FAGITE v. STATE
(2022)LCN/16548(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Wednesday, December 28, 2022
CA/AK/147C/2020
Before Our Lordships:
Ayobode Olujimi Lokulo-Sodipe Justice of the Court of Appeal
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Yusuf Alhaji Bashir Justice of the Court of Appeal
Between
OLUWASEUN FAGITE APPELANT(S)
And
STATE RESPONDENT(S)
RATIO:
THE LAW ON THE OBJECTION OF A DOCUMENT SOUGHT TO BE TENDERED BY A COUNSEL
Be it noted that it is trite that when a document is sought to be tendered and is objected to by counsel, what counsel objecting does at that stage is no more than a submission on the admissibility of the statement. Thus, as the issue of non-est factum is a matter of fact, the challenge of such a statement is more properlydone when the accused or any other witness of his impugns the statement as not being that of the accused from the witness box. I agree with learned counsel for 2nd appellant therefore that as Counsel is not competent to give evidence from the bar and the challenge of a confessional statement on grounds of non-est factum is a matter of fact, the challenge is appropriately made when the accused as witness denies the making of such a statement. As I had cause to observe in Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380, a case identical to the one in hand:
“… Now the voluntary statement of the Appellant which was confessional in nature was received in the proceedings giving rise to this appeal as exhibits B and B1 and these are part of the prosecution’s case. See Anofi Opayemi v. The State(1985) 2 NWLR (Pt. 5) 101. The appellant for his defence in rendering his testimony in Court, admitted he never said what was recorded. He thereby sought to retract the statement rather than its involuntariness that was in issue.” AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE BURDEN OF PROOF ON THE PROSECUTION TO ESTABLISH THE VOLUNTARY MAKING OF A CONFESSIONAL STATEMENT
The law in casting the burden of proof on the prosecution to establish the voluntary making of a confessional statement by an accused where the voluntary making of the same is an issue, in my considered view clearly realizes the fact that the Police by using unconventional means or methods can always be moved to portray an accused person as a suspect to have made a confessional statement. I am therefore of the considered view that as the law recognizes the fact that it is possible for an overzealous Policeman to attribute the making of a confessional statement to an accused when the said accused person did not make the same voluntarily, it is equally possible for an overzealous Policeman to attribute the making of a confessional statement to an accused person who he claimed to have made the same in any name he chooses to ascribe to the said accused person when the said accused person never made the said statement. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE POSITION OF THE LAW REGARDING THE EFFICACY OF A CONFESSIONAL STATEMENT
There is no principle of law that stipulates that a Policeman as an officer of the law cannot himself lie. This is more so as all some Police investigators set out to achieve against the notorious position of the law as regards the efficacy of a confessional statement in criminal prosecution (to wit: that it is the strongest proof of the commission of an offence by its maker) is only to extract a confessional statement from a suspect; and even at that not investigating any part of such confessional statement to confirm its truthfulness. Just as PW2 in the instant case never investigated the truthfulness of Exhibit C. Where then can it be said that the prosecution adduced any evidence that went to establish the likelihood that PW2 who as I have earlier stated conducted no further investigation in the instant case and also never portrayed himself as ever having investigated any aspect of Exhibit C and found the same to be true, was not lying when he testified that the Appellant never gave his name to him (PW2) as Owoyemi Simeon? In other words, the denial by the Appellant (who had been in detention and clearly incommunicado with the outside world if not since his arrest but undeniably since his arraignment on 3/6/2014) that he never made any confessional statement particularly Exhibit C in the circumstances, in my considered view constitutes sufficient doubt in the case of the prosecution regarding Exhibit C and which doubt should be resolved in favour of the said Appellant. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
THE PROSECUTION MUST PROVE THE COMMISSION OF AN OFFENCE BY AN ACCUSED PERSON
The law is settled, that the prosecution must prove the commission of an offence by an accused person or defendant charged with the commission of the said offence beyond reasonable doubt and that the prosecution can properly be found to have discharged this burden through a sole or single witness. In other words, that “proof beyond reasonable doubt” is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. Hence, a Court is entitled to act on the evidence of a single witness if that witness can be believed given all the surrounding circumstances. It is therefore clear that one single credible witness can establish a case beyond reasonable doubt. Seethe cases of AKALEZI V. STATE (1993) LPELR-313(SC) and NWOKOCHA V. A-G OF IMO STATE (2016) LPELR-40077(SC) amongst many others. AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
IT IS NOT FATAL TO THE CASE OF THE PROSECUTION WHEN THE ITEMS USED IN THE COMMISSION OF A CRIME THAT HAVE BEEN RECOVERED ARE NOT TENDERED
I am aware of the often-touted position of the law that it is not fatal to the case of the prosecution when the items used in the commission of a crime or items of a crime that have been recovered are not tendered. However, I cannot but say that this position of the law applies where from the circumstances of the case such non-tendering would not amount to withholding of evidence. In this regard, see the cases of MUSA V. STATE (2016) LPELR- 42803(SC)and OGU V. COP (2017) LPELR-43832(SC) wherein the Supreme Court stated thus: –
“I agree with both lower Courts that production of the weapons used to commit the offence and items recovered is not a sine qua non to securing a conviction where, as in this case, there is other overwhelming evidence before the Court establishing beyond reasonable doubt that the accused person committed the offence and that he was also in the company of others. See: xxx
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 10/2/2017 in Charge No. AK/96c/2013 by the High Court of Ondo State presided over by Hon. Justice D.l. Kolawole, (hereafter to be simply referred to as “the lower Court” and “the learned trial Judge” respectively). The counts in the Information dated 2/4/2013 and filed on 15/8/2013 preferred against the Appellant and on which the said Appellant stood trial as contained on pages 3 and 4 of the record of appeal (hereafter to be simply referred to as “the record”) read: –
“COUNT I
STATEMENT OF OFFENCE
CONSPIRACY, contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLUWASEUN FAGITE and another now at large on or about the 12th of November, 2012 at about 07.30pm at No. 17 Ogunmolahan street, Oke Ogba quarter, Akure, in the Akure Judicial Division conspired together to commit felony to wit armed robbery.
COUNT II
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14, Laws of Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLUWASEUN FAGITE and another now at large on or about the 12th of November, 2012 at about 07.30pm at No. 17 Ogunmolahan street, Oke-Ogba quarter, Akure, in the Akure Judicial Division while armed with an axe and a knife, robbed one Folayan Julius of the sum of N1,000 and four Nokia handsets.
COUNT III
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14, Laws of Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
OLUWASEUN FAGITE and another now at large on or about the 12th of November, 2012 at about 2100hrs at No. 17 Ogunmolahan street, Oke-Ogba quarter, Akure, in the Akure Judicial Division while armed with an axe and a knife, robbed one Dr. Olaniyi Seun of the sum of N10,000, a Blackberry handset and a Nokia handset.”
The Appellant pleaded not guilty to the counts re-produced above on3/6/2014 and the lower Court is shown on page 14 of the record to have recorded the proceedings in that regard thus: –
“PLEA: – The Charge was read to the defendant and then explained to him in Yoruba by the Court clerk and when he seemed perfectly to understand the purpose of the Charge he pleaded Not guilty to the three counts.”
The prosecution in the proof of its case fielded 2 witnesses: (i) PW1 – Folayan Toyin Julius, one of the complainants/victims; and (ii) PW2 – Oguntoye Fayobi – a Police Inspector working with the State Anti-Robbery Squad (SARS). The following Exhibits tendered by the prosecution through PW2, were admitted in evidence: (i) Exhibit A – statement dated 13/11/2012 made by CpI Abode Onime (who PW2 stated in his evidence was the first IPO in the matter); (ii) Exhibit B – statement dated 13/11/2012 made by Dr. Olaniyi Seun to SARS; (iii) Exhibit B1 – statement dated 13/11/2012 made by Taofeek Akeem son to the Police; (iv) Exhibit C – confessional statement dated 13/11/2012 alleged to have been made by the Appellant at the SARS along with the confessional statement form in relation to the said Appellant dated 23/11/2012;(v) Exhibit D – investigation report dated 19/11/2012. The statement of the Appellant dated 13/11/2012 made at “A” Division Police Station sought to be tendered by the prosecution was rejected and marked Rejected 1.
The case of the prosecution as gleaned from the record is that on 12/11/2012, the Appellant and one other while armed with offensive weapons entered the house of PW1 and robbed him and one Dr. (Miss) Seun Olaniyi of their phones and money. The robbers also took away phones that were being charged in PW1’s sitting room. However, as the robbers proceeded to another room in the house, PW1 raised an alarm which caused the robbers to take to their heels and in the process, the Appellant was arrested and handed over to the Police.
The Appellant testified as DW1 and called no other witness and his defence was to the effect that he was a “trailer driver” and that on 9/11/2012, he drove a truck from Aflao to Akure on the instructions of his “master”. That he got to Akure in the night and having parked the truck, he went to get food. That while coming back to his truck he was accosted by a Policeman who inquired as to his whereabouts. The Policeman not being convinced of his explanation arrested him and took him to the Police Station at “A” Division. While there, a Policeman with whom he had previously had a disagreement, came to the Police Station and pledged to deal with him. The said Police Officer took over the investigation and caused him to be taken to SARS on an allegation of armed robbery.
At the conclusion of trial, the lower Court in its judgment on pages 63-75 of the record and having summarized the evidence of the parties, the submissions in their respective written addresses; and making findings on the ingredients or elements of the offences preferred against the Appellant and which the said Court found the prosecution to have proved beyond reasonable doubt, convicted the Appellant as charged and sentenced him to death by hanging as provided under the enactment the Appellant was charged.
Aggrieved by his convictions and the sentence of death passed on him, the Appellant initiated this appeal by lodging at the registry of the lower Court on 7/3/2017, a notice of appeal bearing the same date. The grounds of appeal in the said notice shorn of their respective particulars read thus: –
“GROUND ONE
The judgment of the trial Court which found the appellant guilty of conspiracy to commit armed robbery and armed robbery was in violation of the principles of fair hearing and cannot be supported having regards (sic) to the weight attached to Exhibit B and Exhibit B1 by the trial Court when the authors of the statements admitted as Exhibits B and B1 were not called as witnesses before the trial Court.
GROUND TWO
The learned trial Judge erred in law when he admitted Exhibit D, an unsigned document purported to have been authored by PW2, who claimed to be the Investigating Police Officer at the Special Anti-robbery Section (SARS) of the State Criminal Investigation Department (SCID) Ondo State contrary to the decision of the Supreme Court in Omega Bank Nigeria Plc V. O.B.C. Ltd (2005) All FWLR (pt 249) 1964 SC.
GROUND THREE
The learned trial Judge erred in law when he assumed that the appellant is Oluwaseun Fagite despite the denial of the Appellant at the earliest opportunity before the Court that his name is Owoyemi Simeon.
GROUND FOUR
The learned trial Judge misdirected himself and erred in law which error occasioned travesty of justice when he held that the appellant demonstrated, while giving evidence, that he is a liar.”
The reliefs sought by the Appellant in this appeal are: (i) an order allowing the appeal and reversing the judgment of the lower Court convicting and sentencing him to death by hanging; and (ii) an order of this Court discharging and acquitting him of the offences he was convicted of/for.
The appeal was entertained on 12/10/2022 and learned leading counsel, Steve Adebowale in urging the Court to allow the appeal adopted and relied on the Appellant’s brief of argument dated 15/10/2020 and filed on the same date but deemed properly filed and served on 12/10/2022, and the Appellant’s answer to preliminary objection and Appellant’s reply brief dated and filed on 14/12/2020, but deemed properly filed and served on 12/10/2022. Save for the portion of the Respondent’s brief of argument wherein a preliminary objection to the hearing of the appeal was raised and argued, learned counsel, Shehu Wada Abdullahi adopted and relied on the Respondent’s brief of argument dated 13/11/2020 and filed on the same date but deemed as properly filed and served on 12/10/2022, in urging the Court to dismiss the instant appeal.
The preliminary objection raised by the Respondent in its brief of argument having not been argued prior to the hearing of the appeal but on the contrary having been expressly abandoned, is hereby struck out.
The Appellant formulated three issues for the determination of this appeal in his brief of argument. They are as follows: –
“1. Whether the trial Court was right to convict the Appellant for conspiracy and armed robbery in the absence of fair hearing having regard to the wrongful admission of Exhibits B, B1 and Exhibit D by the trial Court. (Issue distilled from grounds one and two of the grounds of appeal).
2. Whether the mind of the trial Court was not prejudiced by extraneous consideration when it found against the weight of evidence that the Appellant was a liar in the following words:-
“I must say that I did not believe the story of the defendant. He demonstrated while giving evidence that he was a liar. I am however not always bothered by criminal defendants who lie; especially when they face a charge that carries the death penalty. Most people will lie under that circumstance especially when they believe that the lies can save them. It is always the duty of the Prosecution to prove the guilt of the defendant so any lie told by the defendant has nothing to do with the bounden duty of the prosecution.”
[Emphasis Supplied] (Issue distilled from ground four of the grounds of appeal)
3. Whether the Honourable trial Court was right by relying on Exhibit C to convict the Appellant when there was no sufficient material evidence outside Exhibit C to corroborate or ground it in law as a confessional statement properly so called (Issue distilled from ground three of the grounds of appeal).”
The Respondent formulated a lone issue for the determination of the appeal in its brief of argument. It reads: –
“Whether the Court was not correct in convicting the Appellant for the offence of armed robbery?”
Dwelling on the first of the issue she formulated for determination, Appellant submitted to the effect that the lower Court’s admission of Exhibits B and B1 in evidence was in breach ofhis right to fair hearing. This is because the makers of the said Exhibits were not called as witnesses for the purpose of cross-examination. That the extra-judicial statement of a prosecution witness can only be admitted subject to Sections 232 and 233 of the Evidence Act, 2011 (hereafter to be simply referred to as “the Evidence Act”). That the said documents are only admissible pursuant to Section 83 of the Evidence Act. It is the stance of the Appellant that the prosecution did not lay any foundation to bring the said documents within the exceptions provided by the said Section 83 of the Evidence Act. That PW2 who tendered the said documents was not in a position to do so not being the maker and could not answer questions on the said documents. That the lower Court ought not to have ascribed probative value to the said documents as he (Appellant) was not given the opportunity to cross-examine PW2 on the contents of the same. Appellant further submitted to the effect that pursuant to Sections 232 and 233 of the Evidence Act, the extra-judicial statement of a witness for the prosecution is only admissible for the purpose of contradicting the evidence of the said witness already given on oath. That the lower Court ought not to have admitted the said statements for the purposes of corroboration of the evidence of PW1 and PW2 contrary to the said provisions of the Evidence Act. Appellant posited that the lower Court ought not to have admitted and relied upon Exhibit D as the same was unsigned. That the toy gun, stainless steel knife and red shirt allegedly recovered from the Appellant were not tendered in evidence and consequently, the lower Court ought to have held that the said items did not exist. Appellant posited that the lower Court ought to have resolved the doubt created by the circumstances surrounding his arrest in his favour.
Dwelling on the second of the issues he formulated for the determination of the appeal, Appellant submitted to the effect that the conclusion of the lower Court to the effect that he was a liar was clearly borne out of the confessional statement which he denied making on the ground that he was Owoyemi Simeon and not Oluwaseun Fagite, Appellant further submitted that Exhibit A has no evidential value as CpI. Abode Onime who made the same was not available for cross-examination. Appellant variously referred to pages 73, lines 22 to 29; page 72, lines 15 to 18 of the record and submitted to the effect that his arrest was brought to the fore by the evidence of PW1, PW2 and that of himself and the lower Court ought to have resolved the doubt created by the circumstances of his arrest in his favour. Appellant faulted the lower Court’s reliance on Exhibits B and B1 as corroborating the evidence of PW1 in relation to his arrest. That despite the finding of the lower Court that there were contradictions in the evidence of PW1 and Exhibit B, the lower Court proceeded to find corroboration in the said evidence for Exhibit C. It is the stance of the Appellant that the said contradictions in the evidence of PW1 and Exhibits B and B1 are in respect of whether the said robbers were armed with axes or knives. That the contradictions noted by the lower Court to be existent in the evidence of PW1 and Exhibit B on page 72 of the record were material contrary to the finding of the lower Court that they were not. Appellant further argued that the principle that it was not mandatory for the prosecution to tender the weapons used in the commission of the crime is inapplicable in the circumstances of the instant appeal as the prosecution having admitted to recovering same from the Appellant ought to have tendered them in evidence and the failure to have done so ought to be resolved in his favour.
Dwelling on the third of the issues he formulated for the determination of the appeal, Appellant submitted to the effect that Exhibit C which was made on 13/11/2012 and authenticated by a Superior Police Officer on 23/11/2012 was not equitable but a mere move to comply with the “Judges rule”. Appellant submitted that even though Exhibit C was admissible given the basis of his objection in respect of the same, the lower Court still ought to have sought corroborative evidence before relying on the said Exhibit as the authentication by the Superior Police Officer was undertaken only to satisfy the requirement of the Judges’ Rules under the repealed Police Act. Appellant argued that irrespective of the fact that Exhibit C was admissible notwithstanding the objection he raised, the lower Court ought to have sought for corroborative evidence outside the said document before any weight could be attached to it. Appellant again argued that the evidence of PW1 and PW2 relating to the circumstances of his arrest did not support the case of the prosecution.
Responding to Appellant’s issue 1, the Respondent submitted to the effect that the prosecution has no duty to call all the witnesses in its list of witnesses. That the evidence of PW1 and PW2 are credible enough to establish the offences the Appellant was convicted of/for. Respondent submitted that Exhibits B and B1 show the inconsistencies and contradictions in the evidence of the Appellant and further corroborated Exhibit D. That the admissibility of a document is dependent on its relevance and where the maker of a document cannot be reasonably found, the Court could admit same pursuant to Section 83(1),(2)(a) and (b) of the Evidence Act; hence that the constitutional right of the Appellant to fair hearing was not infringed upon. This is more so as the Exhibits were made available to him (Appellant) before trial. It is the stance of the Respondent that the provisions of Sections 232 and 233 of the Evidence Act do not apply to the makers of Exhibits B and B1 inasmuch as the said Exhibits were relevant to the trial. Respondent controverted the submission of the Appellant that Exhibit D was wrongly admitted in evidence and submitted that the identity of the Appellant as the perpetrator of the said offences was established by the prosecution.
Dwelling on Appellant’s issues 2 and 3, Respondent submitted to the effect that Exhibit C is corroborated by the evidence of PW1 and PW2. It is the stance of the Respondent that Exhibit C which is the extra-judicial confessional statement of the Appellant established that his name is indeed Oluwaseun Fagite and that the onus laid on the Appellant to prove that he was Owoyemi Simeon and not Oluwaseun Fagite and this he failed to do. Respondent submitted further that Exhibit C was sufficient to ground the conviction of the Appellant. Concluding, Respondent submitted that the findings of fact made by the lower Court was supported by evidence.
Having regard to the judgment of the lower Court, the grounds of appeal, the issues formulated by the parties for the determination of the appeal and the arguments of the parties as reviewed above, I am of the considered view that the issue apposite for determination in this appeal is: –
“Whether or not the judgment of the lower Court convicting the Appellant for the offences with which he was charged is warranted having regard to the admissible and legal evidence adduced by the prosecution in the proof of its case against the Appellant beyond reasonable doubt.”
The issue formulated above, is in recognition or in appreciation of the position of the law that the burden is not only on the prosecution to prove each of the ingredients or elements of the offence or offences it decides to prefer against an accused person beyond reasonable doubt, but that the said burden does not shift or never shifts In my view, the submission is misplaced. It appears to me to have lost sight of the basic difference in the approach to evaluation of evidence in civil and criminal cases. In civil cases, the question is as to weight of evidence. The inquiry is which of the two of evidence on an issue out-weighs the other. To ascertain this, they are put on an imaginary scale and weighed together to find out which of them preponderates. But in criminal cases, the issue of preponderance of evidence does not really arise.
The question is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge, that is the end of the matter, provided, of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defence. He needs not weigh them on balance, xxx”
See also the cases of OTEKI V. A-G BENDEL STATE (1986) LPELR-2823(SC) and EBENEHI V. STATE (2009) LPELR-986(SC) amongst many others.
I will now embark on the consideration of the issues raised by the Appellant regarding the pieces of evidence relied on by the lower Court in convicting him of the offences preferred against him and which he conceives as derogating from the standard of proof beyond reasonable doubt the prosecution ought to have attained in the instant case.
The law is settled that the prosecution can prove its case beyond reasonable doubt against an accused person or defendant in respect of the offence or offences preferred against the said accused person or defendant, by any of or all of the following means, namely; (i) by the testimony or testimonies of eye witness or witnesses; (ii) through the voluntary confessional statement of an accused person; and (iii) through circumstantial evidence. See the cases of UGBOJI V. STATE (2017) LPELR-43427(SC) and IBRAHIM V. STATE (2022) LPELR-58001(SC) amongst many others.
I am of the considered view that it is obvious from the judgment of the lower Court that the said Court found the prosecution to have proved the offences it preferred against the Appellant beyond reasonable doubt through the direct evidence given by PW2; some statements made by persons who were not called as witnesses tendered by the prosecution (i.e. Exhibits B and B1), the unsigned “Police Investigation Report” admitted as Exhibit D, and the confessional statement ascribed to the Appellant made on 13/11/2012 admitted as Exhibit C(and which he retracted at trial).
I will first consider the challenge by the Appellant to the admissibility and the reliance by the lower Court on the confessional statement admitted as Exhibit C in convicting the Appellant for the offences preferred against him.
Having regard to the record, the documents admitted as exhibits in the case as well as the confessional statement admitted as Exhibit C were tendered through PW2. The notes of proceedings for 10/3/2016 on pages 18-24 show that the documents(including Exhibit C) were tendered by the prosecution through PW2. The said notes read:“P.W.2:- Sworn on the Holy Bible and states in English as follows: I am Oguntoye Fayobi, a Police Inspector working at SARS, Akure. I was a Sergeant in 2012. I know the defendant very well. I remember that on 13/11/2012 a case of armed robbery was transferred to SARS from “A” division (sic), Akure. I was told to investigate the case. The complainant wrote his statement while I took the statement of the defendant and after this, the defendant was detained. I know Police Corporal Abode he was the IPO at the “A” division (sic), Akure. The case file at the “A” division (sic) was transferred to us. CPL. Abode is still in “A” division (sic) but I know he is on special assignment for today. I know the defendant made statement at “A” division (sic). I can recognize the statement contained in the case file from “A” division (sic). This is the casefile.
Mrs. Kolade-Oba – I seek to tender the statement.
Mr. Adebowale – I am objecting to the admissibility. The recorder is available. We will not be able to cross-examine the witness in Court.
Mrs. Kolade-Oba:
I rely on Sections 83 and 49 of the Evidence Act.
COURT: – I know that another Policeman can tender the statement that was taken by colleague (sic) who is not available and such a Policemen must give evidence as to the Each (sic) that he is familiar with the handwriting and signature of the Police Officer not available. P. W. 2 did not give any evidence as to how he became aware that the document was indeed made by CPL Abode. Moreover, P.W.2 said CPL Abode is still in the “A” division (sic) but merely unavailable today because he is on Special duty. In the circumstances, I do not think the document can be admitted. It is rejected and it should be marked Rejected I.”
xxx CPL. Abode made statement at SARS. This is the statement made by CPL. Abode.
Mrs. Kolade-Oba – I seek to tender it as an Exhibit.
Mr. Adebowale – No objection.
COURT: Admitted as Exhibit A.
I know Taofeek Akeem son and Dr. Olaniyi Seun. Dr. Olaniyi Seun is one of the victims. Taofeek Akeem son arrested the defendant when he was running away. I know Mr. Folayan Julius was a victim of the robbery and I know he has testified. This was in 2014. We have lost contact with Dr. Olaniyi Seun as she has relocated. This is also the case with Taofeek Akeem son.
Dr. Olaniyi and Taofeek Akeem son made statements at SARS. I can identify the statements made by the two. The documents shown to me are the statements of Dr. Olaniyi Seun and Taofeek Akeem son made at SARS.
Mrs. Koide-Oba (sic) – I seek to tender the two documents.
Mr. Adebowale – I object to the admissibility of the documents. There is nothing to show that both Dr. Olaniyi Seun and Taofeek Akeem son cannot be brought to Court. The document were (sic) made by Dr. Olaniyi Seun and Taofeek Akeem son.
COURT: The documents are admissible as evidence of the complaint lodged with the Police and PW2 who gave evidence as the IPO at SARS cab (sic) tender them. In view of this, the documents are admitted s (sic) follows: The statement of Dr. Olaniyi Seun -Exhibit B, that of Taofeek Akeem son-Exhibit B1.
I remember I took the statement of the defendant and because of the nature of the statement, I took the defendant before a Superior Police Officer for attestation. This is the statement I took from the defendant and the attestation form completed after the attestation. Mrs. Kolade-Oba. I seek to tender the documents.
Mr. Adebowale – The defendant is disowning the document. He is not Oluwaseun Fagite but Owoyemi Simeon. He is waiting for the statement recorded from him as Owoyemi Simeon. Mrs. Kolade-Oba. The witness has only retracted the statement. The document is admissible.
COURT:- The document is admissible in the circumstances. P.W.2 said he took the statement from the defendant. He also Superindent (sic) the attestation. The objection is a question of fact as to whether P.W.2 took the statement from the defendant or not. The document is to be marked Exhibit C.
xxxx
I know that the defendant was transferred to us with some exhibits. The exhibits are one toy gun, one stainless steel (sic) but they are not in Court right now. I remember I wrote my report after my investigation. This is my investigation report.
Mrs. Kolade-Oba – I seek to tender the investigation report as Exhibit.
Mr. Adebowale – We are objecting because it was not signed.
Mrs. Kolade-Oba – The document has the name and force number of the witness. He has identified it as his investigation report.
COURT:- The document is the investigation report written by P.W.2. He identified it. The fact that he did not sign it is of no moment. It is clear from the evidence of the document that P.W.2 wrote the report. The document is relevant and it is admissible. It is to be admitted and marked as Exhibit D.
I visited the scene of crime at Oke-Ogba, Akure. I was told that the robbers gained entrance through the generator room. I later charged the matter to Court.”
I am of the considered view that the lower Court given the objection of the Appellant to the admissibility of the confessional statement it admitted as Exhibit C would appear not to have appreciated fully that the said Appellant simply raised a defence of non est factum in respect of the said statement in that it was made by Oluwaseun Fagite and not him (Appellant) as he is Owoyemi Simeon. In aid of this position is the case of AIGUOREGHIAN V.STATE(2004) LPELR-270(SC) wherein the Supreme Court dwelling on the issue as to whether a plea of non est factum amounts to a denial or a retraction of a confessional statement stated thus: –
“The lower Court found support for the affirmation of the conviction of the 2nd appellant by alluding to the denial of the appellants of the making of their extra-judicial statements exhibits and as a result of which both statements and evidence given in their defence were held unreliable thereby paving the way for sole reliance on the evidence of PW2 to convict the appellants.
It is for this reason that I agree with the 2nd appellant’s submissions that the Court below in doing this fell into grave error. What had been raised by the appellants in relation to the statements is non-est factum. It is not far fetched therefore that 1st appellant stated that:
“I made a statement to the Police. I see Exhibit A. It is not the statement I made to the Police.”
2nd appellant for his part stated thus:
“that statement was not made by me.”
Although it is conceded that the issue of non-est factum was not raised by counsel when the statements were sought to be tendered, the plea of non-estfactum was nonetheless validly raised. Had objections been raised to the admissibility of the statements on the basis of non-est factum, they would still have been admitted in evidence as non-est factum does not affect admissibility. The cases of R v. Igwe (1960) SCNLR 158; Ikpasa v. A. G., Bendel State (1981) 9SC 7 and Ogunye v. State (1999) 5 NWLR (Pt. 604) 548 at 570. 572 and 576 were called in aid.
Therefore raising the objection that the statements were not made by the appellants at the stage of tendering same would have been superfluous as the statements would all the same have been admitted. This Court has held in Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380at 399 – 400 F-A that the plea non-est factum in relation to a confessional statement is a matter of fact to be determined by the Judge at the conclusion of the trial.
Be it noted that it is trite that when a document is sought to be tendered and is objected to by counsel, what counsel objecting does at that stage is no more than a submission on the admissibility of the statement. Thus, as the issue of non-est factum is a matter of fact, the challenge of such a statement is more properly done when the accused or any other witness of his impugns the statement as not being that of the accused from the witness box. I agree with learned counsel for 2nd appellant therefore that as Counsel is not competent to give evidence from the bar and the challenge of a confessional statement on grounds of non-est factum is a matter of fact, the challenge is appropriately made when the accused as witness denies the making of such a statement. As I had cause to observe in Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380, a case identical to the one in hand:
“… Now the voluntary statement of the Appellant which was confessional in nature was received in the proceedings giving rise to this appeal as exhibits B and B1 and these are part of the prosecution’s case. See Anofi Opayemi v. The State(1985) 2 NWLR (Pt. 5) 101. The appellant for his defence in rendering his testimony in Court, admitted he never said what was recorded. He thereby sought to retract the statement rather than its involuntariness that was in issue.”
In view of the appropriate attack of the appellants of the statement (Exhibits A and C) as not being their deeds, it was incumbent on the Courts below to have made a finding on whether the said statements were actually made by the appellants before holding that the statements were retracted or before putting them into any use in convicting the appellants.
It is noteworthy to stress that the terms “retraction” and “resile from” have been used interchangeably in most decisions with the pleas of non-est factum. This is misleading since a statement must first be shown to have been made before it can be said to have been retracted by its maker for, where the very making of the statement is in issue, the retraction cannot arise at that stage.
It is in this wise that I agree that where an accused person sets up a defence of non est factum in relation to a confessional statement, what he has done is not a retraction but a denial of the making of the statement.
No finding was made by the two Courts below on the issue of fact as to whether the Appellant made the statements. The application therefore of the Rule in Oladejo v. The State (1987) 3 NWLR (Pt.61) 419 and Asanya v. The State (1991)3 NWLR(Pt. 180) 422, two cases that have been overruled, was therefore prejudicial to the appellants whose conviction ought not to be allowed to stand. See Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383. What it boils down to is that had the testimony of the 2nd appellant and his extra-judicial statement (Exhibit C) not been treated as unreliable, the 2nd appellant would have been absolved of the offence of murder of the deceased based on his defence of alibi which was not investigated. Furthermore, the evidence of PW2 who himself was a victim of the same attack, ought not to have been viewed with as much confidence as the trial Court and the Court below did, it being the evidence of a victim.
xxxx”
It is in my considered view clear from the record that though the lower Court considered the confessional statement allegedly made by the Appellant to have been retracted as submitted by the prosecution, it was correct to have admitted it in evidence at the point or stage of the proceedings it did, since there was no challenge to its having been made voluntarily. Indeed, the voluntary making of a confessional statement an accused denied making at all as a suspect can never be in issue; hence it is settled law that a confessional statement an accused person denied making at investigatory stage by the Police should be admitted without more as it is part of the case of the prosecution. The lower Court would also appear to have appreciated the fact that it was incumbent on it to have first made a finding that it was the Appellant that indeed made the confessional statement admitted as Exhibit C; the said Appellant having stated on oath that his name is Owoyemi Simeon.
The question to now interrogate is whether the lower Court was right in its conclusion that the name of the Appellant is Oluwaseun Fagite and that he made the confessional statement admitted as Exhibit C in that name and not in the name of Owoyemi Simeon. The need for the examination of the correctness of the finding of the lower Court in this regard flows from the portion of the judgment wherein the said Court stated thus: –
“There is the statement credited to the defendant. It was admitted as Exhibit C. The defendant raised an issue with it. He claimed that it was not his statement. He said he gave his statement as Owoyemi Simeon and not Oluwaseun Fagite. PW2 who took the statement however was emphatic that the defendant was the person he related with and he gave the statement tendered in Court. I have no doubt that the defendant was lying that he is Owoyemi Simeon and that he gave a statement to the police under that name. The defendant did not demonstrate that his real name is Owoyemi Simeon and that the statement taken in the name of Oluwaseun Fagite was not taken from him. I believe PW2 that the statement Exhibit C was taken from the defendant.
The statement of a defendant in a criminal trial is part of the case for the prosecution and if it has probative value it can be of tremendous importance to the prosecution. See xxx. In Exhibit C, the defendant conceded that he and another went to rob in a house at Oke-Ogba area of Akure and he claimed that while his robbing pal escaped, he was caught. The narrative dovetails to that given by PW1 and the extra-judicial statement of Akeem son Taofeek who claimed in Exhibit B to have caught one of the robbers. The statement though was retracted, but the evidence before the Court is such to make the retraction of no moment as the statement was fully corroborated. See: xxx
I must say that I did not believe the story of the defendant. He demonstrated while giving evidence that he was a liar. I am however not always bothered by criminal defendants who lie; especially when they face a charge that carries the death penalty. Most people will lie under that circumstance, especially when they believe that the lies can save them. It is always the duty of the prosecution to prove the guilt of the defendant so any lie told by the defendant has nothing to do with the bounden duty of the prosecution. I am of the view that the prosecution was able to reach the threshold of evidence required to prove the charge against the defendant as it was proved that during the night hours of the 12th November, 2012, the defendant and another went to the house of PW1 while they were armed and they attacked PW1 and robbed him of his belongings which included a sum of N1,000.
The question to ask is whether the lower Court properly appreciated the party that had the burden of proof to establish the fact that the Appellant indeed made Exhibit C in the name of Oluwaseun Fagite to PW2. The position of the law is that when the voluntariness of the making of an alleged confessional statement is in issue (i.e when the maker of the said statement does not deny making it in the first place), the burden of proving the voluntary making of the same is on the prosecution that claims that the accused person as a suspect made the same voluntarily. The law in casting the burden of proof on the prosecution to establish the voluntary making of a confessional statement by an accused where the voluntary making of the same is an issue, in my considered view clearly realizes the fact that the Police by using unconventional means or methods can always be moved to portray an accused person as a suspect to have made a confessional statement. I am therefore of the considered view that as the law recognizes the fact that it is possible for an overzealous Policeman to attribute the making of a confessional statement to an accused when the said accused person did not make the same voluntarily, it is equally possible for an overzealous Policeman to attribute the making of a confessional statement to an accused person who he claimed to have made the same in any name he chooses to ascribe to the said accused person when the said accused person never made the said statement. I am therefore of the considered view that when an accused person alleges that he never made any statement to the Police in the name the Police has attributed to him (accused person) in the said statement, the burden is on the prosecution to show that the accused person actually made the said statement to the Police in the said name just as the burden is always on the Police to establish the fact that a statement it claims the accused made voluntarily was indeed made by the said accused person voluntarily when there is objection to the admissibility of the said statement on the ground that the same was not made voluntarily. The only difference in approach when an accused person alleges that he did not make any confessional statement to the Police at all, is that the truth of this, is to be determined upon a consideration of the totality of the evidence before the Court and not by way of trial-within-trial as is the case when the challenge is to the voluntary making of a confessional statement. In my considered view, the lower Court in its judgment, would appear not to have realised this when it was the very statement it set out to determine its authorship that it used in determining this issue as well as using Exhibits B and B1 in finding that the Appellant was a liar and in deciding to ascribe credibility to the said Exhibit C.
As I have earlier stated, it was for the prosecution to have proved beyond reasonable doubt whether or not, the confessional statement it ascribed to the Appellant was indeed made by the said Appellant. I have painstakingly examined the evidence on record and I do not see any evidence presented by the prosecution to the lower Court that went to establish that the prosecution adduced any worthwhile evidence that the Appellant gave his name to PW2 as Oluwaseun Fagite and not Owoyemi Simeon as claimed by him. It cannot but be noted that save for the claim of PW2 that the Appellant gave his name as Oluwaseun Fagite to him (PW2) there is absolutely no other piece of evidence of any kind that this was so. Indeed, it would appear that the Appellant having been transferred to SARS for further investigation from “A” Division and PW2 having been assigned to carry out the said further investigation simply proceeded to obtain the confessional statement of the Appellant in the name of the Appellant as stated in the case file from “A” Division. Having regard to the evidence of PW2 under cross-examination, it is clear that apart from visiting the scene of the crime at Oke-Ogba, Akure he conducted no meaningful investigation into the case not to talk of showing himself as having considered the fact that the Appellant called himself Owoyemi Simeon and not Oluwaseun Fagite worthy of investigation. In this respect see the notes of proceedings on pages 22-23 of the record wherein PW2 testified under cross-examination thus: –
“xxx – Mr. Adebowale. I did not take the photograph of the scene of crime when I got there. I did not do forensic examination of the scene of crime. There are two complainants in this case. I do not know the name of the street but I know it is an (sic) Oke-Ogba. I did not arrest the defendant. The defendant was arrested by the people and he was taken to the Police Station. I do not know what happened during the night the defendant was arrested. The defendant before the Court is Oluwaseun that I interacted with. He told me that he is a native of Ita-Ogbolu. He told me the name of his parents. His mother was Wuraola while his father is Fagite. It was the defendant who told me he is Oluwaseun Fagite. I did not ask him for his photo I.D. card. The defendant was arrested at the scene of crime. I know he was arrested and taken to the “A” division (sic) where his case was transferred to us on 13th November, 2012. I was told the incident happened around 7.30 pm. I reject the insinuation that the defendant was indiscriminately arrested by the Police during a Police raid. He was arrested by some people at the scene of crime. I am not aware that the defendant objected charged to the Magistrate Court in the name of Oluwaseun Fagite. The defendant informed me that he is an Okada man not a trailer driver. The defendant did not tell me that he knew CPL. Abode before he was taken to the A division (sic). I want to rely on a stainless knife, Nock design axe and a red shirt in proof of this case. We could not track the Black Berry robbed because, (sic) The complainant was not willing to sponsor the exercise and we have no money for such. I have 25 years Police experience. The defendant ran out of the place of robbery and was running away and people were shouting thief! Thief! Thief!!! When he was caught by Taofeek Akeem son. Two robbers came to the house. I was told the defendant was caught with a knife in his body. A knife was brought to us at SARs, Akure. I cannot describe the knife. I reject (sic) that no knife was found with the defendant. It is not true that the complaint was burglary and not armed robbery.”
The case of the prosecution it should be noted was closed by the lower Court after the cross-examination of PW2. In doing this the lower Court on pages 24-25 of the record noted amongst others, that plea of the Appellant was taken on 3/6/2014 and that as the case of the prosecution was yet to be concluded it (lower Court) was closing the case of the prosecution as the Appellant had been in detention since he was arrested in 2012.
The evidence of the Appellant is on pages 25-27 of the record. Therein, the Appellant not only denied that he committed the offences with/for which he was charged but that he never made any statement to PW2 in the name of Oluwaseun Fagite as his name is Owoyemi Simeon. In his evidence the Appellant not only disclosed the fact that he was a victim of random arrest by the Police but that he indeed requested for one of the arresting Policemen to take him to the place he packed his trailer to see things for himself but was denied this. This is aside from testifying to the effect that a Policeman that he previously had some differences with orchestrated Exhibit C against him.
I am of the considered view that if the lower Court had fully appreciated that the Appellant having been in detention since his arrest in 2012 and that the prosecution never called the Policeman he first made a statement to upon his arrest, the said Court clearly had no basis for accepting the evidence of PW2 that the Appellant did not disclose his name to be Owoyemi Simeon as he testified to under oath in preference to that of the said Appellant that he did so and that Exhibit C was concocted as it were by PW2. I simply consider it to be somehow reckless for the lower Court to have believed that PW2 could not have concocted Exhibit C in the name ascribed to him (Appellant) by the first or initial IPO. This is because it is clear from the evidence on record that PW2 at all material times to the purported making of Exhibit C by the Appellant as Oluwaseun Fagite, had in his possession the case file transferred from “A” Division with the Appellant and exhibits and which case file contained a confessional statement purported to have been made by the Appellant on 13/112012 under the name of Oluwaseun Fagite and which statement was similar in purport in respect of name and content but which was ruled to be inadmissible when it was sought to be tendered on 10/3/2016 and duly marked Rejected 1. I am of the considered view that the lower Court had no basis for finding the Appellant to be a lair when apart from the denial of PW2 that the Appellant called himself Owoyemi Simeon, the said Court had no evidence before it that the Appellant did not tell PW2 that his name was Owoyemi Simeon and that the said PW2 simply discountenanced this as he already had in his possession a case file in which the Appellant had been described as Oluwaseun Fagite. There is no principle of law that stipulates that a Policeman as an officer of the law cannot himself lie. This is more so as all some Police investigators set out to achieve against the notorious position of the law as regards the efficacy of a confessional statement in criminal prosecution (to wit: that it is the strongest proof of the commission of an offence by its maker) is only to extract a confessional statement from a suspect; and even at that not investigating any part of such confessional statement to confirm its truthfulness. Just as PW2 in the instant case never investigated the truthfulness of Exhibit C. Where then can it be said that the prosecution adduced any evidence that went to establish the likelihood that PW2 who as I have earlier stated conducted no further investigation in the instant case and also never portrayed himself as ever having investigated any aspect of Exhibit C and found the same to be true, was not lying when he testified that the Appellant never gave his name to him (PW2) as Owoyemi Simeon? In other words, the denial by the Appellant (who had been in detention and clearly incommunicado with the outside world if not since his arrest but undeniably since his arraignment on 3/6/2014) that he never made any confessional statement particularly Exhibit C in the circumstances, in my considered view constitutes sufficient doubt in the case of the prosecution regarding Exhibit C and which doubt should be resolved in favour of the said Appellant.
Flowing from all that has been stated hereinbefore is that I do not see any evidence before the lower Court that went to establish beyond reasonable doubt that the name of the Appellant is Oluwaseun Fagite and not Owoyemi Simeon as he testified to and that Exhibit C was indeed made by him and not concocted by PW2. In other words, the doubt as to whether or not Exhibit C was concocted by PW2 in my considered view must be resolved in favour of the Appellant.
May I also state that even if it can be said that the lower Court was right in simply proceeding to find corroboration in respect of Exhibit C without specifically making a finding that the said Exhibit was made by the Appellant, it would appear to be the position of the said Appellant that the lower Court did not have any evidence before it that went to corroborate the fact that he (Appellant) made the statement and the truthfulness of the confession therein.
In its judgment, the lower Court in dwelling on the offences preferred against the Appellant on pages 72-75 of the record stated thus: -“xxxxx The defendant is charged with conspiracy to commit armed robbery and two counts of armed robbery. In most cases, there are no direct evidence of any conspiracy given in a trial of this nature; this is because matters of the nature of armed robbery are hatched in crevices and it is only the plotters that are in the know, most of the time the Court is always called upon to infer conspiracy from the circumstances of the case presented and in most of the cases where there is sufficient evidence to prove the armed robbery charged, invariably conspiracy is held proved. It is therefore imperative to consider the charge of armed robbery first in this case before the issue of conspiracy to commit armed robbery can be considered.
In most armed robbery cases there is always a sole issue for the determination of the Court and it is whether the prosecution proved the guilt of the defendant beyond reasonable doubt as required by law to the offence of armed robbery he was charged with. That is the sole issue for the Court to determine in this trial as submitted by the learned counsel for the parties.
What constitutes armed robbery is well known. In a charge ofarmed robbery, the essential elements which must be proved beyond reasonable doubt are: that there was robbery; that the robber(s) were armed with firearms and/or offensive weapons which they used or threatened to use; and that the defendant participated either alone or alongside others in the armed robbery. See xxxx Robbery is stealing anything and at or immediately before, or immediately after the stealing, using or threatening actual violence to any person or property in order to obtain or retain the thing stolen or prevent or overcome resistance to it being stolen or retained. See xxx. For armed robbery to be established, it must be proved that at the commission of the offence of robbery the defendant was armed with firearms or offensive weapon within the meaning of Section 11 of the Robbery and Firearms (Special Provisions) Act Cap. R11, Laws of the Federation, 2004 or that he wounds or uses personal violence on any person during the time of the commission of the offence. See xxx Under the Act, “firearm” is defined to include “canon, gun, rifle, carbine, machinegun, cap-gun, flint-lock gun, revolver, pistol, explosive, or ammunition or other firearm whether whole or in detached pieces” while offensive weapon is also defined to mean “any article (apart from firearms) made or adapted for use for causing injury to the person or intended by the person having it for such use by him, and it includes an air-gun, air- pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal glass or stone capable of being used as an offensive weapon”. Any person in company of a person so armed, or aiding and abetting in the commission of the offence is similarly guilty of the offence of armed robbery. See xxx The first question to ask is whether it was proved that there was any robbery. The evidence of PW1 was to the effect that on 12th November, 2012 at about 7.30 p.m. two persons came into his house through the kitchen and they came to him in the sitting room.
He gave evidence that the two robbed him and the person with him valuable properties including a sum of N1, 000 and handsets that were being charged in his flat that night. The evidence of PWI was similar to what one Dr. Olaniyi Seun who was claimed to be present during the robbery stated in her extra-judicial statement which was admitted as Exhibit B. She confirmed that two individuals came to the flat and robbed them of their valuables. There is no evidence contrary to this from any other source. The evidence of PW1 on this point is not unbelievable and since it was neither contradicted nor controverted, the Court ought to believe it. I therefore hold that it was proved that PW1 was robbed in his house on 12th November, 2012 as charged in this case. See xxx It was also proved through the evidence of PW1 that the two men who attacked him that night were armed. PW1 said the defendant held ‘an axe, the U.T.C. axe, a small axe’. He also said the robbery pal of the defendant that night held a knife. The statement of Dr. Olaniyi Seun, Exhibit B said the robbers were with knifes. The evidence of PWI on this point was not controverted or contradicted. The evidence of PW1 on this point is unassailable notwithstanding the fact that there is slight contradiction between the versions of PW1 and Dr. Olaniyi whereas PW1 said the robbers held an axe and a knife, Dr. Olaniyi said they held knifes. The statement of the defendant, Exhibit C also supports the position that the robbers were armed. Itwas conceded that the defendant held a knife while his robber colleague held a toy gun. Whatever the version that it is true, it is clear that the robbers were armed. I therefore hold that the robbers that attacked PW1 on that 12th November, 2012 were armed with firearms and/or dangerous weapons as conceived under the Robbery and Firearm (Special Provisions) Act. See: xxx The only issue remaining is whether the prosecution proved that the defendant was one of the two robbers that attacked PW1 and robbed him while armed on that 12th November, 2012. The case for the prosecution was that the defendant and another came to the flat of PW1 while armed and robbed him and another of valuables: PWI raised alarm of the presence of the robbers and the robbers ran out of the flat. The alarm raised alerted people who pursued the robbers and one of the two robbers was caught and the person caught was the defendant.
The case of the defendant on the other hand is that he went to Aflao border which to my knowledge is the boundary post between Ghana and Togo to bring an excavator laden on a trailer to Akure. He went and came back to Akure with the excavator late on the 9thNovember, 2012. He parked the trailer somewhere along Ondo road and by this time the stopper of the trailer was bad. He went to look for food. He found food and he ate. He got food for those with him in the trailer. As he was walking towards where the trailer was parked, a police vehicle accosted him and asked him his mission outside that time. He explained why he was there at the time but they would not listen. He was taken to the ‘A’ Division. While he was at the ‘A’ Division, a police man he guarreled with in 2011 came to the station. He said now that the defendant had come to his station he would deal with him. The police man took over the case file and he was later taken to SARS where he was accused of armed robbery.
I think the only issue in controversy in the matter is who is credible between PWI who claimed that the defendant came to his flat to rob him and that he was caught outside his house that night and the defendant who claimed that he was already with the police at the ‘A’ Division during the time of the alleged robbery and that he was roped into the case because he guarreled with a police man a year earlier who wanted to exact a revenge.
In resolving this, I am mindful of the fact that it is the duty of the prosecution to prove the guilt of the defendant and this duty is indubitable and immutable. The evidence of PW2 is of little assistance on the circumstances surrounding the arrest of the defendant. He did not take part in it. So he cannot say which of the version as given by PW1 and the defendant is right. Mr. Akeem son who claimed to have caught the defendant that night did not testify as it was claimed that he had relocated. However, his statement, Exhibit B was clear that he caught one of the two robbers. That was also the tenor of the statement of Dr. Olaniyi who claimed that one of the two robbers was caught that night.
There is the statement credited to the defendant. It was admitted as Exhibit C. The defendant raised an issue with it. He claimed that it was not his statement. He said he gave his statement as Owoyemi Simeon and not Oluwaseun Fagite. PW2 who took the statement however was emphatic that the defendant was the person he related with and he gave the statement tendered in Court. I have no doubt that the defendant was lying that he is Owoyemi Simeon and that he gave a statement to the police under that name. The defendant did not demonstrate that his real name is Owoyemi Simeon and that the statement taken in the name of Oluwaseun Fagite was not taken from him. I believe PW2 that the statement Exhibit C was taken from the defendant.
The statement of a defendant in a criminal trial is part of the case for the prosecution and if it has probative value it can be of tremendous importance to the prosecution. See xxx. In Exhibit C, the defendant conceded that he and another went to rob in a house at Oke-Ogba area of Akure and he claimed that while his robbing pal escaped; he was caught. The narrative dovetails to that given by PW1 and the extra-judicial statement of Akeem son Taofeek who claimed in Exhibit B to have caught one of the robbers. The statement though was retracted, but the evidence before the Court is such to make the retraction of no moment as the statement was fully corroborated. See xxx I must say that I did not believe the story of the defendant. He demonstrated while giving evidence that he was a liar. I am however not always bothered by criminal defendants who lie; especially when they face a charge that carries the death penalty. Most people will lie under that circumstance, especially when they believe that the lies can save them. It is always the duty of the prosecution to prove the guilt of the defendant so any lie told by the defendant has nothing to do with the bounden duty of the prosecution. I am of the view that the prosecution was able to reach the threshold of evidence required to prove the charge against the defendant as it was proved that during the night hours of the 12th November, 2012, the defendant and another went to the house of PW1 while they were armed and they attacked PW1 and robbed him of his belongings which included a sum of N1,000.
Dr. Olaniyi Seun did not testify in this trial so no sufficient evidence was led to prove the count that relates to her. Although her statement was tendered as Exhibit B; but, it. cannot be sufficient to prove a charge of armed robbery which carries the death penalty. I will because of the fact that Dr. Olaniyi Seun did not testify to prove that she was robbed that night dismiss count three. This however did not affect the quality of the evidence of PW1 who gave evidence that Dr. Olaniyi Seun was robbed and Exhibit B which stated that she was robbed.
The only issue remaining is whether the charge of conspiracy was proved against the defendant. The conclusion that the prosecution proved the charge of armed robbery against the defendant will impact on the count of conspiracy to commit armed robbery. This is because conspiracy is mostly to be inferred from the commission of the substantive offence. See xxxxx. The evidence before the Court is that the defendant in company of another went to the house of PW1 around 7.30 p.m. on 12th November, 2012 and they robbed PW1. The fact that two of them went to the place to rob is evidence of conspiracy. They must have agreed to act the way they acted. The agreement is conspiratorial. The defendant being a part of it is guilty of conspiracy as charged.
The concomitance of my conclusions that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery leveled against the defendant is that it is incumbent on me to pronounce the defendant guilty as charged in counts one and two. I therefore hold that the defendant, Oluwaseun Fagite is guilty of conspiracy to commit armed robbery contrary to Section 6 (b) of the Robbery and Firearms (Special Provisions) Act and for armed robbery contrary to Section 1 (2) (a) of the same Robbery and Firearms (Special Provisions) Act He is therefore convicted as charged. He is however discharged and acquitted of count three for the reasons I have earlier adumbrated.
The only penalty available for armed robbery and conspiracy to commit armed robbery is the death penalty. I have no discretion in the matter. In view of this, the convict Oluwaseun Fagite is sentenced to die by hanging in the neck until he be dead. May the Lord have mercy on your soul.”
I have read the portion of the judgment of the lower Court reproduced above, over and over again and I do not understand or appreciate how the lower Court who found that Exhibit C was fully corroborated could have used the statement of Dr. Seun Olaniyi admitted as Exhibit B and who was not called as a witness in proving any aspect of the offences preferred against the Appellant. This is more so as the said Court had in its judgment shown itself to be constrained to dismiss the count (i.e. count 3) in which the said Dr. Seun Olaniyi was stated to be the victim. The lower Court in my considered view would appear not to have appreciated that it is a settled position of the law that a previous statement made to the Police by a witness (not being a confessional statement of the accused person or defendant) can only be used to discredit the witness under cross-examination. That such a statement cannot be used to establish the truth of what is stated therein. See in this regard, the case of ATTAH V. STATE (2010) LPELR-597(SC) wherein the Supreme Court dwelling on “nature and purpose of the written statement of a prosecution witness” stated thus: –
“Now, in the case of LAYONU & ORS VS. THE STATE supra BRET JSC observed at page 201 In our experience the principle has always been applied, as it was in R. VS. ADEBANJO (1935) 2 WACA 315, to any written statement in the possession of the prosecution which was made by a witness called by the prosecution and relates to any matter on which the witness has given evidence. Such a statement is not evidence of the facts contained in it and the only use to which the defence can put it is to cross-examine the witness on it and then if it is intended to impeach his credit. The prosecution is not required by law to tender prosecution’s witness statement to the police, xxx. It is the duty of the defence at the crucial moment to demand the admitted previous statements made by witnesses for the purposes of cross-examination. xxx”
Indeed, the Supreme Court in the case of KASA V. STATE (1994) LPELR-1671(SC) had stated thus: –
“Now before considering whether these statements are confessional and therefore admissible, it is necessary to advert to the relevant principle of evidence law which applies to the admission of a statement in general. At common law, it is a fundamental rule of evidence that hearsay evidence is inadmissible. (See also Section 77 of the Evidence Act, Cap. 112).
Former statements of any person whether or not he is a witness in the proceedings, may not be given in evidence if the purpose is to tender the statement as evidence of the truth of the matters asserted in them, see the Privy Council decision in Subramaniam v. Public Prosecutor (1956) 1 WLR 965 at p. 969 and R. v. Mclean (1968) 52 Cr. App. R. 80. However, there are exceptions to the rule in criminal proceedings which are both statutory and at common law. Section 27(2) of the Evidence Act Cap.112constitutes one of such statutory exceptions since it renders a confession relevant against the maker and thereby make it admissible in the proceedings.
Guided by the above-mentioned decisions, I am of the considered view that it is glaring that the admission of Exhibits B and B1 which the lower Court admitted as evidence of the complaint lodged with the Police and PW2 who gave evidence as the IPO are not proof of what is contained therein. The said Exhibits B and B1 not having been admitted for the purpose or not having been put to the use they should legally have been put, in my considered view, therefore cannot constitute corroborative evidence in respect of any aspect of the instant case. It is also glaring from the portions of the judgment of the lower Court re-produced above, that Exhibit A is certainly not a piece of legal evidence of whatever is contained therein. The lower Court therefore ought not to have relied on the said Exhibit A in coming to a conclusion that the Respondent proved the crimes preferred against the Appellant beyond reasonable doubt. In any case what is discernible from the said Exhibit A which the lower Court in its wisdom admitted as an Exhibit, is that the Appellant who according to PW2 made Exhibit C, upon his arrest by the first IPO initially made a statement on 12/11/2012 denying the allegation lodged against him but that in his additional statement made on 13/11/2012 the said Appellant, confessed to the offences for which he was arrested on 12/11/2012. In this regard, see the portion of the said Exhibit A wherein the maker – Abode Onime stated thus: –
“xxx. One SeunFagite ‘m’ of No 3 ogoloto Bus Stop Ikorodu Road Lagos, immediately the complainants one Folayan Julius ‘m’ and the witnesses one Taofeek Akeem son ‘m’ Seun Olaniyi T volunteer their statement (sic), while the statement of the suspect one Seun Fagite ‘m’ was taken under caution and charged in English language. Meanwhile, the first statement he made on 12/11/2012 he denied the allegation, while, he made a confessional statement on his additional statement he made on 13/11/2012.1 booked at the station with the parties and left for the scene of crime, at the scene one toy gun made with iron, one knife (sic) and one Nokia cover case were recovered and brought to the station and registered as an exhibits (sic). More also the suspect identified the items to be his properties. Haven done preliminary investigation the case was transferred for onward investigation.”
I find it amazing that the lower Court having the evidence in the nature of Exhibit A which it admitted before it, could have gullibly found that PW2 (who did not give evidence of any further investigation he conducted into the case involving the Appellant) to have made Exhibit C, when the initial statement purportedly made by the Appellant denying the offences for which he was arrested was never tendered by the prosecution, the purported additional statement made by the Appellant was also not tendered by the prosecution. Indeed, it is not clear from Exhibit A the person to whom the Appellant purportedly made an additional statement in which he confessed to the offences for which he was arrested. It is therefore in my considered view not in parity with reasoning that the Appellant described as Oluwaseun Fagite without being confronted with the result of any further investigation would simply have volunteered a confessional statement to either of the IPOs in the case involving him (Appellant) particularly PW2. In other words, it would have been another matter if PW2 had placed before the lower Court evidence of what he discovered in the course of his further investigation and which was not discovered by the first IPO who never testified at trial that can be said to have logically made the making of a confessional statement to the said PW2 very probable. I cannot but note that PW2 in his evidence on record instead of testifying about any further investigation he conducted into the case involving the Appellant, simply engaged in a narration of the accounts of the invasion of the house of PW1 and arrest of the person apprehended and taken to the Police Station in respect of the said invasion, he gathered from others. Suffice it to say that Exhibit A even if it had been rightly admitted as evidence of the fact that the Appellant made a confessional statement in the name of Oluwaseun Fagite (and this is not conceded) and in the proof of what the maker did as an IPO (and this is also not conceded), the said Exhibit A in my considered view, clearly did not corroborate any aspect of the case of the prosecution for the purpose of determining the truthfulness of Exhibit C.
There would appear to be no need to dwell extensively on Exhibit D as I do not see anywhere in the judgment of the lower Court in which it relied on the said Exhibit for any purpose. The prosecution in my considered view would appear not to appreciate the position of the law that statements of witnesses it has fielded are not required to be tendered by it to corroborate the oral evidence of the said witnesses. In the instant case, Exhibit D is the report of investigation of PW2 who made it and testified before the lower Court. The Appellant objected to the admissibility of the same. Exhibit D being the report of investigation of PW2 was therefore not an admissible piece of documentary evidence whether or not he signed the same, having regard to the provisions of Section 49(a) of the Evidence Act. Exhibit D was not a report of an IPO that could not be procured to attend Court.
The Appellant has in his brief of argument portrayed the lower Court as having been influenced as it were by the confessional statement admitted as Exhibit C in the various findings it made particularly the finding relating to the offence of armed robbery which the said Court found the prosecution to have proved beyond reasonable doubt.
I have hereinbefore re-produced portions of the judgment of the lower Court and it is clear therefrom that the said Court relied on the evidence of PW1 (one of the victims of the robberies that occurred on 12/11/2012 in the house of the said PW1), the statement of Taofeek Akeemson (who was not called as a witness because he was said to have relocated) and which statement was admitted as Exhibit B1, and Exhibit C in arriving at its findings that the elements or ingredients of the offence of armed robbery was proved by the prosecution beyond reasonable doubt In this regard see again the portion of the judgment of the lower Court wherein it stated thus: –
“I think the only issue in controversy in the matter is who is credible between PW1 who claimed that the defendant came to his flat to rob him and that he was caught outside his house that night and the defendant who claimed that he was already with the police at the ‘A’ Division during the time of the alleged robbery and that he was roped into the case because he quarreled with a policeman a year earlier who wanted to exact a revenge.
In resolving this, I am mindful of the fact that it is the duty of the prosecution to prove the guilt of the defendant and this duty is indubitable and immutable. The evidence of PW2 is of little assistance on the circumstances surrounding the arrest of the defendant He did not take part in it. So he cannot say which of the version as given by PW1 and the defendant is right. Mr. Akeem son who claimed to have caught the defendant that night did not testify as it was claimed that he had relocated. However, his statement, Exhibit B was clear that he caught one of the two robbers. That was also the tenor of the statement of Dr. Olaniyi who claimed that one of the two robbers was caught that night.
The law is settled, that the prosecution must prove the commission of an offence by an accused person or defendant charged with the commission of the said offence beyond reasonable doubt and that the prosecution can properly be found to have discharged this burden through a sole or single witness. In other words, that “proof beyond reasonable doubt” is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. Hence, a Court is entitled to act on the evidence of a single witness if that witness can be believed given all the surrounding circumstances. It is therefore clear that one single credible witness can establish a case beyond reasonable doubt. Seethe cases of AKALEZI V. STATE (1993) LPELR-313(SC) and NWOKOCHA V. A-G OF IMO STATE (2016) LPELR-40077(SC) amongst many others.
It is in my considered view obvious from the record that PW1 gave an account of the happenings in his house on 12/11/2012. The account narrated by PW1 in his evidence was clearly sufficient to establish the fact that what occurred in his house was an armed robbery. It is also clear from the evidence of PW1 on record that he was not the person that arrested either of the two persons that invaded his house at any point in time or among them. It is clear from the evidence of PW1 on record that it was at the house of the Chairman of the Landlords’ Association of his area that PW1 first had contact with the Appellant after he was apprehended by the maker of Exhibit B1. Under re-examination, PW1 claimed the Appellant held “an axe” while his companion held a knife. According to the maker of Exhibit B1 (who was not called as a witness as he could not be located) he was the person who apprehended the Appellant on 12/11/2012 when he was absconding from the house of PW1 which was the scene of crime so to say. The maker of Exhibit B1 never stated therein that the person he apprehended had any weapon of any kind with him at the time of his apprehension and he claimed that it was to the house of PW1 he took the person he apprehended upon catching him.
I have hereinbefore stated the principle of the law regarding the statement made to the Police by a person who was not called as a witness at trial. It is that the said statement cannot be taken as establishing the truth of what is contained therein. The Respondent in its brief of argument has submitted to the effect that Exhibit B1 was admissible pursuant to the provisions of Section 83(1), and (2)(a) and (b) of the Evidence Act. I am of the considered view that the Respondent either did not read the whole of Section 83 in question or it believed that the Court would not. This is because the provisions of the said Section in Subsection (3) specifically renders inadmissible any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. Surely, the fact that proceedings are anticipated cannot be denied when the Police are investigating a crime. The Exhibit B1 on the Respondent’s showing is therefore not an admissible document. In any case, if it were, the position of the law is still that it cannot establish the truth of what is contained therein. I am of the considered view therefore, that Exhibit B1 did not constitute admissible evidence as to how the Appellant who claimed in his evidence that he was a victim of random Police arrest came to be arrested. I must reiterate the point again that a piece of inadmissible evidence cannot be corroborative evidence. The Appellant irrespective of whether or not Exhibit C was made by him, has in my considered view created a reasonable doubt regarding how he came to be arrested.
It would appear that the prosecution in the bid to establish that the Appellant was a participant in the robbery in which PW1 was a victim, introduced the recovery of items such as toy gun and knife from the Appellant. The lower Court in my considered view would appear to have missed this point. This is because a finding that the Appellant was with the items said to have been recovered from him at the point of his arrest, will to a large extent negate the claim of the said Appellant that he was a victim of random arrest. Arrest of the Appellant with items or any of the items of the kind the robbers who invaded the house of PW1 were said to have been armed with, would have surely buttressed the case of the prosecution that the Appellant consciously set out to commit an offence and differentially, that he was one of the robbers that struck in the house of PW1 given the absence of direct evidence as to how he came to be arrested. In other words, the identification of the Appellant as one of the robbers that invaded the house of PW1 was intrinsically predicated upon the items recovered from him on his arrest.
Unfortunately, however, the prosecution who claimed that items which were of the kind PW1 said the robbers came with, and which were said to have been recovered from the Appellant (and I note, that the said items were not said to have been recovered from the house of the Appellant) never tendered any of the items recovered from the Appellant which PW2 in his evidence claimed he took custody of. I am aware of the often-touted position of the law that it is not fatal to the case of the prosecution when the items used in the commission of a crime or items of a crime that have been recovered are not tendered. However, I cannot but say that this position of the law applies where from the circumstances of the case such non-tendering would not amount to withholding of evidence. In this regard, see the cases of MUSA V. STATE (2016) LPELR- 42803(SC)and OGU V. COP (2017) LPELR-43832(SC) wherein the Supreme Court stated thus: –
“I agree with both lower Courts that production of the weapons used to commit the offence and items recovered is not a sine qua non to securing a conviction where, as in this case, there is other overwhelming evidence before the Courtestablishing beyond reasonable doubt that the accused person committed the offence and that he was also in the company of others. See: xxx
This is a case in which the prosecution as I have earlier stated did not prove beyond reasonable doubt that Exhibit C ascribed to the Appellant in the name of OluwaseunFagite was not concocted by PW2. It is also a case in which the Appellant in my considered view established a reasonable doubt that he was a victim of random Police arrest given the total absence or lack of evidence showing how he came to be arrested. The tendering of the items the prosecution claimed to have recovered from the Appellant upon his arrest would in my considered view have been strong corroborative evidence that would have gone a long way in establishing the truthfulness of Exhibit C and this the prosecution glaringly failed to place before the lower Court. Though the law is clear that an accused person can be convicted upon his confessional statement where it is cogent, direct and proved, I am of the considered view that given the absence of proof that the Appellant made Exhibit C and coupled with the fact that I do not in any event see anycorroborative evidence that goes to establish the truthfulness of the said Exhibit C, I am constrained to hold that the conviction of the Appellant for the offence of armed robbery should not stand. A fortiori, his conviction for the offence of conspiracy. Flowing from all that has been said hereinbefore is that the issue formulated by the Court for the determination of the instant appeal, is resolved in favour of the Appellant and against the Respondent.
In the final analysis, the instant appeal is meritorious and is allowed. Accordingly, the decisions of the lower Court in its judgment convicting the Appellant for the offence of conspiracy to commit the offence of armed robbery and the substantive offence of armed robbery as set out in counts 1 and 2 of the Information upon which he stood trial and the sentence of death imposed on him, are hereby set aside. The Appellant is accordingly acquitted and discharged of the charges preferred against him.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I agree.
YUSUF ALHAJI BASHIR, J.C.A.: I have had the privilege of reading in draft the leading judgment delivered by my noble brother, AYOBODE O.LOKULO-SODIPE, PJCA.
I agree with his conclusion that this appeal has merit. It is therefore accordingly allowed. Appellant is discharged and acquitted of all the charges.
Appearances:
Steve Adebowale For Appellant(s)
Shehu Wada Abdullahi For Respondent(s)
