AUGUSTINE v. STATE
(2021)LCN/15038(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Monday, February 08, 2021
CA/IB/461C/2018
RATIO
ESSENCE OF A REPLY BRIEF
The law is well settled that the essence of a reply brief is to respond to new issues raised in the Respondent’s brief which were not addressed in the Appellant’s brief. Where there is no new issue raised in the Respondent’s brief a reply brief is most unnecessary. A reply brief is not an opportunity for the Appellant to have a second bite at the cherry or to extend the scope of the arguments and submissions in his brief of argument. See MATTHEW VS. STATE (2019) 8 NWLR (PT. 1675) 461; EZEANI VS. FEDERAL REPUBLIC OF NIGERIA (2019) 12 NWLR (PT. 1686) 221 and ALIKOR VS. OGWO (2019) 15 NWLR (PT. 1695) 331. PER FOLASADE AYODEJI OJO, J.C.A.
FACTS TO BE PROVEN TO SECURE A CONVICTION FOR THE OFFENCE OF ARMED ROBBERY
To secure a conviction for the offence of armed robbery, the prosecution must prove the following: 1) That there was a robbery or series of armed robbery. 2) That the robbery was an armed robbery and 3) That the Accused person(s) participated in the Armed Robbery. See UGWU VS. STATE (2020) 8 NWLR (PT. 1723) 259, ALAO VS. STATE (2019) 17 NWLR (PT. 1702) 501 and ZEBULON VS. STATE (2019) 11 NWLR (PT. 1684) 383. PER FOLASADE AYODEJI OJO, J.C.A.
WHETHER A PROSECUTION CAN MAKE A CASE DIFFERENT FROM THAT MADE BEFORE THE TRIAL COURT.
The law is trite that a party should be consistent in stating his case and in proving it. An appeal is not a new action but a continuation of the original suit, the subject of the appeal. It is a continuation of the case. It is therefore not an opportunity for a party to make a case different from that made before the trial Court. A party must be consistent in his case from the Court of first instance to the very end at the Apex Court. A party would therefore not be allowed to approbate and reprobate over the same issue. See ORJI VS. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (Pt. 1663) 480; NKIE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 13 NWLR (Pt. 1424) 305 and SUBERU VS. STATE (2010) 8 NWLR (Pt. 1197) 586.
BURDEN OF PROOF PLACED ON THE PROSECUTION IN CRIMINAL CASES
Section 36(5) of the 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 proved guilty. The burden is on the prosecution. See STATE VS. ZAKARU (2020) 8 NWLR (Pt. 1727) 484; STATE VS. SHONTO (2019) 12 NWLR (Pt. 1686) 255; PHILLIP VS. THE STATE (2019) 13 NWLR (Pt. 1690) 509. See also Section 135(1) to (3) of the Evidence Act 2011. The prosecution has a duty to prove the commission of a crime beyond reasonable doubt. In a bid to discharge the burden of proof placed on it, the prosecution may do so by any or combination of the following methods: (a) Direct evidence of eye witness(es) giving an account of the crime. (b) The confessional statement of the Accused person. (c) Circumstantial evidence. See IORAPUU VS. STATE (2020) 1 NWLR (Pt. 1706) 391; STATE VS. GBAHABO (2019) 14 NWLR (Pt. 1693) 522 and SEUN VS. STATE (2019) 8 NWLR (Pt. 1673) 144. PER FOLASADE AYODEJI OJO, J.C.A.
POSITION OF THE LAW WHERE STOLEN GOODS ARE FOUND IN POSSESSION OF A PERSON AFTER THE COMMISSION OF THE THEFT
In the course of investigation, the police visited the house of the 2nd accused person where other items stolen from PW1’s house on 6th of June, 2014 were found and recovered. This brings me to the doctrine of recent possession on which parties joined issues. Section 167(a) of the Evidence Act 2011 provides as follows: “The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case and in particular the Court may presume that: (a) A man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” It follows therefore that where stolen goods are found in possession of a person after the commission of theft, he is presumed to be the thief or that he received the goods knowing that they were stolen. The only exception is where he is able to give an account of why such goods are in his possession. See EHIMIYEIN VS. STATE (2016) 16 NWLR (PT. 1538) 173; EWUGBA VS. THE STATE (2018) 7 NWLR (PT. 1618) 262; EZE VS. STATE (1985) 3 NWLR (PT. 13) 429. PER FOLASADE AYODEJI OJO, J.C.A.
MEANING OF CIRCUMSTANTIAL EVIDENCE
What then is circumstantial evidence? Circumstantial evidence is based on inference and not on personal knowledge or observation. Such evidence must lead cogently, strongly and unequivocally to the conclusion that the accused person committed the offence for which he was charged. Furthermore, such evidence must point to only one conclusion which is that the offence had been committed and that it was the accused person who committed the offence. There is no definite yardstick to be used as a decision. The circumstantial evidence will depend on the facts of each case but to justify conviction, the circumstantial evidence must lead to the guilt of the accused person with no chance that other persons could have been responsible for the commission of the offence. See ITODO VS. THE STATE (2020) 1 NWLR (Pt. 1704) 1; PAUL VS THE STATE (2019) 12 NWLR (Pt. 1685) 54 OMOREGIE VS STATE (2018) 2 NWLR (Pt. 1604) 505 and IGBIKIS VS. STATE (2017)) 11 NWLR (PT. 1575) 126. PER FOLASADE AYODEJI OJO, J.C.A.
WHETHER THE CONFESSION OF A MAN AGAINST HIMSELF CAN BE RELIED UPON AS EVIDENCE TO CONVICT HIS ACCOMPLICES
It is trite that the confession of a man is evidence against himself and cannot be relied upon as evidence to convict his accomplices. See YUSUF VS. STATE (2019) 10 NWLR (PT. 1680) 269; AJAEGBO VS. STATE (2018) 11 NWLR (PT. 1631) 484 and STATE VS. GWANGWAN (2015) 13 NWLR (PT. 1477) 600.
WHETHER A CONFESSIONAL STATEMENT THAT CONTAINS ANSWERS TO QUESTIONS PUT TO THE ACCUSED CANNOT BE RELIED UPON TO CONVICT HIM
The Supreme Court while shedding light on the effect of confessional statements that contain answers to questions put by the investigating police officer stated as follows in HAMZA VS. STATE (2019) LPELR – 47858 at 14 – 15, per Okoro JSC. “As was held by the Court below, I agree, there is nothing in law which makes a statement inadmissible because it was obtained by questioning the accused person. Appellant relied on the case of Olalekan vs. State (supra). However, I agree with the learned counsel for the Respondent that this Court in Olalekan vs. The State (supra) was addressing a peculiar set of facts which renders the case clearly distinguishable from the instant case. The officer who recorded the confessional statement in Olalekan vs. The State (supra) was different from the officer who interpreted the statement and it therefore became imperative that the interpreter should identify and confirm to the Court the statement he interpreted and that the statement was accurate. Generally, where an accused person is unable to write his statement by himself and the said statement is to be recorded for him by the Investigation Police Officer, the accused may not know what should be the content of the statement. The police need to ask him of his name, address, occupation and other details about himself. Again, the police will need to ask the accused about his involvement in the crime he is alleged to have committed. I do not think it is necessary for the police to make a list of those questions and answers available before the statement can be admitted.” PER FOLASADE AYODEJI OJO, J.C.A.
EVIDENCE: PURPOSE OF CORROBORATION
The purpose of corroboration is to confirm and support a piece of credible and admissible evidence. Corroborative evidence is that additional evidence that confirms another piece of evidence that links an accused person to the offence he is charged with. See SANI VS. STATE (2020) 11 NWLR (Pt. 1736) 490, FOLORUNSO VS. STATE (2020) 15 NWLR (Pt. 1746) 33; STATE VS. GWANGWAN (2015) 13 NWLR (Pt. 1477) 600 and DAGAYYA VS. STATE (2006) 7 NWLR (Pt. 980) 537. PER FOLASADE AYODEJI OJO, J.C.A.
WHETHER A CONFESSIONAL STATEMENT ALONE IS SUFFICIENT TO GROUND AND SUPPORT CONVICTION
It is settled law that once a Court is satisfied of the truth of a confessional statement, the statement alone is sufficient to ground and support conviction. A confessional statement that has satisfied all legal requirements is sufficient to sustain the charge against the maker. See AKPAKPAN VS. STATE (2020) 9 NWLR (PT. 1728) 23; TOPE VS. STATE (2019) 15 NWLR (PT. 1695) 289 and SAMINU VS. STATE (2019) 11 NWLR (PT. 1683) 254. PER FOLASADE AYODEJI OJO, J.C.A.
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
MOSES AUGUSTINE APPELANT(S)
And
THE STATE RESPONDENT(S)
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court sitting in its Abeokuta Judicial Division in Suit Nos: AB/4R/2017 delivered on the 30th of August, 2018.
The Appellant and one Ezekiel Babatunde were convicted of the offences of armed robbery and conspiracy to commit armed robbery contrary to Section 1 (2)(a) and 6 (b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria and were sentenced to death.
A summary of the background facts which led to the trial of the Appellant and his co-accused are as stated in the judgment of the trial Court at pages 83 – 84 as follows:
“The summary of the case of the prosecution against the accused person is that on the 6th of June, 2014, at about 12am, they in company with others, at Redeemed Street, Federal Housing Estate, Olomore, Abeokuta while armed with gun and cutlass, robbed one Adamo Lukman of his valuables.
None of the accused persons was arrested at the scene of the crime. However on the 14th of June, 2014, the 2nd accused was arrested at the scene of the crime.
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However, on the 14th of June, 2014, the 2nd accused was arrested by the police at Oja-Odan area, not for his crime, but purportedly in an attempt to commit another robbery. He told the police that the 1st accused was a member of his robbery gang and proceeded to take them to his (1st accused’s) house. The house of the 1st accused person happened to be next door to that of Adamo Lukman who was robbed on the 6th of June, 2014. The arrival of the Police and the 2nd accused on the street attracted a crowd, which included Adamo Lukman.
Adamo Lukman noticed that the 2nd accused was wearing a T-Shirt which was one of the items stolen from his house on the 6th of June, 2014. Upon a further visit to the police station, he also identified his phone and window blinds which were equally part of the items stolen from him and said to have been recovered by the police during a search of the house of the 2nd accused.”
At the trial, the prosecution called three (3) witnesses and tendered the extra judicial statements of the Appellant in evidence. The Appellant gave evidence in his defence and called no witness.
In a considered judgment
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delivered on the 30th of August, 2018, he was convicted and sentenced to death by hanging.
Aggrieved by the judgment, the Appellant filed a notice of appeal consisting of only one (1) ground of appeal on the 5th of September, 2018. The notice was later amended by an order of this Court. The amended notice of appeal was filed on 19th December, 2018 and deemed as properly filed on 28th of May, 2020. It contains three grounds of appeal.
Parties filed and exchanged briefs of argument. The appellant’s brief of argument settled by Dr. Yemi Oke was filed on 19th of December, 2018 and deemed as properly filed on the 24th of June, 2020. The Respondent’s brief of Argument settled by Oluwakemi A. Lawal was filed on the 3rd of March, 2020 and deemed as properly filed on 24th of June, 2020. The Appellant also filed an Appellant’s reply brief of Argument on the 7th of September, 2020.
The following three issues were submitted on behalf of the Appellant for determination of this appeal:
1) Whether the prosecution has established the three ingredients of armed robbery beyond reasonable doubt to warrant the conviction of the Appellant (Ground 1).
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2) Whether the uncorroborated evidence of PW1 is sufficient to convict the Appellant (Ground 3).
3) Whether the trial Court was right when it relied on the confessional statement of the Appellant in convicting the Appellant when the said confessional statement was a mere question and answer and not attested by a superior officer? (Ground 2).
For his part, learned counsel to the Respondent formulated a sole issue for determination to wit.
“Whether the prosecution proved its case beyond reasonable doubt to warrant a conviction of the Appellant for the offences with which he has been charged.”
I have examined the issues formulated for the determination of this appeal by both parties. The sole issue formulated on behalf of the Respondent is all encompassing. I shall therefore determine this appeal on the sole issue identified by the Respondent. All submission of learned counsel to the Appellant on the three issues submitted by him shall be considered together under the sole issue of the Respondent.
In arguing the first issue he formulated for the determination of this appeal, learned counsel to the Appellant reiterated
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the position of the law on the three ingredients to be proved to secure a conviction for the offence of armed robbery and cited the cases of IKARIA VS. THE STATE (2012) SCNJ 325 and AROWOJOLU VS. STATE (2016) LPELR–40156 (CA). He submitted the first ingredient of the offence of armed robbery was not proved as the prosecution failed to prove that there was a robbery incident at Redeemed Street, Federal Housing Estate, Abeokuta on 6th of June, 2014. He submitted further that PW1, the alleged victim who gave evidence that he reported the robbery incident to the police failed to name the Investigating Police Officer who investigated his complaint. Learned counsel also faulted the evidence of PW3 that he investigated the complaint because he failed to tender the report of the complaint made by PW1 and his investigation report. All these he said cast a doubt on the case of the prosecution which doubt must be resolved in favour of the Appellant. He called in aid of his argument the case of AUDU VS. FRN (2017) LPELR – 43223 (CA).
He submitted that failure to produce the investigation report and complaint report is fatal to the case of the prosecution
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and relied on the cases of THE STATE VS. ANIBIJUWON & ORS (2011) LPELR–8804 (CA) and ADENIKEN VS. STATE (2012) LPELR–8433 in support.
He also argued that the fact that the Appellant knew the 2nd Accused prior to the alleged robbery is not evidence that he participated in the commission of the offence.
Learned counsel further submitted that the confessional statement of an accused cannot be relied upon to convict a co-accused person and craved in aid of his submission the case of YONGO & ANOR VS. COP (1992) LPELR–3528. He said the Appellant who was not correctly identified as one of those who participated in the armed robbery cannot be convicted on the confessional statement of a co-accused alone.
He finally on this issue urged us to set aside the conviction of the Appellant on the ground that the prosecution did not adduce sufficient evidence to prove the three ingredients of the offence of armed robbery.
On his issue number two, which is whether the uncorroborated evidence of PW1 is sufficient to convict the Appellant, counsel referred us to the cases of MOHAMMED VS. KANO STATE (2018) LPELR–43913 (SC);
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AKPAN VS. STATE (2014) LPELR – 22741 (CA) on the definition of corroboration. He then submitted that the evidence of PW1 that he was robbed on the 6th of June, 2014 was not corroborated by independent evidence and that the trial Court was in error when it attached probative value to the evidence. He cited the case of THE STATE VS. AZEEZ & ORS (2008) LPELR–3215 in support.
The third issue formulated on behalf of the Appellant is,
“Whether the trial Court was right when it relied on the confessional statement of the Appellant in convicting the Appellant when the said confessional statement was a mere question and answer and not attested by a superior office?”
On this issue, learned counsel to the Appellant submitted that the Appellant’s confessional statement should have been disregarded and not relied upon by the Court to convict him. He contended that since the Appellant retracted the confessional statement in Court, the Court had a duty to test its veracity which it failed to do, and also that the evidence of PW2 and PW3 did not connect the Appellant with the robbery of 6th of June, 2014 and that of 13th of June, 2014.
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He went on further to argue that the confessional statement of an accused person borne out of questions put to him is not admissible in evidence. He craved in aid of his submission the case of MANSHEP NAMSOH VS. THE STATE (1993) 6 SCNJ (PT. 155). He further submitted that the failure of the investigating police officer to take the Appellant to a Superior Police Officer to verify the voluntariness of his confessional statements, Exhibits 5 and 6 should affect the weight attached to it.
He finally urged us to allow this appeal and set aside the judgment of the trial Court.
For her part, learned counsel to the Respondent conceded that in a charge of armed robbery, the prosecution has a duty to prove three ingredients. On the issue of corroboration raised by Appellant’s counsel, she submitted the evidence of an eye witness does not require corroboration. He relied on the case of OLAYINKA VS. THE STATE (2007) 8 SCM 193 AT 209 to submit that the evidence of PW1 who was the victim of the armed robbery of 6th June, 2014 and an eye witness does not require corroboration.
On proof of the ingredients of the offence of armed robbery by the
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Respondent, she submitted the Appellant conceded at the trial Court that the prosecution proved the first two ingredients of the offence and urged us not to disturb the findings of the trial Court on this point.
She relied on the case of JIMOH VS. THE STATE (2018) LPELR-44074 to state the well settled position of law that commission of crime may be proved by three methods and submitted that the Appellant was arrested through strong circumstantial evidence founded on the doctrine of recent possession. On the doctrine of recent possession, learned counsel referred us to the case of ISIBOR VS. STATE (2002) 4 NWLR (PT. 758) 741. She further submitted that the statement of the Appellant is a confessional one which is sufficient to convict him. She relied on the cases of NWACHUKWU VS. STATE (2002) LPELR – 2084 (SC) and ADEKOYA VS. STATE (2012) LPELR SC 4312011 to support her argument.
On the need to take an accused person before a senior police officer to counter sign his confessional statement, counsel submitted it is not mandatory for a senior police officer to verify the confessional statement made by an accused person. She called in aid of her
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submission the case of BASSEY VS. STATE (2016) LPELR – 41229 (CA) and urged us to hold that failure to take the statement made by the Appellant to a superior police officer for verification is not fatal.
Still on the statement of the Appellant, she submitted that the Appellant did not object to the statement on the ground that it was not made voluntarily and urged us to affirm the finding made by the trial Court that Exhibit 5 passed the truth test. She finally urged us to dismiss this appeal and affirm the decision of the trial Court.
Learned counsel to the Appellant in the Appellant’s reply brief of argument urged us to discountenance the Respondent’s brief for being incompetent.
On the doctrine of recent possession, he referred us to Section 167 (a) of the Evidence Act, 2011 and the cases of THE PEOPLE OF LAGOS STATE VS. UMARU (2014) LPELR 22466 (SC) R VS. GRILIOPOULOS (1953) 20 NLR 114 and EZE VS. THE STATE (1985) 3 NWLR (PT. 13) 429 to submit that some other incriminating circumstances must exist for the presumption raised by the doctrine to be applicable. He then proceeded to re-argue the essence of corroboration and the
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need to corroborate the evidence adduced by PW1. He rehashed the arguments made in the Appellant’s brief of argument on the point that the Appellant’s confessional statement was not taken before a superior police officer.
The law is well settled that the essence of a reply brief is to respond to new issues raised in the Respondent’s brief which were not addressed in the Appellant’s brief. Where there is no new issue raised in the Respondent’s brief a reply brief is most unnecessary. A reply brief is not an opportunity for the Appellant to have a second bite at the cherry or to extend the scope of the arguments and submissions in his brief of argument. See MATTHEW VS. STATE (2019) 8 NWLR (PT. 1675) 461; EZEANI VS. FEDERAL REPUBLIC OF NIGERIA (2019) 12 NWLR (PT. 1686) 221 and ALIKOR VS. OGWO (2019) 15 NWLR (PT. 1695) 331.
The Appellant used his reply brief of Argument to re-argue issues relating to corroboration and the need to take confessional statements before a superior police officer. This definitely is not the purpose of a reply brief. All issues re-argued in the reply brief shall therefore be discountenanced by me.
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The Appellant urged us to discountenance the Respondent’s brief of argument for being incompetent. He however did not give any reason to support the allegation of incompetence. The Respondent’s brief of argument filed on 3rd of March, 2020 was deemed properly filed on the 24th of June, 2020.
In the case of ORJI VS. DORJI TEXTILE MILLS (NIGERIA) LTD. (2009) 18 NWLR (PT. 1173) 467 AT 497 PARAS D-F, the Supreme Court Per Tobi JSC held that the word “deem” means to treat a thing as being something that it is not or as possessing certain qualities that it does not possess.
The Respondent’s brief of argument having been deemed as properly filed by this Court, it follows that whatever defect is in the process has been waived. The deeming order made the Respondent’s brief competent. I find no merit in the complaint of the Appellant’s counsel that the Respondent’s brief is incompetent and I so hold.
The Appellant was convicted for the offences of conspiracy to commit armed robbery and armed robbery. To secure a conviction for the offence of armed robbery, the prosecution must prove the following:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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1) That there was a robbery or series of armed robbery.
2) That the robbery was an armed robbery and
3) That the Accused person(s) participated in the Armed Robbery.
See UGWU VS. STATE (2020) 8 NWLR (PT. 1723) 259, ALAO VS. STATE (2019) 17 NWLR (PT. 1702) 501 and ZEBULON VS. STATE (2019) 11 NWLR (PT. 1684) 383.
Learned counsel to the Respondent argued that at the trial before the lower Court, the Appellant conceded the prosecution proved the first two ingredients of the offence. The Appellant’s counsel denied this fact.
It is therefore necessary to determine whether all the ingredients of the offence have been proved according to law.
The learned trial Judge at pages 91-92 of the printed record held as follows:
“Both learned counsel agree that the first two ingredients of the charge have been proved by the prosecution, but differ on the third. What is admitted requires no further proof for the avoidance of any doubt, I find and hold, from the evidence, that the first two ingredients have been proved by the prosecution as agreed by both counsel. The crux of this case is the third ingredient. And the question to
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determine is whether there is sufficient evidence before the Court to prove beyond reasonable doubt, that the accused persons carried out or participated in the armed robbery that took place on the 6th of June 2014 against PW1 and his family.”
Learned counsel to the Appellant has come before us to argue that the prosecution failed to prove the first two ingredients of the offence for which the Appellant was charged and convicted to wit: (1) there was a robbery and (2) That the robbery was armed robbery.
In KAZA VS. STATE (2008) 7 NWLR (PT. 1085) 125 AT 191-192 PARAS H-A, I. T. MUHAMMAD JSC (now CJN) held that although a counsel’s address is not evidence in itself, it forms part of the case.
The final written address of the Appellant’s counsel before the trial Court filed on 26th April, 2018 is at pages 65-70 of the Record. In Paragraph 3.08 to 3.10 of the address contained at page 66 of the record counsel submitted as follows:
“3.08 – My Lord, I submit with respect that there is that piece of evidence that there was a robbery on the 6th day of June 2014 which in effect is a positive proof of the first
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(1st) ingredient to establish the charge of armed robbery.
3.09 – The second (2nd) ingredient from the evidence of PW1 was to the effect that a gun was pointed at him during the deadly and scaring operation. A cutlass that was also used on him by beating him with same.
3.10 – No doubt my lord, that robbery was an armed robbery. The prosecution successfully proved these 2 ingredients.”
It is very clear from the above submissions of counsel made on behalf of the Appellant that he conceded the Prosecution/Respondent proved the first two ingredients of the offence of Armed Robbery. The law is trite that a party should be consistent in stating his case and in proving it. An appeal is not a new action but a continuation of the original suit, the subject of the appeal. It is a continuation of the case. It is therefore not an opportunity for a party to make a case different from that made before the trial Court. A party must be consistent in his case from the Court of first instance to the very end at the Apex Court. A party would therefore not be allowed to approbate and reprobate over the same issue. See
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ORJI VS. FEDERAL REPUBLIC OF NIGERIA (2019) 4 NWLR (Pt. 1663) 480; NKIE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 13 NWLR (Pt. 1424) 305 and SUBERU VS. STATE (2010) 8 NWLR (Pt. 1197) 586.
The learned trial Judge in his judgment held as follows:
“For the avoidance of doubt and hold from the evidence, that the first two ingredients have been proved by the prosecution, as agreed by both counsel.”
I have gone through the record and I also find that there is evidence to establish the first two ingredients of the offence. Counsel on both sides agreed before the trial Court that the two ingredients were proved by the prosecution.
In the circumstance, learned counsel to the Appellant cannot come before us to make a case different from that he made at the trial Court. The finding of the trial Judge that the first two ingredients of the offence of armed robbery were proved cannot be faulted and it is accordingly affirmed.
Having found that the Respondent proved that there was a robbery on the 6th of June, 2014 during which PW1 and his family were robbed and that the robbery was armed robbery, what is left is whether or not the prosecution proved that the Appellant
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participated in the robbery as the law is that all the three ingredients must be proved to secure a conviction.
Section 36(5) of the 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 proved guilty. The burden is on the prosecution. See STATE VS. ZAKARU (2020) 8 NWLR (Pt. 1727) 484; STATE VS. SHONTO (2019) 12 NWLR (Pt. 1686) 255; PHILLIP VS. THE STATE (2019) 13 NWLR (Pt. 1690) 509. See also Section 135(1) to (3) of the Evidence Act 2011.
The prosecution has a duty to prove the commission of a crime beyond reasonable doubt. In a bid to discharge the burden of proof placed on it, the prosecution may do so by any or combination of the following methods:
(a) Direct evidence of eye witness(es) giving an account of the crime.
(b) The confessional statement of the Accused person.
(c) Circumstantial evidence.
See IORAPUU VS. STATE (2020) 1 NWLR (Pt. 1706) 391; STATE VS. GBAHABO (2019) 14 NWLR (Pt. 1693) 522 and SEUN VS. STATE (2019) 8 NWLR (Pt. 1673) 144.
It is evident from the record that the Respondent as prosecution
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at the trial Court relied on a combination of the foregoing methods to discharge the burden of proof beyond reasonable doubt that the Appellant participated in the armed robbery, the subject of this appeal.
The evidence on record is that the police arrested one Ezekiel Babatunde who was the 2nd accused person at the trial of the Appellant for a robbery that took place at a village called Koysejo in Ogun State. He was arrested at the scene of crime when he attempted to escape. In the course of investigation, he confessed to the police that the Appellant was a member of his robbery gang and led them to his residence. At the residence of the Appellant, one Adamu Lukman (PW1) who lived very close to him identified the T-Shirt worn by Ezekiel Babatunde as part of the items stolen from his house when he was robbed on the 6th of June, 2014. It was the information given by PW1 that marked the commencement of police investigation into the armed robbery incident at the residence of PW1 on 6th of June, 2014 for which the Appellant stood trial and was convicted.
In the course of investigation, the police visited the house of the 2nd accused person where other
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items stolen from PW1’s house on 6th of June, 2014 were found and recovered. This brings me to the doctrine of recent possession on which parties joined issues. Section 167(a) of the Evidence Act 2011 provides as follows:
“The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case and in particular the Court may presume that:
(a) A man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”
It follows therefore that where stolen goods are found in possession of a person after the commission of theft, he is presumed to be the thief or that he received the goods knowing that they were stolen. The only exception is where he is able to give an account of why such goods are in his possession. See EHIMIYEIN VS. STATE (2016) 16 NWLR (PT. 1538) 173; EWUGBA VS. THE STATE (2018) 7 NWLR (PT. 1618) 262; EZE VS. STATE (1985) 3 NWLR (PT. 13) 429.
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The items stolen from PW1’s residence were found in the residence of the 2nd accused person, Ezekiel Babatunde and not that of the Appellant. The doctrine of recent possession will therefore not operate against him.
The question now is whether the prosecution adduced sufficient evidence to justify the conviction of the Appellant. PW3 testified that it was the Appellant that gave information that PW1 had money in his house to the armed robbery gang. The trial Court relied on the evidence of PW3 and the circumstances of the arrest of the Appellant to convict him.
What then is circumstantial evidence? Circumstantial evidence is based on inference and not on personal knowledge or observation. Such evidence must lead cogently, strongly and unequivocally to the conclusion that the accused person committed the offence for which he was charged. Furthermore, such evidence must point to only one conclusion which is that the offence had been committed and that it was the accused person who committed the offence. There is no definite yardstick to be used as a decision. The circumstantial evidence will depend on the facts of each case but to
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justify conviction, the circumstantial evidence must lead to the guilt of the accused person with no chance that other persons could have been responsible for the commission of the offence.
See ITODO VS. THE STATE (2020) 1 NWLR (Pt. 1704) 1; PAUL VS THE STATE (2019) 12 NWLR (Pt. 1685) 54 OMOREGIE VS STATE (2018) 2 NWLR (Pt. 1604) 505 and IGBIKIS VS. STATE (2017)) 11 NWLR (PT. 1575) 126.
The evidence that some of the stolen items were found in the residence of the 2nd Accused and no more does not constitute circumstantial evidence sufficient to convict the appellant.
The 2nd Accused person in his confessional statement tendered and admitted in evidence as Exhibit 6 stated it was the Appellant who provided the information they acted on to rob PW1. This confession is not sufficient to nail the Appellant. It is trite that the confession of a man is evidence against himself and cannot be relied upon as evidence to convict his accomplices. See YUSUF VS. STATE (2019) 10 NWLR (PT. 1680) 269; AJAEGBO VS. STATE (2018) 11 NWLR (PT. 1631) 484 and STATE VS. GWANGWAN (2015) 13 NWLR (PT. 1477) 600.
The Appellant’s statement to the police was tendered
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and admitted in evidence as Exhibit 5. I have gone through it. It contains an admission on the part of the Appellant to the commission of the offence. He admitted participating in the robbery of 6th of June, 2014. He stated in Exhibit 6 as follows:
“On 6th of June, 2014 at about 00:00 hrs beside my house where I stayed at Olomore Abeokuta four of us excluding Ijato “m”. We entered the house and robbed people in two rooms with the said locally made gun and knife. We stole four different handsets, money and cloths. I am the one that gave them the work. We tied their hands and lied them down before we robbed them.”
Section 28 of the Evidence Act 2011 provides as follows:
“A confession is an admission made by a person charged with crime, stating or suggesting the inference that he committed the crime.”
See also JOHN VS. STATE (2016) 11 NWLR (PT. 1523) 191; ALO VS. STATE (2015) 9 NWLR (PT. 1464) 238 and ADEBAYO VS. STATE (2014) LPELR – 22988 (SC)
Learned Counsel to the Appellant urged us to discountenance Exhibit 5. One of the grounds on which he based his argument is that the said confessional
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statement contains answers to questions put to the Appellant. He submitted the said statement cannot be relied upon to convict the Appellant. He relied on the case of MANSHEP NAMSOH VS. THE STATE (1993) 6 SCNJ (PT. 1) PG. 55.
The Supreme Court while shedding light on the effect of confessional statements that contain answers to questions put by the investigating police officer stated as follows in HAMZA VS. STATE (2019) LPELR – 47858 at 14 – 15, per Okoro JSC.
“As was held by the Court below, I agree, there is nothing in law which makes a statement inadmissible because it was obtained by questioning the accused person. Appellant relied on the case of Olalekan vs. State (supra). However, I agree with the learned counsel for the Respondent that this Court in Olalekan vs. The State (supra) was addressing a peculiar set of facts which renders the case clearly distinguishable from the instant case. The officer who recorded the confessional statement in Olalekan vs. The State (supra) was different from the officer who interpreted the statement and it therefore became imperative that the interpreter should identify and confirm to the Court
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the statement he interpreted and that the statement was accurate.
Generally, where an accused person is unable to write his statement by himself and the said statement is to be recorded for him by the Investigation Police Officer, the accused may not know what should be the content of the statement. The police need to ask him of his name, address, occupation and other details about himself. Again, the police will need to ask the accused about his involvement in the crime he is alleged to have committed. I do not think it is necessary for the police to make a list of those questions and answers available before the statement can be admitted.”
I have gone through the case of NAMSOH VS. THE STATE (supra) relied upon by the Appellant’s counsel and I am of the view that the Supreme Court did not lay down a general principle of law that a confessional statement obtained by question and answer session is automatically involuntary and inadmissible as canvassed by Appellant’s Counsel. See the case of STATE VS. JIMOH SALAWU (2011) 18 NWLR (PT. 1279) 883 at 908 – 909 where TABAI JSC held as follows:
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“…..From the above text, there is one clear striking feature in the Namsho’s case. It is that the Police Sgt. (PW7) who recorded the statement of the accused person was armed with a sheet of paper which contained selected questions already prepared by his superiors and designed to excite from him self-implicating answers. It was the view of this Court therefore that the alleged statement of the accused person made up of answers to such specially prepared questions could not be said to be free and voluntary.
That situation does not exist in this case. Unlike the Namsoh’s case, there is in this case no evidence of the specific questions asked by the PW1, in response to which the admissions in Exhibits 1, 2 and 3 were made. Nor was there evidence that the facts constituting the admissions in the said statements were prompted by the questions from PW1.
It is perhaps necessary to emphasize that it is not a rule of our Criminal Procedure Law and the law of evidence that where in the course of recording the statement of an accused person, a police officer asks questions and records the answers by the accused therein, the statement automatically becomes involuntary
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and thus inadmissible in law. That was not the principle upon which Namsoh’s case was decided by this Court. A careful look at the Namsoh’s case shows that the specially prepared questions were oppressive of the accused in the sense that they were meant to sap and indeed sapped the free will of the accused person and thus rendered his ensuing statement involuntary. It is my firm view and I hold with respect that Namsoh vs. State (supra) is quite distinguishable from this case and was therefore wrongly applied by the Court below. The mere assertion by the PW1 that in the course of recording the statements of the Respondent he asked questions and recorded the answers does not ipso facto render the statements involuntary. An alleged confessional statement made by an accused person to the police only becomes objectionable and inadmissible in evidence in a criminal proceeding, if the making of the confession is proved to have been prompted by any inducement, threat or promise by the police and sufficient to give the accused person the impression that by making it he would gain an advantage or avoid an evil….”
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There is no evidence on record that the questions put to the Appellant were meant to restrict him to certain answers. It is very significant to note that the Appellant did not object to the admissibility of his statement on the ground of involuntariness. The ground of his objection was that he was not the author of the statement. He denied making the statement, Exhibit 5 or any statement at all.
I find no merit in the complaint of Appellant’s counsel that Exhibit 5 should be discountenanced, because it is a product of a question and answer session. The argument is discountenanced.
Still on why Exhibit 5 should not have been relied upon, learned counsel argued that failure to take the Appellant before a superior officer for attestation of his statement was fatal. I am afraid this practice of having a superior police officer to verify and confirm the voluntariness of a confessional statement does not have the force of law. Even though desirable, failure to do so attracts no sanction under the law. See AJIBOYE VS. FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (Pt. 1637) 430; EHIMIYEIN VS. STATE (2016) 16 NWLR (Pt. 1538) 173; KASA VS. STATE (1994) 5 NWLR (Pt. 344) 269.
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Failure to take the Appellant before a Superior Police Officer for verification of his statement is not fatal and I so hold.
In any event, the position of the Appellant on Exhibit 5 is a total denial of its existence. He denied making it. In his oral evidence before the trial Court, the Appellant denied making any statement to the police. He retracted the confession made in Exhibit 5.
The law is that where an accused person retracts his statement at his trial, it is desirable to have evidence to corroborate it no matter how slight before convicting on such confession. Before convicting on a retracted statement, the Court is enjoined to ask the following questions:
i) Is there anything outside the confession which shows that it may be true?
ii) Is it corroborated in anyway?
iii) Are the relevant statements of fact made in it most likely true as far as they can be tested?
iv) Did the Accused have an opportunity to commit the offence?
v) Is the confession possible?
vi) Is the confession consistent with other facts which have been ascertained and established?
The Appellant in his statement Exhibit 5 confessed he was
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introduced into armed robbery on 31st March, 2014 and that he gave information which led to the armed robbery incident of 6th June, 2014. He further gave an account of how they carried out the operation and listed the items stolen during the operation. He stated as follows in Exhibit 5:
“On 6th June, 2014 at about 00hrs beside my house where I stayed at Olomore Abeokuta, four of us excluding Ijako “m” we entered the house and robbed people in two rooms with the said locally made gun and stole four different handsets, money and cloths. I am the one that gave them the work. We tied their hands and lied them down before we robbed them.”
P.W.1 who was the victim of the robbery listed the items collected from him during the operation to include four handsets. He also gave evidence that the armed robbers tied his hands. His evidence is as follows:
“They collected One hundred and three thousand Naira from me, 2 NOKIA phones, one Samsung Galaxy and Techno DI. They also packed away all the baby things that we bought in anticipating our new baby, gas cylinder and my window blinds, they tied my hands with pressing iron wire and
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my legs with my bed sheet.”
The evidence of P.W.1 on the number of handsets stolen from him tallies with the confession of the Appellant in Exhibit 5. PW1’s evidence is that four handsets were stolen from him. He gave the make of the handsets. The Appellant stated in Exhibit 5 that they stole four handsets during the robbery. The Appellant further stated that they tied the hands of the victim. PW1 in his oral testimony said the robbers who came to his house tied his hands during the robbery. P.W.3, the investigation police officer who investigated the incident testified that some of the items stolen from PW1’s house were recovered from the residence of the 2nd Accused person.
The evidence of PW1 and PW3 corroborate the confession of the Appellant in Exhibit 5. In other words, the confession of the Appellant is consistent with the evidence of PW1 and P.W.3 and I so hold.
The purpose of corroboration is to confirm and support a piece of credible and admissible evidence. Corroborative evidence is that additional evidence that confirms another piece of evidence that links an accused person to the offence he is charged with.
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See SANI VS. STATE (2020) 11 NWLR (Pt. 1736) 490, FOLORUNSO VS. STATE (2020) 15 NWLR (Pt. 1746) 33; STATE VS. GWANGWAN (2015) 13 NWLR (Pt. 1477) 600 and DAGAYYA VS. STATE (2006) 7 NWLR (Pt. 980) 537.
To my mind the evidence of P.W.1 and P.W.3 corroborates the confession of the Appellant in Exhibit 5. The confession in Exhibit 5 is consistent with the evidence of PW1 and P.W.3. The effect of this is that the confession in Exhibit 5 may be true. Furthermore, the fact that the Appellant lived next door to the victim (PW1) is enough opportunity for him to be in a position to provide information to other gang members for the operation they carried out on 6th June, 2014. He had the opportunity to commit the offence with which he was charged. From all of the above, I am of the firm view that the confession contained in Exhibit 5, the Appellant’s statement is possible. I have subjected the statement to the veracity test and I am satisfied that it passed. The trial Court was right when it relied on it and I so hold.
It is settled law that once a Court is satisfied of the truth of a confessional statement, the statement alone is sufficient to ground and
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support conviction. A confessional statement that has satisfied all legal requirements is sufficient to sustain the charge against the maker. See AKPAKPAN VS. STATE (2020) 9 NWLR (PT. 1728) 23; TOPE VS. STATE (2019) 15 NWLR (PT. 1695) 289 and SAMINU VS. STATE (2019) 11 NWLR (PT. 1683) 254.
From all of the foregoing, it is apparent that the prosecution proved that the Appellant participated in the armed robbery at PW1’s residence on the 6th of June, 2014 and I so hold. It follows therefore that the prosecution proved all the three ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt. I have no reason whatsoever to disturb the findings and conclusion of the learned trial Judge that the prosecution proved the offence of armed robbery against the Appellant.
The Appellant stood trial on a two count charge for the offences of armed robbery and conspiracy to commit armed robbery. He was convicted and sentenced on both counts. The trial Judge in his judgment at page 96 of the record held thus:
“On count 2, which is conspiracy, it is equally clear from the totality of the evidence before this Court that the
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two accused persons, acting in concert with other members of their gang now at large, agreed together to carry out the unlawful act of armed robbery and actively participated in it. I am satisfied that the prosecution has proved this count of conspiracy and also find the accused persons guilty as charged. See UBIERHO VS. STATE (2005) NWLR (PT. 919) 644; ALARAPE VS. STATE (2001) 5 NWLR (PT. 705) 79.”
The extant notice of appeal is the amended notice of appeal filed on 19/12/18 and deemed on 28/5/2020. It contains three grounds of appeal.
I have carefully examined the three grounds of appeal and their particulars and I cannot find any complaint against the conviction of the Appellant for the offence of conspiracy to commit armed robbery. The arguments in the Appellant’s brief of argument are centred on the conviction of the Appellant for the offence of armed robbery. It appears to me that the Appellant is satisfied with his conviction for the offence of conspiracy to commit armed robbery.
The decision of a competent Court is presumed correct until set aside by an appellate Court. The law is that where a Court has made a finding of fact
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or pronouncement on an issue and a party affected by it fails to challenge it by an appeal, he is deemed to have accepted such pronouncement as proper. The effect is that a decision not appealed against subsists. See ABBEY VS. STATE (2018) 13 NWLR (PT. 1600) 183; DURU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 6 NWLR (PT. 1361) 441 and DAWAI VS. STATE (2018) 5 NWLR (PT. 1613) 499.
In MICHAEL VS. STATE (2008) 13 NWLR (PT. 1104) 361 AT 373 PARAS F-H, Musdapher JSC held as follows:
“The appeal by the Appellant is confined to the affirmation of the conviction of the Appellant by the Court of Appeal on the offences of culpable homicide and mischief by fire.
The Appellant did not appeal against his conviction on criminal conspiracy. It is the law that where there is an appeal on some points only on a decision, the appeal stands or falls on those points appealed against only while the other points on decision not appealed remain unchallenged.
So, in instant case, the issue of criminal conspiracy and of armed robbery stand accepted as correct by the Appellant and discussion on them does not arise.”
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Furthermore, in EZEANI VS. FEDERAL REPUBLIC OF NIGERIA (2019) 12 NWLR (PT. 1686) 221 AT 245-246 PARAS H-A, Okoro JSC held as follows:
“It has to be noted that the Appellant, either at the Court below or in this Court, has not appealed against the finding that the evidence of prosecution witnesses was not controverted or impeached in any material particular. Thus the Appellant is bound by these findings.”
In the circumstance, the decision of the lower Court on the offence of conspiracy to commit armed robbery is unchallenged. It subsists, and I so hold. In conclusion, it follows that the sole issue adopted for the resolution of this appeal is resolved against the Appellant. This being so, this appeal is devoid of merit and it is accordingly dismissed.
The judgment of the Ogun State High Court in charge Nos. AB/4R/2018 delivered on the 30th of August, 2018 wherein the Appellant was found guilty of the offences of conspiracy to commit armed robbery and armed robbery is hereby affirmed.
JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft the lead Judgment of my Lord FOLASADE AYODEJI OJO, JCA, just delivered.
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My Lord has dealt with the issue in this appeal adequately and I agree with the reasons given therein as well as the conclusion reached.
Having also read the record of appeal and the briefs of argument filed and exchanged on behalf of the parties, I cannot gloss over the fact that the Appellant admitted the commission of the offence for which he was charged and convicted. In fact, he admitted participating in the robbery of 6/6/2014 in the statement he made to the Police. As it stands, I am of the view that the Appellant cannot lie against himself. If an accused person says that he committed the offence he was charged with and the Court is of the view that he made the confession in a stable mind, then such an accused cannot escape conviction.
In view of the foregoing and for the fuller reasons in the lead Judgment, I am also of the view that this appeal lacks merit and it is hereby dismissed.
HARUNA SIMON TSAMANNI, J.C.A.: My learned brother, Folasade Ayodeji Ojo, JCA gave me the benefit of reading in advance, the draft of the Judgment just delivered.
The concession of learned Counsel for the Appellant in his Written Address before the trial Court that the fact
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of robbery and that the robbery was an armed robbery is supported by evidence on record. Furthermore, there were ample evidence on the record which confirm that the extra judicial statement of the Appellant confessing to the crime is true. The learned trial Judge was therefore right in convicting the Appellant thereon.
I therefore agree with my learned brother that this appeal is devoid of merit. It is accordingly dismissed.
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Appearances:
YEMI OKE with him, CHINYERE OLOKO (MRS) For Appellant(s)
E. BOLARINWA-ADEBOWALE (MRS), CHIEF STATE COUNSEL OGUN STATE MINISTRY OF JUSTICE with him, YEJIDE ADEWOLU (MISS) SENIOR STATE COUNSEL For Respondent(s)
