TOSIN AVODEWU v. THE STATE (2016)

TOSIN AVODEWU v. THE STATE

(2016)LCN/8183(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 16th day of February, 2016

CA/I/340C/2014

RATIO

PRACTICE AND PROCEDURE: PRINCIPLE OF LAW: WHETHER ANY PRINCIPLE OF LAW APPLICABLE TO THE APPEAL OF ONE MUST ALSO BE APPLICABLE TO THAT OF THE OTHER

Therefore, any principle of law applicable to the appeal of one must also necessarily be Applicable to that of the other. per ALI ABUBAKAR BABANDI GUMEL, J.C.A.

JUSTICES

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

TOSIN AVODEWU Appellant(s)

AND

THE STATE Respondent(s)

ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court, delivered on 31st March, 2014 in charge No HCL/8C/2010. The Appellants was one of the 3 Accused persons who were charged, arraigned and tried on a single count charge of conspiracy to commit armed robbery contrary to Section 6(b) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act CAP R.11 L.F.N, 2004. The other 2 accused persons were Segun James and Dele Babalola. They each pleaded not guilty and the case proceeded to trial.

At the trial the prosecution called and relied on the evidence of 5 witnesses. PW1 to PW5 and the extra Judicial Statements of the Appellant and the other Accused persons. The Appellant defended himself as DW3. At the evidence of the parties, prospective learned counsel filed and exchanged written addresses and same were duly adopted and relied on by the parties before the matter was adjourned for judgment. In its judgment, the lower Court at page 118 of the record of appeal held that:-
?In the instant case, conspiracy can be

inferred on the basis of circumstantial evidence and confessional statement of the 3rd accused person for the foregoing, I hold that the prosecution has proved the charge of conspiracy to commit armed robbery against the three accused person.?
The Court proceeded to convict the Appellant and the 2 others and sentenced them to death by hanging.

The Appellant was dissatisfied with the finding him of guilty, conviction and sentence. He appealed to this Court in a notice of appeal dated 6th June, 2014 but filed on 16th June, 2014. It contains 5 grounds of appeal with copious particulars. With leave of this Court, the original notice of appeal was amended to accommodate additional grounds of appeal to add up to 9 grounds. In consequence thereof an amended notice of appeal of 9 grounds of appeal was deemed properly filed and served on 30th January, 2015.
1. The Learned trial judge misdirected herself when at page 8 of her judgment (page 114 of the Record of Appeal) she found as follows:
?3rd accused person on the other hand was arrested about four months after the incident by’ the said vigilante group based on the confessional

statement of the 1st and 2nd accused persons.? (Emphasis and underlines supplied)
PARTICULARS
i. There is no reference to the 3rd accused person at all in the confessional statements of the 1st and 2nd Respondents.
ii. The 3rd accused was arrested four months after the alleged attempted robbery based on an alleged investigation conducted by the vigilante group, OPC.

GROUND TWO
2. The learned trial judge misdirected herself when at page 9 of her judgment [page 115 of the Record of Appeal] she found as follows
“I have perused exhibits ‘A’ and ‘G? the statements of the 3rd accused person volunteered at Divisional Police Station and SCID respectively
PARTICULARS
i. Exhibits ‘A’ and ‘G’ were extracted from the 3rd accused person by torture.
ii. The 3rd accused person’s evidence of torture during the trials within trial was unchallenged by cross examination.
iii. The trial judge did not resolve the issue voluntariness of the Exhibits ‘A’ and ‘G’ during , trial within trials.

GROUND THREE
3. The learned trial judge erred in law when she held at page 118 of the Record of Appeal that:-
“These

facts as stated in the confessional statements of the 3rd accused person, in my view passed the tests enumerated above. The accused persons actually attempted to rob that in my view is an act outside the confession to show that it is true of course the confessional statements of the 3rd accused person is corroborated and true as far as can be tested. The facts contained in the statements are vivid and clear descriptions of the events reading to the attempt to commit the offence of robbery, thus hatching the conspiracy.
From the evidence before the Court, it is my view and I so hold that the 3rd accused person had the opportunity of committing the offence………….. in the circumstances of the case I hold that the confession is possible and it is consistent with the other facts ascertained and proved.”
PARTICULARS OF ERROR
i. The facts stated in the confessional statements did not pass the test to show that they were true.
ii. The lower Court at page 9 of its judgment [page 1,15 of the record of appeal found that there was ?no direct/eye witness evidence against the 3rd person, neither is there evidence.?
iii. The

alleged confessional statements of the appellant were inconsistent with the facts allegedly proved and ascertained.
iv. The confessional statements of the 1st and 2nd accused persons exonerated the 3rd accused person completely from the offence charged.

GROUND FOUR
4. The learned Trial Judge misdirected herself when at page 12 of her judgment [page 118 of the Record of appeal] held that:
“A trial within trial was herd to confirm the voluntariness or otherwise of the 3rd accused person’s statement. In a considered ruling, I held that the 3rd accused person volunteered the statement.?
PARTICULARS OF ERROR
i. The trial judge did not determine the issue of voluntariness of the Exhibit ‘A? and’ ?G? during the trials within trials.
ii. The trial judge only held in the trials within trials that the issue raised was an issue of retraction of the confessional statements, which goes to weight and not admissibility.
iii. No. consideration whatsoever was given to the evidence of the appellant and the other accused persons, which evidence was inconsistent with the commission of any offence.
?

GROUND FIVE
5. The Learned trial judge erred in raw when in her Ruling of 23rd January 2013 rendered in the trial within trial to determine the voluntariness/admissibility of the 3rd accused person’s alleged confessional statement she held at page 4 of the Ruling (page 44 of the Record of Appeal) that
“The prosecuting learned counsel in her address pointed to the fact that the accused did not say that he was tortured before making the statement rather, he denied making the statement at all. It is trite that retraction or resiling from a confessional statement or denial by an accused person of his having made such a statement does not ipso facto render it inadmissible in evidence…….in effect denial by itself is no reason for rejecting the statement………in view of the above stated propositions of the law, I agree with the submission of the prosecution learned counsel and hold that the statement of the 3rd accused person is admissible.
The denial as in this case is only a matter to be considered in deciding the weight to be attached to the confession. For the foregoing, the 3rd accused person’s statement is hereby admitted as exhibit ‘A?.<br< p=””

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The Court shall however consider the weight to be attached to it at the end of trial..
PARTICULARS
i. The evidence of the 3rd accused person that he was tortured before making the alleged confessional statement was not challenged by cross examination.
ii. The 3rd accused person gave evidence that the I.P.O gave him the alleged confessional statement to thumb print and he thumb- printed it after being tortured.
iii. The evidence of the 3rd accused person during examination in chief was not considered at ail.
iv. The voluntariness of the alleged confessional statement was no considered at all.
v. The evidence of torture by the 3rd accused rendered the alleged confessional statement involuntary and inadmissible under the Evidence Act 2011.

GROUND SIX
6. The Learned trial judge erred in law when in her Ruling of 9th May 2013 rendered in the trial within trial to determine the voluntariness/admissibility of the alleged confessional statements of the 1st – 3rd Accused persons she held at page 5 of the Ruling [page 64 of the Record of Appeal] that
“It is the evidence of the accused persons that they never volunteered any

statement. They were only tortured and given papers to sign which the 1st accused signed and the 2nd and 3rd accused thumb-printed. The effect of this is that the accused is no need for trial within trial at all. Rather, the Court is enjoined to test the veracity of the statement at the end of the case. In the circumstance, I hold that the trial within trial should not have been held. The statement of the three accused persons are hereby admitted as Exhibits E, F and G respectively. The Court shall test the veracity of the statements in its final judgment.?
PARTICULARS
i. The evidence of tortured by the accused persons including the 3rd accused rendered the alleged confessional statements involuntary and inadmissible under the Evidence Act 2011.
ii The evidence of torture made a trial within trial imperative to the admissibility of the alleged confessional statements.
iii. The voluntariness of the alleged confessional statements was not considered at all before the alleged confessional , statements were admitted in evidence.
iv. The evidence of torture rendered the alleged confessional statements involuntary and admissible under

the Evidence Act 2011.

GROUND SEVEN
7. The Learned Trial Judge erred in law when at page 12 of her judgment she held that the contradictions highlighted in the alleged confessional statements of the accused person were merely details which were not material and that
“The issue is whether there was a plan to commit armed robbery and the said plan was hatched. This I hold the prosecution has proved beyond reasonable doubt.’,
PARTICULARS OF ERROR
i The contradictions in the statements of the accused persons were irreconcilable on the fundamentals of the alleged conspiracy.
ii. The alleged confessional statements conflicted with themselves.
iii. The evidence of the appellant, DW1 and DW2 which showed a complete absence of any conspiracy was unchallenged by cross examination.
iv. The alleged statements of the 3rd accused/appellant gave two irreconcilable versions of one alleged act.
v. The alleged ,statements of the appellant irreconcilably conflicted with the evidence before the Court on every material issue.
vi. The prosecution failed to prove beyond reasonable doubt a plan to rob involving the appellant, DW1 and

DW2.

GROUND EIGHT
8. The Trial Judge erred in law when at pages 12-13 of her judgment she held that:
“In the instant case conspiracy can be inferred on the basis of circumstantial evidence and confessional statement of the 3rd accused person. From the foregoing, I hold that the prosecution has proved the charge of conspiracy to commit armed robber (sic) against the three accused persons.”
PARTICULARS
i. The evidence against the appellant was not compelling and did not irresistibly lead to the conclusion that the appellant was part of a conspiracy to commit armed robbery.
ii. The Court found at page 9 of its Judgment (page 115 of the Record of Appeal) that here was no circumstantial or direct/eye witness evidence against the appellant.
iii. The unchallenged evidence of the appellant with those of DW1, and DW2 contradicted any conspiracy to commit armed robbery or any offence.
iv. The confessional statements of the 1st and 2nd accused persons did not mention or link the appellant to the conspiracy.
v. The appellant gave consistence and unchallenged evidence that Exhibit A and G, the alleged confessional statements of

the appellant, were extracted by torture by the Police.
vi. The prosecution failed to prove the change of conspiracy to commit armed robbery against the appellant.

GROUND NINE
9. The judgment of the Learned Trial Judge is unreasonable and cannot be supported having regard to the evidence. ”

To argue the appeal, learned counsel to the Appellant Mr. E. R. Emukpoeruo filed a brief of argument. It was filed on 15th August, 2014, but was, upon his application also of l5l8/14, deemed to have been properly filed and served on 30/01/2015. The Respondent filed its brief of argument on 28/04/2015 but served on 18th June, 2015; upon on application filed on 11/08/15, the Appellant was granted extension of fine and deeming order on his filed and served Appellant reply brief. It was deemed properly filed and served on 15/9/2015.

From the 9 grounds of appeal, learned counsel to the Appellant formulated and argued 4 issues for determination in this appeal. They are as follows:-
1. WHETHER THE LOWER COURT MISDIRCTED ITSELF ON THE ISSUE OF THE APPELLANT’S ARREST AND THE VOLUNTARINESS OF THE HIS STATEMENTS, EXHIBITS ‘A’ AND ‘G’. GROUNDS 1, 2

AND 4.
2. WHETHER THE LOWER COURT WAS IN ERROR IN ADMITTING IN EVIDENCE DURING THE TRIALS WITHIN TRIALS THE APPELLANT’S CONFESSIONAL STATEMENTS, EXHIBITS ‘A’ AND ‘G’ WITHOUT DETERMINING THEIR VOLUNTARINESS OR AND ON THE GROUND THAT THE APPELLANT ONLY RETRACTED THE STATEMENTS. GROUNDS 5 AND 6.
3. WHETHER THE LOWER COURT WAS IN ERROR IN HOLDING THAT TH E APPELLANT’S CONFESSIONAL STATEMENTS, EXHIBITS ‘A’ AND ‘G” PASSED THE TEST OF VERACITY..GROUND 3.
4. WHETHER HAVING REGARD TO THE CONTRADICTIONS IN THE CONFESSIONAL STATEMENTS OF THE ACCUSED PERSONS AND THE. EVIDENCE GENERALLY THE LOWER COURT WAS IN ERROR TO HOLD THAT THE PROSECUTION PROVED BEYOND REASONABLE DOUBT THE CHARGE OF CONSPIRACY TO COMMIT ARMED ROBBERY AGAINST THE APPELLANT. GROUNDS 7, 8 AND 9.

On behalf of the Respondent, learned counsel Miss Bolarinwa Adebowale, Assistant Chief State Counsel, Ogun State Ministry of Justice, Abeokuta formulated and argued 2 issues for determination in this appeal, though without following the tradition nowadays of relating specific grounds of appeal to specific issues for determination and as was properly done by learned counsel on behalf of

the Appellant. Suffice it to say that the 2 issues formulated on behalf of the Respondent are:-
(1) Whether from the totality of evidence adduced at the trial, the prosecution has proved the offence of Conspiracy to Commit Armed Robbery against the Appellant beyond reasonable doubt.
(2) Whether the admission of the Appellant’s confessional statements in evidence by the trial Court was wrong having regard to the circumstances of the case.

At the hearing of the appeal before us on l8th November, 2015, respective learned counsel adopted and relied on their filed and exchanged briefs. On behalf of the Appellant, learned counsel urged on us to allow the appeal and set aside the conviction and sentence of the lower Court on the Appellant as well “as to enter, a verdict of discharge and acquittal. However, on behalf of the Respondent learned counsel was urged on to dismiss the appeal and affirm the sentence of the lower Court on the Appellant.
?
Meanwhile, the 2nd Co-Accused person, Mr, Segun James, in the joint trial of the Appellant, had also appealed against his conviction and sentence. That appeal was entered as Appeal No. CA/I 1344C/2014.

It was heard by me and my learned brothers, Tsammani JCA and Daniel-Kalio JCA, on l6th November, 2015. In the lead judgment of my learned brother Daniel-Kalio, JCA, delivered on 9th December, 2015 the Appellant’s appeal was allowed and his conviction and sentence set aside as well as discharged and acquitted. It was a unanimous decision. Both Tsammani JCA and my humble self-agreed with the judgment and all the consequential orders and therein.

In a letter to the Presiding Justice dated 28th January, 2016, learned counsel to the Appellant herein drew our attention to the judgment we delivered in Appeal NO. CA/I/344C/2014. SEGUN JAMES VS. THE STATE, along With 4 Other decided cases learned counsel attached the CTC of our judgment to the letter under review. This letter, upon our inquiry, was found not to have been served on learned counsel to the Respondent. We ordered that she be accordingly served. Against that background we viewed that letter as no more than list of additional authorities and proceeded to treat same as such.

Now against the foregoing scenario, we are fully satisfied that this appeal cannot be determined otherwise than

the appeal in CA/I/344C/2014. Even though the grounds of appeal in the 2 appeals and the issues for determination distilled therefrom may not necessarily be entirely the same, the facts and circumstances and everything that led to the conviction and sentence of the Appellants are similar. Therefore, any principle of law applicable to the appeal of one must also necessarily be Applicable to that of the other. I therefore adopt the same reasons and conclusions that led to the allowing of the appeal in CA/I/344c/2014 delivered on 9/12/2015 to allow this appeal. In consequence of allowing this appeal the judgment of the lower Court delivered on 31/03/2014 is set aside and the conviction and sentence of the Appellant herein are set aside. He is discharged and acquitted.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance, the judgment delivered by my learned brother, Ali Abubakar Babandi Gumel, JCA.

The Appellant herein, was tried and convicted with two other persons for conspiracy to commit armed robbery contrary to Section 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11,

Laws of the Federation of Nigeria, 2004. In an Appeal against his conviction, Segun James who was tried and convicted along with the Appellant, this Court had his conviction set aside. That was in : Appeal No. CA/I/344C2014, delivered on the 16/11/2015. That being so, the Appellant’s co-accused having been discharged on the charge of conspiracy, the Appellant cannot therefore be convicted thereon. See Silas Sule v. The State (20o9) 8 S.C.M, p.177 and Balogun v. A.G. Osun State (2002) 4. S.C.M. p.23

For the above reasons and the other reasons detailed in the lead judgment, I agree with my Lord, A.A.B. Gumel, JCA that this appeal has merit and is therefore allowed by me. Accordingly, I set aside the conviction and sentence of the Appellant and order that he be discharged and acquitted.

OBIETON BARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft form the judgment of my learned brother Ali Abubakar Babandi Gumel JCA. I agree with the reasoning and conclusions reached in the judgment.

Indeed in a similar appeal before us in Appeal No. CA/I/344C/2014, this Court allowed the appeal, set aside the conviction

and sentence of the appellant and discharged and acquitted the appellant. The case against the appellant in this appeal at the lower Court was similar to that against the appellant in Appeal No.CA/I/344C/2014. There is no reason why the decision in this appeal should be different from the decision in Appeal No. CA/I/344C/2014.

The appeal is therefore allowed. The judgment of the lower Court delivered on 31/03/2014 is set aside and the conviction and sentence of the appellant set aside.

Appearances

Mr. E, R, Emukpoeruo with him, Mr. olatunji AdeotiFor Appellant

AND

Mrs. F. E. Bolarinwa Adebowale (ACSC oGSMOJ)For Respondent