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EKA v. STATE (2022)

EKA v. STATE

(2022)LCN/16453(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, March 24, 2022

CA/IB/107C/2018

Before Our Lordships:

Folasade Ayodeji Ojo Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

EMMANUEL EKA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

POSITION OF LAW ON PRESUMPTION OF INNOCENT OF AN ACCUSED PERSON

It is trite that a person accused of committing a crime enjoys the presumption of innocence under Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He is presumed innocent until the contrary is proved. See DIKE VS. THE STATE (2022) 2 NWLR (PT. 1813)1; STATE VS. SHONTO (2019) 12 NWLR (PT. 1686)255; BENJAMIN VS. STATE (2019) 15 NWLR (PT. 1696)541; BOTU VS. STATE (2018) 3 NWLR (PT. 1607)410 AND ALABI VS. STATE (1993) 7 NWLR (PT. 307)511. FOLASADE AYODEJI OJO, J.C.A. 

POTITION OF LAW ON BURDEN OF PROOF IN CRIMINAL CASES

Furthermore, the burden of proof in criminal cases is squarely on the prosecution who must establish its case against the accused person beyond reasonable doubt. See FEDERAL REPUBLIC OF NIGERIA VS. UMEH (2019) 7 NWLR (PT. 1670)40; ABOKOKUYANRO VS. THE STATE (2016) 9 NWLR (PT. 1518)523; IGBI VS. STATE (2000) 3 NWLR (PT. 648)169 AND ESANGBEDO VS. THE STATE (1989) 4 NWLR (PT. 113)57. FOLASADE AYODEJI OJO, J.C.A. 

WHETHER PROOF BEYOND REASONABLE DOUBT IS PROOF BEYOND ALL SHADOW OF DOUBT

It has been established in a line of judicial authorities that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242)170; AKINLOLU VS. STATE (2016) 2 NWLR (PT. 1497) 503; BAKARE VS. STATE (1987) 1 NWLR (PT. 52) 579 AND OSENI VS. STATE (2012) 5 NWLR (PT. 1293) 351. FOLASADE AYODEJI OJO, J.C.A. 

GROUND FOR THE CONVICTION OF AN OFFENCE OF ARMED ROBBERY

To ground a conviction for the offence of Armed Robbery, the prosecution has the duty of proving beyond reasonable doubt the following:
a) That there was a robbery;
b) That the robber(s) were armed with offensive weapons
c) That the Accused Person was the robber or participated in the robbery
The above three ingredients must be proved beyond reasonable doubt by the prosecution. It is to be noted that all three ingredients must be proved by credible evidence to sustain the conviction. See SUNDAY VS. THE STATE (2021) 17 NWLR (PT. 1804)115; BISI VS. STATE (2021) 12 NWLR (PT. 1790)205; BABATUNDE VS. STATE (2018) 17 NWLR (PT. 1649)549; THOMAS VS. STATE (2017) 9 NWLR (PT. 1570)230 AND SMART VS. STATE (2016) 9 NWLR (PT. 1518)447. FOLASADE AYODEJI OJO, J.C.A. 

METTHODS PROSECUTION MAY PROVE ITS CASE

It is further the law that the prosecution may employ any of the following methods in establishing its case:
i. Through the direct testimony of an eye witness or eye witnesses who saw when the act leading to the commission of the offence was done; or
ii. By the voluntary confession of the accused which points unequivocally and unambiguously that he admits to have committed the offence charged; or
iii. By circumstantial evidence which by undersigned circumstances lead to no other conclusion than that the accused person committed the offence charged.
See OFFOR VS. STATE (2021) 18 NWLR (PT. 1807)31; SEUN VS. STATE (2019) 8 NWLR (PT. 1673) 144; SAMINU VS. STATE (2019) 11 NWLR (PT. 1683)254 AND OGOGOVIE VS. THE STATE (2016) 12 NWLR (PT. 1527)468. FOLASADE AYODEJI OJO, J.C.A. 

POSITION OF LAW ON THE EVIDENCE OF AN EYE WITNESS

It is trite that one of the best form of evidence is that of an eye witness who gives an on-the-spot narration of the event. See KUSHIMO VS. STATE (2022) 16 NWLR (PT. 1801)147; KAREEM VS. STATE (2021) 17 NWLR (PT. 1806)503; ADELANI VS. STATE (2018) 5 NWLR (PT. 1611)18; AKINLOLU VS. STATE (2016) 2 NWLR (PT. 1497)503 AND SHURUMO VS. STATE (2010) 19 NWLR (PT. 1226)73. FOLASADE AYODEJI OJO, J.C.A. 

POSITION OF LAW ON THE EVIDENCE OF A WITNESS

The law is that where a party does not accept the truth of the evidence of a witness on a material fact, he should cross examine him and where he fails to do so, the Court will take his silence as acceptance of such evidence. See OLASEHINDE VS. STATE (2019) 1 NWLR (PT. 1654) 555; NWODO VS. STATE (2019) 3 NWLR (PT. 1659)228; ISHAYA VS. STATE (2019) 4 NWLR (PT. 1661)76; PATRICK VS. STATE (2018) 16 NWLR (PT. 1645) 263 AND SIMON VS. STATE (2017) 8 NWLR (PT. 1566)119. FOLASADE AYODEJI OJO, J.C.A. 

WHETHER AN EXTRA JUDICIAL STATEMENT TENDERED AND ADMITTED CAN BE OBJECTED

The law is that the appropriate time for raising objection to the admissibility of an extra judicial statement is at the point of tendering. Once admitted in evidence without objection, it is too late to raise the objection on Appeal. See HASSAN VS. STATE (2021) 17 NWLR (PT. 1804)45; IORAPU VS. STATE (2020) 1 NWLR (PT. 1706)391; EMEKA VS STATE (2019) 8 NWLR (PT. 1673)159; BASSEY VS. STATE (2019) 12 NWLR (PT. 1686)348. In the case of OGUDO VS. STATE (2011) 18 NWLR (PT.1278) 1 AT 31, PARAGRAPHS B-D, the Supreme Court, per Rhodes-Vivour, JSC held that:
“The position of the law is well settled and it is that where the Accused Person says that he did not voluntarily make the statement credited to him, such a stand by the accused person calls for the holding of a trial within trial. Where on the other hand the Accused Person says he did not sign the statement, the statement should be admitted in evidence, thereafter the question of what weight should be attached to such a statement becomes an issue for the Judge to decide at the end of the trial. The time to object to the voluntariness of the confessional statement is at the time of tendering the statement and not when the Accused Person opens his defence or during that defence.” FOLASADE AYODEJI OJO, J.C.A. 

DUTY OF COURT TO THE STATEMENT OF AN ACCUSED PERSON RETRACTED

Where an accused person retracts his statement which has been admitted in evidence, what is left for the judge to determine is what weight should be attached to it and in so doing would consider the following:
i.) Whether there is anything outside the extra-judicial statement to show that it is true;
ii.) Whether it is corroborated;
iii.) Whether the facts stated in it are true as far as it can be tested;
iv.) Whether the accused person had the opportunity of committing the offence;
v.) Whether the accused person’s confession is possible;

vi.) Whether the confession is consistent with the other facts ascertained and proved at the trial.
See AFOLABI VS. STATE (2022) 2 NWLR (PT. 1814)201; SUNDAY VS. STATE (2021) 17 NWLR (PT. 1804)115; BUSARI VS. STATE (2015) 5 NWLR (PT. 1452)343; IBRAHIM VS. STATE (2014) 3 NWLR (PT. 1394)305. FOLASADE AYODEJI 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 in the Abeokuta judicial Division in SUIT NO: AB/19R/2016 BETWEEN THE STATE AND EMMANUEL EKA delivered on the 7th of December, 2017 wherein the Appellant was found guilty of the offence of armed robbery contrary to the provisions of Section 1 (2) (a) of the Robbery and Firearms Act (Special Provisions) Act Cap. R11, Laws of the Federation.

Briefly, the facts of the case as presented by the prosecution before the lower Court is that on 29th of January 2014, the Appellant while armed with a knife robbed the complainant of his motorcycle, a Tecno Phone and the sum of eight thousand naira only.

​At the trial, the prosecution called three witnesses and tendered the extra judicial statements made by the Appellant. The Appellant testified in his own defence and called no witnesses. At the close of evidence, parties filed and exchanged written addresses which they adopted as their respective oral submissions. In a considered judgment delivered on the 7th of December, 2017, the trial Judge found him guilty of the single count charge of armed robbery filed against him and convicted him accordingly.

Dissatisfied, the Appellant has appealed to this Court. The original Notice of Appeal filed on 19th of February, 2018 was amended pursuant to an order of Court granted on the 10th of March 2020.
The Amended Notice of Appeal filed on the 21st of February 2019 was deemed as properly filed on the 10th of March, 2020. The Record of Appeal was transmitted on the 22nd of March 2018.

In compliance with the Rules of this Court parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument filed on the 30th of September 2020 was deemed duly filed on the 24th of January, 2022.
The Respondent’s Brief of Argument filed on the 20th of September, 2021 was deemed duly filed on the 24th of January 2022.

​Learned counsel to the Appellant formulated the following two issues for the determination of this appeal:
1. Whether the Prosecution proved the case beyond reasonable doubt and/or whether the evidence adduced can support the conviction of the Appellant.
2. Whether the lower Court’s decision is not against the weight of evidence.

For his part, Respondent’s Counsel identified a sole issue for determination to wit:
“Whether the admission and reliance on the Appellant’s confessional statement and the evidence of PW1 by the trial Court was wrong, when convicting the Appellant for the offence of Armed Robbery.”

I have given a careful consideration to the issues formulated by both parties and I am of the view that the first issue of the Appellant with some modification would suffice. The issue for determination is therefore as follows:
Whether the prosecution proved its case against the Appellant beyond reasonable doubt to warrant his conviction for the offence of armed robbery.

Learned counsel to the Appellant in the Appellant’s Brief reiterated the settled position of the law on the ingredients to be proved to sustain the conviction of the offence of armed robbery. He emphasized that the burden of proof is on the prosecution. He relied on the provisions of Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11 Laws of the Federation 2004, Section 135 (2) of the Evidence Act, 2011 and the case of ADEBAYO OJO VS. THE STATE (2018) LPELR-44699 (SC) in support of his submission. He cited the case of BAKARE VS. STATE (1987) LPELR – SC on the meaning of proof beyond reasonable doubt.

He argued that the trial Court did not do a correct assessment of the evidence before him as there was no sufficient proof that there was a robbery and that a weapon was used. He urged us to hold that the essential ingredients for the offence which the Appellant was convicted were not proved. He craved in aid of his argument the case of ALIU VS. THE STATE (2014) LPELR 23253 (CA).

He further submitted that the lower Court erred when it relied on the extra judicial statement of the Appellant which he retracted at his trial to convict him. He relied on the case of MBERI VS. THE STATE (2016) LPELR 40075 (CA) to support his argument. Still on the extra judicial statement of the Appellant, he argued that the trial Judge should have ordered a trial-within-trial to test the voluntariness or otherwise of the statements attributed to the Appellant.

​He urged us to hold that the evidence of all prosecution witnesses were discredited under cross examination and that there were contradictions and inconsistencies in their evidence which was sufficient to cast a doubt in the case of the prosecution. He finally urged us to resolve all the issues in this appeal in favour of the Appellant and set aside the judgment of the trial Court.

Arguing per contra, learned counsel to the Respondent submitted the prosecution proved its case against the Appellant beyond reasonable doubt. He conceded that the onus of proof is on the prosecution but that proof beyond reasonable doubt is not proof beyond all shadow of doubt and cited the case of ABIRIFON VS. THE STATE (2013) 9 SCM 1 in support of her submission.

She submitted that the evidence of PW1 and the confession of the Appellant in his extra judicial statement was sufficient evidence to establish the ingredients of the offence of robbery. On the ingredients to be proved for the offence of armed robbery she relied on the case of AFAM OKEKE VS. STATE (2003) 15 NWLR (PT. 842) 25.

​On the evidence of PW1, she submitted that the witness remained unshaken under cross examination and that the Court can act on the evidence of a single witness if believed. She cited the case of NKEBISI & ANOR. VS. THE STATE (2010) 3 SCM 170 in support of her argument.

She argued further that a trial Court can rely solely on the confessional statement of an accused person to convict him where same is direct, positive and proved. She urged us to hold that the trial Court was right when it relied on the extra judicial statements of the accused person to convict him. She craved in aid of her submission the provision of Sections 28 and 29 (1) of the Evidence Act 2011 as well as the cases of AKPA VS. STATE (2008) SCM 68, DAGAYYA VS. THE STATE (2006) 2 SCM 33 AND ISMAIL VS. THE STATE (2011) 10 SCM 35.

On the need for trial within trial, she submitted that a trial within trial would only be ordered where the accused person alleges that the statement was not made voluntarily and that such objection should be raised at the point of tendering. She contended that the Appellant who did not object to the admissibility of the statement at the point of tendering and did not say it was not made voluntarily, cannot complain a trial within trial was conducted. She submitted it was unnecessary.

​She further argued there are no material contradictions in the evidence of the prosecution witnesses and assuming there were, they were not on material facts that could affect the judgment. She relied on the cases of MICHEAL EBEINWE VS THE STATE (2011) 3 SCM 46; NDUKWE VS. THE STATE (2009) 2 SCM 147; MUSA VS. THE STATE (2013) 3 SCM 79; ATTAH VS. STATE (2010) 5 SCM 57 AND SULE VS. STATE 8 SCM 177 to support her argument.

On the submission of Appellant’s counsel that failure to tender the knife used was fatal to the prosecution’s case, she submitted that there is no law that makes it mandatory that the weapon used for the robbery must be tendered for the guilt of an accused person to be established. She relied on the case of FATAI OLAYINKA VS. THE STATE (2007) 9 NWLR (PT. 1040) 561 in support of her argument.

She submitted that the prosecution has proved the guilt of the Appellant beyond reasonable doubt and urged us to dismiss the appeal and affirm the judgment of the trial Court.

​It is trite that a person accused of committing a crime enjoys the presumption of innocence under Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). He is presumed innocent until the contrary is proved. See DIKE VS. THE STATE (2022) 2 NWLR (PT. 1813)1; STATE VS. SHONTO (2019) 12 NWLR (PT. 1686)255; BENJAMIN VS. STATE (2019) 15 NWLR (PT. 1696)541; BOTU VS. STATE (2018) 3 NWLR (PT. 1607)410 AND ALABI VS. STATE (1993) 7 NWLR (PT. 307)511.

Furthermore, the burden of proof in criminal cases is squarely on the prosecution who must establish its case against the accused person beyond reasonable doubt. See FEDERAL REPUBLIC OF NIGERIA VS. UMEH (2019) 7 NWLR (PT. 1670)40; ABOKOKUYANRO VS. THE STATE (2016) 9 NWLR (PT. 1518)523; IGBI VS. STATE (2000) 3 NWLR (PT. 648)169 AND ESANGBEDO VS. THE STATE (1989) 4 NWLR (PT. 113)57.

It has been established in a line of judicial authorities that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See NWATURUOCHA VS. THE STATE (2011) 6 NWLR (PT. 1242)170; AKINLOLU VS. STATE (2016) 2 NWLR (PT. 1497) 503; BAKARE VS. STATE (1987) 1 NWLR (PT. 52) 579 AND OSENI VS. STATE (2012) 5 NWLR (PT. 1293) 351. The Appellant was convicted for the offence of armed robbery. The charge on which he was convicted is as follows:
“CHARGE
COUNT 1
Armed robbery contrary to Section 1 (2)(a) of the Robbery and Firearms (Special Provision) Act Cap. R11 Laws of the Federation of Nigeria 2004.
Particulars of Offence
Emmanuel Eka (M) on or about the 29th day of January 2014. At Onipakala Village along Kobape Road in the Abeokuta Judicial Division while armed with a knife robbed Tosin Obalakun of his Motorcycle, a Mobile Phone and N8,000.00”.

The learned trial Judge found the Appellant guilty of the offence alleged in the sole count of the charge. To ground a conviction for the offence of Armed Robbery, the prosecution has the duty of proving beyond reasonable doubt the following:
a) That there was a robbery;
b) That the robber(s) were armed with offensive weapons
c) That the Accused Person was the robber or participated in the robbery
The above three ingredients must be proved beyond reasonable doubt by the prosecution. It is to be noted that all three ingredients must be proved by credible evidence to sustain the conviction. See SUNDAY VS. THE STATE (2021) 17 NWLR (PT. 1804)115; BISI VS. STATE (2021) 12 NWLR (PT. 1790)205; BABATUNDE VS. STATE (2018) 17 NWLR (PT. 1649)549; THOMAS VS. STATE (2017) 9 NWLR (PT. 1570)230 AND SMART VS. STATE (2016) 9 NWLR (PT. 1518)447.

It is further the law that the prosecution may employ any of the following methods in establishing its case:
i. Through the direct testimony of an eye witness or eye witnesses who saw when the act leading to the commission of the offence was done; or
ii. By the voluntary confession of the accused which points unequivocally and unambiguously that he admits to have committed the offence charged; or
iii. By circumstantial evidence which by undersigned circumstances lead to no other conclusion than that the accused person committed the offence charged.
See OFFOR VS. STATE (2021) 18 NWLR (PT. 1807)31; SEUN VS. STATE (2019) 8 NWLR (PT. 1673) 144; SAMINU VS. STATE (2019) 11 NWLR (PT. 1683)254 AND OGOGOVIE VS. THE STATE (2016) 12 NWLR (PT. 1527)468.

In this Appeal, PW1 was the victim of the crime. He gave an eye-witness account of the incident. His evidence is that at about 1.00pm on 29th January 2014 in the course of his business as a commercial motorcyclist, the Appellant stopped him at Leme, Abeokuta and after they bargained he agreed to take him to Onipakala village junction along Kobape Road, Abeokuta for the sum of one hundred and fifty naira. He said when they got to a gas shop, at Onipakala Junction, the Appellant who went inside the shop came back to inform him that the person who was to give him the agreed fare was not around and that he should take him to a farm to meet the person. He said it was on their way to the farm that the Appellant brought out a knife which he pointed to his neck and ordered him to stop and keep the engine of the motorcycle running. He ordered him to get off the motorcycle. He complied. His further evidence is that at this point the Appellant dispossessed him of his mobile phone, the sum of N8,000.00 and his motorcycle. He reported to the police. The police invited him after some time that the Appellant had been arrested with his motorcycle. At the police station he identified the Appellant as the person who stole his motorcycle.

​It is trite that one of the best form of evidence is that of an eye witness who gives an on-the-spot narration of the event. See KUSHIMO VS. STATE (2022) 16 NWLR (PT. 1801)147; KAREEM VS. STATE (2021) 17 NWLR (PT. 1806)503; ADELANI VS. STATE (2018) 5 NWLR (PT. 1611)18; AKINLOLU VS. STATE (2016) 2 NWLR (PT. 1497)503 AND SHURUMO VS. STATE (2010) 19 NWLR (PT. 1226)73.

The law is that where a party does not accept the truth of the evidence of a witness on a material fact, he should cross examine him and where he fails to do so, the Court will take his silence as acceptance of such evidence. See OLASEHINDE VS. STATE (2019) 1 NWLR (PT. 1654) 555; NWODO VS. STATE (2019) 3 NWLR (PT. 1659)228; ISHAYA VS. STATE (2019) 4 NWLR (PT. 1661)76; PATRICK VS. STATE (2018) 16 NWLR (PT. 1645) 263 AND SIMON VS. STATE (2017) 8 NWLR (PT. 1566)119.

It is to be noted that PW1 was not cross examined by the Appellant’s Counsel on his account of how he was robbed. He was not cross examined on the specific details of the incident. I find it necessary to reproduce all he said in answer to questions put to him under cross examination.
“I confirm that I identified my motorcycle at Owode-Egba Police Station. The accused person was shown to me by the police but I could clearly recognize him as the person who robbed my motorcycle. Immediately I saw him at Owode-Egba Police Station. I could easily recognize him when I got to the police station he was in the cell. He was brought out of the cell but the motorcycle was outside within the presence (sic).
I could recall all the event. The incident happened on 29/1/14. The Plate No. of my motorcycle is TTD 871 QC.”

The unchallenged evidence of PW1 fixed the Appellant at the scene of crime and nailed him as the one who robbed him on 29th January, 2014. The learned trial Judge was thus right when he relied on PW1’s eye witness account of the incident.

​PW3 is one Sergeant Wole Ogunleke. His evidence is that four days after PW1 reported the armed robbery incident to the police, he received an information from one Corporal Olayemi Sunday of Fidiwo Police Post that the Appellant had been apprehended with one motorcycle. He went for him and brought him (the Appellant) to the Owode-Egba Police Station. He re-arrested him and took his statement after administering the words of caution. He said he invited PW1 who identified the Appellant and the recovered motorcycle as his.

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 soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”
The law is therefore settled that where a man is found in possession of a stolen item shortly after the theft it is presumed that he is the thief.
The prosecution established by credible evidence that the Appellant was found with PW1’s stolen motorcycle. The question now is whether the Appellant was able to rebut the presumption that he stole the motorcycle.

The Appellant in his oral testimony before the Court did not deny he was found in possession of the Appellant’s motorcycle. His evidence is that on the 29th of January 2014 (the day of the incident he met PW1 in company of other motorcyclists (Okada riders) at Mortuary junction, Leme and that PW1 told him he wanted to sell his motorcycle because he needed money to make some payments for it. He said he took him (PW1) to the house of some of his relatives in an attempt to raise some money to buy the motorcycle but he did not meet any of them. It was when all attempts to raise the funds failed that PW1 agreed to release the motorcycle to him to be returned after three days.

The learned trial Judge evaluated the evidence of the Appellant and held as follows:
“… Moreover, though it is the discretion of the Prosecution/Defence to determine their witnesses and the number of witnesses to be called in proof of their case or in defence of a suit, in this instance one would have expected the Accused to call his brother’s wife whom he said he had “contribution with” and to whom he said he took PW1 to, for loan in exchange for the Okada.
Secondly, the wife’s two children whom he said he and PW1 met at home when they got to his brother’s house at Abule Pakala and whom he said told him their mother was out hawking food around the new site at Kobape were not called as witnesses.
In my considered view, the evidence of the Accused brother’s wife and children could have lend credence to the Accused Defence presented before the Court. Given the surrounding circumstances, I do not believe the Accused denial of the allegation of armed robbery nor his defence of how he got into possession of PW1’s motorcycle.”
See pages 80 to 81 of the record.

The learned trial Judge found the evidence of the Appellant not credible. He invoked the provision of Section 167 (a) of the Evidence Act 2011 to convict him.

The learned trial judge found at page 80 as follows:
“The accused person was caught with the stolen motorcycle four days after the robbery took place. He admitted this fact in his own statements (Exhibit B1 and B2) and evidence.”

He invoked the provision of Section 167 (a) (supra) to make a finding that the Appellant stole PW1’s motorcycle found on him.

The learned trial Judge who had the opportunity of seeing, hearing and watching the Appellant’s demeanour while proving his evidence found it was not credible. There is a presumption that the findings of fact by a trial Court on the evidence before him are correct unless it is proved to be perverse. See AIYETIGBON VS. THE STATE (2022) 1 NWLR (PT. 1811)197; AMADI VS. ATTORNEY-GENERAL OF IMO STATE (2017) 11 NWLR (PT. 1575) 92; OCHIBA VS. STATE (2010) 17 NWLR (PT. 1277) 663; AFOLALU VS. THE STATE (2010) 16 NWLR (PT. 1220) 584 AND ADELUMOLA VS. STATE (1988) 1 NWLR (PT. 73)683.

There is nothing on record to show that the finding made by the trial judge on the evidence on record was perverse. The trial judge was right when he invoked the provision of Section 167(a) of the Evidence Act to hold that the Appellant stole PW1’s Motorcycle found on him four days after it was stolen.

Learned Counsel to the Appellant has argued that the learned trial judge erred when he relied on the extra-judicial statements of the Appellant admitted in evidence as they were not made voluntarily. He submitted the trial judge should have ordered a trial within trial to test their voluntariness or otherwise. It is on record that the Appellant who was represented by Counsel did not object to the admissibility of the Statements when the prosecution tendered them.

The law is that the appropriate time for raising objection to the admissibility of an extra judicial statement is at the point of tendering. Once admitted in evidence without objection, it is too late to raise the objection on Appeal. See HASSAN VS. STATE (2021) 17 NWLR (PT. 1804)45; IORAPU VS. STATE (2020) 1 NWLR (PT. 1706)391; EMEKA VS STATE (2019) 8 NWLR (PT. 1673)159; BASSEY VS. STATE (2019) 12 NWLR (PT. 1686)348. In the case of OGUDO VS. STATE (2011) 18 NWLR (PT.1278) 1 AT 31, PARAGRAPHS B-D, the Supreme Court, per Rhodes-Vivour, JSC held that:
“The position of the law is well settled and it is that where the Accused Person says that he did not voluntarily make the statement credited to him, such a stand by the accused person calls for the holding of a trial within trial. Where on the other hand the Accused Person says he did not sign the statement, the statement should be admitted in evidence, thereafter the question of what weight should be attached to such a statement becomes an issue for the Judge to decide at the end of the trial. The time to object to the voluntariness of the confessional statement is at the time of tendering the statement and not when the Accused Person opens his defence or during that defence.”

I stated earlier the Appellant did not raise any objection at the time his Statements were tendered. He cannot come to this Court to do that. It was also argued that the Appellant resiled from his extra-judicial statements at the trial. The apex Court and indeed, this Court have held severally that the fact that an Accused Person denies making the statement at his trial does not render such extra judicial statement inadmissible.

Where an accused person retracts his statement which has been admitted in evidence, what is left for the judge to determine is what weight should be attached to it and in so doing would consider the following:
i.) Whether there is anything outside the extra-judicial statement to show that it is true;
ii.) Whether it is corroborated;
iii.) Whether the facts stated in it are true as far as it can be tested;
iv.) Whether the accused person had the opportunity of committing the offence;
v.) Whether the accused person’s confession is possible;

vi.) Whether the confession is consistent with the other facts ascertained and proved at the trial.
See AFOLABI VS. STATE (2022) 2 NWLR (PT. 1814)201; SUNDAY VS. STATE (2021) 17 NWLR (PT. 1804)115; BUSARI VS. STATE (2015) 5 NWLR (PT. 1452)343; IBRAHIM VS. STATE (2014) 3 NWLR (PT. 1394)305.

In this Appeal, the learned trial judge did avert his mind to the above principles enunciated by the Supreme Court when he held at pages 82 to 83 of the printed Record as follows:
“Testing the confession of the Accused Person, Exhibits B1, B2, C1 and C2 therefore against other evidence given by the Prosecution, all of which I find credible and therefore believe to be true, I make the following findings and conclusions
a. That there is sufficient evidence outside the confession of the Accused Person to show that its content is true.
b. That the confessional statement of the Accused Person is sufficiently corroborated.
c. That the statements made in the Confessional Statements are in fact true as far as they can be tested.
d. That the accused person had the opportunity to commit the crime.
e. That the Confession is possible and was voluntarily made by the accused person.
f. That the Confession of the accused person is consistent with other facts which have been ascertained and which have been proved.
I also find that the Prosecution has been able to prove the following beyond reasonable doubt:
i. That in the afternoon of 29th January, 2014 a robbery incident took place in Onipakala Village along Kobape Road.
ii. That the robbery was done with offensive weapon to wit: a knife
iii. That the robbery was perpetrated by the accused person.”

I have considered the extra-judicial statements of the Appellant tendered and admitted in evidence as Exhibits “B1”, “B2”, “C1” and “C2” and I am of the firm view that they satisfy the requirements of a confession as enshrined in Sections 28 and 29 of the Evidence Act. I therefore find no reason whatsoever to disturb the findings made and conclusions reached thereon by the learned trial Judge.

​The summary of all I have been saying is that the prosecution proved all the three ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt. The evidence of PW1 that he was robbed and that at the time he was robbed the Appellant was armed with a knife was not challenged by the Appellant under cross examination. The trial judge found it credible and believed him. Failure to tender the knife used in the circumstance of this case was not fatal.

PW1’s evidence put the Appellant at the scene of crime and was to the point that he was the robber. I have no reason whatsoever to disturb the findings and conclusion reached by the trial Court. They are rooted in the evidence on record.

On the whole, I find this Appeal devoid of merit and it is hereby dismissed. I affirm the judgment of the Ogun State High Court holden at Abeokuta in Suit No: AB/19R/2016 delivered on 7th of December, 2017.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: My learned brother, FOLASHADE AYODEJI OJO, JCA, has availed me a draft copy of the judgment just delivered. I am in agreement with his reasoning and conclusion that the Appellant’s appeal has no merit. My learned brother has exhaustively and dispassionately dealt with the sole issue identified for the determination of the appeal that I have nothing useful to add.

 

I too dismiss the appeal and affirm the judgment of the lower Court in which the Appellant was convicted and sentenced for the offence of Armed Robbery.

ABBA BELLO MOHAMMED, J.C.A.: The essential issue raised in this appeal is whether from the totality of the evidence led before the trial Court, the Prosecution had established beyond reasonable doubt the offences of conspiracy to commit armed robbery and armed robbery against the Appellant.

The lead judgment of my learned brother FOLASADE AYODEJI OJO, JCA had exhaustively resolved the issue and I agree with his reasoning and conclusion that the Prosecution had through the evidence of PW1, the eye witness and victim to the crime, and the confessional statement of the Appellant, established its case against the Appellant and the trial Court had properly evaluated the evidence in arriving at its decision. As such, this Court has no reason to interfere with the decision of the trial Court: IGAGO v STATE (1999) LPELR-1442(SC) per Karibi-Whyte, JSC at page 27. para. E.

In consequence, I also find this appeal devoid of merit. I join in dismissing same and in affirming the judgment of the trial Court delivered on 7th of December, 2017.

Appearances:

J. D. OLOYEDE For Appellant(s)

B. A. ADEBAYO, Director Public Prosecution, with him, O. A. SONOKI, ADPP and A.O. AKAPO, PSC For Respondent(s)