GIDEON ONAKPORO v. THE STATE (2019)

GIDEON ONAKPORO v. THE STATE

(2019)LCN/13833(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of November, 2019

CA/B/244C/2013

RATIO

THE ACCUSED PERSON BEARS THE BURDEN OF RAISING AND PROVING HIS DEFENCE IN CRIMINAL MATTERS

The law is settled that an accused or a defendant in a criminal case bears the burden of raising and proving his defence to the criminal allegation. See David Uche Ideh v. The State (2019) 6 NWLR (Pt. 1669) 479 at 505 per Eko, JSC. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

ALIBI: WHEN SHOULD IT BE RAISED

ALIBI: WHEN IT IS TIMEOUSLY RAISED BY ACCUSED BUT NOT INVESTIGATED BY PROSECUTION
Where the defence of alibi was timeously raised and it was not investigated by the prosecution, the plea would avail the accused or defendant. However, where the evidence adduced by the prosecution fixed the accused defendant at the scene of crime, at the material time, ?the later situation automatically demolishes the defence of alibi raised and the duty placed on the prosecution to investigate and dislodge or confirm the alibi is discharged as by the nature of the standard of proof of alibi same has the burden of proof on the balance of probabilities? ? per Peter-Odili, JSC in Chidi Edwin v. The State (2019) 7 NWLR (Pt.1672) 553 at 567-568. See also the cases of Agbanyi v. The State (1995) 1 NWLR (Pt. 369) 1; Onuchukwu v. The State (1998) 4 NWLR (Pt. 547) 576; Odu v. State (2001) 10 NWLR (Pt. 722) 668; Tanko v. State (2008) 16 NWLR (Pt. 1114) 597 and Ayan v. State (2013) 15 NWLR (Pt. 1376) 34. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

IDENTIFICATION OF THE ACCUSED: WHEN THERE WILL BE NO NEED TO TAKE EXTRA STEPS TO IDENTIFY THE ACCUSED

The confessional statement, now being disputed by the appellant, together with the fact that he was found with the stolen items makes identification of the appellant unnecessary in this case. By the undisputed facts of the case, the appellant identified himself? as one of the robbers and he needed no further identification by the prosecution. See Ikemson v. The State (supra).
Put differently, having regard to the undoubted facts of this case, no formal identification of the appellant was necessary. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

CONFESSIONAL STATEMENT: NATURE

The law is that there is nothing sacrosanct about retraction of a confession by an accused, as in the instant case. Once a confession is direct and positive, it constitutes proof of guilt and it is sufficient to sustain a conviction, so long as the Court is satisfied with its truth. See Golden Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30 and Wole Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470.
The law is further settled that retraction of a confessional statement does not affect its admissibility. Therefore, if an accused person merely denies his confessional statement, there is no duty or obligation on the Court to conduct a trial-within-trial. See Chibuike Ofordike v. The State (2019) 5 NWLR (Pt. 1666) 395 at 425, per Nweze, JSC. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

ARMED ROBBERY: INGREDIENTS

it is no longer in doubt that case law has identified these constitutive ingredients of the offence of armed robbery, namely, that there was a robbery or series of robberies; that the robbers were armed and that the accused persons committed the said offence, Osuagwu v. State (2016) LPELR ? 40836 (SC) 12-13, (2016) 16 NWLR (Pt. 1537) 31; Suberu v. The State (2010) 8 NWLR (Pt. 1197) 586; Nwachukwu v. The State (1985) 1 NWLR (Pt. 11) 218; Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561.Others include: Bozin v. State (1985) 2 NWLR (Pt. 8) 465, 467; Okosun v. A.G. Bendel State (1985) 3 NWLR (Pt. 12) 283; Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Adeosun v. State (2007) 46 WRN 1; Afolalu v. The State (2010) 16 NWLR (Pt. 1220) 584; Aruna v. The State (1990) 6 NWLR (Pt. 155) 125; Okosi v. State (1989) 1 NWLR (Pt. 100) 642. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

DIFFERENT WAYS BY WHICH A CRIME CAN BE PROVED

A crime can be proved in Court by any of the following ways:-
a) Circumstantial evidence;
b) Confessional statement made by the accused; and c) Direct evidence.
See Michael Adeyemo v. The State (2015) 16 NWLR (Pt. 1485) 311; Joseph Bille v. the State (2016) 15 NWLR (Pt. 1536) 363 and Ifeanyichukwu Akwuobi v. The State (2017) 2 NWLR (Pt. 1550) 421. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

GIDEON ONAKPORO Appellant(s)

AND

THE STATE Respondent(s)

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was tried and convicted of the offences of conspiracy to commit armed robbery and armed robbery on the 1st of November, 2011 by the High Court of Delta State, sitting at Effurun, in Charge No. EHC/12C/2010. He was sentenced to death by hanging. Being dissatisfied with the decision of the trial Court, the appellant appealed to this Court and the appeal was heard on the amended notice of appeal filed on 07/03/2019 but deemed as filed on 19/04/2019; appellant?s brief filed on 16/02/2019 and the respondent?s brief filed on 17/09/2019 but deemed filed on 09/10/2019.

Learned counsel for the appellant articulated the following issues for determination:-
?1. Whether the appellant was properly identified by the prosecution?s witnesses? GROUNDS 4 & 6.
2. Whether appellant?s defence of alibi was properly considered by the trial Court before sentencing him to death? Grounds 5 & 8.
3. Whether the essential ingredients of the offence of conspiracy and armed robbery have been established by the prosecution? Ground 2.
4. Was the trial Court right when it admitted in evidence the alleged confessional statement as Exhibit B1 without conducting a trial within trial and proceeded to rely on same in reaching a verdict of guilt. Grounds 1, 3, 7, & 9.”

On behalf of the respondent, a sole issue was raised for determination as follows:-
?Whether there is evidence on record to justify the learned trial judge?s conviction of the appellant for the offences of conspiracy to commit armed robbery and armed robbery under the Fire Arms (Special Provisions) Act.?

I will determine this appeal on the issues formulated by the learned counsel for the appellant. All the issues will be taken together and jointly treated.

Learned counsel referred to the evidence of PW1, where he allegedly told the trial Court that: ?I cannot tell if the accused is the one who robbed me? and contended that the trial Court was wrong when it held on page 47 of the record of appeal, inter alia, as follows:-
I believe the evidence of PW2 that the defendant was arrested immediately following the robbery and that in fact the PW1 had identified the defendant to him.

Counsel argued that there was no proper identification of the appellant by the prosecution witnesses.

The learned counsel also submitted that the appellant?s alibi was not investigated by the police and it was also not considered by the trial Court.

Learned counsel for the appellant referred to the cases of Aichenabor v. The State (2015) All FWLR (Pt. 763) 1986 and Ogisugo v. The State (2015) All FWLR (Pt. 792) 1602 on the ingredients to be proved in a case of armed robbery. After analyzing the evidence adduced by the prosecution, learned counsel submitted that the essential ingredients of the offences of conspiracy and armed robbery were not established against the appellant.

Counsel further contended that the ?purported confessional statement (Exhibits B and B1) ? were obtained in very oppressive circumstances and should have been subjected to admissibility test in a trial within trial before it was admitted in evidence?.

The Court was urged to resolve all the issues in favour of the appellant; to set aside the decision of the trial Court; and to discharge and acquit the appellant.

On the other side, learned counsel for the respondent argued that the question of whether or not there was a positive identification of the appellant by PW1 was not an issue because the appellant was caught with the stolen items (bags), soon after the robbery, and PW1 identified the bags as hers.

Learned counsel for the respondent argued that the defence put forward by the appellant was painstakingly considered by the trial Court.

In urging the Court to dismiss the appeal, learned counsel for the respondent submitted that the offences of conspiracy and armed robbery, levelled against the appellant, were proved beyond reasonable doubt by the evidence of the prosecution witnesses and the appellant?s confessional statement.

With reference to the defence of alibi, an accused person should raise it at the first possible opportunity, as a suspect in answer to a charge by the Police at the investigation, to enable the Police to establish its falsity or truth. The accused has the duty to furnish the relevant information for which his whereabouts at the critical time could be checked by the investigating authority, body or person. See Adedeji v. The State (1971) 1 All NLR 75; Eze v. The State (1976) 1 SC 125; Ikemson v. The State (1989) 20 NSCC (Pt. II) 471; Ozaki v. The State (1990) 1 NWLR (Pt. 124) 92; Akpan v. The State (1991) SCNJ 1 and Samuel Attah v. The State (2010) 10 NWLR (Pt. 1201) 190.
Where the defence of alibi was timeously raised and it was not investigated by the prosecution, the plea would avail the accused or defendant. However, where the evidence adduced by the prosecution fixed the accused defendant at the scene of crime, at the material time, ?the later situation automatically demolishes the defence of alibi raised and the duty placed on the prosecution to investigate and dislodge or confirm the alibi is discharged as by the nature of the standard of proof of alibi same has the burden of proof on the balance of probabilities? ? per Peter-Odili, JSC in Chidi Edwin v. The State (2019) 7 NWLR (Pt.1672) 553 at 567-568. See also the cases of Agbanyi v. The State (1995) 1 NWLR (Pt. 369) 1; Onuchukwu v. The State (1998) 4 NWLR (Pt. 547) 576; Odu v. State (2001) 10 NWLR (Pt. 722) 668; Tanko v. State (2008) 16 NWLR (Pt. 1114) 597 and Ayan v. State (2013) 15 NWLR (Pt. 1376) 34.

In this case, the plea of alibi was not timeously raised. The defence was raised for the first time by the appellant when he entered his defence and testified on the 25th day of January, 2011. Even from the appellant?s evidence, the defence cannot be described as ?alibi?, properly so called, because the appellant merely state, inter alia, as follows:-
?I was not arrested along PTI Effurun on 9/1/09.”

The tact appellant said that he was not arrested along PTI Effurun on the 9th day of January, 2009 did not mean that he claimed to be in another place other than the scene of the alleged crime at the material time the offence was committed.

I agree with the submission of the learned counsel for the respondent that since the appellant was caught with the proceeds of the armed robbery ? the bags belonging to the victim ? PW1, not long after the armed robbery and he (the appellant) could not explain how he got the said items, the appellant is presumed to be one of the robbers or that he participated in the robbery. See Banjo v. The State (2013) 224 LRCN 84.

The confessional statement, now being disputed by the appellant, together with the fact that he was found with the stolen items makes identification of the appellant unnecessary in this case. By the undisputed facts of the case, the appellant ?identified himself? as one of the robbers and he needed no further identification by the prosecution. See Ikemson v. The State (supra).
Put differently, having regard to the undoubted facts of this case, no formal identification of the appellant was necessary.

In respect of Exhibits ?B? and ?B1?, it was not the appellant?s case in the trial Court that he did not make the confessional statement voluntarily. All that he informed the Court, through his learned counsel, was that ?he did not make the statement?. See page 30 of the record of appeal. Under cross-examination, however, the appellant said that he ?made a statement in respect of this case? but that ?I cannot recall the date I made the statement.” He then testified further as follows:-
“If I see the statements I can confirm the date.”
After looking at the statement, the appellant stated that:- ?Yes I made the statement on the 16th January 2009.”
See page 31 of the record of appeal.

The learned trial Judge, Hon. Justice Roli D. Harriman, was admirably meticulous in his judgment, when His Lordship stated, inter alia, as follows:-
Should I believe the confessional statement was made and act on it? In situations like this where the defendant seeks to retract his statement; the Court has to look for other corroborating evidence. In NWANGBOMU V. STATE (1994) 2 SCNJ 107 the Court held that:-
?An defendant person can resile on his statement to Police officer in one of two ways, either that he never made the statement at all, in which case it is a matter of fact to be resolved by the evidence before Court; or that he made the statement or signed it but not voluntarily. In the former case, the mere denial by an accused of having made a statement confessing to the crime charged is a question of fact that trial Court must decide. It does not make the statement inadmissible, it must however be considered along with the entire evidence and circumstances of the case for the weight to be attached to it.’ Also in Akinmoju v. State (2000) 4 S.C. (Pt. 1) 64 the Court was of the view that even where there is a confession the fact that it has been retracted does not preclude the Court acting on it to convict. The important consideration is whether it falls within the test laid down in NWAEBONYI V. THE STATE (1994) 5 NWLR (PT. 343) 138 where the following considerations have been laid down for the weight to be attached to a retracted confession. (i) is there anything outside the confession which shows that it is true? (ii) Is it corroborated in any way? (iii) Are the relevant statements of fact made in it most likely to be true as far as they can be tested? (iv) Did the defendant have the opportunity of committing the offence? (v) Is the confession possible? (vi) is the alleged confession consistent with other facts which have been ascertained and established? See the pronouncement of His Lordship KARIBI-WHYTE, JSC (pp. 32-33, paras. E-A). Outside Exhibit B1, I find that the evidence of PW1 that she was robbed by two men with a gun, that the police eventually returned her stolen items to her with a man begging her for forgiveness at the police station, evidence of PW3 who arrested the defendant immediately after the robbery and recovered the items and the evidence of PW2 who took charge of the defendant and the stolen items and recorded statements from the defendant as enough corroboration of the facts stated in the confessional statement, Exhibit B1. Exhibit B1 tells the tale of how the defendant and one Friday (Wafi) met two women along the expressway and his friend (Wafi) rushed the women?s bag and ?bell them up with a short cutlasses and cut off a neck chain from one of the women and he gave me all the bag and we crossed the express way and started running into the bush and the police suddenly stopped and chased us into the bush and arrested me with the bags and my friend ran way with our weapon and the people we robbed came to the station and identified me as one of the people that robbed them and that we sued gun. Is true we used gun but Friday is the person that hold the gun. I don?t know Friday was having gun, it was when he bell these people that I knew he was having gun. It was my first day of following him; the gun is a short wooden gun that uses red bullet (cartridge)?. Another corroborating factor outside Exhibit B1 is Exhibit B2, the attestation by a senior police officer. The defendant admits thumbprinting (sic) this document.
The attestation confirms that he indeed made a voluntary confessional statement.
Apart from the above, if one looks at the testimonies made in this Court, one will find that the events leading up to the arrest and detention of the defendant form an unbroken chain which can leave no one in doubt that an armed robbery was committed and the defendant participated in the armed robbery.?

The above reasoning and findings cannot be faulted. The ingredients of the offence of armed robbery are now well-defined and settled. The Supreme Court recently confirmed the essential elements, to be proved in a case of armed robbery, in Obinna John v. The State (2019) 9 NWLR (Pt. 1676) 160 at 170-171, per Nweze, JSC as follows:-
?it is no longer in doubt that case law has identified these constitutive ingredients of the offence of armed robbery, namely, that there was a robbery or series of robberies; that the robbers were armed and that the accused persons committed the said offence, Osuagwu v. State (2016) LPELR ? 40836 (SC) 12-13, (2016) 16 NWLR (Pt. 1537) 31; Suberu v. The State (2010) 8 NWLR (Pt. 1197) 586; Nwachukwu v. The State (1985) 1 NWLR (Pt. 11) 218; Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561.Others include: Bozin v. State (1985) 2 NWLR (Pt. 8) 465, 467; Okosun v. A.G. Bendel State (1985) 3 NWLR (Pt. 12) 283; Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Adeosun v. State (2007) 46 WRN 1; Afolalu v. The State (2010) 16 NWLR (Pt. 1220) 584; Aruna v. The State (1990) 6 NWLR (Pt. 155) 125; Okosi v. State (1989) 1 NWLR (Pt. 100) 642.?

In this case, the prosecution proved the allegations of conspiracy and armed robbery, levelled against the appellant, by a combination of circumstantial evidence and the appellant?s confessional statement.

It is for all the reasons which I have articulated in this judgment that I resolve all the issues in this appeal against the appellant. This appeal, therefore, fails and it is hereby dismissed. The judgment of the trial Court delivered on the 1st day of November, 2011 is hereby affirmed.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment of my learned brother MOORE ASEIMO ABRAHAM

ADUMEIN, JCA. I agree with the reasoning and conclusion that the appeal has no merit and should be dismissed. Appeal dismissed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have been privileged to read the draft copy of the judgment just delivered by my learned brother M.A.A. ADUMEIN, JCA.

?The issues in contention have been properly addressed and I agree with the reasoning and conclusion reached therein. I also hold that the appeal fails and it is hereby dismissed. I abide by the consequential orders made in the lead judgment.

Appearances:

Jim Okodaso, Esq.For Appellant(s)

Mrs. E.O. Aghoja (Assistant Director, Ministry of Justice, Delta State)For Respondent(s)

Appearances

Jim Okodaso, Esq.For Appellant

AND

Mrs. E.O. Aghoja (Assistant Director, Ministry of Justice, Delta State)For Respondent