GBENGA ROMILUYI v. THE STATE
(2019)LCN/12922(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/EK/88C/2016
RATIO
ARMED ROBBERY: INGREDIENTS OF ARMED REOBBERY
“As was rightly submitted for the Prosecution, the prosecution, in order to ground a conviction of the offence of armed robbery, must prove, beyond reasonable doubt, the following:
(1) That there was a robbery or series of robberies
(2) That the robbery or each robbery was an armed robbery.
(3) That the accused was the robber or one of those who took part in the armed robbery. See BOLANLE v STATE (2005) II NLR (Pt 936); ATTAH v STATE (2010) CLR 3(T) (SC) 3(Pt. IV) MJSC 139; AFOLABI v STATE (2013) 6 A 7 MJSC (Pt1).” PER FATIMA OMORO AKINBAMI, J.C.A.
ARMED ROBBERY: STANDARD OR PROOF
“Although the standard of proof required to ground a conviction for the offence of armed robbery is proof beyond reasonable doubt, as rightly submitted for the Respondent, proof beyond reasonable doubt does not mean proof beyond a shadow doubt. It simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. AFOLABI v STATE (2010) 43 NSC QCR Vol 43 at page 227 at 230-251; IKEMSON v STATE (1989) 1 CLRN at 6-7.” PER FATIMA OMORO AKINBAMI, J.C.A.
CONFESSION STATEMENT: TO PROVE CONFESSIONAL STATEMENT
“It is however desirable to have outside the appellants confession to the police, some evidence however slight, of the circumstances which made it probable that the confession was true. See EMEKA v STATE (2001) 14 NWLR (Pt 734) 666: AKPAN v STATE (2008) 4-5 SC (Pt 11) 1; GALADIMA v STATE (supra). Such further or additional evidence are applied to determine the weight to be attached to the confessional statement. Certain tests to be applied and/or followed in determining the issue of weight to be attached to confessional statements were laid down in R v SKYES (1913) 8 G App R 233 and approved in KANU v R (1962) (55) 14 WACA 30. By these tests the judge must ask himself these questions:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the offence?
(5) Is his confession possible?
(6) Is the confession consistent with other facts which have been ascertained and have been proved?.” PER FATIMA OMORO AKINBAMI, J.C.A.
EVIDENCE: EVIDENCE TO ESTABLISH ARMED ROBBERY
“In order to establish the offence of armed robbery, the pieces of evidence which need to be before the Court can be grouped into three:
(1) Direct evidence of an eye witness:
(2) Circumstantial evidence: and 23
(3) Confessional Statement (s)
See ONYENYE v STATE (2012) LPELR – 7866 (SC); ISIBOR v STATE (2001) FWLR (Pt 78) Page 1077 at 1080 para E – H; ALABI v STATE (1993) 7 NWLR (Pt 307) 511.” PER FATIMA OMORO AKINBAMI, J.C.A.
Justice
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria
Between
GBENGA ROMILUYIAppellant(s)
AND
THE STATERespondent(s)
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the decision of the Ekiti State High Court Sitting in Ado – Ekiti Judicial Division, delivered on the 6th day of June, 2014, by Hon. Justice O.I.O Ogunyemi wherein the Appellant and one Raji Jamiu were convicted and sentenced to death for the offence of armed robbery.
The Appellant was charged as the 1st Accused person before the trial Court for the offence of Armed Robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R 11, Laws of the Federation of Nigeria, 2004.
The Appellant was charged on an information with five Count charge of armed robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap II Laws of the Federal Republic of Nigeria, 2004.
STATEMENT OF OFFENCE …COUNT I
ARMED ROBBERY contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federal Republic of Nigeria, 2004.
PARTICULARS OF OFFENCE
ROMILUYI GBENGA and RAJI JAMIU with others at large, on or about the 19th of
November, 2011 at No 147, Opposite Adekaitan Petrol Station, Oke Ala Basiri Ado-Ekiti, Ekiti State of Nigeria, robbed one Okunade John Olusegun of two Nokia handsets, one Samsung handset, one HP 550 Laptop and the sum of N13,750.00 and at the time of the robbery, you were armed with offensive weapons to wit: guns and cutlasses.
STATEMENT OF OFFENCE….COUNT II
ARMED ROBBERY, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
ROMILUYI GBENGA and RAJI JAMIU, together with others at large, on or about the 19th of November, 2011 at No 147, opposite Adekaitan Petrol Station, Oke Ala Basiri Ado- Ekiti State of Nigeria, robbed one Omowaye Sunday John of one Nokia handset, one Techno handset and the sum of N64000.00 and at the time of the Robbery, you were armed with offensive weapons to wit : guns and cutlasses.
STATEMENT OF OFFENCE…..COUNT III
ARMED ROBBERY, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act , Cap R11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
ROMILUYI GBENGA and RAJI JAMIU, together with others at large, on or about the 19th of November, 2011 at Fabian Hotel Area, off NTA Road, Ado-Ekiti, Ekiti State of Nigeria, robbed one Olabode Falade of one Nokia handset, one Techno handset and the sum of N10,000.00 and at the time of the Robbery you were armed with offensive weapons to wit: guns and cutlasses.
STATEMENT OF OFFENCE…..COUNT IV
ARMED ROBBERY contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
ROMILUYI GBENGA and RAJI JAMIU, together with others at large, on or about the 19th of November, 2011 at Fabian Hotel Area, off NTA Road, Ado-Ekiti, Ekiti State of Nigeria, robbed one Kehinde ADEWOLE of one handset, and the sum of N11,500.00 and at the time of the Robbery, you were armed with offensive weapons to wit :guns and cutlasses.
STATEMENT OF OFFENCE…..COUNT V
ARMED ROBBERY, contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
ROMILUYI GBENGA and RAJI JAMIU, together with others at large, on or about the 19th of November, 2011 at No 147, opposite Adekaitan Petrol Station, Oke-Ala Basiri, Ado-Ekiti, Ekiti State of Nigeria, robbed one Mrs. Okere Veronica of the sum of N30,000 and one handset, and at the time of the Robbery, you were armed with offensive weapons to wit: cutlasses and
guns.
The Appellant pleaded not guilty to the charges.
At the trial, the Prosecution called seven (7) witnesses to prove its case :
(1) PW1 – Omowaye Sunday
(2) PW2 – Okunade John Olusegun
(3) PW3- Bode Falade
(4) PW4 – Veronica Okere
(5) PW5 – Corporal Owoseni Samson (investigating Police Officer serving at New lyin Divisional Headquarters, Ado – Ekiti).
(6) PW6 – Olowokere Tope
(7) PW 7 – Inspector John Ogoji (Investigating Police Officer at State CID)
(1) The Respondent also tendered Exhibits marked Exhibits A-C. The Exhibits included the confessional statements of the Appellant and his co-accused Exhibits A and A2 .The Appellant testified in his own defence as the DW1. The facts of the case is that on the 19/11/2011, Armed Robbers robbed the PW1, PW2 , PW3 , and PW4 of money and valuable items like Laptops and Phones.
PW1, Omowaye Sunday, in his testimony told the Court that he slept in his room with his wife and children, when he heard a bang on his door. On getting to his sitting room, he saw two men wielding cutlasses and half filled bottle of beer. The robbers smashed the bulb with a cutlass plunging the room into darkness, they collected N62,000.00 from PW1, and N7,000.00 from his wife as well as their phones. The robbers also took away PW1s wallet containing his drivers license, ATM cards, voters card and his identity card. After the Robbers left, when all the tenants came out, they noticed that one of them did not come out, it was then they went to her room and saw she had been macheted by the robbers. According to the PW1, Mrs Coker was taken to the hospital, and PW1, later made a Statement at the New lyin Police Station, Ado Ekiti.
The PW2, ( Okunade John Olusegun) gave evidence that he was robbed by the Robbers who came around 2:00am and that the Robbers took away his Laptop, three phones and the sum of N13,750.00. That immediately after the incident, he and other neighbors carried Mrs. Coker to the hospital having suffered serious machete cuts from the robbers.
The PW3, (Bode Falade ) testified that on the 19 /11/2011, Robbers invaded his house with cutlasses and other dangerous weapons. That he was beaten with the cutlass and the sum of N10,000.00 was collected from his wife. The Robbers robbed other occupants of the house, of their valuables and they also took away his two cutlasses.
It was after the robbers left PW3s, house that they went to No 147, opposite Adekaitan Petrol Station, Oke Ala Basiri, Ado – Ekiti to rob the PW1, PW2, that they inflicted machete cut on one Mrs. Coker.
The PW4, Veronica Okere gave evidence that she was robbed of the sum of N30,000.00. That the robbers went away before the Police arrived. However, when the Robbers were going, they were intercepted by a vigilante group in charge of Lorna Street, Ado -Ekiti.
The evidence of the PW6, was that the vigilante group intercepted the robbers, and they attacked the vigilantes by injuring one of them with a cutlass. The robbers took to their heels, but the PW6, pursued the Appellant and apprehended him. The PW6 collected two cutlasses from the Appellant. The Appellant confessed to PW6, that they were Robbers, and that he and his gang operated at Fabian Hotel Area, Ado-Ekiti. The PW6 took Appellant to the Leaders of the Lorna Community, Ado-Ekiti where the Appellant also confessed that they were Armed Robbers coming from robbery operations. The Appellant was thereafter taken to the Police Station at Area Commander, Okesa Ado-Ekiti, where the case was transferred to the Police Station at New lyin Road, Ado- Ekiti. At New lyin Road, the Appellant made a written confessional statement before the case was transferred to the State CID, Ado- Ekiti for discreet investigation. At the State CID, the Appellant made both oral and written confessions, and in his confessions, the Appellant mentioned the names of his gang, which includes the 2nd Accused person (Raji Jamiu).
At the conclusion of the trial, the Appellant was convicted by the learned trial Judge on 6/6/14, and sentenced to death by hanging.
Being dissatisfied with the said judgment, the Appellant instituted this appeal. His original Notice of Appeal was filed on 28th August, 2014, but was subsequently amended by order of this Court on the 12/4/18, raising six grounds of appeal.
The Appellants Brief of Argument was settled by Oluwasina Ogungbade Esq., on 12/4/18, Respondents Brief was settled by Gbemiga Adaramola Esq. Director Public Prosecution, Ministry of Justice, Ekiti State, on 17/9/2018, but deemed properly filed and served on 5/11/18.
These Briefs were respectively adopted by Oluwasina Ogungbade Esq., learned counsel for the Appellant, and by Gbemiga Adaramola Esq., the learned D.P.P on the 26/2/19.
From the six grounds of Appeal, the Appellant distilled two issues for determination as follows:
(1) WHETHER the Learned Trial Judge was not wrong to have relied on the identification evidence of PW4, in convicting the Appellant , particular regard being had to the fact that PW1, PW2, PW3, who were allegedly robbed at the same time and circumstances as PW4 could not identify the Appellant.
(Grounds 4 and 5 ).
(2) WHETHER the reliance of the Learned Trial Judge on the retracted extra-judicial statement of the Appellant in convicting the Appellant for armed robbery is not wrongful, particular regard being had to the failure or refusal of the police to investigate the defence of alibi timeously raised by the Appellant.
(Grounds 1, 2, and 3 ).
The Respondent in the Brief of Argument distilled two issues for determination as follows:-
(1) WHETHER the Defence of Alibi raised by the Appellant can avail him.(Grounds 1& 2).
(2) WHETHER the Respondent has proved the offence of Armed Robbery against the Appellant beyond reasonable doubt . (Grounds 3,4,5 & 6).
Both counsel identified similar issues for determination. I adopt Respondents issues for the determination of this appeal.
I will start with Issue 2.
It was submitted for the Appellant that the learned trial Judge placed heavy reliance on the identification evidence of PW4, one of the victims of the alleged armed robbery, in respect of which the Appellant was convicted and sentenced to death.
That of the seven witnesses called by the prosecution only four PW1, PW2, PW3, and PW4 were the victims of the alleged armed robbery incidents that took place at two different locations i.e. Basiri and Fabian areas of Ekiti State. PW1, PW2, and PW4 were unanimous as to the fact that the alleged armed robbery was carried out at around 2am. PW3-who lives at Fabian area-however testified that he was robbed at 1am.
As regards the identification of his assailants PW1, testified that it was dark and he could not see their faces, but that the 1st accused confessed that he was among those who robbed him.
Appellants counsel submitted that the learned trial judge believed and placed reliance on the identification evidence of PW4 in convicting the Appellant. And that this is against the fact that the identity of the Appellant became an issue. It was reiterated by learned counsel that the appellate Courts, over the years have established guidelines to be followed by Courts when the identity of an accused person is in dispute as in the instant case. He cited the case of Ndidi v State (2007) 13 NWLR (Pt.1052) 633; Olowoyo v State (2012) 17 NWLR (Pt.1329) 346; Alabi v State (1993) 7 NWLR (Pt. 307) 511; Balogun v A.G. Ogun State (2002)6 NWLR (Pt.763)512.
It was strongly argued by Appellants counsel that PW4, is not a witness of truth therefore the learned trial judge was wrong to have placed reliance on her evidence in convicting the Appellant for the offence of armed robbery.
The Director of Public Prosecution on behalf of the Respondent, on whether the Prosecution has proved the case of armed robbery against the Appellant beyond reasonable doubt, enumerated the ingredients which must be established to prove Armed Robbery. He cited the case of Smart v State (2016) LPELR-40827(SC).
The D.P.P reiterated the fact that there was a series of robberies on 19/11/2011, as the Defence did not contend that fact. He referred to the evidence of PW1, PW2, PW3, PW4, PW5, PW7 to drive home his argument on the robberies. He cited the case of Aigbadion v The State (2001)ACLR 48.
The D.P.P pointed out the fact that the only ingredient in controversy was whether the Appellant was one of the robbers that stormed the house of the PW1, PW2, PW3, PW4 on the 19/11/2011. He then submitted that it is settled, that the burden of proving that any person is guilty of a crime rests on the person who asserts i.e. the Prosecution. That this is the law laid down in Section 135(1) and(2) of the Evidence Act. He cited the case of Udosen v State (2007)4 NWLR (Pt. 1023) at 131-133 para D-G (SC).
The D.P.P further submitted that the Prosecution may discharge the burden of proving the guilt of the accused by any of the following ways:
(A) The Confessional Statement which has been duly tested, proved and admitted as Exhibit before the Court.
(B) The circumstantial evidence, which is complete, cogent and unequivocal and leads to an irresistible conclusion that the accused and no other person committed the offence charged.
(C) By direct evidence of eye witnesses who actually saw the Accused Person committing the offence. The Prosecution can rely on any of these methods or the combination thereof. See Abirifon v State (2013) 13 NWLR (PT. 1372) 619: John Olomo v The State (2014) LPELR – 22517(CA) page 25.(D).
(D) The D. P. P submitted that the Prosecution successfully established the guilt of the Appellant by his confessions and by circumstantial evidence. He cited the case of Suberu v State (2010) 1NWLR (Pt.1176)494.
In his further submissions, the D. P. P reiterated the fact that it was established during trial by the evidence of the PW1, PW2, PW3 and the PW4 that the Appellant (who was 1st Accused person at the trial) made an oral confession in their presence at the Police Station that he was one of the Robbers that robbed them on the 19/11/2011. That the evidence of these Witnesses i.e. the PW1, PW2, PW3 and PW4 were evidence given on oath, which were not contradicted, nor discredited by the Appellant, either during his examination-in-chief, or while cross-examining the witnesses. He therefore urged the Court to uphold them against the Appellant. He cited the case of Magaji v Nigeria Army (2008) 8 NWLR (Pt. 1089) 338 at 351 and Oforlete v State (2000) 12 NWLR (Pt.681)415. It was further submitted by the D. P. P that PW5, also gave evidence in chief that the Appellant made oral confession before the D. C. O and other detectives. The D. P. P also referred to the evidence of PW6 the leader of the vigilante group which apprehended the Appellant, he confessed before him and the Community Chief at Irona Street, Ado-Ekiti that he and his gang were coming from Robbery operations. D. P. P reiterated the fact that this evidence is before the Court and was neither challenged nor discredited at all by the Appellant in his evidence, therefore the Court should take it to be correct.
The position of the law was noted by the D. P. P, that a confession can either be oral or in writing, and whichever way the confession is made, both of them carry equal weight. And once a confession is proved to be voluntarily made, it would sustain a conviction even without more. See Agenu v State (1992) 7 NWLR (Pt. 256) 749 at 764 para E.
The D. P. P further submitted that PW7, also testified on oath at different stages of the trial that the Appellant confessed that he was among the Robbers that robbed the victims in this case.
It was noted by the D. P. P that aside from the oral confession of the Appellant, he also made two written confessional statements. These written confessions were tendered by the Prosecution, and same were admitted as Exhibit A and Exhibit A2. Exhibit A, was the confessional statement of the Appellant at the New lyin Police Station, while Exhibit A2 was his confessional statement made at the State CID. The written confession of the Appellant was corroborated by the evidence of his oral confession, as related in evidence by the PW1, PW2, PW3, PW4, PW5, and PW6. All these evidence were not discredited at all in the course of the trial of the Appellant.
The D.P. P urged the Court to resolve this issue in Favour of the Respondent.
As was rightly submitted for the Prosecution, the prosecution, in order to ground a conviction of the offence of armed robbery, must prove, beyond reasonable doubt, the following:
(1) That there was a robbery or series of robberies
(2) That the robbery or each robbery was an armed robbery.
(3) That the accused was the robber or one of those who took part in the armed robbery. See BOLANLE v STATE (2005) II NLR (Pt 936); ATTAH v STATE (2010) CLR 3(T) (SC) 3(Pt. IV) MJSC 139; AFOLABI v STATE (2013) 6 A 7 MJSC (Pt1).
In order to establish the offence of armed robbery, the pieces of evidence which need to be before the Court can be grouped into three:
(1) Direct evidence of an eye witness:
(2) Circumstantial evidence: and 23
(3) Confessional Statement (s)
See ONYENYE v STATE (2012) LPELR – 7866 (SC); ISIBOR v STATE (2001) FWLR (Pt 78) Page 1077 at 1080 para E – H; ALABI v STATE (1993) 7 NWLR (Pt 307) 511.
The evidence-in chief of PW1, at page 27 of the Record of Appeal is as follows:
On 22/11/2011, l received a phone call from the police asking me to come. I was told that they arrested some armed robbers, that l should come and identify them. I said l dont know them because it was dark, and l couldnt see their faces, but the 1st Accused confessed that, he was among those who robbed us. From there l went to the police headquarters where l wrote another statement.
The police and the armed robbery suspects then led us to their house. They were in one bus at the front while we tenants followed in another bus. At the house, they described how they gained access, and how they moved from one flat to another.
After a while, the police asked us to come again. The police told us that the 1st accused was ready to lead them to catch the other culprit. On getting to the station we met the 2nd Accused. He also confessed to be part of those who robbed us that day…. l did not write the statement of the 1st Accused for him, but he confessed publicly before us that he was among those who robbed me……The only thing l know is that after 1st Accused confessed, 2nd Accused admitted that they came together and robbed us, l was invited on 22/11/2011 by police to come and identify those who robbed us, but could not, because it was dark on the day of the incident.
PW2 , in his evidence in chief stated that …
“After that 1st Accused was taken to another place to write his statement, Accused then confessed that they were the ones who robbed us. 1st Accused also said that he was not the only one…..
When they got to our house he told us the rooms he entered.
On 20/11/2011 only the 1st Accused was shown to me. I did not identify him, Accused confessed they were the one. The statement of the 1st Accused where he confessed they were the ones was obtained by the police in my presence. The policeman interrogated him in my presence. The police interrogated the 1st Accused in the presence of all of us.
It was the Accused Romiluyi Gbenga who confessed at the police station that, they were the ones who robbed us. I dont know whether Accused later made a written statement, but he stated categorically in our presence that they were the ones who robbed us.
Under cross-examination PW2, stated the day the case was transferred to New-lyin Road, it was the 1st Accused that led the police to our house as the place they robbed.
PW4 is Veronica Okere, in her evidence in chief she testified as follows; l did not know the Accused before, but after the incident, l recognize them…When l opened my eyes l saw three people entered into my apartment. Two of them stood by me in my room carrying cutlass, while the 3rd one stood by the door carrying a cutlass, a broken bottle of beer and a gun…
They brought the two Accused to our house and they asked them, what did they come to do in our house, they confessed that they were ones that came to our house to rob… The two Accused persons were shown to us. The police told the Accused to take them to where they robbed, and the accused took them to our house.”
I recognize the Accused on the night of the incident.
PW5 Owoseni Samson investigating police officer-…l also know Olabode Falade. I know the first Accused as an accused person. On 19/11/2011, a case of armed robbery was reported by one Okunade John and one Omowaye Sunday both living at Adekaitan Filing Station, Basiri, Ado-Ekiti and one Falade Ester, female, Falade Olabode and Adewale Kehinde living at Fabian Avenue, Ado- Ekiti…
On 21/11/2011, a signal from Ado Central Division, Ado- Ekiti revealed that one Romiluyi Gbenga was arrested by vigilante at lrona Area, Ado-Ekiti. On the day of incident and was handed over to them at Ado Central Division, Okeisha, Ado- Ekiti, but while interrogating him orally, he confessed to be returning from a Robbery operation, which a five-man gang carried out, and that he is one of them…
On arrival in my office, he was also interrogated and he confessed the same thing, he has revealed to them at Ado Central. His statement was taken under caution, and he made a confessional statement, two cutlasses, one face cap and two pairs of slippers recovered from him were also handed over to us…
In my evidence l am referring to the 1st Accused person. The oral confession was made before me, the DCO and some other detectives, the D.C.O, whp then an A.S.P is Musari Olamide…
Statement of 1st Accused is admitted as Exhibit A. PW6, Olowokere Tope. He testified as follows: l am a driver. I also do vigilante/night watch…
I know the 1st Accused. I remember 19/11/2011. On that day at about 2am, we were on duty. I instructed two of the vigilante to go on patrol, where l sat l saw the light of a vehicle and shadow.
It was along Llewelyn Road. My colleague confronted them, he was matcheted. I shot into the air, and they all ran, but l pursued them, the 1st Accused fell down, but l pursued and caught him at lsato.
We took him before the Olori ebi at lrona (Atunda Olu). People came out, and when he was asked where he was coming from, he confessed that they robbed at Fabian Hotel. I later called the Police. The police invited me to the police station.”
PW7- Inspector John Ogoji formerly attached to SARS, Ado-Ekiti now at Surveillance Department D.I.O, Ado-Ekiti. In his evidence in chief he testified as follows:…. At the SARS office, we rearrested the 1st Accused, was charged and cautioned in English language, and he volunteered his statement… we went to the scene of crime and the criminal hideout where we arrested the 2nd accused. He also made a confessional statement mentioning the stolen items which includes laptops, money shared.
They were taken to my senior police officer on Spector Sunday Osaretin the O.C. SARS, who read the statement in our presence and it was attested.
The Court admitted the confessional statement of 1st Accused as Exhibit A.
The Confessional Statement of an accused person is sufficient to ground his conviction.
The Appellant herein made Confessional Statement. The Confessional Statement was admitted as Exhibits A, after it was passed through the test of voluntariness before the appropriate authority. See GRACE AKINFE v. THE STATE (1998) 7 SCJN Part 11 Page 226 at Page 237-238. SALAWU v. STATE 1971 NWLR Part 735 Page 824 Para H.
The D.P.P submitted that the Prosecution has proved the first ingredient beyond reasonable doubt. This was done via evidence of PW1, PW2, PW3, PW4 and PW5, PW6, PW7, which were corroborated by the Confessional Statement of the Appellant, that he was one of the robbers who robbed PW1, PW2, PW3, PW4 on 19/11/2011 with dangerous weapons, i.e. cutlasses, broken bottles and gun. He reiterated the fact that the evidence of PW6 the vigilante that recovered two cutlasses from the Appellant, and that one of the vigilantes was injured with a cutlass when the Robbers were intercepted at lrona Street, Ado- Ekiti. He contended that these are unassailable, uncontradicted and unchallenged evidence before the Trial Court, and the Court is enjoined by law to take them as the truth.
The evidence of PW5, PW6, PW7, were also referred to by the D.P.P. That the Appellant confessed to having committed the crime, and also that there are members of the gang who are at large. The Statements, evidence of PW1, PW2, PW3, PW4, Exhibit A and B implicate the Appellant and the other culprits at large.
The D.P.P, contended that the oral confession of the Appellant which on its own is sufficient to ground conviction. See AROGUNDADE v. STATE (2009) ALL FWLR Page 409 at 417 Paras A and B; ONUGWA v. STATE (1976) NSCC vol 10 Page 27; MADU v. STATE (2001)3 NWLR PT 700 Page 230 at 237.
The D.P.P, reiterated the fact that there was never contention, nor was there a defence that there was a robbery on the 19/11/2011.
That the position of the law is that, fact not contended is deemed admitted as the truth and need no further proof. See EBEINWE v. THE STATE (2012)7 NWLR (PT1246) 420 at 408.
That the Accused was one of those who took part in the armed robbery.
The only ingredient that is in controversy and contended by the Appellant. The D.P.P submitted that the Prosecution has proved beyond reasonable doubt that the Appellant was amongst the gang of robbers that stormed the house of PW1, PW2, PW3 and PW4 on the 19/11/2011.
The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 135 (1) and (2) of the Evidence Act. Therefore, if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even if it is on credible evidence of a single witness. On the other hand, where on the totality of the evidence, a reasonable doubt is created; the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. See ALONGE v INSPECTOR-GENERAL OF POLICE (1959) SCNLR 576: FATOYINBO v ATTORNEY GENERAL OF WESTERN NIGERIA (1966) W.N.LR and THE STATE v DANJUMA (1997) 5 NWLR (Pt 506) 512.
Although the standard of proof required to ground a conviction for the offence of armed robbery is proof beyond reasonable doubt, as rightly submitted for the Respondent, proof beyond reasonable doubt does not mean proof beyond a shadow doubt. It simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. AFOLABI v STATE (2010) 43 NSC QCR Vol 43 at page 227 at 230-251; IKEMSON v STATE (1989) 1 CLRN at 6-7.
The Appellant as DW1, said in evidence in Chief at page 90 of the Record of Appeal, that he made two statements, one at new lyin Road and one at SARS office in English language. He however agreed that at the State C.I.D the statement was read to him before he endorsed it.
It was established during trial by the evidence of the PW1, PW2, PW3 and PW4 that the Appellant made an oral confession in their presence at the Police Station that he was one of the Robbers that robbed them on the 19/11/2011. The evidence of these witnesses i.e. PW1, PW2, PW3 and PW4 were evidence given on oath which were not contradicted, nor discredited by the Appellant either during his examination in chief or while cross-examining the witnesses.
The evidence of the four victims of armed robbery were further buttressed by the evidence of PW5, who gave evidence in chief that the Appellant made oral confession before the D.C.O.- the oral confession was made before me, and some other detectives. The evidence of PW6, is also on the oral confessional statement of the Appellant. On lines 7 to 10 on page 74 of the Record of Appeal PW6, gave evidence as follows: l called my colleague to look at those coming, that they are thieves. It was along llawe Road, my colleague confronted them.
He was matcheted. I shot into the air and they all ran but l pursued them, the 1st Accused fell down, but l pursued, and caught him at lsato. In line 11 of page 74, the PW6, stated, We took him before the Olori Ebi at lrona. When he was asked where he was coming from, he confessed that they robbed at Fabian Hotel…, there were two cutlasses, the one that was used to matchet my colleague was big, while the one l received from the 1st Accused was slim.
The law is clear and settled on the point that for a confessional statement oral or written to attract and support a conviction, it must be proved to be free, voluntary, unambiguous, true, direct and positive to ground a conviction. A free and voluntary oral or written confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying: the highest place of authenticity when it comes to proving beyond reasonable doubt.
See:MUSTAPHA MOHAMMED v STATE (2007) II NWLR (Pt 1045) 303. See also: DAURA v STATE (1980) 8-11 SC 236; OSUNG v STATE (2012) 6-7 MJSC (Pt. 11) 1; GALADIMA v STATE (2012) 12 MJSC (Pt 111) 190; FATAI v STATE (2013) 2-3 MJSC (Pt 1) 145 : AGENU V STATE (1992)7 NWLR (Part 256) 749 at 764 para E. Apart from the oral confession of the Appellant, he also made two written Confessional Statements Exhibits A and A2.
It is however desirable to have outside the appellants confession to the police, some evidence however slight, of the circumstances which made it probable that the confession was true. See EMEKA v STATE (2001) 14 NWLR (Pt 734) 666: AKPAN v STATE (2008) 4-5 SC (Pt 11) 1; GALADIMA v STATE (supra). Such further or additional evidence are applied to determine the weight to be attached to the confessional statement. Certain tests to be applied and/or followed in determining the issue of weight to be attached to confessional statements were laid down in R v SKYES (1913) 8 G App R 233 and approved in KANU v R (1962) (55) 14 WACA 30. By these tests the judge must ask himself these questions:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the offence?
(5) Is his confession possible?
(6) Is the confession consistent with other facts which have been ascertained and have been proved?.
The trial Judge ought to be satisfied with the answers to those questions: MBANG v STATE (2012) 6-7 MJSC (Pt iv) 119 at 148; OSETOLA v STATE (2012) 6-7 MJSC (Pt ii) 41. If the confessional statement passes these tests, questions satisfactorily, a conviction founded on it is invariably upheld, unless there are other grounds of objection. If the confessional statement fails to pass the tests, no conviction can properly be founded on it. See EDETS OBOSI v THE STATE (1965) NWLR 129: JIMOH YESUFU v THE STATE (1976) 6 SC 167: EGBOGHONOME v STATE (1993) 7 NWLR (Pt 306) 383: LASISI v STATE (2013) 2-3 MJSC (Pt 11) 172 at 148.
From the evidence adduced by the prosecution, including the statements, Exhibit A, A2, and in particular the direct unchallenged accounts of PW1, and PW3, it is evident that there was a robbery on 19/11/2011 in which PW1 was the victim.
The robbery was an armed robbery and the Appellant took part in the armed robbery. The ingredients of the offence of armed robbery were therefore established by the Respondent.
Where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. See: OSETOLA V STATE (2012) LPELR A 9348 (SC): ALABI v STATE (1993) 7 NWLR (Pt 307) 511 at 523: AJAYI v STATE (2013) 2-3 MJSC (Pt 1) 59. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 formerly Section 138 of the Evidence Act, Laws of the Federation of Nigeria, 1990.
The prosecution proved the offence of armed robbery as charged, against the Appellant, beyond reasonable doubt.
The second issue is therefore resolved against the Appellant.
Issue 1 is as follows: –
Whether the defence of alibi raised by the Appellant can avail him.
The Appellants counsel in arguing the third issue he distilled for the determination of this appeal, submitted that the learned trial judge, in holding that the police failed to investigate the alibi raised by the Appellant, had conceded that the said defence was timeously raised. He cited the case of Ebgeretamu v State (2014) LPELR -22615 (CA) in support of his contention learned counsel contended that by Exhibit A and the totality of the evidence adduced, the defence of alibi was timeously raised by the Appellant. Appellants learned counsel contended that the police did not investigate the Appellants alibi, and the prosecution failed to rebut the Appellants alibi under cross-examination. He cited the case of Ikemson v the State (1989) 2 NSCC 471. On the effect of the failure of the police to investigate the Appellants alibi Appellants counsel submitted that upon the failure of the police to investigate the Appellants alibi, the Prosecution had failed to discharge the burden of proof of the crimes alleged against the Appellant beyond reasonable doubt. See Onuchukwu & Ors v The State (1998) LPELR-2701 (SC); Okosi v The State (1989) 1NSCC 375. Learned counsel on the strength of the foregoing urged this Court to hold that by the failure of the Prosecution to investigate the raised by the Appellant, the Prosecution has failed to prove the guilt of the Appellant beyond reasonable doubt.
The D.P.P in his reply stated the law, that it is not enough for an Accused Person raising the defence of alibi just to say that he was not present at the scene of the crime. He must give sufficient particulars as to his whereabouts for the Prosecution to investigate since it is a matter especially within his knowledge, the particulars must be furnished to the Police at the earliest opportunity, otherwise the Accused Person would not be liable to rely on the alibi, when raised for the first time in the Court. This is because an alibi raised in the witness box cannot be regarded as a serious defence. Referring to the alibi raised by the Appellant and his cohort, they told the Police that on 19/11/2011, they were at Fountain Hotel between the hour of 8am to 5am. D.P.P contended that there was nothing to investigate by the Police. The Appellant raised this defence for the first time in Court during his defence, and the Court is enjoined to reject it. See the case of Peter v State (1997) 3 NWLR (Part 496) 625 at 638-639 para H-B.
It was noted by the D.P.P that the Appellant referred to a man who assisted him and his cohort with his motorcycle, and that he dropped them after 5am at lrona. That the two people mentioned by the Appellant and his cohort, one Mayowa Bamidele and Omolayo Sunday were never called as witnesses to establish the alibi. The D.P.P further pointed out that these people were also not mentioned to Police for investigation. He then submitted that raising an alibi in Court for the first time cannot avail the Appellant, therefore such alibi must fail. He urged this Court to so hold.
The position of the law was stated by the D.P.P that if the Prosecution succeeds in fixing the Accused at the scene of the crime, by adducing sufficient acceptable evidence, his alibi is thereby logically and physically demolished, and that would be enough to render such plea ineffective as a defence. See Sunday v State (2011) ALL FWLR (PT. 568) 922. In his further submission the D.P.P pointed out the fact that where a confessional statement is made by an Accused Person, admitting the commission of an offence charged, and the statement meets the requirement of a confessional statement, that is, the statement was made voluntarily, the plea of alibi is completely shut out and abandoned if it was at first ever made. See Ogoala v State (1991) 2 NWLR (PT 175) 521.
D.P.P submitted that since the plea of alibi was raised not before the Police but for the first time before the Trial Court by the Appellant and there is a confessional statement properly proved to be true and voluntarily made, the plea of alibi is totally destroyed by both the oral and confessional statements of the Appellant and he urged this Court to so hold, and consequently uphold the judgment of the Trial Court.
I have considered the submissions by learned counsel for the Appellant, and the Respondent on this issue, which is based on the alleged alibi of his client that on the day of the Robbery, he and his cohort told the Police that on 19/11/2011, they were at Fountain Hotel between the hour of 8:00 to 5am. There was nothing to investigate by the Police. The Appellant raised this defence for the first time in Court during his defence and the Court is enjoined to reject it. The Supreme Court in the case of Peter v State (1997) 3 NWLR (Part 496) 625 at 638-639 paras H-B;
The mere raising of alibi without proof of it by an Accused person will not entitle him to an automatic discharge of the offence he is charged with. The only evidence to prove the Appellants alibi was his own, ipse dixit despite the fact he mentioned names of other people whom he said they saw him at Fountain Hotel. None of those people were called by him to substantiate his alibi. There were no other existing circumstances to show that what he said was true on the balance of probabilities. The Appellant has failed to discharge this burden.
The Appellant referred to a man who assisted him and his cohort. With his motorcycle and that he dropped them after 5:00am at lrona, the two people mentioned by the Appellant and his cohort as one Mayowa Bamidele and Omolayo Sunday were never called as witnesses to establish the alibi. See page 89, lines 1-16 of the Record of Appeal. These people were also not mentioned to the Police for Investigation. Raising an alibi for the first time in Court cannot avail the Appellant, this alibi must fail.
The position of the law is that where a Confessional Statement is made by an Accused Person admitting the commission of an offence charged, and the statement meets the requirement of a Confessional Statement, that is the Statement was made voluntarily, the plea of alibi is completely shut out.
The Supreme Court defined alibi in OKOLO OCHEMAJE V. THE STATE (2008) LPELR A 2198 (SC) Per TOBI JSC as follows: –
The expression, alibi, simply means elsewhere. By the defence, the accused claims or says that he was in a place other than the scene of the crime.
In JAHO MOHAMMED V. THE STATE (2017) LPELR 42138 (CA) this Court held thus:-
Where the alibi is clearly without foundation, the prosecution is not duty bound to bring in the witnesses to disprove it, especially where there are stronger facts in evidence pointing to the presence of the accused person in the Locus Criminis as to make the alibi unreliable. Where an accused person who never indicated that he had an alibi but puts up the defense for the first time in Court, he could hardly be said to have given the police an opportunity to investigate the alibi. Consequently, his alibi may not be of assistance to his case, as in the instant case. See the cases of IKEMSON V. THE STATE (1989) 4 NWLR (Pt. 114) 131.
It is my holding on this issue that the alibi put forward by the appellant during his testimony is a mere afterthought and is baseless. The police cannot investigate it and the testimony of PW1, PW2, PW3,PW4, PW5, PW6 and PW7 which positively identified the appellant at the scene of the crime remains unchallenged.
I also resolve this issue in favour of the Respondent.
Upon my finding in favour of the Respondent on the two issues canvassed by the parties, it is obvious that this appeal lacks merit, it is hereby dismissed. The judgment delivered by lower Court in Charge No. HAD/55C/2012 on 6th day of June, 2014 wherein the Appellant was convicted and sentenced to death by hanging is affirmed by me.
PAUL OBI ELECHI, J.C.A.: I agree.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege and opportunity to read the draft of the lead judgment delivered by my learned brother, F.O. AKINBAMI JCA and I agree with the reasoning and conclusion reached therein.
In consequence, I also dismiss the appeal, as lacking merit and affirm the judgment of Hon. Justice O.I.O. Ogunyemi delivered on June 6th, 2014.
Appearances:
Oluwasina O. Ogungbade, Esq.For Appellant(s)
Gbemiga Adaramola, Esq. (D.P.P Ekiti State) with him, I. U. Ibrahim, Esq.For Respondent(s)
