Wahab Alao V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This appeal arose from the judgment of the Court of Appeal, Ibadan Division delivered on 6th December, 2013 as contained at pages 249 to 251 of the Record of Appeal. In its judgement, the Court below upheld the decision of the learned trial Judge, Adeniran J., which had convicted and sentenced the Appellant for the charge of armed robbery on 12th July 2012.
Being dissatisfied with the decision of the lower Court, the Appellant filed the instant appeal vide a Notice of Appeal dated 16th June, 2014 and filed 20th December, 2013 wherein he raised three (3) grounds of appeal as contained at pages 249 to 251 of the Record of Appeal.
SUMMARY OF FACTS:
The Appellant was charged together with Fatai Busari, Osuolale Tijani, Mumini Adisa and Sunday Okafor at the High Court of Oyo State with offences of conspiracy to commit armed robbery and armed robbery contrary to Section 5 (b) of the Robbery and Firearms (Special Offences) Act. Cap 398 Vol. XXII, Laws of the Federation of Nigeria 1999 and the offence of Armed Robbery contrary
1
to Section 1 (2) (a) and (b) of the of the Robbery and Firearms (Special Offences) Act. Cap 398 Vol. XXII, Laws of the Federation of Nigeria 1990.
The offence was alleged to have been committed at Mobil Petrol Station, Challenge, Ibadan, Oyo State on November 18, 1994 by robbing one Alhaji Nurudeen Kolawole (‘the deceased’) of the sum of N150,000.00 (One Hundred and Fifty Thousand Naira) and in the process killed the deceased. At trial, the Appellant Fatai Busari and Mumini Adisa were found guilty and convicted for the offences and sentenced to death by hanging or execution by firing squad as contained in the judgement of the trial Court at pages 121 to 143 of the Record.
The Appellant was dissatisfied with the said judgement and filed an appeal at the Court below. The Court below delivered its judgement on 6th December, 2013 and dismissed the Appellant’s appeal and confirmed the conviction and sentence of the trial Court. Still being dissatisfied, the Appellant sought to explore right of further, final appeal to the Supreme Court and lodged the appeal on December 20, 2013.
ISSUES FOR DETERMINATION:
The Appellant formulated two issues for determination in this appeal, thus;
2
“1) Whether Lower Court was right when it affirmed the conviction and sentence of the Appellant for the offence of armed robbery (Distilled from grounds 2 and 3).
2) Whether the Lower Court rightly affirmed the conviction and sentence of the Appellant for the offence of conspiracy to commit the offence of armed robbery (Distilled from grounds 1).”
On its part, the Respondent formulated sole issue for determination, thus:
“1) Whether Appellate Court was wrong in upholding the decision of the trial Court to the effect that the prosecution proved the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt.”
In determining this appeal, I have adopted with slight modification the sole issue formulated by the Respondent as being concise and all-embracing of the contention in this appeal, thus:
“Whether Court below was wrong in upholding the decision of the trial Court to the effect that the Prosecution had proved its case of conspiracy and armed robbery against the Appellant beyond reasonable doubt.”
CONSIDERATION AND RESOLUTION OF THE ISSUE:
The Appellant’s Counsel premised his submission on Issue 1 on wrongful
3
admission of Exhibit ‘P’, the confessional statement in convicting the Appellant. The Appellant contended that there are three essential ingredients of armed robbery that must be proved by the Prosecution, namely: (a) that a robbery took place, (b) that the person who committed the offence of robbery was armed, and (c) that the accused was the person or one of the persons who committed the act of robbery. See ADEKOYA VS THE STATE (2012) 9 NWLR (Pt.1306) 539; TANKO VS THE STATE (2009) 4 NWLR (Pt.1131) 430 and ADEBAYO VS THE STATE (2014) 12 NWLR (Pt.1424) 613.
While submitting that the above ingredients must be proved beyond reasonable doubt, the Appellant contended that the affirmation of the High Court’s decision on the issue of contradiction on the evidence of the Respondent’s witnesses is erroneous and at variance with the evidence on the record. The Appellant stated that there were clear contradictions in the evidence relied upon in convicting the Appellant, particularly evidence of PW.1 and PW.2 by way inscription of “First City Merchant Bank” on the said vehicle and whether it was colour “green” or “brown”, and submitted that it was wrong for the
4
High Court and the Court below to have relied on such evidence to prove that armed robbery incident took place. See AMALA VS THE STATE (2004) 12 NWLR (Pt.888) 520.
The Appellant submitted further that where extra-judicial statement and testimony of a witness are contradictory, the Court must discard both and not pick and choose from the evidence, see BABATUNDE VS THE STATE (2014) 2 NWLR (Pt.1391) 298. The Appellant further argued that such doubts ought to have been resolved in favour of the Appellant and against the Respondent. See THE STATE VS EMINE (1992) 7 NWLR (Pt.256) 658 and ONONUJU VS THE STATE (2014) NWLR (Pt.1409) 345, MUSA VS THE STATE (2009) 15 NWLR (1165) 467 at 501-502, H-A.
On identification, the Appellant also submitted that an identification parade was necessary in the circumstances of the case because the Appellant was never mentioned as one of those who took part in the commission of the offence of robbery, see OMOTOLA VS THE STATE (2009) 7 NWLR (Pt.1139) 748; IKEMSON VS THE STATE (1989) 3 NWLR (Pt.110) 455 at 478; and ADEYEMI VS THE STATE (2014) 13 NWLR (Pt.1423) 132 at 162.
On Exhibit “P” (the confessional statement), the
5
Appellant contended that he was never identified as one of those that committed the robbery and that the trial Court wrongly relied on `Exhibit P” in convicting the Appellant despite denying the confessional statement. The Appellant contended that for confessional statement to be admitted and relied upon in grounding conviction, the following tests must be satisfied: (1) is there anything outside the confession to show that it is true, (2) is the confessional statement corroborated, (3)are there relevant statements made in it of facts as can be tested, (4) was the prisoner one who has the opportunity of committing the crime, (5) is the confessional statement probable, and (6) is the confessional statement consistent with other facts which has been ascertained and have been proved- See Section 29(2) of the Evidence Act, 2011 and ADEKOYA VS THE STATE (2012) 9 NWLR (1306) 539 at 561.
The Appellant also alleged improper evaluation of evidence on the part of the Court below on the ground that the Appellant, was never identified. The Appellant further argued that, assuming he was among those that robbed the vehicle that was used in the commission of the offence
6
of robbery, it is not a safe conclusion that he took part in the robbery which was the subject-matter of this appeal. According to the Appellant, the fact that he participated in a robbery in the past does not necessarily draw irresistible conclusion that he participated in the robbery incident which is the subject of this appeal. See EBEINWE VS THE STATE (2011) 7 NWLR (pt.1246) 402.
On issue two, the Appellant contended that the judgement of the lower Court is perverse as the offence of conspiracy to commit armed robbery was not established and proved beyond reasonable doubt, citing Section 138(1) of the Evidence Act 1945 (now Section 135 (1) of the Evidence Act, 2011; OSETOLA VS THE STATE (2012) 17 NWLR (Pt.1329) 251; ANI VS THE STATE (2009) 16 NWLR (PT 1168) 443.
In making further submissions on issue two, the Appellant alluded to similar arguments made in respect of issue one on “identification”; Exhibit “P”, and other and concluded the Respondent failed woefully to establish the essential ingredients of the offences of armed robbery and conspiracy. The Appellant then urged this Court to allow this appeal and set aside his conviction and sentence
7
and discharge and acquit him (the Appellant).
In its opposing submissions, the Respondent raised a preliminary objection in paragraph 4.01 of its Respondent Brief on the Appellant’s contention on improper evaluation of evidence as contained in paragraphs 4.37 to 4.44 of pages 11 and 12 of the Appellants Brief of argument. The Respondent contended that issues must be formulated from the grounds of appeal and that any issue which does not arise from or related to a ground of appeal is incompetent and unarguable and same should be struck-out. See KANO ILE VS GLOEDE & LOFT LTD (2005) 22 NSCQR 346; PATIENCE OMAGBEMI VS GUINNESS NIG.LTD. (1995) 2 NWLR (Pt.377) page 258 at 266-267;ORJI VS ZARIA INDUSTRY LTD (1992) 1 NWLR (Pt.216) 124 at 146.
On onus and standard of proof, the Respondent conceded that since an accused person is presumed innocent until proven guilty by virtue of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the onus is always on the prosecution to prove its case and establish the offence against the accused person beyond reasonable doubt. See OLAYINKA AFOLALU VS THE STATE (2010) 5-7
8
SC (Pt. II) 93. The Respondent contended that prove beyond reasonable doubt does not mean proof beyond all shadow of doubt.
On proof of armed robbery, the Respondent relied on the meaning of “Robbery” as defined in Section 11 of the Robbery and Firearms (Special Provisions) Act, and the cases of EDET ASUQUO VS THE STATE (20112) 4-5 SC 199 and AFOLALU VS THE STATE (Supra) and submitted that the Prosecution has proved all the essential ingredients of the offence for which the Appellant was charged. The Respondent contended that there were all forms of evidence direct, confessional and circumstantial against the Appellant, and that the slight discrepancy as to registration number and colour of the car used for the robbery is not capable of discrediting cogent, compelling evidence against the Appellant. The Respondent argued further that, as a matter of fact, the confessional statement was enough to prove the entire offence of armed robbery against the Appellant.
In its final submission, the Respondent argued that the evidence on record in this case have established the ingredients of conspiracy and armed robbery against the Appellant and urged this Court
9
to hold that the prosecution had proved the charge beyond reasonable doubt and dismiss the appeal by resolving the sole issue formulated by Respondent against the Appellant.
The Appellant’s Reply on points of Law essentially contended that the Preliminary Objection raised in its Respondent’s Brief was misconceived. The Appellant contended that the objection was not intended to terminate the hearing of the appeal but to invite this Honourable Court to disregard some of the arguments in the Appellants Brief. The Appellant contended that his arguments as contained in paras 4.37 to 4.44 are predicated on the issue that has been properly raised from Grounds two and three, and thus urged this Court to discountenance the objection as same is misconceived.
I have carefully considered the arguments made by the parties in this appeal for the purpose determining the sole issue formulated above for the purpose of determining the appeal. I now return to answer the above question having evaluated the respective submissions of parties.
The point that must be made, and clearly made, is that the appeal before us borders on conspiracy to commit the offence of
10
armed robbery and the actual act of armed robbery. The offence of conspiracy to commit armed robbery is charged pursuant to Section 5 (b) of the Robbery and Firearms (Special Offences) Act. Cap 398 Vol. XXII, Laws of the Federation of Nigeria 1999 and while the actual act of Armed Robbery is charged pursuant to Section 1 (2) (a) of the of the Robbery and Firearms (Special Offences) Act, Laws of the Federation of Nigeria.
The offence for which the Appellant is charged is a very serious one, and by virtue of Section 135 (1) of the Evidence Act 2011, the offence must be strictly proved by cogent and convincing evidence that leaves no iota or doubts 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 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,
11
on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
It is now well settled that in our criminal jurisprudence, in order for the prosecution to succeed whenever the commission of a crime is in issue against an accused person, he is under a duty to establish its case beyond reasonable doubt. It must however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt.
It is settled law that in criminal proceedings, the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt and this would be achieved by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See YONGO VS COMMISSIONER OF POLICE (1992) LPELR 3528 (SC),(1992) 4 SCNJ 113,OGUNDIYAN VS THE STATE (1991) LPELR – 2333 (SC),(1991)3 NWLR (Pt.181)519, AKIGBE VS IOG (1959) 4 FSC 203, ONUBOGU VS THE STATE (1974) 9 SC 1 at 20, BABUGA VS THE STATE (1996) LPELR 701 (SC), (1996) 7 NWLR (Pt.460) 279.
The next question is, what is or are the quality, nature, con, manner and configuration of the totality
12
of evidence before the trial Court on the basis of which the Appellant was convicted and sentenced The Appellants Counsel had premised his submission on wrongful admission of Exhibit “P” and lack of identification of the Appellant as having taken part in the offence of armed robbery leading to the death of the deceased.
The learned counsel to the Appellant planked his submission on the alleged confessional statement (Exhibit) which, according to him, is discredited having been denied by the Appellant himself. The Appellants counsel while submitting that the ingredients of the alleged offence must be proved beyond reasonable doubt, also contended that there were clear contradictions in the evidence relied upon in convicting him, particularly evidence of PW.1 and PW.2, he submitted that it was Wrong for the High Court and the Court below to have relied on such evidence to prove that armed robbery incident took Place.
Sections 28 and 29 of the Evidence Act, 2011 became relevant in the con of this appeal. Section 28 defines confession as: A confession is an admission made at any time by a person charged with a crime, stating or suggesting
13
the inference that he committed that crime.
Section 29 states conditions for making confession relevant.
“(1) In any proceedings a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(3) In any proceedings where the prosecution proposes to give in evidence a confession
14
made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either paragraph (a) or (b) of Subsection (2) of this section.
(5) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not mounting to torture.”
What is the essence of the above provisions There is no ambiguity in the law. Clearly, the law intends that any confessional statement obtained in an oppressive or any Illegal manner is liable to be vitiated for not being voluntary, and is thus inadmissible in law. That was the decision of this Court in STATE VS SALAWU (2011) 18 NWLR (Pt.1279) Pages 580 at 605, Para C-F.
The Appellant contention seems compelling; to the extent that he did not make the confessional statement (Exhibit “P”). However, denial does not make confessional statement inadmissible particularly where there are other forms of evidence before the Court, like in the instant appeal.
The guilt of the Appellant is not premised solely on Exhibit “P” assuming, but without conceding that
15
is was wrongly evaluated. In Nigeria, the law provisions give 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 offence 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.
The law is that, by virtue of the provisions of Sections 28 of the Evidence Act, confessional statement is tenable and admissible.
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
16
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 IvIJSC 141 at 151.
It is admitted that a Court may rely solely on confessional statement, particularly where such is denied. In this case, Exhibit “P” would appear to satisfy the six-way test of a true confession namely:
“i) Whether the confession is the truth;
ii) Whether the confession was corroborated;
iii) Whether the confession was free as can be tested;
iv) Whether the Appellant had opportunity to commit the crime;
v) Whether the confession was possible; and
vi) Whether the confession was consistent with other proved or ascertained facts.”
See KANU VS THE STATE (1952) 14 WACA 30; MBENU VS THE STATE(1988) 3 NWLR (Pt.84) 615; STEPHEN VS THE STATE (1986) (Pt.46) 978; and UDO VS THE STATE (1972) 8-9 S.C. 234; OGUDO VS THE STATE (2011) 12 S.C. (Pt.1) 71 at 79.
17
The essential ingredients of robbery as constituted under Section 2 (1) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 are that: (i) there was robbery or series of robberies; (ii) that each robbery was an armed robbery; (iii) that the Accused person was one of those who took part in the robbery.
The unassailable evidence before the trial Court was in two folds. Exhibit “P”, a confessional statement which though voluntary was denied by the Appellant, and the evidence of other witnesses. Leaving aside the retraction of the confessional statement, Exhibit “P”, which I doubt was even retracted in this circumstance; the evidence before the Court was so overwhelming, as rightly observed by the trial Court and affirmed by the Court below.
On identification, the Appellant had submitted that an identification parade was necessary in the circumstances of the case because the Appellant was never mentioned as one of those who took part in the commission of the offence of robbery. In the instant case, the Appellant’s attempt at overplaying the issue of identification parade is, in my view, cheap and
18
untenable. 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.
Identification parade would have been necessary if the identity of the Appellant was in doubt. That is not the case in the instant appeal. Moreso, the confessional statement shows clearly that he jointly participated in committing the offence that led to the death of the deceased person. The Appellant mentioned the name of other co-accused persons (Fatai Busari, Osuolale Mumuni Adisa and Sunday Okafor and himself) as members of the gang who came from Lagos to Ibadan and carried out the robbery that led to the death of the deceased. How best to identify a self-confessing accused person other than by his self-identification
Clearly, the trial Court and the lower Court
19
have reached sound, unassailable decisions on finding of facts which this Court will not disturb. Frankly, there is no reason to do otherwise than to uphold the decisions of the trial Court and Court below. It is in view of the foregoing that I resolve the sole issue I have formulated in this appeal against the Appellant. I hold that this appeal lacks merit and is accordingly dismissed. The conviction and sentence of the Appellant by the Court below is hereby reconfirmed.
SC.973/2015
