page 647.
It is trite that evidence in corroboration must be an independent testimony, direct or circumstantial which confirms in some material particular not only that an offence has been committed but that the accused persons has committed it,
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Ogunbayo v. State (2007) 8 NWLR Pt. 1935 page 157.
In the present case, there is no independent eye witness or any witness to corroborate any material particular on this case. It would therefore be difficult to convict the Appellant without an independent evidence to corroborate the evidence of the Appellant.
It is true that the Appellant made phone calls with one of the stolen phones from the robbery. The Appellant in his testimony told the police that he got the phone from his cousin. This piece of evidence was neither investigated at all. At best, the Appellant can only be charged with the count of being in possession of stolen property. This was not also proved. The IPO did not investigate this aspect and as such it is difficult to know actually how he came by that phone. This phone to my mind is the only nexus between the Appellant and the robbery.
This nexus was neither properly investigated by the police nor did the prosecution prove this aspect beyond reasonable doubt. Where there is a doubt it must be resolved for the benefit of the Accused/Appellant. This issue is resolved in favour of the Appellant.
ISSUE 3
Learned counsel
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for the Appellant submitted that based on the authority of Osuagwu v. State (2013) Vol. 1 MJSC (Pt II) at 130, an identification parade is necessary in the following circumstances:
1. When the offence was committed in the dark and the victim only had a fleeing encounter with the robber.
2. When it is clear that the victim was traumatized when the offence was committed.
3. Where the eye witnesses/victims fails at the earliest opportunity to name the person known to him who he claims committed the offence.
4. When the robber was not arrested at the scene of the robbery but was arrested after the robbery.
He contended that the instant case falls within the above requirement, thus an identification parade ought to have been conducted. Furthermore, counsel contended that the identification parade conducted was not proper as the Appellant was merely taken before the alleged victims. He urged this Court to hold that the Appellant was not properly identified and therefore must be discharged and acquitted.
In response, learned counsel for the Respondent submitted that it is not every criminal case that an identification parade is
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necessary. He contended that an identification parade is necessary only in cases where there is real doubt or dispute as to the identity of the accused person or his connection with the offence charged. He relied on the case of Ikemson v. The State (1989) NWLR (pt 110) 455; Ogoala v. The State (1991) 2 NWLR (Pt 175) 509.
He submitted that in the instant case, the Appellant by Exhibit P1 had admitted committing the crime and also one of the stolen items was found in his possession, thus identification parade was not necessary.
He urged this Court to hold same.
I have already considered the issue of identification parade in issue 2 and held that it fell short of what the law expected of an identification parade. A parade that only the Appellant was paraded is devoid of authenticity.
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This issue is also resolved in favour of the Appellant.
In sum, the prosecution has failed to prove the guilt of the Appellant beyond reasonable doubt.
This appeal is meritorious. It is allowed. The judgment of the trial Court delivered on 28th September, 2010 is hereby set aside. The Appellant Olanrewaju Aina is discharged and
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acquitted.
Other Citations: (2016)LCN/8845(CA)
