MATTHEW v. STATE
(2022)LCN/17077(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/IB/361C/2020
Before Our Lordships:
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
IDOWU MATTHEW APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT A PERSON CAN BE CONVICTED OF A CRIMINAL OFFENCE THAT IS NOT DEFINED AND HAS NO PENALTY PRESCRIBED IN A WRITTEN LAW
The central argument of the Appellant under this issue is that the offence of conspiracy to commit armed robbery for which he was convicted by the trial Court was not defined as required by Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN). Section 36(12) of the CFRN relied upon by the Appellant provides:
Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.
In interpreting Section 33(8) of the 1979 Constitution, which is in pari materia with the above quoted Section 36(12) of the CFRN, the Supreme Court, per Karibi-Whyte, JSC held in SELE v STATE (1993) LPELR-3030(SC), that:
“It is a cardinal principle of our concept of criminality, and which is protected by our Constitution, that a person can only be charged with and convicted for an offence recognised by the law and in existence at the time the act alleged was committed – See S.33(8) of the Constitution 1979. This is the hallowed and sacred principle of legality. It is because of its importance and high public policy that the legislative jurisdiction of the legislature is also excluded from having retrospective effect in relation to any criminal offence whatsoever. (page 18 para. A).” PER MOHAMMED, J.C.A
THE POSITION OF LAW ON WHEN AN OFFENCE IS SAID TO BE AN OFFENCE
In essence, what Section 36(12) of CFRN stipulates is that an offence is only an offence if it is so provided in a written law and its penalty also so prescribed, and no one shall be convicted of an offence which is not provided for and its penalty not prescribed in a written law. By the established judicial authorities, the requirement for the legal provision of an offence in a written law before a person can be tried and convicted for it, will be generally satisfied where the act or omission which constitutes the offence is made an offence and a penalty for its commission or omission is provided in a written law.
It is however pertinent to point out that ordinary English words are used in stating the nomenclature of the act or omission which is made an offence. For instance, the word “conspiracy” is actually a noun for the verb “conspire” which means to agree to do something or forbear from doing something. It is, in essence, an agreement to undertake a course of action or to refrain from acting. Thus, in criminal law jurisprudence, it can only mean an agreement to commit a crime (whether by act or by omission).
In STATE v YUSUF & ANOR (2006) LPELR-11802(CA), this Court, per Ngwuta, JCA (as he then was) had observed that even as the offence of conspiracy had been provided for in the Criminal Code, neither the Criminal Code nor the Criminal Procedure Law, has defined conspiracy, and that in the case of MAJEKODUNMI v R (1952) 14 WACA 64, the West African Court of Appeal had to apply the definition of conspiracy made by Willes, J. in Mulcahy v. R (1868) L.R. 3 H.L. 306 at 317, thus: “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself … punishable if for a criminal object or for the use of criminal means.” PER MOHAMMED, J.C.A.
WHETHER OR NOT FAILURE BY A PARTY TO RAISE OBJECTION TO ADMISSIBILITY OF A DOCUMENT AT TRIAL WILL BAR THE PARTY FROM RAISING SUCH OBJECTION ON APPEAL
Although, it is generally trite that failure by a party to raise objection to admissibility of a document at trial will bar the party from raising such objection on appeal, the exception is that such objection can be raised where the document is by law inadmissible in any event. See: JOHN & ANOR v STATE (2011) LPELR-8152(SC), per Muhktar, JSC at page 17–19, pars. F; and JOHN v STATE (2017) LPELR-48039(SC), per Muhammad, JSC at pages 54–55, para. E.
Now, it is settled that an unsigned document is legally worthless and void, and same may not be inadmissible in evidence. This point was made by Tobi, JSC in OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) LPELR-2636(SC), when he held that:
“Let me first take the issue of signing a document. In Ojo v. Adejobi (supra) cited by learned Counsel for the appellant, the Court said at page 165: “The Court cannot in any event ex debite justitiae, ignore a situation in which the foundation of a claim to a preparatory legal interest are based on a worthless, unsigned and inadmissible document.” In AG Abia State v. Agharanya (supra) also cited by learned counsel for the appellant, the Court said at page 371: “It is well settled that an unsigned document is worthless and void.” Learned Counsel for the respondent tried to distinguish the above cases from the present one. With respect, he did not succeed. It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker. In view of the fact that the two makers or writers of exhibit P6 did not sign the exhibit, it was not available to the two Courts to attach probative value on it.”
See also: MAKU v AL-MAKURA & ORS (2016) LPELR-48123(SC), per Onnoghen, JSC at pages 24 – 25, para. A. PER MOHAMMED, J.C.A.
WHETHER OR NOT THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON IS ONLY EVIDENCE AGAINST HIM
It is settled law that a confessional statement of an accused person is only evidence against him. It cannot be evidence against other accused person(s). In other words, the confessional statement of an accused person implicating another accused person is only deemed to be relevant for the person who made it. It cannot be used as evidence against that other accused person unless he adopts it. See: Section 29(4) of the Evidence Act, 2011 and the cases of GBADAMOSI & ANOR v STATE (1992) LPELR-1313(SC), per Ogundare, JSC at page 29, para. D; IBRAHIM v STATE (2014) LPELR-23291(CA), per Galinje, JCA at pages 26–27, para. D; EMMANUEL v STATE (2015) LPELR-41676(CA), per Gumel, JCA at page 33 para. C; and AHMED v KANO STATE (2017) LPELR-43224(CA), per Daniel-Kalio, JCA at pages 14–15, para. C. PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The Appellant herein was arraigned as 4th defendant along with 5 other defendants before the High Court of Ogun State in a five count Charge for the offences of conspiracy to commit armed robbery and armed robbery, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004. At the end of the trial, the Appellant was convicted of conspiracy to commit armed robbery and armed robbery as charged in counts 1, 2 and 3 by the trial Court and sentenced to death by hanging. The judgment of the trial Court delivered on 24th August, 2020 is at pages 85–133 of the Record of Appeal.
Dissatisfied with the said judgment of the trial Court, the Appellant has appealed to this Court vide a Notice of Appeal filed on 11th September, 2020. The Notice of Appeal is at pages 136–137 of the Record of Appeal. However, the extant Notice of Appeal is the Amended Notice of Appeal filed on 30th March, 2021 and deemed properly filed by this Court on 2nd of November, 2021. The Record of Appeal was duly transmitted to this Court on the 27th of October, 2020. The Appellant’s Brief of Argument which was filed on the 30th of March, 2021 was similarly deemed properly filed on the 2nd of November, 2021.
The record of this Court shows that the Respondent who was served with the Appellant’s Brief of Argument since the 1st of April, 2021 did not file any Brief of Argument in response to the appeal. Again, on the 20th of January, 2022 when the appeal came up for hearing, the Respondent who was duly served with a hard copy of hearing notice on the 11th of January, 2022, through the Office of the Hon. Attorney-General of Ogun State was absent. The learned Counsel for the Appellant, who had earlier filed an application under the old Court of Appeal Rules, 2016 praying the Court to hear the appeal on the Appellant’s Brief alone, withdrew the application and urged the Court to invoke its powers under the new Court of Appeal Rules, 2021 and proceed to hear the appeal on the Appellant’s Brief alone. Thereupon, this Court invoked Order 19, Rule 10(3) of the new Court of Appeal Rules, 2021 and proceeded to hear the appeal on the Appellant’s Brief of Argument alone.
In the Appellant’s Brief of Argument adopted by R. U. Ezeani Esq, the following four issues were distilled for determination:
1. Was it lawful to convict the Appellant of conspiracy to commit armed robbery when the offence is not defined in a written law? (Ground 14)
2. Was the learned trial Judge right to admit and rely on the unsigned extrajudicial statements, Exhibits E, F & G1? (Grounds 2, 6 & 16)
3. Was it not wrong of the learned trial Judge to hold that the Appellant adopted the purported confessional statements of his co-accused and that the Appellant is guilty of the offences charged? (Grounds 1, 3, 4, 5, 9, 10, 11, 12, 15 & 17)
4. Was the alibi raised by the Appellant investigated or considered by the learned trial Judge? (Grounds 7, 8 & 13).
Since there is no Respondent’s brief, I shall decide the appeal based on the above four issues raised by the Appellant.
ISSUE ONE:
Was it lawful to convict the Appellant of conspiracy to commit armed robbery when the offence is not defined in a written law?
SUBMISSIONS OF THE APPELLANT ON ISSUE 1:
Learned Counsel for the Appellant had submitted that Count 1 of the Information charged the Appellant with the offence of conspiracy to commit armed robbery punishable under S. 1(2)(a) & (b) of the Robbery and Firearms (Special Provisions) Act. He argued that the Act did not define the offence of conspiracy but the Appellant was convicted nevertheless. He submitted that the only provision of the Act that refers to or mentions conspiracy is Section 6(b) of the Robbery & Firearms Act. He further stated that the ingredients of the offence are thus unknown and that the Constitution prohibits conviction for an offence not defined in a written law. He cited Section 36(12) of the 1999 Constitution as amended. He stated that the failure to define conspiracy or ‘to conspire’ may be contrasted with the treatment of the offence of armed robbery which is well and clearly defined in the said Act under Sections 1 and 11 of the Robbery and Firearms (Special Provisions) Act.
In concluding the arguments on this issue, Counsel relied on the case of HARUNA v THE STATE (1972) 8–9 SC 174 at 200–201, wherein the definition of conspiracy under the English common law was adopted.
He contended that since Section 36(12) of the Constitution forbids the trial of any person for an offence not defined in a written law and Section 1(1), (3) of the same Constitution makes null and void any law which is contrary to the Constitution, this Court should hold the provision purporting to create the offence of conspiracy to commit armed robbery as void and set aside the conviction of the Appellant and acquit him of the said offence. He relied on AOKO v FAGBEMI (1961) All NLR 400. He urged the Court to resolve this issue in favour of the Appellant.
RESOLUTION OF ISSUE 1:
The central argument of the Appellant under this issue is that the offence of conspiracy to commit armed robbery for which he was convicted by the trial Court was not defined as required by Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN). Section 36(12) of the CFRN relied upon by the Appellant provides:
Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.
In interpreting Section 33(8) of the 1979 Constitution, which is in pari materia with the above quoted Section 36(12) of the CFRN, the Supreme Court, per Karibi-Whyte, JSC held in SELE v STATE (1993) LPELR-3030(SC), that:
“It is a cardinal principle of our concept of criminality, and which is protected by our Constitution, that a person can only be charged with and convicted for an offence recognised by the law and in existence at the time the act alleged was committed – See S.33(8) of the Constitution 1979. This is the hallowed and sacred principle of legality. It is because of its importance and high public policy that the legislative jurisdiction of the legislature is also excluded from having retrospective effect in relation to any criminal offence whatsoever. (page 18 para. A).”
In essence, what Section 36(12) of CFRN stipulates is that an offence is only an offence if it is so provided in a written law and its penalty also so prescribed, and no one shall be convicted of an offence which is not provided for and its penalty not prescribed in a written law. By the established judicial authorities, the requirement for the legal provision of an offence in a written law before a person can be tried and convicted for it, will be generally satisfied where the act or omission which constitutes the offence is made an offence and a penalty for its commission or omission is provided in a written law.
It is however pertinent to point out that ordinary English words are used in stating the nomenclature of the act or omission which is made an offence. For instance, the word “conspiracy” is actually a noun for the verb “conspire” which means to agree to do something or forbear from doing something. It is, in essence, an agreement to undertake a course of action or to refrain from acting. Thus, in criminal law jurisprudence, it can only mean an agreement to commit a crime (whether by act or by omission).
In STATE v YUSUF & ANOR (2006) LPELR-11802(CA), this Court, per Ngwuta, JCA (as he then was) had observed that even as the offence of conspiracy had been provided for in the Criminal Code, neither the Criminal Code nor the Criminal Procedure Law, has defined conspiracy, and that in the case of MAJEKODUNMI v R (1952) 14 WACA 64, the West African Court of Appeal had to apply the definition of conspiracy made by Willes, J. in Mulcahy v. R (1868) L.R. 3 H.L. 306 at 317, thus: “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself … punishable if for a criminal object or for the use of criminal means.”
Although the Criminal Code has only criminalized conspiracy in Section 516 but has failed to define same, the Penal Code has in Section 96(1) provided that “when two or more individuals agree to commit or cause to be committed (a) an unlawful act, or (b) a lawful act through an unlawful means; such an arrangement is referred to as a criminal conspiracy. Thus, contrary to the assertion of the learned Counsel for the Appellant in paragraph 4.6 of the Appellant’s Brief of Argument that there is no definition of conspiracy in any written law in Nigeria, the word “criminal conspiracy” has been defined in the Penal Code Law as shown above.
Now, in KAZA v THE STATE (2008) LPELR-1683(SC), the Supreme Court, per Tobi, JSC had while considering the definition of conspiracy, referred to Black’s Law Dictionary and held as follows:
Black’s Law Dictionary defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful. See Black’s Law Dictionary (Sixth edition) page 309. This most comprehensive definition says it all. The bottom line of the offence is the execution of an unlawful purpose by an unlawful means. And that unlawful purpose is the criminality involved. While the words “combination” and “confederacy” may in general parlance generally convey the same meaning with conspiracy, the latter parts ways with the former in one basic respect and it is the doing of an unlawful or an illegal act. While I concede that the unlawful or illegal nature of an act could also be found in combination and confederacy, that is better reserved to conspiracy in criminal law, as an agreement between two or more persons to behave in a manner that will invariably or automatically constitute the commission of an offence by two persons or by at least one of them. The offence of conspiracy can only be committed if there is a meeting of two or more minds. The offence cannot be committed by one person because that person cannot be convicted as a conspirator, the meaning of which is one involved in a conspiracy.”
In essence, the offence of conspiracy in our criminal jurisprudence has come to be legally defined as an agreement by two or more persons to do an unlawful act, or a lawful act by unlawful means: ADEPOJU v STATE (2018) LPELR-44355(SC), per Eko, JSC at pages 7–8, para. E; SMART v STATE (2016) LPELR-40827(SC), per 27–28, para. F; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Peter-Odili, JSC at pages 28–29, para. G; and WISDOM & ANOR v STATE (2013) LPELR-21451(CA), per Dongban-Mensem, JCA (as he then was, now PCA), at pages 20–21, paras. C.
On the specific offence of conspiracy to commit armed robbery for which the Appellant was convicted, the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria has provided in Sections 1–5 the offences and penalties for robbery, attempted robbery, illegal possession of firearms, sheltering and treating armed robber and receiving property obtained by means of any of the offences created under the Act. The Act then proceeds to provide in Section 6(a), (b) and (c), the offences and punishment for aiding, abetting or procuring the commission of any of those offences; conspiring to commit any of those offences; or supplying, procuring or providing any person with firearms for use in committing any of those offences. Specifically, paragraph (b) of Section 6 states that:
Any person who –
(a) …
(b) conspires with any person to commit such an offence; or
(c) …
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.
It is therefore clearly discernible from the above provision and the judicial authorities cited supra, that the offence of conspiracy to commit armed robbery has been duly provided for in Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, LFN, 2004. As I said earlier, all that is required to satisfy the stipulation in Section 36(12) of the Constitution which is relied upon by the Appellant is for the written law to stipulate the act or omission as an offence and prescribe a penalty for it. The literal definition of the nomenclature of the act or omission which was made an offence may not necessarily be provided in the law, and that failure, in my considered view, does not make or render the offence created under the law inconsistent with the provision of Section 36(12) of the Constitution.
Given the trite legal position on the definition of conspiracy as contained in numerous judicial decisions of the appellate Courts, some of which I have cited above, I find the contention of the Appellant under this issue grossly misconceived; one which did not take cognizance of the state of the law relating to the offence of conspiracy. I therefore, have no hesitation in resolving this issue against the Appellant. It is hereby so resolved.
ISSUE 2:
Was the learned trial Judge right to admit and rely on the unsigned extrajudicial statements, Exhibits E, F & G1?
SUBMISSIONS OF THE APPELLANT ON ISSUE 2:
On this issue, learned Counsel for the Appellant submitted that the purported confessional statement made by the Appellant in Exhibit G1 is absolutely inadmissible. Relying on the cases of ADELANI v STATE (2018) 5 NWLR (Pt. 1611) SC 26; and POPOOLA v STATE (2018) 10 NWLR (Pt. 1628) SC 485, where it was held that when an extra judicial statement is obtained with the aid of an interpreter, he must subscribe his name and signature on the statement and must testify at the trial before the statement can be admitted in evidence. He also cited Section 17(3) & (4) of the Administration of Criminal Justice Act, 2015 (ACJA), to the effect that the interpreter must write his name and sign the statement. He pointed out that Exhibit G1, the Appellant’s statement was made in Yoruba and recorded in English, but the interpreter did not write his name and sign same as required.
Counsel submitted that Sections 1(2) and 3 of ACJA enjoin strict compliance with its provisions. He further argued that going by the answer PW1 gave during cross-examination, he did not append his name or sign the statement. He added that the fact that I.P.O. was written on it as referring to PW1, does not aid the Respondent. He submitted that by virtue of Sections 5, 129 & 130 of Evidence Act 2011, evidence is not allowed in a criminal trial to explain the meaning of an abbreviation in a document. He pointed out that the interpreter did not testify at the trial and as such Exhibit G1, the purported confessional statement of the Appellant is not admissible. He argued that being absolutely inadmissible hearsay evidence, it is immaterial that the Appellant’s Counsel at the trial did not object to the documents being tendered, since such evidence is absolutely prohibited by statute. He relied on POPOOLA v STATE (supra).
Learned Counsel submitted that the Appellant and the other co-accused persons have denied making the statements which raised the questions of fact as to whether each of them had made the statements in Exhibits G1, D, E & F. He submitted that the Respondent was bound to prove that Exhibit G1 was made by Appellant. He relied on Section 93(1) of the Evidence Act, 2011 and Section 18 of the Interpretation Act, 2004.
The Respondent was bound to establish beyond reasonable doubt, that the mark or thumb impression on Exhibit G1 purported to be that of the Appellant, was indeed his. However, the Respondent (prosecution) failed to prove that the thumb print on Exhibit G1 was made by the Appellant other than rely on the viva voce testimony of PW1 which is unreliable.
He highlighted other facts that make Exhibit G1 unreliable and not credible. These are;
(1) As unsigned extrajudicial statement, Exhibit G1 is worthless.
(2) The learned trial Judge relied on evidence of co-accused to find Exhibit G1 credible.
(3) Exhibit G1 is inconsistent with other facts ascertained and proved.
(4) It was not proved that the Appellant had opportunity to commit the crime charged.
RESOLUTION OF ISSUE 2:
This issue challenges the admission and reliance by the trial Court of Exhibits E, F and G1 on the ground that the statements were not signed.
With regard to the said Exhibits E, F & G1, it is pertinent to observe that before the trial Court, Exhibits E and E1; F and F1; and G1 and G2 were confessional statements made by the 2nd, 3rd and 4th Defendants (who is the Appellant herein), respectively, which were tendered by the Prosecution and admitted by the trial Court. Specifically, Exhibit E is the confessional statement of the 2nd Defendant (Festus Edegwa), while Exhibit E1 is an attestation for the said confessional statement in Exhibit E. Similarly, Exhibit F is the confessional statement of the 3rd Defendant (Owolabi Idowu), while Exhibit F1 is its attestation. As for the 4th Defendant who is the Appellant herein, he made two statements, first at the Ogijo Police Station which was admitted as Exhibit G, and second, which is the confessional statement he made at the Special Anti-Robbery Squad (SARS), Ogun State, which was admitted as Exhibit G1, while its attestation is Exhibit G2.
The Record of Appeal shows at page 37 that when these confessional statements of the 2nd, 3rd and 4th Defendants as well as their respective attestations were tendered by the Prosecution through PW1 (Cpl. Jamiu Salawudeen), the learned Counsel for the 2nd, 3rd and 4th Defendants did not object to the admissibility of the confessional statements. They only indicated that the 2nd, 3rd and 4th Defendants have denied making the said statements. The 4th Defendant only admitted making the non-confessional statement in Exhibit G which he made at Ojigo Police Station.
It is therefore clear from the printed record that at the point of the tendering the confessional statements in Exhibits E, F and G1 as well as their respective attestations in E1, F1 and G2, the learned Counsel for the 2nd, 3rd and 4th Defendants never raised any objection as to the admissibility of the said statements, other than denying that the said Defendants have made the statements. However, as rightly observed by the learned trial Judge at pages 117–118 of the record, the fact that a defendant has denied making a confessional statement does not render same inadmissible. See: HARUNA v A.G. FEDERATION (2012) LPELR-7821(SC), per Galadima, JSC at page 16, para. A; IBRAHIM BATURE v THE STATE (1994) LPELR-760(SC), per Onu, JSC at pages 20–21, para. D; OSENI v STATE (2012) LPELR-7833(SC), per Ngwuta, JSC at pages 22–23, para. F; and C.O.P. v ALOZIE (2017) LPELR-41983(SC), per Nweze, JSC at page 19, para. A.
I am conscious of the fact that the Appellant has made the contention that the statements should not have been admitted and relied upon because according to him, they are not signed. As it relates to the admissibility of the documents, I have already pointed out that the 2nd and 3rd Defendants and the 4th Defendant (Appellant) raised no objection to the admissibility of the said confessional statements tendered and admitted as Exhibits E & E1, F & F1 and G1 and G2 by the trial Court. Hence, they made no protest that the said statements were not signed and there was no pronouncement or decision of the trial Court on that issue.
Although, it is generally trite that failure by a party to raise objection to admissibility of a document at trial will bar the party from raising such objection on appeal, the exception is that such objection can be raised where the document is by law inadmissible in any event. See: JOHN & ANOR v STATE (2011) LPELR-8152(SC), per Muhktar, JSC at page 17–19, pars. F; and JOHN v STATE (2017) LPELR-48039(SC), per Muhammad, JSC at pages 54–55, para. E.
Now, it is settled that an unsigned document is legally worthless and void, and same may not be inadmissible in evidence. This point was made by Tobi, JSC in OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) LPELR-2636(SC), when he held that:
“Let me first take the issue of signing a document. In Ojo v. Adejobi (supra) cited by learned Counsel for the appellant, the Court said at page 165: “The Court cannot in any event ex debite justitiae, ignore a situation in which the foundation of a claim to a preparatory legal interest are based on a worthless, unsigned and inadmissible document.” In AG Abia State v. Agharanya (supra) also cited by learned counsel for the appellant, the Court said at page 371: “It is well settled that an unsigned document is worthless and void.” Learned Counsel for the respondent tried to distinguish the above cases from the present one. With respect, he did not succeed. It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker. In view of the fact that the two makers or writers of exhibit P6 did not sign the exhibit, it was not available to the two Courts to attach probative value on it.”
See also: MAKU v AL-MAKURA & ORS (2016) LPELR-48123(SC), per Onnoghen, JSC at pages 24 – 25, para. A.
The question then is whether the said confessional statements of the 2nd, 3rd and 4th Defendants admitted by the trial Court are unsigned and therefore inadmissible in law. As earlier shown above, the confessional statements admitted as Exhibits E, F and G1 were actually admitted together with their attestations which were admitted as Exhibits E1, F1 and G2, respectively. A look at the confessional statements in Exhibits E, F and G1 shows as follows:
Exhibit E: Exhibit E, which is the confessional statement of the 2nd Defendant Festus Edegwa, was recorded in English language and it was actually signed by the 2nd Defendant both at the cautionary column and at the end of the statement. At the column for endorsement by the recorder of the statement the letters I.P.O. were written and dated 5th June, 2017 and stated to be taken between 3:30 pm to 5:20 pm.
Exhibit E1: However, Exhibit E1 which is titled ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, shows that the 2nd Defendant has endorsed that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, read over to him and that he signed same. After the 2nd Defendant signed same, the attestation was then endorsed by Cpl. Jamiu Salaudeen as the Interpreter and dated the 5th of June, 2017.
Exhibit F: Exhibit F, is the confessional statement of the 3rd Defendant Owolabi Idowu. It was recorded in English language and translated to the 3rd Defendant in Yoruba language. The statement was also signed by the 3rd Defendant both at the cautionary column and at the end of the statement. At the column for endorsement by the recorder of the statement the letters I.P.O. were written and dated 12th June, 2017.
Exhibit F1: However, in Exhibit F1 which is the ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, it shows that the 3rd Defendant has also endorsed that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, interpreted and read over to him and that he signed same. After the 3rd Defendant signed the attestation, it was then endorsed by Cpl. Jamiu Salaudeen (PW1) as the Interpreter and dated.
Exhibit G1: Exhibit G1, which is the confessional statement of the 4th Defendant Idowu Mathew, who is the Appellant herein, shows that the Appellant was cautioned in Yoruba language and his statement was recorded in English language and interpreted to him in Yoruba language. The statement was thumb-printed by the Appellant both at the cautionary column and at the end of the statement and dated 4th April, 2017. At the column for endorsement by the recorder/intepreter of the statement the letters I.P.O. were written and dated 4th April, 2017.
Exhibit G2: In Exhibit G2 however, which is titled: ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, that the Appellant (4th Defendant) has endorsed (thumb-printed) that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, interpreted and read over to him and that he signed same. After the Appellant (4th Defendant) signed same, the attestation was then endorsed/signed by Cpl. Jamiu Salaudeen (PW1) as the Interpreter and dated the 4th of April, 2017.
As stated earlier, the record of proceedings of the trial Court contained at page 37 of the printed record of this appeal shows that the confessional statements of the 2nd, 3rd and the Appellant (who is the 4th Defendants) which were admitted as Exhibits E, F and G1, were tendered with their respective attestation forms for confessional statements (Exhibits E1, F1 and G2), which, as also shown above, were duly signed/endorsed by the 2nd, 3rd Defendants and the 4th Defendant (Appellant) and duly signed by PW1, Cpl. Jamiu Salaudeen. While giving his evidence and tendering these confessional statements, PW1 had stated that he was the I.P.O. who investigated the case and recorded the said confessional statements of the 2nd, 3rd and 4th Defendants and had executed each of the attestation forms together with the said Defendants.
From the forgoing therefore, it is evident that the argument of the learned Counsel for the Appellant that the confessional statements of the 2nd, 3rd and 4th Defendants in Exhibits E, F and G1 were not signed by the recorder/interpreter is incorrect, in that PW1, the Investigating Police Officer, Cpl. Jamiu Salawudeen who recorded/interpreted those statements had not only duly signed the Confessional Statement Attestation Forms tendered with those statements they were also duly signed by the 2nd, 3rd and 4th Defendants, and he had given evidence in Court as to how he recorded the said statements of the 2nd, 3rd and 4th Defendants.
Interestingly, and not surprisingly, the learned Counsel for the Appellant has obscured the fact that the each of those confessional statements in Exhibits E, F and G1 was tendered with its Confessional Statement Attestation Form duly signed by the 2nd, 3rd Defendants and the 4th Defendant (Appellant), respectively and duly signed/endorsed by PW1, Cpl. Jamiu Salaudeen, as the recorder/interpreter. It is therefore clearly evident that contrary to the contention of the Appellant, the confessional statements in Exhibits E, F and G1 were duly signed. I so find and hold.
Since it is evident from Exhibits E, E1, F, F1 and G1 and G2 that the confessional statements of the 2nd and 3rd Defendants and the 4th Defendant (Appellant) were duly signed, I hold that the said statements (including Exhibit G1, the Appellant’s confessional statement) were properly admitted and acted upon by the trial Court. I thus resolve issue 2 against the Appellant.
ISSUE 3:
Was it not wrong of the learned trial Judge to hold that the Appellant adopted the purported confessional statements of his co-accused and that the Appellant is guilty of the offences charged?
SUBMISSIONS OF THE APPELLANT ON ISSUE 3:
It was submitted on behalf of the Appellant that the Appellant did not adopt Exhibits D, E & F, contrary to what the learned trial Judge held. It was pointed out that the learned trial Judge had held that the Appellant adopted the incriminating facts stated against him by his co-accused in their purported statements in Exhibits D, E & F. But the learned Judge failed to realize that the matter of adoption of evidence of co-accused by the Appellant was a matter exclusively governed by the Evidence Act. It was further argued that by virtue of Sections 29(4) & 199 of the Evidence Act, 2011, the Court should not have considered the evidence of co-accused against the Appellant unless the confession was made in his presence and he adopted it by words or conduct, while the latter Section allows incriminating evidence of an accomplice to be considered against an accused person; it provides that a person tried jointly with the accused, i.e. his co-accused must not be considered as an accomplice for the purposes of the Section.
It was further submitted that the Appellant is not guilty as found by the trial Judge for the following reasons: (a) the items tendered in evidence as stolen items were not proved to belong to the alleged victims of the armed robbery, i.e. PW2 and PW3; (b) there are material contradictions in the evidence of Prosecution witnesses and their evidence was unreliable; and (c) the learned trial Judge misdirected himself on the evidence. It was argued that there were contradictions in the testimonies of PW1 and between the testimonies of PW2 and PW3. It was similarly argued that the evidence and extrajudicial statement of PW4 were also contradictory and the learned trial Judge believed and relied solely on the testimony of PW1. Reference was made to page 118, lines 17–18 and 25–27 of the Record of Appeal.
As for PW2 and PW3, it was argued that the totality of PW2’s evidence showed that he knew the Appellant prior to the armed robbery and yet could not identify the Appellant as one of the armed robbers, while PW3 identified the Appellant as one of the robbers. And while PW4 testified that PW2 was there when Sanni and the Appellant were arrested and that Sanni told the Police it was one Uche who sold the phone to him and that the Appellant got arrested at Uche’s house, PW2 and PW3 stated that the Appellant is neither Uche nor the one who sold the phone to Sanni, and that the house where the Appellant was arrested was not the Appellant’s house but Uche’s. He further argued that the above contradictions are material contradictions which relate to the ingredients of the offences charged. He cited ORISA v THE STATE (2018) 11 NWLR (Pt. 163) SC. 453, where the Court held that where a witness made an extra-judicial statement to the police which is inconsistent on a material point with his testimony in Court, the testimony is to be regarded as unreliable while the extra judicial statement is not evidence on which a Court can act.
RESOLUTION OF ISSUE 3:
It is settled law that a confessional statement of an accused person is only evidence against him. It cannot be evidence against other accused person(s). In other words, the confessional statement of an accused person implicating another accused person is only deemed to be relevant for the person who made it. It cannot be used as evidence against that other accused person unless he adopts it. See: Section 29(4) of the Evidence Act, 2011 and the cases of GBADAMOSI & ANOR v STATE (1992) LPELR-1313(SC), per Ogundare, JSC at page 29, para. D; IBRAHIM v STATE (2014) LPELR-23291(CA), per Galinje, JCA at pages 26–27, para. D; EMMANUEL v STATE (2015) LPELR-41676(CA), per Gumel, JCA at page 33 para. C; and AHMED v KANO STATE (2017) LPELR-43224(CA), per Daniel-Kalio, JCA at pages 14–15, para. C.
At page 119 of the printed Record of Appeal, the learned trial Judge started by restating this trite position when he held that:
“It is the evergreen position of the law that a confessional statement made by one accused person is only evidence against him and not constitute evidence against a co-accused except he adopted it. See OZAKI & ANOR VS STATE (1990) LPELR-2888 SC, See aslo YUSUF & ANOR VS STATE (2019) LPELR-46945 SC.”
However, after restating the above trite principle of law as stated in OZAKI & ANOR VS STATE and YUSUF & ANOR VS STATE, the learned trial Judge proceeded to hold as follows:
“In this instant case I wish to bring out a distinction which the facts in this case reveal which contain a variant on the facts from the decisions cited above. While the 1st, 2nd and 4th Defendants in Exhibit E, G1 and F gave evidence incriminating each other as part of those who robbed the PW2 and PW3 while armed with offensive weapon as charged they all now including the 3rd Defendant in each of those statements credited to them confessed each to being participis criminis in committing the armed robbery on PW2 and PW3 thus in this case their participation in the robbery in those statements credited to them as stated by their other co-accused as they themselves confessed in their statements to the police as committing the armed robbery charged. Thus in this case, as it were it is not only a matter of giving incriminating facts against B and C but B and C also confessing to commit the offences they are incriminated of being a part of. Thus I find that those statements Exhibit E, F and G1 if proved against each of them in (sic) good evidence against each of the 2nd, 3rd and 4th Defendants who are charged on counts 2 and 3 of the Amended Charged (sic).”
There is no doubt that the above holding of the learned trial Judge which attempts to use the incriminating evidence contained in the confessional statements of each of the accused persons against their co-accused, runs counter to the trite principle in OZAKI & ANOR VS STATE and YUSUF & ANOR VS STATE, which he had earlier cited. The point must be made that the import of this trite principle of law is such that even if there are a hundred accused persons in a joint trial and each of them makes a confessional statement incriminating the others, such incriminating evidence cannot be used against those others unless each of them adopts same. A confession is therefore, only relevant evidence for the accused person who made it and same will be assessed independent of whatever incriminating evidence may exist against him in the confessions of other co-accused persons.
As rightly observed by the learned Counsel for the Appellant, before incriminating evidence in the confessions of the other accused persons can be used against the Appellant it must have been made in the presence of the Appellant and the Appellant must have adopted it. Section 29(4) of the Evidence Act, 2011 is very explicit on this. The Section expressly provides:
Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct.
(underlining mine for emphasis).
In this case, there was no evidence led before the trial Court that each of the 2nd, 3rd and 4th Defendants made the confessional statements in Exhibits E, F and G1, respectively in the presence of one another and that each of them adopted the incriminating evidence against them contained in the confessional statements of their co-defendants. In the absence of such evidence, the attempt by the learned trial Judge to use the incriminating evidence in the confessional statement of each of the Defendants as corroborating evidence of the confessional statement of the other Defendants clearly runs counter to the established legal principle expressly provided in Section 29(4) of the Evidence Act, 2011 and reiterated in GBADAMOSI & ANOR v STATE (supra); IBRAHIM v STATE (supra); as well as OZAKI & ANOR VS STATE (supra); and YUSUF & ANOR VS STATE (supra), referred to by the learned trial Judge. His holding is therefore clearly perverse and I so hold.
The issue then is whether apart from the incriminating evidence in the other confessional statements which the learned trial Judge wrongly regarded as corroborating the Appellant’s confessional statement in Exhibit G1, there are other evidence upon which the trial Court could find the Appellant guilty as charged.
The essential argument of the Appellant is that since the Appellant had denied making the confessional statement in Exhibit G1, the learned trial Judge failed to resolve whether the Appellant actually made the statement before applying the rule relating to weight as stated in OGUNDIPE v QUEEN (supra), and thus had occasioned miscarriage of justice. It is settled law that when a confessional statement which is admitted in evidence is retracted as was done by the Appellant in this case, the Court should test its truthfulness and veracity by examining same in the light of other credible evidence in order to determine what weight to attach to it. In other words, the Court should consider: (a) whether there is anything outside the confession to show that it is true; (b) whether the confession is corroborated; (c) whether the facts contained in the statement are true as far as they can be tested; (d) whether the defendant had the opportunity to commit the offence; (e) whether the confession is possible; and (f) whether it is consistent with other facts ascertained and proved at trial. See: R v SKYES (1913) 1 Cr. App. R. 233; ALAO v STATE (2019) LPELR-47856(SC), per Aka’ahs, JSC at page 22, para. A; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Galadima, JSC at pages 40 – 41, para. G; AGBOOLA v STATE (2013) LPELR-20652(SC), per Ariwoola, JSC at page 37, para. A; and OSENI v STATE (2012) LPELR-7833(SC), per Ngwuta, JSC at pages 24–25, para. E.
A look at the Record of Appeal shows that apart from the finding of the trial Court that the confessional statements credited to the 2nd, 3rd and 4th Defendants have corroborated each other which I have found to be perverse to the established principle of law, the learned trial Judge had indeed considered how the evidence of the prosecution witnesses had corroborated the confessional statements of the Defendants, including Exhibit G1 credited to the Appellant. Specifically, the learned trial Judge held at pages 121–123 of the Record as follows:
“A look at the contents of the confessional statements credited to the 2nd, 3rd and 4th Defendants Exhibit E, F and G1 reveal certain facts which were also the highlights of the evidence of the PW2 and PW3. The 3rd Defendant in Exhibit F stated that the house where they i.e. himself and other robbers robbed is at Eyita Zone III and they stole his Lexus 330 Jeep. The PW2 and PW3 testified unequivocally that PW3’s Lexus Jeep was stolen on the night of the incident of the armed robbery on them. PW1 testified that the Lexus Jeep was traced to Cross River State only to discover one George a car dealer had sold it in Cameroon. In fact, George is at large; his brother was charged before the Magistrate Court over the matter.
PW1s evidence was also not shaken under cross-examination as to how he arrested the 2nd, 3rd and 4th Defendants. His evidence was not shaken that it was a girlfriend of the 2nd Defendant who assisted in getting him arrested. The evidence of PW1 was not also contradicted that PW1 got 2nd Defendant arrested when his phone number was tracked and his girlfriend’s number was gotten…
The 4th Defendant in Exhibit G denied committing the armed robbery charge however in Exhibit G1 he gave the number of persons who went to rob PW3 as six and they went to rob in PW3’s house with a gun. The PW2 and PW3 also led evidence the number of robbers who came to rob them as five or six. The PW2 and PW3 also led evidence the robbery was carried out with a gun, this the 2nd Defendant has confirmed.
Learned Counsel for the 4th Defendant had suggested that 4th Defendant’s statement in Exhibit G was exculpatory, hence Exhibit G1 credited to him which is a confessional statement is suspect as to the 4th Defendant’s confession of the armed robbery.
I wish to state that the facts in Exhibit G1 seem to tally with PW2 and PW3’s testimony as to how many people robbed PW3 and the fact that the robbers were armed. I find that the evidence of PW1, PW2 and PW3 serve as corroboration for Exhibits E, F and G1.”
It is therefore clear from the above holding of the learned trial Judge that he had duly evaluated the confession of the Appellant in Exhibit G1 and found the evidence of PW2 and PW3 to have corroborated same. Thus contrary to the submission of the Appellant under this issue, the conviction of the Appellant was not solely based on the trial Court’s finding that the confessions of the 2nd, 3rd and 4th Defendants corroborate each other. It is consequent upon this, that I resolve this issue against the Appellant and hold that, even as the trial Court’s finding that the Appellant had adopted the confessional statements of his co-accused was perverse, it was not the sole reason upon which the Appellant was found guilty of the offences charged, as his confessional statement in Exhibit G1 was found to have been credible, having been corroborated by other evidence of the Prosecution witnesses.
ISSUE 4:
Was the alibi raised by the Appellant investigated or considered by the learned trial Judge?
SUBMISSIONS OF THE APPELLANT ON ISSUE 4:
The Appellant began by stating that the Court of Appeal has the duty to examine the grounds for the conclusions and inferences of the trial Court. He cited AGBANYI v THE STATE (1995) 1 NWLR (Pt. 369) 1 at 22 B–G to back up the above point. In the course of the learned trial Judge’s judgment, he held that:
“All of the above reveals that the 4th Defendant’s defence is balderdash or baloney and pure nonsense in the light of all surrounding evidence linking him to the Armed Robbery Charge, E. g Exhibit G1 and the evidence of PW 1” the Appellant stated that there was no basis for the learned trial Judge to have found the Appellant to be an untruthful witness; as there was nothing contradictory of Appellant’s oral testimony (where he did not deny knowing Uche) from Exhibit G. Both are reconcilable. In Exhibit G as well, he did not deny knowing Uche”.
He continued by stating that Appellant’s alibi was not investigated by the police or considered by the learned trial Judge. In Exhibit G, the Appellant stated that he did not partake in the armed robbery as he was at home on the fateful day. This was made immediately after he was arrested by PW4 at the Divisional Police Station, Ogijo. The arrests of the Appellant by PW4 and carting away property or conducting search on the Appellant’s house are not ways of investigating alibi. PW4 did not testify that he made any enquires from anyone about the Appellant’s where about on the night of the robbery. Also, when the case was transferred to Federal SARS, they also failed to investigate the alibi.
He went further to state that the learned trial Judge did not also consider the alibi as he dismissed the defence in one sentence as “balderdash or baloney and pure nonsense”. He cited ESANGBEDO v THE STATE (1989) 4 NWLR (Pt. 113) SC 57 to back-up the fact that learned trial Judge had a duty to test that the defence of alibi against the evidence led by the prosecution and make a finding one way or the other. He stated that the effect of the failure of the learned trial Judge to test the defence is that he did not resolve all reasonable doubts in the Appellant’s favour. OKONKWO v THE STATE (1998) 4 NWLR (Pt. 544) 142 CA.
He finally concluded that this Honorable Court is respectfully urged to allow this appeal and set aside the conviction and sentence against the Appellant.
RESOLUTION OF ISSUE 4:
The essential contention of the Appellant under this issue is that the alibi raised by the Appellant in his Exhibit G that he was at home and did not participate in the robbery was never investigated or considered by the trial Court.
It is settled law that for a defence of alibi to be successfully raised, it must be raised at the earliest opportunity when the defendant is confronted with the commission of the crime, in order to afford the Police the opportunity of investigating and debunking same is they could: DAWAI v STATE (2017) LPELR-43835(SC), per Okoro, JSC at pages 15–16, para. C; ADEYEMI v STATE (2017) LPELR-42584(SC), per Peter-Odili, JSC at page 16, para. A; EBENEHI & ANOR v STATE (2009) LPELR-986(SC), per Ogebe, JSC at page 13, para. A; and MOHAMMED v STATE (2015) LPELR-24397(SC), per Nweze, JSC at page 46, para. D.
In the instant case, the argument of the Appellant is that he had stated in his first statement admitted as Exhibit G that he was at home and the Police did not investigate same and the learned trial Judge never considered same. In his statement made at the Ojigo Police Station on the 1st of April, 2017, the Appellant stated inter alia that:
“I know one Uche at Sawmill Ojigo through his younger brother Joseph that is during scrap business at Camalo. I don’t know where Uche is living. I also know one Okafor a friend of Uche. I know how to get Okafor and I believe if we can get Okafor to get Uche it will be very easy. On the 25/26-03/2017 I was at my house behind Sawmill Ojigo. I did not aware (sic) that Uche and his friend went and rob (sic) at Giyta Zone IV. I did not followed (sic) Uche and his friend to any robbery operation because I am not an armed robber. I never rob (sic) in my life. That is all about my statement now.”
In the case before the trial Court, the Prosecution presented PW1 (Cpl. Jamiu Salawudeen) and PW4 (Sgt. Michael Julius) who investigated the case at the Special Anti-Robbery Squad (SARS), Magbon, Abeokuta and at Ojigo Police Station respectively. Going through their testimonies, PW1 had stated at page 42 of the Record that he never visited the 4th Defendant’s (Appellant’s) house. But PW1 who investigated the matter at the Ojigo Police Station stated at pages 52–53 of the Record that when the complainants (PW2 and PW3) who had earlier reported that they were robbed, came back to inform him that they have seen one of the handsets stolen from them at a Ojigo Sawmill where it was being charged, he led a team to the place where they arrested one Sanni who stated that he bought the handset from one man called “Yellow” and led them to the 4th Defendant (Appellant) whom he said is also called “Yellow”. PW4 also stated that after arresting the Appellant at his house, he executed a search warrant in the Appellant’s house and recovered one Plasma TV with remote control. On cross-examination, PW4 reiterated that the said Sanni had stated that the Appellant was also known as “Yellow”.
Even as there is no indication from the evidence of the police officers (PW1 and PW4) who investigated the matter that they have investigated the Appellant’s assertion that he was at his house on the 25-26/03/2017, the settled law is that even if the Prosecution has failed to investigate same, the burden is on the Appellant who asserted the alibi to substantiate same with credible evidence. In NNAMDI OSUAGWU v THE STATE (2013) LPELR-19823(SC), the Supreme Court, per Rhodes-Vivour, JSC reiterated this settled position when he held at page 22, para. D–D, that:
“It is long settled that it is the duty of the appellant putting forward the defence of alibi to adduce evidence to sustain his alibi and this entails calling witnesses to support his case that he was not at the scene of the crime but somewhere else.”
Also, in ATTAH v THE STATE (2010) LPELR-597(SC), the Apex Court, per Adekeye, JSC, held at pages 33–36, para. F, that:
“The onus of establishing alibi, being a matter within the personal knowledge of an accused person, lies on him. That it is not enough for the accused person to say to the Court that he was at a particular place away from the scene of this crime. That he has to prove his assertion. That even if the police has failed to investigate such assertion, the accused person has the onus of adducing evidence on which he relies for his defence of alibi. In effect, it does not automatically mean that failure of the police to investigate will result in failure of the prosecution’s case. The onus is on the accused person to establish the plea of alibi raised by him on the balance of probabilities.”
In the instant appeal, the Appellant’s defence is at pages 64–66 of the printed Record of Appeal. In his testimony before the trial Court, the Appellant had stated that while he was in his Shop on the 30/03/2017 a Toyota Camry vehicle parked in front of his shop and three men came out and asked him if he knew Uche because they were looking for him and they were told he lived in the area. He said he told them that he was new in the area and had just started trading in the area. He said he referred them to a woman who sells near his shop who told them that Uche was one of the men who issued tickets to traders in the area. He said the three men suddenly grabbed him and told him he was lying when he said he did not know Uche. He stated that he was slapped and beaten by the three men who handcuffed him and took him to the police station. He said at the Police Station he made a statement at Ojigo Police Station which he identified as Exhibit G. He said he was later transferred to SARS Office Magbon Abeokuta. He denied knowing PW1 or volunteering any statement at SARS Office at Magbon, Abeokuta, claiming that one Mr. Gboye was the officer who attended to him at the Magbon SARS Office. He also denied knowing any of the co-Defendants.
In essence, the Appellant led no evidence to establish his claim that he was in his house on the 25-26/03/2017 as he asserted in Exhibit G. He failed to discharge the burden on him to establish the alibi he raised on the balance of probabilities as required of him.
It is instructive that the learned trial Judge had duly appraised the Appellant’s defence both as it relates to his statements in Exhibit G and G1 and also as to his evidence in open Court, and at page 124 of the Record of Appeal, the learned trial Judge held that:
“I wish to state at this stage that the 4th Defendant is not a witness of truth, as in his evidence in Court he stated he know (sic) Uche only as a ticket officer but in Exhibit G, which he claimed he made he stated that he knew Uche and even Uche’s younger brother. I reiterate that learned Counsel though submitting that Exhibit G exculpates him but Exhibit G also in my view reveals that he has contradicted himself as to knowledge of Uche who is one of the persons at large who sold PW2’s phone to the Hausa man who went to charge the phone i.e. G-Tide phone yet again it is the evidence of PW1 that 4th Defendant was arrested when they went to look for the said Uche. The 4th Defendant also in Exhibit G1 confirmed it was Uche who introduced him to robbery. The above reveals that the 4th Defendant’s defence is balderdash or baloney and pure nonsense in the light of all surrounding evidence linking him to the armed robbery charge e.g. Exhibit G1 and the evidence of PW1.”
It is trite that evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court which has the advantage of seeing, hearing and observing the demeanour of the witnesses. See: EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C; and OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6–7, para. E. An appellate Court will therefore not interfere with such a finding of fact unless it is shown that the trial Court failed to properly evaluate the evidence before it or its finding is perverse: BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13–17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14–15, para. E. In other words, it is not the function of an appellate Court to retry the case on the evidence in the printed record and set aside the decision of the trial Court in order to substitute its own views. As long as the trial Court had properly appraised and evaluated the evidence before it, an appellate Court will not interfere. See:IGAGO v STATE (1999) LPELR-1442(SC), per Karibi-Whyte, JSC at page 27, para. E.
The party who complains against a finding of fact by a trial Court must therefore, show in what way the finding is wrong or perverse: KIWO v STATE (2020) LPELR-53900(SC), per Muhammad, JSC at page 30, para. D; and AMADI v A.G. IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 12, para. B.
In the instant appeal, it is evident to me from the finding of the trial Court that it duly appraised the evidence before it and in the face of such evidence which is on the printed record, the Appellant’s mere and unsubstantiated assertion in Exhibit G that he was at his house on the 25-26/03/2017 was not fatal to the Prosecution’s case. The Appellant has therefore failed to show how the finding of the trial Court was perverse or had occasioned any miscarriage of justice. I therefore resolve this issue against the Appellant.
On the whole, the four issues in this appeal have been resolved against the Appellant, thus signposting that the appeal is devoid of merit. I therefore dismiss this appeal for being unmeritorious. The judgment of the trial Court, the High Court of Ogun State sitting at Sagamu, delivered on the 24th of August, 2020 in Suit No. HCS/47C/2018 is hereby affirmed.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had a preview of the lead judgment of my Lord, ABBA BELLO MOHAMMED, JCA which has just been delivered. I am in agreement with the lucid reasoning and resonating conclusion that the instant appeal is devoid of merit and the same should be dismissed. I wish to add a few comments for the purpose of emphasis and in affirmative support of the said lead judgment. The Appellant argued that conspiracy is not an offence that was defined by an Act, therefore, it is unlawful to convict the Appellant when the offence is not defined under any written law as provided in Section 36(12) of the 1999 Constitution.
It is trite that the offence of conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means and the offence of conspiracy has a unique feature of being an offence usually concealed and often hatched in secret by the conspirators and so make it difficult to establish the physical contact among the persons who are said to have agreed. See NDOZIE V. STATE (2016) LPELR-26067(SC), OSAREREN V. FRN (2018) LPELR-43839(SC). ERIM V. THE STATE (1994) 5 NWLR (PT. 345) 522 AT 524 and OSONDU V. F.R.N. (2000) 12 NWLR (PT. 682) 483 AT 501-502. And this definition has been the accepted position of law in our criminal jurisprudence that a Court can draw support where an accused is charged for the offence of Conspiracy.
Contrary to the argument of the Appellant, it is clear from the provisions of various laws that the offence of Conspiracy was defined, criminalized and adequately provided in satisfaction of the provision of Section 36(12) of the Constitution. See Section 516 of the Criminal Code, Section 96(1) of the Penal Code and Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, LFN, 2004. And again, there are plethora of judicial authorities that defined Conspiracy which is legally accepted and the Courts can rely on same, see the cases of IBOJI V. STATE (2016) LPELR-40009(SC), HASSAN V. STATE (2016) LPELR-42554(SC) and OMOTOLA & ORS V. STATE (2009) LPELR-2663(SC).
Consequent upon the above and the more elaborate reasons advanced in the lead judgment. I also find that the instant appeal lacks merit and it is accordingly dismissed. The decision of the lower Court is thereby affirmed by me.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA.
One of the issues thrown up by this appeal is whether the offence of conspiracy is codified in line with the provisions of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides as follows:
“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.”
The foregoing provision is to the effect that a person shall not be convicted of an offence unless such offence is specifically or expressly provided for by a statute or legislation. This accords with the provision of Section 36(6)(a) of the 1999 Constitution which provides that a person who is charged with a criminal offence shall be informed in detail of the nature of the offence. This much was pronounced upon by the Supreme Court in GEORGE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)1 AT 22, PARAGRAPH A, where the Court per Fabiyi, JSC held as follows:
“Any conduct that must be sanctioned must be expressly stated in a written law to wit: an Act by the National Assembly. That is what Section 36(12) of the 1999 Constitution provides. Such conduct should not be left to conjecture. As well, it cannot be inferred by the Court.”
Also, in ABIDOYE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)30 AT 62, PARAGRAPHS A-B, Ngwuta, JSC held as follows:
“In order to constitute an offence, criminality of its disobedience and punishment for same must be contained in the order disobeyed.”
Furthermore, in TAFIDA VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)129 AT 147, PARAGRAPHS G-H, the Supreme Court, per Aka’ahs, JSC held as follows:
“The interpretation of a penal legislation or any statute for that matter should not be left to the whims and caprices of the Judge called upon to interpret the legislation. Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to conjecture or inference by the Court.”
What this means is that an offence in respect of which sanction is provided must be expressly created by a statute. The offence of conspiracy is expressly created by Section 6(b) of the Armed Robbery which provides that:
“Any person who-
(b) conspires with any person to commit such an offence 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 proceeded against and punished accordingly under this Act.”
I therefore completely agree with my learned brother when he held that all that is required to satisfy Section 36(12) of the Constitution is for the written law to stipulate the act or omission as an offence and prescribe a penalty for it. The submissions made for the Appellant under issue No. 1 has no basis in law and it is hereby discountenanced.
Premised on the foregoing and the fuller reasons contained in the lead judgment I also dismiss the appeal and affirm the decision of the trial Court.
Appearances:
Rudolf U. Ezeani, Esq. For Appellant(s)
Respondent absent and unrepresented For Respondent(s)
