AMIDU LAWAL v. THE STATE (2019)

AMIDU LAWAL v. THE STATE

(2019)LCN/12954(CA)

(2019) LPELR-47517(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/AK/91C/2016

JUSTICE

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria

PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria

Between

AMIDU LAWALAppellant(s)

AND

THE STATERespondent(s)

RATIO

WHETHER OR NOT A CONFESSIONAL STATEMENT OF AN ACCUSED PERSON IS SUFFICIENT TO GROUND A CONVICTION

It is now a settled principle of law that the confessional statement of an accused person alone is sufficient to ground a conviction. See the recent apex Court case of YAHAYA V STATE (2018) 16 NWLR (PT 164) 494 AT 118 PARAS B-D. It however needs to be reiterated that certain conditions need to exist for a conviction to be founded solely on a confessional statement. This was the finding of the Supreme Court in the case of STEPHEN V STATE (2013) 8 NWLR, PT 1355, 153. See also the more recent apex Court case of MUSA V STATE (2018) LPELR 43846 where the Court laid down the principles more succinctly when it held that:
A confessional statement is admissible in evidence and can be acted upon if it is direct, positive and relates to the makers acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged…
The Court went further to hold that:-
The law is settled that where a confessional statement has admitted all the essential ingredients or elements of the offence and shows unequivocally direct and positive involvement of the accused in the crime for which he is charged, the Court can rely on it alone to convict him. PER MAHMOUD, J.C.A.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

WHETHER OR NOT WHERE AN ACT IS CAPABLE OF TWO OR MORE INTERPRETATIONS, THE INTERPRETATION MOST FAVOURABLE TO THE ACCUSED SHOULD BE PREFERRED

The law is well settled that where an act is capable of two or more interpretations, the interpretation most favourable to the accused should be preferred. See the decision of the Supreme Court in the case of OLADELE V STATE (1993) 1 NWLR, PT 269, 294 AT 307, PARAS F – G AND 310, PARAS F H. PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, Amidu Lawal was charged and tried on a three count charge of conspiracy to commit armed robbery, illegal possession of firearms and armed robbery contrary to and punishable under SECTIONS 6(B)(1)(1), (2)(A), 3(1) AND 1(1) AND 2(A) OF THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, CAP RII, LAWS OF THE FEDERATION, 2004 respectively. The case of the prosecution was that on the 27th day of September, 2009, one Dele (still at large) robbed one Francis Okunuwa of his Toyota Hilux Jeep at gun point along Ile-Ife road, Osun State. That the said Dele had conspired with the appellant to commit the said robbery. That after the robbery, the said Dele ran into a traffic jam while trying to escape with the said Toyota Hilux and was forced to abandon the said vehicle in the traffic jam. At the time of the robbery, the victim had raised an alarm which attracted some motorcyclists. They chased the robber but he took to his heels after abandoning the vehicle in the traffic jam.

Meanwhile the appellant who was alleged to have conspired with the robber to commit

the robbery was riding the motorcycle of the alleged robber Dele (still at large) joined the motorcyclists to chase him. He used the opportunity to hide in a banana plantation close to the scene of the robbery. He was arrested from his hideout and taken to the police station.

In proof of its case the prosecution called three witnesses and tendered eight exhibits marked as Exhibits A-H. PW1 and PW2 are police officers who gave evidence of their participation as officers in the investigation of his matter. PW3 gave evidence that the suspect still at large was his driver. That on the date the police were looking for him, he had informed PW3 that he was going out briefly and would soon be back. That the suspect never returned making him believe that the suspect ran away because of the armed robbery for which he was wanted by the police.

The appellant in his own defence in the Court below testified in his own behalf but called no other witness. He tendered one exhibit which was marked as Exhibit 1.

At the conclusion of the case the learned trial judge, Justice R. A. Siyanbola of the Osun State High Court, Ikire in a judgment delivered on the 22nd day

of January, 2014 convicted the appellant on counts 1 and 3. He discharged and acquitted him on the 2nd count of illegal possession of firearms.

Dissatisfied with the conviction and sentence, the appellant in a further amended notice of appeal filed on the 12/03/2018 but deemed on the 22/01/2019 appealed to this Court on three grounds as follows:
GROUND 1
That the decision of the High Court is unwarranted, unreasonable, perverse and cannot be supported having regard to the evidence.
GROUND 2
The Learned Trial Judge erred in law by finding the Appellant guilty of the offence of conspiracy to commit armed robbery.
PARTICULARS OF ERROR
i. The essential ingredients of the offence of conspiracy to commit armed robbery were not proved against the Appellant to justify his conviction by the trial Court.
ii. There was no credible and/or cogent evidence which established beyond reasonable doubt that the Appellant committed the offence of conspiracy to commit armed robbery.
iii. The prosecution did not establish in any way whatsoever that there was an agreement or confederacy between the Appellant and any other person to

commit armed robbery.
iv. The trial Court wrongly relief (sic) on the evidence already marked tendered and rejected to come into the conclusion that the Appellant conspired with the man at large to commit armed robbery.
v. The trial Court wrongly relied on the exhibit already marked tendered and rejected during the trial by the same Court instead of Exhibit H in coming to the conclusion that the Appellant conspired with the man at large to commit armed robbery.
GROUND 3
The Learned Trial Judge erred in law in finding the Appellant guilty of armed robbery.
PARTICULARS OF ERROR
i. There was no cogent and credible evidence to establish that the Appellant took part in the alleged armed robbery.
ii. The trial Court wrongly relied on the Exhibit H in coming to the conclusion that the Appellant participated in the alleged armed robbery.
iii. The prosecution failed in proving the ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt.
iv. The prosecution is under statutory duty to conjunctively prove all the ingredients of the offence of armed robbery beyond

reasonable doubt. However, the prosecution only relied on suspicion and the Learned Trial Judge fell for the cheap suspicion and insinuations in convicting the Appellant.
v. The prosecution failed to call vital witness whose testimony would clearly show whether there was robbery incident on the alleged day of robbery incident, when most especially, the arrester of the Appellant made it public that he only suspects (sic) the Appellant and not that he was sure that the Appellant committed the offence.

Whereof the appellant sought the order of this Court to allow this appeal and set aside the judgment of the trial Court, quash the conviction of the appellant and discharge and acquit the appellant on all counts.

In prosecuting the appeal, the appellant filed a brief of argument on the 27th November, 2017 and a reply on points of law on the 4th of September, 2018 which was deemed on the 22nd January, 2019. In arguing the appeal, Mr. M. O. Folorunsho of counsel for the appellant adopted both briefs as his legal arguments in support of this appeal. In the brief counsel raised a sole issue for determination:

Whether in view of the perceivable or perceptible perversity that is conspicuous in the judgment of the Honourable trial judge, could it be said that the prosecution has proved the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt in such a way that it will devalue the presumption of innocence enshrined in the organic law in favour of the appellant as a Nigerian Citizen. (Grounds 1, 2 and 3)

The arguments of counsel are as contained in the brief of argument. I will refer to it if and as necessary in this judgment. This is necessary because the appellant who testified for himself, called no other witness and tendered only one exhibit wrote a 32 page single spacing brief of argument. It will do well for counsel to always remember the maxim that a brief no matter how beautiful can never take the place of evidence and that it is only an aid and not a binding instrument on the Court is sacrosanct. A brief that is too verbose loses its essence and unproductively tasks the Court. A good brief of argument should be brief, direct, succinct and to the point.

In summary however, the submission of the appellant is that the prosecution

failed to prove the offences charged against the appellant beyond reasonable doubt. That the testimonies of the three prosecution witnesses, PW1 PW3 which amounted to neither direct nor circumstantial evidence does not establish conspiracy as none of the witnesses was an eye witness to any agreement between the appellant and one Dele, still at large. That Exhibit H shows clearly that the agreement between the appellant and the alleged accomplice, Dele was that the appellant should accompany him to the house of his brother who had just returned from overseas. That there was therefore no evidence that the appellant conspired with Dele to rob anyone. Counsel also submitted that the inference drawn by the learned trial judge that the appellant participated in the robbery is not backed by evidence adduced by either of the parties. That Exhibit H does not amount to a confession of commission of the offence(s) charged by the appellant. That there is therefore nothing in the evidence of the prosecution that proves that the appellant committed either or both of the offences of conspiracy to commit armed robbery and armed robbery as charged.

Counsel urged the Court to allow the appeal and set aside the judgement of the trial Court.

The respondent on its part filed a brief of argument in opposition to this appeal on the 26th day of February 2018 but deemed on the 22nd January, 2019. The brief was settled by Dr Surajudeen Ajibola Basiru, the then Hon AG/Commissioner for Justice, Osun State.

In adopting the brief Mr. Dapo Adeniji, Ag Solicitor General, Osun State MOJ for the respondent also raised a sole issue for determination:-
Whether the evidence led by the prosecution at the trial Court supports the conviction of the appellant for the offences of conspiracy and armed robbery?

The full submissions of counsel in support of this sole issue is as detailed out in the brief of argument. I will refer to it if and when necessary. The summary of the submissions of the respondent as contained in their brief of argument is that the respondent adduced enough evidence to prove beyond reasonable doubt the offences of conspiracy and armed robbery against the appellant. That the argument of the respondent that the judgement is perverse is unsustainable as the evidence especially Exhibit H

indicted the appellant. That the confessional statement of the appellant was corroborated in material particulars by the evidence of other prosecution witnesses as well as circumstantial evidence. Counsel urged the Court to dismiss the appeal and to affirm the judgement of the trial Court.

To my mind the issues raised by both parties are the same. That is whether the evidence led by the prosecution proves the offences charged beyond reasonable doubt and therefore supports the conviction of the appellant. I have gone through the briefs of both parties as well as the entire records of proceedings in this matter particularly the judgment of the trial Court. It is clear therefrom that the conviction of the appellant by the learned trial judge was based mainly on Exhibit H, the confessional statement of the appellant. See page 85 line 12 to page 89 lines 4-7 of the printed records. In other words, it is clear from the records that the basis of the conviction and sentence of the appellant by the trial Court is the confessional statement, Exhibit H. The real question to answer in this case therefore to my mind is whether Exhibit H has met with all the conditions

for a confessional statement upon which the Court can base its conviction. It is now a settled principle of law that the confessional statement of an accused person alone is sufficient to ground a conviction. See the recent apex Court case of YAHAYA V STATE (2018) 16 NWLR (PT 164) 494 AT 118 PARAS B-D. It however needs to be reiterated that certain conditions need to exist for a conviction to be founded solely on a confessional statement. This was the finding of the Supreme Court in the case of STEPHEN V STATE (2013) 8 NWLR, PT 1355, 153. See also the more recent apex Court case of MUSA V STATE (2018) LPELR 43846 where the Court laid down the principles more succinctly when it held that:
A confessional statement is admissible in evidence and can be acted upon if it is direct, positive and relates to the makers acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged…
The Court went further to hold that:-
The law is settled that where a confessional statement has admitted all the essential ingredients or elements of the offence and shows unequivocally direct and

positive involvement of the accused in the crime for which he is charged, the Court can rely on it alone to convict him.

For the avoidance of doubt, in determining whether or not Exhibit H meets these conditions of a confessional statement upon which the Court can solely convict, I reproduce the body of it in part as follows:-
.. it was on Sunday, 27th Sept., early in the morning time he told me to took (sic) him with his motorcycle to one of his brothers house that came from Abroad, and both of us went. I am the one that ride (sic) the motorcycle and when we are (sic) going to the place Kunle hold (sic) one black nylon bag but I dont know what was inside the bag. When we got to the junction of the place where Dele collected the vehicle he told me to wait at the junction and only him went to the place after five minute I saw Dele that snatched a white Hilux Toyota from one man and immediately he droved (sic) sped pass him at the junction and when Dele got to the junction he released two shoot (sic) of gun up to scared (sic) people. Then I (started kicked) the motorcycle and I followed the other Okada people

that were chasing Dele to Lagere were (sic) Dele abaundon (sic) the stolen vehicle and took to his heels then I equally abandon Dele (sic) motorcycle to chased (sic) after him with the other Okada people and I was also shouting thif thif (sic) and I followed him to inside one Banana plaintain (sic) before I was arrested by the people around that community and my mission in that particular place I was handed over to the police for interrogation. When we (sic) going to were (sic) Dele snatched car he was recving (sic) called (sic) that he is coming but I did not know the person that called him. I NEVER FOLLOW DELE TO ANY PLACE TO ROBBED (sic) BEFORE THIS IS MY FIRST TIME. I DID NOT KNOW WERE (SIC) DELE GOT THE TWO PISTOL (SIC). (capitals mine)

The capitalized portion of Exhibit H is perhaps the most incriminating. It was what the trial judge relied on to conclude that the statement is an admission by the appellant of having committed the offence. The question to answer to my mind is whether this capitalized portion of Exhibit H is direct, cogent, unequivocal and a clear admission of all the elements of the offence of armed robbery.

In the case of STATE V AJAYI (2016) 14 NWLR PT 1532, 196, the Supreme Court set out the three ingredients that the prosecution must prove to convict for armed robbery:-
1) That there was armed robbery;
2) That the accused was armed and
3) That the accused was armed when he participated in the robbery.
See also the case of ORISA V STATE (2018) LPELR 43896 (SC) where the apex Court affirmed the three ingredients to be proved by the prosecution to establish the offence. There is no doubt from Exhibit H that there was a robbery of a Toyota Hilux Vehicle by one Dele, still at Large with whom the appellant had gone out. It is also evident from Exhibit H that the said Dele was armed and he fired two shots into the air to scare people. The Appellant admitted to having gone out with the said Dele. On the face of Exhibit H all the three ingredients for the offence of armed robbery would appear to have been established. But is Exhibit H cogent and unequivocal? Looking at the statement in Exhibit H, especially the capitalized portion I will without hesitation answer this question in the negative. The statement could mean that this is the first time

the Appellant has gone out with Dele and he Dele was involved in armed robbery. It could also mean that they had gone out together to engage in armed robbery. The position of the Appellant even as at Exhibit H was that the said Dele had asked him to carry him to visit his cousin who had just returned from abroad. There is no evidence that the police investigated this story and found it to false. This failure in my view, negatively affects the probative value to be put on Exhibit H. The law is well settled that where an act is capable of two or more interpretations, the interpretation most favourable to the accused should be preferred. See the decision of the Supreme Court in the case of OLADELE V STATE (1993) 1 NWLR, PT 269, 294 AT 307, PARAS F – G AND 310, PARAS F H. In the instant case I hold that the more favourable interpretation to be given to that statement is the former: that is that the appellant for the first time accompanied the said Dele not knowing that he was going for armed robbery. This position is fortified by the fact that the Appellant in his evidence before the Court completely retracted Exhibit H, his confessional statement. The law

is well settled that while the Court may convict solely on a retracted confessional statement it should look for evidence outside the confession which makes it probable that the confession was true. See the apex Court case of ADISA V STATE (2018) LPELR 463406 (SC). There is no such independent evidence outside the confession that supports or corroborates Exhibit H to warrant a proper conviction of the Appellant thereon. I so hold.

There is the added issue of the appellant being found at the scene of crime or in the banana plantation to where Dele was pursued and the appellant abandoned the motorcycle he was riding. The trial judge made an inference of guilt from this. I find that this point is aptly answered by the appellants counsel in his reply brief. There he referred to the case of ORJI V STATE (2008) 10 NWLR, PT 1094, 31 AT 54, PARAS F G where the Supreme Court held that the mere presence at the scene of crime does not as a matter of law render the person so present guilty of the crime. That there must be clear evidence that either before or at the time of the commission of the offence, the person did something or omitted to do

any such act as aiding or abetting to facilitate the offence. See also the decisions of this Court in ABDULLAHI V THE STATE (2014) LPELR 24007 and KORAU & ORS V THE STATE (2015) LPELR 25917.

I am very conscious of the gravity and high prevalence of armed robbery in our society today. Even at this the Court can and should only convict on unassailable evidence, confessional, circumstantial or direct evidence and not on a mere suspicion no matter how strong. I am also persuaded by the wisdom of the apex Court in the case of BUDE V THE STATE (2016) 12 NWLR PT. 1525, 154 to the effect that the fact that no life was lost cannot diminish the grievous nature of the offence of armed robbery especially as shots were fired to frighten the victim out of his wits. However, I can make bold to use that reason and the added reason that the robbed vehicle was recovered to naturally lean in favour and sympathy with the appellant. This position finds support in the paucity of evidence to prove the ingredients of the offences charged beyond reasonable doubt against the appellant.

In the circumstances I find that the Justice of this case tilts

towards allowing this appeal. This appeal is therefore allowed. Consequently the judgment of Hon. Justice R. A. Siyanbola of the Osun State High Court sitting at Ikire and delivered on the 22/01/2014 is hereby set aside. It is my hope that this narrow escape and the harrowing experience of almost a decade of incarceration awaiting trial has taught the Appellant Amidu Lawal to keep far away from crime. If he fails to heed this gratuitous advice and this golden opportunity of a narrow escape from the hangman, I assure him that the law of Karma will catch up with him and he will pay the proper price next time. In this instance and for the reasons given in this judgment and having allowed the appeal, the appellant Amidu Lawal is hereby discharged and acquitted.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have been priviledged to read in draft before now, the leading judgment of my learned brother Patricia Ajuma Mahmoud, JCA just delivered in this Appeal.

A perusal of the record of appeal alongside the Briefs of Argument filed clearly leads me into a concurrence with the lead judgment that the appeal be allowed for the lack of proof

beyond reasonable doubt of the guilt of the Appellant at the trial Court.

I need to, however, comment in this case. There is no doubt in, my mind, that there are circumstantial evidence raising suspicion on the involvement of the Appellant by his companionship of one Dele and the riding of the co- suspect’s (i.e one Dele’s) motor cycle and indeed the carrying of the said Dele, a person who was said to have shot into the air, snatched a car but abandoned same on being chased by people nearly; and who however escaped into the bush or Banana Plantation, but was also followed by the Appellant herein who claimed, in Exhibit ‘H’ his extra judicial statement to have also joined other people to chase the said Dele. That he was himself arrested at the Plantation by people around and handed over to the police for interrogation as stated by him, was upon strong suspicion.

He appeared to have embarked upon a plot of decor in joining the arresting squad in pursuit of his apparent” comrade.

Sad enough, there was no intensive and discreet investigation by the police with a view to having witnesses who arrested him; the circumstances of arrest,

how long it took him to be in the Banana Plantation and the nature of place and why he did not resist being asked to merely drop the colleague Dele at the junction of a Road, rather than go to the said Dele’s brother, “who had just returned from overseas” as he claimed he was requested to.

The simplistic closure of Criminal investigations does not do any good to our Criminal Justice System and Public Safety. Was the Appellant an innocent carrier or conveyor of a criminal in the circumstance?

It may well be; it may not be; was he acting on a friendly basis; commercial cycle rider? He said he conveyed and moved on. For the possibilities and uncertainty created, the Exhibit ‘H’ even if it were a confessional statement and which does not have proof outside it, making it most probable that it was true and pointing irresistably to the guilt of the accused/Appellant, cannot satisfy the requirement of strict proof beyond reasonable doubt. A merciless scrutiny of the evidence led as enjoined by the Apex Court (Supreme Court of Nigeria) in Shande v. State 2005 SCNJ does not leave a position of an unwavering finger of certainty of guilt of the Appellant.

For the above and the primacy of Section 36 of the 1999 Constitution on the presumption of innocence and the compelling burden of proof of guilt beyond reasonable doubt, I have no reason to depart from the acquittal and discharge as made by my brother, Patricia Ajuma Mahmoud, JCA in the lead.

I share in my learned brother’s thoughtful epistle and admonition to the Appellant, herein, as Karmic visitation is, in the Nature of Justice, and which brooks no empathy or sympathy for ‘creative’ but dishonest tact and gelenic cover of untoward actions.

The continental criminal law system would have sand witched the Appellant in guilt. It is not, however, our brand of jurisprudence but our Evidence Act has other and sufficient provisions for the onus of proof to lie on an Accused person. When will the Prosecutorial Agencies in this country in honesty study enough in the public interest solo, to look at various options in charges to be filed and how to investigate and prosecute them? I say no more, other than to simply concur that the Appeal be allowed.

RIDWAN MAIWADA ABDULLAHI, J.C.A. : I had read before now the lead Judgment just

delivered by my learned brother, PATRICIA AJUMA, MAHMOUD, JCA. In this appeal. I agree with his line of reasoning and conclusions reached therein that the appeal has merit and should be allowed.
I equally allow it. I also abide by the order made therein.

Appearances:

Mr. M. O. Folorunsho with him, Mr. A. M. AbbasFor Appellant(s)

Mr. Dapo Adeniji (Ag SG, Osun State MOJ) with him, Messrs Iyiola Olajubu, A. A. Idowu and P.A. Danbaba (all SC)For Respondent(s)

Appearances

Mr. M. O. Folorunsho with him, Mr. A. M. AbbasFor Appellant

AND

Mr. Dapo Adeniji (Ag SG, Osun State MOJ) with him, Messrs Iyiola Olajubu, A. A. Idowu and P.A. Danbaba (all SC)For Respondent