JAMIU YINUSA v. THE STATE
(2018)LCN/11152(CA)
In The Court of Appeal of Nigeria
On Monday, the 26th day of March, 2018
CA/I/275C/2014
RATIO
AN ACCUSED PERSON IS INNOCENT UNTIL PROVEN GUILTY
The law is that an accused person is presumed innocent until proven guilty. By Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act the burden of proof rests squarely on the prosecution to prove all the ingredients of the offence charged beyond reasonable doubt. The burden does not shift and any lingering doubt must be resolved in favour of the accused person per Chinwe Eugenia Iyizoba J.C.A
THE 6-WAY TRUTH TEST TO EVALUATE RETRACTED CONFESSIONS
The tests are:
(1) Is there anything outside the confessional statement to show that it is true.
(2) Is it corroborated?
(3) Are the relevant statement 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 crime?
(5) Is his/her confession possible?
(6) Is the confession consistent with other facts which have been ascertained and have been proved? Per Chinwe Eugenia Iyizoba J.C.A
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
JAMIU YINUSA – Appellant(s)
AND
THE STATE – Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment)
This is an appeal against the judgment of the High Court of Ogun State Ijebu-Ode, in Charge No. HCJ/6C/2010 delivered on 15/02/2012 Coram Ogunsanya J convicting the Appellant and his co-accused on several counts of conspiracy to commit armed robbery and armed robbery.
THE FACTS
?The prosecution?s case was that on the 18th day of November, 2007 at Odogbolu in Ogun State, a gang of armed robbers including the Appellant, conspired together to rob several houses. The 1st house visited by the Appellant and his gang was the house of one Dr. Olukayode Adelaja at Awolowo Road Odogbolu, where they operated between the hours of 7.30am to 4.30am. They had time to cook, eat and drink themselves to stupor. They vomited and even had their bath in PW2?s room. The generator was on from the time they entered PW1?s house till about 3 a.m. when the fuel finished. At about 4.30a.m., the Appellant, his co-accused and others after telling one another that the vigilante would soon stop surveillance, left the house of PW1 with his motorcycle, mobile phone, one kriko air Rifle with one hundred and fifty bullets, and his best clothes and shoes. They also robbed his wife of her mobile phone, gold jewelleries and a Brazilian passport.
?At about 6.15 a.m. the following morning 19/11/2007, the Appellant and his gang moved to PW3?s house and gained entrance by jumping over the fence. PW3?s dog which was barking was shot dead. Appellant and his men ransacked all the rooms and collected several mobile phones from PW3 and his family. At the end of their operation at PW3?s house, they took his car, a Nissan Laurel vehicle with Reg. No. AP 362 JBD. Shortly after they left, fuel finished in the car. A police patrol vehicle saw a group of boys and on trying to stop them, they took to their heels. The Police pursued them and two were caught, the appellant and his co-accused. PW3 identified the Appellant because he was still wearing the PEPSI tee shirt which he wore during the robbery in PW3?s house. The gun and other things they robbed from PW1 and PW2 were also found on them. The Appellant was jointly arraigned with his co-accused Idowu Amusa on a seven count charge of conspiracy and armed robbery, contrary to Section 6(b) and Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, Laws of the Federation of Nigeria, 2004, details of which are as contained at pages 2-4 of the Record of Appeal.
During the trial, the prosecution called five witnesses PW1- PW5 and tendered 3 handsets, 2 wristwatches, butt and nozzle of a rifle and one Pepsi inscribed tee shirt (alleged to have been worn by the Appellant during the operation) as exhibits: C-C2, D & D1, E & E1, and F; The confessional statements of the Appellant were admitted as Exhibits B and B1.(Page 47 of the Record of Appeal). The Appellant testified as DW2 and called his wife who testified as DW4.
After the conclusion of trial, the Prosecution and the Appellant?s counsel addressed the Court. The learned trial Judge after reviewing the evidence and the addresses of learned counsel held that the prosecution proved the offences against the Appellant beyond reasonable doubt. He convicted the Appellant and his co-accused and sentenced them to death. The Appellant naturally aggrieved with the judgment appealed against it by a Notice of appeal filed on 5/3/12 at page 78 of the Additional Record of Appeal dated 22nd June 2017 and filed on 29/6/17 but deemed properly filed and served on 30/11/17. Parties filed and exchanged briefs of argument. The Appellant?s brief was settled by Francis Rotimi Adeniji Esq and Diana O. Sandy Esq. while the Respondent?s brief was settled by O. A. Sonoiki Esq Chief State Counsel, Ministry of Justice Ogun State. From the 6 grounds of appeal in the Amended Notice of Appeal dated and filed on 28/11/17 but deemed properly filed and served on 30/11/17 Mr. Adeniji distilled the following three issues for determination:
(i) Whether or not the alleged confessional statements of the Appellant referred to as Exhibits ?B and B1 are sufficient for the trial Court to convict the Appellant;
(ii) Whether or not the failure of the trial Court to conduct a trial within trial is fatal to the whole proceedings and rendered the trial and conviction of the Appellant void;
(iii) Can the defence of Alibi suffice for the Appellant?
Sonoiki Esq, in his brief identified the following issues for determination:
?1. Whether the prosecution proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.
2. Whether the learned trial Court was right in relying on the confessional statement of the Appellant in convicting him.
3. Whether the trial Court was right in failing to uphold the defence of Alibi relied upon by the Appellant.
I am of the view that the issues formulated by both sides can conveniently be considered under the sole issue:
?Whether from the totality of the evidence adduced at the trial, the prosecution proved the charges preferred against the Appellant beyond reasonable doubt?.
APPELLANT?S ARGUMENTS:
?On his issue 1, whether or not the alleged confessional statements of the Appellant Exhibits B and B1 are sufficient for the trial Court to convict the Appellant, Mr. Adeniji submitted that the learned trial judge accepted and placed weight on the confessional statements simply by the speculative and suggested admission of the Appellant completely ignoring the fundamental factors which ought to have been considered to ascertain the voluntariness and truthfulness of the confessional statement. Counsel cited the following cases: Ore-Ofe Adesina (aka Alhaji) & Anor. V. The State (2012) LPELR 9722 (SC); Saidu v. The State (1990) 7 NWLR (Pt.160) 101 at 109. Akpan v.The State (1990) 7 NWLR (Pt. 160) 101; Egboghonome v.The State (1993) 7 NWLR (Pt. 306) 383; Bature v.The State (1994) 1 NWLR (Pt.320) 267; Yesufu v. The State (1976) 6 SC. 167; and submitted that the evidence of the Appellant ?That he was at the spot of arrest to see his wife that has just put to bed……..that he was asked to lick the blood stains on the wall ? his statement was taken while he was crouched under a bench and did not see what was being written down and was hit when he tried to? (Page 50, lines 1-8 of the Record of Appeal) show that the alleged confessional statement was involuntary and ought not to have been admitted in evidence. Learned counsel set out the guiding principles for evaluation of confessional statements and the cases of Akpa v.The State (2007) 2 NWLR (Pt.1019) 500; Uwagbore v.The State (1980) 9-11 SC; Ojegele v.The State (1988) 1 NWLR (Pt.71) 414 at 416; Kareem v. FRN (No. 2) (2002) 8 NWLR (Pt. 770) 664 and submitted that the conclusion of the trial Court and the analysis of the evidence appears not to have been in congruence with these important guiding principles. Mr. Adeniji submitted that to sustain the conviction of the Appellant for the offence of Armed Robbery, the Court must establish
i that there was a robbery;
ii that the robbery was an armed robbery and
iii that the accused person was either the armed robber or that he was among the armed robbers.
Citing the cases of Okubo v.The State (2011) 3 NWLR (Pt. 1234) 209 at 233; Sani v.The State (2015) NWLR (Pt.1483) 522, counsel argued that a sole reliance and conjectures grounded on the confessional statements which have been said to be obtained by torture, cannot be a good ground to convict the Appellant.
?On his issue 2, counsel submitted that the failure of the trial Judge to conduct a trial within trial is fatal to the whole proceedings and rendered the trial and conviction of the Appellant void. He argued that when learned counsel for the Appellant at the trial announced that the accused persons were no longer contesting the voluntariness of the confessional statements, that the learned trial judge in the exercise of his discretion ought to have asked from the accused personally (the two Defendants including the Appellant now on Appeal), whether or not it was true that they intended to dispense with or waive their rights to have a trial within a trial. Counsel submitted relying on STATE V. GWONTO(1983) 1SCNLR 142 that the failure of the Court to inquire or ask the Appellant directly is fatal to the entire proceedings.
On his issue 3, whether the defence of alibi is open to the Appellant, learned counsel submitted that the Appellant in his defence stated that he was never at the scene of the crime; that on 18/11/2007, he was at Ijora in Lagos and in the morning of 19/11/2007, he left Lagos to answer the call from his wife, who just put to bed. Counsel submitted that the Police did not bother to investigate the veracity of the claim. He contended that the arbitral dismissal of the defence of alibi set up by the Appellant left a big gap in the entire trial and conviction.
Learned counsel submitted that the trial Court relied heavily on the confessional statements, Exhibits B & B1 which were full of gaps. Relying on Alabi v.The State (1993) NWLR (Pt. 307) 511; Abogede v. The State (1996) 5 NWLR (Pt. 448) 270, he opined that the elements of the two offences have not been proved beyond reasonable doubt and urged the Court to allow the appeal and to quash the conviction and sentence imposed on the Appellant.
RESPONDENT?S ARGUMENTS:
On the counts of conspiracy, Sonoiki, Esq. Chief State Counsel examined the incidence of the offence of conspiracy and what needs to be proved and submitted relying on OSETOLA & 1 ORS V. THE STATE (2012) 13 SCM (PT. 2347) @ 371; UPAHAR VS. THE STATE (2003) 6 NWLR 230 @ 239 AND NGUMA VS. AG IMO STATE (2014) 3 SCM 137 @ 160?161 that the testimony of PW1, PW2 and PW3 wherein they stated the different roles each of the accused persons played in carrying out the Robbery incident and the confessional statements Exhibit A ? A1 and Exhibit B ? B1 wherein the Appellant and his co-accused gave graphic descriptions of how they planned the robbery and how they executed their unlawful plan established beyond reasonable doubt the offence of conspiracy.
On the offence of Armed Robbery, counsel submitted relying on OFORLETE V. THE STATE (2000) FWLR (PT. 12) PG 2098 ? 2099 AND OLAYINKA V. THE STATE (2007) 13 NWLR (PT. 1040) 561 @ 582?583 that the prosecution to succeed must prove beyond reasonable doubt the following:
(a) That there was an Armed Robbery
(b) That the Robbers were armed
(c) That the Accused/Appellant participated in the Robbery.
Counsel submitted that the evidence of PW1 and PW2 established beyond reasonable doubt that there was a robbery incident at Awolowo Road Odogbolu Ogun State on the 18th of November 2007; that the Appellant and his co-accused along with some others still at large gained entrance into their house, and robbed them of their phones, money, jewelries and also ate their food. Counsel submitted that they both narrated how the Appellant and his gang drank alcohol and vomited all over their house and that their testimony remained unshaken and unchallenged under cross-examination. Counsel submitted that PW3 also gave graphic detail of how the Appellant and his gang scaled the fence to enter into his house, how he was threatened at gun point by the Appellant and his gang and how they robbed him of his mobile phones and other valuables. PW3 also stated that the Appellant and his gang members robbed him of his car, a Nissan laurel with Reg. No. AP 362 JED. The evidence counsel submitted also remained unchallenged. He submitted that the fact that PW1, PW2 and PW3 were robbed by the Appellant was well corroborated by the Appellant?s confessional statement, though retracted during trial. Learned counsel further submitted setting out the relevant evidence that the second and third ingredients of Armed Robbery against the Appellant were established beyond reasonable doubt. PW1 testified that he saw the Appellant clearly because his generator was on and he also saw that they were armed with a gun. PW3 also testified that the Appellant and his gang entered his house by scaling the fence after shooting dead his dog which was barking and at gun point robbed him and his family of their phones, jewelries and also drove away his car a Nissan Laurel with Reg. No. AP 362 JED. Counsel submitted that PW3 was able to recognize the Appellant who he stated was wearing a tee shirt with Pepsi inscription. Upon his arrest, the Appellant was still wearing the Pepsi tee shirt which was tendered before the trial Court as Exhibit F. Counsel submitted that the issue of identification did not arise as the Appellant was seen at the scene of the crimes by the witnesses.
As to whether the learned trial judge was right in relying on the confessional statement of the Appellant in convicting him as charged; counsel submitted that it is trite law that a trial Court can rely on the confessional statement of an accused person in convicting him as well established by the Supreme Court in a plethora of cases. AKPA V THE STATE (2008) PG. 68 @ 70 .
Learned counsel submitted that since the defence counsel withdrew his objection to the admissibility of the confessional statements and also withdrew from the trial within a trial and raised no further objection to the tendering of the Exhibits, that the trial Court was right in admitting same and relying on the confessional statements to convict the Appellant. Learned counsel submitted that the argument of learned counsel that the trial Court ought to have made further enquiry from the accused persons before closing the door on the trial within a trial is totally without merit as the Appellant was represented by counsel who is presumed to know what he is doing and was presumably acting with the consent of the Appellant. Counsel submitted that the subsequent retraction of the confessional statements by the Appellant did not affect its admissibility. It is for the trial Court to decide what weight to attach to it. Counsel relying on OSENI V THE STATE submitted that the learned trial judge applied the necessary tests in determining what weight to attach to the retracted confession. Counsel submitted that the confessional statements having been corroborated by the evidence of the prosecution witnesses met the requirement of law and that the trial Court was right in convicting the Appellant on the confessional statements. He relied on ISMAIL V. THE STATE (2011) 10 SCM PG. 35 AT 39 PARA 4.
?Learned counsel urged us not to disturb the findings of the trial Court on the issue of confessional statements. He further urged us to invoke the presumption in Section 167 of the Evidence Act that a man found in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to have been stolen unless he can account for his possession. Counsel submitted that the Appellant did not deny the fact that Exhibits C ? C2, D – D1, E ? E1, F and G were found in his possession. He failed to account for his possession of the items.
On the failure of the trial Court to uphold the defence of Alibi set up by the Appellant, learned counsel submitted that alibi as a defence should be raised at the earliest opportunity in the interrogation room, in order to enable the police to investigate the alibi. Counsel submitted that the Appellant raised the issue of alibi at the trial when it was impossible for the Police to investigate the alibi.
Learned counsel urged the Court to uphold the decision of the trial Count and to dismiss the appeal.
RESOLUTION:
The law is that an accused person is presumed innocent until proven guilty. By Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 135(2) of the Evidence Act the burden of proof rests squarely on the prosecution to prove all the ingredients of the offence charged beyond reasonable doubt. The burden does not shift and any lingering doubt must be resolved in favour of the accused person.OKONJI V THE STATE (1987)1NWLR (PT. 52) 659; KALU V THE STATE (1988) NWLR (PT. 90), ALABI V THE STATE (1993) 7 NWLR (PT. 307) 511 A-C; ONWE V THE STATE (2017) LPELR-SC.549/2013.
The Appellant herein along with a co-accused was charged with several counts of conspiracy to commit armed robbery and armed robbery. It is necessary then to identify the ingredients of these offences and then to look critically at the evidence adduced by the prosecution in order to determine whether the counts were proved beyond reasonable doubt and the learned trial judge was right in finding the appellant guilty on all the counts. The parties herein are in agreement as to what the prosecution needs to prove to secure a conviction for conspiracy to commit armed robbery and armed robbery. Starting with armed robbery, the law requires the Prosecution to establish three ingredients simultaneously. (1) that there was a robbery or series of robberies; (2) that each robbery was an armed robbery; (3) that the accused was one of those who took part in the robbery. See the following cases: BOZIN V THE STATE (1985) 2 NWLR (PT. 8) 465; NWACHUKWU V THE STATE (1985) 1 NWLR (PT.11) 218; AMINA V STATE (1990) 6 NWLR (PT.155) 125; ANI V THE STATE (2003) 11 NWLR (PT.830) 142; OLAYINKA V THE STATE (2007) 9 NWLR (PT.1040) 561; AFOLALU V STATE (2010) 16 NWLR (PT 1220) 584; NWATURUOCHA V THE STATE (2011) LPELR-8119(SC)
?The Appellant in his brief of argument did not raise any serious issues as regards the 1st and 2nd ingredients. There is no contest that there was a robbery or series of robberies and that each robbery was an armed robbery. The major grouse of the Appellant related to the 3rd ingredient, whether the Appellant was one of those who took part in the robberies. The contention of Mr. Adeniji for the Appellant in the main relates to the confessional statement. He is of the view that the confessional statements should not have been admitted in evidence at all and that no weight should have been attached to it. In other words, he claims that the confessional statements were not free, voluntary, direct and positive; that notwithstanding the decision of the defence counsel to discontinue the trial within a trial to determine the voluntariness of the confession, the learned trial judge should have conducted further enquiry from the accused persons to be sure they desired the discontinuation of the trial within a trial. Without much ado and without mincing words, I hasten to state categorically that Mr. Adeniji got it all wrong. The case of STATE V. GWONTO (SUPRA) which he cited in support of his contention did not advocate that a judge could take any such step. The case dealt with the need for a Court to do substantial justice between the parties that come before it and not to adhere to technical issues that becloud the justice of the matter. Learned counsel for the Respondent is right that a person charged with a criminal offence is entitled to select Counsel of his own choice to defend him or conduct his case for and on his behalf. In the case of ADIGWE V. FEDERAL REPUBLIC OF NIGERIA (2015) 18 NWLR (PT. 1490 ) PG. 105 AT 135 PARA 5 C ? E, the Supreme Court referred to Section 36(6) of the 1999 Constitution of the Federal Republic of Nigeria which entitles every person charged with a criminal offence to defend himself in person or by a legal practitioner of his own choice. Having chosen Akin Aledesua Esq. to defend him in the lower Court, it would be outrageous for the lower Court to ignore the way and manner learned counsel chose to conduct his client?s case and to go over and above counsel to conduct discussion in Court with the accused person as to whether he agreed with his counsel to discontinue the trial within a trial. That would amount to the Court leaving its hallowed position of arbiter to jump into the arena to conduct the case of the accused. In ONWUMERE V THE STATE (1991) LPELR ? 2723 (SC) Akpata JSC observed:
?It is the function of counsel for an accused person to conduct the case of his client and not the responsibility of the counsel for the prosecution or the Court to ask questions to enable the accused, represented by counsel, do so effectively.?
It is a grave misconception of the law for Mr. Adeniji to argue that an accused person duly represented by counsel was denied fair hearing because the trial judge did not put questions specifically to the accused person to confirm the stand taken by his counsel during hearing.
?Section 27 of the Evidence Act provides that ?a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime.? Section 27(2) provides further that ?confessions, if voluntary, are deemed to be relevant facts against the persons who make them only.?
The burden of proving that a confession is voluntary usually rests on the prosecution. See DAWA V THE STATE (1980) NSCC 334; NWANGBOMU V. STATE [1994] 2 NWLR (PT. 327) 380; EMIOWE V. STATE [2000] 1 NWLR (PT. 641) 408. The burden is discharged by leading evidence to show that in obtaining the statement, the police complied with the usual rules, practice and procedure; referred to as Judge?s Rules. They are rules of practice which are designed to assist police officers in obtaining statements from accused persons. The statement must carry the usual forms of caution; the words of caution must be in the language understood by the maker; it must be followed by the maker?s thumb-print or signature as the case may be; it must be recorded in the language understood by the maker; it must be read over and interpreted to the maker in the language in which it is made. It is also the practice where the maker is an illiterate to take him to a superior police officer who will interview him in order to confirm that the statement if confessional was voluntarily made. See R V. IGWE (1961) ALL NLR 330 @ 333; KIM V. THE STATE [1992] 4 NWLR (PT. 233) 17 @ 42-43 H-C .
Where the accused person challenges voluntariness of the confession, the Court must conduct a trial within a trial to determine the voluntariness of the confession. It is apt at this point to narrate the facts leading to the apprehension of the Appellant and the making of the confession. PW4 DPO Iperu Remo at the time of the commission of the offence testified that his patrol team on 19/11/07 sighted a gang of hoodlums in the bush along Ibadan Expressway. They got out of their patrol vehicle and started moving towards them. The boys, about five of them took to their heels. They pursued them and were able to arrest two of them, the Appellant and his co-accused. At the Police station at Iperu Remo, the two arrested boys confessed to committing armed robberies at Odogbolu, and they assisted PW4 to recover the vehicle, a Nissan Laurel stolen from PW3. PW4 then phoned the DPO Odogbolu who confirmed that there were robberies in Odogbolu. The Appellant and his co-accused were then handed over to the Police at Odogbolu where they also made confessional statements. The statements of the Appellant in Yoruba and its translation in English were tendered in evidence by PW5 Inspector Gbenga Akinfenwa as Exhibits B and B1. Learned counsel for the Appellant had at first objected to the admissibility of Exhibit B on the ground that it was not voluntary. When the trial judge was set for a trial within a trial to determine the voluntariness of the confession, Appellant?s counsel withdrew his objection. See page 24 of the Record beginning from line 11 where Aladesua for the Appellant told the Court: ?At this stage I wish to inform the Court that the accused persons now do not contest the voluntariness of the statement credited to them by the Prosecution?. The language used by Mr. Aladesua shows that he acted in full consultation with his clients. It implies that the Appellant and his co-accused knew that the confessional statements were voluntary. There is no merit in the argument of learned counsel for the Appellant that the confessional statement was not made voluntarily. It is too late in the day to argue the point. Having settled the issue of voluntariness of the confession, the next question is whether the confession was properly proved especially given its retraction by the Appellant in his oral evidence in Court. The law is that a conviction can be properly founded on a retracted confession provided there is evidence outside the confession which would make it probable that the confession was true. UBIERHO V STATE (2005) 5 NWLR (PT. 919) 644; OTUFALE V STATE (1968) NMLR 261; AKINFE V STATE (1988) 3 NWLR (PT.85) 729; AKPA V STATE (2008) ALL FWLR (PT. 420) 603 @ 665-666 H-D. All that is required is that before the Court can believe and act on such retracted confession it should subject the confession to what is generally referred to as the 6-way truth test as enunciated in the case of R. V SAKS and applied in numerous cases in Nigeria such as AKPAN V STATE (2000) 12 NWLR (PT. 682) 607; KAREEM V FRN (2002) 8 NWLR (PT. 770) 664; AGBOOLA V STATE (2013) LPELR-SC.434/2011; OSETOLA & ANOR VS. THE STATE (2012) 17 NWLR (PT. 1329) 251 . The tests are:
(1) Is there anything outside the confessional statement to show that it is true.
(2) Is it corroborated?
(3) Are the relevant statement 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 crime?
(5) Is his/her confession possible?
(6) Is the confession consistent with other facts which have been ascertained and have been proved?
?From the evaluation of the evidence by the trial judge, it is not in doubt that his lordship carried out the necessary tests. With respect to the charge of conspiracy viz a viz the confessional statements, his lordship observed:
?The response of the 1st and 2nd Accused persons to this count of conspiracy to commit armed robbery is a complete denial, stating that they were never in the house of the PW1, PW2 and PW3 and that they only came to know each other i.e. 1st knew 2nd accused person when they met at the Police Station upon their arrest.
I however wish to refer to certain portions of the Exhibits A & B the confessional statements credited to 1st and 2nd Accused persons by the Police which the accused persons have retracted.
?In Exhibit ?A?, the 1st Accused stated:
On the 17/11/2007 at about 7p.m. Owolabi called me on phone that I should come to Odogbolu round about, we both met and we fixed Sunday 18/11/2007 for the robbery operation. We all met at Odogbolu round about around 7pm Obiyen is the person who provide us with two locally made pistol, Tunde and Owolabi where the people holding the gun, Jamiu did not hold any weapon, I was holding stick during the operation. Obiyen was also holding a stick, our first operation is the former Obiyen master we got to the doctor house around 7.30p.m. we enter into the Doctor compound by jumping the fence of the house through backyard they left their door open, when we enter, Doctor and his wife are watching television in the sitting room, Tunde and Owolabi pointed gun to them, and we started searching all the rooms in Doctor house one after the other before we left doctor house?.
In Exhibit B, the 2nd Accused stated:
?I met one Owolabi (M), Tunde and Idowu (M) at Aiyepe and we became friends. It was later we planned to take to robbery. Idowu introduced me to Obiyen (M). On the 18/11/2007 we planned to rob at Odogbolu. I then came and met Idowu Amusa (M) at Odogbolu roundabout and where I met with other two locally made shot guns were brought by Obiyen. Idowu took one of the guns and Owolabi took one. At about 7.30 pm we proceeded to the house of one old man at Awolowo Avenue Odogbolu. On getting to the house, we jumped the fence of the house and gained entrance into his sitting room where we met the old man and his wife watching television. Idowu was not holding any weapon. I was outside the gate with iron rod on my hand keeping surveillance. Obiyen, Owolabi and Tunde were inside with the old man. They robbed the old man of his handset and (N210.00). We also ate cooked eggs. One single barrel was also collected from the old man and Tunde and Owolabi cut the single barrel into small size from there we moved to another house.?
These two statements corroborate the evidence of PW1 and PW2 that the two accused persons were in concert having conspired to rob them and did so eventually.?
The question is whether Exhibit A and B having been retracted is good evidence against the 1st and 2nd Accused in proof of and corroboration that the Accused persons were working in concert to rob PW1, PW2 and PW3 while in company of offensive weapons…
In as much as Exhibits A and B corroborate the evidence of PW1 and PW3 with respect to the connivance in conspiracy to rob the PW1, PW2 and PW3, I am satisfied that Exhibits A & B contain the truth of the events of that night which is in pari materia with the evidence of PW1, PW2 and PW3. Exhibits A and B also contain statement as to how the 1st and 2nd Accused persons left the PW1 and PW2?s house for Igbodile area where PW3 lives and landed in PW3?s house.
In Exhbit B, 1st accused (DW1) sic (2nd accused DW2) stated thus: ?we left the second house to Igbodile Area where we knocked gate and the gate was not opened for us. Immediately, Owolabi, Obiyen, Tunde climbed the fence and jumped inside the compound and they opened the gate, the man?s dog started barking and the dog was shot dead by Tunde. Tunde, Owolabi, Obiyen came out of the house with three handsets and N210.00 rob from the man, the man?s car was also stolen away by us?.
?The learned trial judge concluded that the confessional statements were amply corroborated by the evidence of PW1, PW2 and PW3. His lordship further rightly observed that if the Appellant and his co-accused were honest in their contention that they met each other for the first time at the police station, as against the testimony of PW4 and PW5 and the contents of the confessional statements, they ought to have cross-examined PW4 and PW5 on the point but they did not.
As regards the substantive offence of armed robbery viz a viz the confessional statements, the learned trial judge in his judgment at page 67 of the Record of Appeal observed:
?I have also examined the statement credited to the 1st and 2nd Accused persons Exhibits A and B which the 1st and 2nd Accused persons have retracted. Exhibits A and B contain events which corroborate the evidence of the PW1 and PW2 as to the conduct of the 1st and 2nd Accused persons in the PW1?s house especially as to how they ate, drank, the length of time spent, and the items stolen from PW1, PW2 and PW3 and recovered which are Exhibits in this case namely Exhibit 5.
I wish to quote verbatim certain portions of Exhibit A thus: ?After abandoning, (the vehicle) Tunde removed all the properties robbed including the three guns, we have not trekked up to one pole when a police patrol team from Iperu Division drove pass us and immediately the Police men look back and order us to stop and we started running.?
Also Exhibit A credited to the 1st Accused contain (sic) the following facts:
?When we enter, Doctor and his wife are watching television in the sitting room. Tunde and Owolabi pointed gun to them and we started searching all the rooms in doctor house, one after the other before we left doctor house.?……………….
?The three guns and gold jewelleries and some handset and money are with Tunde, we are five in number that went for the robbery operation on that day in question.?
In Exhibit B, the 2nd Accused stated:
?We also ate cooked eggs, one single barrel was also collected from the old man and Tunde and Owolabi cut the single barrel into small size from there we moved to another house very close to baba house, we knocked the entrance gate nobody opened the gate for us. Our determination that time was to rob one vehicle and ran away from Odogbolu?
?The learned trial Judge having looked at the confessional statement subsequently retracted was satisfied of its truthfulness given the pieces of evidence outside the confessions which corroborated the confessions and showed that the confessions were indeed true. For example, the vehicle taken from PW3 was recovered with the help of the Appellant and his co-accused as stated in their confessional statement and the evidence of PW4 and PW5. After the retraction of the confessions, no explanation was offered by the Appellant as to how the vehicle could have been recovered immediately after the robbery without their help. The argument of Mr. Adeniji that the learned trial judge should have looked outside the confessional statements for other evidence to sustain the conviction is baseless. The learned trial Judge had earlier set out pieces of evidence outside the confessions which corroborate the facts in the confession and confirm the truthfulness of the confessional statements. It must be noted that the initial confessional statements were made by the Appellant and his co-accused on 19/11/07 at Iperu Remo soon after their apprehension on the same day as the robbery in the house of PW3 even before the victims and the Police at Odogbolu knew of their apprehension. It was after the confessions that the DPO now contacted the DPO Odogbolu. The contents of the Statements made at Iperu are substantially the same as the contents of Exhibits A and B. The truth of the confession can therefore be corroborated by the evidence of PW1, PW2 and PW3. In view of the absolutely correct and truthful confession of the Appellant in Exhibit B, no further identification was required and the trial judge was right in convicting the Appellant on the counts of conspiracy to commit armed robbery and armed robbery based on that confessional statement. BUSARI VS. STATE (2015) LPELR-SC.364/2012; HARUNA VS. AG. FEDERATION (2012) 3 SC (PT IV) 40.
On the alibi the Appellant tried to set up, the learned trial judge was right that the evidence of the Appellant?s alibi his wife who testified as DW4 was useless and lacking in substance as her evidence was that she gave birth to twins and when the Appellant was informed, he told her on the phone that he was on his way. She claimed they kept talking on the phone until he was arrested. Clearly the learned trial judge was right in his conclusion that since DW4 was not physically with the Appellant, she had no way of knowing where he was or what he was doing. Her evidence could not therefore corroborate the Appellant?s alibi. More importantly, the alibis were not raised on arrest during investigation in order to give the prosecution the opportunity of investigating the defences. Mr. Adeniji while berating the Police for not investigating the alibi closed his eyes to the fact that the story of alibi came up after the close of the prosecution?s case when the Appellant was giving evidence in the witness box. At that point in time, it was not possible to carry out any investigation. That obviously is why the Appellant did not cross-examine PW4 and PW5 on the matter. In the case of AREMU V STATE (1991) 7 NWLR (PT 201)1 the Supreme Court observed:
?Alibi is a defence that places the accused person at the relevant time of crime in a different place from the scene of the crime and so removed there from as to render it impossible for him to have committed the offence. Being a matter peculiarly within his knowledge the accused has a duty to disclose to the police at the earliest opportunity andbefore the trial begins for it to be investigated. Proffering a defence of alibi for the first time in the witness-box during examination in chief is bad enough; doing so under cross-examination makes it a huge joke, a hoax………?
The Appellant had by his voluntary confession resiled from and now shown to be truthful placed himself at the scene of the crime rendering the alibi completely untenable. The law is indeed trite that conviction of an accused person can be based on his confession alone, provided the confession was voluntary, direct, positive and properly proved. See AKPAN V THE STATE (1990) 7 MWLR (PT. 160) 101 @ 105; EJINIMA V THE STATE (1991) LPELR-1067(SC); SUNDAY V STATE(2017) LPELR-42259(SC).
?The entire circumstances surrounding this case, the manner of apprehension of the Appellant in possession of the items taken from the scene of the robberies, recovery of the stolen vehicle with the help of the Appellant and his co-accused leave no doubt as to the guilt of the Appellant. I agree with learned counsel for the Respondent that the presumption in Section 167 of the Evidence Act is applicable. A man found in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to have been stolen unless he can account for his possession. The Appellant did not deny the fact that Exhibits C ? C2, D – D1, E ? E1, F and G were found in his possession. He failed to account for his possession of the items. There is absolutely no reason to interfere with the judgment of the trial Court. I hold that this appeal is lacking in merit. It is hereby dismissed. The conviction and sentence of the Appellant is affirmed.
HARUNA SIMON TSAMMANI, J.C.A.: I read a draft of the judgment delivered by my learned brother, C. E. Iyizoba, JCA. It is not in doubt that the learned trial Judge relied on the Confessional Statement of the Appellant (Exhibits “B” and “B1”) in convicting the Appellant. It is settled law that the Court can validly convict an accused person on his Confessional Statement alone. Once the statement was been duly tested and proved at the trial, and it is an unambiguous and positive admission of the charge, the Court can proceed to convict thereon without the need for corroboration. See Saliu v. State (2014) 12 NWLR (pt.1420) 65; State v. Isah & Ors (2012) 16 NWLR (pt.1327) 613 and Ubierho v. The State (2005) 5 NWLR (pt.919) 664.
It is where the accused person has recanted or resiled from the Statement that the Court would be required to test the truth and veracity of the Statement by considering if there are other facts adduced at the trial which confirm the truth of the confessions. See Abdu v. State (2016) LPELR- 41461 (SC); Shaibu v. State (2017) LPELR- 42100 (SC) and The State v. Salami (2011) 18 NWLR (pt.1279) 580. In the instant case, the learned trial Judge careful evaluated the Confessional Statement in view of other evidence adduced at the trial and came to the conclusion that the Confessions in Exhibits “B” and “B1” are true. Those findings of the trial Court have not in any way been discredited by this appeal.
Having observed as above and for the other reasons stated in the lead judgment, I agree that this appeal has no merit. It is hereby dismissed. The judgment of the Court below delivered on the 15/02/2012 is accordingly affirmed.
NONYEREM OKORONKWO, J.C.A.: I have read in draft, the lead judgment of my lord Chinwe Eugenia Iyizoba J.C.A. in this appeal whereby my lord concluded that there was no reason to interfere with the judgment of the trial Court.
?Upon my review of the appeal, I am in agreement that no ground was made out to justify any such interference with the judgment of the lower Court.
Accordingly I agree that the appeal be dismissed.
Appearances
F.R. Adeniji, Esq.For Appellant
AND
O.A. Sonoiki, Esq. (Chief State Counsel) with him, T.O. Adeyemi, Esq. (State Counsel) both of Ministry of Justice, Ogun StateFor Respondent
