ALABI TOPE v. THE STATE(2019)

ALABI TOPE v. THE STATE

(2019) LCN/4865(SC)

In The Supreme Court of Nigeria

On Friday, the 31st day of May, 2019

SC.380/2015

RATIO

THE ESSENTIAL INGREDIENTS THAT MUST BE PROVED BY THE PROSECUTION IN ORDER TO SUCCEED IN PROOF OF A CHARGE FOR ATTEMPTED ARMED ROBBERY AND THE METHODS BY WHICH HE MAY PROVE HIS CASE

To succeed in proof of a charge for attempted armed robbery, the prosecution must prove the following ingredients: 1. That there was an attempt to rob by the accused but he was stopped in the process or that he attempted to abet the commission of the offence. 2. That the accused was armed or was in the company of any person who was armed. 3. That the accused in the attempt did some act not of an ambiguous kind, directly towards the commission of the offence charged. See OKON DAN OSUNG V. THE STATE (2012) LPELR – 9720 (SC). The method of carrying out the proof can be any or a combination of the methods, viz: i. Confessional statement of the accused. ii. Circumstantial evidence linking the accused to the crime iii. Evidence of an eye-witness. See Per PETER-ODILI, J.S.C in ORISA V. STATE (2018) LPELR-43896(SC). PER UWANI MUSA ABBA AJI, J.S.C.

DUTY INCUMBENT ON THE TRIAL JUDGE WHERE AN ACCUSED PERSON RETRACTS OR RESILES FROM HIS CONFESSIONAL STATEMENT

The issue of retraction or denial on involuntariness of the confessional statement of the Appellant contained on Exhibits A and C cannot hold water for him. It is nonetheless always cautioned and advised that some independent evidence should be relied upon even though the confessional statement of an accused is sufficient to ground his conviction and sentence. Per NWEZE, JSC in OFORDIKE V. STATE (2019) LPELR-46411 (SC), garnished this point further: where an accused person retracts or resiles from his confessional statement, the trial Court would be perfectly right to admit it and determine the weight to be attached to it in its judgment. For this purpose, it [the trial Court] would, consider issues, such as the ones indicated hereafter. They are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established… PER UWANI MUSA ABBA AJI, J.S.C.

WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT

It is settled law that an accused person can be convicted solely on his confessional statement. If a Court of law comes to the conclusion that a statement made by an accused person satisfies all the legal requirements of a confessional statement, then the charge against the accused must of necessity have been proved beyond reasonable doubt. The reason is simply that the Court can and does convict an accused person solely on his confessional statement. See Per ONNOGHEN, J.S.C in FATAI V. STATE (2013) LPELR-20182(SC). I would have taken a halt here since the Appellant’s case appears knocked off already. However, let me take a little stretch. PER UWANI MUSA ABBA AJI, J.S.C.

CIRCUMSTANCES UNDER WHICH A COURT CAN PROCEED TO CONVICT AN ACCUSED ON A RETRACTED CONFESSIONAL STATEMENT

It is trite that where an accused has resiled from his confessional statement and the Court has, from all the circumstances of the case found reasons to attach such weight to the retracted confession, it can proceed to convict the accused. See OWOLABI KOLADE V. STATE (2017 LPELR 42362 (SC) and EDET ASUQUO BASSEY V. STATE (2012) LPELR 7813 (SC). PER MUSA DATTIJO MUHAMMAD, J.S.C.

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

JOHN INYANG OKORO Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

UWANI MUSA ABBA AJI Justice of The Supreme Court of Nigeria

Between

ALABI TOPE Appellant(s)

AND

THE STATE Respondent(s)

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Ekiti Judicial Division, delivered on 20/2/2015, which affirmed part of the judgment of the High Court of Ekiti State, which convicted and sentenced the Appellant to 5 years imprisonment for house breaking and life imprisonment for attempted robbery, contained in the Charge dated 24/11/2010 at page 9-10 of the record as follows:
COUNT ONE:
That you, Alabi Tope (M), on or about 7th day of April, 2010 at about 1:00am at No. 10 Bolorunduro Street, off Nova Road, Ado-Ekiti in the Ado Judicial Division, broke into the house of one Mrs Ademilua Risikat with intent to commit felony to wit stealing and thereby committed an offence contrary to Section 411(1) of the Criminal Code Act, Cap C38 Vol.4, Laws of the Federation of Nigeria, 2004,
COUNT TWO:
That you, Alabi Tope (M), on or about 7th day of April, 2010 at about 1:00am at No. 10 Bolorunduro Street, off Nova Road, Ado-Ekiti in the Ado Judicial Division, stole a Nec phone, Nokia phone 1208, Motorolla C17, Jewelries, one Desktop Charger, Three Nokia

batteries and the sum of (N35,000.00), properties of one Mrs Ademilua Risikat and thereby committed an offence contrary to Section 390(9) of the Criminal Code Act, Cap C38 Vol. 4, Laws of the Federation of Nigeria, 2004.
COUNT THREE:
That you, Alabi Tope (M), on or about 8th day of April, 2010 at Road 2 zone 6 Olorunda Quarters, Ado-Ekiti in the Judicial Division while armed with offensive weapon to wit: cutlass robbed one Mr Michael Nwaobi of his Nokia phone and thereby committed an offence contrary to Section 1(2)(A) of the Robbery and Firearms (Special Provisions) Act, Cap RII, Laws of the Federation of Nigeria, 2004.

The facts as alleged are that on 8/4/2010, the Appellant with others broke into the house of one Michael Nwaobi with cutlass and sticks at Olorunda Area of Ado Ekiti, Ekiti State. Unfortunately for the Appellant and his accomplices, they were caught by the occupants of the house who engaged them in a fight wherein the intruder injured one of the occupants but the police was alerted and they napped the Appellant before he escaped. He confessed to the crime and also revealed that he broke into the house of one Mrs. Risikat

Ademilua on 7/4/2010, carting away her valuables. He was then arraigned for house breaking, stealing and armed robbery. The prosecution called 4 witnesses while the Appellant testified for himself and confessed that although he went to rob, he did not carry any weapons and did not steal anything.

After the close of the trial, the trial Court convicted and sentenced the Appellant to 5 years and life imprisonment respectively for stealing and attempted armed robbery and struck out Count 2 as unknown to law. On appeal to the lower Court, the conviction and sentence for stealing was set aside while his conviction and sentence for attempted armed robbery was affirmed, hence this appeal by the Appellant.

By a Notice of Appeal, the Appellant formulated 2 Grounds of appeal with their particulars and to argue the appeal, the Appellant filed an Appellant’s Brief on 20/10/2015, wherein he formulated an issue for the determination of the appeal thus:
Whether the Court was correct in affirming the conviction and sentence of the Appellant handed down by the trial Court for attempted armed robbery.

On the other hand, the Respondent filed a Brief of

Argument on 7/3/2018, wherein he also formulated an issue for the determination of the appeal as follows:
Whether the lower Court was not right in deciding that upon the totality of evidence adduced by the Respondent, the case of House Breaking and attempted robbery against the Appellant were proved beyond reasonable doubt and whether the Court of Appeal was right in upholding the decision of the trial Court.

The parties adopted their respective Briefs and asked this Honourable Court for judgment in their favour. Having gone through the records and the evidence therein, this appeal shall be considered on the single issue formulated by the learned Counsel to the Appellant.

ISSUE:
Whether the Court was correct in affirming the conviction and sentence of the Appellant handed down by the trial Court for attempted armed robbery.
The learned Counsel to the Appellant submitted that the Court below relied on 2 pieces of evidence in sustaining the conviction of the Appellant. The 1st is Exhibit A,. which is the confessional statement of the Appellant made to PW1 on 8/4/2010 and the 2nd is the oral testimonies given by PW1, PW2 and PW3. He

contended that for the prosecution to prove armed robbery, the accused must have been armed with firearms or offensive weapons. He cited DIBIE V. STATE (2008) 2 WRN 1, (2007) 3 SCNJ 160. Thus, that PW1 did not arrest the Appellant with any weapon, be it cutlass or stick in the house of PW3. He argued that the Court accepted and relied on Exhibit A because it was not objected to but did not care to examine the statement in the light of other credible evidence as decided in OKASHETU V. STATE (2015) 8 WRN AT 76-77. He also submitted that only Exhibit C and not Exhibit A is available to this Court to access and he urged that the mysteries that shroud Exhibit A ought to be resolved in favour of the Appellant. In conclusion, he submitted that the Appellant was only charged based on the suspicion that he was in PW3’s house to steal and suspicion no matter how strong cannot ground a conviction for any offence. He relied on OHWOVORIOLE, SAN V. FRN & ORS (2001) 13 NSCQR 1. He therefore prayed this appeal to be allowed and to set aside the conviction of the Appellant.

The learned Counsel to the Respondent on the contrary submitted that Exhibits A and C were tendered

without objection, hence its retraction cannot vitiate the proceedings and is an afterthought as decided in USUNG V. STATE (2010) (5) WRN AT 139. He also submitted that by Exhibit C, the Appellant confessed that he went to PW3’s house armed with a cutlass and stick. He argued that PW2 clearly identified Exhibit C as the statement recorded by him being volunteered by the Appellant during investigation. Thus, the administrative practice of confirming/endorsing the confessional statement before a senior police officer is not a legal requirement as affirmed in EDHIGERE V. STATE (1996) 8 NWLR (PT.464) AT 24. In proving the offence against the Appellant, he submitted that apart from the fact that the Appellant was arrested at the scene of crime, he can also be convicted on his confession alone. He cited in support the case of AKPOVETA V. STATE (2008) 9 WRN AT 95. In establishing the ingredients of armed robbery, he cited in support SOWEMIMO V. STATE (2011) ALL FWLR (PT.599) AT 1086. He submitted that in proving that there was robbery which was armed as constituting the first and second ingredients, the evidence of PW3 that he was robbed with a cutlass suffices,

reinforced by Exhibits K-K1, L-L1 and M-M1. On the ingredient that the Appellant was one of the robbers, the evidence of PW3 that he and his brother arrested the Appellant is sufficient. This was also confirmed by the Appellant in his confession. On what constitutes attempted armed robbery as stated in SHURUMO V. STATE (2011) ALL FWLR (PT.568) AT 869, it is clear that the Appellant with the other robbers had done the necessaries to consummate the offence of armed robbery. He contended that the prosecution has no duty to present as a witness the brother of PW3 since it is the law that 1 witness of truth can lead to a conviction as strengthened inAKPA V. STATE (2003) ALL FWLR (PT.420) AT 651. Also, production of items stolen is not one of the elements of the offence as held in GIKI V. STATE (2014) LPELR-22722. He finalized that findings borne out of credible evidence must not be disturbed by an appellate Court. He supported this with IBIKUNLE V. STATE (2007) 2 NWLR (PT.1019) AT 575. He thus prayed that this sole issue be resolved against the Appellant and to dismiss the appeal.

By my understanding of the respective issues formulated by the parties after

a thorough study of the proceedings and the records of the appeal, the Appellant’s lone issue shall be considered herein for determining the appeal.

What comes to fore is the legal tenability and validity of Exhibits A and C sustaining the conviction and sentence of the Appellant by the lower Court with the testimonies of the witnesses of the

prosecution. Exhibits A and C are the confessional statements of the Appellant tendered and admitted in evidence on 9/1/2013 and 22/1/2013 respectively amidst “NO OBJECTION” from the learned Counsel representing the Appellant. See page 17 for Exhibit A and page 20 for Exhibit C. The contention now raised by the Appellant’s learned Counsel to the admissibility of the said Exhibits is not only puerile but a vain afterthought which cannot salvage his case. Does this issue even need to be hammered on When there is no objection to the tendering and admissibility of a document especially, a confessional statement, which is one of the strongest, indubitable, potent and undefendable ways and methods of proving a crime, the matter is settled and sealed. This matter was resounded by his lordship, Per OGUNDARE, JSC in OLALEKAN V. STATE (2001) LPELR-2561(SC), when a similar case came before him for consideration, wherein he said:
“When the voluntariness of a confession is being denied, a trial within trial will be held, but if the statement is voluntarily made then it is admissible by virtue of Section 27 of the Evidence Act Laws of the Federation of Nigeria 1990.

It is however noteworthy that when an accused person alleged that the confessional statement credited to him is made under duress or not made voluntarily by him, objection must then be raised to its admission when the statement is sought to be tendered in evidence and not after they have (sic) been admitted in evidence.”

It is argued by the Appellant that Exhibit C did not contain the endorsement of PW2, the Investigating Police Officer, who took over from PW1. That the endorsement Form was not tendered alongside with Exhibit C to make it admissible in law. It is good that the administrative practice of endorsing the confessional statement of the accused person before a senior police officer be followed so that a gap in the evidence is not created, however, it has not yet received legal requirement for the admissibility of a confessional statement. “The failure to observe the procedure of taking the accused/appellant before a Superior Police Officer in respect to Exhibit has not rendered the statement inadmissible as it is not the requirement of any law. All that the taking or the endorsement of the Superior officer would portend is making proof of its

voluntariness easier and no more.” See Per PETER-ODILI, JSC in EHIMIYEIN V. STATE (2016) LPELR-40341(SC).

The issue of retraction or denial on involuntariness of the confessional statement of the Appellant contained on Exhibits A and C cannot hold water for him. It is nonetheless always cautioned and advised that some independent evidence should be relied upon even though the confessional statement of an accused is sufficient to ground his conviction and sentence. Per NWEZE, JSC in OFORDIKE V. STATE (2019) LPELR-46411 (SC), garnished this point further:
where an accused person retracts or resiles from his confessional statement, the trial Court would be perfectly right to admit it and determine the weight to be attached to it in its judgment. For this purpose, it [the trial Court] would, consider issues, such as the ones indicated hereafter. They are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the

consistency of the said confession with other facts that have been established…

The next lane of caution to follow in considering Exhibits A and C will be to look for independent evidence to corroborate the said Exhibits to the probability of the commission of the crime by the Appellant. In the instant appeal, we are not looking for any circumstantial evidence again. It is on record that the Appellant was caught and arrested at the scene of the crime by virtue of his own confession and the testimonies of PW1, PW2

and PW3. This as a necessity also obviates the need to go into a voyage and search for corroborative evidence! The eyewitness account of PW3 is contained at pages 37-38 of the record, where amongst other things he testified thus:
“I know the accused person. On 8/4/10 I was in my house sleeping with my wife when my wife called me that she saw someone passing from the room to the sitting room… The accused entered through one of the unoccupied rooms when I came out of my room to see the person. I was hit. I then shouted and my brother in the other room heard my voice and came out. He was attacked and was matchetted. The people that came to my house were four in number.
Three of the people ran away, we hold (sic) one of them who was this accused person inside my house. My brother ran out and called O,crack who is a police officer. That our neighbour then called the police station and the police came in their police van. The accused was then taken to the police station. On 10/4/10 the police visited my house on investigation. They took photograph of the damage to my house and the injury to my body. I was the person who hold the accused person…”

By the above excerpt and the evidence of PW1 and PW2, it is clearly established that there was attempted robbery involving the use of cutlass or matchet by the Appellant and his other 3 accomplices that were able to escape and leave the Appellant caught in the net of armed robbery red-handed. Thus, the 1st and 2nd ingredients of attempted armed robbery were proved beyond reasonable doubt.
That the accused in the attempt did some act not of an ambiguous kind, directly towards the commission of the offence charged it is revealed by the evidence of PW3 that he was caught red-handed at the crime scene and taken to the police station. This, undoubtedly and inescapably made him to not to have fulfilled his mission of armed robbery in the house of PW3. Aside the Appellant’s confessional statements vide Exhibits A and C considered above, the Appellant at page 44 during his trial opened up the can of worms albeit some denials and mix ups thus:
“I know sgt Akinniyi Tosin (PW1). He was the policeman who arrested me. I know sgt Adeniju Aguniejika. Did not rob Michael Nwaobi his handset. Nothing was found with me at the point of my arrest When I was arrested, I was

not seen with cutlass, gun or anything stolen. I was arrested at the house of Michael Nwaobi (PW3).”
There were also in evidence the photographs of the injured body of the brother of PW3 as testified by PW3 and the damaged windows which were without objection admitted in evidence as Exhibits K-K1, L-L1 and M-M1 respectively. It is beyond reasonable doubt therefore that there was an attempt to rob by the Appellant but he was stopped in the process when held and arrested, that the Appellant was armed with cutlass being an offensive weapon or in the company of some person(s) armed and that the Appellant in the attempt did some act not of an ambiguous kind, directly towards the commission and consummation of the offence of armed robbery charged. It actually does not matter if he was not armed himself or did not steal or rob anything from the house of PW3, all the ingredients and circumstances point to the fact that he attempted armed robbery which was aborted because of his apprehension.
The non-production of the stolen items and the non-calling of the brother of PW3 who was at the scene of the crime cannot affect the case of the prosecution since it has

been abundantly proved through many other ways and methods beyond reasonable doubt that the Appellant attempted to rob the house of PW3 until his arrest in the house of his victim. The issue is resolved against the Appellant and the judgment of the lower Court setting aside the 5 years imprisonment for house breaking and affirming life imprisonment for attempted robbery delivered on 20/2/2015, is hereby affirmed. Appeal is hereby dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I entirely agree with the reasoning and conclusion of my learned brother UWANI MUSA ABBA AJI JSC in the lead judgment just delivered. Appellant’s real grouse is particularly as to the use of the lower Court made of Exhibit A, and C, his voluntary confessional statement from which he resiled at the trial Court. He also questioned the lower Court’s affirmation of the trial Court’s findings on the testimonies of PWI, PW2 and PW3.

The lower Court, indeed this Court, is handicapped in the face of any complaint against the evaluation of evidence done at trial where the grouse borders on the credibility of the witnesses. The trial Court’s

evaluation, based on the Court’s advantage of seeing and assessing the demeanour of the witnesses in the course of their testimony, usually prevails except if it is glaring that the advantage the Court had is not reflected in its conclusions. See OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-24803 (SC) and EZEANI V. FRN (2019) LPELR 46800 (SC).

In the case at hand, learned appellant’s counsel had not advanced any reasons that disentitle the lower Court from endorsing the trial Court’s findings on the oral evidence of PW1, PW2 and PW3.

Learned appellant counsel’s insistence that the lower Court’s has erred in its reliance on exhibits A and C in affirming the trial Court’s conviction of the appellant is also untenable.

had given the required basis for such finding by the two Courts below. Their concurrent findings do accordingly persist.

It is for the foregoing and the fuller reasons given in the lead judgment that I also dismiss the appeal and affirm the lower Court’s judgment.

KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to read in draft the judgement of my learned brother, Uwani Musa Abba Aji dismissing the appeal as devoid of merit.

The concurrent findings made by the two lower Courts are not perverse. It is too late in the day for the appellant to attack the voluntariness of Exhibits A and C. The time he should have raised the objection was at the point the prosecution applied to tender the said statements.

PW1, PW2 and PW3 testified that the appellant was arrested together with his accomplices who were armed in PW3’s house when he was attempting to rob PW3. He cannot be exculpated from attempted robbery simply because he was not armed. The appeal lacks merit and it is accordingly dismissed.

JOHN INYANG OKORO, J.S.C.: This is an appeal against the concurrent findings of the

High Court of Ekiti State and the Court of Appeal, Ekiti Division. The facts of the case have been well expatiated by my learned brother, Uwani Musa Abba Aji, JSC in the lead judgment of which I had been privileged to peruse before now and with which I am in agreement. Save as it may be necessary to refer to any portion of those facts for the purpose of emphasis, it will not be necessary to repeat the facts in this judgment.

It is trite law that in a criminal trial, where an accused person wishes to attack the voluntariness of a confessional statement, he must raise an objection to the admission of that statement at the point where it is sought to be tendered. Where he fails to object to the admissibility of the statement when it is sought to be tendered, it would be taken that he conceded that he made the statement voluntarily and the content thereof represents what he told the recorder of the statement.
See Osung v State (2012) 18 NWLR (Pt 1332) 256.
In this case, the Appellant failed to object to the admission of Exhibit A and C at the point when they were tendered by the prosecution. He cannot thereafter successfully urge an appellate Court

to discountenance those statements which were rightly admitted and relied on by the trial Court.

Again the testimonies of PW1, PW2, PW3 and even that of the Appellant himself reveal that the Appellant was arrested at the house of Micheal Nwaobi (PW3) while attempting to rob the PW3. But for the fact that he was overpowered and arrested, he would have carried out his mission. The fact that he was not arrested with weapons does not whittle down the fact that he was accompanied by three accomplices who were armed with offensive weapons with intent to rob.
The prosecution was able to proof the charge of attempted robbery against the Appellant by a combination of his own confessional statement which was corroborated by the testimonies of other witnesses and the overwhelming circumstantial evidence. The two lower Courts were therefore right in finding the Appellant guilty for the offences of house breaking and attempted robbery.

I hold the view that the Appellant has failed to show any cogent reason why this Court should interfere with the concurrent findings of the two lower Courts. The finding of the trial Court in this appeal, was based not only on

the Appellant’s Confessional statement, which on its own is sufficient to ground conviction if found to be true, voluntary and unequivocal; but also on a combination of other factors such as the evidence of the prosecution witnesses which corroborated the confessional statement of the Appellant.
See Osetola v State (2012) 12 NWLR (pt 1329). 251; R v. Sykes (1913) 8 LR App. R. 233; Oseni v State (2012) 5 NWLR (pt 1293) 351.
This appeal is lacking in merit and is hereby dismissed. The concurrent findings of the two lower Courts are affirmed by me.
Appeal dismissed.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Uwani Musa Abba JSC, just delivered. I agree entirely with the reasoning and conclusion reached. The appeal lacks merit and it is accordingly dismissed.

Appearances:

Emmanuel Oboh, Esq. For Appellant(s)

Kolapo Olugbenga Kolade, Esq. For Respondent(s)

Appearances

Emmanuel Oboh, Esq. For Appellant

AND

Kolapo Olugbenga Kolade, Esq. For Respondent