LAWAL v. STATE
(2020)LCN/14266(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, June 05, 2020
CA/IB/158C/2017
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Tijjani Abubakar Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Between
AFEEZ LAWAL APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT AN ISSUE THAT IS NOT RAISED AND PRONOUNCED UPON BY A TRIAL COURT CANNOT BE VALIDLY RAISED AS A GROUND OF APPEAL BEFORE THE APPELLATE COURT
It is settled law that an issue that was not raised, argued, and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court, without the leave of that Court. Such an issue or argument is rendered incompetent, I hold. See ldufueko v. Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima J.S.C. (lead); Oforishe v Nigerian Gas company Ltd (2018) 2 NWLR Part 1602 page 35 at 57 para F – G per Rhodes-Vivour J.S.C. PER ADEFOPE-OKOJIE, J.C.A.
TESTS TO BE APPLIED IN ATTACHING WEIGHT TO A CONFESSIONAL STATEMENT
For instance, in the case of Dawa v. State (1980) 8 – 11 SC page 236 at 267; Obaseki, J.S.C. (of blessed memory) had this to say on pages 267 – 268:
“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. v. Sykes (1913) 8 Cr. App. R. 233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30 and I regard them as sound and golden.
The questions a judge must ask himself are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.
Since Kanu V. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above.
Among the long line of authorities may be mentioned: (1) The Queen v. Obiasa (1962) 1 All NLR (2) Edet Obosi v. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307 (4) Obue V. The State (1976) 2 SC 141 (5) Jimoh Yesufu v. The State (1976) 6 SC 167 (6) Ebhomien & Ors v. The Queen (1963) 1 All NR 365. PER AKINBAMI, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State, Abeokuta Judicial Division, delivered by Hon. Justice A. A Akinyemi on 15/7/2015, convicting the Appellant on a three-count charge of conspiracy to commit armed robbery, unlawful possession of firearms and unlawful possession of ammunition. He was sentenced to death on the first count and ten years each on the 2nd and 3rd counts, to run concurrently.
In proof of its case, the prosecution called 5 witnesses and tendered 9 (nine) exhibits, while the accused persons gave evidence in their defence.
Aggrieved by his conviction and sentence, the Appellant, with leave of this Court granted on 21/2/2017, appealed against the judgment, filing a five ground Notice of Appeal on 27/2/2017.
In prosecution of the appeal, the Appellant’s Counsel, Ikenna Okoli FCIArb of IOL Associates, in a Brief of Arguments filed on 9/6/2017 formulated two issues for the Court’s determination, namely:
1. Whether there was a valid trial in the circumstances of this case?
2. Whether the trial Court was right in
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convicting the Appellant of the offences for which he was charged?
The Respondent’s Counsel, Oluwakemi Lawal, Chief State Counsel of the Ministry of Justice of Ogun State, filed the Respondent’s Brief of Arguments on 23/11/2018 but deemed by this Court as properly filed on 29/1/2020, formulating therein two issues for this Court’s determination, namely:
1. Whether there was a valid trial in the circumstances of this case?
2. Whether the prosecution proved its case beyond reasonable doubt to warrant a conviction of the appellant of the offences with which he was charged.
Both issues raised by the parties are the same, I note and shall be accordingly adopted, being:
1. Whether or not there was a valid trial in the circumstances of this case?
2. Whether the prosecution proved its case beyond reasonable doubt to warrant a conviction of the Appellant of the offences with which he was charged.
THE 1ST ISSUE FOR DETERMINATION:
Whether there was a valid trial in the circumstances of this case?
Arguing this issue, the learned Counsel to the Appellant, in the Appellant’s Brief, has submitted that the trial commenced on 12/2/14 without the Appellant and his co-accused having been arraigned first.
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Citing the case of Tobby v State (2001) 10 NWLR part 720 page 23 at 31, he set out the requirements of a valid arraignment, arguing that in the instant case, the charge was neither read nor explained to the Appellant and he was not called to plead to any charge. Referring also to the cases of Barmo v The State (2000) 1 NWLR Part 641 page 424 at 437-438 para G – A and Ogudo v State (2011) 18 NWLR Part 1278 Page 1, he submitted that not only was no charge read to the Appellant before the commencement of trial, the Respondent, on 9/5/13 and 12/2/14, applied to have the names of the 4th and 5th accused persons struck off the charge, which was done, arguing that the charge was neither consequentially amended nor read to the Appellant. The Appellant did not therefore know or understand the charge for which he was being tried. There was thus no valid trial, he submitted.
The Chief State Counsel, Oluwakemi Lawal, in her response, citing the case of Edem Udo v State (2006) 12 SCM Part 1 at Page 275 at 281 on the requirements of a valid arraignment, submitted as settled law that a charge may be amended at any time before judgment. She agreed that the motion to
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amend the charge in the instant case was moved and granted on 16/4/15 but submitted that the pleas of the co-accused persons were taken.
Citing Section 165 of the Criminal Procedure Law, Laws of Ogun State on the procedure when a charge is amended, she submitted that after the charge was amended and read to the Appellant in the language he understands, the Appellant had the opportunity to recall or re-summon any witness, which he did not do. She further submitted that by pleading to the charge on 16/4/15, he was fully aware of the charge he was facing and was thus given fair hearing.
As submitted by the Appellant’s Counsel, for an arraignment to be valid, it must contain the following:
a. the accused must be placed before the Court unfettered unless the Court shall see cause otherwise to order;
b. the charge or information must be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; and
c. It must be read and explained to him in the language he understands;
d. the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise
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such as objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith.
See Tobby v State (2001) 10 NWLR Part 720 Page 23 at 31 per Ogwuegbu J.S.C.; Lufadeju v. Johnson (2007) 8 NWLR Part 1037 Page 535 per Mukhtar J.S.C. (as he then was).
In the instant case, the initial arraignment of the Appellant and other accused persons is not captured in the record of the Court. The Records however show at Pages 48 and 51, that the prosecution withdrew its charges against the 4th accused and the 5th accused persons on the 9th May 2013 and 12th February 2014 respectively, in consequence of which their names were struck out by the lower Court.
The Principal State Counsel, Mrs. O. A. Lawal, appearing for the prosecution at the latter fixture on 12th February 2014, thence intimated the Court as follows:
“We will amend the charge later. I am prepared to open the case now”
The prosecution thus opened, calling five witnesses and tendering 12 exhibits while the three accused persons gave evidence in their defence. The defence closed on 29/4/14
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and the case was adjourned for adoption of written addresses.
In the interim, the prosecution filed a Motion on Notice on 31/3/15, contained at Page 90 of the Record, seeking “to amend Counts 2 and 3 of the Information Paper by charging the accused persons under the Robbery and Firearms Act instead of the Firearms Act and deeming the already filed and served information paper as being properly filed and served”, giving as the reason, the inadvertence of Counsel who preferred the charge as wrongly stating “Firearms Act” instead of “Robbery and Firearms Act”. Underlining Mine
The duly amended charges, which the prosecution wanted the Court to deem as properly filed and served was attached. (Pages 93 – 94 of Record).
At the hearing of the application on 16/4/15, the proceedings went thus:
“Court
Lawal: Moves Motion on Notice dated 31/3/15 for leave to amend Counts 2 and 3 of the Information by charging the accused under the Robbery and Firearms Act instead of the Firearms Act. Moves in terms.
Aremu: Not opposing
Court: Order as prayed.
Lawal: Asks that the plea of the Accused
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persons be taken to the amended charge
Court: Registrar please take the plea of the accused persons to the Amended Charge
Registrar: asks the accused person what language they understand. Each of them says he understands Yoruba language. Registrar reads and explains each count to the accused persons in Yoruba language. They plead as follows:
Count 1: They each say they understand the charge.
1st Accused pleads Not Guilty
2nd Accused pleads Not Guilty
3rd Accused pleads Not Guilty
Count 2: Each accused says he understands the charge and pleads:
1st Accused Not Guilty
2nd Accused Not Guilty
Count 3: 1st Accused says he understands charge and pleads Not Guilty
2nd Accused understands charge pleads Not Guilty
Aremu: Refers to Motion on Notice dated 10/11/14 to extend time to file address and to deem. Moves in terms.
Lawal: Not opposing
Court: Order as prayed.
Aremu: Adopts Final Written Address for the Accused persons dated 10th November 2014 and urges the Court to discharge and acquit all the accused persons.
Lawal: Adopts Final Written Address filed on 31/3/15. Urges
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the Court to correct (sic) the accused persons as charged.
Court: Judgment fixed for Monday 15th June 2015”
Underlining Mine
Even though there is no record of the first set of charges and the plea, it is clear from the records that the new set of charges, as described, were amended charges, making it clear that there were former charges.
It is also patent from the proceedings above that the amended charges were read over to the Appellant and explained to him in a language he said he understands.
The Appellant’s Counsel at the lower Court, Mrs. Aremu, as is clear from the proceedings above, did not object to the propriety of the proceedings, connoting that the proceedings were regular and not prejudicial to her client.
I agree with the Chief State Counsel that the failure of the Appellant’s Counsel to seek the recall of any of the witnesses or to seek to further cross-examine them is indicative of the defence Counsel’s satisfaction with the procedure and, as aforesaid, not prejudicial to her clients.
It has not been contended by the Appellant’s Counsel that the Appellant was fettered. There has thus been substantial
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compliance with the conditions for a valid arraignment, I hold.
Indeed, and most importantly, this issue was not raised before the lower Court by the Defence Counsel, which Court would have immediately reverted to its records to determine the contention. This was not done. It is settled law that an issue that was not raised, argued, and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court, without the leave of that Court. Such an issue or argument is rendered incompetent, I hold. See ldufueko v. Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima J.S.C. (lead); Oforishe v Nigerian Gas company Ltd (2018) 2 NWLR Part 1602 page 35 at 57 para F – G per Rhodes-Vivour J.S.C.
I consequently hold this issue to be incompetent. Nevertheless, in determining this issue on the merits, I hold, from the proceedings before the trial Court, that there was a valid trial at the lower Court and accordingly resolve the issue for determination against the Appellant
The 2nd issue for determination is:
Whether the prosecution proved its
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case beyond reasonable doubt to warrant the conviction of the Appellant of the offences with which he was charged?
The facts of the case as presented by the prosecution witnesses are that on the 19th December 2009 at about 18.30 hours, PW1, CSP Adebowale Lawal, who was the DPO Ewekoro, while on patrol, leading a team of policemen including PW2 Inspector Olatunji Adebanjo, along the Lagos-Abeokuta Road, sighted two men on an unregistered Bajaj motorcycle being driven by the 1st accused, with the Appellant at the back holding on to a black bag. PW1 and his team tried to stop them but they refused to polythene bag, refusing to let it go when requested to release same, to stop. They pursued them. At Lapeleke Junction, the duo ran into a trailer that was trying to make a U-Turn, thereby sustaining injuries. PW1 and members of his team took the Appellant and the 1st Accused to the Itori General Hospital for treatment. The Appellant, however, held on fast to the polythene bag, refusing to let it go when requested to release same, to allow for him to be treated of his injuries, claiming that there was money inside with which he intended to buy goods from Cotonou.
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The bag was, however retrieved from him by the Police, only for them to find 4 (four) locally made pistols and 27 (twenty-seven) live cartridges in the bag.
After the treatment, both accused were arrested and taken to Ewekoro Police Station, Itori. PW2 recorded the statement of the Appellant, following words of caution. Since it was an offence of armed robbery and beyond the divisional level, the case was transferred to the State CID, together with the guns and live cartridges.
PW2 tendered in evidence, without objection from the defence, the four guns, as Exhibits “A-A4” and the cartridges as Exhibit “A5”. Also, tendered by this witness, without objection from the defence, is the confessional statement of the Appellant, Exhibit “B”.
Inspector Isiaka Abanikanda testifying as PW3, attached to the Anti- Robbery Section, State CID Eleweran, Abeokuta, stated that the case was transferred to them. He re-arrested the 1st Accused and Appellant. He charged and cautioned them and they volunteered their statements in English language, which was recorded by him (PW3). It was read over to them, and they signed it as correct and he countersigned as the
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recorder.
In view of its confessional nature, he took them to his superior, ASP Sola King for endorsement. He tendered the statement of the Appellant as Exhibit D.
The witness also testified of their arrest of the accused in Abeokuta, with the assistance of the Accused, who the Accused claimed that they were to meet in the execution of the job.
PW4, ASP Sola King confirmed that the confessional statements of 1st Accused and the Appellant were brought before him and that after they admitted its voluntariness, he endorsed them.
The evidence of PW5, Inspector Sulaimon Ojediran, attached to the Anti-Robbery Section at State CID, Abeokuta is that following the confession of the Appellant and the Accused as to ownership of the guns and cartridges, and their confession that they bought them from an old woman, the woman was arrested, her home searched and live cartridges also recovered. She also was arrested.
The accused persons denied the offence. The Appellant, in his evidence in Court stated that he hired the 1st Accused to convey him to Ewekoro to repair the vehicle of a client. He denied that his bag contained ammunition,
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claiming that it contained mechanic tools. He also denied making any statements to the Police, as he could hardly speak, due to his injuries. He claimed he could not read or write, stating however that he was asked a few questions which he answered.
In both statements made by the Appellant at Ewekoro Police Station and at the State CID, Exhibits B and D respectively, the Appellant stated that the 1st Accused, his friend, came to pick him up from Abule-Osun on his unregistered Bajaj Motorcycle to go to Egba in Abeokuta to meet up with his friend in order to go to rob someone. On the way to pick up the friend, they had an accident. Their bag was searched and four (4) locally made pistols were found on them, together with cartridges, some charms and two Nokia phones. He mentioned various occasions where they had carried out robbery operations and the various amounts realized. He gave information of a prior case of armed robbery when he was remanded at the Ikoyi Prisons and only just released recently.
The trial Judge, following a review of the evidence of both the prosecution and defence witnesses, found the statements made by the Appellant to be
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confessional and that outside these confessional statements, the evidence of PW1 and PW2, who arrested him together with the firearms was “credible, cogent and convincing and uncontradicted… l believe and accept their evidence as true”
The trial Judge held that in acknowledging the desirability of having outside these confessions some corroborative evidence, no matter how slight, of circumstances which make it probable that the confession is true and correct, the evidence of PW1 and 2 provided this corroboration. He held that the contents of the confessional statements were positive and a direct and unequivocal admission of guilt.
Learned Counsel to the Appellant has submitted that the Respondent did not prove the offences against the Appellant beyond a reasonable doubt. He pointed out that the Appellant agreed that he was with a bag but that the bag contained mechanic tools, which includes spanners, working cloth and an ID card and not firearms. He argued that the trial Court placed much reliance on the purported confessional statements of the Appellant, Exhibits B and D, in finding him guilty for the offences. He submitted however that the
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Appellant denied making any statement at Ewekoro, though admitting that he made one at Eleweran but that he does not know how to read and write. Exhibit B, he said, has no cautionary, statement, was not dated, with no indication of what language it was recorded in and who was the recorder. It is also obvious from the proceedings, he said, that the Appellant is illiterate and can only speak Yoruba language. Without these confessional statements, there is no reliable evidence to have convicted the Appellant, he submitted. There was no evidence, he also said, to prove the offences for which he was charged beyond reasonable doubt. He cited the cases of Julius Bayade Ayeni v State (2011) LPELR- 4380 (CA) and Oghenevweren Stanley Ogisugo v State (2015) LPELR- 24544 (CA) in which reliance was placed on Okeke v State (1999) 2 NWLR part 590 page 249.
The Chief State Counsel cited the case of Kolawole v State (2015) All FWLR Part 788 Page 564 on the definition of conspiracy, submitting that a conviction on it is usually founded on circumstantial evidence, for which a trial Court can infer from facts and conduct, a common purpose. In the instant case, she
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submitted, the evidence of conspiracy is founded upon the confessional statements of the Appellant and circumstantial evidence. She further submitted that where a confessional statement is tendered without objection as to voluntariness, such confession is deemed to have been voluntarily made. Retraction of the statement by the accused persons during their testimonies in their defence, will not vitiate the confession. She cited Olabode v State (2009) 11 NWLR Part 1152 Page 254, Nwachukwu v State (2002) 12 NWLR Part 782 Page 32, Akpa v State 85 CM (2008) Page 68.
A confession, Counsel again submitted, is the strongest evidence of guilt of the accused and is even stronger than the evidence of an eye-witness. In addition, the testimony of PW3 is strong circumstantial evidence upon which the Appellant and his co-accused were convicted for the offences of conspiracy and possession of arms and ammunition.
The charges upon which the Appellant and his co-accused were arraigned were on three counts. The first count was for conspiracy to commit armed robbery, contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria 2004
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The 2nd and 3rd counts, as aforesaid, were for unlawful possession of firearms, being four locally made guns and 27 (twenty-seven) cartridges contrary to Section 3 of the said Act.
As aforesaid, the offences for which the Appellant was convicted are conspiracy to commit armed robbery and possession of firearms.
The offence of armed robbery is defined in Section 1 of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation 2004 as follows:
SECTION 1
1. Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
2. If –
A. any offender mentioned in subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or
B. at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.
Section 6 of the said Act provides
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as follows:
“Any person who
A. aids, counsels, abets or procures any person to commit an offence under Section 1, 2, 3 or 4 of this Act; or
B. conspires with any person to commit such an offence; or
C. supplies, procures or provides any person with firearms for use to commit an offence under Section 1 or 2 of this Act, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.”
Section 3 of the said Act provides:
“Any person having a firearm in his possession or under his control in contravention of the Firearms Act or any order made thereunder shall be guilty of an offence under this Act and shall upon conviction under this Act be sentenced to a fine of twenty thousand naira or to imprisonment for a period of not less than ten years, or to both.”
The Supreme Court in the case of Kayode v State (2016) 7 NWLR (Pt. 1511) 199; (2016) LPELR-40028 per Ariwoola J.S.C. defined conspiracy as:
“… an agreement between two or more persons to
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do an unlawful act or to do a lawful act by unlawful means. It is ordinarily a matter of inference, deduced from certain criminal acts of an apparent criminal purpose common between them.”
As acknowledged by His Lordship Ariwoola J.S.C. in that case:
“Conspiracy has been held to be an offence which is difficult to prove by direct evidence as it is often hatched in secrecy, However, circumstantial evidence and inference from certain proved facts are enough to ground conviction for the offence….Therefore, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence, in itself, independent of the actual offence conspired to commit.”
It was also held in Olakunle v State (2018) 6 NWLR Part 1614 page 91 at 109 para B – C per Eko J.S.C. that:
”Conspiracy can be inferred from the acts of the accused where there is no direct evidence of an agreement between the accused. The law, from a long line of cases is settled that from the acts of the accused where there is no direct evidence between the accused and
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another criminal conspiracy can be inferred. It is the law, from a number of cases, that from the acts or manner the accused persons were doing things towards actualizing a common end it can be inferred or deduced that they did so in furtherance of their conspiratorial agreement to commit the alleged offence”.
As submitted by the Chief State Counsel, a confessional statement, properly proved is the best form of evidence against an accused person.
In Essien v State (2018) 6 NWLR part 1614 page 167 at 174 para B – C, the Supreme Court, per M.D. Muhammad J.S.C. held as follows:
”….by virtue of a chain of decisions of this Court, see R V Sykes (supra) Dawa v. State (supra) and Ikpasa v. State (supra), it is desirable to base the appellant’s conviction on further evidence outside his confession, the requirement for such corroborative evidence is however not mandatory. The principle still is that the Court, where the confession is direct, positive and unequivocal and is properly proved, may convict an accused solely on such a confession. As learned respondent’s counsel rightly submitted, there is no evidence stronger than a person’s admission of
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the state of affairs”
See also Olakunle v State Supra at Page 113 Para G per Ogunbiyi J.S.C.
In the instant case, I agree with the Appellant’s Counsel that Exhibit B taken at Ewekoro Police Station, though signed by the Appellant, was not dated or signed by the Recorder, PW2. I shall thus ascribe no value to it.
Exhibit D, taken at the State CID, however, not only contains the signed words of caution but is also signed by the Appellant as well as by the recorder, PW3, Inspector Isiaka Abanikanda. It is also endorsed by ASP King (PW5), who gave evidence of his interview of the Appellant and 1st Accused and his endorsement, following their confirmation of their confessions.
Exhibit D was thus properly proved. It was also admitted in evidence without objection. Its retraction by the Appellant in Court, does not vitiate the confession, I hold, as when a statement is tendered without objection, it is deemed to have been voluntarily made. See Olabode v State (2009) 11 NWLR Part 1152 Page 254 (2009) LPELR- 2542 (SC) Page 22 – 23 Para E – F per Tabai J.S.C.
The subsequent retraction of a confession does not mean that
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the Court cannot act on it and convict accordingly as the circumstances of the case justify, as held in Nwachukwu v State (2002) 12 NWLR Part 782 Page 32 (2002) LPELR-2084(SC) (P.32, Para A – B, per Iguh J.S.C.
Thus, even though, by law, the Appellant’s statement, having been properly proved can be relied upon solely in convicting the Appellant, the statement, as rightly held by the lower Court, was corroborated by the cogent and compelling testimonies of PW1 and PW2.
The case of the prosecution, I hold, was proved beyond reasonable doubt and the Appellant was rightly convicted and sentenced by the lower Court. I again, resolve the 2nd issue for determination against the Appellant.
Having resolved both issues against the Appellant, this appeal fails and is accordingly dismissed. The conviction and sentence of the Appellant by the lower Court are consequently affirmed.
FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance the judgment delivered by my learned brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. His Lordship has dealt exhaustively with the issues in this appeal and I agree completely with the reasoning and
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conclusions reached therein.
Though there was no eye-witness to the commission of the offence by the appellant, his statement to the Police, which is Confessional, can ground conviction as found and held by the learned Judge of the lower Court. That a conviction for the commission of an offence can be sustained on a confession by an accused person is settled by the Apex Court, and this Court in a litany of decisions over the years. In the determination of whether to attach any weight to the statement made by an accused person which has been retracted or not, the Courts, through a plethora of decisions have laid down the tests to be applied or followed. For instance, in the case of Dawa v. State (1980) 8 – 11 SC page 236 at 267; Obaseki, J.S.C. (of blessed memory) had this to say on pages 267 – 268:
“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. v. Sykes (1913) 8 Cr. App. R. 233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30 and I regard them as sound and golden.
The questions a judge
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must ask himself are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.
Since Kanu V. The King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confessional statement alone properly taken, tendered, and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 tests enumerated above.
Among the long line of authorities may be mentioned: (1) The Queen v. Obiasa
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(1962) 1 All NLR (2) Edet Obosi v. The State (1965) NMLR 119 (3) Paul Onochie & 7 Ors. v. The Republic (1966) NMLR 307 (4) Obue V. The State (1976) 2 SC 141 (5) Jimoh Yesufu v. The State (1976) 6 SC 167 (6) Ebhomien & Ors v. The Queen (1963) 1 All NR 365.
It is for this, and the fuller adumbration of the principles of law by my noble Lord, Oludotun Adebola Adefope- Okojie, contained in the lead judgment, that I also find this appeal unmeritorious and it is accordingly dismissed by me. I equally affirm the Judgment of the trial Court.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading in draft the leading judgment prepared and rendered in this Appeal by my lord and learned brother, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. I am in complete agreement with the entire reason and conclusion and held that the Appeal by the Appellant is lacking in a jot of merit, it is frivolous and vexatious and therefore deserves to be dismissed, it is hereby dismissed. The judgment of the lower Court delivered on the 15th day of July, 2015 by AKINYEMI J. in charge No. AB/9R/2012 is also affirmed by me.
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Appearances:
IKENNA OKOLI, FCIArb For Appellant(s)
OLUWAKEMI LAWAL
CHIEF STATE COUNSEL, MINISTRY OF JUSTICE, OKE MOSAN, ABEOKUTA. For Respondent(s)