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ABAYOMI v. STATE (2022)

ABAYOMI v. STATE

(2022)LCN/15938(CA) 

In the Court of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/IB/413C/2018

Before Our Lordships:

Folasade Ayodeji Ojo Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

AMUDA ABAYOMI APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE REQUIREMENT OF THE COURT WHERE A CHARGE CONTAINS OFFENCE OF CONSPIRACY AND SUBSTANTIVE OFFENCE

It is settled law that where the charge contains offence of conspiracy and substantive offence, the approach is to first deal with the substantive offence before determining how far the offence of conspiracy had been made out by inference from the substantive offence. This is because a charge of conspiracy, which is difficult to prove by direct evidence, automatically fails where the substantive offence has not been established. See AGUGUA V. THE STATE (2017) LPELR-42021(SC), per Ariwoola, JSC at page 13, para. A, OSETOLA & ANOR V. STATE (2012) LPELR-9348(SC), per Ariwoola, JSC at pages 27 – 28, para. E and JIMOH V. THE STATE (2019) LPELR-48089(CA), per Talba, JCA at pages 17 – 18, para. F.

The approach to deciding this appeal must therefore start with a determination of the propriety of the trial Court’s finding on the substantive offence of armed robbery before determining whether the offence of conspiracy was properly sustained by the trial Court.
PER MOHAMMED, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

It is elementary law that in criminal trials, the burden of proof is always on the Prosecution to prove the offence and establish the guilt of the Defendant beyond reasonable doubt. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999; Section 135(1) & (2) of the Evidence Act, 2011 and ISAH v STATE (2017) LPELR-43472(SC), per Peter-Odili, JSC at pages 28 – 29, para. F and DANJUMA v STATE (2019) LPELR-47037(SC), per Bage, JSC at pages 13 – 17, paras. C – C. 

Proof beyond reasonable doubt does not however mean proof beyond all shadow of doubt. Rather it means no more than evidence strong enough to leave only a remote possibility in the defendant’s favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable.” See MILLER v MINISTER OF PENSIONS (1947) 2 All ER 372 and BAKARE v THE STATE (1987) LPELR-714(SC), per Oputa, JSC at pages 10 – 11, para. D – D. PER MOHAMMED, J.C.A.

ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

In a charge of armed robbery such as the one in the instant appeal, the Prosecution is required to establish beyond reasonable doubt the following ingredients:
(i) that there was a robbery or series of robberies;
(ii) that the robbery was an armed robbery;
(iii) that the Appellant was one of those who took part in the armed robbery.
See OGU v COP (2017) LPELR-43832(SC) per Kekere-Ekun, JSC at pages 23 – 24, para. F, STATE v FADEZI (2018) LPELR-44731(SC) per Sanusi, JSC at pages 10 – 11, para. E, OSUAGWU v STATE (2016) LPELR-40836(SC), per Nweze, JSC at pages 12 – 13, para. E, and ATTAH v STATE (2010) LPELR-597(SC), per Adekeye, JSC at page 38, para. A.
PER MOHAMMED, J.C.A.

THE REQUIREMENTS IN PROVING THE COMMISSION OF A CRIME

It is also settled law that the commission of a crime is established through any or a combination of three ways, namely –
(i) by direct evidence of eye witness(es);
(ii) by confessional statement of the defendant;
(iii) by circumstantial evidence.
See ADEYEMO v STATE (2015) LPELR-24688(SC), per Ogunbiyi, JSC at page 16, paras. E – E, BILLE v STATE (2016) LPELR-40832(SC), per Ngwuta, JSC at page 15, para. A, OGOGOVIE v STATE (2016) LPELR-40501(SC), per Peter-Odili, JSC at page 11, para. B and OLAOYE v STATE (2018) LPELR-43601(SC), per Sanusi, JSC at page 13, para. C.
PER MOHAMMED, J.C.A.

THE POSITION OF LAW ON RAISING AN OBJECTION TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT

Now, it is settled law, as borne by several judicial authorities, that an objection to the voluntariness of a confessional statement must be timeously raised at the point the statement is being tendered in evidence and not after it has been admitted in evidence. In BASSEY V. STATE (2019) LPELR-46910(SC), the Supreme Court, per Peter-Odili, JSC restated this legal principle at pages 28 – 31, para. F, when the Apex Court held:
See Oseni V. The State (2012) Vol. 208 LRCN 151 at 183 and 184A. The Court in considering the principle on admissibility of extra-judicial statement or confession of an accused person held inter alia: “Another principle of the criminal law which has been consistently repeated in our law report is: at what time does an accused person object to the admissibility of a statement credited to him as a confession? This Court in its several decisions answered the question in the following words: the question of the voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statements were tendered without any objection from the defence. None of the prosecution witnesses were cross-examined as to their voluntariness. It was until the prosecution had closed its case and the appellants were testifying in their own defence in the witness box that the issue was belatedly raised. The trial judge was right to dismiss this aspect of the defence case as an afterthought having regard to the qualitative evidence tendered by the prosecution and accepted by the trial Court on the subject.” Also my Lords, in the case of Egharevba V. The State (supra) at page 213 AF, this Court reiterated the above principle when it held inter alia as follows: “Once a confessional statement is tendered and admitted without objection by the defence, it is good evidence and can be relied upon. The Court can even utilize it alone, place a conviction without corroboration even if the appellant had retracted the making thereof”. At the defence stage where the circumstances surrounding the making of the statement of the appellant is being raised is too late and would not affect the admissibility of the confessional statement Exhibit B.
See also ALO v STATE (2015) LPELR-24404(SC), per Ogunbiyi, JSC at pages 24 – 25, para. F, OLALEKAN V. STATE (2001) LPELR-2561(SC), per Ogundare, JSC at pages 14 – 15, para. E, ISONG v STATE (2016) LPELR-40609(SC), per Kekere-Ekun, JSC at page 28, para. D, ANIEHE v STATE (2021) LPELR-55017(CA), per Mbaba, JCA at pages 24 – 17, para. C and AFOLABI V. STATE (2014) LPELR-22249(CA), per Iyizoba, JCA at pages 34 – 36, para. B. PER MOHAMMED, J.C.A.

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): As the third defendant, the Appellant herein was arraigned with three others, Odesina Femi, Dimeji Bamgbose and Dele Olonade, before the High Court of Ogun State (the trial Court) on a three count charge of conspiracy to commit armed robbery, armed robbery and receiving stolen property, contrary to Sections 1(2)(a) and 5 of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004. Upon a plea of not guilty by the Appellant and his co-defendants, the Prosecution called seven witnesses and tendered several exhibits. The Appellant and his co-defendants testified in their own defence. In its judgment delivered on the 28th of June, 2018, the trial Court found the Appellant guilty of the offences of conspiracy to commit armed robbery and armed robbery, with which he was charged and sentenced the Appellant to death by hanging. The judgment of the trial Court is at pages 187 – 198 of the Record of Appeal.

​Dissatisfied with the judgment of the trial Court, the Appellant brought this appeal vide an initial Notice of Appeal filed on 20th of September, 2018, which is at pages 199 of the Record of Appeal. This was amended vide an Amended Notice of Appeal filed on 21st February, 2019, which was deemed properly filed by this Court on 17th September, 2020. The Record of Appeal was transmitted within time on the 5th of October, 2018.

Parties filed and exchanged briefs of argument which were adopted on the 24th of January, 2022, the day the appeal was heard. The Appellant’s Brief of Argument was filed on the 30th of September, 2020 and deemed properly filed on the 24th of January, 2022. That of the Respondent was filed on the 20th of September, 2021 and also deemed properly filed on the 24th of January, 2022. No reply brief was filed by the Appellant.

The Appellant distilled two issues for determination, which were:
1. Whether the Prosecution has conclusively proven the case beyond reasonable doubt.
2. Whether from the totality of the evidence adduced, the lower Court has evaluated the admissibility, credibility, consistency and veracity of the evidence.

On the part of the Respondent, the following sole issue was formulated for determination:
1. Whether from the totality of evidence adduced at the trial, the Prosecution has proved the offence of conspiracy to commit armed robbery, armed robbery and robbery against the Appellant beyond reasonable doubt.

From the issues raised by the parties, it appears to me that the two issues raised by the Appellant are essentially challenging the evaluation of the evidence by the trial Court and whether from the totality of the evidence, the Prosecution has proved its case against the Appellant beyond reasonable doubt. In my view, the two issues can be comfortably considered and resolved within the sole issue raised by the Respondent. I shall therefore adopt the sole issue raised by the Respondent in determining this appeal.

ISSUE FOR DETERMINATION:
Whether from the totality of evidence adduced at the trial, the Prosecution has proved the offence of conspiracy to commit armed robbery, armed robbery and robbery against the Appellant beyond reasonable doubt.

APPELLANT’S SUBMISSIONS:
The learned Counsel for the Appellant cited Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 2004 which provides for the offence of armed robbery, Section 36 of  the Constitution of the Federal Republic of Nigeria, 1999 which provides that for presumption of innocence, as well as Section 135(2) of the Evidence Act, 2011 which lays burden of proof on the Prosecution. Relying on the cases of DELE GABRIEL V. THE STATE (2010) 6 NWLR (Pt. 1190) 280; and WOOLMINGTON v DPP (1935) AC 462, he submitted that the Prosecution was not able to conclusively prove the guilt of the offence of armed robbery against the Appellant. Citing ADEBAYO OJO V. THE STATE (2018) LPELR–44699(SC), STATE V. SALISU ISIAKA (2013) LPELR–20521(SC) and OSUAGWU v STATE (2013), wherein the ingredients of the offence of armed robbery were stated, he argued that the lower Court found the Appellant guilty without sufficient evidence to prove/establish the ingredients of the offence. He pointed out that PW3 who was called by the Prosecution testified that a gang of robbers came to her house and robbed her, her children and her aged mother and took six phones, jewelry, some documents and her daughter’s ATM, and PW3 also stated that the 1st Defendant beat her up when they could not get any money from the house. He submitted that this was what the Prosecution solely relied upon to establish that there was a robbery.

Counsel submitted that even as there was an identification parade conducted at the station in which PW3 was able to identify the 1st Defendant as one of the robbers who robbed her, she never testified that she was robbed by the Appellant (3rd Defendant) or said she had ever seen the Appellant before the robbery. He argued that the Prosecution had failed to prove the element of armed robbery against the Appellant as there was no credible evidence to link the Appellant to the crime.

It was also the contention of the learned Counsel for the Appellant that there are contradictions in the testimonies of PW3 and PW7. He pointed out that while PW3 testified in chief that the 2nd and 3rd Defendants robbed her, PW7 stated that it was the 1st and 2nd Defendants who robbed PW3. He argued that this contradiction has successfully raised doubt as to whether the Appellant (the 3rd Defendant) was involved in the said robbery.

Learned Counsel for the Appellant relied on the cases of OKUNADE V. STATE LPELR (2015) SC. 82/2012, per Okoro, JSC; MBANG V. THE STATE (2010) 7 NWLR (Pt. 1194) 431 – 451 and HAMZA V. STATE (2019) 16 NWLR (Pt. 433), para. 4, to the effect that a confession is admissible if it is direct and positive and relates to the defendant’s own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. Counsel argued that the manner at which the Appellant’s confessional statement was taken raises doubt of its voluntariness and cannot be said to have been positively taken, as the Appellant was fettered and under duress. He submitted that the learned trial judge failed to test the veracity and voluntariness of the alleged confessional statement. He further submitted that the trial Court solely relied on the evidence of the Prosecution when it held that “……their confessional statements were voluntarily made in my view and they pass the six way test of truth.”

Learned Counsel also relied on USMAN V. STATE (2019) 15 NWLR (Pt. 1696), paras. C – H and AWOSIKA V. STATE (2018) 15 NWLR (P. 465. PARAS. B – D), to the effect that where there are contradictions in the evidence adduced by the Prosecution and such contradictions are material and goes to the root of the case, would, if allowed, lead to a miscarriage of justice. He argued that the contradictions in the testimonies of the Prosecution witnesses are material and they vitiate the conviction made by the trial judge. He finally submitted that there was no evidence that linked the Appellant to any of the counts charged and the Prosecution failed to prove its case against the Appellant beyond reasonable doubt. He contended that where there is doubt in the case of the Prosecution, such doubt should be resolved in favour of the Appellant.

Learned Counsel cited AKOSILE V. STATE (1972) 5 SC 332, and submitted that the Prosecution had failed to identify the Appellant as part of the robbers as charged in count 5 of the amended charge considering that an identification parade was conducted on 22nd March, 2013 to identify the robbers that robbed PW3 and PW3 had successfully identified the 1st accused person. He argued that the evidence of identification had failed to establish the guilt of the Appellant and no evidence linked him to the commission of the offence of armed robbery and the decision of the trial Court in convicting the Appellant amounts to a miscarriage of justice. He urged the Court to allow the appeal.

RESPONDENT’S SUBMISSIONS:
Arguing per contra, learned Counsel for the Respondent submitted that the burden is on the Prosecution to prove the guilt of the Appellant. He cited ABIRIFON V. THE STATE (2013) 9 SCM PAGE 1 at 5, NWATURUOCHA v THE STATE (2011) 12 SCM (Pt. 2) 265 at 269. He further referred to OSETOLA V. THE STATE (2012) 12 SCM (Pt. 2) 347 at 365 – 366, on the principle that where there is a charge of a substantive offence and the offence of conspiracy, the substantive offence should be considered first before the offence of conspiracy. He referred to the case of OSUAGWU v THE STATE (2013) LPELR–19823(SC), per Rhodes-Vivour, JSC, where the ingredients of the offence of armed robbery were restated.

On the first ingredient that there was armed robbery, learned Counsel submitted that there were series of robberies in March and May 2013 at Abule Ojere, Abeokuta, Ogun State and this was well stated in Exhibits 1, 2, 3, 4, 5, 7, 13, 13A, 13B, 13C, 13D and 13E. He added that this ingredient is not in issue in this appeal and urged this Court to hold that this ingredient was proved beyond reasonable doubt. On the second ingredient of armed robbery, he stated that from PW3’s testimony, it is evident that the Appellant was in company of another on the days of these robberies. He added that PW3 had given a vivid description of the performance of each member of the gang while they were in her house and PW3 was said to have identified the Appellant as the one who stood with her mother and children in the room they were dragged to. Counsel pointed out that PW3’s testimony was not discredited or controverted under cross-examination. He referred the Court to pages 90 – 93 of the Record of Appeal.

Learned Counsel submitted that a careful perusal of Exhibits 2 and 3 will show that the exhibits aptly corroborated the statement of the Appellant in Exhibit 14. He argued that the statements of the complainant and the Appellant’s confessional statement established beyond reasonable doubt that the Appellant and others had firearms. He pointed out that PW3 had recognized the Appellant and the 1st accused person as one of those that robbed her on the 22/3/2013 in her house while holding a small pistol. He added that although PW3 did not expressly mention the Appellant’s name, she stated that while the 3rd one was in my own room and the Appellant had in Exhibit 15 stated that PW3 and some others were their victims of the robbery on the 22/3/2013. He referred the Court of page 91 of the record. He argued that even if the Appellant had denied being in possession of a gun, the mere fact that he was among those armed at the time of the robbery has established the ingredient beyond reasonable doubt. He added the Appellant was apprehended by PW2 with a gun and four cartridges which the 1st accused person confirmed to PW7 as his own. He referred to pages 46 – 48 of the record of appeal and urged the Court to hold that the Appellant was among those armed at the time of the robbery on 22/3/2013.

Counsel submitted that apart from PW3 being able to identify the Appellant as one of the robbers, the Appellant in his confessional statement placed himself at the scene of the crime (Exhibit 15). He cited the case of ADEYEMI VS. THE STATE (2014) 8 SCM Pg. 34 at 55 Para. E – H, per Fabiyi, JSC, to the effect that there is no evidence that is stronger than a person’s own admission or confession. He submitted that the fact that the complainants were not called as witnesses will not vitiate the Prosecution’s case. He cited Section 39 of the Evidence Act, 2011 and submitted that this Court can conveniently rely on Exhibits 13, 13A, 13B, 13C, 13D, 13E, the statements of the victims of the armed robbery tendered at the trial Court. He submitted that any document tendered and admitted as exhibit forms part of the Prosecution’s case which the Court must consider.

He stated that there are no material contradictions in the evidence of PW1 and PW3 who are part of the victims and eyewitnesses to the robbery. He cited MICHAEL EBEINWE v THE STATE (2011) 3 SCM 46 at 47, to the effect that not all discrepancies, contradictions and or inconsistencies in the evidence of Prosecution witnesses will affect the substance of a criminal case that has been proven with credible and unchallenged evidence. He relied on MUSA v THE STATE (2013) 3 SCM 79 at 93, per Peter-Odili, JSC.

Learned Counsel also contended that it is trite law that a trial Court can rely solely on the confessional statement of an accused person to convict him. He cited AKPA v STATE (2008) 8 SCM 68 at 70 and Sections 28 and 29 of the Evidence Act, 2011. He pointed out that from the record no objection was raised to the admissibility of the Appellant confessional statement in Exhibit 15 when it was tendered at the trial Court. He argued that a counsel who stands by and allows exhibits to be tendered without objection cannot later complain of same. He relied on ADELEKE VS. THE STATE (2013) 12 SCM (Pt. 2) 1 at 13. He argued that since the Appellant’s confessional statement had been corroborated by the evidence of the Prosecution witness it has met the requirement of law. He cited ISMAIL v THE STATE (2011) 10 SCM 35 at 39, para. 4, per Tabai, JSC.

On the offence of conspiracy, Counsel contended that it is settled law that the offence of conspiracy is complete when two or more persons agree to do unlawful act or do a lawful act by an unlawful means. He referred to OSETOLA v THE STATE (supra) at 371. He submitted that conspiracy can be inferred from the statement of the Appellant in Exhibit 15. He argued that a careful perusal of the exhibits shows that there was a meeting of the minds of the Appellant and the other accused persons. He finally submitted that the prosecution has proved the offences beyond reasonable doubt against the Appellant.

RESOLUTION OF THE SOLE ISSUE:
Before the trial Court, four Defendants, of which the Appellant was the 3rd Defendant, were tried of five counts of the offences of conspiracy to commit armed robbery, armed robbery and receiving property obtained by means of armed robbery, contrary to Sections 6(b), 1(2)(a) and 5 of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004, respectively. At the end of the trial, the trial Court had found the 1st, 2nd Defendants and 3rd Defendant (Appellant) guilty of the offence of armed robbery and sentenced them accordingly.

It is settled law that where the charge contains offence of conspiracy and substantive offence, the approach is to first deal with the substantive offence before determining how far the offence of conspiracy had been made out by inference from the substantive offence. This is because a charge of conspiracy, which is difficult to prove by direct evidence, automatically fails where the substantive offence has not been established. See AGUGUA v THE STATE (2017) LPELR-42021(SC), per Ariwoola, JSC at page 13, para. A, OSETOLA & ANOR v STATE (2012) LPELR-9348(SC), per Ariwoola, JSC at pages 27 – 28, para. E and JIMOH v THE STATE (2019) LPELR-48089(CA), per Talba, JCA at pages 17 – 18, para. F.

The approach to deciding this appeal must therefore start with a determination of the propriety of the trial Court’s finding on the substantive offence of armed robbery before determining whether the offence of conspiracy was properly sustained by the trial Court.

It is elementary law that in criminal trials, the burden of proof is always on the Prosecution to prove the offence and establish the guilt of the Defendant beyond reasonable doubt. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999; Section 135(1) & (2) of the Evidence Act, 2011 and ISAH v STATE (2017) LPELR-43472(SC), per Peter-Odili, JSC at pages 28 – 29, para. F and DANJUMA v STATE (2019) LPELR-47037(SC), per Bage, JSC at pages 13 – 17, paras. C – C. 

Proof beyond reasonable doubt does not however mean proof beyond all shadow of doubt. Rather it means no more than evidence strong enough to leave only a remote possibility in the defendant’s favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable.” See MILLER v MINISTER OF PENSIONS (1947) 2 All ER 372 and BAKARE v THE STATE (1987) LPELR-714(SC), per Oputa, JSC at pages 10 – 11, para. D – D.

In a charge of armed robbery such as the one in the instant appeal, the Prosecution is required to establish beyond reasonable doubt the following ingredients:
(i) that there was a robbery or series of robberies;
(ii) that the robbery was an armed robbery;
(iii) that the Appellant was one of those who took part in the armed robbery.
See OGU v COP (2017) LPELR-43832(SC) per Kekere-Ekun, JSC at pages 23 – 24, para. F, STATE v FADEZI (2018) LPELR-44731(SC) per Sanusi, JSC at pages 10 – 11, para. E, OSUAGWU v STATE (2016) LPELR-40836(SC), per Nweze, JSC at pages 12 – 13, para. E, and ATTAH v STATE (2010) LPELR-597(SC), per Adekeye, JSC at page 38, para. A.

It is also settled law that the commission of a crime is established through any or a combination of three ways, namely –
(i) by direct evidence of eye witness(es);
(ii) by confessional statement of the defendant;
(iii) by circumstantial evidence.
See ADEYEMO v STATE (2015) LPELR-24688(SC), per Ogunbiyi, JSC at page 16, paras. E – E, BILLE v STATE (2016) LPELR-40832(SC), per Ngwuta, JSC at page 15, para. A, OGOGOVIE v STATE (2016) LPELR-40501(SC), per Peter-Odili, JSC at page 11, para. B and OLAOYE v STATE (2018) LPELR-43601(SC), per Sanusi, JSC at page 13, para. C.

From the printed Record of Appeal, it is instructive that in establishing its case, the Prosecution had relied on the evidence of eye witnesses, especially PW1 and PW3, as well as on the Appellant’s confessional statement admitted in evidence as Exhibit 15.

The first contention of the learned Counsel for the Appellant at paragraphs 4.6 – 4.11 of the Appellant’s Brief of Argument is that the lower Court wrongly found the Appellant guilty of the offence of armed robbery in count 5 of the charge without sufficient evidence to prove same. Counsel had argued that PW3 only testified that three robbers robbed her in her house, one of which she identified as the 1st Accused person (Odeshina Femi), while the two other persons were masked. He also pointed out that at the identification parade conducted, PW3 identified only the 1st accused person as one of the robbers who robbed her and that PW3 never testified that she was robbed by the Appellant.

As for the conviction of the Appellant of the offence of robbery in count 2, learned Counsel for the Appellant had argued that there are contradictions between the evidence of PW1 and PW7. He referred to pages 7 and 122 of the Record of Appeal and submitted that the contradiction is fatal. He also submitted that the manner in which the confessional statement of the Appellant was obtained raises doubt as to its voluntariness and that the trial Court failed to test the veracity and voluntariness of the confessional statement of the Appellant. He posited that the Prosecution has failed to prove that the Appellant committed the offences of armed robbery and robbery.

On the conviction of the Appellant for armed robbery in count 5 of the charge, the finding of the trial Court is at pages 195 – 196 of the Record of Appeal, wherein the learned trial judge held as follows:
COUNT 5
This count alleged that the 1st – 3rd accused persons robbed PW3 Ibiyinka Sorunke while armed with a gun and a cutlass. The evidence of PW3 as to how the accused persons entered her house and robbed her has being (sic) stated earlier. From the evidence, there is no doubt that she was robbed that day and physically assaulted. She clearly identified 1st accused because his face was not covered while the faces of the others were covered. When she was called to identify those who robbed her by the police, she easily picked put the 1st accused. The evidence was that there was a big rechargeable lamp in the sitting room that night. Also, she had very close encounter with the 1st accused that night. She said he held a gun while the robbery took place and threatened to waste her life if she called for help. Her evidence was not discredited at all under cross-examination. I find it cogent and credible and therefore believe it to be true. From the evidence before this Court, I am convinced that the accused persons made the statements voluntarily. I find the contents to be direct and straightforward and that they satisfy the test of truth. See AKPAN v STATE (2000) 12 NWLR (PT. 682) 607; KAREEM v FRN (2002) 8 NWLR (PT.770) 664. When considered along with the evidence of PW3, I am satisfied that the accused persons where (sic) the ones who robbed PW3 and that they did so while armed with a gun and other offensive weapons. I find the three of them guilty as charged for armed robbery.

I have carefully considered the above finding of the trial Court convicting the Appellant of the offence of armed robbery in count 5 of the charge; the evidence on record of the Prosecution witnesses, especially PW3; as well as the Appellant’s confessional statement in Exhibit 15.

It is settled law that when a confessional statement is admitted in evidence and later retracted as was done by the Appellant in this case, the Court should test its truthfulness and veracity by examining same in the light of other credible evidence in order to determine what weight  to attach to it. In other words, the Court should consider: (a) whether there is anything outside the confession to show that it is true; (b) whether the confession is corroborated; (c) whether the facts contained in the statement are true as far as they can be tested; (d) whether the defendant had the opportunity to commit the offence; (e) whether the confession is possible; and (f) whether it is consistent with other facts ascertained and proved at trial. See ALAO v STATE (2019) LPELR-47856(SC), per Aka’ahs, JSC at page 22, para. A, KOLAWOLE v STATE (2015) LPELR-24400(SC), per Galadima, JSC at pages 40 – 41, para. G and AGBOOLA v STATE (2013) LPELR-20652(SC), per Ariwoola, JSC at page 37, para. A.

The first point to be made is that, as shown at page 102 of the record, is that there was no objection from the Appellant when his confessional statement was tendered and admitted by the trial Court. No objection was raised to its admissibility on the ground of involuntariness, and no retraction was made of it by the Appellant at that point. The Appellant only raised the issue of involuntariness while giving evidence in his defence. (See pages 142 – 143 of the Record of Appeal). 

Now, it is settled law, as borne by several judicial authorities, that an objection to the voluntariness of a confessional statement must be timeously raised at the point the statement is being tendered in evidence and not after it has been admitted in evidence. In BASSEY v STATE (2019) LPELR-46910(SC), the Supreme Court, per Peter-Odili, JSC restated this legal principle at pages 28 – 31, para. F, when the Apex Court held:
See Oseni v. The State (2012) Vol. 208 LRCN 151 at 183 and 184A. The Court in considering the principle on admissibility of extra-judicial statement or confession of an accused person held inter alia: “Another principle of the criminal law which has been consistently repeated in our law report is: at what time does an accused person object to the admissibility of a statement credited to him as a confession? This Court in its several decisions answered the question in the following words: the question of the voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statements were tendered without any objection from the defence. None of the prosecution witnesses were cross-examined as to their voluntariness. It was until the prosecution had closed its case and the appellants were testifying in their own defence in the witness box that the issue was belatedly raised. The trial judge was right to dismiss this aspect of the defence case as an afterthought having regard to the qualitative evidence tendered by the prosecution and accepted by the trial Court on the subject.” Also my Lords, in the case of Egharevba v. The State (supra) at page 213 AF, this Court reiterated the above principle when it held inter alia as follows: “Once a confessional statement is tendered and admitted without objection by the defence, it is good evidence and can be relied upon. The Court can even utilize it alone, place a conviction without corroboration even if the appellant had retracted the making thereof”. At the defence stage where the circumstances surrounding the making of the statement of the appellant is being raised is too late and would not affect the admissibility of the confessional statement Exhibit B.
See also ALO v STATE (2015) LPELR-24404(SC), per Ogunbiyi, JSC at pages 24 – 25, para. F, OLALEKAN v STATE (2001) LPELR-2561(SC), per Ogundare, JSC at pages 14 – 15, para. E, ISONG v STATE (2016) LPELR-40609(SC), per Kekere-Ekun, JSC at page 28, para. D, ANIEHE v STATE (2021) LPELR-55017(CA), per Mbaba, JCA at pages 24 – 17, para. C and AFOLABI v STATE (2014) LPELR-22249(CA), per Iyizoba, JCA at pages 34 – 36, para. B.

From the above decisions, it is clear that the submission of the leaned Counsel for the Appellant that the trial Court was wrong to have relied on Exhibit 15, the Appellant’s confessional statement, was misconceived, since, as shown at page 102 of the Record, no objection was raised to the admissibility of Exhibit 15 when it was tendered and admitted by the trial Court. Indeed, at page 142 of the Record, the Appellant did not deny making the statement while testifying in his defence. He merely insinuated that he was tortured before making the statement, an allegation which he never made at the point the statement was tendered and admitted in evidence. In other words, the Appellant never retracted the confessional statement. He only belatedly raised the issue of its voluntariness while giving his defence. The trial Court was therefore right to have discountenanced that testimony of the Appellant as an afterthought. I so hold.

A look at Exhibit 15, the confessional statement of the Appellant, a copy of which is at page 16 – 17 of the Record, shows that the Appellant had confessed to being part of the gang of five armed robbers, comprising himself; Odeshina Femi (1st Defendant); Dimeji Bangbose (2nd Defendant); Seun Protocol and one Ijebu; and that they specialize in robbing people of their bags and phones and that they normally enter into a whole street and raid houses. He had stated that the gun recovered belonged to Dimeji Bangbose, the 2nd Defendant, and that he (the Appellant) used to hold cutlass. He stated that he had sold all the phones that were shared to him to one guy who used to stand at Kara roundabout where they sell phones. He said the five of them robbed houses, but he could not remember the houses or the faces of the people they robbed.

As quoted above, the learned trial judge had adjudged that the confessional statements of the 1st and 2nd Defendants and the 3rd Defendant (Appellant) have satisfied the test of truth when considered along with the evidence of PW3 and that he was satisfied that the Prosecution had proved that the 1st, 2nd and 3rd Defendants were the ones that robbed PW3 and that they did so armed with a gun and other offensive weapons.

On the complaint of the Appellant that PW3 had not stated in her evidence that she was robbed by the Appellant, it is settled that where, as in this case, no objection is raised to a confessional statement when it is tendered, it forms a credible proof of the Prosecution’s case and the trial Court is entitled to rely solely on such a confession to convict the Defendant. See BASSEY v STATE (supra), per Peter-Odili, JSC. On that authority, the conviction of the Appellant for armed robbery in count 5 is sustainable solely on his non-objected and non-challenged confession.

Even then, an examination of the evidence of PW3 contained at pages 90 – 93 of the Record, shows that even though from the three persons that entered her house to rob her, she was only able to identify the 1st Defendant, Odeshina Femi who was the only person that was not masked and who was holding a small pistol, her testimony to the effect that she identified the 1st Defendant, Odeshina Femi amongst the three persons who robbed her has substantiated the confession of the Appellant that he was among the gang of robbers comprising of himself, Femi Odeshina (the 1st Accused who was identified by PW3) and the 2nd accused, Dimeji Bamgbose who have robbed many houses and persons including PW1 and PW3.

Additionally, the testimonies of PW2 at pages 46 – 48, PW3 at pages 90 – 93, PW5 at pages 95 – 98 and that of PW7 at pages 100 – 109 of the record, taken together, substantiate the confessional statement of the Appellant that as part of a gang comprising himself, the 1st Defendant Odeshina Femi; the 2nd Defendant Dimeji Bamgbose and others robbed several houses and persons including PW1 and PW3 using gun and other dangerous weapons.

It is trite that once a confessional statement is found to be credible, a defendant can be convicted on the strength of his confession alone, even if such a confession was retracted by the defendant or was not corroborated. See BERENDE v FRN (2021) LPELR-54993(SC), per Peter-Odili, JSC at pages 63 – 64, para. E and BLESSING v FRN (2015) LPELR-24689(SC), per Ogunbiyi, JSC at page 49, para. C. Confession is the highest and most satisfactory evidence if there is an independent proof that a crime had in fact been committed. See OKEMMIRI v FRN (2015) LPELR-24485(CA), per Agube, JCA at pages 10 – 14, para. C.

I therefore hold that the trial Court was right when it held that the relied on the confession of the Appellant and convicted the Appellant for the offence of armed robbery in count 5 of the charge.

On the conviction of the Appellant for robbery in count 2, the learned trial judge had held at page 195 of the record of appeal as follows:
“In that count, the 1st to 3rd accused are alleged to have robbed PW1 with a gun. PW1 was the victim. Her evidence showed that not only was she robbed, she was able to clearly identify the robbers because it happened in the morning and they were not masked. She had known them before in the area, and when she was called to identify them, she very easily picked out the 2nd and 3rd accused persons as those who robbed her. I find her evidence uncontradicted, credible and reliable. It not only showed that she was robbed but linked the 2nd and 3rd accused to it as the culprits. I find the denial of the 2nd and 3rd accused persons unbelievable and disbelieve them. Their confessional statements were voluntarily made in my view and they pass the 6-way test of truth. They clearly corroborate the evidence of PW1. However, I believe there is some doubt as to whether the 3rd accused was holding a gun, going by the vagueness of the statement of PW1 to the police on that particular point. I am prepared to give the accused persons the benefit of the doubt on this point. Also, the evidence of PW1 was that only the 2nd and 3rd accused robbed her. She did not mention a 3rd person. Consequently, I find no concrete evidence against the 1st accused in respect of count two (2). I discharge and acquit the 1st accused in respect of count two (2). I find the 2nd and 3rd accused persons guilty not of armed robbery, but of robbery, in respect of this count.”

The central argument of the Appellant in relation to his conviction under this count is that there are contradictions between the evidence of PW1 and PW7. He referred to pages 7 and 122 of the Record of Appeal and submitted that the contradictions are fatal. I have examined the pages referred to by the Appellant. Page 2 of the Record contains the proof of evidence of PW1, PW2 and PW3. In the proof of evidence of PW1, he stated that he knew the accused persons, and that as a member of the Oodua People Congress Akonge United, Abeokuta, he received information onm13th July, 2013 about a hideout of some armed robbers camping at Itoko area of Abeokuta. He said when they went with his members, they arrested the 1st and 2nd Defendants and the Appellant who was the 3rd Defendant and on searching them, they recovered a locally made pistol with live cartridges and that they handed them over to the Anti-Robbery Squad.

At page 122 of the Record of Appeal referred to by the Appellant however, it is the evidence of PW7 under cross-examination. From beginning of page 121, PW7 had under cross-examination confirmed that it was the OPC members that arrested the 1st, 2nd and 3rd Defendants (Appellant as 3rd Defendant), and that the Defendants were handed over to them with a gun and cartridge. He stated that the 2nd accused, Dimeji Bamgbose accepted ownership of the gun and stated that he bought same from one Azeez, Terror for the purpose of the robbery. PW7 then went ahead to state that the accused persons confessed that they robbed some houses and that the Accused persons led them to the houses they robbed and that it was in one of the houses that PW1 confirmed that they robbed her and identified the 1st accused person as one of those who robbed her. When shown Exhibit 15, the Appellant’s confessional statement he confirmed that in the statement the Appellant did not say he robbed PW1.

Contrary to the contention of the Appellant, my examination of the pages 7 and 122 of the Record of Appeal did not reveal any material contradiction between the evidence of PW1 and PW7. Rather, the evidence of PW1 that they arrested the 1st, 2nd and 3rd accused persons with a gun and cartridges and they handed them over to Anti-Robbery Squad was confirmed by PW7. In criminal litigation, only material contradictions and not minor discrepancies can create doubt enough to tilt the scale of conviction. See MUSA v STATE (2019) LPELR-46350(SC), per Muhammad, JSC at page 9, para. A and ADELODUN v FRN (2017) LPELR-42356(CA), per Owoade, JCA at page 54, para. B.

As for the evidence of PW3 at pages 43 – 46 of the Record, to the effect that on the 16th of May, 2013, the 2nd and 3rd accused persons robbed her in her shop with the 3rd accused holding a pistol, while the 2nd accused drove the motorcycle with which they escaped, and PW1’s evidence under cross-examination that she never mentioned that she knew the 2nd and 3rd accused persons in her earlier statement to the Police admitted as Exhibit 1, it is pertinent to point out that the Appellant’s confessional statement in Exhibit 15, the evidence of PW7 to the effect that the accused persons (including the Appellant) took them to the houses they said they robbed and PW1 confirmed to them that she was indeed robbed by them, all taken together have reinforced the confessional statement of the Appellant, which confessional statement was not challenged at trial.

The trial Court had duly reviewed PW1’s evidence at page 188 of the record, and the learned trial judge had correctly observed that PW1 had stated that the Appellant had entered her shop holding a gun in his hands, and had held at page 195 of the record that the confessional statements of the accused persons clearly corroborate the evidence of PW1. However, the learned trial judge concluded that: “However, I believe there is some doubt as to whether the 3rd accused was holding a gun, going by the vagueness of the statement of PW1 to the police on this particular point. I am prepared to give the accused persons the benefit of the doubt on this point. Also, the evidence of PW1 was that only the 2nd and 3rd accused robbed her. She did not mention a 3rd person. Consequently, I find no concrete evidence against the 1st accused in respect of count two (2). I discharge and acquit the 1st accused in respect of count two (2). I find the 2nd and 3rd accused persons guilty not of armed robbery, but of robbery, in respect of this count.”

Given the PW1’s earlier statement to the Police in Exhibit 1, I am of the considered view that the trial Court’s above finding and holding cannot be faulted.

Now, it is settled that the evaluation of evidence and ascription of probative value thereto, is the primary function of the trial Court which has the advantage of seeing, hearing and observing the demeanour of the witnesses. See EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C and OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6 – 7, para. E. An appellate Court will not interfere with such a finding of fact unless it is shown that the trial Court failed to properly evaluate the evidence before it or its finding is perverse. See BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13 – 17, para. A, and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14 – 15, para. E. It is not the function of an appellate Court to retry the case on the evidence in the printed record and set aside the decision of the trial Court in order to substitute its own views, so long as the trial Court had properly appraised and evaluated the evidence before it. See IGAGO v STATE (1999) LPELR-1442(SC), per Karibi-Whyte, JSC at page 27, para. E. 

Thus, a party who complains against a finding of fact by a trial Court must show in what way the finding is wrong or perverse: KIWO v STATE (2020) LPELR-53900(SC), per Muhammad, JSC at page 30, para. D and AMADI v A.G. IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 12, para. B.

In the instant appeal, the Appellant has failed to establish that the findings of the trial Court that he was guilty of robbery in count 2 and armed robbery in count 5 is perverse. Consequently, this Court has no vires to interfere with those findings. It is in this light that I resolve the sole issue in this appeal against the Appellant. Having so resolved, I hold that this appeal is devoid of any merit. Accordingly, I dismiss the appeal and affirm the judgment of the trial Court delivered on 28th June, 2018 in suit no. AB/3R/2015.

FOLASADE AYODEJI OJO, J.C.A.: I have read a draft copy of the lead judgment delivered by my learned brother, ABBA BELLO MOHAMMED, JCA with which I agree.

The sole issue raised in this appeal is whether from the totality of evidence adduced at the trial, the Prosecution has proved the offences of conspiracy to commit armed robbery, armed robbery and robbery beyond reasonable doubt. My learned brother has exhaustively and admirably resolved this issue. I completely agree with him that the Prosecution discharged the burden of proof on it and the Appellant has failed to show that the decision of the trial Court is perverse. There is therefore no reason or justification for this Court to interfere with the findings of fact made by the learned trial Judge.

For those same reasons which I hereby adopt as mine, I also find this appeal lacking in merit and I dismiss it. I also join in affirming the conviction and sentence of the Appellant by the lower Court.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: My learned brother, ABBA BELLO MOHAMMED, JCA, has availed me a draft copy of the lead judgment prepared by him and just delivered. My Lord has comprehensively dealt with the sole issue in the appeal. I am in agreement with the reasoning and conclusion reached that the appeal lacks merit and should be dismissed. I have nothing useful to add. I too dismiss the appeal and affirm the conviction and sentence passed on the Appellant by the lower Court.

Appearances:

J. D. Oloyede, Esq. For Appellant(s)

B. A. Adebayo, Esq., Director of Public Prosecutions, Ogun State, with him, O. A. Sowoki, Esq., DDPP and A. O. Akapo, Esq., PSC For Respondent(s)