PATRICK ADEGBOLA v. THE STATE (2017)

PATRICK ADEGBOLA v. THE STATE

(2017)LCN/9850(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of May, 2017

CA/IB/490C/2014

RATIO

OFFENCE OF ARMED ROBBERY: STATUTORY PROVISION STATING THE PUNISHMENT FOR THE OFFENCE OF ROBBERY AND ARMED ROBBERY

Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act (Cap R II) Laws of Federation of Nigeria 2004 provides: 1. Punishment for robbery. (1). any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years. (2) If- a. any offender mentioned in Subsection (1) of this Section is armed with any firearms or any offensive weapon or is in company with any person so armed; or b. at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person,the offender shall be liable on conviction under this Act to be sentenced to death. PER CHINWE EUGENIA IYIZOBA, J.C.A.

PARTIES TO OFFENCES: STATUTORY PROVISION STATING THE PUNISHMENT FOR PERSONS WHO ASSISTED ANY PERSON TO COMMIT AN OFFENCE UNDER SECTION 1,2,3 OR 4 OF THE E ROBBERY AND FIREARMS (SPECIAL PROVISION) ACT 2004

Section 6 Punishment for parties to offences under Sections 1, 2, 3 or 4. Any person who- a. Aids, counsels, abets or procures any person to commit an offence under Section 1, 2, 3 or 4 of this Act or b. Conspires with any person to commit such an offence; or c. Supplies, procures or provides any person with firearms for use to commit an offence under Section 1 or 2 of this Act, Whether or not he is present when the offence was committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act. PER CHINWE EUGENIA IYIZOBA, J.C.A.

OFFENCE OF ARMED ROBBERY: THE ESSENTIAL INGREDIENTS THAT MUST BE PROVED BEYOND REASONABLE DOUBT TO SECURE A CONVICTION FOR THE OFFENCE OF ARMED ROBBERY; CIRCUMSTANCE IN WHICH THE BURDEN WILL BE DISCHARGED

In the case of AFOLALU VS. THE STATE (2010) 16 NWLR (PT. 1220) 584, The Supreme Court set out the essential ingredients of the offence of armed robbery as follows: 1. That there must be robbery or series of armed robberies 2. That the robbery or each robbery was an armed robbery 3. That the accused was one of those who took part in the armed robbery. To succeed the prosecution must prove the above ingredients beyond reasonable doubt. This of course does not mean beyond every shadow of doubt. If on the evidence adduced, the Court is left in no doubt whatever of the guilt of the accused even on the evidence of a single witness or based on a proven and voluntary confessional statement alone, the burden is discharged. The burden stays throughout on the prosecution and does not shift. See BOZIN V. THE STATE 2 NWLR (PT 8) 465; AMINA V. THE STATE (1990) 6 NWLR (PT. 155) 125; OKOSI V AG BENDEL STATE (1989) 1 NWLR (PT. 100) 642; NWACHUKWU V THE STATE (1985) 1 NWLR (PT. 11) 218; ANI V THE STATE (2003) 11 NWLR (PT. 83) 142. PER CHINWE EUGENIA IYIZOBA, J.C.A.

CONFESSIONAL STATEMENT: WHETHER A COURT CAN CONVICT SOLELY ON THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON

It is a settled principle of law that a Court can convict an accused person on his confessional statement alone provided it is direct, positive, true and unequivocal. See the following cases: MUMUNI V STATE (1975) 6 SC 66; OKEGBU V THE STATE (1984) 8 SC 65; KIM V THE STATE (1992) 2 NWLR (PT. 233) 17; BATURE V THE STATE (1994) 1 NWLR (PT. 320) 267; ADA V STATE (2008) 13 NWLR (PT. 1103) 149. PER CHINWE EUGENIA IYIZOBA, J.C.A.

CONFESSIONAL STATEMENT: THE TESTS FOR DETERMINING THE TRUTHFULNESS OR OTHERWISE OF A CONFESSIONAL STATEMENT

The test for determining the truthfulness or otherwise of a confessional statement is to seek any other evidence or circumstances which make it probable that the confession is true. The Court would consider issues such as 1. Whether there is anything outside the confession to show that its true 2. Whether it is corroborated? 3. Whether the relevant statement made in it of facts are true as far as they can be tested? 4. Whether the accused had the opportunity of committing crime? 5. Whether the confession is possible? 6. Whether it is consistent with other facts which have been ascertained and have been proved? SEE ONOCHIE V THE REPUBLIC (1966) NMLR 607; IKPASA V A.G BENDEL STATE (1981) 9 SC 7; AKPAN V STATE (1992) 6 NWLR (PT. 248) 439; OSENI VS STATE (2012) 4 SCM 150 OR (2012) LPELR-7833(SC). PER CHINWE EUGENIA IYIZOBA, J.C.A.

JUSTICES:

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

PATRICK ADEGBOLA – Appellant(s)

AND

THE STATE – Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):This appeal is against the judgment of Ogun State High Court Abeokuta in Suit No. HCL/1C/2013 delivered on the 24th day of June, 2014, wherein the Appellant (2nd Accused) and his co-accused Solomon Aderinde (1st accused) were convicted on a five count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 6(b) and Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act (Cap R II) Laws of Federation of Nigeria 2004; and Unlawful Possession of Firearms and Ammunition contrary to Section 27 (a) i and (b) ii Firearms Act Cap F.28 Laws of the Federation 2004.

THE FACTS:
On 17/9/08, at about 9pm, Olusola Adebayo PW1 resident at Pempe, Owode Egbado was returning home from work when he observed a motorcycle behind his vehicle seemingly following him. On getting close to his house, he got out of his vehicle and confronted the two riders on the motorcycle. One of them absconded. The remaining one who happened to be the appellant was apprehended with the help of the vigilante group of the neighborhood. He was arrested and taken

to the Police station along with the motorcycle and a bag containing two locally made pistols, hammer, axe, rounds of cartridges and charms.

It so happened that there had been a series of armed robbery incidents in Owode-Yewa town. One of the armed robbery incidents took place on the 14th of March 2007, at about 0800hrs at four corner Pempe Lagos road, Owode-Yewa where one Prophet Olayemi Idowu was robbed of the sum of N370,000.00 at gun point. Also, on 26th August 2008, at about 22.20 hrs at Pempe area Owode-Yewa, one Alhaji Jimoh Bello (AKA Uncle JB) and his wife Rukayat Bello were robbed of the sum of N600,000.00, N3,000:00 pump action gun and jewelries respectively at gun point.

The Appellant after his arrest made a confessional statement stating that he was a member of a gang of robbers that committed the robbery of 26/8/08. He gave the names of members of his gang which included Solomon Oderinde (the 1st accused person) who thereafter was arrested and who also volunteered a confessional statement. The pump action gun stolen from Alhaji Jimoh Bello was amongst the items found on the 1st accused when he was arrested.

The prosecution at

the trial called 9 witnesses and tendered several exhibits including the confessional statement of the Appellant admitted in evidence after a trial within a trial to determine its voluntariness. The appellant testified for himself and called no other witness. Both counsel filed written addresses which were duly adopted. At the conclusion of hearing, the learned trial judge found the Appellant and his co-accused guilty on all the counts and sentenced them to death by hanging.

Dissatisfied with the conviction and sentence, the Appellant appealed to this Court by Notice of Appeal dated 02/07/14 and filed on 05/08/14 subsequently amended by an order of this Court. From the four grounds of appeal in the Amended Notice of Appeal filed on 09/05/16, learned counsel for the Appellant, Kunle Sobaloju Esq. distilled a sole issue for determination as follows:
Whether the prosecution proved the case against the Accused beyond reasonable doubt.

Learned counsel for the Respondent, Akinlolu Osinbajo Esq. in his brief also formulated a sole issue for determination thus:
Whether from the totality of evidence adduced at the trial, the prosecution proved

the offence of Conspiracy to Commit Armed Robbery, Armed Robbery and Unlawful Possession of Firearms & Ammunition against the Appellant beyond reasonable doubt.
The issues formulated by the parties are essentially the same.

APPELLANTS ARGUMENTS:
Learned counsel for the Appellant in his brief submitted that the trial judge erred in admitting the confessional statement as voluntary after the trial within a trial. Counsel argued that the alleged confessional statement Exhibit Q was thumb printed which indicated that the Appellant did not understand English language. Further the statement was recorded by a police officer in English Language without any endorsement thereon to show that it was interpreted or explained to the Appellant before thumb printing the document. Counsel submitted that there was no jurat on the face of the document; and that the prosecution failed to disprove the allegation of the Appellant that he was tortured before he made the statement. Counsel relied on OFFORLETTE V. STATE (2007) 7 SCNJ 162 in submitting that where a party fails to cross examine a witness in order to discredit his evidence given in chief

he cannot invite the Court to disbelieve the evidence by tendering his own evidence. He further submitted that PW3 who testified as PW1 in the trial within trial said under cross examination that the statement was obtained by question and answer. Counsel relying on the case of STATE V. OLASHEHU SALAWU (2011) 12 SC submitted that a statement obtained by the police on demand is not voluntary and should not be acted upon.

Learned counsel went on to submit that in the unlikely event that the Court holds the confessional statement voluntary, that it was still wrong for the Court to have relied on it to convict the Appellant as there was no proper corroborative evidence.

Learned counsel submitted that the confessional statement Exhibit A which the appellant objected to at the earliest opportunity on the ground that the date on the statement is different from the date it was purportedly made was also wrongly admitted and acted upon. He argued that the two confessional statements Exhibits A and Q raised more questions than answers but yet were the sole basis for the conviction of the Appellant despite the retraction of the statement Exhibit A. Counsel

submitted that the Respondent adduced no independent credible evidence to corroborate the confessional statements and that none of the witnesses called positively identified the appellant as an armed robber or part of any robbery gang. He relied on the cases of REX V GIDADO (1940) 6 WACA; FRN V USMAN (2012) 8 NWLR (PT 1301) 141; NWAEZE V STATE (1996) 2 NWLR (PT 428) 1 and CHUKWUKA OGUDO V STATE (2011) SCNJ PG.1 @ 23.

Learned counsel submitted that there were obvious contradictions in the case of the prosecution which the learned trial judge over looked. He argued:
PW6 testified at p.64 of the record that he was robbed on 14/3/2007 this evidence he gave in chief. He was the alleged victim and the incident is presumably etched on his mind firmly so he knows his facts well. However, the same person who claimed to have been robbed on the 14/3/07 turned around to say he does not know when he was robbed.
To make matters worse for the prosecution at the lower Court, he gave evidence as follows I DO NOT KNOW ANY OF THE ROBBERS he continued in his evidence to say that it was at a

meeting he heard the name of Patrick and later when he heard that a neighbor was robbed, they all went to the police station where they were shown some people appellant included as the robbers. The evidence above shows that pw6 never saw the appellant let alone identify him as a thief.
He in fact said then we concluded that they must be the people robbing us it is clear that the evidence of pw6 is mere conjecture. This obvious fact is made out by the fact that he is blind. He said in page 65 of the record that I do not know the people that robbed me because I am blind the evidence of PW6 if compared with his statement used as proof of evidence in this case shows an interesting twist.
At page 35 of the record in Paragraph 2 line 8, PW6 who said he is blind claimed to I, immediately recognize the 2nd accused person as part of the gang that robbed me one is left to wonder how the blind PW6 saw the appellant. He turned again to state at page 21 of the record to say that the appellant was not caught at the scene of crime but was traced to his house where his wife was arrested. Apart from contradicting

PW1 who said the appellant was caught, his statement in fact corroborates the evidence of the appellant who said he was never arrested but went to the police station himself. We refer my lords to pages 137 paragraph 8 to page 138 paragraph 1. My lords would it be just to take the life of the appellant based merely on a conjecture of a complainant who has never met the appellant? It is certain that my lords will not allow the travesty justice carried out at the lower Court to stand.

Learned counsel finally submitted that the case of the prosecution was laced with contradictions and doubts as to who robbed the complainants and when they were robbed. He urged us to allow the appeal and acquit the Appellant.

RESPONDENTS ARGUMENTS:
Learned counsel for the Respondent in his brief relying on AJAYI VS. STATE (2013) 3 SCM PG 1 AT 25 submitted that it is trite law that for the prosecution to succeed in a charge of armed robbery, it must establish the following:
a. that there was a robbery or series of robberies
b. that the robbery was an armed robbery
c. that the accused was one of the armed robbers

Learned counsel

submitted that the evidence of the prosecution witnesses established beyond reasonable doubt that there were series of robbery incidents at Pempe Area, Owode Yewa between the 14th March 2007 and 26th August 2008. Counsel argued that PW 6, PW 7 and PW 8 stated specifically how they were robbed of their valuables which included money, jewelries, pump action gun etc and that the lower Court was rightly satisfied with the evidence of the prosecution witnesses and rightly held that the prosecution had discharged the burden of proof placed on it with respect to the first ingredient of the offence of armed robbery.

He further submitted that the prosecution also proved beyond reasonable doubt the second and third ingredients of armed robbery. He opined that the evidence of PW1, PW2, PW 7, PW 8 and Exhibits A, Q & R satisfy the burden placed on the prosecution. He opined that the evidence of a single credible witness can establish a case beyond reasonable doubt. Counsel further submitted that the evidence of P.W8 fixing the appellant at the scene of crime; and the evidence of P.W.1 that he knew the Appellant prior to his arrest established the identity of the

Appellant as one of the robbers.

Learned counsel relying on the cases of AKPA VS STATE (2008) 8 SCM PAGE 68 and NWAEBONYI VS THE STATE (1974) 5 SCNJ PG 86 submitted that a conviction can be based solely on the confessional statement of an accused person; and that a free and voluntary confessional statement need not be confirmed before a superior police officer to be admissible in evidence; although in the instant case that commendable rule of practice was complied with. Counsel also relying on THE STATE VS AHMED RABIU (2013) 4 SCM PG 200 @ 213-214 submitted that a confession may be obtained from a person by questions fairly and properly put to him by a police officer. He cited the following cases: LASISI VS THE STATE (2013) 6 SCM 97 @ 113; IBEME VS THE STATE (2013) 5 SCM 163 @ 175; NWACHUKWU VS STATE (2007)12 SCM (PT 2) PG 447 @ 455; OSENI VS STATE (2012) 4 SCM PG 150 AT 153; ISMAIL VS STATE (2011) 10 SCM 35 AT 39.

Learned counsel submitted that a confessional statement is the best evidence in a criminal trial and that once same is held voluntary and admitted in evidence it becomes part of the prosecutions case which the trial judge is bound

to take into consideration in deciding whether or not to convict. He urged us not to disturb the findings and decision of the trial Court on the admissibility of the confessional statements of the appellant as the confession was held to be voluntary and was corroborated by the evidence of the prosecution witnesses. He opined that the retraction of confessional statement did not affect its admissibility once the Court was satisfied as to its truth. Learned counsel referred to the various contentions of the Appellant as regards the circumstances under which the confessional statements were obtained and dismissed them as immaterial and insufficient to undermine the admissibility of the confessions and the reliance on them by the trial judge in convicting the appellant.

On the count of conspiracy, learned counsel submitted that there was a meeting of minds among the appellant and his accomplices to commit armed robbery. He opined that evidence before the trial Court as given by the PW7 and PW8 was that the 2nd accused person was in company of some others during the armed robbery incident; that the appellant in his confessional statement stated that he,

1st accused person and three other guys brought by one Ibadan committed the offence. Learned counsel referred to the case of NWOSU VS STATE (2004) 15 NWLR (PT 897) PG PARA F-H where it was held that conspiracy is established if it is shown that the crime alleged is common to all the accused persons. Proofs of how they are connected with or among themselves are not necessary. He urged us to hold that the trial Court was right in holding that the prosecution had proven conspiracy in this case.

On the alleged contradictions/inconsistencies in the evidence of the prosecution witnesses, learned counsel submitted relying on the cases of NDUKWE VS STATE (2009) 2 SCM PG 147 @ 150; ATTAH VS STATE (2010) 5 SCM PG 57 @ 60; SULE VS STATE (2009) 8 SCM PG 177 @ 185 that once such contradictions or inconsistencies are not material, they will not affect the credibility of the witnesses. Learned counsel urged us not to disturb the findings and decision of the trial Court; to dismiss the appeal as lacking in merit; and affirm the conviction of the Appellant.

RESOLUTION:
The Appellant and his co-accused were convicted on a five count charge of

conspiracy to commit armed robbery and armed robbery contrary to Section 6(b) and Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act (Cap R II) Laws of Federation of Nigeria 2004; and Unlawful Possession of Firearms and Ammunition contrary to Section 27 (a) I and (b) II Firearms Act Cap F.28 Laws of the Federation 2004.

Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act (Cap R II) Laws of Federation of Nigeria 2004 provides:
1. Punishment for robbery.
(1). any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
(2) If-
a. any offender mentioned in Subsection (1) of this Section is armed with any firearms or any offensive weapon or is in company with any person so armed; or
b. at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person,the offender shall be liable on conviction under this Act to be sentenced to death.
Section 6
Punishment for parties to offences under Sections 1, 2, 3 or 4.

Any

person who-
a. Aids, counsels, abets or procures any person to commit an offence under Section 1, 2, 3 or 4 of this Act or
b. Conspires with any person to commit such an offence; or
c. Supplies, procures or provides any person with firearms for use to commit an offence under Section 1 or 2 of this Act,
Whether or not he is present when the offence was committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.

In the case of AFOLALU VS. THE STATE (2010) 16 NWLR (PT. 1220) 584, The Supreme Court set out the essential ingredients of the offence of armed robbery as follows:
1. That there must be robbery or series of armed robberies
2. That the robbery or each robbery was an armed robbery
3. That the accused was one of those who took part in the armed robbery.
To succeed the prosecution must prove the above ingredients beyond reasonable doubt. This of course does not mean beyond every shadow of doubt. If on the evidence adduced, the Court is left in no doubt whatever of the guilt of the accused

even on the evidence of a single witness or based on a proven and voluntary confessional statement alone, the burden is discharged. The burden stays throughout on the prosecution and does not shift. See BOZIN V. THE STATE 2 NWLR (PT 8) 465; AMINA V. THE STATE (1990) 6 NWLR (PT. 155) 125; OKOSI V AG BENDEL STATE (1989) 1 NWLR (PT. 100) 642; NWACHUKWU V THE STATE (1985) 1 NWLR (PT. 11) 218; ANI V THE STATE (2003) 11 NWLR (PT. 83) 142.

The learned trial judge in his judgment at page 145 of the Record of Appeal held that the only issue in contention is whether the accused persons were the ones who committed the robberies; and that there is apparently no dispute as regards the first and second ingredients of the offences charged. His lordship stated thus:
On the first ingredient learned counsel submitted that the evidence of PW6, PW7 and PW8 proved the offence of armed robbery. She also referred to the evidence of PW7 and PW8 to the effect that the people that robbed them were armed. This she submitted is proof of the second ingredient. The third ingredient whether the accused persons were the ones that committed the robbery is the only issue in

contention
But Ground 2 of the Amended Notice of Appeal reads:
The learned trial judge erred in law when he convicted the 2nd accused on the offence of conspiracy and armed robbery of Prophet Olayemi Idowu on the 4th day of March, 2007
PARTICULARS OF ERROR IN LAW
i. The prosecution clearly failed to prove beyond reasonable doubt that Prophet Olayemi Idowu or anybody at all was robbed with arms on the 14th day of March, 2007.
ii. There is no iota of evidence before the Court that the 2nd accused Prophet Olayemi Idowu or anybody at all was robbed with arms.

The sole issue distilled from the four grounds of appeal in the Amended Notice of Appeal apparently covers this Ground 2. But in his arguments on the sole issue as it concerns this ground of appeal, Learned counsel dwelt mostly on whether PW6 (Prophet Olayemi Idowu) recognized the Appellant as one of the robbers who invaded his house. Counsel however commented on the fact that while PW6 in his evidence in chief said he was robbed on 14/3/07; under cross-examination, he stated that he cannot remember the exact date he was robbed. Learned counsel argued that if

indeed PW6 was robbed the date would be very certain in his mind. I think this is insufficient to support the view that PW6 was not robbed. Learned counsel in his arguments ignored the fact that PW6 said immediately thereafter that the exact date he was robbed is in his statement. Furthermore, the fact that a report was lodged with the Police after the robbery on 14/3/07 supports the contention that there was indeed an armed robbery on the said date. I think it is needless wasting further time on the first and second ingredients as there is no real dispute on them. The issue for determination is whether the Appellant took part in the two robberies. It is to be noted that in determining this issue, the trial judge in his analysis and findings on the evidence led dwelt mainly on the robbery of 26/8/08 in which PW8 identified the Appellant as one of the robbers; but at the end convicted the Appellant and his co-accused on all the counts. The question primarily therefore is whether the prosecution was able to prove beyond reasonable doubt that the Appellant took part in the two robberies.

The first serious grouse of learned counsel for the Appellant relates

to the confessional statements. He raised all sorts of issues in his attempt to prove that the statements ought not to have been admitted in evidence and ought not to have been relied upon by the learned trial judge in convicting the appellant. Several confessional statements were tendered. Exhibit A the first statement of the Appellant admitted in evidence through PW2 Inspector Adeniji Okunla is actually not a confessional statement, although the parties kept referring to it as one. Learned counsel for the Appellant objected to its admissibility on the ground that the date on it was not the date the statement was made. The learned trial judge in admitting the statement as Exhibit A ruled that he was satisfied with the explanation of PW2 as to why it was so dated and indicated that he will consider the weight to be attached to it later. The only confessional statement in respect of which a full trial within a trial was conducted is Exhibit Q. The learned trial Judge in his Ruling at page 112 of the Record held the confessional statement voluntary and rejected the claim of the Appellant that the confession was obtained by torture. The evidence of PW4 Sgt Raheem

Olayemi who obtained the confessional statement Exhibit Q is as follows:
On 27/1/2009 I was on duty at SCID Eleweran Abeokuta when Paul Kyant a Sgt in charge of this case called me to assist him in taking the 2nd accused statement. I re-arrested, charged and cautioned the 2nd accused in Yoruba Language. He volunteered a statement in Yoruba Language. I recorded the statement in English Language and read over to the accused person in Yoruba Language. He thumb printed it as being correct while I signed as the recorder and interpreter. I handed over the statement and the accused to the IPO Sgt. Paul for further investigation.

PW5, Inspector Paul Kyanta in his evidence at pages 61-62 of the Record confirmed that he took the Appellant and his confessional statement Exhibit Q to a senior Police Officer ASP Olusola King who read over the statement to him and the Appellant confirmed volunteering the confessional statement. The learned trial judge in his Ruling in the trial within a trial at page 116 of the Record held:
Having dispassionately considered the evidence of both parties, I am inclined to believe the testimony of the IPO

who obtained the testimony of the 2nd accused.

Not having seen the witnesses testify, the credibility of the witnesses is a matter peculiarly within the knowledge of the trial judge and this appellate Court is not in a position to disturb the findings and decision of the trial Court on the admissibility of the confessional statement after a trial within a trial. See LASISI VS THE STATE (2013) 6 SCM 97 @ 113 or (2013) LPELR-20183(SC) where Onnoghen JSC observed:
Once a confessional statement is admitted following a trial within a trial proceeding, it becomes very difficult for an appellate Court to intervene in an appeal against its admissibility as the evaluation of the evidence adduced at the said trial is based on the credibility of witnesses, which duty is solely that of the trial Court as the appellate Court is not privileged to have seen the witnesses testify nor watch their demeanor.

Most of the issues raised by the Appellant as regards whether the confessional statement was properly explained to the appellant who he claimed did not understand English language; absence of jurat on the face of the document; the fact

that the statement was obtained by the process of question and answer; do not apply to the confessional statement Exhibit Q. Learned counsel for the Appellant wrongfully thought that Exhibit Q was the statement obtained by PW3. The evidence of PW3, Inspector David Agberotimi is at page 50. He testified as PW1 in the trial within a trial at page 51. The trial within a trial was adjourned for his cross-examination. On resumption at page 59 of the Record, the prosecution informed the Court that their witness in the trial within a trial who was to be cross-examined was unavoidably absent and away on official duty and prayed the Court to continue with the substantive trial. PW4 Sgt Raheem Olayemi was called and preceded with his examination-in chief. He was the one that obtained the confessional statement eventually admitted as Exhibit Q. A trial within a trial was conducted in respect of this confessional statement at pages 60 & 61. The confessional statement obtained by PW3 must be deemed abandoned as he never turned up for cross-examination. Most of the anomalies the Appellant complained about related to the confessional statement obtained by PW3 and not

that of PW4. The admission of Exhibit Q by the trial Judge as voluntary cannot therefore be faulted by this Court. The next question is whether the trial judge was right in basing the conviction of the Appellant on the confessional statement Exhibit Q.

the confession is possible?
6. Whether it is consistent with other facts which have been ascertained and have been proved?
SEE ONOCHIE V THE REPUBLIC (1966) NMLR 607; IKPASA V A.G BENDEL STATE (1981) 9 SC 7; AKPAN V STATE (1992) 6 NWLR (PT. 248) 439; OSENI VS STATE (2012) 4 SCM 150 OR (2012) LPELR-7833(SC). It think that the conclusion of the learned trial judge that based on the confessional statement Exhibit Q and the evidence of the prosecution witnesses that the Appellant did in fact commit the robbery of 26/8/08 is unimpeachable. I do not however agree with the learned trial Judge as regards the Appellants conviction for the robbery of 14/3/07. The learned trial judge in his judgment at page 149 of the Record observed:
I have examined the statements of the accused persons viz a viz the evidence of the prosecution witnesses, it seems to me that there are circumstances outside the statements showing that the statements are true. These are: the evidence of PW7 and PW8 to the effect that they were attacked by armed robbers and robbed of their possessions. Identification of 2nd accused person as Baba Alice by

PW8, recovery of guns and dangerous weapons from the accused persons at different times. The statements are corroborated by the evidence of the prosecution, the facts stated in it are true as far as can be tested, the accused persons had the opportunity of committing the offence, their confession is possible and consistent with other facts ascertained and proved. In other words, the statements satisfy the tests laid down to verify the truth of the confession.

With all due respect to learned counsel for the Appellant, I am of the firm view that the assessment of the learned trial judge regarding the confessional statement Exhibit Q cannot be faulted as regards the robbery of 26/8/08. No doubt there are some discrepancies between the confessional statement Exhibit Q and the evidence of PW8 with regard to the role played by the Appellant during the robbery. In Exhibit Q, the Appellant claimed that because he was popularly known to the family, he did not enter into the house but stayed in the bush. But the testimony of PW8 is that the Appellant whom she identified as Patrick (Baba Alice) saw her outside their compound and asked after her husband but

that before she could call him, Patrick and others who were armed with guns and cutlasses rushed into their house making her think they were members of the vigilante group. In another breath however the Appellant in Exhibit Q said it was because of the bullet waist belt seen with him that made Alhaji’s wife (PW8) say she saw him on the day of the robbery. I am not oblivious of the fact that the robbery in Alhaji Jimoh Bello’s house took place on 26/8/2008. The Appellant was apprehended on 17/09/08, almost a month later. It was apparently the arrest, the ammunitions found in the bag and the pump action gun stolen from Alhaji Bello found on the 1st accused Solomon Oderinde that raised suspicions that they were the people that robbed the Alhaji. No doubt the evidence of PW8 must have been tailored to meet the needs of the prosecution. The confessional statement cannot however be discountenanced because of these discrepancies. Several statements were made by the Appellant and his co-accused in the course of their movement from one police outfit to the other. The common picture painted by the confessional statements is that the Appellant and his co

accused indeed participated in the robbery in the house of PW7 on 26/8/2008. In Exhibit Q at page 43 of the Record, the Appellant admitted that he was part of the robbery gang that went to the house of PW7 (Alhaji Jimoh Bello). He admitted being popularly known in the house. He identified their leader as one Ibadan. It was the same Ibadan he identified as having escaped when they were arrested by PW1. It was the same Ibadan whom he claimed was the owner of the bag containing the ammunitions abandoned with the motorcycle. The fact that he received the sum of N50,000.00 as his share of the proceeds of the robbery was consistent in all the statements. The learned trial judge was right in believing that the accused persons made the confessional statements. It must be emphasized however that the confessional statements relate only to the robbery of 26/8/08 in the house of PW7. The Appellant and his co-accused denied emphatically committing any other robbery. That leaves the robbery of 14/3/07 in the house of PW6 at large. In his evidence at pages 64 and 65 of the Record, PW6, Prophet Olayemi Idowu made it clear that although he was robbed on 14/3/2007, he did not

know any of the robbers. He testified that the Appellant and his co-accused were shown to him as the people who robbed PW7. They then concluded that they must be the people who have been robbing them in the area. There is no evidence linking the Appellant to the robbery of 14/3/07 and there was no confessional statement on that particular robbery. The charge of conspiracy to commit armed robbery at page 54 of the Record is only in respect of the robbery on 14/3/07. There was no charge of conspiracy to commit the robbery of 26/8/08. The Appellants conviction on counts I and II cannot therefore stand as there is absolutely no evidence in support. The available evidence and confessional statement Exhibit Q can only sustain counts III, IV and V. In the final result, this appeal succeeds in part and is hereby allowed in part. The conviction of the Appellant on counts I and II, conspiracy to commit armed robbery and armed robbery in the house of Prophet Olayemi Idowu on the 14th day of March 2007 is hereby quashed. The Appellant is acquitted on those two counts. His conviction on counts III, IV and V are affirmed.

MODUPE FASANMI, J.C.A.: I had the privilege of reading in advance the draft of the lead judgment prepared by my learned brother Chinwe Eugenia Iyizoba, JCA.

I agree with the reasoning contained therein and conclusion arrived thereat. For the reasons marshaled in the lead judgment which I adopt as mine, I too allow the appeal in part.

NONYEREM OKORONKWO, J.C.A.:I have had the opportunity of reading in draft the text of the judgment in this appeal by my learned brother Chinwe Eugenia Iyizoba, JCA.

I agree with the reasoning and conclusions and adopt them as mine.

Appearances

Kunle Sobaloju with him, J.A. Akanbi Yussuf, S.C Umesi, Esq., and Damilola ShoboFor Appellant

AND

Akin Osinbaajo, Esq.For Respondent

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