Tajudeen Adisa V The State (2017)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKAAHS, JSC

The appellant and his co-accused were tried for conspiracy to commit armed robbery and armed robbery and they were sentenced to death for the said offences by the Ogun State High Court. They appealed against their conviction and sentence to the Court of Appeal, Ibadan. The court held that the prosecution proved the first ingredient of the offence namely that there was a robbery. In considering the second ingredient – whether the robbery was armed robbery – the court said at page 198: –

“As has thus been seen the use of cutlass and axe permeates the evidence not only of PW2 and PW3 but also the confessional statement of 1st appellant. I think that it will be right to say that whoever the robbers were, they were armed”.

Despite this finding the Court finally held that since the prosecution failed to tender the cutlass and the axe which were allegedly used in the armed robbery operation and no explanation was supplied for the failure to tender them, the armed robbery was not proved. On this basis the lower court set aside the conviction and sentence to death of the appellants for conspiracy and armed robbery but found them guilty of conspiracy and robbery simpler and sentenced them to 21 years’ imprisonment each without option of fine on each of the counts. The court ordered that the sentences should run concurrently.

The appellant appealed on 5 grounds to the Supreme Court. Issue (iii) in the appellant’s brief was distilled from grounds 2 and 4 of the Notice of Appeal and it reads: –

Whether the Court of Appeal was right when, although it set aside the conviction by the trial court, of the appellant for the offences of conspiracy to commit armed robbery and armed robbery and thereupon quashed the sentences of death passed by the said court; yet it found the appellant guilty of conspiracy to commit robbery and robbery in the absence of cogent, credible and sufficient evidence before it which proved that in fact, there had been a robbery and/or that, if there had indeed been a robbery, the appellant was involved in same? (Distilled from Grounds 2 and 4 of the Notice of Appeal).

In his brief of argument, learned counsel for the appellant submitted that it is the fixed position of the law that the standard of proof required to convict an accused person of a crime is proof beyond reasonable doubt and there is a presumption of innocence encapsulated in section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria 1999 and section 138 of the Evidence Act 2011. He argued that in the instant case, the Court of Appeal in one breadth found that the prosecution had proved each of the elements of armed robbery beyond reasonable doubt but in another breadth held that the prosecution had not proved armed robbery beyond reasonable doubt because the alleged offensive weapons used for the alleged robbery were not tendered in evidence by the prosecution.

Learned counsel contended that since the reasoning of the lower court that the appellants took the plea based on the charge read to them which was to the effect that they carried out the armed robbery with offensive weapons to wit cutlass and axe and the prosecution failed to tender the said weapons and no explanation was forthcoming for the failure to tender them, the inevitable conclusion to be reached is that the prosecution failed to establish the charge of armed robbery.

Learned counsel disagreed with the finding made by the lower court that the evidence disclosed the offence of robbery and that the appellants committed the offence.

Learned counsel for the respondent argued that the principal issue in the appeal is whether the evidence on record justifies the lower court’s conviction of the appellant. He submitted that a court may convict an accused person solely on the basis of his confession, even if that statement is retracted. All that is needed is for the trial court to ascertain the probative value of the confessional statement by subjecting it to the tests laid down in R v. Sykes (1913) 8 Cr. App. Report 233 which was adopted in R v. Kanu (1952/1955) 14 WACA 30.

The lower court was no doubt ambivalent when it held after evaluating the evidence of PW1, PW3 and the statement of the 1st appellant which was admitted as Exhibit A that the prosecution had undoubtedly proved beyond reasonable doubt that there was a robbery and the robbers were armed (See

page 198 of the records). When this finding is juxtaposed with its consideration of the failure to tender the cutlass and the axe allegedly used during the robbery and not offering any explanation/the conclusion would be the prosecution did not discharge its burden of proving that there was an armed robbery beyond reasonable doubt even where the accused had in his statement to the police admitted committing the offence and relied on Aigbadion v. State (2000) 7 NWLR (Pt. 666) 680.

The law is settled beyond peradventure that a court may convict an accused person solely on the basis of his confession even when he has retracted or resiled from the confession. See: Ikemson v State (1989) 3 NWLR 9Pt. 110) 455. It is also the law that where an accused person out rightly denies making a confessional statement, the trial court should admit the statement in evidence as an exhibit and decide later whether or not such denial avails the accused. In other words, the Court should evaluate the confession, the testimony of the accused and the other pieces of evidence adduced at the trial and then decide if there is any independent or corroborative evidence no matter how slight showing that the offence was committed and it was the accused who committed it See: Onyegbu v. State (1994) 1 NWLR (Pt. 320) 328: Dele v State (2011) 1 NWLR (Pt. 1229) 508. The corroborative evidence needed to convict an accused must be evidence which confirms in some material particulars not only that the crime has been committed but also that it was the appellant who committed it. See: Mbele v. State (1990) 4 NWLR (Pt. 145) 484.

In his evidence, Sgt Paul Kyauta who testified as PW4 stated that he and late Sgt. Rafiu Oyewo obtained the voluntary statements of 1st and 2nd accused respectively. The statements were confessional in nature so he took the accused persons and their statements before a Superior Police Officer for endorsement. The said statements were tendered and admitted in evidence without objection as exhibits A and B.