ISIKILU OLANIPEKUN V. THE STATE
(2010)LCN/4064(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of November, 2010
CA/I/31C/2006
RATIO
CONFESSIONAL STATEMENT: WHETHER AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
The position of the law as settled on the authorities is that an accused person can be convicted solely on his confessional statement. See the following cases – NWACHUKWU V. THE STATE (2007) 12 SCM 2 at 447 esp. 455; IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 468-469. PER STANLEY SHENKO ALAGOA, J.C.A.
WHAT ARE THE TESTS TO DETERMINE THE VERACITY OF AN ACCUSED PERSON’S CONFESSIONAL STATEMENT
…to determine the veracity of an accused person’s confessional statement, it is desirable as rightly pointed out by Appellant’s Counsel for which he cited OZANE UBIERHO V. THE STATE (supra) that the alleged confessional statement be subjected to six tests. These tests are outlined in the following cases NSOFOR V. STATE (2004) 18 NWLR (PART 905) 292 AT 310-311; IKEMSON V. STATE (1989) 3 NWLR (PART 110) 455 at 458-4691 KANU V. R. 14 WACA 30; NWACHUKWU V. THE STATE (2007) 12 SCM page 2 at page 447 especially at page 455. The tests are as follows – 1. Is there anything outside the confessional statement to show that it is true? 2. Is it corroborated? 3. Are the statements made in it of fact true 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 it consistent with other facts which have been ascertained and which have been proved? PER STANLEY SHENKO ALAGOA, J.C.A.
WHETHER AN IDENTIFICATION PARADE IS A SINE QUA NON TO CONVICTION OF AN ACCUSED PERSON
In UKPABT v. THE STATE (2004) 7 SCM 189 at 199-200 the Supreme Court stated that an identification parade is not a sine qua non to conviction of an accused person. See also, IKESON V. THE STATE (1989) 3 NWLR (PART 110) 455. In ABUBAKAR IBRAHIM V. THE STATE (1991) 4 SCNJ 129, the Supreme Court held as follows, “The law I believe is sufficiently settled that where an accused is arrested or caught when trying to escape during the commission of an offence and the victim of the crime was present and positively identified the accused person, there is no need for the formality of holding an identification Parade.” PER STANLEY SHENKO ALAGOA, J.C.A.
CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WILL DISTURB THE FINDINGS OF A LOWER COURT
It is trite that for an appellate Court to disturb the findings of a lower court based on alleged contradictions in the evidence of the prosecution witnesses such contradictions must be material contradictions. There is a long line of judicial authorities on this principle of law. See ARCHIBONG V. THE STATE (2006) 5 SCNJ 2022 at 2035. PER STANLEY SHENKO ALAGOA, J.C.A.
WHETHER THE PROSECUTION HAS A DUTY TO CALL A PARTICULAR NUMBER OF WITNESS BEFORE HE CAN ESTABLISH ITS CASE BEYOND REASONABLE DOUBT
Achike JSC of blessed memory put the position of the law quite succinctly in the case of EJIOFOR V. THE STATE (2000) 6 NSCOR (PART 1) 209 at 237 thus – “The prosecutorial responsibility is to establish its case beyond reasonable doubt. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or the number of persons that they field as witnesses.” (Underlining mine for emphasis.) PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
ISIKILU OLANIPEKUN Appellant(s)
AND
THE STATE Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): In the High Court of Justice, Abeokuta Ogun State of Nigeria, the Appellant as 4th accused was charged along with others on a two count charge as follows –
COUNT 1: That You, Lukman Olufeko (M), Idowu Okanlawon (M), Akeem Jimoh (M), Isikilu Olanipekun (M) and others now at large on or about the 18th day of August 2002 at Ewi’s compound, Oke-Efon area of Abeokuta in the Abeokuta Judicial Division conspired together to commit a felony to wit: Armed Robbery contrary to section 5(b) and punishable under section 1(2)(a), 5(b)of the Robbery and Firearms (Special Provisions) Act (Cap 398), Laws of the Federation of Nigeria, 1990 as amended by Tribunals (Certain Consequential Amendments etc.) Act 1999.
COUNT II: That you, Lukman Olufeko (M), Idowu Okanlawon (M), Akeem Jimoh (M), Isikilu Olanipekun (M) and others now at large on or about the 18th August 2002 at Ewi’s compound, Oke-Efon area of Abeokuta in the Abeokuta Judicial Division while armed with firearms to wit: guns and other weapons did rob one Evangelist Oluseye Ogunremi of a Nokia Mobile Handset and Sagem Mobile Handset valued at N65,000.00 and a cash sum of N800.00 and thereby committed an offence contrary to section 1(2)(a) of the Robbery and Firearms (Special provisions) Act (Cap 398) Laws of Federation of Nigeria, 1990 as amended by the Tribunals (Certain Consequential Amendments etc.) Act 1999.
They all pleaded not guilty to the two count charge and were tried, convicted, and each sentenced to death. It is against this conviction and sentence that the 4th accused person Isikilu Olanipekun is appealing against.
The case for the prosecution was that on the 18th day of August 2002, the Appellant, the three accused persons whose names are contained in the charge and others still at large while armed with firearms to wit: guns and other offensive weapons conspired together and robbed one Evangelist Seye Ogunremi (PW2) of a Nokia Mobile handset and a Sagem Mobile handset all valued at N65,000.00 and a cash sum of N800.00. Nine witnesses gave evidence for the prosecution while the Appellant Isikilu Olanipekun gave evidence on his own behalf. It was, alleged by PW2 the complainant that in the course of the robbery operation, the Appellant used an iron on his (PW2’s) head and asked him to lie down. The robbers were holding guns and cutlasses and after a search of his house, they left with N800.00 and two handsets – a Nokia and a Sagem. It is the prosecution’s case that one Bola Alausa an electronic repairer (PW1) was approached by the 1st accused person to look for a buyer or himself buys the handsets. 1st accused neither knew the numbers of the handsets nor had a receipt of purchase of them and a request that they be sold for a mere N3,000.00 aroused PW1’s suspicions and in the course of operating the handsets PW2 answered revealing all the gory details of the armed robbery attack on him by the accused persons which eventually led to the arrest of the 1st accused who revealed the identities of the other accused persons including the Appellant as his partners in crime on the day of the incident which led to the arrest, prosecution, conviction and sentence of the 1st, 2nd, 3rd & 4th accused persons.
This appeal is with respect to the 4th accused person only and will simply be referred to as the Appellant. The Appellant at page 43 of the Record of Appeal filed a Notice of Appeal dated the 30th June 2005. By a motion on Notice dated the 22nd June 2006 and filed on the 30th June 2006, Appellant sought for an order of court to amend that Notice of Appeal dated 30th, June 2005 and to deem the Amended Notice of Appeal as properly filed and served. The motion was heard and granted on the 18th April 2007 and an Amended Notice of Appeal deemed as properly filed and served as from that date i.e. 18th April 2007. A further Amended Notice of Appeal dated the 15th January 2008 and filed on the 16th January 2008 was by order of court deemed properly filed on the 14th April 2008. This Further Amended Notice of Appeal consists of five Grounds of Appeal and is reproduced hereunder viz –
FURTHER AMENDED NOTICE OF APPEAL
TO THE REGISTRAR OF THE COURT OF APPEAL, IBADAN
I, ISIKILU OLANIPEKUN, having been convicted of the offences of Conspiracy and Armed robbery and now being prisoner at Abeokuta prison, Abeokuta, Ogun State, (or whose address for service is c/o my Legal Practitioners, Messrs Segun & Segun of 2, Thanni Olodo Street, Jibowu, Yaba, Lagos State) and being desirous of appealing against my conviction do hereby given Notice of appeal against my conviction (particulars of which hereinafter appear) to the court on the following grounds:
1. DECISION COMPLAINED OF:
The whole of the Judgment of 21st June 2005 in suit No. AB/14R/2003
2. GROUNDS OF APPEAL:
GROUND 1 –
The Learned Trial Judge erred in Law in holding that the identification of the Accused person (Appellant herein) was not in issue. See page 40 of the Records lines 34-36.
PARTICULARS OF ERROR:
(a) The need for an identification parade had become sine-qua-non in view of the evidence of PW II when he testified as follows:
“On that day at about 3.30 a.m. there was a big noise on my door and when I woke up, I saw the 1st, 2nd, 3rd and 4th accused Persons, I open the door of my room. They came in and asked for money. The 4th accused used an iron on my head and asked me to lie down.”)
(b) The Learned Trial Judge did not avert his mind to the judgment of the Supreme Court in PATRICK IKEMSON AND 2 ORS V. THE STATE (1989) 3 NWLR PART 110 P.455 @ P.472 PARAS. E-G.
(c) The PW2 in reporting the incident at Adatan Police State gave no description whatsoever as to the identity of the accused persons.
(d) Will the Evidence of a co-accused be sufficient to prove the identity of the participants in a robbery?
GROUND 2-
Learned Trial Judge having found that the accused person (Appellant herein) denied the Confessional Statements erred in Law in holding that he accepts the Confessional Statement without more.
PARTICULARS
(a) The Learned Trial Judge did not inquire into how the Confessional Statement was obtained.
(b) In view of the denial or involuntariness of the confession, a trial within a trial had become expedient.
GROUND 3 –
The Learned Trial Judge erred in law in admitting Exhibit C as being credited as the statement made by the Appellant to the Police.
PARTICULARS
(a) Exhibit C was not made under the hand of the Appellant.
(b) Exhibits C was not recorded in the language in which Appellant made oral statement to the Police.
GROUND 4-
The Trial and conviction of the Appellant negates the principle of fair hearing which said negation arose from conflict of interest of the Prosecuting Counsel and the Defendant Counsel both of whom are employees of the Ogun State Ministry of Justice, (the Defence Counsel being an employee of the Ministry of Justice deployed to the office of the Defender).
PARTICULARS
1. The Appellant was prosecuted by the state through the Director of Public Prosecution and was also defended by the state through the office of the Public Defender.
2. The Public Defender conceded that there was robbery and the robbers were armed with the Prosecution first having established, proved and addressed the Court on same
3. The Prosecution relied on the Public Defender’s concession that there was robbery and the robbers were armed in proving its case.
4. There is a conflict of interest of the Prosecuting Counsel in the trial of this case.
GROUND 5 –
The Judgment is against the weight of evidence.
…
Signature of Appellant
DATED THIS DAY OF 2007
PARTICULARS OF TRIAL AND CONDITION
1. Date of Trial – 22nd April 2004 – 21st June, 2005
2. In what Court tried? – High Court of Justice, Ogun State.
3. Sentence – Death Sentence.
4. Whether questions of law now raised were raised at the trial – No.
5. Do you desire to be present at the hearing of your appeal by the court? – No.
(Sgd. & Stamped)
Messrs. Segun & Segun,
Legal Practitioners to the Appellant,
2, Thanni Olodo Street,
Jibowu, Yaba,
Lagos State.
FOR SERVICE ON:
The Director of public prosecutions,
Ministry of Justice of Ogun State,
The Secretariat,
Abeokuta,
Ogun State.”
The Appellant in his Brief of Argument dated the 15th January 2008, filed on the 16th January 2008 and deemed properly filed on the 14th April 2008 distilled in paragraph 3.0 at page 3 the following five issues for the determination of this Court –
(i) Whether the Learned Trial Judge was right when he held as follows-
“This case does not require an identification parade. The 2nd PW right from the beginning said he could recognise each of the accused persons because his light was on… (see page 40 lines 36 to 37 of the Records).
(ii) Whether the learned Trial Judge was right to have convicted on the alleged confessional statements of Appellant without more.
(iii) Whether Exhibit D could be legally said to be the statement of the Appellant and therefore admissible as his confession to the crime charge (sic).
(iv) Whether the Learned Trial Judge did not go outside the facts of the case when he held that:
“It should not be forgotten that it was the accused Persons who took the Police to where the guns were recovered and at the scene of the crime, the accused Persons described to the Police the strategic Position taken by each one of them therefore Putting themselves at the scene and putting themselves to the crime in question” (see Page 41 lines 2-5 of the Record).
(v) Whether the Judgment of the Court is against the weight of evidence.
Appellant’s Brief of Argument containing these issues were, along with the Appellant’s Reply Brief of Argument dated the 29th March 2010 and filed same day adopted and relied upon by Appellant’s Counsel Tunde Onokoya, with him Akin Olukolu who urged this Court to allow the appeal and set aside the Judgment of the lower court when this matter came up to be heard on the 27th September 2010. Tunde Onokoya of Counsel also informed this Court that an earlier order of Court that the Record of Appeal be certified had been complied with. On the said date of hearing of this appeal being the 27th September 2010, the Respondent’s Counsel was absent from Court, though there was proof that a hearing notice for the 27th September 2010 had been served on the Respondent through the office of the Director of Public Prosecutions Ogun State of Nigeria on the 23rd June 2010. This Court also noted that the Respondent had filed its Brief of Argument dated the 17th March 2010 and filed on the 18th March 2010. This Court therefore invoked the provisions of Order 17 Rule 9(4) of the Court of Appeal Rules 2007 to treat the appeal as having been argued. The said Order 17 Rule 9(4) of the Court of Appeal Rules 2007 states as follows –
9(4) When an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any legal practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued.
In the said Respondent’s Brief of Argument dated the 17th March 2010 and filed on the 18th March 2010, the following sole issue in paragraph 3.00 of the unpagenated Brief was formulated for the determination of this Court viz –
“Whether from the totality of Evidence Adduced at the trial, the prosecution had proved the charge preferred against the Appellant beyond reasonable doubt in accordance with section 138 of the Evidence Act.”
While I consider the issue formulated by the Respondent somewhat restrictive, I at the same time consider the issues distilled by the Appellant somewhat proliferated and the Supreme Court has constantly and consistently advised against the proliferation of issues. I think the following issues will properly determine this appeal –
1. Whether the learned trial Judge was right in relying on the confessional statement of the Appellant in convicting him.
2. Whether the Appellant was properly identified as one of the robbers who took part in the robbery of PW2 on the 18th August 2002.
3. Whether the judgment of the trial court is against the weight of evidence.
Before going into a detailed discourse of these issues it is perhaps pertinent it the outset to state that there are three commissions of such is or is not directly in issue in the action.”
The first two requirements for the sustenance of a charge of armed robbery are not and cannot be issues for discussion in this appeal as there was a concession by the Appellant’s counsel and counsel for the other accused persons that –
(a) There was indeed a robbery on the 18th August 2002 and
(b) The robbery was an armed robbery.
It is therefore necessary to state that whatever further discussions will be gone into will have to be centered in one form or another with the identity of the robber or robbers on the 18th August 2002. In other words was the Appellant one of the armed robbers on the 18th August 2002? I have decided to dwell at some length on these because they form guiding parameters in the meaningful discussion of the issues in this appeal. Issue 1 is, whether the learned trial Judge was right in relying on the confessional statement of the Appellant in convicting him. The Confessional Statement of the Appellant is exhibit “D”. Appellant has submitted that it is a well settled principle of a law that the quality of a confessional statement whether retracted or not can be assessed by the six tests outlined in OZANE UBIERHO V. THE STATE (2005) 7 MJSC page 168-189 paragraph A-B. Counsel submitted that the confessional statement was obtained by threat which would have necessitated the conduct by the court of a trial within trial and a failure on the part of the trial Judge to do so led to a miscarriage of justice. The following cases were relied upon – JAMES V. MID MOTORS S.C. 303/76 REPORTED IN THE DIGEST OF S.C. CASES VOL. 2 BY CHIEF GANI FAWEHINMI pages 23-24; EMEKA V, THE STATE (2001) 5 MJSC page 10 paras. A-B; UDENGWU V. UZUEGBU (2003) 9 MJSC page 79 paras. C-D.
The position of the law as settled on the authorities is that an accused person can be convicted solely on his confessional statement. See the following cases – NWACHUKWU V. THE STATE (2007) 12 SCM 2 at 447 esp. 455; IKEMSON V. THE STATE (1989) 3 NWLR (PART 110) 455 at 468-469.
Before a trial court can undertake the exercise of conducting a trial within trial on the ground that an accused person’s statement was not voluntarily made, objection to the admissibility of the statement of the accused sought to be tendered must be made and in good time.
Resort to the Record of Proceedings of the 19th May 2004 at pages 18 and 19 at the lower court when the Appellant’s statement was sought to be tendered by PW4 Inspector Titus Ogbonna shows that there was no objection by the Appellant or his Counsel to the tendering of the said statement and its admission in evidence. Reproduced from the record on that day is the following –
“This is the statement of the 4th accused dated 5/9/2002 which I took. Sought to be tendered. No objection.”
However despite the position of the law that an accused person can, be convicted on his confessional statement, current legal thinking as highlighted by a plethora of judicial authorities is that to determine the veracity of an accused person’s confessional statement, it is desirable as rightly pointed out by Appellant’s Counsel for which he cited OZANE UBIERHO V. THE STATE (supra) that the alleged confessional statement be subjected to six tests. These tests are outlined in the following cases NSOFOR V. STATE (2004) 18 NWLR (PART 905) 292 AT 310-311; IKEMSON V. STATE (1989) 3 NWLR (PART 110) 455 at 458-4691 KANU V. R. 14 WACA 30; NWACHUKWU V. THE STATE (2007) 12 SCM page 2 at page 447 especially at page 455. The tests are as follows –
1. Is there anything outside the confessional statement to show that it is true?
2. Is it corroborated?
3. Are the statements made in it of fact true 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 it consistent with other facts which have been ascertained and which have been proved?
At this juncture it is necessary to examine the alleged confessional statement of the Appellant exhibit “D”, compare them with other bits and pieces of evidence adduced and see how they fit into these outlined six tests. The Appellant stated in his confessional statement that guns that use cartridges could be purchased from one Alhaji who lives at Ilado village and he told his armed robbery gang members so. The 1st accused person then gave him some money as fare to go to the Alhaji’s house at Ilado village where he went and stole two guns. The 3rd accused person in his own confessional statement exhibit “B” stated that the Appellant is one of his armed gang members and that the Appellant was the owner of the two guns recovered by the police who were tendered as exhibit C and C1. It was in this same operation that two mobile handsets – a Nokia and Sagem were recovered. That is the evidence of PW4 Inspector Titus Ogbonna of the State CID Eleweran Abeokuta, anti Robbery Section.
PW2 Evangelist Oluseye Ogunremi in his evidence which was not punctured by cross-examination testified that the Appellant used an iron on his head and asked him to lie down. The gang in which the Appellant was part of was armed with gun and cutlass. He could recognise the Appellant and his co-armed robbers because they were not masked and his light was put on as he normally does while in bed. The robbers searched his house and took away the sum of N800.00 and two mobile handsets – a Nokia and a Sagem. PW1’s evidence is of how 1st accused brought two mobile handsets to him a Nokia and a Sagem to buy or help him sell and how he was able to operate a set and link up with PW2 the owner of the mobile sets. 1st accused in his confessional statement admitted taking two mobile handsets to PW1 to help him sell which led to his arrest. The handsets were taken to PW1 on the 19th August 2002 to buy or help sell. This was the next day after the robbery operation on PW2. The 1st accused in his statement gave the name of the Appellant as one of his armed robbery gang. The 2nd accused in his own confessional statement said the Appellant was part of his armed robbery gang and it was the Appellant and one Jimoh (3rd accused) that brought the guns from a village called Ilado. When these bits and pieces of evidence obtained from witnesses and the confessional statements of other accused persons are assembled and analysed, they tell a consistent and harmonious story that the confessional statement of the Appellant was indeed what happened on the 18th August 2002 when PW2 was robbed.
Now turning to the six tests earlier highlighted, there is a lot outside the confessional statement of the Appellant to attest to its veracity as borne out by the evidence of other witnesses and the confessional statements of the other accused person which statements are corroborative of the confessional statement of the Appellant. That the Appellant had the opportunity to commit the crime is not in doubt being armed and in the company of his partners in crime and facing an unsuspecting and possibly unarmed PW2. That his confession is possible is borne out by the fact that he must have known that the game was up when instead of collecting some money as proceeds of the sale of the two handsets; he had found himself helplessly in the hands of law enforcement officers who arrested him. Perhaps he could obtain some reprieve he reasoned if he confessed. Such occurrences are not uncommon among criminals. That Appellant’s confessional statement is consistent with other facts which have been ascertained and proved is not in doubt. The other accused persons had fingered him as one of their own. Evidence adduced shows that he it was that procured the guns that were used in the robbery operation on PW2 on the 18th August 2002.
During that operation two mobile handsets – a NOKIA and a SAGEM were removed from PW2’s house. The 1st accused who admits that Appellant is in his robbery gang took a NOKIA handset and a SAGEM handset to PW1 to buy or help him sell. The SAGEM and NOKIA were found to belong to PW2. What more can one say? Could all this have been coincidental? I think not. I’ll therefore resolve Issue 1 in favour of the Respondent and against the Appellant.
The second issue is whether the Appellant was properly identified as one of the robbers who took part in the robbery operation in PW2’s house on the 18th August 2002. Much of the arguments in dealing with Issue 1 hold good here and there may be no need to repeat them except where necessary.
PW2 Evangelist Oluseye Ogunremi’s uncontroverted evidence is to the effect that the Appellant was one of a gang of four armed robbers who broke into his house on the 18th August 2002. His evidence is that he could recognise the robbers not only because the room was lit but more importantly that they were not even masked. Appellant’s Counsel’s submission is that the failure on the part of the police to conduct an identification parade is fatal to the prosecution’s case. That is not necessarily always true as it is not in all instances that apprehended accused persons are subjected to an identification parade.
In UKPABT v. THE STATE (2004) 7 SCM 189 at 199-200 the Supreme Court stated that an identification parade is not a sine qua non to conviction of an accused person. See also, IKESON V. THE STATE (1989) 3 NWLR (PART 110) 455. In ABUBAKAR IBRAHIM V. THE STATE (1991) 4 SCNJ 129, the Supreme Court held as follows,
“The law I believe is sufficiently settled that where an accused is arrested or caught when trying to escape during the commission of an offence and the victim of the crime was present and positively identified the accused person, there is no need for the formality of holding an identification Parade.”
What the apex court was alluding to is that sometimes an accused person is so positively identified that his victim can always identify him and in such an instance there is no need to conduct an identification parade. PW2 recollects that it was the Appellant who used an iron on his head and that the robbers wore no hood or mask just as the lights in the room were on. PW2 had therefore told the police that he could identify them if he saw them. The identification of the Appellant and the bits and pieces of evidence adduced by witnesses and the confessional statements of the other accused persons are harmoniously consistent with one another and give no room for doubt that the Appellant was positively identified as one of the robbers on the 18th August 2002 in PW2’s residence. In fact under cross-examination, PW2 said he could tell what they wore. They all dressed in two jeans and only the 1st accused had a cap on. Issue 2 is therefore resolved in favour of the Respondent and against the Appellant.
The third issue is whether the judgment of the trial court is against the weight of evidence and Appellant has submitted that the judgment of the trial court was against the weight of evidence. Counsel for the Appellant wondered how a case that had been reported to the police as one of burglary and stealing had suddenly graduated into a case of armed robbery. Counsel referred to what he felt were contradictions in the evidence of the prosecution witnesses as to the time when the armed robbery was reported to the police – while PW2 said it was on the 18th August 2002, PW7 said it was on the 28th August 2002. According to Appellant’s counsel, material witnesses who should have shed more light of the true state of events were not called upon to give evidence. Counsel referred to the confessional statement of the Appellant as a complete fabrication. Counsel submitted that on the whole the prosecution did not discharge the burden placed on it by law in proving the culpability of the Appellant beyond reasonable doubt. The summation of this according to counsel for the Appellant is that the evidence of the prosecution witnesses are full of contradictions of a fundamental nature’ Counsel referred to the following cases to buttress his points – IKO v. THE STATE (2001) 6 MJSC 12 par. C; UBANI V. THE STATE (2004) 1 MJSC 106-107 par. G-A.
Respondent’s Counsel has submitted that the prosecution has proved the ingredients of the offence to establish the guilt of the Appellant. Reliance was placed on OTTI v. THE STATE (1991) 8 NWLR (PART 207) page 103 at page 118. There is, Counsel submitted overwhelming evidence that-
(i) There was a robbery incident at PW2’s house on the 18th August 2002;
(ii) That the said robbery was an armed robbery;
(iii) That the Appellant took part in the said Armed robbery;
Counsel further submitted that there are three ways of proving the guilt of an accused person. These are –
(a) Eye witness account;
(b) Confessional statement;
(c) Circumstantial evidence’
Reliance was placed on EMEKA V. THE STATE (2004) CR. APP. Cases page 55 per E-F. Counsel further submitted that the evidence adduced by the Prosecution against the Appellant consisted of eye witness account and confessional statement.
Learned Counsel for the Appellant referred to contradictions in the evidence of the prosecution witnesses. It is trite that for an appellate Court to disturb the findings of a lower court based on alleged contradictions in the evidence of the prosecution witnesses such contradictions must be material contradictions. There is a long line of judicial authorities on this principle of law. See ARCHIBONG V. THE STATE (2006) 5 SCNJ 2022 at 2035. That PW2 said the Robbery was reported to the police on the 18th August 2002, while PW7 said it was reported to the police on the 28th August 2002 is not such contradiction that is material. What is important is that there was a robbery and a report of the robbery was made to the police so soon thereafter. With respect to the quantity and quality of the evidence led by the prosecution to establish its case, this does not lie with the defence. It is the duty of the prosecution and not the defence to determine who and who should be fielded as witnesses and the number of such witnesses. Appellant in his brief made specific reference to the fact that the Alhaji from whose house the guns were stolen by the Appellant was not fielded as witness by the prosecution. The prosecution was not duty bound to call the Alhaji to testify if it had other credible evidence to rely on. Achike JSC of blessed memory put the position of the law quite succinctly in the case of EJIOFOR V. THE STATE (2000) 6 NSCOR (PART 1) 209 at 237 thus –
“The prosecutorial responsibility is to establish its case beyond reasonable doubt. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or the number of persons that they field as witnesses.”
(Underlining mine for emphasis.)
Appellant’s contention that the confessional statement exhibit “D” is a fabrication is not borne out by the fact that there are other bits and pieces of evidence as earlier highlighted which lend credence to the fact that the said exhibit “D” was the confessional statement of the Appellant.
In all, the prosecution proved its case beyond reasonable doubt as required by law and I have no reason to disturb the findings of the learned trial Judge Shoremi J. (as he then was) which findings are based on a proper evaluation of the evidence adduced.
The appeal thereby fails as it is lacking in merit and is accordingly dismissed and the judgment of G. O. Shoremi J. (as he then was) delivered on the 21st June 2005 in Charge No. AB/14R/2003 is hereby affirmed as it affects the Appellant Isikilu Olanipekun.
SIDI DAUDA BAGE, J.C.A.: I have had the opportunity of reading in draft the judgment of my learned brother, STANLEY SHENKO ALAGOA, J.C.A.
I agree with the reasoning and conclusion reached. I have nothing useful to add. The Appeal lacks merit and it is also dismissed by me. I abide by the consequential order contained in the lead judgment.
MODUPE FASANMI, J.C.A.: I had the privilege of reading in advance the Judgment of my learned brother S. S. Alagoa J.C.A.
I agree that the appeal lacks merit and it is also dismissed by me.
Appearances
Tunde Onakoya Esq. with him Akin Olukolu Esq.For Appellant
AND
D.P.P., Ministry of Justice, Ogun StateFor Respondent
