OLOYEDE OLATUNDE v. THE STATE
(2018)LCN/12163(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of November, 2018
CA/AK/56C/2015
RATIO
EVIDENCE: CONFESSIONAL STATEMENT
“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime and a Court can base its conviction on free, cogent and positive confession. See OMOJU V. FRN (2008) 9 NWLR (PT. 1085) 31; OKO V. STATE (2016) 10 NWLR (PT. 1521) 455; AGAGUO V. STATE (2017) 10 NWLR (PT. 1573) 254 AND AWAOBI V. STATE (2017) 2 NWLR (PT. 1550) 421.” PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
OLOYEDE OLATUNDE Appellant(s)
AND
THE STATE Respondent(s)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Ondo State, sitting at Akure Judicial Division delivered by Hon. Justice O. O. Akeredolu on the 17th January, 2014. At the lower Court, the appellant was charged on two counts charge of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Section 6(b), 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R. II Vol 14 Laws of the Federation of Nigeria 2004.
In proof of its case, the respondent called three witnesses and tendered five(5) exhibits, A1 to A5. Exhibits A1 and A2 are the casio calculator and dagger that were allegedly recovered from the accused house. Exhibits A3-A5 are the confessional statements of the appellant made at A Division and SARS and the additional confessional statement. On its being sought to be tendered, the appellant objected thereto on the ground that it was not according to how he made it.
Apart from Exhibit A3-A5, PW1 the alleged victim of the offence gave an account of the incident and identified the appellant as one of the robbers who robbed him and carted away with his laptop, cacio calculator, phones and money. He testified that when the robbers came they switched off the security light of the house, one of the robbers stood by his door while the appellant enter his room with face cap and introduced himself as a mopol and robbed him while armed with dangerous weapons. That when the appellant entered his room, the light of the room was off but the television was on and he was able to identify the appellant with the help of the television light. PW3, the alleged purchaser of the stolen phone, one of the PW1’s phone, a black berry curve 4, testified that he purchased the phone from the accused appellant and led the police to arrest the appellant. The appellant confirmed that he was the one that sold the phone to PW3. Thereafter, PW3 was released. PW2 is the IPO. In his defence, appellant did not call any witness but testified on his behalf.
At the conclusion of the trial, the learned trial judge relying on the evidence before the Court, the exhibits tendered and the testimonies of the prosecution witnesses and that of the defence, found that the prosecution proved its case beyond reasonable doubt and that the appellant has committed the offences as charged, convicted and sentenced him to death.
Dissatisfied with the judgment, the appellant filed a Notice of Appeal dated 28th August, 2014 with leave of this Court, the appellant filed an Amended Notice of Appeal dated 12th December, 2017 and filed on 14th December, 2017 but deemed properly filed on 16th January, 2018 containing four(4) grounds of Appeal.
The appellant’s brief of argument dated 12th December, 2017 and filed on 14th December, 2017 but deemed properly filed on 16th January, 2018 is settled by Emeka Obegolu, Esq. while the respondent’s brief of argument dated 20th March, 2018 and filed on 28th March, 2018 but deemed properly filed on 22nd October, 2018 is settled by Olubunmi Niyi-Arajuwa, Esq. At the hearing of the appeal on the 22nd October, 2018, learned counsel for the appellant Emeka Obegolu Esq. adopted the appellant’s brief of argument as his argument for the appeal. He urged the Court to allow the appeal set aside the conviction and sentence of the appellant by the lower Court and discharge and acquit the appellant.
On the other hand, learned counsel for the respondent, Olubunmi Niyi-Arajuwa, Esq. adopted the respondent’s brief of argument as his reaction against the appeal. He urged the Court to dismiss the appeal and affirm the decision of the lower Court.
The learned appellant counsel, in his brief of argument distilled three(3) issues for determination of this appeal to wit:
1. Whether the failure to conduct an identification parade was not fatal to the case of the prosecution in light of the nature of the charge.
2. Whether the failure of the Appellant to raise an objection to the tendering of Exhibit A3 and A5 preclude him from raising an objection to its weight and admissibility or preclude the Court from considering its admissibility in light of the position of the law to the effect that a Court can decide on the weight to be attached on a document already tendered in evidence.
3. Whether from the totality of evidence given before the trial judge and as contained in the records of appeal, the learned trial judge properly evaluated the evidence available to him before finding the accused guilty and sentenced him.
On the other hand, learned counsel for the respondent proposed to formulate two issues but he only donated a lone issue for determination as can be seen on page 4 of his brief to wit:
1. Whether from the totality of the facts and evidence available in this case before the trial judge, the respondent could be said to have proved the charge of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt.
I will decide the appeal on the three(3) issues distilled by the appellant the undoubted owner of the appeal.
ISSUE ONE
On issue one, learned counsel for the appellant referred the Court to the testimony of PW1 at page 36 of the record of appeal and contended that an identification parade is not a sine qua non in itself but it is required where the victim did not know the accused prior to the alleged offence. He cited BASSEY ARCHIBONG V. THE STATE (2004) 1 NWLR (PT. 855) 509 for the view. He submitted that the appellant had never known or met the complainant prior to the charge and the complainant never gave any physical description of the appellant to the police at the point of his complain to the police but only that the person wore a face cap. That the alleged robbery was for a very short time and there was a relative darkness, the only light was that from the television set as testified by PW1, the victim of the alleged robbery, in such a situation, said counsel, an identification parade was necessary.
Learned counsel submitted that there could be a mistaken identity even where an identification parade is done how much more where it was never done. He urged that where the victim does not know the name of the person alleged to have committed the offence, then an identification parade at a later date is to be treated with caution. He cited BOZIN V. THE STATE (1985) 7 SC 450 AT 469.
It was submitted that the appellant was basically presented to the PW1 by the police at the police station as the person who robbed him when the PW1 never gave any identifying feature to the police. That the victim was not allowed and or given the opportunity to pick out the accused from a number of persons as the robber who robbed him. That the proper way said counsel, is to place the suspect with other persons and ask the victim to pick out the accused.
Counsel submitted that it is clear that no identification parade was done, the victim did not see the features of the appellant as there was a power outage in the night and the witness did not have the opportunity to observe the appellant. That the police only camouflage the process by presenting the appellant to PW1 as the robber who robbed him. This, according to counsel, the Court cannot allow it to stand. He cited OJUKWU V. THE STATE (2002) 4 NWLR (PT. 756) 80 AT 91 for the view. He asserted that where the identification is informal by failing to meet with the condition of identification, the conviction thereon will be quashed. He cited ISA FULANI V. THE KING (1950) 13 WACA 92. That the respondent has failed to satisfy the requirement of the law for an identification parade necessitating the appellant conviction. He urged the Court to resolve this issue in favour of the appellant.
Learned counsel for the respondent submitted that PW1 identified the defendant/appellant as the person who robbed him, he referred to the testimony of PW1 at page 37 of the record and submitted that the testimony was further corroborated by Exhibit A3 and A5 the appellant’s confessional statement, wherein he confessed to have committed the offence.
Learned counsel submitted that contrary to the contention of the appellant, an identification parade is unnecessary, and would amount to a waste of time in the circumstances of this case. Counsel opined that where an accused person confessed to the commission of the crime, as in the instant case, an identification parade is equally unnecessary. He cited OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360; FATAI V. STATE (2013) 10 NWLR (PT. 1364) 191 and submitted that the appellant submission on the issue of identification parade is misconceived. He urged the Court to discountenance same and resolve this issues in favour of the respondent.
ISSUE TWO
Learned counsel for the appellant submitted that the appellant retracted his confessional statements Exhibit A3 and A5 on the ground that the appellant did not write the statement neither did he voluntarily sign it. Counsel analyzed the distinction between an involuntary statement and a statement never made by an accused person and contended that the appellant statement was written by the police officer and that he was beaten and tortured before he was compelled to sign what he did not write.
Counsel submitted that a Court is allowed to admit such a statement in evidence and decide the weight to be attached to it and made a finding thereon in its judgment. Counsel submitted that the appellant’s testimony before the Court that he was beaten tortured and threatened with a gun, was neither challenged nor denied by the respondent and that the Court should act on the unchallenged evidence. He cited HYACINTH NWACHUKWU NZERIBLE V. DAVE ENGINEERING CO. LTD. (1994) 8 NWLR (PT. 361) 137. Counsel asserted that the evidence of PW2 cannot by any stretch of imagination be used to corroborate the alleged statements as it was just a reputation of the contents of the alleged confessional statements. He urged that there is nothing outside the confessional statements Exhibits A3 and A5 to show that it is true. The evidence of PW1 cannot be relied upon on the ground that he was not made to point the appellant in a proper identification parade, therefore, according to counsel, his evidence that it was the appellant that was the robber who robbed him must be discountenanced, as the appellant was not arrested at the scene neither was he arrested with the alleged stolen items.
Counsel submitted that the fact that PW3 allegedly bought the blackberry phone from the appellant is not conclusive evidence that he was the robber or one of them. That the police ought to have investigate his evidence of buying and selling phones. He reasoned that there are inconsistencies in the evidence of the prosecution and that the evidence of PW1 and PW2 contradicted each other as to how the appellant was arrested.
He submitted that failure of the appellant to raise an objection to the tendering of Exhibit A3 and A5 on the fact that it was not voluntarily made, does not preclude him from raising an objection to the weight to be attached to it. He reasoned that the exhibit was neither corroborated nor was it consistent with other facts before the Court. He urged the Court to so hold and resolve this issue in favour of the appellant.
Learned counsel for the respondent submitted that the trial Court was right to have acted and relied on the appellant’s retracted confessional statement, having found that there are evidence outside the confession to show that it is true, it was corroborated by the evidence of PW1 – Pw3 and the confession was possible. Counsel contended that where an extrajudicial statement has been shown to have been voluntarily made and it is positive, unequivocal, amounted to an admission of guilt regardless of been resiled or retracted by the accused and the Court can base on it to convict the accused as in the instant case. He cited NWACHUKWU V. THE STATE (2007) ALL NWLR (PT. 390) 1380 for the point.
He further submitted that there was no material contradiction in the evidence of the prosecution witnesses. Assuming, said counsel, there was contradictions in the prosecution witnesses, the contradiction was not material and as such incapable of absolving the appellant of criminal liability. That the trial Court relied on the totality of the evidence both the prosecution and the retracted confessional statement of the Appellant after testing it with other evidence before the Court reached its decision that the prosecution has proved its case against the appellant beyond reasonable doubt. He urged the Court to so hold and resolve this issue in favour of the respondent.
ISSUE THREE
Learned counsel for the appellant submitted that in convicting the appellant, the lower Court relied heavily on the retracted confessional statement Exhibits A3 and A5 and failed to consider the defence of the appellant. He argued that the failure of the prosecution to call the person who arrested the appellant from A Divison and the members of the team who searched the appellant house is fatal to its case. That the evidence of PW2 in that respect is hearsay. He cited ABUBAKAR SALE V. THE STATE (2016) 3 NWLR (PT. 1499) 415 and submitted that where a piece of evidence needs corroboration, hearsay evidence cannot be used to corroborate it. He contended that the trial Court failed to properly evaluate the evidence of PW1. That the trial Court was wrong to have held that the appellant was the robber PW1 saw in the circumstances in which he claimed to have seen the accused person.
Counsel opined that the only way the prosecution would have eliminated any doubt as to the identity of the appellant by PW1, is by proper identification parade and not to rely on the evidence of PW1. He furthered that had the trial Court properly evaluated the evidence before him, he would have seen that there was no evidence linking the appellant with the offence charged. He urged the Court to resolve this issue in favour of the appellant.
Learned counsel for the respondent submitted that evaluation of evidence and ascription of probative value to it are matters within the exclusive competence of the trial judge who has the advantage of seeing the witnesses, watching their demeanor and hearing them give evidence. He referred to SULE O. ASARIYU V. THE STATE (1987) 4 NWLR (PT. 67) 709. He submitted that evaluation of evidence comes in two forms. That is finding of facts based on the credibility of witnesses and finding of facts based on the evaluation of evidence. That the conclusion or finding of the trial judge should be accorded much weight except found to be perverse. He urged that the appellant had a duty to show that the finding of the learned trial judge in respect of the evidence of PW1 was perverse. The appellant, according to counsel, has failed to show that the trial Court made a perverse findings. That an appellate Court can only interfere with or disturb a finding when it is shown to be perverse. He cited EDOHO V. THE STATE (2004) 5 NWLR (PT. 865) 17AT 47 and urged the Court to so hold and resolve this issue in favour of the respondent.
RESOLUTION OF THE ISSUES
ISSUE ONE
The grouse of the learned counsel for the appellant under this issue is that an identification parade is necessary in the circumstances of this case. Identification evidence is evidence tending to show that the person charged with an offence is the same person who committed the offence. In other words, the intent of identification evidence in all criminal trial is to show that the person charged with the offence actually committed the offence. There must be real doubt as to who was seen in connection with the offence charged to require an identification parade. See ARCHIBONG V. STATE (2006) 14 NWLR (PT. 1000) 349 and NDIDI V. STATE (2007) 13 NWLR (PT. 1052) 633. In the instant case, the evidence of PW1 being the victim and PW3, the person to whom the appellant sold the blackberry phone is very clear as to the guilt of the accused appellant. PW1 testified that the accused entered his room while armed with dangerous weapons and robbed him of money, blackberry phone, a tecno phone and a laptop.
Therefore, he used another blackberry phone to add his pin to the stolen one and he started communicating on face book with the person with the stolen one, the person was traced and got arrested by the police, after been arrested, he told the police that he bought it from the accused appellant and led them to the house of the appellant and got arrested. PW3 testified that the appellant sold the blackberry phone to him. PW2 the investigating police officer testified the accused confessed that he and one Awolumate robbed PW1 and that he sold the stolen blackberry to PW3. That during the search of the appellant house a cacio calculator, two bags and wallet belonged to PW1 were also recovered from the appellant’s house.
The appellant in his confessional statement Exhibit A3 confessed that he and one Awolumate did rob PW1 and admitted that he sold the blackberry phone to PW3. The appellant confessional statement Exhibit A3 is hereunder reproduced for ease of reference.
Exhibit A3 is reproduced thus;
“I Oloyede Olatunde ‘M’ of the address voluntary elect to state as follow, I’m a native of Owo in Owo Local Government Ondo State. I attended Army Children School Borno-State I did not attend any other school again, apart from Primary School but I understand English Language and speak English Language very well. In the year 2006 I start learning plumbing work in Maiduguri at the same time I left Maiduguri to Ondo State in the same year, while I stay in Akure and continue learning same work from one Niyi ‘M’ at Obala Street, Akure, till this present time, I got to know one Awolumate ‘m’ sometimes in this month on June 2011, because I lives with his mother in the same house at above address, in the month of November 2011 the said Awolumate ‘m’ introduced Armed Robbery work to me which I agreed with him in the month of January 2012 which I did not know exactly date of that day, myself and the said Awolumate ‘m’ went to a building very close to Old Stadium, Akure around 11 p.m. to robbed the occupant of the house, we did not carry any weapon but we threatened them as if we are many that came because, we talk to ourselves, that use position yourself here, and others should position themselves, we only collected two laptops, four different handsets and N6, 800.00 on that day, we did the operation successfully and escaped ourselves from the place, after a week the said Awolumate ‘m’ collected a phone number from one Papilo ‘m’ who is a friend to him that we want to sell the two laptop and two handset, because I took one Blackberry while he said Awolumate ‘m’ took one Nokia handset very espensive (sic) one, we sold the two laptops and two Nokia handsets to one boy at Olukayode complex Akure at the rate of N35, 000.00, I was given N15, 000.00 out of the money we sold the said laptops and handset to one Biyi ‘m’ I did not know his shop at Olukayode it was the said Awolumate and Papilo ‘m’ that know his shop, even do one of the laptops did not have battery at the same time the screen of the laptop is not good other, of which we took it to Olukayode complex Akure to repear, but I can’t know exactly the shop, but I know that the person that repear the laptop and the person that bought the laptop know themselves very well, after three days of the said robbery incident, I told one Jimoh ‘m’ who is a son to one woman named Americana ‘M’ at Isolo Akure, where we due drink hot drink, that I wanted to sell one black berry handset, it was him that introduced one boy to me, which I sold the handset to him at the rate of N11, 000.00 together with the charger out of what we stole on that day I gave one white something to the said Jimoh ‘M’ which I did not know the name, but he is the one that said I should give it to him, I did not know the location of the said Awolumate, Papilo ‘M’ and Jimoh up till now. One 29/01/2012 I was arrested by the Policemen from ‘A’ Division Akure which we were later transferred to SARS office Akure today 30/01/2012 I did not one day involved myself in this type of robbery operation before.
Interpreted by me:- Joshua
Signed Olatunde
30/01/2012
Exhibit A5 is reproduced thus:
I Olayede Olatunde ‘M’ have been duly cautioned English Language that I am not obliged to say anything unless I wish to do so but whatever I say shall be taken down in writing and may be give in evidence.
Voluntarily elect to state as follows:
Additional statement to my former statement I made to the police on the 30/01/2012, the two laptops bags recovered from my house from my former IPO ‘A’ Division Akure, when they search my house, the two bags were the bags of the two laptops we stole on the 15/01/2012, by the time we robbed the owners at the back of Old Stadium Akure, the said Casio Caculator recovered from my house, was also stole from the scene i.e the house we robbed on same day. I am the owner of the cutlass and the dagger recovered from my house, and we use the said cutlass and the dagger to threatened people on the day we robbed i.e. on the 15/01/2012. I did not know anything about the robbery operation, on the day they robbed Mrs. Adunshina Kayode ‘F’ and Olotu Paul ‘M’ on the 24/01/2012, immediately we succeded in the robbery operation on the 15/01/2012 my second the said Awolumate ‘M’ travel bank to Ilesha in Osun State, and he never came back to Akure before I was arrested, that was all.
3/2/2012.
The above evidence shows categorically and without equivocation that the appellant has been identified as the person who robbed PW1. More so, the appellant identified himself in his confessional statement Exhibits A3 and A5. The Supreme Court in the case of IKEMSON V. STATE (1989) 6 SC (PT 5) 114 per Oputa, JSC at page 479, paras B-C held as follows:
the 3rd accused the 2nd appellant in this Court needed no further identification. By his confession, he identified himself. In his case there was no need for any further identification parade. The 2nd accused was identified by his brother thief the 3rd accused who gave information leading to his arrest.
It is not in every case that an identification parade of a suspect is necessary. It is not a sine qua non to conviction. Where the identity of an accused is not in doubt, as in the present case, there will be no need to embark on an identification parade. See THOMAS V. STATE (2017) 9 NWLR (PT. 1570) 230 and FATAI V. STATE (2013) 16 NWLR (PT. 1361) 1. In the instant case I do not think identification parade is necessary and I so hold. Issue one is resolve against the appellant.
ISSUE TWO
One of the learned counsel for the appellant’s grievances under this issue is that the appellant retracted his confessional statement Exhibits A3 and A5 on the ground that he did not write it neither did he voluntarily sign the exhibits and there is no other evidence outside to corroborate and show that it is true, but the learned trial judge relied on it in convicting the appellant.
The law is that where an accused persons confessional statement is direct, positive and unequivocal as to the admission of his guilt, the statement is enough to ground an accused person conviction, notwithstanding the fact that he has resiled from the statement. However, it is desirable to ensure that other ascertained facts consistent with the confessional statement abound before convicting the accused. It is not the law that where an accused person has retracted his confessional statement, such statement is rendered unreliable or incapable of sustaining a conviction.
Where an accused person retracts or resiles from his confessional statement in his testimony at the trial, as in the instant case, it is of no moment, the Court can convict on such statement, the Court only needs, before convicting on such retracted confessional statement, to first look for some corroborative evidence outside the confession which tends to connect the accused person with the commission of the offence. See MOHAMMED V. STATE (2017) 13 NWLR (PT. 1583) 386; COP V. ALOZIE (2017) 7 NWLR (PT. 1565) 368 and KAMILU V. STATE (2018) 8 NWLR (PT. 1621) 252.
In the instant case, I have carefully perused the evidence adduced by the prosecution and I have also studied the confessional statement of the accused person Exhibits A3 and A5 and the totality of the evidence led at the trial. I found that the contents of the confessional statement had corroborative evidence from the uncontradicted evidence of the prosecution witnesses. PW1 testified that he was robbed at his residence at Old Stadium, Akure. The robbers while armed with dangerous weapons robbed him of his black berry curve 4 phone, cacio calculators, a tecno phone and laptops. PW3 was later traced and found to be in possession of the said blackberry phone but that he bought the phone from the accused person (appellant). PW2 the investigation police officer who investigated the offence, testified that after they arrested PW3, they got the appellant arrested through PW3 and his house was searched and were able to recover dagger, cacio calculator, bags and wallet belonging to PW1. The evidence of PW1, PW2 and PW3 clearly show that the blackberry phone, the cacio calculator and other items were robbed from PW1 by the appellant. The accused appellant himself confessed that he robbed the said blackberry phone from PW1 and that he indeed sold it to PW3 as can be seen in his confessional statement.
The learned trial judge after evaluating the evidence before the Court, held that at page 83 of the record thus:
“The confessional statement of the accused admitted as Exhibits A3 and A5 agree with the oral evidence of PW1 and PW2 to the effect that PW1 was robbed. I am satisfied that prosecution has proved beyond reasonable doubt that there was a robbery.”
A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime and a Court can base its conviction on free, cogent and positive confession. See OMOJU V. FRN (2008) 9 NWLR (PT. 1085) 31; OKO V. STATE (2016) 10 NWLR (PT. 1521) 455; AGAGUO V. STATE (2017) 10 NWLR (PT. 1573) 254 AND AWAOBI V. STATE (2017) 2 NWLR (PT. 1550) 421.
The evidence of the prosecution witnesses and the confessions of the appellant Exhibits A3 and A5, clearly show that the voluntariness of Exhibits A3 and A5 made by the appellant were tested and found to be true, positive and direct with the other material facts and evidence before the lower Court by the learned trial judge and I so hold.
Learned counsel for the appellant reasoned that there is contradiction in between the evidence of PW1 and PW2 as to how the appellant was arrested. A piece of evidence is said to be contradictory to another when it assert or affirm the opposite of what the other assert. It is trite that for a contradiction to be fatal to a case, such contradiction must be so material to the extent that it casts a serious doubt on the entire case but not a minor contradiction or discrepancy. See OLATINWO V. STATE (2013) 8 NWLR (PT. 1355) 126; EMEKA V. STATE (2014) 13 NWLR (PT. 1425) 614 and GALADIMA V. STATE (2017) 14 NWLR (PT. 1585) 187. I do not share the view of the learned counsel for the appellant that there are material contradiction in the evidence of PW1 and PW2 as to how the appellant was arrested.
This is because it is not every contradiction or any form of inconsistency that will affect the substance of a criminal charge which has been proved with credible and unchallenged evidence. The inconsistency and or contradiction must be of such magnitude that goes to the root of the evidence of a witness and must be fatal to the case of a party relying on it. In the case at hand, PW1 stated that he reported the incident at the police station. The person that bought the phone was arrested and took them to the house of the accused, and they were able to apprehend the accused appellant. PW3 stated that he was at the police station when the original owner of the blackberry came to the police station and that he gave the police the accused person phone number and they went and brought him to the police station.
Gleaned from the above pieces of evidence there is nothing nearing opposite in the testimonies of the witnesses and I so hold. Beside, contradiction in the testimonies of prosecution witnesses would not cast or raise doubts in the mind of the trial Court where the contradiction is not material.
Issue two is resolved in favour of the respondent.
ISSUE THREE
Learned counsel for the appellant merely repeated his argument of issue two in arguing this issue and submitted that the learned trial judge did not properly evaluate the evidence before the Court. Evaluation of evidence and ascription of probative value thereto is the exclusive preserve of the trial judge who saw and heard the witnesses. An appellate Court would only interfere where this exercise is shown to be perverse. SeeSTATE V. SALAWU (2011) 18 NWLR (PT. 1279) 883; AYAN V. STATE (2013) 7 SC (PT. IV) 1 and USMAN V. STATE (2014) 5 SC (PT. 1) 61.
The law is that once a trial Court has properly evaluated and made correct findings on the evidence before it, an appellate Court will be reluctant to disturb such findings, unless such findings are shown to be erroneous or perverse.
Where an appellant alleges improper evaluation of evidence by the trial Court, as in the instant case, he has the onus to specify convincingly the evidence improperly evaluated or not evaluated and to show that if the error had been corrected, the conclusion reached, would have been different.
In the presence case, I have perused the entire record, specially the evidence adduced by both sides and its evaluation by the trial judge. It is clear from the totality of the evidence adduced before the lower Court, apart from the facts that the findings were based on the evidence before the Court, it diligently complied with the principle of evaluation of evidence before making its findings. In the circumstances, it is my firm view that this Court, will have no basis for interfering with the just finding of the trial Court.
I do not find any merit in the appellant’s complain that the Court did not properly evaluated the evidence before it and has not succeeded in showing that those findings were perverse.
Issue three is accordingly resolved in favour of the respondent.
Having resolved the three issues in this appeal against the appellant, the appeal lacks merit and it is accordingly dismissed. The conviction and sentence of the appellant by the trial Court is hereby affirmed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read before now, the draft Judgment and the record of Appeal and subscribe to the reasoning and conclusion reached by my learned brother R. M. Abdullahi, JCA that this appeal be dismissed.
The confessional statement of the Appellant, Exhibits A3 and A5 were corroborated by the other prosecution evidence of Pw1, Pw2 and Pw3 such that the identity and involvement of the Appellant in the armed robbery charged was proved beyond reasonable doubt.
Appeal dismissed.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the privilege to read in advance the well reasoned judgment of my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA dismissing this appeal and affirming the conviction and sentence of the trial Court. I agree with his reasoning and conclusion and adopt them as mine.
I wish to add, on identification parade that identification evidence is one tending to show that the person charged with an offence is the same person who committed the offence. See UKPABI V. STATE (2004) 11 NWLR PT 884, 439. In other words identification parade is not a sine qua non to a conviction for a crime. In the said case of UKPABI V. STATE (SUPRA), the Supreme Court laid down three instances where an identification parade is essential:-
1) Where the victim did not know the accused and his first acquaintance with him was during the commission of the offence;
2) Where the victim or witness was confronted by the offender for a very short time; and
3) Where the victim due to time and circumstance, might not have had the full opportunity of observing the features of the accused.
The evidence of PW1 was that the light was off and only the light from the TV was on. This TV light may hardly be enough to use in identifying someone in the night. Be that as it may I find that this is not fatal to the prosecution’s case. Firstly the prosecution did not rely on this evidence solely to identify the appellant. There were Exhibits 3 and 5 as well as the testimony of PW3, the purchaser of the stolen phone who led the police to the vendor of the phone who was also the robber.
Identification parade is not the only way of establishing the identity of an accused person in relation to the offence charged. See the Supreme Court case of EYISI V. THE STATE (2001) 8 WRN, 1 AT 9-10.
As held in the case of ARCHIBONG V. STATE (2004) 1 NWLR, PT 855, 488 by this Court, where an accused by his confession has identified himself, there would be no need for any further identification parade. This is especially so as in this case where the evidence of PW3 the buyer of the stolen phone has not only unmistakenly identified the appellant but he led the police to the house of the appellant to arrest him. Appellant’s issue (1) on identification parade is hereby resolved in favour of the respondent.
I wish to briefly emphasize the position of the law on confessional statement to the appellant’s counsel who seem a bit misconceived on the issue. By SECTION 29(2) & (3) of the EVIDENCE ACT, 2011 a confessional statement is inadmissible if it is involuntary or made pursuant to a promise or inducement. In other words it is only a free and voluntary confession that is admissible. The appropriate time to challenge the voluntariness of a confessional statement is at the time the statement is sought to be tendered. Once such objection is raised the Court is bound to conduct a trial within trial to determine the voluntariness of the statement. If satisfied, the Court will admit it and if dissatisfied of its voluntariness the Court will reject it. If the accused does not challenge the voluntariness at the time of tendering the statement but merely denies making it then the Court can admit and the only issue is one of weight. Any attack on voluntariness of a confessional statement which was already admitted without objection or upon a trial within trial by the Court will be of no moment and the Court is entitled to discountenance such stale objection.
The learned counsel to the appellant is clearly misconceived on these fine distinctions in confessional statements. My learned brother has in the lead judgment properly set out the law on confessional statements. This is to the effect, that a free and voluntary confession which is direct, positive and properly proved is sufficient to sustain a conviction without corroborative evidence. He even pointed out the corroborative evidence of PW1 and PW3 which the Court used to convict the appellant.
The only troubling part for me in this judgment is the conviction and sentence for armed robbery under the ROBBERY AND FIREARMS (SPECIAL PROVISION(s) ACT. From the particulars of the charge, it stated that the appellant was armed with guns and other dangerous weapons.
There was no evidence through out the proceedings of guns or other dangerous weapons. PW1 the only victim to testify never gave evidence that the appellant was armed with any gun(s) or put him in fear of harm or death with the iron rod or dagger he said that the appellant held. In the confessional statement of the appellant, he stated that the dagger and cutlass found in his house were used to frighten people they robbed. A dagger was admitted in evidence as Exhibit A2. There is a doubt to the weapon(s) the appellant was with at the time of the offence from the evidence. Was it iron rod and dagger, cutlass and dagger? It is trite that every doubt shall be resolved in favour of the appellant in a criminal case. I so hold. The offence of armed robbery is not complete unless the robber was armed with a form of firearm or other dangerous or Offensive weapon at the time of the robbery. By Section 1(2) of the ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT, CAP R. 11 VOL. 14 LAWS OF THE FEDERATION 2004, armed robbery is said to occur where at the time of the robbery, the offender is armed with a firearm or any offensive weapon or in company of any person so armed or at or immediately before or immediately after the robbery, the said offender wounds or uses any personal violence to any person. See the case of LAWAL ABUBAKAR (DAN LAWAL) V. THE STATE (2015) LPELR 25961.
It was not proved in this case that the appellant robbed the victim while armed with a gun or other dangerous weapon which weapon was specified and proved in the charge and prosecution or that he used personal violence either shortly before, during or shortly after the robbery. This is especially so in view of the evidence of PW1 the victim which I quote for the avoidance of doubt; “The one that came into the room is the accused person… when he came inside, he took N11, 000 from my pocket, took my black berry phone curve 4, also a techno phone and a laptop…”
The Appellant could not have been armed with iron rod and dagger and still used his two hands to collect all these items. This means the prosecution failed to prove an essential element of the Offence Of armed robbery. As decided by this Court in the case of SA’ADU DERIBA (DRIVER) V. THE STATE (2016) LPELR ? 40345, failure to prove an essential ingredient of an offence is fatal to the case. This notwithstanding the evidence on record proves the offence of robbery beyond reasonable doubt against the appellant. While dismissing the appeal I would not confirm the judgment of the trial Court, instead I return a conviction for robbery contrary to and punishable under 402 OF THE CRIMINAL CODE CAP 307 LAWS OF ONDO STATE, 2006. I accordingly sentence the appellant to fourteen years imprisonment without an option of fine.
It is becoming a trend now that prosecuting counsel rather that charge and try accused persons under the criminal/penal codes for robbery now classify every robbery as armed robbery and charge and try them under the Act. The definition of robbery under SECTION 401 OF THE CRIMINAL CODE, CAP 37 OF ONDO STATE, 2006 shows clearly that the law is sufficient to cover cases of robbery where firearms or personal violence is not involved. That section and the punishment Section, 402 is not a strict liability offence. The Court has a discretion to punish up to fourteen years and life imprisonment. For the avoidance of doubt I reproduce Section 401:
“Any person who steals anything, and at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent, or overcome resistance to its being stolen or retained is said to be guilty of robbery.”
The trial Courts are most often not vigilant enough to curb this trend. The trend is of serious concern to me and it should be to the society since trial Courts can convict without proof of the offender being armed with a firearm or other dangerous weapon during the robbery as required by the Act relying mostly on confessional statements as in this case. Something needs to be done to curb this trend that puts our young people on death row instead of prison. While one does not condone robbery of any kind, my strong conviction is that punishment should be commensurate with the offence committed and in accordance with the law.
Appearances:
Emeka Obegolu, Esq.For Appellant(s)
Olubunmi Niyi Arajuwa (DLDLR, MOJ Ondo State)For Respondent(s)
