AKEEM AGBOOLA V THE STATE (2013)

AKEEM AGBOOLA V THE STATE

(2013) LCN/4126(SC)

In the Supreme Court of Nigeria

Friday, May 24, 2013


Case Number: SC. 434/2011

 

JUSTICES:

WALTER SAMUEL NKANU ONNOGHEN JUSTICE, SUPREME COURT

MUHAMMAD SAIFULLA MUNTAKA-COOMASSIE JUSTICE, SUPREME COURT

NWALI SYLVESTER NGWUTA JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA JUSTICE, SUPREME COURT

MUSA DATTIJO MUHAMMED JUSTICE, SUPREME COURT

 

APPELLANTS

AKEEM AGBOOLA

 

RESPONDENTS

THE STATE

 

RATIO:

RETRACTION OF EXTRA JUDICIAL CONFESSION-WHETHER CAN GROUND A FINDING OF GUILT:

“Where an extra judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt regardless of the fact that the maker retracted it altogether at the trial”. PER OLU ARIWOOLA JSC

IDENTIFICATION EVIDENCE- NEED TO PROVE BEYOND REASONABLE DOUBT:

“Generally, identification evidence is evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence. Therefore, whenever the trial court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the court was the person who actually committed the offence with which he is charged.” PER OLU ARIWOOLA JSC

ONUS ON PROSECUTION TO INVESTIGATE AND DISPROVE A DEFENSE OF ALIBI WHEN RAISED BY ACCUSED PERSON:

“The law is that if an accused person raises unequivocally the issue of alibi, that he was somewhere else other than the locus delicti time of the commission of the offence with which he is charged and gives some facts and circumstances of his where about, the prosecution is duty bound to investigate the alibi set up, to verify its truthfulness or otherwise”. PER OLU ARIWOOLA JSC

CONFESSIONAL STATEMENT OF AN ACCUSED-STATEMENT MADE UNDER CAUTION -HOW TREATED:

“It is the law that once an accused person makes a statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged the statement becomes confessional.”-PER OLU ARIWOOLA. JSC

CRIMINAL TRIAL-GUILT OF ACCUSED-HOW ESTABLISHED:

“It is trite law that in criminal trials, the guilt of the accused person for the commission of an offence could be established by any or all of the following: (a) The confessional statement of the accused; (b) Circumstantial evidence; (c) Evidence of an eye witness”. PER OLU ARIWOOLA JSC

OFFENCES-ARMED ROBBERY:

“Therefore, for the prosecution to establish the offence of armed robbery, the following are required to be proved: (a) That there was in fact a robbery (b) That the robbery was an armed robbery (c) That the accused person was the armed robber”. -PER OLU ARIWOOLA JSC

DEFENCES-ALIBI – ONUS ON ACCUSED RAISING-HOW DISCHARGED:

“However, even though no burden is placed on the accused person to prove his alibi but he is not expected to merely state that he was not at the scene of the crime without more. He is duty bound to give the lead and particulars of his where about which will lead the prosecution in their investigation of the alibi.” PER OLU ARIWOOLA JSC

CONFESSION- VOLUNTARY CONFESSION -WHETHER CAN SOLELY GROUND CONVICTION:

“The law is trite on the point that a man may be convicted on his own confession alone and there is no law against it. The position of the law is that if a suspect makes a free and voluntary confession in his extra judicial statement to the police, which confession is direct and positive and the court is satisfied with its truth, such confessional statement alone is sufficient to ground and support conviction without corroboration.” PER OLU ARIWOOLA JSC

OLU. ARIWOOLA, JSC, (Delivering the Judgment for the Court): This is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 20th June, 2011 wherein the conviction of the appellant by the trial High Court was affirmed. The appellant had earlier been charged as follows: ‘The accused is charged with one count of the offence of armed robbery in that on or about 26/04/2007 along Sagamu/Ijebu Ode Expressway near Odogboiu junction in the Ijebu Ode Judicial Division while armed with a Knife robbed one Sunday Cornelius of his Jincheng  Motorcycle, two Nokia Phones and the sum of four thousand Naira, an offence contrary to Section l(2)(a) ofthe Robbery and fire arms (Special Provisions) Act Cap R.11, Laws of the Federation of Nigeria, 2004.’ The accused, hereinafter referred to as appellant, upon arraignment pleaded not guilty to the charge and the prosecution proceeded to that. The prosecution called four (4) witnesses while only the appellant testified in defence. The prosecutions case briefly goes thus – sometime on 26th April, 2007 at the Lagos garage, Ijebu Ode, the appellant engaged the compliant, Sunday Cornelius (PW1) – a Vulcanizer and commercial Motorcyclist operating at the said Lagos garage in Ijebu Ode, to carry him from l]ebu-Ode to Sagamu. PWI was reluctant and initially refused, the reason being that the distance was long, coupled with the fact that his motorcycle was then unregistered, but upon persuasion by one Adeleke Taiwo. PWI agreed. They then left for Sagamu at about 12 noon. After the appellant had concluded what he went to Sagamu for, they headed back to Ijebu Ode at about 7.00pm. But shortly before Odogbolu junction, the appellant asked PWI to stop the motorcycle as he wanted to ease himself. The appellant eventually slashed PWI on his neck with a knife and then made away with the motorcycle of PWI. PWI managed to run to Odogbolu junction for help. The motorcyclists at the park helped him to Aiyepe Police station and from there the police took him to the General Hospital, Aiyede for treatment. He was later referred to the State Hospital, Ijebu-Ode. The appellant was later arrested in Lagos with the motorcycie. On request, the appellant was released to the Police in Odogbolu and was later transferred to State Criminal Investigation Department (CID), Eleweran, Abeokuta.

the close of the trial, after the trial Judge had carried out the appraisal of the facts and evaluation of the available evidence adduced found the appellant guilty as charged, convicted and sentenced him to death accordingly. Dissatisfied with the judgment of the trial court led to the appellants appeal to the court below on the amended Notice of Appeal filed on 24/8/2010 containing nine(9) grounds of appeal. The Court of Appeal later found that the guilt of the appellant was established and that the resolution by the trial court that prosecution proved its case beyond reasonable doubt was properly done in securing conviction of the appellant. The court finally affirmed the conviction of the appellant by the trial Court on 30/3/2009 but reduced the sentence from death under Section l(2)(a) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation of Nigeria 2004, to and substituted by a term of imprisonment for life under Section 2(2)(a) of the same Law (supra).

Further dissatisfied, the appellant appealed to this court on a Notice of Appeal filed on 14/7/2011 containing four (4) grounds of appeal with the possibility of filing additional grounds of appeal upon receipt of record of appeal, but none was later filed by the appellant. Pursuant to the rules of this Court, parties upon receipt of the record of appeal filed and exchanged briefs of argument. The appellants brief of argument settled by Dr. Akin Onigbinde was filed on 26/3/2012 while the respondents brief of argument settled by IK. Omotosho, Esq. – Deputy Director of Public Prosecution of the Ogun State Ministry of Justice was filed on 29/6/2012. From the four grounds of appeal, the appellant distilled the following two(2) issues for determination.

Issues for Determination:

1.    Whether having resolved issue 2 in favour of N the appellant, the court below was right in not setting aside the conviction of the appellant. (Grounds 1, 2 and 3).

2. Whether the court beiow was right in its conclusion that the issue of identification of the appellant by the victim (PWI) is adequate proof by the prosecution that established the guilt of the appellant beyond reasonable doubt.

The respondent in its brief of argument also formulated two issues for determination arising from the four grounds of appeal filed by the appellant. Though couched in different words, the said respondents two issues are the same materially with that of the appellant and the appeal will therefore be determined on the two issues as formulated by the appellant. In arguing issue No.l learned appellants counsel submitted that the court of appeal failed to properly resolve issue No.2 in the appeal before it. He referred to the holding of the court below in its resolution of the said issue on page 151 of the record and contended that it fell short of answering the question which issue No.2 posed to the court. The said issue No.2 goes thus – ‘whether or not the Honourable trial Judge placed reliance on the wrongly admitted evidence in arriving at his decision to convict the appellant’ He contended further that it was not sufficient for the learned Justices of the Court below to have held that admitted evidence would go to no issue or that any evidence once rejected by the court cannot be re-presented to the court or admitted by the court through another witness.

The appellant contended that, where a rejected document is represented and was wrongly admitted, would the court be justified in basing its decision or any part thereof on such evidence? Learned counsel submitted that the question must be answered in the negative, in that the law is that wrongly admitted evidence must be expunged from the record by the trial court or on appeal by an appellate court. He relied on Yakubu Vs. Ida (2009) All FWLR (Pt.465) 1833 at 1848. Learned counsel submitted that the court below was called upon to exercise the power and make a pronouncement as to whether the trial Judge placed reliance on inadmissible evidence in convicting the appellant.

The lower court failed to state the relevance of the principle and its legal implication to the case in hand. Learned counsel referred to page 56 of the record of appeal to state that the wrongly admitted evidence, that is Exhibits F, Fl and F2 form part of the basis of the trial Judges decision. He submitted further that the Exhibits were the only pieces of documentary evidence which purportedly linked the appellant to the scene of the crime. The documents relate to the motorcycle which the appellant was alleged to have robbed the PWI on 26/4/2007.

This, learned counsel contended was against the evidence of the appellant that he was not in Ijebu Ode on the said date. If the evidence relating to Exhibits F, Fl and F2 had been expunged or discountenanced as they should have been, then the trial court would have been left with no other option than to discharge and acquit the appellant. Learned counsel referred to the evidence of the appellant as to his whereabout on or about the date of the robbery as stated on page 30 of the record. He stated that the appellant had denied any connection with the motorcycle to which Exhibits F, Fl and F2 related.   He submitted that the failure of the court below to expunge Exhibits F, Fl and F2 has occasioned a miscarriage of justice to the appellant and this court is urged to so hold.   He submitted further that where the guilt of an accused person is in doubt, the attitude of the courts is to resolve the doubt in favour of the accused person and acquit him accordingly, relying on Kazeem Vs The State (2009) All FWLR (Pt.465) 1749 -1779; Ukwunnenyi Vs The State (1989) 4 NWLR (Pt.114) 131 at 156.

Learned counsel conceded that generally this court will not interfere with the concurring decision of the courts below but submitted that when the findings of facts are either erroneous in substance or will lead to a miscarriage of justice, this court will interfere. He relied on Dodo & Ors Vs The State (2001) FWLR (Pt.39) 1388. He urged the court to resolve the issue in favour of the appellant. In responding to this issue No.l, the respondent referred to the conditions the prosecution was expected to meet to secure conviction for the offence of armed robbery against the appellant. Learned Counsel for the respondent contended that in the absence of Exhibits F, Fl and F2 there are other compelling evidence on record upon which the conviction of the appellant for the offence of armed robbery was based. He referred to the findings of the trial court on pages 54 and 55 of the record of appeal. Learned counsel contended that the trial court considered the confessional statements of the appellant, Exhibits B, Bl, C and CI and subjected them to the necessary tests as required. The court later found the statements consistent with the testimony of PWI and other evidence adduced by the respondent including Exhibit A, the medical report. It was contended that at the trial Court the appellant did not object to the admissibility of his statements which were duly marked Exhibits B & Bl and C & CI, learned counsel therefore submitted that the court was right in relying on them to convict the appellant and the court below rightly affirmed the conviction. On the wrongly admitted documents, learned counsel referred to page 151 of the record wherein the court below referred to the said documents – F, Fl and F2 and concluded that they were indeed wrongly admitted and therefore any reliance on them will not go to any issue, as there were other pieces of evidence that corroborated the appellants confessional statement to sustain the conviction. He submitted that it is clear from the record that the appellant was not convicted on the reliance on the wrongly admitted documents but on the appellants confessional statements and other corroborating evidence aside from Exhibits F, Fl and F2.  He urged the court to resolve the issue against the appellant. The second issue is whether the court below was right in its conclusion that the issue of identification of the Appellant by the victim, (PWI) is adequate proof by the prosecution that established the guilt of the appellant beyond reasonable doubt. Learned appellants counsel submitted that the court below was in error when it held that identification parade was neither necessary nor a prerequisite to the investigation of the allegation against the appellant. He contended that the appellant was never arrested at the scene of the crime and none of the witnesses that testified against the appellant knew the appellant before the commission of the crime. He submitted that identification of an accused must be properly ascertained in all instances, except where the accused is caught at the scene and in the process of committing the crime or where the accused confesses to committing the crime. He relied on Adisa Vs. The State (1991) 1 NWLR (pt 168) 490 at 509; Omopupa Vs. The State (2008) All FWLR (pt445) 1648 at 1671. Learned counsel submitted further that from the totality of the evidence of the prosecution witnesses there was nothing to show or indicate that the victim as well as other witnesses knew the appellant or identify the appellant that he was the one who carried out the robbery operation. He contended that a proper identification of the armed robbery suspect is a question which the trial Judge ought to have satisfactorily treated before convicting the appellant. He relied on Edward Ojukwu Vs. The State (1986) 4 CA (pt 1) 431. He submitted that the purported testimony of DW1 at pages 29 -30 of the record in relation to one Adeleke Taiwo who was never called during trial remain speculative of what he said. Learned counsel submitted further that the reliance by the court below on only the evidence of PWI in the identification of the appellant to the crime without more, amounted to a perfunctory performance and urged the Court to so hold. He urged the Court to resolve the second issue in favour of the appellant and set aside the conviction of the appellant. In conclusion, learned counsel urged the court to allow the appeal, discharge and acquit the appellant. On Issue No.2, learned counsel for the respondent conceded that identification parade is useful and essential whenever there is a doubt about the power of the witness to recognize accused person or when the identity of the accused person is in dispute. He contended that the instant case is different, in that the identity of the appellant was never in doubt. He stated that the appellant himself in his statements – Exhibits B & Bl and C & CI admitted to be the one who robbed PWI. Indeed, he stated further that PWI had no problem on ability or power to recognize the appellant. He therefore submitted that the submission of the appellant on the necessity of identification parade in this case is totally misconceived. Learned counsel referred to appellants confessional statement wherein he stated how he carried out the robbery operation. He contended that with the long confrontation PWI had with the appellant for about seven (7) hours between 12noon and 7pm on the day time but not at night, it cannot be said that PWI had no opportunity of observing the features of the appellant. It was submitted that because the attack on PWI by the appellant was after over seven hours they had been together from Ijebu Ode to Sagamu, it can safely be said that PWI had known the appellant before he was attacked and robbed by him. Learned counsel submitted that when an accused person confessed to a crime and the confession is tested and found to be consistent with other facts outside the confession as in the instant case, identification parade is not a necessity. On the failure of the prosecution to call as witnesses, Taiwo Adeleke and Suraju whom the appellant claimed to have visited in Sagamu on the day of the incident, learned counsel submitted that where the evidence of one witness cogently and satisfactorily established a point in issue, in the absence of any law requiring that such point should be established by two or more witnesses, it is not good to proliferate the number of witnesses in proof of the same point. He submitted further that the duty of the prosecution is to establish the guilt of the appellant beyond reasonable doubt and this could be established on the evidence of one witness.

He urged the court to hold that the appellant was properly identified without any need for an identification parade. He finally urged the court to dismiss the appeal and affirm the judgment of the court below which had affirmed the conviction of the appellant. I must start by saying that this appeal is interesting and it is of a kind. There is no controversy that the appellant was charged with one count of armed robbery. He was tried and found guilty as charged and sentenced by the trial court. The two issues distilled by the appellant for the determination of his appeal against the decision of the court below which affirmed his conviction are what render the appeal interesting and amazing, to say the least. It is noteworthy that there is no challenge placed on the confessional statements tendered and admitted against the appellant.   What the two issues are about is whether the reliance on wrongly admitted inadmissible evidence by the trial court was properly addressed by the court below. And whether the appellant was properly identified as the person who robbed PWI. On these two issues, the appellant would want this court to hold that the wrongly admitted documents ought to have been expunged from the records of the trial court so as not to influence the trial court as alleged to have done in arriving at the decision to convict the appellant. And that failure to hold an identification parade to properly identify the appellant should lead to the setting aside of the conviction of the trial court as affirmed by the court below. First and foremost, it is pertinent to state what the prosecution is expected to prove to establish an offence of armed robbery. Robbery generally is the illegal taking of property from the person of another or in the persons presence by violence or intimidation. While armed robbery is robbery committed by a person carrying a dangerous weapon regardless of whether the weapon is revealed or used. See; Blacks Law Dictionary, Ninth Edition page 1443.

Therefore, for the prosecution to establish the offence of armed robbery, the following are required to be proved: (a) That there was infact a robbery (b) That the robbery was an armed robbery (c) That the accused person was the armed robber. See; Bozin Vs State (1985) 2 NWLR (Pt.8) 465 at 467; Alabi Vs State (1993) 7 NWLR (Pt.307) 551; Olayinka Vs State (2007) 9 NWLR (Pt.1040) 561; (2007) 8 SCM 193 Osetola & Anor Vs The State (2012) 17 NWQLR (Pt.1329) 251 at 275 Afolalu Vs State (2010) 16 NWLR (1220) 584. In the instant appeal there was no controversy that there was a robbery incident on the 26th day of April, 2007 and that the robbery was an armed robbery. In other words, it was not being contested that PWI was robbed of his motor cycle after being wounded by a stab on his neck. The only ingredient the appellant is contesting now on appeal is that he was not the armed robber that robbed PWI not having been properly Identified in an identification parade. Now, I shall deal with the two Issues raised by the appellant together being interrelated. Firstly, learned counsel for the appellant had argued diligently and vigorously that the appellant could not have been said to be properly identified by PWI when the police did not arrange an identification parade for PWI to have identified the person who robbed him of his motorcycle. Generally, identification evidence is evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence.

Therefore, whenever the trial court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the court was the person who actually committed the offence with which he is charged. See; Patrick Ikemson Vs State (1989) 1 CLRN 1. Identification parade, otherwise known as lineup is a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or a witness to determine whether the suspect can be identified as the perpetrator of the crime. See Blacks Law Dictionary, Ninth Edition page 1014. Ordinarily, identification parade is said not to be a sine qua nom for identification in all cases where there have been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading conclusively to the identity of the perpetrator of the offence.

An identification parade would become necessary only in the following situations of visual identification: (a) where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence; (b) where the victim was confronted by the offender for a very short time; and (c) where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused. See; R Vs Tumtbul (1976)3 AllER 549 or (1977) QB 224 at 228-231, Ikemson Vs Tate (supra). In the instant case, the appellant and PWI first came in contact with each other at about noon on the day of the incident – 26th April, 2007. One Adeleke Jawo, a friend of the appellant, resident in Ijebu Ode introduced the appellant to PWI and encouraged him to carry the appellant to Sagamu on his motorcycle. Both the appellant and PWI were together from Ijebu Ode, Lagos garage through to Sagamu where the appellant visited some places and people including Suraju his friend. They were returning in the evening at about 7pm when the incident happened.  From the situation described above, it cannot be said that PWI did not know the appellant before and that the first acquaintance with him was during the commission of the offence. They can be said to have stayed together all day. The circumstance both of them were, gave PWI opportunity of observing the features of his attacker.

With the situation on hand, I am not in the slightest doubt in holding that on visual identification, there was no need for identification parade before PWI can identify the appellant as his attacker on the 26th April, 2C07. The failure of the police therefore to conduct identification parade did not affect the way the appellant was identified to the police thereafter. More importantly, I am of the view that the question that should have been posed by the appellant is, ‘whether with the available evidence, the prosecution can be said to have proved the case against the appellant beyond reasonable doubt’. During the trial, the prosecution tendered the statements made by the appellant and there was no objection as to the admissibility of the said statements. The grounds of an objection through the counsel to the appellant was that he did not sign the statements but not that the he did not make the statements. Indeed, at the point of tendering the statements, learned counsel had this to say: ‘Bakare: – I do not object to the admissibility of the statement but I urge the court not to attack (sic) weight to it as the accused person has denied the signature thereon.’ The court thereafter admitted the said statements and marked them Exhibits B & Bl and C & CI respectively. The statements were found to be confessional in nature as they gave clear and vivid description of what transpired between PWI and the appellant on the day of the Incident. The said statement, inter-alia reads thus: ‘On the 26/4/2007 at about 10am Adeleke Taiwo and I went to Lagos garage Ijebu Ode. I told him that I wanted to go to Sagamu and I will return the same day. I told him to help me look for vehicle to convey me to Sagamu. It was there Adeleke Taiwo stopped one Okada rider for me to carry me to Sagamu and to return me. I then made an- arrangement with the okada rider to come and carry me at 2pm. I asked him how much he wanted to collect and he told me to pay him when he returns. He did not tell me how much to pay. At 2pm the Okada rider came and carried me with his motor cycle (Okada) from Lagos garage Ijebu Ode to Sagamu. When we got to Sagamu, he carried me to Ita Oba Sagamu, where I visited my friend Suraju. He also carried me to the shop of Suraju at Sabo Sagamu. At about 7pm the Okada rider carried me and we were heading back to Ijebu Ode. As we were going aiong the Sagamu/Benin expressway, after passing a filling station, I told the Okada rider that I wanted to defecate and he stoped for me to defecate. I defecated in the bush near the expressway. After I defecated as the Okada rider wanted to climb the motorcycle I brought out a small knive (sic) and stabbed him on his neck. As I stabbed him in his neck, the Okada rider started to run along the expressway….

COUNSELS

Dr. Akin Onigbinde, with him Chief Yomi Aliyu, Richard Baiyeshea, Esq., Stewart David, Esq., Adedeji Adeyemi Esq., for the Appellant.

J. K. Omotosho Esq., DDP., Ogun State with Adenigbagbe Merjowale Esq., Oladoyinbo Olajumoke, Esq., for the Respondent.

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