OLUWAYOMI v. STATE OF EKITI
(2020)LCN/15215(CA)
In The Court Of Appeal
(ADO-EKITI JUDICIAL DIVISION)
On Tuesday, March 31, 2020
CA/EK/26C/2018
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Fatima Omoro Akinbami Justice of the Court of Appeal
Paul Obi Elechi Justice of the Court of Appeal
Between
ADEDAYO OLUWAYOMI APPELANT(S)
And
THE STATE OF EKITI RESPONDENT(S)
RATIO
THE STANDARD OF PROOF IN CRIMINAL TRIAL
It is an established principle of law in the light of the Evidence Act and plethora of case laws that the standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However, proof beyond reasonable doubt does not mean proof beyond shadow of doubt. In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify during the proceedings. Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused fall within the confines of the particulars of the offence charged. PER ORJI-ABADUA, J.C.A.
ESSENTIAL INGREDIENTS OF THE OFFENCE OF ROBBERY
Also the essential ingredients of the offence of robbery as stated in the case of Bello vs. The State (2007) 10 NWLR Part 1043 page 564 are as follows:- “(a) That there was a robbery or series of robbery. (b) That each robbery was an armed robbery. (c.) That the accused was one of those who robbed. The above stated ingredients of the offence of robbery must co-exist and proved together and not disjunctively. PER ORJI-ABADUA, J.C.A.
THE CRIMINAL OFFENCE OF CONSPIRACY
Also, the offence of conspiracy is completely committed the very moment two or more persons have agreed to do, either immediately or at some future time, certain things. The law is well established that it is not at all necessary that any one thing should be done beyond the agreement mutually reached upon. Thus, at that crucial stage, even if the conspirators developed a cold-feet (out of sheer cowardice), repented and stopped, due to lack of opportunity to carry out their mutual agreement et al, the offence is deemed a fait accompli. The Supreme Court had repeatedly expressed that in order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. Indeed one conspirator may be in one town and the other in another town and they may never have seen each other. The ingredients of the offence of conspiracy are: (i) There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds. (ii) The persons must plan to carry out an unlawful or illegal act, which is an offence. (iii) Bare agreement to commit an offence is sufficient. (iv) An agreement to commit a civil wrong does not give rise to the offence. (v) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator. (vi) A conspiracy is complete if there are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective. PER ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): An Information containing three Counts was initially filed on the 21st September, 2017 before the High Court of Ekiti State, against the Appellant and Messrs Ogunleye Ige and Daramola Seyi, in which they were charged as the 1st, 2nd and 3rd accused persons respectively. They individually and distinctly pleaded not guilty to each Count on the 16th October, 2017. However, a new information dated the 12th January, 2018 was filed on the same date and on the 16th January, 2018, the initial information was substituted with the new one and Proof of Evidence with the leave of the Court. On that same 16/1/2018, the Amended Information containing four Counts were read to the accused persons to which they individually pleaded not guilty. They were charged with the offences of:
“Count l: Conspiracy contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 with the Particulars of Offence stating that they, on or about the 4th day of August , 2016 at Dynamic Lounge, Bawa Estate Road, Ado-Ekiti within the jurisdiction of the Court, did conspire together to commit felony to wit: Armed Robbery.
COUNT II: 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. The Particulars of Offence read that: ADEDAYO OLUWAYOMI, OGUNLEYE IGE and DARAMOLA SEYI, on or about the 4th day of August, 2016 at Dynamic Lounge, Bawa Estate, Ado-Ekiti within the jurisdiction of this Court, while armed with offensive weapons, robbed one KUPOLUYI TEMIDAYO of his phones.
COUNT III: ARMED ROBBERY, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federal of Nigeria, 2004 with the PARTICULARS OF OFFENCE reading that: ADEDAYO OLUWAYOMI, OGUNLEYE IGE and DARAMOLA SEYI, on or about the 4th day of August, 2016 at Dynamic Lounge, Bawa Estate, Ado-Ekiti within the jurisdiction of this Court, while armed with offensive weapons, robbed one OJO ABAYOMI of his Blackberry and Nokia phones.
COUNT IV: ARMED ROBBERY, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federal of Nigeria, 2004. The Particulars of Offence read that: ADEDAYO OLUWAYOMI, OGUNLEYE IGE and DARAMOLA SEYI, on or about the 4th day of August, 2016 at Dynamic Lounge, Bawa Estate, Ado-Ekiti within the jurisdiction of the Court, while armed with offensive weapons, robbed one Felix Arhawho of the sum of N600.00 and Laptop.”
At the trial, five witnesses were presented by the Prosecution while the accused persons testified on their behalf without calling any other witness. In the end, the trial Court, on the 6th February, 2019 delivered its judgment and found that no evidence was adduced in proof of Count IV and, as such, it was not proved beyond reasonable doubt. All the accused persons were then discharged and acquitted in respect of Count IV. It also found that there was no evidence linking the 2nd accused person with any of the offences charged on the Information and none of the Prosecution witnesses identified him as having taken part in the armed robbery. He was accordingly discharged and acquitted. Then with respect to the 1st and 3rd accused persons, they were found guilty of Counts I, II and III and they each convicted accordingly and sentenced to death in respect of the said Counts.
The Appellant who was the 1st accused person in the Charge was disgruntled at the judgment, and then filed his Notice of Appeal on the 12th February, 2019 based on three grounds of appeal. The record of appeal was transmitted to this Court on the 14th April, 2019. The Appellant’s Brief of Argument was filed on 7/5/2019 while the Respondent’s Brief was filed on 13/9/2019 but the same was deemed as properly filed and served on 16/3/2020. The Appellant’s Reply Brief already filed on 22/1/2020 was equally deemed as duly filed and served on the same 16/3/2020. Two issues were projected by the Appellant in his Brief of Argument for the determination of this Court. They are as follows:
“1. Whether from the totality of the evidence proffered by the Prosecution, the Learned trial Judge was not wrong to have found that the Prosecution proved the Appellant committed the offences charged beyond reasonable doubt.
2. Whether the learned trial Judge could in law rely on the allege confessional statement of the Appellant Exhibit E in convicting him in view of the peculiar facts and circumstances of this case.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The Respondent adopted the two issues raised by the Appellant.
In respect of issue No. 1, the Appellant’s learned Counsel, Olalekan Olatawura, Esq., placed reliance on Section 135 of the Evidence Act, 2011 and the cases of Udo vs. The State(2016) LPELR 40721 SC, and Orisan vs. People of Lagos State (2019) LPELR 46509 and submitted that the burden is on the prosecution to not only establish but prove beyond reasonable doubt that the accused person committed the offence(s) for which he is standing trial. He mentioned the cases of Freeborn okiemute vs. The State (2016) LPELR-40639 SC, Olabode Abirifon vs. The State (2013) 13 NWLR Part 1372, Ajaegbo vs. The State (2018) LPELR-44531 SC, and listed the three different ways through which the guilt of an accused person in criminal trials can be established, that is to say; (i) Direct evidence, (ii) Circumstantial evidence, (iii) Confession of the accused person.
He further cited the cases of Busari vs. The State (2015) EJSC VOL 9 page 1 at 20; Aigbadion vs. The State (2000) 7 NWLR Part 666 page 705; State vs. John (2013) 12 NWLR Part 1368 page 337 at 360, Nwokedi vs. COP (1977) NSCC 127 and Nwodo vs. The State (2019) 3 NWLR Part 1659 page 228 at 243 and stated that the onus rests squarely on the prosecution to establish all the ingredients of the offence beyond reasonable doubt even where the accused person in his statement to the Police admits committing the offences charged.
Arguing in respect of Counts I and II dealing with the offence of robbery, learned Counsel also made reference to the cases ofBello vs. The State (2007) 10 NWLR Part 1043 page 564; Nwachukwu vs. The State (1985) 1 NWLR Part 112 page 18; Orisa vs. The State (2018) LPELR-43896 (SC); Yongo vs. COP (1992) 4 SCNJ 113; Nsofor vs. The State (2004) 15 NWLR Part 905 page 292, Olusoji vs. A. G. (1965) (sic) NWLR 111 and Busari vs. The State (supra) at 30 and submitted that to secure a conviction for the offence of armed robbery, the prosecution must establish the following ingredients of the offence conjunctively: (i) That there was a robbery, (ii) That the robbery was an armed robbery, (iii) That the accused was one of those who robbed or took part in the robbery. If the prosecution fails to prove any of the above ingredients, no judex ought to conclude that the offence has been proven against an accused person.
Counsel pointed out that the offences the Appellant stood trial for were allegedly committed on the 4th August, 2016, even though they were arrested on 12th September 2016 precisely a month thereafter. He stated that the trial Court failed to thoroughly evaluate the totality of the evidence proffered by the prosecution before finding the Appellant guilty thereby giving a perverse decision which has occasioned a grave miscarriage of justice. He referred to the evidence of PW1 and PW2 particularly under cross-examination where he said that the Appellant was masked and then contended that that posed a material contradiction meaning that either both of them or one of them is lying and that ought to have been taken notice of by the Court but which it failed to do. He cited the case of Fatai Olayinka vs. State (2007) LPELR 2580, per Tobi, J.S.C, on the effect of contradictions in the evidence of witnesses. He submitted that in applying the maxim “falus in uno est falsus in omnibus (falsity in one is falsity in all)”, the totality of their evidence as to a robbery on the 4th August, 2016 is, therefore, in doubt. He also referred to Tamuno vs. COP (2010) All FWLR Part 538 page 921 @P39-934 H-A, Ekuma vs. The State (2018) LPELR 44663 and stated that no Court ought to ascribe credibility to their story of a robbery on 4th August, 2016 or at all as they cannot pick and choose which part of their evidence to believe.
He further referred to Danladi vs. State (2017) LPELR 43627 56-57, per Omoleye JCA, where it was emphatically stated that “The veracity of a witness under cross examination can be tested by the evidence elicited from him under the heat of cross examination. For in the eyes of the law, the evidence garnered through cross-examination is more reliable than that through examination in chief”. The cases of Abdullahi vs. State (2018) LPELR 44491-CA and MTN vs. Corporate Communication Investment Ltd (2019) LPELR-47042 SC, per Kekere Ekun, J.S.C., were also cited on the materiality of evidence elicited during cross-examination.
He referred to Exhibit B and said that PW3 who first took the initial statement of the Appellant on 12th September, 2016 when he was first arrested made no mention of any robbery incident reported on the 5th August, 2014 at the Oke-Ila Police Station. He further made reference to the oral testimony of PW3 shown at page 54 of the record where she said thus: “On that day (12/9/2016) her DPO received a distress call from Irewumi quarters along Iworoko Road that the Community had arrested two hoodlums… They went there and brought 1st and 2nd Defendants and some members of the community. He (sic) was alleged that the Defendants have been terrorizing the Community.”
Learned Counsel then pointed out that she did not say they arrested robbers and no such evidence was proffered before the lower Court. He further made reference to her evidence under cross-examination, where she said, “the 1st and 2nd Defendants were not arrested at Dynamic Club on 12/9/2016, I was not present when the Defendants were arrested. The place where the Defendants were arrested was the same place the robbery took place, I visited Dynamic Club on 12/9/2016, nothing was recovered from Dynamic Club when we visited on 12/9/2016.” He contended that this a case of wrongful evaluation of evidence when the trial Court curiously found that “She confirmed that in August 2016 when the owner of Dynamic Club located at Irewumi Quarters, Iworoko road, Ado-Ekiti reported a case of armed robbery, herself and some Policemen visited the Club with PW2”. He highlighted the evidence of PW4 who took the statement of the 3rd accused person where he said: “Sometimes in September 2016, the defendants were arrested by the Police in connection with a case of robbery”, and argued that the date of the robbery was not established as 4th August, 2016, since the Appellant was allegedly also arrested for a robbery in September, 2016. Learned Counsel further contended that PW5 who took the 2nd statement of the Appellant tendered as Exhibit E and said that the complainant volunteered statements to him, but failed to tender that statement in Court. He stated that that makes it impossible to conclude whether it was the alleged incident of 4/8/2019 or the robbery of 12/9/2019. He further stated that no witnesses identified any of the Laptops in the possession of the accused persons when they were arrested as being theirs or part of what was removed from the lounge. The laptops were tendered as Exhibits C and C1 and neither PW1 nor PW2 who alleged that their laptops were stolen identified the laptops as those stolen from them on 4/8/2016 for the presumption raised by being in possession of stolen goods to apply, and, or be invoked. He cited the case of Smart vs. The State (2016) LPELR-40827 (SC), per Rhodes-Vivour JSC., and submitted that failure to call the persons whom PW5 said, the Defendants claimed that sold the laptops to and, who he spoke to in the course of his investigation, and, who were not named nor were their statements obtained or placed before the Court to disprove the Appellant’s assertions, and, who are vital witnesses, weakens the case of the Prosecution. He strongly asserted that the occurrence of robbery on 4/8/2016 has not been proved beyond reasonable doubt by credible evidence contrary to the findings of the trial Court.
Learned Counsel further questioned the identification of the Appellant. He relied on the decision in Agboola vs. State (2013) LPELR 20652 SC, per Ariwoola JSC, where identification evidence is said to mean evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence. And whenever the Court is confronted with identification evidence it must be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was the person who actually committed the offence with which he is charged”. Counsel also relied on Akinrinlola vs. The State (2016) LPELR-40641 and Tamuno vs. COP (supra) in support. He asserted that there were only two eyewitnesses who gave evidence of the armed robbery. He expressed that the evidence of PW1 ought to have been treated with caution since he failed to give a prompt description of the Appellant to the Police. On this point he also turned to the testimonies of PW2 and PW5, where PW2 said in his evidence in chief that he was able to identify the robbers immediately they brought them out as one of the guys who robbed them on 4/8/2016 but under cross-examination he said that he was unable to recognise or identify the robbers and that the robbers were masked. He said that PW5 did not mention in his evidence that either of PW1 and PW2 identified the Appellant as one of the robbers. Ikemson vs. The State (1989) 3 NWLR Part 116 page 455, and Owolabi vs. The State (2019) 2 NWLR Part 1657 page 525 at 538 and Mendrick V. THE STATE (2018) LPELR 45549, per Georgewill, JCA, in which it was held that the law is that the Court must take into consideration the description of the accused person given to the police immediately or shortly after the commission of the offence and in ascribing probative value the to the evidence of identity. The Courts are enjoined to guard against cases of mistaken identity and in doing so, must take into account certain factors such as (a) The circumstances in which the eye witness saw the suspect or accused, (b) the length of time the witness saw the suspect, (c) the lightning conditions (d) the opportunity of close observation and (e) the previous contacts between the suspect and the witness. He submitted that the doubt in the case of the prosecution is quite apparent, as there was nothing relating to the description of the accused given to the Police after the commission of the offence or the features of the accused noted by the victims and communicated to the Police; thus, calling into question the probative value of such evidence. Counsel referred to the case of Owolabi vs. The State (2019) 2 NWLR Part 1657 page 525 538 where Aka’ahs JSC., further expounded the law expressing that “proper identification includes: (a) The description of the accused given to the Police shortly after the commission of the offence, (b) the opportunity the victim had of observing the accused; and (c) what features of the accused were noted and communicated to the Police. See Ikemson v the State (1989) 3 NWLR PT. 110 455; Akinrinlola v the State (2016) NWLR PT 1537 73.” He also made reference to Onwe vs. The State (2017) LPELR-42589; Igabele vs. The State (2006) LPELR 2850; Ogunjimi vs. The State (2017) LPELR 42768 where Tsammani, J.C.A., opined that a piece of evidence is said to be contradictory of each other if they are inconsistent to each other and therefore mutually repulsive to each other and thus cannot stand in the presence of the other. In other words, where the Court accepts the other, it means it has to reject the other since both cannot the true. The other must be true while the other false or untrue. In such a circumstance, the Court cannot accept one and rely on the other. No, it must reject both.” He referred to the cases of Kolawole vs. The State (2015) LPELR 24781 CA, Denton-West JCA, Eko, JSC in Onwe vs. The State (2017) LPELR-42587-SC said that in the face of material contradictions there can be no proof beyond doubt in criminal matter; STATE V AZEEZ (2008) ALL FWLR @ 424, 1423 @ 1463, YAKUBU V IDA (2008) LPELR 5109 CA, KALE V COKER (1982) 12 S.C 252 @ 257-258 and S.16 Court of Appeal Act. It was further submitted that the totality of the evidence of the Prosecution on the identity of the Appellant is resonate with doubt which the trial Court ought to have resolved in favour of the accused, and which it failed to do. Learned Counsel submitted that the present case showcases a legitimate scenario for this appellate Court to not only reappraise and re-evaluate the evidence placed before the trial Court but to interfere in reversing conclusions reached thereat leading to the conviction and sentence of the Appellant.
On the offence of conspiracy to commit armed robbery, learned Counsel then made reference o the cases of Haruna vs. State (1972) 8-9 SC 174, Garba vs. COP (2007) 16 NWLR Part 1060 page 378, Busari vs. The State (2015) LPELR 24279 SC, Nwosu vs. The State (2004) 15 NWLR Part 897 page 446, and Oduneye vs. State (2001) 2 NWLR Part 697 page 311 wherein conspiracy was defined as an agreement by two or more people to commit an unlawful act coupled with the intent to achieve the agreements’ objective. The fundamental point is that the offence is the meeting of the minds of the conspirators to commit an offence and meeting of minds need not be physical. The offence can be inferred by what each person does or does not do in furtherance of the offence of conspiracy. He pointed out that the evidence proffered in connection with the crime is interwoven yet the Court discharged and acquitted the 2nd accused. He then argued that since the trial Court discharged and acquitted the 2nd accused person based on the evidence used in convicting the Appellant, by implication, and the case made out against the appellant is doubtful, the conviction of the appellant for the same offence of conspiracy cannot stand. He cited the case of Ebri vs. The State (2014) All FWLR Part 216 page 420, (2004) 8 MJSC 47, per Niki Tobi, J.S.C., where it was held: “The position of the law is that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar to the extent that the evidence is inextricably woven around all the accused persons, the discharge of one must as a matter of law affect the discharge of others. This is because if one or more is discharged for want of convincing evidence, that must automatically affect all others in the light of the fact that the evidence against all the accused persons is tied together like Siamese twins at the umbilical cord with their mother.” The case of Tamuno vs. COP (supra). Counsel then contended that if the commission of any robbery has not been proved and the Appellant was not positively and conclusively identified as one of the robbers, then conspiracy to commit the robbery cannot be sustained in the circumstances. He urged this Court to resolve this issue in favour of the Appellant.
With regard to issue No. 2, bordering on the reliance placed on the alleged confessional statement of the accused tendered as Exhibit E in convicting him, learned Counsel recognised that in law, a confessional statement of an accused person can ground a conviction once it is established that same was freely given, devoid of any inducement, threat, torture or howsoever in obtaining the same. He reproduced the contents of Section 29(1)-(3) and (5) of the Evidence Act 2011, Section 16 of the Court of Appeal Act and the cases of Agbaje vs. Adigun (1993) I NWLR Part 269 page 261 at 272 and Fatai Olayinka vs. The State (2007) 4 SCNJ 53 and submitted that an illegally or wrongly admitted evidence can be disregarded by either the appellate Court and or even the lower Court which admitted the same and the Court cannot rely on same in reaching its decision, therefore, any finding or decision based on such inadmissible evidence would be perverse and an appellate Court when faced with such a situation, can interfere.
It was contended by the Appellant that there was non-compliance with the provisions of Section 9(3) of the Administration of Criminal Justice Law, 2014, Ekiti State which prescribed that when any person who is arrested with or without a warrant volunteers to make a confessional statement, the Police Officer shall ensure that the making and taking of such statement is recorded on video and the said recording and copies of it may be produced at the trial provided that in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice. Provided that non compliance with any requirement of Subsection (3) above shall not preclude the admissibility in evidence of any confession otherwise admissible under the relevant provision of the Evidence Act. He cited the cases ofZhiya vs. People of Lagos State (2016) LPELR-40562, and Fabian Matthew vs. The State in Appeal No. CA/L/1126/2011 which were decided under a similar provision of Section 9(3) of Administration of Criminal Justice, Law of Lagos State, the evidence of PW5 where he admitted that there was no video coverage of the recording of the statement and that the 1st accused person’s lawyer was not present when he was recording the statement, the case of Agbanimu vs. FRN (2018) LPELR-43924 CA, per Otisi, J.C.A., wherein it was expressed that Section 9(3) Administration of Criminal Justice Law does have the force of law that non compliance with the provisions automatically throws the confessional statement out of the window. He then argued that the said Section 9(3) of the ACJL of Ekiti State is complimentary to the provisions of Section 29 of the Evidence Act and not that the provisions of the Evidence Act supersedes the Section 9(3) of the ACJL. He cited several other authorities on the purport of the said Section 9(3) of the ACJL and submitted that it was therefore wrong on the part of the trial Court when it only admitted the said confessional statement but also ascribed credibility thereto. He further submitted that if the provisions of Section 9(3) of the ACJL is said to be inapplicable, then the only evidence left to substantiate or corroborate the alleged confession is the contradictory evidence of PW1 and PW2. He finally referred to State vs. Sanni (2018) 9 NWLR Part 1624 page 278 at 303 where it was held that where by the finding or decision, it is clear the Court shut its eyes to the obvious and the follow up being a decision that has occasioned a miscarriage of justice or found to be perverse, then appellate Court will be right to remedy the anomaly. He stated that the statement of the Appellant used in convicting him was wrongly admitted in evidence having not complied with the provision of Section 9(3) of the Administration of Criminal Justice Law,Ekiti State
He therefore urged that this appeal be allowed.
In the Respondent’s Brief, its learned Counsel, Olawale Fapohunda, Esq., the A. G., Ekiti State submitting in respect of issue No. 1 firstly acknowledged the enormous burden placed on the Prosecution by Section 135 of the Evidence Act to prove the guilt of accused person beyond reasonable doubt. The Prosecution must prove the three ingredients of the offence of robbery contemporaneously, that is to say: (1) That there was a robbery. (2) That the robbery was an armed robbery, and (3) That the accused person took part in the robbery. He cited the cases of Attah vs. State (2010) All FWLR Part 540 page 1224 at 1256 and Sowemimo vs. State (2011) All FWLR Part 599 page 1064 at 1086 in support. He further relied on the decisions in Michael Taiye vs. State (2018) All FWLR Part 969 page 737 at 757-758; Adamu vs. State (2018) All FWLR Part 925 page 48 at 79; Omoregie vs. State (2018) ALL FWLR Part 925 page 1 at 17 and Famuyiwa vs. State (2018) All FWLR Part 919 page 1 at 24 and submitted that the guilt of an accused person can be proved by any of the three ways enunciated therein i.e. (1) By a voluntary confessional statement of the accused person. (2) By circumstantial evidence which must be cogent, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence but him. (3) By evidence of eye-witness or witnesses otherwise known as direct evidence. He made reference to the evidence of Kupoluyi Temidayo, the manager of Dynamic Lounge, Bawa Area, Ado-Ekiti, who testified as PW1 on 16/1/2019 and contended that the excerpts from the uncontroverted testimony of PW1 shows vividly that there were robberies at Dynamic Lounge on 4/8/16, the robberies were armed robberies and that the Appellant actively participated in the robberies. He said that evidence was never impeached by the Appellant’s Counsel during cross-examination. He submitted that the same was reinforced and corroborated by the testimony of PW2, Ojo Abayomi, the owner of the Dynamic Lounge who was present during the incident and was violently robbed and dispossessed of his belonging that night.
Learned Counsel referred to the Appellant’s Counsel’s remark on the failure to tender in evidence, the statement made by PW2 a day after the incident, his invocation of Section 167(d) of the Evidence Act and submission that failure to tender the same before the trial Court amounted to withholding evidence favourable to the Appellant, and his contention that there are material contradictions in the testimonies of PW1 and PW2 on whether the robbers were masked or not during the incident, and then argued that the Prosecution is under no legal obligation to tender the extra-judicial statement of a Prosecution’s witness. He submitted that the main purpose of tendering such statement is for cross-examination. He cited the cases of Attah vs. State (2010) 30 WRN page 1 at 9; Daniel Kekong vs. State (2018) All FWLR Part 923 page 68 at 90-91, and Ibrahim Kamila vs. State (2018) ALL FWLR Part 965 page 1 at 44 Eko, J.S.C, in support. He submitted that it is an established principle of law that before the prosecution witness’ statement can be admitted and relied on to establish any contradiction, condition precedents in Section 232 of Evidence Act must be laid by the cross-examining party. He explained that the Appellant’ Counsel applied for PW2’s statement for the purpose of tendering and not for contradiction and an objection was raised to that effect on the ground that in law he cannot apply for the statement for the purpose of tendering without compliance with the provisions of Section 232 and 235 of the Evidence Act, 2011.
On the identity of the Appellant, learned Counsel explained how PW1 was informed of the arrest of the Appellant sometimes in September, 2016 and he moved to the scene where the Appellant was apprehended together with one other person and immediately identified him upon sighting him. He identified him as the robber that was called “Mopol” amongst the robbers who robbed them on 4/8/2016. He argued that the failure of PW1 to describe the features of the Appellant to the Police when the case was reported is not fatal to the Prosecution’s case. He referred to the evidence of PW1 as to where he was hiding very close to his personal office during the robbery operation that lasted for about 15-20 minutes in a well illuminated environment and that his office where the Appellant entered was very close to the generator house where he was hiding and clearly described what the Appellant wore at the time of the incident. He referred to the cases of Abasi vs State (1992) 8 NWLR Part 260 page 383 at 385; Owolabi vs. State (supra); Mendrick vs. State (supra); Otti vs. State (1991) 8 NWLR Part 207 page 103 at 117; Usung vs. State (2010) 5 WRN page 132 and Ikemson vs. State (1989) 3 NWLR Part 110 page 455 and stated that the identification of the Appellant by PW1 was spontaneous and the question of identification is a question of fact to be considered by the Court, and where it is spontaneous and natural, the trial Court will not be in error to attach weight to it unless there are other exculpatory evidence in favour of the accused. He submitted that there was no mistake in the identity of the Appellant in view of the unchallenged evidence of PW1 which fixed the Appellant to the scene and linked him with the commission of the offences. He referred to Exhibit E, the Appellant’s confessional statement which was admitted after a trial within trial was conducted and submitted that in the light of the evidence before the trial Court, the Appellant was unmistakably identified.
On the offence of conspiracy, he argued that it is not automatic that where two or more persons are charged with the commission of an offence the discharge and acquittal of one of the must also affect the others, that is, it must lead to the discharge and acquittal of the others. He said that bearing in mind the decision in Yusuf vs. State (2018) All FWLR Part 938 page 1851 at 1882, the Court must consider two things: (1) The evidence against all the defendants must be the same or similar. (2) The evidence must be extricably woven around all the defendants. He submitted that the Appellant was clearly identified and he confessed to the commission of the offence. He said that the 2nd accused person who was discharged and acquitted denied any involvement in the alleged offences and there was no evidence before the Court linking him to the commission of the offence except that he was arrested with the Appellant sometime in September after the incident. Learned Counsel said that the circumstances of this case is different from those in the case of Ebri vs. State and Tamuno vs. COP. He further made reference to Adesina vs. State (2010) 35 WRN page 49;Yaro vs. State (2008) 2 WRN page 131;Attah vs. State (supra); Ajiboye vs. State (1994) 8 NWLR Part 364 page 587 at 593; Shodiya vs. State (1992) 3 NWLR Part 230 page 457 and Kalu vs. State (supra) page 396, and submitted that evidence of conspiracy is usually a matter of inference by the Court from surrounding facts and circumstances. He said that the essential ingredient of the offence of conspiracy lies in the bare agreement and association to do an unlawful thing. It is immaterial whether the accused had knowledge of its unlawfulness. He submitted that since the evidence adduced by the Prosecution points to the accused as the perpetrator of the crime alleged to have been committed and the evidence is tested, scrutinised and accepted by the Court, the onus is on the accused to rebut the presumption of guilt or to cast a reasonable doubt in the Prosecution’s case. He submitted that no evidence was adduced upon which any doubt can be perceived by the trial Court. He urged this Court to resolve the issue against the Appellant.
In respect of issue No. 2, learned Counsel submitted that the contention of the Appellant thereunder is misconceived and at variance with the provisions of the Administration of Criminal Justice Law of Ekiti State, 2014 in view of the proviso to Section 9(3) which categorically stated that non-compliance with any requirement of Subsection (3) shall not preclude the admissibility in evidence of any confession otherwise admissible under the relevant provision of the Evidence Act. He submitted that trial within trial was conducted following the objection of the Appellant to the voluntariness of the statement in conformity with Section 29(3) of the Evidence Act. A Ruling was delivered by the trial Court overruling the Objection and admitted the same as Exhibit E. He stated that the legal authorities cited by the Appellant’s Counsel are inapplicable because they cannot provide justification to the contention that Exhibit E was wrongly admitted.
He equally cited the cases of Michael Taiye vs. State (supra) at 760; Lekan Olaoye vs State (2018) All FWLR Part 961 page 1532 at 1557; Haruna vs. Attorney General, Federation (2012) All FWLR Part 632 page 1617; Alarape vs. State (2001) All FWLR Part 41 page 1872; Irene Nguma vs. A. G.; Imo State (2014) 16 WRN page 1 at 24-25, Hassan vs. State (2001) FWLR Part 74 page 212; Usung vs. State (2009) All FWLR Part 462 page 1203; Abdulmumuni vs. FRN (2018) All FWLR Part 969 page 774 at 792; Nicholas Okoh vs. Nigerian Army (2018) All FWLR Part 963 page 1863 at 1875 and Bolanle vs. State (2010) WRN VOL. 4 page 26 at 34, and stressed that an accused who wishes to impeach his earlier extra-judicial statement must establish either: (1) that he was not correctly recorded; or (2) that he, in fact did not make the statement; (3) that he was unsettled in mind at the time he made the statement; or (4) That he was induced to make the statement. Counsel pointed out that none of the above circumstances was established by the Appellant therefore the Appellant’s conviction and sentence are sustainable on Exhibit E not to talk about the visual identification of the Appellant by PW1. He further submitted that it is in evidence that when the case was transferred to Police Headquarters Ado-Ekiti, the Appellant led PW5 to Ilogbo Ekiti where he allegedly sold the phone he violently took from his victims on 4/8/2016. Learned Counsel then submitted that the function of evaluation of evidence is essentially that of a trial Judge and where the trial Judge has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an appeal Court to interfere and to substitute its own views for the view of the Court. He therefore urged this Court to dismiss this appeal and affirm the decision of the trial Court of 6/02/2019, wherein it convicted the Appellant and sentenced him to death by hanging for the offence of armed robberies in Counts I, II and III of the Charge.
The Appellant filed his Reply Brief and then responded to the points of law raised by the Respondent in its Brief. The same has been taken cognizance of.
It is an established principle of law in the light of the Evidence Act and plethora of case laws that the standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence. However, proof beyond reasonable doubt does not mean proof beyond shadow of doubt. In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify during the proceedings. Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused fall within the confines of the particulars of the offence charged.
Also the essential ingredients of the offence of robbery as stated in the case of Bello vs. The State (2007) 10 NWLR Part 1043 page 564 are as follows:- “(a) That there was a robbery or series of robbery. (b) That each robbery was an armed robbery. (c.) That the accused was one of those who robbed. The above stated ingredients of the offence of robbery must co-exist and proved together and not disjunctively.
Also, the offence of conspiracy is completely committed the very moment two or more persons have agreed to do, either immediately or at some future time, certain things. The law is well established that it is not at all necessary that any one thing should be done beyond the agreement mutually reached upon. Thus, at that crucial stage, even if the conspirators developed a cold-feet (out of sheer cowardice), repented and stopped, due to lack of opportunity to carry out their mutual agreement et al, the offence is deemed a fait accompli. The Supreme Court had repeatedly expressed that in order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. Indeed one conspirator may be in one town and the other in another town and they may never have seen each other. The ingredients of the offence of conspiracy are: (i) There must be an agreement of two or more persons. In other words, there must be a meeting of two or more minds. (ii) The persons must plan to carry out an unlawful or illegal act, which is an offence. (iii) Bare agreement to commit an offence is sufficient. (iv) An agreement to commit a civil wrong does not give rise to the offence. (v) One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator. (vi) A conspiracy is complete if there are acts on the part of an accused person which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective.
Now in determining this appeal, I am inclined to consider conjunctively the two issues propounded by the Appellant as the two touch on the materiality of the evidence procured by the Prosecution with special regard to proper identification of the Appellant and his alleged confessional statement tendered as Exhibit E vis-à-vis the provisions of Section 9(3) of the Administration of Criminal Justice Law of Ekiti State, 2014. In the criminal trial before the lower Court, PW1 and PW2 were the only victims of the crime who testified. The law on the ingredients of the offences of conspiracy and armed robbery and the ways of proving the guilt of accused persons charged with the such offences have been articulated by respective Counsel for the parties.
It ought to be reminded that PW1, that is, Kupoluyi Temidayo was the victim mentioned under Count 2 of the Amended Information whose phones were violently robbed of him by the Appellant and two other persons. He made an extra-judicial statement on the 14th September, 2016 at the State CID, Ado-Ekiti narrating how a gang of armed robbers came to their Club to rob them. He said that those boys came with local guns and he saw one of them face to face. The guy he saw wore black face cap and black shirt. He distinctly described the one he saw among the robbers as a tall guy and dark in complexion. He then heard the voices of his fellow gangsters calling that tall one, “Mopol” (“Mopol let’s go”). He listed the items they robbed them of that day. Then on 12/9/2016 he heard that some guys were caught very close to their Club. When he got there he identified one of them that came to Club 15 to rob them on the 4th August, 2016. The one he identified was the one whose mates called “Mopol”.
Then in his evidence in chief before the trial Court, he said he knew the 1st Defendant very well. He gave a detailed description of the robbery incident that occurred at his workplace, Dynamic Lounge, on the 4th August, 2016, how he heard a noise outside and presumed it was people fighting, and went out to arrest the situation. As he came out, he heard a gun shot and quickly ran to a corner near their Generator to hide. He saw the 1st accused person asking where is the Manager. He entered his (PW1’s) office. He saw him from the point where he was hiding. He pulled out the drawer and took his (PW1’s) phone. He went to the kitchen door shouting “open the door”, “open the door”. Then the other gang members started calling him that they should leave. They were saying “Mopol let’s go, Mopol let’s go”. They later left. Thereafter they called the Police but they left before the arrival of the Police. He said that the incident took place around 8pm and there was light in their premises and he was able to see the 1st defendant through the light. He went further to narrate how in September, 2016, he was on his way to work when one of their staff called him and said some thieves came again to their premises and they were apprehended. When he reached his place of work, he called one of his staff who told him that some of those thieves have been arrested and they were still at the spot where they were arrested and that he should come. When he got there he saw two boys that were arrested and immediately he got there he identified the 1st defendant as one of the robbers who earlier robbed them on 4/8/2016. He pointed out to them that he was the one his boys were referring to as “Mopol” that night. He said he saw the 1st defendant with locally made shotgun on 4/8/2016. He was the only one he saw. He repeated that the 1st defendant was wearing a blue jeans and a black long sleeve shirt. He repeated that he only saw the 1st defendant.
Under cross-examination, he reiterated he only saw the 1st defendant and he was not masked. He was wearing a cap. He said the Generator is at the back of the building. His office is at the back of the building. His office has a window at the front. He hid himself that day beside the Generator.
PW2 also testified how they were robbed on 4/8/2016 and how eventually the defendants were arrested in the month of September, 2016, about a month after. In his opening statement before the Court at the hearing, he said it was after the defendants were arrested he knew them, meaning he did not or could not identify any of them as he later said. He said that on the said 4/8/2016, after he received information that some people were fighting outside and in his bid to ascertain the real situation, he went outside. As he moved towards the main gate he saw two guys outside the gate. One was on bike and the other one stood beside him. One of them approached him and pointed a gun at him and and ordered him back into the compound. He robbed him of his personal items which he enumerated. He was robbed outside by the guy who approached him. The other robbers were inside. The two that were inside took his phones. He confirmed there was light that night. He was attacked at the main gate of his Club and he was unable to identify any of the robbers in that situation. He was unable to identify the one that attacked him because he was frightened. During cross-examination, PW2 restated that at that night he was unable to identify or recognise any of the robbers.
It is clear from the narrations of PW1 and PW2 that they were at two different locations inside the said Dynamic Lounge, the scene of crime on 4/8/2016 when the robbery operation was going on therein. PW1 said he hid himself in their Generator house besides the Generator, while PW2 was at the side of their main gate. At the position where PW1 was, he was able to have a vivid view of the Appellant, heard what his fellow armed robbers called him and so forth. PW1 never said that the Appellant wore any mask. It is imperative to note that PW2 in his evidence never said he saw the Appellant masked on that day. He confirmed that some of the robbers who deprived him of his items on that day operated inside the hotel while the other two members were outside. PW1 was also a victim and he clearly saw how the Appellant went into his office and took his phones. He was consistent in his identification of the Appellant and how he identified him immediately he saw him on 12/9/2019 when they were eventually arrested. PW2 might have quivered but he insisted he was unable to identify the robbers for the reasons given during his testimony. PW1 who was also a victim of the robbery attack testified how they were robbed on the 4th August, 2016, that it was an armed robbery attack as the robbers came with locally made shotguns. He narrated how he saw the Appellant stole his phones during the robbery attack. It is instructive that the eye witness account by PW1 as to how the robbery was carried out and his recognition of the Appellant as one of the persons who allegedly committed the offence were not controverted under cross-examination or otherwise. The right and appropriate forum for that objection was at the trial Court when there was ample opportunity to do so. It is trite law as argued by the Respondent’s Counsel that the only time an extra judicial statement of a witness is admissible is where a party seeks to use it to contradict the evidence of a witness already given on oath. The defence witnesses will ask for the statement and give reasons to the Court for doing so. On production by the Prosecution, the defence counsel must seek to tender it and refer to specific passages which contradict the evidence of the witness. After it has been admitted in evidence, the specific portions of the statement of the witness made to the Police must be shown to the witness to read out or counsel may read it out to the witness. The witness must be given an opportunity to explain the contradiction. Failure by the witness to explain the contradiction in the evidence on oath of the witness and the contents of the extra judicial statement can then be used to make an issue during defence counsel’s address. See S. 232 and 233 of the Evidence Act 2011. The Court is not allowed to pick and choose between the two statements. See State v. Fatai Azeez & Ors (2008) 4 SCNJ 325.
The Appellant made a statement on 14/9/2016. PW5 testified and said that the 1st defendant made a confessional statement to the Police and stated the places the 1st defendant took them to recover the stolen phones. He recorded the statement and applied to tender it but its admissibility was objected to on the ground of involuntariness. He said he was forced to say something. Then trial within trial was conducted as a result. The ruling was delivered on 6/8/2018 and the same was admitted as Exhibit E. The trial Court found that by Exhibit E, the 1st defendant, the Appellant herein, identified himself as one of the perpetrators of the crime and by the said Exhibit E, showed that they were armed with gun and other offensive weapons with which they attacked and threatened their victims on the said day. The trial Court further observed that the 1st defendant in his evidence on Oath before the Court denied that he committed the offence. The trial Court appraised the 1st defendant’s oral evidence before the lower Court that on the date in question he was said to have robbed at Dynamic Club, he was not in Ado Ekiti but at his shop in Ilogbo-Ekiti thereby raising alibi, which the trial Court remarked was an afterthought having not been raised at the earliest opportunity when the 1st defendant was making his statement at the Police Station to afford the Police the opportunity of investigating the alibi.
The trial Court then sought for corroboration outside Exhibit E, which it rightly found in the evidence of PW1. PW2 also corroborated the evidence that robbery which was indeed an armed robbery took place at Dynamic Club. The fact that PW2 said that some of the robbers were masked did not detract from the identification of the Appellant by PW1, and that could not translate into the fact that armed robbery attack did not take place at Dynamic Club on the said 4/8/2016. The fact whether some of the robbers were masked or not as stated by PW2 does not affect the materiality of PW1’s testimony that on the said date, the Appellant did not wear mask and he clearly saw the Appellant and whom he spontaneously identified on 12/9/2016 when he was eventually arrested. PW2 never suggested that the Appellant wore a mask. PW1 said that he was the only robber he saw on that day as his other gang members were outside. There is no minute contradiction in the identification of the Appellant by PW1. It is also on record that PW1 did not identify the 2nd defendant as one of the robbers. He repeatedly said that he only saw the 1st Defendant. It is clear too that the 2nd defendant was not arrested nor arraigned based on the evidence of PW1 so the discharge and acquittal of the 2nd defendant could not have led to the discharge and acquittal of the Appellant.
I completely agree that the case of Ebri vs. State (2004) 11 NWLR Part 885 page 589 is inapplicable to the present case. It was held therein thus:
“The position of the law is that where two or more persons are charged with the commission of an offence, and the evidence against all the accused persons is the same or similar to the extent that the evidence is inextricably woven around all the accused persons, the discharge of one must as a matter of law, affect the discharge of the others. This is because if one or more of the accused persons is discharged for want of convicting evidence, that must automatically affect all the others in the light of the fact that the evidence against all the accused persons is tied together, like siamese twins at the umbilical cord with their mother. In Umani v. The State (1988) 1 NWLR (Pt 70) 274, the trial Judge discharged the 1st, 2nd, 5th, 6th and 7th accused persons on the charge of murder on the ground that the defence of alibi succeeded. He however convicted the appellant for murder because he rejected the defence of alibi. Although the Court of Appeal dismissed the appeal, the Supreme Court allowed the appeal by a majority. The Court held that the evidence on which the learned trial Judge has based his conclusion on the guilt of the appellant is the testimony of PW1, PW2 and PW3, testimony which in discharging the five accused persons he has at the very least cast so much doubt. In that wise, it is extremely hard to remove any doubt as to the guilt of the appellant. In his leading judgment, Nnamani, J.S.C., said at pages 287 and 288: “Except perhaps for 3rd accused who is still at large, I do not know who else was supposed to be in his company. The evidence on which the learned trial Judge has based his conclusion on the guilt of the 4th accused (appellant) is the testimony of the PW1, PW2, PW3, testimony which in discharging the 5 accused persons he has at the very least cast so much doubt. I find it extremely hard to remove from my mind doubt as to the guilt of the appellant. It has to be remembered that apart from the testimony of PW1, PW2, PW3 there is no other evidence linking the appellant with this crime… Such doubt exists in this case and I shall resolve it in favour of the appellant. Accordingly, I allow the appeal and set aside the judgment of the Kano High Court.” In Kalu v. The State (1988) 4 NWLR (Pt. 90) 503, the appellant and another person were arraigned before the High Court of Imo State. The evidence led by the prosecution was that the appellant and the second accused person, in company of other armed persons, broke into the dormitory of the Asaga Boys Secondary School Ohafia and murdered the deceased. During the trial, eight witnesses gave evidence for the prosecution, the most important of which were PW6 and PW7. The witnesses contradicted themselves. The learned trial Judge held that the case against the 2nd accused was not established beyond reasonable doubt. He was therefore discharged and acquitted. Although the appeal of the appellant to the Court of Appeal, like in the case of Umani v. The State (supra) was dismissed; the Supreme Court allowed the appeal. The Court held that where the evidence against two accused persons in a criminal case is in all material respect, the same and a doubt is resolved by the trial Judge in favour of one of the accused persons, the same doubt should also be resolved in favour of the others. Consequently if one is discharged and acquitted, the other should also be discharged and acquitted. Delivering the leading judgment of the Court, Kawu, J.S.C., said at pages 508 and 510: “Now, one of the main complaints in this appeal is that the reasons given by the learned trial Judge, as set out above, for doubting the testimony of PW6 in regard to the case against the 2nd accused, apply equally to the case against the appellant and that in the circumstances, the appellant should also have been given the benefit of doubt. I think there is substance in this complaint… It was for the reasons stated above that I reached the conclusion on the 28th day of June, 1988 that the conviction of the appellant cannot stand and accordingly allowed the appeal and set aside the conviction as already stated. In Adele v. The State (supra), Onu, J.S.C., citing Umani v. The State (supra), said at page 293: “Indeed, it is now settled that when a trial Judge has totally discredited and rejected the evidence of a witness and regarded it as lacking in probative value and on the basis of that refused to use it as a basis of convicting another accused person, he should decline to use it as basis for convicting another accused person especially when, as in the instant case, the evidence in respect of appellant is inextricably interwoven around the 7th accused who was discharged and acquitted. For purposes of exculpating an appellant from criminal responsibility, conviction and sentence, there must be no additional evidence incriminating the appellant. Putting it in another language, the convicting evidence cannot be untied or separated in respect of the appellant vis-a-vis the co-accused persons. In other words, the evidence is joined together like siamese twins, so much so that all the accused persons must either fall together or stand together.”
It is clear that the said 2nd defendant was not discharged based on the testimony of PW1. PW1 never testified to seeing the said 2nd defendant in the company of the Appellant on 4/8/2016. Nor was he discharged and acquitted due to any doubt cast on the testimony of PW1.
On the question raised over Exhibit E in the light of the provisions of Section 9(3) of the Administration of Criminal Justice Law of Ekiti State, 2014, it is instructive to note that the proviso thereto completely neutralised what would have otherwise rendered ineffectual or inadmissible a confessional statement not captured on video or taken in writing in the absence of an accused person’s Legal Practitioner. Section 9(3) of the 2014 Ekiti State Law provides:
“When any person who is arrested with or without a warrant volunteers to make a confessional statement, the Police Officer shall ensure that the making and taking of such statement is recorded on video and the said recording and copies of it may be produced at the trial provided that in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.
Provided that non-compliance with any requirement of Subsection(3) above shall not preclude the admissibility in evidence of any confession otherwise admissible under the relevant provision of the Evidence Act.”
The section clearly enjoined a Police Officer taking down a volunteered confessional statement of a person to record on video the making and taking of such statement i.e the entire process relating to that confessional statement. Then where the Police Officer fails to capture it on video, it must be done in writing in the presence of a legal practitioner of that person’s choice. It seems that ordinarily where the Police Officer failed to either record the making and taking of the confessional statement on video or in the presence of a Counsel, such confessional statement may not be admissible and, even if admitted, no weight will be attached to it.
Nevertheless, the section itself introduced a limitation or condition to that basic requirement. It stipulates that the fact that a Police officer failed or refused to comply with the law, or fulfil what he is under obligation to do as stated in the Administration of Criminal Justice Law of Ekiti State, 2014, that is, recording on video the said statement or in the presence of a legal practitioner of the person’s choice, will not in any form, prevent or stop or make impossible the admissibility in evidence of such confessional statement that may, in other respects or in different circumstances, be admissible under the Evidence Act. The proviso says that non-compliance shall not prevent the admissibility of any confession otherwise admissible under the relevant provisions of the Evidence Act. It is clear that the proviso did not abrogate the use of trial within trial as stipulated in the Evidence. It only said that if the confessional statement can, in other respects be admissible under the Evidence Act, the fact that at the time the Police was taking the said confessional statement from an accused it was not recorded on video or taken in the presence of the accused person’s legal practitioner, would not automatically render it inadmissible if it would under certain circumstances be admissible under the Evidence Act.
Now, Section 29 of the Evidence Act, provides:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.(emphasis mine)
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Subsection (2)(a) or (b) of this section.”
It is on record that when the said confessional statement was to be tendered the Appellant via his Counsel raised an objection to its admissibility on the ground that he was forced to make and sign the statement. He was forced to say something. The trial Court then ordered for trial within trial so that the Prosecution would prove to the Court that the confession was not obtained by force. Trial within trial was conducted with the parties calling witnesses and adducing evidence. At the end of the trial within trial, the trial Court was satisfied that the said confessional statement was not coercively obtained as alleged by the Appellant. It then admitted the same in evidence.
It must be observed that the said confessional statement in the instant case having passed the crucible of trial within trial as prescribed by the Evidence Act was rightly admitted by the trial Court as envisaged by the proviso to Section 9(3) of the 2014 Administration of Criminal Justice Law of Ekiti State. The section did not foreclose the admissibility of such confessional statement under the Evidence Act. Therefore, the said Exhibit E was rightly admitted by the trial Court.
In the light of the foregoing, the two issues presented by the Appellant are hereby resolved against the Appellant. Consequently, the judgment of the lower Court delivered on the 6th February, 2019 convicting the Appellant of armed robbery and sentencing him to death is hereby affirmed.
FATIMA OMORO AKINBAMI, J.C.A.: I agree.
PAUL OBI ELECHI, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother Theresa Ngolika Orji-Abadua in this appeal.
My learned brother has considered the whole ingredients of the offence of armed Robbery as canvassed by parties and came to a right conclusion that none of it avails favourably to the Appellant.
I agree with him that the Appeal has no merit and it therefore fails accordingly. I do not have any other thing to add.
Appeal dismissed.
Appearances:
Olatawura, Esq., with him, I. A. Omolade, Esq., O. T. Basanwo, Esq. and O. S. Ajayi, Esq. – for Appellant For Appellant(s)
Olawale Fapohunda, Esq., Hon. A. G., Ekiti State, with him, L. B. Ojo, Esq., Solicitor General, Ekiti State, S. B. J. Bamise, Esq., Director Civil Litigation, Julius Ajibare Esq., Director Public Prosecution, Tosan Odudu, Esq., A.C.L.O, Ibironke Odetola, Esq., P.L.O., Oluwaseun Olasanmi, Esq., S.L.O. and Sheila Onah, Esq., L.O. – for Respondent For Respondent(s)
