AZEEZ AMAO ALAYANDE v. THE STATE (2019)

AZEEZ AMAO ALAYANDE v. THE STATE

(2019)LCN/13171(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of May, 2019

CA/IB/46C/2018

RATIO

CRIMINAL LAW: STANDARD OF PROOF IN CRIMINAL MATTERS

In criminal Prosecution the standard of proof required is that of proof beyond reasonable doubt. Under Section 135(1) of the Evidence Act 2011, if the Commission of a crime by a party to any proceedings is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
See the following cases: –
IKPO VS. STATE (SUPRA)
UDO VS. STATE (SUPRA)
ITU VS. STATE (2016) LPELR-26063 (SC).PER JIMI OLUKAYODE BADA, J.C.A.

CRIMINAL LAW: PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND A SHADOW OF DOUBT
Nonetheless, proof beyond reasonable doubt does not mean that the Prosecution must prove its case with precision nor does it mean proof beyond any shadow of doubt. The Prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with.
See the following cases: –
SMART VS. THE STATE (2016) LPELR-40728 (SC).
NWATURUOCHA VS. STATE (2011) LPELR-8119 (SC).
HASSAN VS. THE STATE (2016) LPELR-42554 (SC).PER JIMI OLUKAYODE BADA, J.C.A.

CRIMINAL LAW AND PROCEDURE: THE 3 METHODS OF PROVING A CRIME
In the discharge of the onus of proof, there are three (3) ways by which the Prosecution can prove the commission of a crime
(1)By Confessional Statement.
(2)By evidence of eye witness i.e direct evidence.
(3)By circumstantial Evidence where Confessional Statement is lacking. See the following cases:-
ABIRIFON VS. THE STATE (2013) LPELR-20807 (SC).
GIRA VS. STATE (1996) 4 SCNJ PAGE 95 AT 106.
EMEKA VS. STATE (2001) LPELR-1125 (SC), (2001) 6 SCNJ PAGE 259.PER JIMI OLUKAYODE BADA, J.C.A.

CONSPIRACY: DEFINITION

CONSPIRACY: THE INGREDIENTS OF THE OFFENCE OF CONSPIRACY
The ingredients of the offence of Conspiracy are:-
– There must be an agreement between two or more persons.
– The two or more persons must agree to do an unlawful act by illegal means.
The main substance of the offence of Conspiracy is the meeting of minds of the Conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certainCriminal Act of the parties concerned.
See KOLAWOLE VS. THE STATE (2015) LPELR-24400 (SC).
UPAHAR VS. THE STATE (2003) 6 NWLR PART 816 PAGE 230.
PATRICK NJOVENS VS. STATE (1973) 5 SC PAGE 17.
KAYODE VS. THE STATE (2016) LPELR-40028) SC).PER JIMI OLUKAYODE BADA, J.C.A.

ARMED ROBBERY: THE DUTY ON THE PROSECUTION TO PROVE THE INGREDIENTS OF ARMED ROBBERY

It is trite that whenever an accused person is charged with the offence of Armed Robbery, the burden of proof is on the Prosecution to prove the following elements of the offence beyond reasonable doubt.
(1)That there was a robbery or series of robberies.
(2)That the said robbery was an Armed Robbery.
(3)That the Appellant was one of those who took part in the Armed Robbery.
See the following cases: –
OLAYINKA VS. STATE (2007) 9 NWLR PART 1040 PAGE 561.
NWACHUKWU VS THE STATE (1986) 2 N.W.L.R PART 25 PAGE 765.
ATTAH VS STATE (2010) 10 NWLR PART 1205 PAGE 190 AT 224 PARAGRAPHS B-F
AGBOOLA VS THE STATE (2013) LPELR- 20652 (SC)
OSUAGWU VS STATE (2016) LPELR 40836 (SC)PER JIMI OLUKAYODE BADA, J.C.A.

STEALING: WHEN AN ACCUSED IS FOUND WITH A STOLEN ITEM

It is trite law that when an accused is found in possession of the property or item stolen, he is presumed to be the one who stole the property or the item. See the case of WALE BANJO VS THE STATE (Supra)PER JIMI OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

AZEEZ AMAO ALAYANDE Appellant(s)

AND

THE STATE Respondent(s)

JIMI OLUKAYODE BADA, J.C.A.(Delivering the Leading Judgment): This appeal is an appeal against the Judgment of High Court of Justice, Ota Judicial Division in Ogun State in charge NO: HCT/26R/2013 BETWEEN: THE STATE VS. AZEEZ AMAO ALAYANDE delivered on the 14th day of December 2017 wherein the Appellant was sentenced to death.

Briefly the facts of the case are that on 2/11/2017, PW1 and his wife were driving a Sienna bus along Ilogbo Road, Ota, Ogun State when they heard a gunshot and a motorcycle with three (3) passengers blocked them, one of the men on the motorcycle brought out a gun and fired into the air and the other two forcefully entered into PW1?s vehicle. The Appellant who was armed with a gun took over the wheels while the other robber ordered PW1 and his wife to go to the backseat and that PW1 should lie on his wife. The Appellant robbed PW1 of his wristwatch, money and phones while his accomplice robbed his wife of her phone too while driving them to an unknown destination. The Appellant then gave his gun to his accomplice and ordered him to kill PW1 who begged for his life. In the course of driving, the car entered into

ditch which destabilized his accomplice and his gun went off in the car and the accomplice known as ?Papa? suddenly fell on PW1 who realized that ?Papa? must have accidentally shot himself when the car entered the ditch. PW1 immediately picked up the two guns i.e. ?Papa?s? own and the one given to ?Papa? by the Appellant and used one of them to hit the Appellant on the head and he began to bleed. The Appellant then jumped out of the car while it was still in motion. PW1 managed to gain control of the vehicle and brought it to a halt. A few days later after the robbery incident the Appellant was arrested in his home and two of PW1?s phones were found on him.

?In his own testimony, the Appellant vehemently denied robbing the PW1 or any person of his car. He gave evidence as to how he got an invitation to the Landlord?s Association meeting on the day he was arrested. He stated that it was on his way to the said meeting where he heard his Landlord saying:
?Mr. Kehinde, this is the man that robbed you of your car, handle him well or else he can run away.?

It was after this that the neighbours started beating him, accusing him of robbing the PW1 of his car and he was subsequently taken to Police Station.

The Appellant was arraigned on a two count charge of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Section 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R II Laws of the Federation of Nigeria 2004.
At the conclusion of the trial the learned trial Judge in his Judgment delivered on the 14th day of December 2017 found the Appellant guilty and sentenced him to death.
The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.

The learned Counsel for the Appellant formulated two issues for the determination of the appeal. The said issues are reproduced as follows:-
?(1)Can the trial Court secure a safe conviction of the accused in the face of manifest inconsistencies in Exhibits ?A?A5? and ?B?-?B1? the alleged confession? (Distilled from Grounds 1 and 3).
(2)Did the Prosecution prove the alleged crime to the standards required by law? (Distilled from Ground 2).?

On the other hand the learned Counsel for the Respondent formulated three issues for the determination of this appeal. The said issues are reproduced as follows:-
?(1)Whether from the totality of the evidence adduced at the trial the prosecution has proved the charges against the Appellant beyond reasonable doubt.
(1)Whether the learned trial Judge was right in relying on the retracted Confessional Statement of the Appellant in convicting him.
(2)Whether the trial Court was right in convicting the Appellant for the offence of Armed Robbery when the weapons used and items stolen were not tendered.?

At the hearing of this appeal on 3/4/2019, the learned Counsel for the Appellant stated that the appeal is against the decision of the High Court of Justice, Ogun State in the Ota Judicial Division which was delivered on 14/12/2017.

The Notice of Appeal was filed on 30/1/2018, the Record of Appeal was transmitted on 8/2/2018. The Appellant?s Brief of Argument was filed on 16/3/2018 while the Appellant?s Reply Brief of Argument was filed on 15/3/2019 and deemed as properly filed on 3/4/2019.

The learned Counsel for the Appellant adopted and relied on the said Appellant?s Brief of Argument as well as the Appellant?s Reply Brief as his argument in urging that the appeal be allowed.

The learned Counsel for the Respondent in his own case also referred to the Respondent?s Brief of Argument filed on 21/2/2018 and deemed as properly filed on 3/4/2019.
He adopted and relied on the Respondent?s Brief as his argument in urging that the appeal be dismissed.

I have perused the issues formulated for the determination of this appeal by Counsel for both parties. The issues are similar but I am of the view that the issues formulated for the determination of the appeal on behalf of the Respondent are apt in the determination of this appeal. I will therefore rely on the said issues.

ISSUES FOR THE DETERMINATION OF THE APPEAL
ISSUE NO. 1
Whether from the totality of the evidence adduced at the trial, the Prosecution has proved the charges against the Appellant beyond reasonable doubt. (Distilled from Ground 1)
ISSUE NO. 2
Whether the learned trial Judge was right in relying on the retracted Confessional

Statement of the Appellant in convicting him. (Distilled from Ground 3).
ISSUE NO. 3
Whether the trial Court was right in convicting the Appellant for the offence of Armed Robbery when the weapons used and items stolen were not tendered (Distilled from Ground 2).
Issues 1 to 3 are to be argued together.

The learned Counsel for the Appellant submitted that the Prosecution did not prove the alleged offences against the Appellant beyond reasonable doubt, and that the lower Court should not have convicted the Appellant for the alleged offences.

He argued that the standard of proof required is proof beyond reasonable doubt.
He relied on the following:-
SECTION 135 OF THE EVIDENCE ACT 2011.
IKPO VS. STATE (2016) ALL F.W.L.R PART 837 PAGE 619 AT 624.
UDO VS. STATE (2006) 15 NWLR PART 1001 PAGE 179.

He argued that in order to discharge the legal burden of proof in Armed Robbery, the following must be proved:-
(i)That there is a robbery or series of robberies.
(ii)That each robbery was an Armed Robbery.
(iii)That the accused was one of those who took part in the robbery.

It was argued on behalf of the Appellant that for the Prosecution to succeed, it must give a comprehensive and consistent account of how the robbery was carried out and the role played by each of the robbers.

The learned Counsel for the Appellant submitted that the Prosecution ought to have tendered (a) the weapon allegedly used and recovered, (b) the car allegedly stolen, (c) the phones allegedly recovered from the Appellant.

It was submitted further that failure to tender the exhibits allegedly recovered from the scene of the crime has raised a doubt as to the guilt of the Appellant. He relied on the following cases:-
ALABI VS. THE STATE (1993) 7 NWLR PART 307 PAGE 511.
MARTINS VS STATE (1997) 1 NWLR PART 481 PAGE 355.
SECTION 167 OF THE EVIDENCE ACT 2011
OKEKE VS. STATE (2000) ALL F.W.L.R. PART 29 PAGE 2453 AT 2478.
ANIKE VS. S.P.D.C NIG. LTD (2012) ALL F.W.L.R. PART 638 PAGE 975.
SIMON VS. STATE (2017) 1-2 S.C. PART II PAGE 5.

It was also submitted on behalf of the Appellant that the lower Court was wrong to have convicted the Appellant in the face of inconsistencies in Exhibits ?A?-?A5? and

?B?-?B1? i.e. the Confessional Statements. It was also argued that while a retracted Confessional Statement is admissible by the Court, the Court cannot attach any probative value to it or convict an accused person on it unless such statement is direct, positive and unequivocal.

The following cases were relied upon ? SHURUMO VS. STATE (2010) 44 NSCQR VOLUME 44 PAGE 135 AT 147.
YAHAYA VS. STATE (2005) 1 NCC PAGE 120 AT 134
KHALEEL VS. STATE (1997) 8 NWLR PART 516 PAGE 237 AT 247.

The learned Counsel for the Appellant submitted that Exhibits ?A?-?A5? and ?B?-?B1? (the retracted Confessional Statements of the Appellant) are materially inconsistent with the evidence of PW1.

It was also argued that even if the Appellant admitted signing Exhibits ?A?-?A5? and ?B?-?B1?, that cannot make it to be true. This is because PW2 told the trial Court that the Appellant gave his statement in Yoruba Language but it was recorded in English Language.
He relied on the cases of:
OLANIPEKUN VS. STATE (2016) ALL FWLR PART 845 PAGE 138.

BOLANLE VS. STATE (2005) 1 NCC PAGE 345.

It was argued that because the statement of the Appellant was not recorded in Yoruba, a doubt would be created because of the correctness and its accuracy when it was being translated to English.

The learned Counsel for the Appellant submitted that whenever there is a doubt as to the guilt of the accused person, such doubt must be resolved in favour of the accused person. He relied on the following cases: –
STATE VS. IDAPU EMINE & OTHERS (1992) NWLR PART 256 PAGE 258.
AIKHADUEKI VS. STATE (2014) 9 NCC PAGE 707.

He also stated that the evidence of the Appellant before the lower Court clearly contradicted the Confessional Statement i.e. Exhibits ?A?-A5? and ?B?-?B1?. He then submitted that the failure of the trial Court to consider the defence of the Appellant has occasioned a miscarriage of justice which ought to have made the lower Court to set the Appellant free. He relied on the following cases:-
OLAYINKA VS. STATE (2007) ALL FWLR PART 373 PAGE 163 AT 183-184 PARAGRAPHS G-A.
AIGUOREGHIAN VS. STATE (2005) 1 NCC PAGE 458 AT 472.

Learned Counsel for the Appellant finally urged this Court to hold that the evidence before the trial Court is contradictory and that the lower Court ought not to have attached any probative value to Exhibits ?A?-?A5? and ?B?-?B1?. He urged that the issues be resolved in favour of the Appellant, allow the Appeal and set aside the conviction of the Appellant.

The learned Counsel for the Respondent in his response to the submission of the learned Counsel for the Appellant submitted that Conspiracy has been defined to mean the meeting of two or more minds and agreement by them to do an unlawful act by unlawful means.

He relied on the following cases: – POSU V. THE STATE (2011) LPELR-C134/2010 AT PAGE 19.
HARUNA VS. THE STATE (1972) ALL NLR PAGE 738.

He submitted that the Prosecution in an Armed Robbery case must prove beyond reasonable doubt the following:-
(a)That there was a robbery
(b)That the Robbers were armed
(c) That the Appellant participated in the robbery.
He relied on the case of:-
OFORLETE VS. THE STATE (2000) FWLR PART 12 PAGE 2098-2099.

He contended that the Prosecution witnesses in this case gave evidence that satisfies the burden of proof placed on it and the trial Judge was right to have so held.

The learned Counsel for the Respondent referred to the evidence of PW1 and PW2 and he submitted that the ingredients of the offence of armed robbery was proved. He went further in his submission that the evidence of the prosecution witnesses established that the Appellant was one of the robbers. He referred to the case of: – WALE BANJO VS. THE STATE (2013) LPELR-20746 (SC).

Exhibits ?A?-?A5? and ?B?-?B1? i.e. the Confessional Statements were referred to and the learned Counsel contended that the Court can convict solely on the Confessional Statement of an accused.
He relied on the following cases: –
IGABELE VS. THE STATE (2004) 34 WRN PAGE 83 AT 98.
NWACHUKWU VS. THE STATE (2007) 12 SCM PART 2 PAGE 469.
AKPA VS. THE STATE (2008) 8 SCM PAGE 66 AT 70 AND 74.
AFOLABI VS. STATE (2013) LPELR-20700 (SC).

It was submitted on behalf of the Respondent that the learned trial Judge relied on the Appellant?s

Confessional Statement which confirmed the evidence of PW1 in convicting him.

The learned Counsel for the Respondent finally urged that the issues be resolved in favour of the Respondent and dismiss the appeal.

In the Appellant?s Reply Brief of Argument, the learned Counsel for the Appellant submitted that there is no evidence before the trial Court that the Appellant?s alleged Co-Robber left the scene of the robbery with the gun allegedly used to commit the crime; he went further that the evidence before the Court remains contradictory. He relied on the following cases: –
VINZ INTERNATIONAL (NIG) LTD VS. MOROHUNDIYA (2009) 11 NWLR PART 1153 PAGE 562.
GOV. AKWA IBOM STATE VS. AKPAN (2017) ALL FWLR PART 874 PAGE 1916 AT 1946 PARAGRAPHS E-F.
STATE VS. IDAPU EMINE (SUPRA)
AIKHADUEKI VS. STATE (SUPRA).

Learned Counsel for the Appellant urged this Court to set aside the Judgment of the trial Court based on the material contradictions in the evidence before the trial Court.

RESOLUTION
In criminal Prosecution the standard of proof required is that of proof beyond reasonable doubt. Under Section 135(1) of the

Evidence Act 2011, if the Commission of a crime by a party to any proceedings is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
See the following cases: –
IKPO VS. STATE (SUPRA)
UDO VS. STATE (SUPRA)
ITU VS. STATE (2016) LPELR-26063 (SC).
Nonetheless, proof beyond reasonable doubt does not mean that the Prosecution must prove its case with precision nor does it mean proof beyond any shadow of doubt. The Prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with.
See the following cases: –
SMART VS. THE STATE (2016) LPELR-40728 (SC).
NWATURUOCHA VS. STATE (2011) LPELR-8119 (SC).
HASSAN VS. THE STATE (2016) LPELR-42554 (SC).
In the discharge of the onus of proof, there are three (3) ways by which the Prosecution can prove the commission of a crime
(1)By Confessional Statement.
(2)By evidence of eye witness i.e direct evidence.
(3)By circumstantial Evidence where Confessional Statement is lacking.

See the following cases:-
ABIRIFON VS. THE STATE (2013) LPELR-20807 (SC).
GIRA VS. STATE (1996) 4 SCNJ PAGE 95 AT 106.
EMEKA VS. STATE (2001) LPELR-1125 (SC), (2001) 6 SCNJ PAGE 259.

The Appellant was convicted for the offence of Conspiracy to commit Armed Robbery.

Conspiracy has been defined in a number of decided cases to be an agreement by two or more persons to do an unlawful act or do a lawful act by unlawful means. The two or more persons must be found to have combined in order to secure a conviction. See the following cases:-
GARBA VS. C.O.P. (2007) 16 NWLR PART 1060 PAGE 378 AT 400.
YAKUBU VS. THE STATE (2014) LPELR-22401 (SC).
BUSARI VS. THE STATE (2015) LPELR-24279 (SC).
NWOSU VS. STATE (2004) 15 NWLR PART 897 PAGE 466.
The ingredients of the offence of Conspiracy are:-
– There must be an agreement between two or more persons.
– The two or more persons must agree to do an unlawful act by illegal means.
?The main substance of the offence of Conspiracy is the meeting of minds of the Conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain

Criminal Act of the parties concerned.
See ? KOLAWOLE VS. THE STATE (2015) LPELR-24400 (SC).
UPAHAR VS. THE STATE (2003) 6 NWLR PART 816 PAGE 230.
PATRICK NJOVENS VS. STATE (1973) 5 SC PAGE 17.
KAYODE VS. THE STATE (2016) LPELR-40028) SC).

In this appeal under consideration, the PW1 ? Oke Olukehinde Smith testified among others as follows:-
? I know the accused person, on 2/11/2011 when I closed from the office, while I was coming with my wife along Ilogbo Road, Ota, as we were about to enter into our street we heard a gunshot behind us. We were accosted by three persons armed on a motorcycle. We were blocked and they started firing into the air, I stopped and I submitted myself to them. They apprehended me and my wife. The accused person Azeez took the car from me. The other person called Papa took my wife and marched the two of us to the back seat of the car. We were asked to lie down. Azeez took the car key and was asking me of the security of the car. I told him that the car has no security system. So he took the car while the other guy hit me with the gun on the head and I was bleeding.

The accused drove off while I was pleading for my life. The accused collected my phone, my wristwatch while the other guy collected my wife?s phone.
The road was so bad as it was in the raining season, the accused was driving so fast and he ran into a ditch and hit his head against the windscreen while the other guy fell on me in the car. The accused handed over his gun to the other guy called Papa and asked him to kill me. He said ?I don?t like this kind of job, kill this man.? I pleaded with him to allow my wife to go even if he wants to kill me, while he was still driving, he entered into another bump and the car was about to summersault. I heard another gunshot again inside the car. I saw the said Papa fell on me and was bleeding seriously; he must have been hit by the gunshot. I pushed him away. I picked the two guns on him but he could not move. I took the gun and asked the accused to stop. I tried to hit him with the gun but I was hitting the back of the car seat hoping that he would stop. I then hit him with the gun, he was bleeding.? he stopped the car suddenly and open the door and ran

but the vehicle was still moving slowly, I had to control the vehicle to hit a wall along the road and it finally stopped. I woke my wife up and told her that God had delivered us and we went out of the vehicle. placed a distress call to Police Station near Obasanjo Road, Otta. The DCO came with a team of Policemen?
(See pages 64-65 of the record of appeal)

Also in Exhibits ?A?-?A5? and ?B?-?B1? in the record of appeal, the Appellant gave graphic descriptions of how they planned the robbery and how it was executed.

I am of the view that the excerpt of the testimony of the PW1 reproduced above and the Confessional Statement, Exhibit ?A?-?A5? and ?B?-?B1? showed that there was meeting of the minds among the Appellant and his colleague i.e. accomplice.

?The excerpt and the Confessional Statement Exhibits ?A?-?A5? and ?B?-?B1? showed that the Appellant conspired to commit the crime.
The lower Court was therefore right when it held

that the offence of Conspiracy was proved beyond reasonable doubt by the Prosecution against the Appellant.
The Appellant was also charged with the offence of armed robbery.

The testimony of PW1 set out earlier in this Judgment which was corroborated by the confessional statement of the Appellant though retracted showed that the prosecution proved the first and second ingredients of the offence of armed robbery beyond reasonable doubt.

In Further proof of the second ingredient and also the third ingredient of Armed Robbery, the PW1 testified further among others as follows:-
?…When I was on admission in the hospital, one of our community member came to visit me
he told me that he saw the type of person I described, the man was said to be wearing a bandage and the man is living around our community.
I went to SARS to report the case. ?
On Monday morning they went to where the Defendant is living? I told them the man had bandage on his head..they searched him, recovered two phones from his pocket, I found that the two phones were the ones that were collected from me on the day of the robbery..?

I am of the view that the excerpt of the evidence of PW1 set out above established beyond reasonable doubt that there was a robbery and that the Appellant was one of the Robbers. The mobile phones recovered from Appellant were

part of the items stolen from the PW1 on the day of the robbery.

It is trite law that when an accused is found in possession of the property or item stolen, he is presumed to be the one who stole the property or the item. See the case of ? WALE BANJO VS THE STATE (Supra)

Furthermore, by the evidence set out above, the ingredients of the offence of armed robbery against the Appellant was proved. The Appellant and his colleagues at large armed themselves with gun in the course of the robbery. Appellant also gave details of the robbery in his confessional statement though retracted.

The Learned Counsel for the Appellant posed a question whether the conviction based upon Exhibits ?A?- ?A5? and ?B?- ?B1? which are confessional statements are safe.
It was contended that there are inconsistencies in the confessional statements.
A confession is an admission made by an accused person. The commission of a crime could be proved by any of the following means: –
(1)By confessional statement
(2)By evidence of eye witness
(3)By circumstantial evidence where direct or confessional statements are lacking.

In this case, Exhibits ?A?-?A5? and ?B?-?B1? are confessional statements, and it plays a major part in the determination of guilt of an accused person.
It is the law that a confessional statement once admitted becomes part of the case for the prosecution which the lower Court was duty bound to consider in determining the probative value of the totality of the evidence adduced by the prosecution.
The Appellant while giving evidence retracted Exhibits ?A1?-?A5? and ?B?-?B1? which as I said earlier are confessional statements. The statements were made at the Divisional police station at the state C.I.D Eleweran Abeokuta.
I am of the view that the said confessional statements which corroborated the testimony of PW1 is admissible regardless of its retraction. For example part of Exhibits A1-A2 English Version and Exhibits ?A3?-?A5? Yoruba Language version reads as follows:-
? About two weeks ago Sanje called me on phone that he was coming to my house at Ota because he

has known my house for about three months ago. At about 20:00 hours of that very day he said I should meet him at Oju-Ore, Ota and when I got there I met him with one Okada man, and he told me that he came to snatch a Sienna Vehicle from here to Abeokuta for someone that has money for it ready. After that I accepted to follow him and from there we moved to Club 1 Ilogbo Road Ota where Sanje bought two Star drink for me and also gave me the sum of N2,000 which he used in deceiving me. We left for my house for me to change my clothes. Though he has just shown me two guns we were to use at Club 1. Having changed my clothe, three of us embarked on the journey with the Motorcycle they brought from Abeokuta and we followed Oju-Ore but before getting to Oju-Ore we saw one Sienna Vehicle on the road with husband and wife occupants. Sanje told the Okada man to turn back and follow the vehicle till we got to my community road? As the vehicle was entering bad road along our community, Sanje came down, likewise me. Sanje went to meet the man on the steering while I went to the wife? I have not seen Sanje till today.? (See pages 98 to 100 of the record of appeal)

The learned trial Judge found the Confessional Statements to be direct, positive and unequivocal.
In view of the foregoing I am of the view that once a Confessional Statement is admitted, the Prosecution need not prove the case against the accused beyond reasonable doubt, as the Confessional Statement ends the need to prove the guilt of the accused. This is because there cannot be a more appropriate human being to give evidence of guilt of the accused more than the accused himself. See the following cases:-
NWACHUKWU VS. THE STATE (SUPRA)
AFOLABI VS. STATE (2013) LPELR-20700 (SC).
F.R.N. VS. IWEKA (2011) 12 SCM PART 2 PAGE 213 AT 218.
SOLOLA VS. THE STATE (2005) ALL F.W.L.R. PART 269 PAGE 1751 AT 1782.
The learned Counsel for the Appellant also raised the issue that the weapons used at the robbery were not tendered in evidence.
?The Appellant in his Confessional Statement, excerpt of which was reproduced on page 96 of the record of appeal stated that they went to the scene with two guns and in the course of the robbery they expended two cartridges and also that he gave his

accomplice his gun to use.
There is overwhelming evidence from PW1 that gun was used for the robbery. The evidence of PW1 also corroborated the statement made by the Appellant.
Therefore, I am of the view that from the totality of the evidence of the Prosecution witness and the Confessional Statement made by the Appellant, the inevitable conclusion to arrive at is that the Appellant committed the offence of Armed Robbery for which he was charged.

Consequent upon the foregoing, Issue numbers 1, 2 and 3 are hereby resolved in favour of the Respondent and against the Appellant.
In the result, I am of the view that this appeal lacks merit and it is hereby dismissed.

The Judgment of the lower Court in charge NO: HCT/26R/2013 BETWEEN: THE STATE VS. AZEEZ ALAYANDE delivered on the 14th day of December 2017 is hereby affirmed.
Appeal Dismissed.

NONYEREM OKORONKWO, J.C.A.: The making of a confessional statement is a voluntary act of the maker and where the statement alleged, states or suggests an inference that the maker committed the offence in question, it is admissible against him in that regard.

See Alarape v. The State (2001) 5 NWLR (pt.705) at 79; FRN v. Iweka (2013) 3 NWLR (pt.285).
It is irrelevant that the maker subsequently at the trial, resiled from the confession. Where the Court finds the confession consistent with other established fact, such as the finding of the stolen property with the accused; Ikemson v. The State. The facts ascertained in this case shows that the phones stolen were also found with the accused thus lending support to the confession.

I therefore agree with my learned brother Jimi Olukayode Bada, JCA in the lead judgment which affirmed the judgment of the lower Court.

FOLASADE AYODEJI OJO, J.C.A.: I have read before now the draft of the lead judgment just delivered by my learned brother Jimi Olukayode Bada JCA. I agree entirely with the reasoning and conclusion therein.

In the course of the trial, the prosecution tendered confessional statements made by the Appellant which were admitted in evidence as Exhibits A ? A5 and B ? B1. It is the contention of the Appellant’s Counsel that the said statements were not made by the Appellant. He did not say they were not made voluntarily.

It is that they were not made at all by the Appellant.
The law is settled that where an accused person retracts his statement made to a police officer, such retraction does not ipso facto make the statement irrelevant. The Court however has a duty to consider the statement along with the entire evidence and circumstances before taking a decision whether or not to believe the evidence contained therein.
The Court will consider whether such statement is corroborated in any way and whether the confession is consistent with other established or ascertained facts. See NWANGBOMU VS. THE STATE (1994) LPELR – 2105 SC; AKWUOBI VS THE STATE (2017) 2 NWLR (PT. 1550) 241 AT 445 PARAGRAPHS E-F; RABIU VS. THE STATE (2005) 7 NWLR (PT.925) 491 AT 514 PARAGRAPHS A-D AND AKPA VS THE STATE (2007) 2 NWLR (PT.1019) 500 AT 527 PARAGRAPHS F-H.
In the instant case the oral testimony of P.W.1 corroborates the truth of what is contained in Exhibits A1 ? A5 and Exhibits B-B1, the confessional statements of the Appellant. The conviction of the Appellant was not based only on the confessional statement of the Appellant. The established evidence on record is that P.W.1

and his wife were robbed by the Appellant and two others while armed with guns. The trial Court was therefore right to have relied on the confessional statements made by the Appellant more so when there is corroborative evidence on record. See OKOH VS. THE STATE (2014) LPELR – 22589 (SC) AND LADAN VS. THE STATE (2016) 5 NWLR (pt. 1506) 405 at 419 PARAGRAPHS F? G where the Supreme Court per Rhodes-Vivour JSC held as follows:
“My lords, once a statement was made in accordance with the law and it was properly admitted in evidence as an exhibit, no amount of retraction will affect it. The statement, if confessional remains good evidence on which Court can convict. That is to say a Court can convict on the retracted confessional statement of the Appellant”.
In this appeal, it is not the case of the Appellant that the statements were not voluntarily made by him. Furthermore the statements were corroborated by evidence on record. It is for the above and fuller reasons given by my learned brother in the lead judgment that I also hold that this appeal lacks merit and should be dismissed. Appeal is dismissed.

Appearances:

Mr. TAIRU AdebayoFor Appellant(s)

Mrs. R. B. Kadiri (Assistant Director Public Prosecution, Ministry of Justice, Ogun State)For Respondent(s)

Appearances

Mr. TAIRU AdebayoFor Appellant

AND

Mrs. R. B. Kadiri (Assistant Director Public Prosecution, Ministry of Justice, Ogun State)For Respondent