ANIMASHAUN v. STATE
(2020)LCN/14358(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Thursday, June 25, 2020
CA/IB/331C/2017
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
RAMONI ANIMASHAUN APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT CONTRADICTION IN EVIDENCE OF WITNESSES IS INEVITABLE
Let me state here that contradiction in the evidence of witnesses is inevitable. This is because even where witnesses see and watch the same event, it is possible that they narrate it from different perspectives.
The different narratives would not mean that the event did not take place. A Court will thus only be concerned with whether the witnesses are on common ground as to the happening of the event. The law is trite that contradictions which are not material or substantial will not go to any issue. What amounts to material contradiction however depends on the circumstances of each case. A contradiction will be deemed material if it goes to the substance of the charge and such that is capable of rendering the evidence of the witness unreliable and create a doubt in the mind of the Court. An unresolved material contradiction in the case of the prosecution is fatal. See MUSA VS. THE STATE (2009) 15 NWLR (PT. 1165) 467; OCHANI VS.THE STATE (2017) 18 NWLR (PT. 1596) 1; PRINCENT & ANOR. VS. THE STATE (2002) 18 NWLR (PT. 798) 49. PER OJO, J.C.A.
WHETHER OR NOT WHERE AN AVERSE PARTY FAILS TO CROSS-EXAMINE A WITNESS ON A PARTICULAR MATTER, IT IS DEEMED ACCEPTED
The well settled position of the law is that where an adversary fails to cross examine a witness on a particular matter, it would be taken that he has accepted the truth of the matter as given. See IFEDAYO VS. THE STATE (2018) 4 SC (PT. 6) 103; IGHALO VS. STATE (2016) 17 NWLR (PT. 1540) 1; ESENE VS. STATE (2017) 8 NWLR (PT. 1568) 337 AND OFORLETE VS.STATE (2000) 12 NWLR (PT. 681) 415. PER OJO, J.C.A.
FACTORS TO BE CONSIDERED WHEN DEALING WITH THE QUESTION OF VERACITY AND CREDIBILITY OF A WITNESS
There is also the presumption that its finding on the credibility of witnesses is correct until the contrary is proved. See DAUDU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 10 NWLR (PT. 1629) 169; POPOOLA VS. STATE (2018) 10 NWLR (PT. 1628) 485; AMADI VS. ATTORNEY GENERAL, IMO STATE (2017) 11 NWLR (PT. 1575) 92 AND ADISA VS. THE STATE (2019) 3 NWLR (PT. 1660) 448.
In ONUOHA & ORS VS. STATE (1989) 2 NWLR (PT. 101)23, Oputa, JSC held as follows:
“Having said that, one should quickly add that there are many hallowed and time honoured factors to be considered when dealing with the question of veracity and credibility of a witness and prominent among these are:-
1. His knowledge of the facts to which he testifies.
2. His disinterestedness.
3. His integrity.
4. Whether the evidence is contradictory or is contradicted by the surrounding circumstances.” PER OJO, J.C.A.
DEFINITION OF AN EXTRA-JUDICIAL STATEMENT
An extra judicial statement is a statement made or written outside the Court. See AKPAN VS. STATE (2001) 15 NWLR (PT. 737) 745; AJUDUA VS. FEDERAL REPUBLIC OF NIGERIA (2017) 2 NWLR (PT. 1548) 1. PER OJO, J.C.A.
DUTY OF THE COURT TO DETERMINE THE VOLUNTARINESS OF THE EXTRA-JUDICIAL STATEMENT OF AN ACCUSED PERSON MADE TO THE POLICE
The settled practice established by law is that where an accused person denies the voluntariness of his extra judicial statement made to the police, he shall object to the admissibility of same at the point of tendering by the prosecution. The trial Court at this stage shall conduct a trial within trial to determine the voluntariness or otherwise of such statement. Where an accused person does not raise any objection to the admissibility of the statement at that stage, the statement shall be admitted in evidence. It would then be too late for an accused person that is the Appellant in this instance to come before an Appellate Court to complain that his confession was an aftermath of torture. See BASSEY VS. STATE (2019) 12 NWLR (PT. 1686) 348; OGUNO VS. STATE (2013) 15 NWLR (PT. 1376) 1 AND OLALEKAN VS. THE STATE (2001) 18 NWLR (PT. 746) 793. PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court sitting at Ota in Charge No. HCT/33C/2014 THE STATE VS. RAMONI ANIMASHAUN & ANOR, delivered on 24th of May, 2017.
The Appellant was arraigned alongside one other person on a two count charge of conspiracy to commit armed robbery and robbery contrary to Section 6(b) and Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R.11, Laws of the Federation of Nigeria 2004. The charge as contained on the information paper is as follows:
COUNT I
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY contrary to Section 6 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11, Laws of Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
RAMONI ANIMASHAUN (M) and SODIQ ABISILE (M) on or about the 28th day of February, 2012 at Adejumo Street Orile-Ogun in Ota Judicial Division conspired to commit a felony to wit: Armed Robbery.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria, 2004.
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PARTICULARS OF OFFENCE
RAMONI ANIMASHAUN (M) AND SODIQ ABISILE (M) on or about the 28th day of February, 2012 at Adejumo Street, Orile-Ogun in the Ota Judicial Division while armed with gun robbed Lateef Raheem of a Techno Mobile Phone.
The Appellant pleaded not guilty to the charge and the case went on to trial. At the trial, the prosecution called four (4) witnesses who testified as PW1-PW4 while the Appellant testified in his own defence and called no witness. At the conclusion of trial counsel addressed the Court. The learned trial Judge after reviewing the evidence proffered by both sides before him and the addresses of counsel held that the prosecution proved the offences against the Appellant beyond reasonable doubt and went on to convict him and his co-accused on the two counts of the charge and sentenced them to death.
A summary of the case of the prosecution as borne out by the evidence of PW1-PW4 is as follows:
Mr. Lateef Raheem (PW1) lives at 43, Adejumo Street, Orile-Ogun with his wife, children and brother. On 28th of February, 2012, he was in his
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bedroom while his brother was weeding at the back of the house and one of his daughters was also drawing water from the well outside. The Appellant and one other person accosted PW1’s brother outside the house; they brought out a gun and led him inside the house. The other person was the Appellant’s co-accused before the lower Court. When they got outside the house they met PW1’s wife and children. They collected his wife’s phone and that of his brother. All this while, PW1 was inside his room. When he heard the noise from inside his house, he came out of his bedroom to find out what was happening. The robbers accosted him and took him back to his room at gun point. While inside his room, one of the robbers collected his phone and demanded for money. While this was going on the Appellant’s daughter who was outside the house fetching water heard the noise from inside the house and made to enter the house but was sent back by the robbers. It was PW1’s daughter who went to alert the neighbours about what was happening in their house. People from the neighbourhood gathered round the house and the robbers fled. They were pursued
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and eventually arrested and taken to the residence of PW2 who was the Balogun because the Baale was not available. The Appellant and the co-accused who were the apprehended robbers were handed over the police.
The case of the Appellant at the trial Court was that he was not one of the robbers that robbed at PW1’s residence. He said he went to visit one of his colleagues that morning and it was on his way back that he ran into the mob shouting “Thief”. He was arrested by the people as one of the thieves. He was later handed over to the police.
Dissatisfied with the judgment of the lower Court, the Appellant filed the instant appeal. The original notice of appeal is at pages 84-85 of the Record. The said notice of Appeal was amended pursuant to the leave of this Court. The Amended Notice of Appeal filed on 24th of October, 2017 was deemed as properly filed on 29th of November, 2018.
Parties filed and exchanged briefs of Argument. The Appellant’s brief of Argument settled by Chief Tirimisiyu Ayanlowo Obisesan of Counsel filed on 5th December, 2018 was deemed as properly filed on 29th of April, 2020. The Respondent’s Brief
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of Argument settled by Otenghabun Ebose of Counsel filed on 26th of February, 2019 was deemed as properly filed on 22nd of May, 2019. The Appellants Reply Brief filed on 22nd November, 2019 was deemed properly filed on 29th of April, 2020.
The following issues were formulated for determination on behalf of the Appellant in his brief of Argument:
(1) Whether the learned trial Judge properly considered the contradicting evidence in the written statement and oral evidence of the prosecution witnesses and whether the trial Court properly evaluated the evidence before it before holding that the prosecution had proved it’s case beyond reasonable doubt.
(2) Whether the conviction of the Appellant on the confessional statements of the Appellant without further corroboration to ascertain the veracity of the Appellant’s confessional statements is justified and without considering whether the test for determining the truth or for attaching due weight to a confessional statement had been fully satisfied.
(3) Whether the learned trial Judge was right to have found that there was a conspiracy to commit the offence of armed robbery between the
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Appellant and Sodiq Abisile without giving reasons for his conclusion that the said conspiracy was actually true.
For his part, learned counsel to the Respondent formulated a sole issue for the determination of this appeal on behalf of Respondent to wit:
“Whether the Respondent as prosecution proved its case against the Appellant as accused person beyond reasonable doubt considering the materials available and the circumstances of this case.”
At the hearing of this appeal on the 27th of May, 2020 learned counsel on both sides adopted their respective briefs of argument as their oral arguments. Learned counsel to the Appellant urged us to allow the appeal while that of the Respondent urged us to dismiss it.
The Appellant filed an Appellant’s Reply Brief. A careful perusal of the said brief reveal that it is a rehash of Arguments already canvassed in the Appellant’s brief of Argument. Learned Counsel to the Appellant used the opportunity of the Reply Brief to further expantiate and emphasise his earlier submissions in the Appellant’s Brief of Argument. This is definitely not the purpose of a Reply Brief. The law
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is trite that where a Respondent has by it’s brief joined issues with the Appellant’s Brief and no new issues are raised therein, the Appellant need not file a Reply Brief. The main purpose of a Reply Brief is to respond to new issues raised by the Respondent in his Brief. Where no new issue is raised, a Reply Brief has been held to be most unnecessary and such brief should be discountenanced by the Court. See OCHEMAJE VS. THE STATE (2008) 15 NWLR (PT. 1109) 57; REV. KING VS.THE STATE (2016) 6 NWLR (PT. 1509) 529; GODSGIFT VS.STATE (2016) 13 NWLR (PT. 1530) 444 and OLAFISOYE VS. FEDERAL REPUBLIC OF NIGERIA (2004) 4 NWLR (PT. 864) 580.
The Appellant’s Reply Brief falls short of what a reply brief should be and it would therefore be discountenanced.
I have given a careful consideration to the issues formulated by the Appellant and I am of the view that the three issues can be condensed into and fully accommodated in the sole issue formulated on behalf of the Respondent. Consequently, I shall resolve this appeal based on the Respondent’s sole issue which is:
“Whether the Respondent as prosecution proved its case
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against the Appellant as Accused person beyond reasonable doubt considering the materials available and the circumstances of this case.”
I shall endeavor to deal with all three issues formulated on behalf of the Appellant under this sole issue.
Learned Counsel to the Appellant under the Appellant’s first issue contend that there were contradictions in the evidence adduced by the prosecution. The contradictions which he itemized are as follows:
i) There was contradiction in the testimony of PW4. In his examination in chief, PW4 stated that a dane gun was recovered from the Appellant and his co-accused at the scene of crime. However, under cross examination PW4 stated that it was a locally made pistol made of iron that was recovered. He contended that while a dane gun has a long barrel, a pistol is a small hand gun.
- ii) The contradiction in the evidence adduced by PW1 in relation to the duration of time of the robbery. In his evidence in chief, PW1 stated that the armed robbers came to his house at about 6.45 am. Furthermore, in his evidence in chief, PW1 testified that the armed robbers were taken to the Oba’s palace at
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about 7am. However, under cross-examination, he stated that the armed robbers were with him and his family for about 1 hour.
On the contradiction highlighted in the evidence of PW4, learned counsel to the Appellant submitted that one of the ingredients to be proved in a charge of armed robbery is that the robbery is actually armed robbery. He therefore argued that since there is controversy on the gun used, there is a serious doubt on whether the robbery was an armed robbery and the doubt should be resolved in favour of the Appellant. He craved in aid of his argument the cases of BOY MUKA VS. THE STATE (1976) 10 SC 305; SUNDAY VS. THE STATE (2010) 18 NWLR (PT. 1224) 223; AHMED VS. STATE (1999) 7 NWLR (PT. 612) 641 and OKEKE VS.THE STATE (2016) LPELR (40024) CA.
On the alleged contradiction in the evidence of PW1, learned counsel submitted that the trial Court should have exercised due diligence in believing the allegations made against the Appellant by PW1 who had an interest to protect. He relied on the case of ONONUJU VS. THE STATE (2013) VOL. 24 LRCN (PT. 2) 28.
He argued that if the Appellant and his co-accused arrived at PW1’s house at
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6.45 am and was with him for about an hour they should still be there at 7.45am. He then raised a poser as follows: How then was the Appellant and his co-accused taken to the Oba’s palace around 7.00 am? He submitted this issue raises a doubt as to whether there was any armed robbery and the conclusion is that there was no robbery at all. He submitted further that a trial Judge cannot pick and choose which evidence to believe from the contradictory evidence of a prosecution witness and urged us to resolve the doubt created by the evidence of PW1 in favour of the Appellant. He cited in support the cases of DERIBA VS. THE STATE (2016) LPELR 40345 (CA) and OGBU VS.THE STATE (2003) FWLR (PT. 147) 1102 AT 1118.
On issue 2, learned counsel to the Appellant submitted that the content of the Appellant’s statement is suspicious. This he said is because a person who has been apprehended will not make unguarded statement to the police indicting himself even where he actually committed the offence. He stated further that the Appellant denied making any extra judicial statement at the Ifo Police Station and also that the Appellant retracted the alleged
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extra judicial statement. He then went on to submit that when an accused person retracts his statement, the Court should subject it to a test to determine its veracity and correctness which the trial Court failed to do. He relied on the cases of DIBIE VS. STATE (2004) 14 NWLR (PT. 893) and OLANIPEKUN VS.THE STATE (2016) LPELR 40440 (SC). Still on the extra judicial statement of the Appellant, counsel submitted that the trial Judge failed to consider the allegation of torture raised by the Appellant which according to him was corroborated by the evidence of PW1, PW2 and PW4. He therefore urged us to quash the conviction of the Appellant.
On issue No. 3, learned counsel to the Appellant submitted that there was no independent evidence apart from the retracted extra judicial statement of the Appellant to establish the offence of conspiracy against him. He urged us to hold that the learned trial Judge erred by relying on the retracted statement without any independent evidence to convict the Appellant of the offence of conspiracy. He submitted further that the offence of armed robbery is distinct from that of conspiracy which should be proved separately. He
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relied on the case of GARBA VS. COP (2007) 16 NWLR (PT. 1060) 378 AT 400 and urged us to hold that there is no evidence before the trial Court that the Appellant and his co-accused met to hatch the plan to rob.
On his part, learned counsel to the Respondent submitted and urged us to so hold that the prosecution proved all the ingredients of the offences for which the Appellant was convicted. He submitted the prosecution proved the case against the Appellant beyond reasonable doubt. He cited in support the cases of AGBI VS. OGBE (2006) 11 NWLR (PT. 990) 65; SHEHU VS.THE STATE (2010) 8 NWLR (1195) 112 AND AFOLALU VS THE STATE (2010) 16 NWLR (PT. 1220) 584.
He submitted further that there is no contradiction in the case presented by the Respondent and that even if there was any it was not sufficient to cast a doubt to exculpate the Appellant. He submitted the Appellant confessed he has a locally made pistol.
It was further contended by Respondent’s counsel that the trial Court tested the veracity of the extra judicial statement made by the Appellant. He relied on the case of ALARAPE & 3 ORS VS. THE STATE (2001) 5 NWLR (PT. 705) 79.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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He submitted that even where there was no evidence from the prosecution to establish the offences for which the Appellant was charged, the trial Court could have convicted him solely on his confession. He craved in aid the cases of LEADWAY ASSURANCE COMPANY LTD. VS. ZECO NIGRIA LTD. 2004 11 NWLR (PT. 884) 316 AND AIGBADION VS.THE STATE (2000) 7 NWLR (PT. 666) 686.
He submitted that PW1 and PW2 sufficiently linked the Appellant to the armed robbery operation and urged us not to allow the Appellant rely on technicalities to avoid his conviction and sentence.
Parties are on common ground and that is the law that the onus of proof is on the prosecution to prove the guilt of an accused person beyond reasonable doubt. See AIGUOREGHIAN & ANOR. VS. THE STATE (2004) 3 NWLR (PT. 860) 367; ALABI VS.THE STATE (1993) 7 NWLR (PT. 307)511; UCHE VS. THE STATE (2015) 11 NWLR (PT. 1470) 380 AND ALI VS.THE STATE (2015) 10 NWLR (PT. 1466)1.
In OSENI VS. THE STATE (2012) 5 NWLR (PT. 1293) 351, Adekeye, JSC held thus:
“The burden on the prosecution to prove the guilt of an accused to rebut the presumption of his innocence and standard that such proof
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must be beyond reasonable doubt had remained with us since the evolution of crime and is now properly entrenched in our criminal jurisprudence. The concept admitted that proof beyond reasonable doubt does not mean proof beyond all doubt or any shadow of doubt. Our law of Evidence had given recognition to this fundamental principle of criminal law and Section 137 of the Evidence Act reads:-
“Where the commission of a crime by a party to any proceeding is directly in issue it must be proved beyond reasonable doubt.”
Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that every person who is charged with a criminal offence shall be presumed innocent until he is proven guilty. All that is required of the prosecution is to prove all the ingredients of the offence with which the accused person is charged as proof beyond reasonable doubt is not proof beyond any shadow of doubt.
See ADEPOJU VS. THE STATE (2018) 15 NWLR (PT. 1641)103; NWATURUOCHA VS.STATE (2011) 6 NWLR (PT. 1242)170; NDIKE VS.STATE (1994) 8 NWLR (PT. 360)33; AYINDE VS.THE STATE (2019) 12 NWLR (PT. 1687)410.
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In JIBRIN VS. FEDERAL REPUBLIC OF NIGERIA (2020) 4 NWLR (PT. 1714)315 AT 336, PARAS. F-G, Kekere-Ekun, JSC held thus:
“Proof beyond reasonable doubt means that the prosecution must establish the guilt of an accused person with compelling and conclusive evidence, though not beyond the shadow of a doubt. See: Miller v. Minister of Pensions (1947) 2 ER 372; Bakare v. The State (1987)1 NWLR (PT.52) 579; Ikpo v. The State (2016) 10 NWLR (PT. 1521) 501.
In order to discharge the burden, the prosecution must prove the elements of the offence charged.”
The Appellant was charged, convicted and sentenced for the offences of Conspiracy to commit Armed Robbery and Armed Robbery. The essential ingredients of the offence of armed robbery have been held to be:
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery
3. That the Accused was the robber or one of those who took part in the armed robbery.
See PHILIP VS. STATE (2019) 13 NWLR (PT. 1690) 509; ZEBULON VS. STATE (2019) 11 NWLR (PT. 1684) 383; BABATUNDE VS. STATE (2018) 17 NWLR (PT. 1649) 549; NWOKOCHA VS. ATTORNEY-GENERAL, IMO STATE
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(2016) 8 NWLR (PT. 1513) 141 and PEDRO VS. STATE (2018) 17 NWLR (PT. 1649)463.
It is also settled law that proof of the commission of a crime can be by any or combination of the following methods:
1. By direct evidence of eye witness;
2. By extra-judicial statement of an accused person which is confessional in nature;
3. By circumstantial evidence linking the accused person to the crime.
See TOPE VS. STATE (2019) 15 NWLR (PT. 1695) 289; ADAMU VS. STATE (2019) 8 NWLR (PT. 1675) 478; STATE VS. FADEZI (2018) 18 NWLR (PT. 1650) 1; AND EMEKA VS. THE STATE (2001) 14 NWLR (PT. 734)666.
It is evident on the Record that the trial Court placed reliance on the evidence of Prosecution witnesses and the extra-judicial statements made to the Police by the Appellant. The extra-judicial statement made by the Appellant at the Ifo Police Station was admitted in evidence as Exhibit PF2A while the one he made to the Criminal Investigation Department (CID) at Eleweran was admitted as Exhibit PF3A.
Learned Counsel to the Appellant submitted that the learned trial judge did not properly evaluate the evidence before him and relied on contradictory
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evidence in arriving at his decision.
Let me state here that contradiction in the evidence of witnesses is inevitable. This is because even where witnesses see and watch the same event, it is possible that they narrate it from different perspectives.
The different narratives would not mean that the event did not take place. A Court will thus only be concerned with whether the witnesses are on common ground as to the happening of the event. The law is trite that contradictions which are not material or substantial will not go to any issue. What amounts to material contradiction however depends on the circumstances of each case. A contradiction will be deemed material if it goes to the substance of the charge and such that is capable of rendering the evidence of the witness unreliable and create a doubt in the mind of the Court. An unresolved material contradiction in the case of the prosecution is fatal. See MUSA VS. THE STATE (2009) 15 NWLR (PT. 1165) 467; OCHANI VS.THE STATE (2017) 18 NWLR (PT. 1596) 1; PRINCENT & ANOR. VS. THE STATE (2002) 18 NWLR (PT. 798) 49.
Now, the question is whether the alleged contradiction in the evidence of PW4 on
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the gun used by the Appellant is material.
It is a matter of common knowledge that a Dane gun is not the same with a pistol. PW4 in his evidence in chief stated that a Dane gun was recovered from the Appellant and his co-accused. He however stated under cross examination that it was a locally made pistol that was recovered. While I agree with Appellant’s counsel that there was a contradiction in the evidence of PW4 on the gun, I am however unable to agree with him that this contradiction is material having regard to the offence charged and the circumstances of the case.
The essential ingredient of the offence of armed robbery is whether or not the accused person was armed during the robbery. What will be material to the substance of the charge of armed robbery is whether the Appellant and his co-accused were armed during the robbery operation. PW1 identified the Appellant as the one who held a gun to his head. This evidence of PW1 was not challenged under cross examination. PW2 also testified that the Appellant confirmed to him that he owned the gun recovered. PW3 identified the gun as a locally made pistol. The gun was tendered through PW3
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and admitted in evidence by the trial Court without any iota of objection from the Appellant who was not only in Court but was represented by counsel. To my mind, the contradiction in the evidence of PW4 on the type of gun is not a material contradiction in the present circumstance and I so hold. The totality of the evidence before the trial Court leaves no doubt on the fact that the Appellant was armed with a gun at the time of the robbery.
It is further the argument of learned counsel to the Appellant that the trial Court failed to properly evaluate the evidence of PW1 on the time of the robbery. He submitted there were contradictions in the evidence of PW1 on the timing of the robbery. PW1 is the only eye witness of all the prosecution witnesses on the robbery incident of 28th February, 2012. He gave an account of the incident. He narrated how he came to the sitting room from his bedroom when he heard noise from within the house. He said he met the robbers in the sitting room with his family members. He was led back to his bedroom by the Appellant who collected his Techno Phone from him at gun point. He identified the Appellant and the co-accused as the
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two robbers that came to his house to rob on 28/12/2012.
I have carefully gone through the Record of Proceedings transmitted to this Court. The above narration of the evidence of PW1 as to what transpired in his residence on the robbery incident was not challenged under cross examination. The well settled position of the law is that where an adversary fails to cross examine a witness on a particular matter, it would be taken that he has accepted the truth of the matter as given. See IFEDAYO VS. THE STATE (2018) 4 SC (PT. 6) 103; IGHALO VS. STATE (2016) 17 NWLR (PT. 1540) 1; ESENE VS. STATE (2017) 8 NWLR (PT. 1568) 337 AND OFORLETE VS.STATE (2000) 12 NWLR (PT. 681) 415.
Appellant’s Counsel has however made a heavy weather of the contradiction in the evidence of PW1 on the timing of the alleged incident. According to him this contradiction creates a doubt as to whether there was in fact a robbery incident and that the testimony of PW1 is not worth believing.
The law is settled that the issue of credibility of witnesses is entirely within the purview of the trial Court that saw and had the opportunity to watch the demeanour of the witnesses.
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There is also the presumption that its finding on the credibility of witnesses is correct until the contrary is proved. See DAUDU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 10 NWLR (PT. 1629) 169; POPOOLA VS. STATE (2018) 10 NWLR (PT. 1628) 485; AMADI VS. ATTORNEY GENERAL, IMO STATE (2017) 11 NWLR (PT. 1575) 92 AND ADISA VS. THE STATE (2019) 3 NWLR (PT. 1660) 448.
In ONUOHA & ORS VS. STATE (1989) 2 NWLR (PT. 101)23, Oputa, JSC held as follows:
“Having said that, one should quickly add that there are many hallowed and time honoured factors to be considered when dealing with the question of veracity and credibility of a witness and prominent among these are:-
1. His knowledge of the facts to which he testifies.
2. His disinterestedness.
3. His integrity.
4. Whether the evidence is contradictory or is contradicted by the surrounding circumstances.”
To my mind the alleged contradiction in the evidence of PW1 on the time the offence was committed is not material and I so hold.
It is further the complaint of the Appellant that the trial Court without any corroboration and without ascertaining the veracity of the
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Appellant’s retracted extra judicial statement relied on it to convict him.
An extra judicial statement is a statement made or written outside the Court. See AKPAN VS. STATE (2001) 15 NWLR (PT. 737) 745; AJUDUA VS. FEDERAL REPUBLIC OF NIGERIA (2017) 2 NWLR (PT. 1548) 1.
The extra judicial statements of the Appellant were tendered and admitted in evidence as Exhibits PF2A and PF3B. The two statements were alleged to have been made at the Ifo Police Station and the State Criminal Investigation Department of the Police. Learned Counsel to the Appellant submitted that the Appellant made the statement as a result of torture. It is to be noted that there is no evidence on record that the Appellant was tortured by the police to make the statements. This allegation of torture made by the Appellant’s Counsel goes to the voluntariness or otherwise of the Statement. The settled practice established by law is that where an accused person denies the voluntariness of his extra judicial statement made to the police, he shall object to the admissibility of same at the point of tendering by the prosecution. The trial Court at this stage shall conduct a
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trial within trial to determine the voluntariness or otherwise of such statement. Where an accused person does not raise any objection to the admissibility of the statement at that stage, the statement shall be admitted in evidence. It would then be too late for an accused person that is the Appellant in this instance to come before an Appellate Court to complain that his confession was an aftermath of torture. See BASSEY VS. STATE (2019) 12 NWLR (PT. 1686) 348; OGUNO VS. STATE (2013) 15 NWLR (PT. 1376) 1 AND OLALEKAN VS. THE STATE (2001) 18 NWLR (PT. 746) 793.
Exhibits PF2A and PF3A were tendered before the trial Court through PW3. The Appellant who was represented by Counsel did not challenge the voluntariness of the statement. This Court is therefore not the forum to raise a complaint that the Appellant was tortured to make Exhibits PF2A and PF3A and I so hold. The submission of Appellant’s Counsel that he confessed to the commission of the crime in issue because he was tortured is of no moment and it is accordingly discountenanced by me.
On the weight to be attached to the statement, Appellant’s Counsel argued that the trial Court did
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not seek independent evidence to ascertain whether the content of the statements is probable. He submitted further that the learned trial Judge went ahead to rely on the statements notwithstanding his finding that the Appellant denied making any statement at Ifo Police Station.
The evidence of the Appellant before the trial Court is contained at pages 61 – 63 of the record. In answer to a question put to him under cross examination when he was confronted with Exhibits PF2A and PF3A, he stated as follows:
“I wrote the signature on the two exhibits.”
See Page 63 of the Record.
Above is a confirmation by the Appellant that he signed both statements. It is trite that the signature or thumbprint of an accused person on an extra judicial statement is an integral part of it. The admission by an accused person of his signature on a statement is evidence that he is the maker of the document. See OBIDIOZO & ORS VS. STATE (1987) 4 NWLR (PT. 67)748; SAIDU VS.STATE (1982) NSCC VOL. 13, PG. 70 AND OLAOYE & ANOR VS.THE STATE (2014) LPELR- 22955 (CA).
The Appellant who admitted signing Exhibits PF2A and PF3A has admitted
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authorship of the two statements and I so hold.
I am therefore unable to fault the finding of the learned trial Judge at Pages 81 – 82 of the Record where he stated as follows:
“The statements of the two accused were explicit on how the gun was acquired and how the accused persons met and connived to go and rob the victim with the gun. Exhibit PF2A and PF2B were both made at Ifo police station. The accused admitted that they made statements at State CID Eleweran the statements are PF3A and PF3B, the two were admitted to have been volunteered at Eleweran even though they denied that the content was their statement. The two statements were admitted to have been signed by the accused persons.
Confronted under cross-examination with the statements made at Ifo (PF2A and PF2B) the accused persons admitted signing them too despite their initial denial of making a statement at Ifo Police Station. I find this as contrary to their position that there were no statements made at Ifo. I have considered the position of the accused person, I am of the view that the subsequent denial of the statements made at the police stations is an afterthought.
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I am persuaded that the confessional statements made by the accused shortly after the act are confessions binding on them. It is my belief that at that point when the act was fresh they were remorseful. The subsequent retraction is an afterthought. The confession is in my view reliable coupled with the prevailing facts surrounding it.”
On the submission of Appellant’s Counsel that the learned trial Judge did not test the veracity of Exhibits PF2A and PF3A, I wish to state that the fact that an Accused Person retracts the contents of his extra-judicial statement does not ipso facto make it inadmissible. The Courts have over time developed a test for determining the veracity or otherwise of an extra-judicial statement. They are:
1. Whether there is any evidence outside the confession to show that it is true;
2. Whether it is corroborated no matter how slightly;
3. Whether the facts contained therein so far as can be tested are true;
4. Whether the accused had an opportunity to commit the offence;
5. Whether the confession of the accused person was possible and,
6. Whether the confession was consistent with other
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facts which have been ascertained and proved.
See NWACHUKWU VS. STATE (2007) 17 NWLR (PT; 1062) 580; STATE VS. IBRAHIM (2019) 8 NWLR (PT. 1674)294; OGUDO VS.STATE (2011) 18 NWLR (PT. 1278)1 AND IFEDAYO VS.STATE (2019) 3 NWLR (PT. 1659)265.
The record of proceedings contained in the Record transmitted to this Court show that the prosecution placed before the trial Court the following:
(1) The Testimony of PW1, an eye witness who was robbed by the Appellant.
(2) The Evidence of PW2 that the Appellant and his co-accused confirmed to him that they went to rob with a gun.
(3) PW3 testified that he cautioned the Appellant in English language before he made Exhibit PF3A and that the Appellant signed the statement after confirming the content was true.
I am of the considered firm view that based on the evidence of PW1, PW2 and PW3 the content of Exhibits PF2A and PF3A is probable and I hold that the learned trial Judge was right when he relied on them.
The Appellant at his trial sought to rely on the defence of Alibi. The Word or phrase “alibi” simply means “elsewhere”. Where an accused person raise the
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defence all he is saying is that he was not at scene of the offence when it was committed. That he was somewhere else. It is however the law that where an Accused Person wants to rely on this defence he must raise it promptly, that is, at the earliest opportunity. He must also give adequate and detailed information as regards his whereabouts at the time the offence was committed. This is to enable the police conduct a proper investigation to verify his claim. Where the accused person refuses or fails to provide the details of his whereabouts at the time of the commission of the offence, the police has no burden to investigate his claim and the defence of alibi will not avail him. See NOMAYO VS. THE STATE (2019) 1 NWLR (PT. 1653) 262; ABDULRAHMAN VS. STATE (2019) 5 NWLR (PT. 1664) 162; IKUMONIHAN VS. STATE (2018) 14 NWLR (PT. 1640) 456; EZEKWE VS. STATE (2018) 3-4 S.C. (PT. I)144; AJAYI VS. STATE (2013) 9 NWLR (PT. 1360) 589 AND SOWEMIMO VS.THE STATE (2004) 11 NWLR (PT. 885) 515.
The instant Appellant did not raise the defence of alibi at the earliest opportunity. He raised it for the first time in his defence at the trial. He did not raise it at the time he
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was making his statements to the police and did not give any details to them to enable them carry out any investigation as to his whereabouts at the time of the commission of the offence. He failed to call any evidence to establish his alibi. I wish to state that the defence of alibi crumbles the moment there is superior evidence from the prosecution to show that the Accused was not only at the scene of crime but also committed the offence.
The PW1 in this case gave an unchallenged eye witness account fixing the Appellant not only at the scene of crime but also to the commission of the offence. The defence of alibi does not avail the Appellant and I so hold.
It is premised on all of the foregoing that I agree with the conclusion of the learned trial Judge at page 82 of the Record that the prosecution proved the case of Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act against the Appellant beyond reasonable doubt.
The first count of the charge against the Appellant is that of Conspiracy to commit Armed Robbery. The law is settled that Conspiracy is an agreement by two or more persons in concert or in
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combination to accomplish or commit an unlawful or illegal act with intent to achieve the agreed objective. Conspiracy is usually hatched in secrecy and as such evidence to prove same is usually inferred from surrounding circumstance. See AGUGUA VS. THE STATE (2017) 10 NWLR (PT. 1573)254; STATE VS. SALAWU (2011) 18 NWLR (PT. 1279)580.
In the instant appeal, the trial Court relied on the confession contained in the Appellant’s extra-judicial statement to convict him for the offence of conspiracy.
Learned Counsel to the Appellant urged us to hold that the trial Court was wrong to have done so. I have earlier on held that the contents of the statements, Exhibits PF2A and PF3A are probable. It was also corroborated by the independent evidence of PW1, PW2 and PW3.
The said Statements are Confessional Statements by virtue of Section 28 of the Evidence Act 2011 which provides as follows:
“28. A confession is an admission made at a time by a person charged with a crime, stating or suggesting the inference that he committed the crime.”
I wish to emphasise again that the Appellant raised no objection to the voluntariness of his
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statements when they were tendered. In Exhibit PF3A he stated as follows:
“…I have know (sic) Sodiq Abisile since six years ago from Abule Egba, and I know him as a student then, but on 28/2/2012 at about 06.05am myself and Sodiq Bamisile was coming from Sango Ota to Ifo but when we got to Asimolowo Sawmill at Ifo, there is hold up and we desided (sic) to come down from the commercial bus and our mission from Sango to Ifo is to go and rob people on transit, but as we are going, there is new site but I did not know the area we see one boy outside cutting grass and he was pressing handset we just desided (sic) to go straight to him and I bring out gun telling that boy to go inside there (sic) room, and I ask the father to bring his money and handset when I pointed him gun (sic) …”
The confession made by the Appellant in Exhibit PF3A was freely and voluntarily made. The law is settled that where a confessional statement is direct, positive and unequivocal as to the admission of guilt by an Accused Person, a Court can rely on it to convict him even without any corroboration. See OSENI VS. THE STATE (2012) 5 NWLR (PT. 1293) 351; SALE VS. STATE
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(2020) 1 NWLR (PT. 1705)205; YESUFU VS. STATE (1976) 6 S.C. 167; AGBOOLA VS.STATE (2013) 11 NWLR (PT. 1366) 619; AKIBU VS. STATE (2019) 11 NWLR (PT. 1684) 433. The trial Court was satisfied that the allegation of conspiracy was proved against the Appellant by the confession in his extra-judicial statement. The Court at page 83 of the printed Record held thus:
“In this case, the confessional statements of the accused are clear on the agreement of the parties to commit the offence of armed robbery. Having held earlier that the confessional statements are admitted in evidence. It is easy to hold that there was a meeting of the minds by the two accused in this regard.”
There is nothing on record to justify any interference with the above finding. The confession by the Appellant in Exhibit PF3A is direct and unequivocal. It is fully corroborated by the evidence of PW1. I agree with the trial Court that the offence of Conspiracy to commit Armed Robbery was proved against the Appellant beyond reasonable doubt.
The sole issue formulated for determination is resolved against the Appellant. The offence of Conspiracy to commit Armed Robbery and
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Armed Robbery are proved against the Appellant beyond reasonable doubt.
The Appellant has not made any submission or pointed out contrary evidence that will make it worthwhile to interfere with the finding made by the trial Court. I hold that a case of conspiracy to commit armed robbery is established against the Appellant.
On the whole, I find this appeal devoid of merit and it is accordingly dismissed. I affirm the Judgment of the lower Court in charge NO:HCT/33C/2014 BETWEEN:THE STATE VS. RAMONI ANIMASAHUN & ANOR delivered on 24th of May, 2017.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment delivered by my Lord, FOLASADE AYODEJI OJO, JCA just delivered and I agree with my Lord’s reasoning and conclusion.
Having read the Record of Appeal as well as the briefs of argument by both parties, I am also of the view that this appeal lacks merit and it is also dismissed by me.
HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance the judgment delivered by my learned brother, Folasade Ayodeji Ojo, JCA. I agree with the reasoning and conclusion of my learned brother that this appeal has no merit.
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The facts on record indicate that the Appellant was arrested not far from the scene of crime, after a hot chase. Although it is not the law that the presence of an accused person at the scene of crime is conclusive of his participation in the crime charged, the circumstances of this case conclusively links the Appellants to the commission of the offences, charged.
I therefore find, in agreement with my learned brother, that this appeal is lacking in merit. It is accordingly dismissed.
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Appearances:
Chief T. A. Obisesan, with him, Adekunle Ilori For Appellant(s)
Otenghabun Ebose For Respondent(s)