INNOCENT OKAFOR v. THE STATE (2015)

INNOCENT OKAFOR v. THE STATE

(2015)LCN/7790(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of February, 2015

CA/AK/78CA/2012

RATIO

CRIMINAL LAW: THE DEFENCE OF ALIBI; WHEN DOES THE DEFENCE OF ALIBI CRUMBLES

In Ikuepenika V State (2011) NWLR (Pt.1229) 449 the court held that the defence of alibi crumbles the moment the prosecution gives superior evidence that is more believable evidence than that of the Accused/Appellant, fixing permanently the Accused/Appellant not only at the scene of crime but also in the commission of crime. per. MOJEED ADEKUNLE OWOADE, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER A FREE AND VOLUNTARY CONFESSION OF GUILT BY AN ACCUSED IS SUFFICIENT TO WARRANT HIS CONVICTION WITHOUT ANY CORROBORATIVE EVIDENCE

Now, and in relation to this case, it is trite law that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the court is satisfied of the truth of the confession.
Okeke v. State (1995) 4 NWLR (pt.392) 676; Edemine V State (1996) 8 NWLR (Pt.464) 1; Nwaeze v State (1996) 2 NWLR (Pt.428) 1; Onyejekwe v. State (1992) 3 NWLR (Pt.230) 444; Ihuebeka v State (2000) 4 SC (Pt.1) 203; Idowu V State (2000) 7 SC (Pt.11) 50. per. MOJEED ADEKUNLE OWOADE, J.C.A.

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

Between

INNOCENT OKAFOR Appellant(s)

AND

THE STATE Respondent(s)

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Ondo State, Ore Judicial Division sitting at Ondo presided over by Hon. Justice O. O. Akeredolu, delivered on the 25th day of January 2012.

The Appellant and other five accused persons were arraigned on a two count charge of conspiracy to commit armed robbery and armed robbery pursuant to Section 6 (b) and 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act Cap. R. 11, Vol. 14, Laws of Federation of Nigeria, 2004.

The Appellant pleaded not guilty to the offences contained in the charge. The Respondent called two witnesses while the Appellant gave evidence in his Defence. Exhibits P1, P2, P3, P4 and P5 were admitted on behalf of the prosecution. None was admitted on behalf of the defence. Exhibit P4 was the confessional statement of the Appellant and Exhibits P1, P2, P3 and P5 were the confessional statements of the co-accused of the Appellant.

The case for the prosecution was that on the 25th day of June 2007, the Appellant and 5 others conspired and robbed passengers of two Dandollars Luxurious buses on the Benin/Ore Express Road while armed with gun and other dangerous weapons.

The case for the Appellant was a denial of this robbery accusation. He stated that on the 25th day of June 2007, when the alleged armed robbery was committed he was already in custody at SARS, Akure for another offence. He, however, admitted in his extra-judicial statement to the police (Exhibit P4) that he and others committed the alleged offence of armed robbery on the Akinjagunla-Ofosun Road.

At the close of evidence from both sides, the learned trial judge in a judgment delivered on the 25th day of January 2012 found the Appellant and other co-accused guilty of conspiracy to commit armed robbery and armed robbery.
Dissatisfied with the judgment, the Appellant at first, filed a Notice of Appeal on the 14th day of February 2012 and later on 14th April 2014 filed an Amended Notice of Appeal (containing three (3) grounds of appeal).

Appellant’s brief of argument dated 31-3-2014 and filed on the 14-4-2014 was deemed filed on 8-5-2014.
Respondent’s brief of argument dated 4-6-2014 was filed on 5-6-2014.

Learned counsel for the Appellant nominated three (3) issues for determination. They are:.
1. Whether the failure by the prosecution to identify the Appellant as one of the Robbers is not fatal to the case for the prosecution.
2. Whether the learned trial judge was right in admitting Exhibit P4 in evidence and attaching any weight to it.
3. Whether the learned trial judge was right in holding that the prosecution proved a case of armed Robbery against the Appellant beyond reasonable doubt.

The Respondent on the other hand formulated a sole issue for determination to wit:
Whether from the facts and evidences available before the trial judge the prosecution could be said to have proved the charge of armed robbery against the Appellant beyond reasonable doubt to warrant the conviction of the Appellant by the trial court.

I have carefully gone through the entire gamut of the record of appeal and the briefs of argument adopted by the parties, I am convinced that a sole issue in terms of the 3rd issue formulated by the Appellant and the sole issue formulated by the Respondent would suffice for determination to meet the justice of this case.

Learned counsel for the Appellant divided the arguments to meet the sole issue into six to seven segments as follows:
(a) The only evidence placed before the trial court as to the arrest of the Appellant was hearsay evidence shorn of the inadmissible evidence, there is no evidence as to the arrest of the Appellant.
(b) Consequent on (a) above, the prosecution failed to prove the identity of the Appellant as the robber or as one of the robbers.
(c) Exhibit P4 (Appellant’s confessional statement was wrongly admitted as a confessional statement and the learned trial court wrongly placed weight on it in convicting the Appellant and sentencing him to death.
(d) Exhibit P4 was not subjected to the tests prescribed by the Supreme Court in Dawa V State (1980) 8 -11 SC 236.
(e) There is no other evidence outside Exhibit P4 on which a legal finding as to the guilt of the Appellant can be found.
(f) The prosecution did not give any evidence that anything incriminating was found on the Appellant.
(g) The only evidence of conspiracy in the entire case is to be found in the confessional statements, which are worthless.

Learned Counsel for the Appellant elaborated on these points to come to the conclusion that the learned trial judge was wrong to have held that the prosecution proved its case against the Appellant beyond reasonable doubt. Counsel referred to the provision of Section 138 of the Evidence Act Cap. 112 LFN 1990 and the cases of Nwosu v State (1998) 8 NWLR (Pt.562) 433 at 434; Aigbagbon v State (2000) 7 NWLR (Pt.666) 686 at 704 and reiterated that the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. He reminded us of the ingredients of the offence of armed robbery as stated by the apex court in the cases of Alabi v State (1993) 7 NWLR (Pt.307) 511 at 523 and Bozin v State (1985) NWLR (Pt.8) 465 at 469.

He submitted that the prosecution called a total of two (2) witnesses, none or whom was a victim of the alleged robberies and none was fielded to identify the Appellant. That the prosecution also did not explain the failure to call any of the five (5) persons listed in the proofs of evidence to identify the Appellant.
He argued that from the testimony of PW1 and PW2 it is clear that neither of them was there when the Appellant was arrested. That there is nowhere in the case where the Appellant was identified as one of the robbers that participated in the robberies that allegedly took place in the early hours of the 25th of June 2007. That there is also nothing in the Record to indicate or even suggest that there was any identification parade carried out for the purpose of establishing the identity of the Appellant as one of the robbers. In other words, said Counsel, the Appellant herein was not identified by any means known to law.

Counsel referred to the cases of Okeke V State (1995) 4 NWLR (pt.392) 676 at 708 – 709 and Alabi V State (Supra) and submitted that the failure of the prosecution to prove that an identification parade was conducted must be held to be fatal to their case. He argued that the only case where an identification parade can be dispensed with is one where the accused person was either caught at the scene of the crime or caught fleeing the scene of crime. He submitted that divested of the inadmissible evidence that the Appellant was arrested whilst attempt flee from the scene of the alleged crime, the prosecution ought to have specifically proved the identity of the Appellant as one of the robbers, but this they failed to do.

Regarding the confessional statement of the Appellant, counsel submitted that contrary to the decision of the learned trial court, the said statement (Exhibit P4) was obtained under extreme duress and was not voluntary and the learned trial judge erred in admitting same and relying on it.

The Appellant, said Counsel, gave copious and lucid evidence during the trial within trial of how he was beaten with the leg of a stool, hand cuffers, hung between 2 tables and seriously tortured before he was made to sign Exhibit P4 against his wish. That in his ruling, the learned trial judge at page 93 of the Record said “The picture painted by accused that he was hung between two tables with his hands in handcuff and his hands between his legs is not only implausible, the prosecution witness was not confronted with it.”

Counsel submitted that if the learned trial judge failed to find and hold that the evidence of the Appellant as DW1 was shaken by the prosecution during cross examination in the trial within trial, then that evidence must be believed. And, that anything to the contrary would be contrary to the principles of justice.
Also, said Counsel, the failure of the prosecution to tender the earlier statements made by the Appellant in this case at the Ofosu Police station or indeed any of the Exhibits allegedly transferred to SARS raises the presumption under Section 167 (d) of fie Evidence Act 2011 (formerly Section 148 (d)).

On another wicket, Learned Counsel for the Appellant submitted that there is nowhere in the Record of Appeal that the prosecution set out to disprove the alibi set up by the Appellant. The Appellant said he was in the custody of the police at SARs since the 25th of May 2007. That it is the duty of the prosecution to disprove that defence but they failed completely to do so.

Back to Exhibit P4, Counsel submitted that in any event, all the circumstances are enough to affect the weight to be placed on the said Exhibit. The learned trial judge was therefore in error to have placed undue weight on Exhibit P4 when he held that the evidence of PW1 and PW2 was corroborated by the confessional statement.
Counsel submitted further that when the confessional statement Exhibit P4 is considered it becomes clear that the learned trial judge did not properly subject it to the test prescribed in the cases of R v. Sykes (1913) 18 Cr. App. R. 233 approved in Kanu v. R 14 WACA 30 and applied in DAWA v. State (1980) 8 – 11 SC 236.

He argued that the confessional statement is not corroborated and there is absolutely nothing outside the confessional statement to show that it is true. For the various reasons alluded to above, Appellants counsel came to the conclusion that the learned trial judge was wrong in holding that the prosecution proved a case of armed robbery against the Appellant beyond reasonable doubt.
He referred to the provision of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 which presumes an accused person innocent until he is proved guilty and accordingly that the burden placed on the prosecution is not discharged until the guilt of the accused is established.
He referred to the cases of Idemudia V State (1999) 7 NWLR (Pt.610) 202 at 215, Esangbedo V State (1989) 4 NWLR (Pt.113) 57; Nwosu V State (1999) 8 NWLR (Pt.562) 433; Aigbagbon v State (2000) 7 NWLR (Pt.666) page 686 and urged that the conviction and sentence of the Appellant be set aside.

Learned Counsel for the Respondent referred to the case of Abiodun v. State (2013) All FWLR (Pt.700) 1257 at 1268 to also reiterate the essential ingredients of the offence of armed robbery.
He submitted that PW1 and PW2 who were the police officers that carried out the discreet investigation on the case, gave graphic evidence on how an alleged case of armed robbery incident which occurred on the 25th day of June, 2001 at Ore/Benin Express way was transferred from Ofosu Police station to SARS, Akure for discreet investigation.
He referred to excerpt from the evidence of PW1 at pages 73 – 74 of the record as follows:
“On the 30th June 2007, I was on duty at Special Anti-Robbery Squad, Akure Ondo State, when a case of robbery was transferred from Ofosu Division to our office. The case was minuted to my team for investigation, as soon as the case was referred to our team, all the suspects transferred along with the case file was charged and cautioned and they volunteered their statement respectively.”

Also, that at pages 15 – 24 of the record, the PW2 witnessed as follows:
“On the 30th June 2007, case of armed robbery was reported at Ofosu Police station is (sic) transferred to Inspector Matthew Chuckugere and team for investigation while I am one of the investigators. I recorded statement from the suspects after cautionary words…six suspects were transferred from Ofosu to our office…The scene of crime was visited with the suspects.”

Counsel submitted that the evidence of PW1 and PW2 as well as Exhibits P1, P2, P3 and P5 corroborated Exhibit P4 and sufficiently established the fact that there was armed robbery at the time and place in question. On the propriety of the admissibility of Exhibit P4 on the ground of voluntariness, Counsel submitted that when the Appellant objected to the admissibility of Exhibit P4, the trial court conducted a trial within trial upon which the truthfulness and voluntariness of the Exhibit was established on 2nd June, 2011. Learned Counsel then reminded us of the opinion of the Supreme Court in the case of Abiodun V State (2013) All FWLR (Pt.700) 1257, 1266 – 1267 that whether or not an Appellant’s statement is confessional in the sense that it was either induced or obtained under duress is a question of fact and that the trial court has the primary duty of evaluating such facts.
He added that it is trite law that a free and voluntary confession of guilt by a prisoner whether judicial or extra-judicial if it is direct and positive and it is duly made, satisfactorily proved, is sufficient to warrant a conviction without any corroborative evidence. On this, Counsel referred to the cases of Nwachukwu v. The State (2008) 6 ACLR 336 at 345 and Edikwe V The State (1996) 8 NWLR (Pt.464) 1 at 10.

On the contention of the Appellant, that the evidence of PW1 and PW2 relating to the circumstances of the arrest of the Appellant was hearsay evidence, counsel referred again to portions of the evidence of PW1 and PW2 at pages 74 and 84 of the record of appeal and submitted that the PW1 and PW2 offered direct evidence and not hearsay evidence.
He referred to the decision of the Court of Appeal (per Mahmud JCA) (as he then was) in the case of Oladejo v State (1994) 6 NWLR (pt.348) 101 at 121 to the effect that:
“The evidence of the investigating police officer is not hearsay as he only testified to facts he personally saw or discovered in the course of his investigation.”

On alibi, Counsel submitted that the defence of alibi raised during the course of trial by the Appellant to the effect that he was already in custody at SARS Akure on 25th May, 2007 before the alleged armed robbery occurred cannot avail him. He said 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, the plea of alibi is completely shut out and abandoned if it was at first ever made.

Counsel referred to the cases of Ogoala V State (1991) 2 NWLR (Pt.175) 209 at 521 and Ikuepenika V State (2011) NWLR (Pt.1229) 449 and argued that the defence of alibi by the Accused/Appellant is logically and effectively crushed by the evidence of the prosecution witness (PW1 and PW2) which corroborated the confessional statement of the accused/appellant in all material respects.

Learned Counsel for the Respondent submitted further that contrary to the contention of the Appellant that particular witnesses were not called that it has long been established that the prosecution is not obliged to call a host of witnesses in the presence of other overwhelming evidence facing the accused person. He referred to the case of Ijiefor v. The State (2001) 6 NSCQR 209 and argued that in the present case, PW1 and PW2 were not in doubt as to the identity of the suspects transferred to them from Ofosu in respect of the crime charged. At the trial, both witnesses identified the Appellant and others as the suspects transferred to their office at SARS Akure from Ofosu. He concluded that the evidence of PW1 and PW2 together with the extrajudicial statement of the Appellant clearly established the guilt of the Appellant beyond reasonable doubt.

The only significant point raised by the learned counsel to the Appellant on the sole issue in this appeal is the admissibility of Exhibit P4. Yet, Respondent’s counsel provided an adequate answer to the point when he quoted the opinion of the Supreme Court in the case of Abiodun V State (2013) All FWLR (pt.700) 1257 at 1266-1277 first, per Onnoghen JSC to the effect that:
“A decision reached by a trial court/tribunal in a trial within trial proceeding to determine the issue as to whether a confessional statement is made voluntarily or not…the evaluation of the court involved is based on the credibility of witnesses who testified at the trial. The court/tribunal is called upon to resolve the matter by believing one party as against the other, after evaluation of the evidence given by the witnesses.”

Also, in the same case of Abiodun v State (supra) at page 1272 Muhammad JSC held thus:
“It is instructive to always remember that, whether or not an Appellant’s statement is confessional in the sense that it was either induced or obtained under duress is a question of fact. The trial court has the primary duty of evaluating the facts from which to make the inference as to whether such statements were voluntarily made or not.”

In the instant case, the voluntariness of Exhibit P4 was proved before it was admitted by the trial court as having been voluntarily made.
Clearly, one cannot seriously countenance the submissions of the Appellant’s Counsel either on alibi or on the failure of the prosecution to call particular witnesses. In relation to the defence of alibi, apart from the fact that the defence was inappropriately raised for the first time at trial, the admissibility of Exhibit P4 which fixes the Appellant not only to the scene of crime but also to the commission of the crime reduces into insignificance any possibility of a defence of alibi.

So it is and in answer to the Learned Counsel for the Appellant that the accused cannot dictate to the prosecution the person or number of persons that it must field as witness or witnesses. This is because, there is no rule which imposes an obligation on the prosecution to call a host of witnesses. All the prosecution needs do is to call enough material witnesses to prove its case and in so doing it has a discretion in the matter.
Babuga V State (1996) 7 NWLR (Pt.460) 279; Oguonzee v. State (1998) 5 NWLR (Pt.551) 521; Jammal V State (1999) 12 NWLR (Pt.632) 582; Oduneye V The State (2001) 13 WRN 88; Agbi V Ogbeh (2006) 11 NWLR (Pt.990) 65.

In the instant case the evidence of PW1 and PW2 as well as Exhibits P1, P2, P3 and P5 not only corroborated Exhibit P4 but also provided evidence as to the truthfulness of Exhibit P4 under the Rule in R. v. Skyes (1913) 18 CR. App R. 233 applied in Dawa v. State (1980) 8 – 11 SC 236.

The learned trial judge was right in holding that the prosecution proved a case of armed robbery against the Appellant beyond reasonable doubt. The only issue in this appeal is resolved against the appellant.

The appeal lacks merit and it is accordingly dismissed. The judgment, conviction and sentence on the Appellant by O. O Akeredolu J. in charge No.HOR/IC/2009 is accordingly affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having been privileged to read in draft before now the lead Judgment by my learned brother, Mojeed Adekunle Owoade, JCA dismissing this appeal.

I agree that it should be so. The Appellant’s extra-Judicial statement/Exhibit P4 constituted his albatross in this appeal.

That a confessional statement does not only make the burden of the prosecution lighter in the proof of a case but may be relied upon solely to ground a conviction; as every person is the best judge of his interest is trite.
Where the confession is free and voluntary as in Exhibit P4, proof is on a minimal burden. Indeed, a confessional statement is even strengthened where there is a chain of unbroken evidence which is conclusive and strengthens the guilt of the accused person.

In this matter on appeal, the defence of Alibi had been demolished or negatived by the evidence of PW1 and PW2 and bad enough, it was belatedly raised.

The incriminating evidence in Exhibits P1, P2, P3 and P5 being the confessional statements of his co-accused persons (though not adopted), corroborated P4 (the Appellants confessional statement) in all materials particular.
Those other prosecution evidence may be relied on. See Nkie Vs FRN (2014) 236 LRCN 94; see also Holo Lanre Versus The State, Appeal No:CA/AK/60CA/2014 delivered on 24-02-15 (unreported) by this court.

Corroborative evidence abound in the matter on appeal in the exhibits P1, P2, P3, P5 earlier on referred and therefore enamored the trial court in convicting upon Exhibit P4. See also Federal Republic of Nigeria Vs Usman (2012) ALL FWLR 1639. Appeal is dismissed.

JAMES SHEHU ABIRIYI, J.C.A.: I read before now the draft of the Judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE JCA and I agreed entirely with him that this appeal be dismissed.

The Appellant in defence stated that at the time the alleged offence was committed, he was already in police custody. This was not mentioned by him at the earliest opportunity to enable the police investigate the defence of alibi raised. In raising the defence of alibi, the accused person must at the earliest opportunity furnish the police with full details of the alibi, to enable the police check the details. Failure of the accused person to do so would deprive him of the defence. See: Sowemimo v. State (2004) 11 NWLR (Pt.885) 575 and Onyegbu v. State (1995) 4 NWLR (Pt.391) 510.
The fact that the Appellant claimed to have been in police custody at the time the robbery took place did not entitle him to raise the defence belatedly. In my view the Lower Court rightly dismissed the defence of alibi raised by the Appellant.

The only evidence before the Court which in my view linked the Appellant with the robbery is Exhibit P4 his extra judicial statement admitted after voir dire proceedings. A free and voluntary confession of guilt if direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the Court is satisfied with the truth of such a confession. See; Solola v. State (2005) 11 NWLR (Pt.937) 460, Idowu v. State (2000) 7 SC (Pt.11) 50 and Alarape v. State (2001) 14 WRN 1. Exhibit P4 was direct and positive and established the guilt of the Appellant who was smiling as he gave evidence under cross-examination as observed by the Lower Court. See: page 110 of the record of appeal.

I too dismiss the appeal.
The conviction and sentence are affirmed by me.

Appearances

Olakunle AgbebiFor Appellant

AND

John Olowokere with B. B. OlarewajuFor Respondent