Tunde Asimi V. The State (2016)
LAWGLOBAL HUB Lead Judgment Report
OLABODE RHODES-VIVOUR, J.S.C.
Okey Omonoseh and Tunde Asimi were arraigned on an eight count charge which reads:
COUNT 1
That you, Okey Omonoseh and Tunde Asimi, on or about 31st July 2007 at Maggi Restaurant, Ajaokuta steel Company in Ajaokuta Local Government Area within the Kogi State Judicial Division committed the offence of criminal conspiracy by doing an act to wit: you agreed to rob Mr. Aiyedun Kunle of his Sky blue coloured V Boot Mercedes Benz 300E with Registration No. AL 578 LND which is an illegal act and thereby committed an offence punishable under Section 97 (1) of the Penal Code .
COUNT 2
That you, Okey Omonoseh and Tunde Asimi, on or about 24 July, 2007 at No 35 E Portakagi Bt.B Ajaokuta in Ajaokuta Local Government Area within the Kogi State Judicial Division committed the offence of criminal conspiracy by doing an act to wit: you agreed to rob Mr. Alabi Akeem’s wife of vehicle documents, Nokia handset, digital Sony Camera, Sony video CD with remote control, a cutlery set, cloths and his room key which is an illegal act and thereby committed an offence punishable
under Section 97 (1)of the Penal Code.
COUNT 3
That you, Okey Omonoseh and Tunde Asimi on or about 5 July, 2007 at 26 Kaduna Estate Ajaokuta Local Government Area within the Kogi State Judicial Division committed the offence of criminal conspiracy by doing an act to wit: you agreed to rob Mrs. Abigail Ibrahim of a DVD player with two speakers, Nokia Camera handsets, Samsung Camera Handset, Panasonic Handset, six thousand naira cash and her OX-blood coloured Toyota Carina E, registration No. EJ 808 ABC Abuja which is an illegal act and thereby committed an offence punishable under Section 97 (1) of the Penal Code.
COUNT 4
That you, Okey Omonoseh and Tunde Asimi, on or about 31 July, 2007 at Maggi Restaurant Ajaokuta Steel Company in Ajaokuta Local Government Area within the Kogi State Judicial Division Committed the offence of Armed Robbery by doing an act to wit you robbed Mr. Aiyedun Kunle at gun point of his Sky blue coloured V-Boot Mercedes Benz 300E with registration No. AL 578 LND and thereby committed an offence punishable under Section 298 (c) of the Penal Code.
COUNT 5
That you, Okey Omonoseh and Tunde Asimi, on or about 24
July, 2007 at No 35e, Portakagi Bt.B, Ajaokuta in Ajaokuta Local Government within the Kogi State Judicial Division committed the offence of armed robbery by doing an act to wit: you robbed Mr. Alabi’s sister of vehicle documents, Nokia handset, digital sony camera, sony video CD with remote control, a cutlery set, cloths and his room key and thereby committed an offence punishable under Section 298 (c) of the Penal Code.
COUNT 6
That you, Okey Omonoseh and Tunde Asimi, on or about 5 July,2007 at 268 Kaduna Estate, Ajaokuta in Ajaokuta Local Government Area within the Kogi State Judicial Division committed the offence of armed robbery by doing an act to wit: you agreed to rob Mrs. Abigail Ibrahim at gun point of a DVD player with two speakers, Nokia Camera handsets, Samsung Camera Handset, Panasonic Handset, six thousand naira cash and her Ox-blood coloured Toyota Carina E, registration No. EJ 808 ABC Abuja and thereby committed an offence punishable under Section 298 (c) of the Penal Code.
COUNT 7
That you, Okey Omoseh and Tunde Asimi, on or about 9 October 2007 at RD E12 Flat 9A Kaduna Estate Township, Ajaokuta Local Government Area
within the Kogi State Judicial Division committed the offence of criminal conspiracy by doing an act to wit: you agreed to rob Hajia H.O. Umar at gun point of a Saisho rechargeable lantern, designer perfume (Guess), two packets of Knor Maggi, three tins of lion curry, Nokia handsets (Nokia 70, Nokia 6060, Nokia 1100) Radio, Akai CD/DVD player and other items which is an illegal act and thereby committed an offence punishable under Section 97 (1) of the Penal Code.
COUNT 8
That you, Okey Omonoseh and Tunde Asimi, on or about 9 October, 2007 at RD E21 Flat 9A. Kaduna Estate Township, Ajaokuta in Ajaokuta Local Government Area within the Kogi State judicial Division committed the offence of armed robbery by doing an act to wit: you robbed Hajia H.O. Umar at gun point of a saisho rechargeable lantern, designer perfume (Guess), two packets of Knor Maggi, three tins of lion curry, Nokia handsets (Nokia 70, Nokia 6060, Nokia 1100) Radio, Akai CD/DVD player and other items and thereby committed an offence punishable under Section 298 (c) of the Penal Code.
Trial commenced on 9 February, 2009 with both accused persons entering not guilty pleas to the
original charge sheet which contained six counts. The charge was subsequently amended with the addition of counts seven and eight. Again both accused persons pleaded not guilty to them. The state called three witnesses and closed its case. Four documents were admitted as exhibits. Both accused persons gave evidence in their defence, but did not call any witness.
In a Judgment delivered on 19 February, 2010 Ajanah CJ Kogi State in the concluding part of his judgment said:
“On the whole the two accused are hereby convicted of the offence of conspiracy and armed robbery under Section 97 (1) and 2988 (c) of the Penal Code as alleged against them in counts 1, 4, 7 and 8 of the amended charges while the 1st accused is found guilty of the offence of conspiracy and armed robbery as alleged against him under counts 3 and 6 of the head of charges and he is accordingly convicted.
The Appellant, Tunde Asimi was the 2nd accused person at the trial Court. He was convicted on counts 1, 4, 7 and 8 of the amended charges. Dissatisfied with the judgment against him, he filed an appeal that was heard by the Court of Appeal Abuja Division.
The judgment of
the trial Court was affirmed by the Court of Appeal when it reasoned that:
“In the instant case the learned trial judge tested the veracity of the Appellants retracted confessional statement and the evidence adduced by prosecution witnesses and rightly concluded that the Appellant committed the robberies as alleged.”
On the above reasoning the Court of Appeal concluded its judgment as follows;
“The conviction of the Appellant on the facts and circumstances of the case by the trial Court is right and I find no reason to disturb same. The appeal is without merit, it is hereby dismissed.”
This appeal is against that judgment. In accordance with Rules of this Court briefs of argument were filed and exchanged. The Appellant’s brief filed on 2 July, 2013 was deemed duly filed and served on 12 March 2014, while the Respondent’s brief field on 16 January, 2014 was deemed duly filed and served on 25 February, 2016.
Learned counsel for the Appellant J.A. Akubo Esq., formulated two issues for determination.
- Whether the Court of Appeal was right in relying on Exhibit “4” to conclude that the conviction of the Appellant on the facts and
circumstances of the case by the trial Court is right.
- Whether the lower Court was right in affirming the conviction of the Appellant by the trial Court even though there was no credible evidence to sustain it.
On the other side of the fence learned counsel for the Respondent formulated a sole issue for determination. It is
- Whether the lower Court was right in affirming the conviction of the Appellant by the trial Court.
After examining the issues formulated by both sides I am satisfied with the Appellants issues. They cover the sole issue of the Respondent. In view of this observation, the appeal would be decided on the Appellants issues which shall be taken together.
Briefs of argument were adopted by counsel when the appeal came up for hearing on 25 Februarv,2016.
The facts these.
Between the months of July and October, 2007 the Appellant in the company of Okey Omonoseh and others still at large carried out a series of robberies at residential premises in Ajaokuta, Kogi state. They were armed with guns, sticks when they successfully robbed and disposed residents of their cars and personal effects.
The Appellant
made confessional statement to the Police which he retracted at trial. A trial within trial was conducted at the end of which the Appellants statement was admitted as Exhibit 4.
The Appellant was convicted on his confessional statement. His conviction was affirmed by the Court of Appeal.
Learned counsel for the Appellant observed that an accused person can be convicted only on his confessional statement once it is made voluntarily. Reliance was placed on Section 27 (5) of the Evidence Act 2004.
Mohammed v State (2001) 11 NWLR (Pt. 1045) p. 303
He submitted that when a confessional statement is retracted as in the instant case the statement should be subjected to six tests to ascertain the truthfulness of it. He further submitted that for the conviction of the Appellant to be valid in law, Exhibit 4, the Appellants confessional statement must be tested or corroborated with evidence of witnesses outside the confession, no matter how slight to make the confession probable that it is true. Reliance was placed on Ogudo v State (2011) 18 NWLR (Pt. 1278) p.1
Concluding learned counsel submitted that the judgment of the Court of Appeal ought
to be set aside and the Appellant acquitted and discharged since the evidence led by the prosecution witnesses did not corroborate Exhibit 4.
Learned counsel for the Respondent observed that the Court could convict on the Appellant’s confessional statement, (Exhibit 4) even if the Appellant resiled from it. Reliance was placed on Sule v State (2009) 17 NWLR (Pt. 1169) p.33 Michael v State (2008) 13 NWLR (Pt. 1101) p. 383. He further observed that Exhibit 4 was clearly linked to the evidence adduced by PW1 and PW4 and the evidence of PW2 showed that some of the stolen property were recovered from the Appellant.
He urged this Court to dismiss the appeal and affirm the judgment of the Court of Appeal.
I earlier on in this judgment said that in the trial Court Okey Omonoseh was the 1st accused person while the Appellant was the 2nd accused person. During trial both of them objected to the admissibility of their statements being admitted in evidence on the ground that their statements were not voluntarily made. After a hearing the learned trial judge admitted the 1st accused person’s statement as exhibit 3 and the Appellants statement as Exhibit
There is no appeal from the trial within trial in which the confessional statement of the Appellant was admitted as Exhibit 4. In the absence of an appeal the Ruling on the trial within trial is inviolate until set aside and in this case that Ruling would never be set aside since there is no appeal. In the circumstances the Ruling on the trial within trial is correct. The confessional statement of the Appellant was properly and correctly admitted in evidence as exhibit 4.A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. A confessional statement is thus the best evidence that the accused person committed the offence for which he is charged. A direct acknowledgment of guilt should be regarded as a confession. Exhibit 4 is the confessional statement of the Appellant. Therein he admitted to taking part in robbery operations with Okey Omonoseh and others at large.
It is long settled that the Court may convict an accused person on his confessional statement alone once the Court is satisfied that it is a free and voluntary confession of his guilt.
See Queen v
Itule (1961) 2 SCNLR p. 183,
Akpan v State (1992) 6 NWLR (Pt. 248) p. 439,
State v Isali & ors (2012) 7 SC (Pt. iii) p. 93
There can be no doubt after reading Exhibit 4 that it is a confessional statement made by the Appellant. It is a direct acknowledgment of guilt by the Appellant that he participated in a series of armed robberies with Okey Omonoseh and others at large. The Court of Appeal was right to affirm the judgment of the trial Court to rely on Exhibit 4.
RETRACTED CONFESSIONAL STATEMENT EXHIBIT 4
On oath the Appellant said:
“….I do not know anything about this case…”
That is to say the Appellant retracted or resiled from his confessional statement.
In Ogudo v. State (2011) 18 NWLR (Pt. 1278) p.1, I explained the application of the inconsistency rule when I said that:
“A retracted confession is an extra-judicial statement which amounts to a confession but turns out to be inconsistent with testimony at the trial. The inconsistency rule deals with such a situation. It is that where a witness makes an extra-judicial statement which is inconsistent with his testimony at the trial, such testimony is to be treated
as unreliable while the statement is not regarded as evidence on which the Court can act. The rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the prosecution or defence. The object is to ensure that the evidence relied on by the Court is credible. The party who retracts is always afforded an opportunity while in the witness box to explain the inconsistency… …….”
The long settled position of the law is that the inconsistency rule does not apply to an accused person. A trial Court can convict on the extra- judicial statement of the appellant which the appellant not only resiled from but also contradicted in his testimony on oath before the trial Court. Put in another way, a Court may convict an accused person (appellant) on his extra-judicial confession which is voluntary and true but inconsistent with his evidence. See Agwu v. State (1965) NMLR p. 18,
Queen v Ukpong (1961) 1 ANLR p. 25
Onubogu v State (1974) 9 SC p.1
The rule is applied when the witness is unable to explain the inconsistency arising from his previous statement and his evidence in Court.
The rule does not
apply to cases where an accused person confessional statement runs contrary to his testimony on oath in Court.
A Court can convict on the retracted confessional statement of an accused person. The ends of justice would be met if there is general corroboration of the important incidents and not that a retracted confession should be corroborated in each material particular. See
Ikemson v State (1989) 3 NWLR (Pt. 110) p. 455
Asanya v State (1991) 3 NWLR (Pt. 180) p. 422, Egboghonome v State (1993) 9SCNJ p.1
The Court of Appeal endorsed the findings of the trial Court as unassailable. The findings of the trial Court runs as follows:
“In the instant case, there is no doubt that robbery was committed in the houses of the PW3, PW4 and PW5 while the PW1 was robbed at a place in Ajaokuta called Maggi Restaurant. The PW1 has alleged and given vivid evidence on how his Mercedes 300 E was taken from him at gun point. The PW2 gave further evidence about the investigation carried out and how the statement of the 1st accused led to the recovery of the said vehicle which was later handed over to the PW1. The 1st accused in his statement gave a vivid description of
how the robbery was committed and the role he played in it. The 2nd accused also gave a vivid description how of the robbery was committed on PW1 and the part he played, the said statements which were independently made corroborated each other, I am therefore convinced that with regards to conspiracy as alleged in charges 1 and 7 that the prosecution has proved those charges beyond reasonable doubt. Similarly, the same evidence shows that in pursuance of the said conspiracy act of armed robbery was committed by the 2 accused persons on the PW1 and PW4. In a case of robbery, the prosecution is required to prove that there was robbery or series of robbery and that each of the robbery was armed robbery and that the accused committed the said act. All these elements ate present in the confessional statement of the two accused persons with regards to the robberies committed on the PW1 and PW4…”
Once, an extra-judicial confession has been proved as in this case to have been made voluntarily and it is positive and unequivocal, amounting to an admission of guilt (such as the appellant’s confessional statement, Exhibit 4) a Court can convict on it if the
appellant retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible. It is desirable but not mandatory that there is general corroboration of the important incidents and not that a retracted confession should be corroborated in each material particular. See
Egboghonome v State (1993) 7 NWLR (Pt. 306) p. 383, Aremu v State (1984) 6SC p. 85,
Akinfe v State (1988) 3 NWLR (Pt. 85) p. 729,
Ikemson v State (1989) 3 NWLR (Pt. 110) p. 455,
Asanya v State (1991) 3 NWLR (Pt. 180)0 p. 422.
The confessional statement of the appellant, Exhibit 4 is a free and voluntary confession by the appellant in view of the fact that a trial within trial was conducted in which it was admitted as an Exhibit and there was no appeal from that decision. A trial Court is at liberty to convict solely on Exhibit 4. The fact that the appellant resiled or retracted from Exhibit 4 at trial makes no difference. A trial Court can convict on a retracted confessional statement.
The fact that a stolen item to wit: Mercedes Benz 300E was recovered is good corroboration that Exhibit 4 is true. Both Courts below were correct in convicting the
appellant as one of the armed robbers.
Section 79 of the Penal Code states that:
“When a criminal act is done by several persons in furtherance of a common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.”
In view of the provisions of 79 supra, when several persons are involved in a criminal act in furtherance of a common intention of all of them, each of them is liable for that act as if it were done by him alone. All the three elements in Section 79 of the Penal Code are present, and they are:
(a) There was common intention of the Appellant and his co-accused person to commit armed robbery;
(b) In furtherance of the armed robbery properties of the victims were stolen at gun point.
(c) The robbery, stealing with violence satisfies the law and in the circumstances the prosecution proved its case beyond reasonable ground, See Fulani v Bornu N.A (1966) 2 SCNLR p. 274 Michael v State (2008) 13 NWLR (Pt. 1104) p. 361, Atanyi v Queen (1955) 15 WACA p. 34, Idahosa v Queen (1965) NMLR p. 85
Where evidence incriminating an accused person was from a co-accused the Court
is at liberty to rely on it provided the accused person who gave the said evidence was tried with the other accused person. The evidence adduced by Okey Omonoseh, one of the Appellant’s co-accused persons showed that they all had a common intention to commit armed robbery. It must be made clear under Section 79 supra that when the Court is satisfied that two or more persons had a common intention to prosecute an unlawful purpose and in furtherance of that unlawful purpose an offence is committed which was a probable consequence of the unlawful purpose each of them is deemed to have committed the offence. Evidence available, accepted by the learned trial judge and affirmed by the Court of Appeal reveals that the appellant, Okey Omonoseh and others at large while armed with offensive weapons within the months of July to October 2007 decided to commit a series of armed robbers and in the process of achieving their aim, the appellant and his co-conspirators still at large committed armed robbery. Both Courts below are agreed on this finding of fact. By the clear provisions of Section 79 of the Penal Code, the appellant, Okey Omonoseh and those still at large
participated in a series of armed robbery in Ajaokuta. To my mind, all the ingredients of the offence were proved beyond reasonable doubt.
In conclusion, the fact that there is credible evidence outside the appellants confessional statement (Exhibit 4) of the circumstances of this case which make it probable that the confession is indeed true, and that the facts of this case fall conveniently within the provisions of Section 79 of the Penal Code, clearly shows the appeal to have no redeeming features.
In the end the appeal is dismissed.
SC.331/2012
