TOSIN GABRIEL v. THE STATE
(2014)LCN/7229(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of May, 2014
CA/I/62/2011
RATIO
GENERAL GROUND IN A CRIMINAL APPEAL
It is wrong to couch a general ground in a criminal appeal in such terms. The words “weight of evidence” have no place in a criminal appeal. This has been pointed out by our courts in a number of cases. I need mention here only a few. See Atuyeye v. Ashamu (1987) NWLR Part 49 p.267 at 274; Adeyeri & Ors v. Okobi & Ors (1997) 6 NWLR Part 510 p.534 at 543. The proper expression is “the verdict is unreasonable or cannot be supported having regard to the evidence”, See the statement made in this regard by Ademola, CJF in the case of Elijah Okezie v. Queen (1963) 1 ALL NLR 1 at p.1. Let me reproduce it for ease of reference:
This court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case.
In a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal, it is that the verdict is unreasonable or cannot be supported having regard to the evidence”. per OBIETONBARA DANIEL-KALIO, J.C.A.
WHERE A MISTAKE OR ERROR IN A JUDGEMENT CAN RESULT IN AN APPEAL
It is not every mistake of a court that should result in an appeal. This point was reiterated by the Supreme Court per Musdaphar, JSC (as he then was) in the case of Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) p.65 thus:
“It is now elementary law that it is not every mistake or error in a judgment that will result in an appeal being allowed. It is only where the error is so substantial in that it has occasioned a miscarriage of justice that an appellate court should interfere”.
See also Onajobi v. Olanipekun (1985) 4 SC Part 2 p.156; Oje v. Babalola (1991) 4 NWLR Part 185 p. 267; Ali v. Alesinloye (2000) 6 NWLR Part 660 p.177 at p.213; Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR Part 878 p.631. per OBIETONBARA DANIEL-KALIO, J.C.A.
EVIDENCE: POSITION OF THE LAW WHERE AN ACCUSED RESTS HIS CASE ON THAT OF THE PROSECUTION
Where an accused person rests his case on the prosecution’s case, the position of the law is quite clear. In the case of Ada vs.The State (2008) 13 NWLR Part 1103 p.149, the Supreme Court per Ogbuagu, JSC state thus:
“It is firmly settled that where an accused person rests his case on that of the prosecution, the evidence of the prosecution which has not been controverted by the accused person is deemed to have been accepted or admitted by such an accused person. Such evidence being unchallenged, uncontroverted, a trial court has a duty and in fact, is entitled to act on it where credible”. per OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
TOSIN GABRIEL Appellant(s)
AND
THE STATE Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over a conviction for a criminal offence. By an information filed in the High Court of Ogun State, the appellant faced a 2 count charge of conspiracy to commit armed robbery and armed robbery. The two offences are contrary to Section 6(b) and Section 1(2)(b) respectively of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria 2004. The particulars of the offence of armed robbery indicate that the appellant Tosin Gabriel who was the second accused, and others at large on or about the 8th day of August, 2008 at Ibatefin, Ipokia in Ilaro Judicial Division of the Ogun State High Court whilst armed with guns and knives, robbed one Oladele Gani of the sum of N2,150,000 in cash. The appellant pleaded not guilty to the two counts. The prosecution called two witnesses and tendered two exhibits. The appellant opted not to defend himself and therefore neither gave evidence nor called any witness to testify on his behalf.
After considering the evidence placed before him and hearing the submissions of learned counsel, the learned trial Judge concluded thus:
“What I find established from the totality of the evidence presented by the prosecution is that (a) the accused persons and others now at large conspired to rob and did rob the PW1 on the 8/8/2008 when they snatched the sum of two million one hundred and fifty thousand naira (N2,150,000) from him and (b) that the two accused persons took part in the robbery.”
The trial Judge found that the count of armed robbery was unsubstantiated but was satisfied that a case of robbery was proved beyond reasonable doubt. Consequently, the appellant was convicted and sentenced to 21 years imprisonment effective from the date of his arrest. The judgment was delivered on 28/10/10.
Aggrieved by the verdict, the appellant on 16/11/2010 filed a Notice of Appeal. On 20/3/13 the appellant filed an Amended Notice of Appeal pursuant to the leave of this court to do so. The said Amended Notice of Appeal was deemed on having been properly filed and served on 22/5/13.
The grouse of the appellant as evinced in the grounds of appeal and the particulars thereto are as follows:
Ground 1
1. The learned trial Judge erred in law when he held that:
“Upon the unchallenged evidence of PW1 and the voluntary confessions – Exhibits A and B, I hold the view that the prosecution made out a prima facie case of the offences charged”.
Particulars of Error
The offences charged were conspiracy to commit armed robbery and armed robbery.There was no scintilla of evidence of any arms before the lower court. Exhibits A and B were documentary hearsay evidence.
GROUND 2
The learned trial Judge erred in law when he held that:
“I hereby sentence the two accused persons – Bernard Agosu and Tosin Gabriel to 21 years in prison IHL effective from the date of their arrest”.
Particulars of Error
The learned trial Judge failed to comply with Section 247 of the Criminal Procedure Law when he sentenced the appellant to 21 years in prison
GROUND 3
The learned trial Judge erred in law when he wrongly assumed jurisdiction over a matter brought pursuant to a Federal enactment which can only be prosecuted by the Federal Attorney-General and which only the Federal High Court has exclusive jurisdiction to entertain as provided for under the Constitution.
Particulars of Error
i. The Robbery and Firearms (Special Provisions) Act Cap R.11 LFN 2004 is an Act that makes comprehensive provision for matters relating to the unlawful possession of arms, ammunition and explosives.
ii. It is only the Federal High Court that has exclusive jurisdiction under the Constitution to try offences relating to arms, ammunition and explosives.
iii. Section 11(1) of the Robbery and Firearms (Special Provisions) Act defines ‘firearms’ to include, canon, gun, rifle, carbine, machine-gun, cap-gun, flint-lock gun, revolver, explosive or ammunition or other firearm whether whole or in detached pieces.
iv. Since the offence tried at the lower court was brought pursuant to a Federal Enactment to which only the Federal High Court has exclusive jurisdiction to try, it is only the Federal Attorney-General that can lawfully prosecute same to the exclusion of a State Attorney-General, save with the fiat of the Federal Attorney-General.
v. It is incontrovertibly settled that the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is Supreme and every other law that is inconsistent with it be void.
vi. The jurisdiction therefore conferred on the High Court of a State by Section 9 of the Robbery and Firearms (Special Provisions) Act is inconsistent with the provision of Section 25(1) (L) of the Constitution, and invariably void to the extent of its inconsistency.
vii. The proceedings at the lower court in this case are therefore void ab initio for being conducted without jurisdiction.
GROUND 4
The learned trial Judge’s decision is unreasonable and cannot be supported having regard to the weight of evidence.
Before I proceed, let me make a little comment on ground 4 of the Grounds of Appeal. It appears that it is getting quite common for learned counsel to couch a general ground of appeal in a criminal appeal in the manner done in ground 4 above by stating that “the learned trial Judge’s decision is unreasonable and cannot be supported having regard to the weight of evidence”.
It is wrong to couch a general ground in a criminal appeal in such terms. The words “weight of evidence” have no place in a criminal appeal. This has been pointed out by our courts in a number of cases. I need mention here only a few. See Atuyeye v. Ashamu (1987) NWLR Part 49 p.267 at 274; Adeyeri & Ors v. Okobi & Ors (1997) 6 NWLR Part 510 p.534 at 543. The proper expression is “the verdict is unreasonable or cannot be supported having regard to the evidence”, See the statement made in this regard by Ademola, CJF in the case of Elijah Okezie v. Queen (1963) 1 ALL NLR 1 at p.1. Let me reproduce it for ease of reference:
This court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case.
In a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal, it is that the verdict is unreasonable or cannot be supported having regard to the evidence”.
In view of the fact that ground 4 of the Grounds of Appeal has no place in a criminal appeal, I will disregard it and any issue directly predicated on it. Fortunately there is no issue predicated solely on ground 4
The Appellants Brief of Argument was settled by Robert Emukpoeruo Esq. of Counsel. It was dated 20/3/13, filed on the same date but deemed pursuant to an order of this court, as having been properly filed and served on 22/5/13. The Respondent’s Brief of Argument was settled by J.K. Omotosho, Esq. the learned Deputy Director of Public Prosecution (DDPP) of the Ogun State Ministry of Justice. The Brief was filed on 8/1/14 and deemed as properly filed and served on 14/2/14 by an order of this court made on that day. The appellant filed a Reply to the Respondent’s Brief on 14/2/14. The Briefs were argued on 27/2/2014.
The Appellant’s Counsel formulated three issues for determination in this appeal. The issues are:
1. Whether the court below was in error in relying on and using the evidence adduced by the prosecution against the appellant in holding that there was a prima facie case of the offences charged and that the evidence so adduced was sufficient legal proof beyond reasonable doubt of the offence of Robbery against the appellant. (Distilled from Ground 1 and 4.)
2. Whether the learned trial Judge was right when he sentenced the appellant to a 21 year jail term without complying with Section 247 of the Criminal Procedure Law. (Distilled from Ground 2).
3. Whether the trial Judge rightly applied himself to the law by assuming jurisdiction over a matter brought pursuant to a Federal Enactment, but prosecuted by a State Attorney-General without the fiat of the Federal Attorney-General. (Distilled from Ground 3).
On his part, the learned DDPP on behalf of the Respondent formulated two issues. The issues are as follows:
1. Whether the prosecution has established the offences of conspiracy to commit robbery and armed robbery against the appellant beyond reasonable doubt.
2. Whether the Attorney-General of Ogun State can prosecute offences under the Robbery and Firearms (Special Provisions) Act Cap. R11 LFN 2004 against the appellant without a fiat from Attorney-General of the Federation.
Upon a close scrutiny of the above issues, it will be clear that issue 2 of the Respondent is similar to issue 3 of the Appellant. Issue 1 of the respondent can be embedded in issue 1 of the appellant. The appellant’s issue 2 cannot be clearly identified with the two issues formulated by the Respondent. In order not to leave out any issue, I think the issues formulated by the appellant will serve as the agenda for determining this appeal. I will therefore consider the issues formulated by the appellant’s learned counsel seriatim.
On issue 1, the Appellant’s Learned Counsel submitted that the first point that had to be made is that there is no evidence at all of conspiracy to commit armed robbery or armed robbery. It was submitted that neither the evidence of PW1 nor Exhibits A and B mentioned or referred to arms. It was contended that the trial court was in error when it held that there was prima facie evidence of the offences that the appellant was charged with. The finding of the trial Judge that there was prima facie evidence of the offences that the appellant was charged with, it was argued, is contrary to the finding of the trial court at page 30 of the Record of Appeal.
It was submitted that the prosecution failed to establish even the lesser offence of robbery that the appellant was convicted of. Learned Counsel submitted that the trial Judge relied on Exhibits A and B in convicting the appellant. The said exhibits it was contended are documentary hearsay, their makers, that is to say the appellant and the 1st accused in the lower court having not given evidence. Learned Counsel submitted that the exhibits are inadmissible in any event. He cited Osigwelem v. INEC (2011) 9 NWLR Part 1253 p.425 at 451. We were also referred to the case of Okoro v. The State (1998) 12 SC 145. Learned Counsel contended that Exhibits A and B being documentary hearsay should be expunged from the record.
It was submitted that the effect of expunging Exhibits A and B from the record will be that there will be no evidence to support the conviction of the appellant.
On issue 1, the learned DDPP referred to the evidence of PW1 at page 10-13 of the Record of Appeal and submitted that the evidence of PW1 is sufficient to show that there was a robbery, which evidence he further submitted, is corroborated by Exhibits A and B.
The learned DDPP argued that it is the law that a court can convict an accused person on his confessional statement alone. The cases of Alarape v. The State (2001) FWLR Part 41 p.187 at 1893 and Nwaebonyi v. State (1994) 5 NWLR Part 342 p.138 at p.150 were cited in support. It was submitted that the evidence of PW1 that when the appellant heard that he was to be taken to the police station, he confessed that it was the first accused who sent him to do what he did cannot amount to hearsay but constitutes an admission or confession and same are relevant facts that are admissible. The case of Nwachukwu v. The State (2002) 7 SC (Pt. 1) P.124 at 136 was cited in support.
The learned DDPP submitted that where an accused person rests his case on that of the prosecution, such evidence remains undisputed and a court would be entitled to act on same as uncontradicted evidence. The case of Shazali v. The State (1988) 12 SC Part 11 p.58 at p.62-53 was cited in support.
It was argued that the failure of the appellant to testify will not make his confessional statement, which confessional statement was tendered by the Investigating Police Office (IPO) in his presence, inadmissible.
The learned DDPP submitted that it is trite law that a trial court can convict for a lesser offence if the ingredients of the lesser offence form part of the main offence. We were referred to Section 179 of the Criminal Procedure Law of Ogun State.
In his argument in response to the submissions of the learned DDPP, the appellant’s learned counsel distinguished the case of Nwachukwu v. The State (supra). He insisted that the evidence of PW1 is inadmissible and his testimony that the appellant confessed to him that it was the 1st accused who sent the accused persons to commit the offence amounts to hearsay and is inadmissible.
I will begin by considering the appellant’s submission that the trial court made an error in holding that the prosecution made out a prima facie case of the offences charged. The finding of the trial court under attack in that submission is to be found at page 28 of the Record of Appeal. There the lower court stated thus:
“Upon the unchallenged evidence of the PW1 and the voluntary confessions Exhibits A and B, I hold the view that the prosecution made out a prima facie case of the offences charged”.
The argument of learned counsel for the appellant is that there was no evidence at all of a conspiracy to commit robbery or armed robbery. Here we must bear in mind that the offences in the information were conspiracy to commit armed robbery and armed robbery. On the surface, the appellant’s counsel’s submission is right. However we must read the judgment as a whole in order to properly decipher or understand it. If that is done, it will be quite clear that the statement of the trial judge under attack which suggests that there was a prima facie case of the offences of conspiracy to commit armed robbery and armed robbery was a nothing more than a mere slip or mistake on his part. If the judgment is read as a whole it will be quite clear that the trial judge did not mean that the prosecution had made out a prima facie case of the offences of conspiracy to commit armed robbery and armed robbery. Later in his judgment the true mind of the learned trial judge was revealed, and this was done forthrightly in a manner that left no room for speculation or any vestige of doubt. At page 30 of the Record of Appeal, the trial judge held thus:
“In the premise and having regard to the essential ingredients that must be established to secure conviction for armed robbery, I agree with Mr. Omoniyi learned counsel to the accused persons that the prosecution failed to make out a case of armed robbery. I also agree with him that having regard to the evidence before the court and the circumstances of this case, there are facts upon which this court can convict the accused persons for robbery. I so hold………………..
In the result, having regard to the evidence in this case, I find and hold the count of armed robbery unsubstantiated and fails. I am however satisfied and find proved beyond reasonable doubt the guilt of the accused persons for the offence of robbery”.
(Underlined supplied by me).
In view of the above clear finding of the lower court that the prosecution failed to make out a case of armed robbery, I fail to see the point in the argument of the appellant’s learned counsel, particularly since he also candidly acknowledged that a contrary finding was made by the trial court at page 30 of the Record of Appeal.
It is not every mistake of a court that should result in an appeal. This point was reiterated by the Supreme Court per Musdaphar, JSC (as he then was) in the case of Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) p.65 thus:
“It is now elementary law that it is not every mistake or error in a judgment that will result in an appeal being allowed. It is only where the error is so substantial in that it has occasioned a miscarriage of justice that an appellate court should interfere”.
See also Onajobi v. Olanipekun (1985) 4 SC Part 2 p.156; Oje v. Babalola (1991) 4 NWLR Part 185 p. 267; Ali v. Alesinloye (2000) 6 NWLR Part 660 p.177 at p.213; Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR Part 878 p.631.
I think that the point under consideration made by the appellant’s learned counsel is a minute one that can be rightly described as a storm in a teapot.
The second aspect of issue 1 is whether the evidence adduced by the prosecution was sufficient to prove the offence of robbery beyond reasonable doubt. It is clear from the judgment that in holding that the prosecution established its case, the learned trial judge relied on the unchallenged and uncontradicted evidence of PW1 as well as confessional statements, i.e. Exhibits A and B.
There is no doubt that the evidence of PW1 (see at page 10-12) of the Record of Appeal) was unchallenged. After the witness gave very grave and damaging evidence against the appellant, his learned counsel Omoniyi did not as much as put in one word to challenge same under cross-examination of the witness. Not only that, the defence did not call evidence but instead, relied on the case of the prosecution.
Where an accused person rests his case on the prosecution’s case, the position of the law is quite clear. In the case of Ada vs.The State (2008) 13 NWLR Part 1103 p.149, the Supreme Court per Ogbuagu, JSC state thus:
“It is firmly settled that where an accused person rests his case on that of the prosecution, the evidence of the prosecution which has not been controverted by the accused person is deemed to have been accepted or admitted by such an accused person. Such evidence being unchallenged, uncontroverted, a trial court has a duty and in fact, is entitled to act on it where credible”.
It is obvious that the appellant is deemed to have accepted the evidence of the prosecution. The court can also accept such evidence once it is satisfied that it is credible. The niggling question therefore is: is the evidence of PW1 is credible? The following is a reproduction of his unchallenged evidence:
“PW1: Sworn on the Quoran and states in Yoruba;
I am Oladele Ganiyu. I live at Ifelodun in Agosasa, Ipokia Local Government Area of Ogun State. I am a Petrol Attendant at Atinsola Nigeria Ltd., Idiroko. I now say I am the manager of the filling station.
I know the 1st accused person. He was a petrol attendant in our company at Ijofin. I don’t know the 2nd accused person until this incident happened. I remember 8th August, 2008. On that day, after we closed for the day, we did account of the sales for the day. We packed the money into two bags. The first bag contained Two Million, One Hundred and Fifty Thousand Naira (N2,150,000.00). The second bag contained One Million, Eight Hundred Thousand Naira (N1,800,000.00). It was myself, the 1st accused and others that did the account at the filing station that day.The total sum in the two bags was Three Million, Nine Hundred and Fifty Thousand Naira (N3,950,000.00). I put the two bags on a motor cycle with the intention of taking the money to my Director’s house in Idiroko. The Motor-cycle is mine, I did not hire it. As I was going to Idiroko and I got to Ibatefin, I suddenly saw three people on a Bajaj Motorcycle. They crossed me down. The three of them came down from the motorcycle. They pushed me and the machine with money down. They rushed me with blows and the two bags fell down from my hands. When the bags fell down, they took the one that contained two million and one hundred and fifty thousand naira (2,150,000.00). They tried taking the second one but I struggled with them. As I was struggling with them and shouting Ole, Ole (thief, thief) people that were passing by stopped to help and rescue me from them. When……….. escaped with the bag containing two million, one hundred and fifty thousand naira (N2,150,000.00.). The third person wanted to escape on the Bajaj machine they brought but he was apprehended by the people that came to my rescue. The second accused is the person that was apprehended. (Witness identified the 2nd accused as the person apprehended).
As the 2nd accused was apprehended, the 1st accused showed-up. When he got there, he asked the people to release the 2nd accused and the machine, that the matter will be settled. He suggested that they should go to the Baale’s house in Ibatefin for settlement. The people did not agree with his suggestion. They insisted they will take the 2nd accused to the police station. When the 2nd accused heard he will be taken to the police station, he said he will confess. He said it was the 1st accused who sent them to do what they did. The 1st accused admitted that he sent them and pleaded that we should settle it there. We were on it when the police patrol team – (Special Anti-Robbery Squad) met us there. The people explained what happened to the patrol team and handed the 1st and 2nd accused person over to them. I made statement to the police on the incident”.
I see nothing incredible in the above evidence of PW1, and I cannot fault the trial judge for accepting it.
Now, the appellant’s counsel in his address in response to the respondent’s address submitted that the evidence of PW1 is hearsay and therefore inadmissible. I do not accept that the evidence of PW1 is hearsay. His evidence is that the appellant said that he would confess when told that he would be taken to the police. PW1 further testified that the appellant said that it was the 1s accused that sent them to commit the robbery. What the PW1 heard the appellant say cannot establish the truth of what the appellant said. That however does not mean that the appellant did not make the statement to the PW1. He did. To that extent, the evidence of PW1 is not hearsay and is admissible.
In the case of Subramanian v. Public Prosecutor (1956) 1 WLR 965 at 969 hearsay evidence was described in the following words:
“Evidence of a statement made to a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made”.
See also Arogundade v. The State (2009) 6 NWLR Part 1136 p.165.
Clearly the evidence of PW1 if I may reiterate, is not hearsay and is admissible in that it established the fact that the statement was made by the appellant. I therefore find that the trial judge is entitled to act on the evidence of PW1.
By way of a footnote, if as submitted by the learned counsel of the appellant that the evidence of PW1 was a figment of his imagination, why did learned counsel not challenge him at the trial court when he had the chance to do so? Why throw in the towel as it were, by refusing to cross-examine the witness? The learned trial judge cannot be faulted for relying on the evidence of PW1.
Appellant’s Learned Counsel described Exhibit B, the appellant’s statement to the police as documentary hearsay because the maker, that is the appellant, did not give evidence.
Exhibit B is a confessional statement being an admission made by the appellant who was charged with a crime, stating or suggesting the inference that he committed the crime. See Section 27(1) of the Evidence Act. Now a confession if voluntary is deemed to be a relevant fact and is against a person who made it. See Section 27(2) of the Evidence Act.
Exhibit B having been tendered by PW2 as a confessional statement of the appellant, the proper thing that the appellant or his learned counsel should have done if they contest it is to object and not to keep mum.
The appellant and his counsel cannot remain mute in such a sensitive matter only to find their voice on appeal. This ex post facto rationalization is not an option in my view, As pointed out by the Supreme Court in the case of Oniwumero v. State (1991) 4 NWLR Part 186 p.426.
“If the accused person resiles from his confessional statement it is his function to explain to the court as part of his defence”
The appellant if he was resiling from his confessional statement should have explained why in his defence. He however offered no defence. I cannot fault the learned trial judge for accepting the evidence of PW1 and relying on same or for acting on Exhibits A and B. Issue 1 is resolved against the appellant.
I now turn to Issue 2 which is whether the trial judge was right when he sentenced the appellant to 21 years imprisonment without complying with Section 247 of the Criminal procedure Law. The argument of the appellant’s learned counsel on this issue is this issue is simply that the lower court failed to follow the procedure laid down by Section 247 of the Criminal Procedure Law in sentencing the appellant.
The respondent’s learned counsel in reply, submitted that non-compliance with Section 247 of the Criminal Procedure Law will have no effect on the proceedings.
Section 247 of the Criminal Procedure Law Vol.1 Laws of Ogun State 2006 provides as follows:
“If the court convicts the accused person or if he pleads guilty, it shall be the duty of the registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law but the omission of the registrar so to ask him or his being so asked by the judge or magistrate instead of the Registrar shall have no effect on the validity of the proceedings”.
The above provision clearly puts the duty of asking if an accused person has anything to say before sentence is passed on him on the registrar not the judge. However, it is clear from the provision that should the registrar omit to ask the question, such omission will have no effect on the proceedings. It is also clear from the provision that if the judge whose business it is not asks the question, his doing so will also have no effect on the proceedings. It is clear therefore that Issue 2 does not arise.
I now turn to the third and final issue. On this issue, learned counsel to the appellant argued that the charges against the appellant were brought under a Federal Act, the Robbery and Firearms (Special provisions) Act and as such the Federal High Court has exclusive jurisdiction over the matter under Section 251(1)(L) and Section 251 (3) of the 1999 Constitution. It was also his submission that it is only the Attorney-General of the Federation that can prosecute the matter and that the Attorney-General of a State can only prosecute it with a fiat from the Attorney-General of the Federation.
In his own argument the learned DDPP urged that Section 9 of the Act gives the Attorney-General of a State power to prosecute offences under the Act. It was also his submission that robbery is not an item on the exclusive or concurrent legislative lists but is a residual matter. The case of Tanko v. The State (2009) 4 NWLR Part 1131 at 430 was relied upon. The pronouncement of the Supreme Court in the case of Tanko v. The State (supra) at page 454 – 455 totally resolves issue 3. I will reproduce part of the judgment of Aderemi JSC in that case. Said his Lordship:
“The grouse of the appellant in this appeal as I have pointed out is that the officials of the Ministry of Justice of a State cannot prosecute a case of armed robbery in a State High Court. Let me quickly say that I have had a close study of the contents of Second Schedule Parts I and II and I agree with the submission of the respondent that the offence of armed robbery is neither in the exclusive list or the concurrent list. It therefore can be at no other place other than the realm of residuary matters which is within the competence of a State Assembly to legislate on. Niger State has in Sections 296 to 307 of its Penal Code Cap 94 legislated on robbery. Before I come to the logical conclusion which ought to be reached from the combination of all the provisions of the Constitution and Act which I have reproduced supra, I wish to make reference to Section 211(1) of the Constitution of the Federal Republic of Nigeria, 1999 dealing with Public Prosecutions, it reads:
“211(1) The Attorney-General of a State shall have power –
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court-martial in respect of any offence created by or under any law of the House of Assembly”.
From the provisions quoted supra, the only conclusion which must be reached and which I now reach is that not only does a State High Court have the jurisdiction to try cases relating to armed robbery the officials of the Ministry of Justice of a State are eminently qualified to prosecute the offence of armed robbery in any High Court of a State. Let me also add that it will even be incongruous to the concept of federalism, which we practice, to contend otherwise”.
The position of the law having been properly and lucidly stated by the Supreme Court above, it will be extreme foolhardiness to hold a contrary view. The case was rightly prosecuted in the High Court of Ogun State by State Counsel of the High Court of that State.
All said, I have come to the conclusion that this appeal is lacking in merit. It is hereby dismissed.
MONICA B. DONGBAN-MENSEM, J.C.A.: There is a legal principle which reposes in the learned trial Judge, the power to draw inference in addition to a credible fact place before the court. (Section 6(6) (a) 1999 Constitution of the Federal Republic of Nigeria (as amended)). The said principle renders precarious, the election of the accused person to rest his case on that of the prosecution. This opinion of mine is premised on the danger to the Appellant, as in this appeal, taking himself out of the option of rendering an explanation where the need arises. Ogbuagu, JSC captured the scenario graphically in the case of Ada v. The State (2008) 13 NWLR (Pt. 1103) p.149, where my lord held that;-
“it is firmly settled that where an accused person rests his case on that of the prosecution, the evidence of the prosecution which has not been controverted by the accused person is deemed to have been accepted or admitted by such an accused person. Such evidence being unchallenged, uncontroverted, a trial court has a duty and in fact, is entitled to act on it where credible”.
By the testimony of PW1 which stands uncontradicted, the Appellant is said to have taken over and initiated negotiation with the irate crowd which had arrested the culprits caught in the act of committing the offence. One would wonder, what was his interest? This question or a similar one could not be explained by the Appellant who had elected to rest his case on that of the prosecution. He elected the right to silence under section 36(5) & (11) of the 1999 Constitution of the FRN (as amended). Often, in citing the said section, some learned Counsel close their minds to the legal principle of inference from established facts, silence and the demeanour of a party before the court. (See Nafiu Rabiu v. The State (1982) NCLR pg. 293, (1981) NCR Pg.4 @ 50).
These saliant principles which are inherent in the judicial officer could be heightened when situations which should ordinarily he explained are not addressed. Sometimes silence is not golden!
With these few words, I wholly and fully adopt in addition, the lead judgment prepared by my learned brother Obietonbara Daniel-Kalio, JCA. This appeal is dismissed.
HARUNA SIMON TSAMMANI, J.C.A.: I was privileged to read before today, the judgment delivered by my learned brother, Obietonbara Daniel-Kalio, JCA.
The germane issues that came up for determination in this appeal were adequately considered and resolved by my learned brother. I only wish to comment briefly on the nature of confessional statement of an accused person in a criminal trial. A confessional statement as defined by Section 28 of the Evidence Act, 2011, is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that the person making the admission, committed the crime for which he is charged. Such statements which have been validly proved at the trial may be sufficient, either alone or along with other facts to prove the guilt of an accused person. The fact that the maker of such statement chooses not to testify at the trial will not make such confessional statement, a documentary hearsay. In Okoro v. The State (supra) cited by learned counsel for the Appellant, the statement in question (Exhibit E) was the statement of a witness and not that of the accused person. In Osigwelen v. INEC (supra) also cited by learned counsel for the Appellant, the issue that arose was on presumption of authenticity of a document. It had nothing to do with admissibility of confessional statements of accused persons.
On the issue whether the trial court had no jurisdiction to hear and determine the matter, it is clear that the matter has since been settled in a number of cases, and in particular the case of Tanko v. The State (2009) 4 NWLR (Pt. 1131) p.430. It is now settled that, the offence of armed robbery being a residual matter under the Legislative List of the 1999 Constitution of the Federal Republic of Nigeria, the Robbery and Firearms (Special Provisions) Act (supra), is deemed an existing Law of a State by virtue of Section 315 of the 1999 Constitution. Consequently, an Attorney-General of a State or officials under his office have the power to institute and undertake the prosecution of the offence of armed robbery under the Robbery and Firearms Act (supra); and the High Court of a State invariably has the jurisdiction to hear and determine such action. See also Amoshima v. State (2011) 14 NWLR (Pt. 1268) p.530 at 556-559 per Onnoghen, JSC, and Ikechukwu Okoh v. The State (2008) LPELR-8352 (CA) per Lokulo-Sodipe, JCA.
Appearances
Robert Emukpoeruo Esq.For Appellant
AND
Abimbola Akeredolu (Mrs.) Attorney-General Ogun State Ministry of Justice with
J. K. OMOTOSHO Deputy Director Public Prosecution Ogun State Ministry of Justice and
C. S. HUNPE (State Counsel)For Respondent
