TAMBAYA ORI v. THE STATE
(2017)LCN/10193(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of July, 2017
CA/IB/232C/2015
RATIO
ARMED ROBBERY: THE POSITION OF THE LAW ON THE DUTY OF THE PROSECUTION TO ESTABLISH THE OFFENCE OF ARMED ROBBERY BEYOND REASONABLE DOUBT
In the case of AFOLALU VS. THE STATE (2010) 16 NWLR (PT. 1220) 584, The SC set out the essential ingredients of the offence of armed robbery as follows:
- That there must be robbery or series of armed robberies
- That the robbery or each robbery was an armed robbery
- 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 (1985) 2 NWLR (PT 8) 465; ARUNA 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.
TRIAL WITHIN TRIAL: THE POSITION OF THE LAW ON WHEN TRIAL WITHIN TRIAL WILL BE REQUIRED
The first complaint of learned counsel for the Appellant is that the confessional statements Exhibits 3 and 4 were admitted in evidence without a trial within a trial. Trial within a trial is not automatic. The purpose is to call evidence to determine the voluntariness or otherwise of a confessional statement. Trial within a trial is required only where the accused person objects to the admissibility of the confession on the ground that it was not voluntary but was obtained by threat, intimidation or duress. The objection must be raised at the point when the prosecution seeks to tender the confession in evidence. If the Appellant raises no objection and the confession is admitted in evidence, the issue of trial within a trial cannot subsequently arise. The origin, reasons and incidence of a trial within a trial were fully considered by the Supreme Court in the case of GBADAMOSI V STATE (1992) NWLR (PT. 266) 465. See FRN V IWEKA (2011) LPELR-SC.454/2010 where Mukhtar JSC observed that ‘a trial within a trial becomes necessary at the stage where a caution statement is about to be tendered and its admissibility was objected to promptly by the accused person, and not anytime later.’ See also MUSA V STATE (SUPRA) 94 A-C. PER CHINWE EUGENIA IYIZOBA, J.C.A.
ADMISSIBILITY OF CONFESSIONAL STATEMENT: WHETHER THE RETRACTION OF A CONFESSIONAL STATEMENT WILL AFFECT ITS ADMISSIBILITY; THE PRINCIPLE GUIDING THE COURT IN DETERMINING THE TRUTHFULNESS OF A CONFESSIONAL STATEMENT SUBSEQUENTLY RETRACTED
The only obligation on the learned trial judge was to test the truthfulness of the confessions because the Appellant subsequently retracted the confessions. A confession does not become inadmissible just because the accused person in his evidence denied having made the confession. Whether or not he made the confession is a question of fact to be decided in the judgment. Retraction does not affect the admissibility of the confession. See OTUFALE V STATE (1968) NMLR 261; AKINFE V STATE (1988) 3 NWLR (PT.85) 729; AKPA V STATE (2008) ALL FWLR (PT. 420) 603 @ 665-666 H-D. All that is required is that before the Court can believe and act on such retracted confession it should subject the confession to what is generally referred to as the 6-way truth test:
“(1) Is there anything outside the confessional statement to show that it is true;
(2) Is it corroborated;
(3) Are the relevant statement made in it of facts true as far they can be tested;
(4) Was the prisoner one who had the opportunity of committing the crime;
(5) Is his/her confession possible;
(6) Is the confession consistent with other facts which have been ascertained and have been proved.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
CONFESSIONAL STATEMENT: THE POSITION OF THE LAW ON THE SATISFACTORINESS OF A VOLUNTARY CONFESSIONAL STATEMENT
It is trite that a voluntary confession of guilt, if fully consistent and probable with clear proof that a crime has been committed is satisfactory evidence without more on which the Court can convict. All that is required is that the confessional statement be direct, positive and unequivocal about the committal of the offence and that the Court is satisfied about the truth of the confession. See the following cases: OGOALA V STATE (1991) 2 NWLR (PT. 175) 509; AKPAN V STATE (1992) NWLR (PT. 248); HASSAN V STATE (2001) 7 SCNJ 643 @ 652; UBIERHO V STATE (2005) 5 NWLR (PT. 919) 644; ODEH V FRN (2008) 13 NWLR (PT. 1103)1. 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
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
TAMBAYA ORI Appellant(s)
AND
THE STATE Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Appellant, TAMBAYA ORI was arraigned before the High Court of Ogun State sitting at Abeokuta on a three count charge of conspiracy to commit Armed Robbery contrary to Section 6(b) and Armed Robbery contrary to Section 2(2) (a) of the Robbery and Firearms (Special Provisions) Act (Cap R11) Laws of the Federation of Nigeria, 2004. The particulars of count 1 is that the Appellant along with others now at large on or about the 16th day of August, 2007 along Iwofin/Ayetoro road in the Abeokuta Judicial Division in the High Court of Ogun State, conspired to commit Armed Robbery. The particulars of count 2 is that the Appellant and others now at large on or about the 16th day of August, 2007 along Iwofin/Ayetoro road in the Abeokuta Judicial Division in the High Court of Ogun State, while armed with a gun robbed Joshua Mallam of his mobile phone, a bag of rice, and his police uniform. The particulars of count 3 are that the Appellant and others now at large on or about the 16th day of August, 2007 at Onigangan Village along Ayetoro Road in the Abeokuta Judicial Division of
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the High Court of Ogun State conspired to commit armed robbery. No evidence was called in respect of count 3. It was consequently struck out. In proof of its case, the Prosecution called two witnesses PW1 – Inspector Joshua Mallam, the victim and PW2 – Inspector Raul Kyanta, IPO of the case as at that time attached to Anti Robbery Section Nigeria Police (State CID) Eleweran, Abeokuta, Ogun State. The Appellant gave evidence on his own behalf. At the conclusion of the trial, the Learned Trial Judge found the Appellant guilty as charged and sentenced him to death. The Appellant dissatisfied with the judgment appealed to this Court by Notice of Appeal containing 11 grounds of appeal. The parties filed and exchanged briefs of argument. The Appellant?s brief was settled by Yemi Adewale Adeshina Esq while the Respondent?s brief was settled by Oludayo O. Osunfisan (Mrs.) DPP Ministry of Justice, Ogun State. From the 11 grounds of appeal Mr. Adeshina distilled three issues for determination as follows:
1. Whether the learned trial judge was right to have admitted the Appellant’s purported statements – Exhibit 3 & Exhibit 4 and treated them as
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confessional statements instead of ordering a trial within a trial, as the accused retracted the said confessional statements purportedly made by him? (Grounds 3, 4, 8, 9)
2. Whether the prosecution proved its case beyond reasonable doubt against the Appellant (as required by Law), as to warrant the Appellant’s conviction for conspiracy to commit armed robbery and armed robbery with due regards to the totality of evidence before the learned trial Judge?
(Grounds, 6, 7, 10, 11).
3. Whether the learned trial Judge, was right to have convicted the Appellant for conspiracy to commit armed robbery based on the prosecution’s witnesses PW1, PW2 evidence adduced at the trial and Exhibit 3, tendered by PW2 at the trial? (Ground 2, 5)
Learned DPP Mrs. Osunfisan while indicating in her brief that she would adopt the issues formulated by the Appellant as slightly amended went ahead to formulate a sole issue for determination as follow:
Whether from the totality of evidence adduced at the trial, the prosecution has proved the charge against the Appellant beyond reasonable doubt in accordance with Section 135 of the Evidence Act,
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2011.
I shall consider all the arguments of counsel together.
APPELLANT?S ARGUMENTS:
Mr. Adeshina on his issue 1 submitted that the learned trial judge erred in failing to conduct a trial within a trial in respect of the confessional statements retracted by the Appellant and also erred in failing to conduct the 6 way truth test to assess the truthfulness of the confessional statements before convicting the Appellant based on the confessions.
On his issue 2, learned counsel submitted that the prosecution failed to establish beyond reasonable doubt that the appellant was one of those who took part in the robberies. Learned counsel relying on the cases of UKPABI VS. STATE (2004) 11 NWLR (PT 884) 439 and S.C EBRI VS. STATE (2004) 11 NWLR (PT 885) 589 submitted that the Appellant was prejudiced by the fact that no identification parade was carried out before PW1 purportedly identified him as one of the robbers. Counsel argued that the case of the prosecution at the Lower Court was not proved beyond reasonable doubt, as to justify the death sentence handed down by the learned trial judge.
?On his issue 3, counsel submitted
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relying on numerous authorities that the trial judge erred in convicting the Appellant of the offence of conspiracy to commit robbery as the ingredients of conspiracy were not established. He opined that the prosecution owes a duty to prove every ingredient of the offence charged as provided for in the substantive law, beyond reasonable doubt and that where the standard of proof beyond reasonable doubt is not attained any lingering doubt must be resolved in favour of the accused person. Counsel submitted that there was no evidence that the offence was an armed robbery; and argued that if the Appellant was to be convicted at all, it should be a prison term for “robbery” and not a death penalty for “armed robbery” as the prosecution did not prove “armed robbery”. Counsel urged us in the event that we are not minded to acquit and discharge the Appellant to reduce the sentence to a prison term for robbery as was done in AFOLABI VS. THE STATE (2013) ALL FWLR (PART 702) 1690, where the Apex Court, affirmed the Court of Appeal’s substitution of the offence of “armed robbery” with that of “robbery” and the reduction of the sentence to two years imprisonment instead of
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the death sentence.
RESPONDENT?S ARGUMENTS:
Learned DPP examined what the prosecution must prove to secure a conviction for armed robbery and submitted that the evidence adduced at the trial of the Appellant revealed that PW1 while in the company of others was robbed of his bag containing his Police Uniform (with his name and force number tags attached), a bag of rice, a handset and the sum of N2,500.00 on 16/8/2007 along Iwofin ? Olorunda Road. Counsel submitted that PW1 testified that the assailants were armed with guns. Counsel urged us to hold that the Prosecution had sufficiently proved that there was an armed robbery attack on PW1. On the Appellant?s contention that there was no admissible, credible or reliable evidence that he was involved in the incident, counsel submitted that there is overwhelming evidence to prove that the Appellant was one of the armed men that robbed PW1 on 16th day of August, 2007. He submitted that PW1 in his evidence at page 36 lines 23 -27 and page 37 lines 3-7 of the Record stated in clear terms the specific role played by the Appellant in the armed robbery attack. PW1 testified that it was the Appellant
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that came to where he (PW1) sat in front of the vehicle and took his bag which contained his Police Uniform, a bag of rice that he bought for his family, his handset and a sum of N2,500.00. Counsel submitted that PW1 was not cross-examined on those points, the implication being that the Appellant accepted the truth of those matters. Counsel submitted that in Exhibits 3 and 4, the Appellant confessed to the fact that he and three others were the armed men that attacked PW1 on 16/8/2007. He further confessed that the Police Uniform he wore at the time of his arrest was gotten from a successful robbery incident carried out on 16th August, 2007. Counsel relying on MUSA V STATE (2012) 3 NWLR (PT. 1286) 59 @ 94 E-F submitted that a voluntary confessional statement properly admitted in evidence saves the Prosecution the burden of seeking further evidence in proof of the guilt of the accused.
?
After considering all the issues raised by the Appellant in his brief and responding to them learned counsel urged us to hold that the Prosecution had proved it case beyond reasonable doubt as required by Section 135 of the Evidence Act, 2011. He submitted that it is
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trite that an Appellate Court must in the absence of compelling evidence indicating erroneous appraisal of facts and conclusions, show the utmost restraint and reject any temptation to interfere with the well-considered findings made by a trial Judge who had the singular opportunity of not only hearing the evidence but of watching the demeanor of the witnesses. He urged us not disturb the finding of facts of the trial Court since they have not been shown to be perverse, erroneous or against the weight of evidence but to dismiss the appeal as lacking in merit.
RESOLUTION:
In the case of AFOLALU VS. THE STATE (2010) 16 NWLR (PT. 1220) 584, The SC 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
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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 (1985) 2 NWLR (PT 8) 465; ARUNA 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 first complaint of learned counsel for the Appellant is that the confessional statements Exhibits 3 and 4 were admitted in evidence without a trial within a trial. Trial within a trial is not automatic. The purpose is to call evidence to determine the voluntariness or otherwise of a confessional statement. Trial within a trial is required only where the accused person objects to the admissibility of the confession on the ground that it was not voluntary but was obtained by threat, intimidation or duress. The objection must be raised at the point when the prosecution seeks to tender the confession in evidence. If the Appellant raises no objection and the confession is admitted in evidence, the issue of
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trial within a trial cannot subsequently arise. The origin, reasons and incidence of a trial within a trial were fully considered by the Supreme Court in the case of GBADAMOSI V STATE (1992) NWLR (PT. 266) 465. See FRN V IWEKA (2011) LPELR-SC.454/2010 where Mukhtar JSC observed that ?a trial within a trial becomes necessary at the stage where a caution statement is about to be tendered and its admissibility was objected to promptly by the accused person, and not anytime later.? See also MUSA V STATE (SUPRA) 94 A-C. At page 43 of the Record where PW2 sought to tender the two confessional statements, Mrs Lawal counsel for the accused said ?No Objection?. The Court then admitted them as Exhibits 3 and 4 in the following words:
?The confessional statement said to have been made by the accused at Lafenwa station ? Exhibit 3, was tendered by PW2. No objection was raised to its admissibility at the point of tendering. So, it is assumed to have been made voluntarily by the accused?. ?.The confessional statement made by him at the State Police Command (SARS)
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which the PW2 personally took was also admitted as Exhibit 4. Again, no objection was raised to its admissibility at the point of tendering. Consequently it is deemed to have been made voluntarily by the accused?.
There is consequently no miscarriage of justice in failing to hold a trial within a trial as argued by the Appellant. The only obligation on the learned trial judge was to test the truthfulness of the confessions because the Appellant subsequently retracted the confessions. A confession does not become inadmissible just because the accused person in his evidence denied having made the confession. Whether or not he made the confession is a question of fact to be decided in the judgment. Retraction does not affect the admissibility of the confession. See OTUFALE V STATE (1968) NMLR 261; AKINFE V STATE (1988) 3 NWLR (PT.85) 729; AKPA V STATE (2008) ALL FWLR (PT. 420) 603 @ 665-666 H-D. All that is required is that before the Court can believe and act on such retracted confession it should subject the confession to what is generally referred to as the 6-way truth test:
?(1) Is there anything outside the confessional statement to show
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that it is true?
(2) Is it corroborated?
(3) Are the relevant statement made in it of facts true as far
they can be tested?
(4) Was the prisoner one who had the opportunity of committing the crime.
(5) Is his/her confession possible?
(6) Is the confession consistent with other facts which have been ascertained and have been proved?
?
The learned trial judge subjected the retracted confessions to the relevant tests at pages 57 ? 59 of the Record. Learned trial judge observed:
?In both Exhibits 3 and 4, the accused clearly admitted that he and two others perpetrated the robbery of the 16th of August, 2007 in which PW1 was a victim. He admitted that they were carrying offensive weapons. He also admitted that he was caught wearing the uniform stolen from PW1. Although the accused attempted to retract his confession during trial, I do not believe his evidence. To me it was a mere after thought. If indeed he was caught in the bush by persons who were upset because his cattle destroyed their farms, where did he get the PW1?s uniform that he wore and the gun recovered from him? The PW2 testified that the
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uniform and gun were transferred with the accused from Lafenwa, as having been recovered from him and I believe his evidence. I also believe the evidence of PW1 that his uniform was stolen by the robbers, who robbed him on the 16th of August, 2007?The evidence of PW1 and PW2 clearly corroborate the two confessional statements made by the accused person. The contents of both Exhibits 3 and 4 are such as could only be within the personal knowledge of the accused, and show clearly evidence of conspiracy and actual armed robbery committed by the accused and his fleeing accomplices. He not only named them, he named their father, and where they lived…In the circumstances of the case, I find the confession well corroborated, possible and consistent with other facts in evidence in the case. I also find it positive, direct and true, and such that can be relied upon having satisfied the test laid down in NWACHUKWU V STATE (2007) 17 NWLR (PT.1062) 31.?
?It is therefore very clear that the Appellant?s contention that the learned trial judge did not
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effectively apply the relevant tests before relying on the confessional statements and convicting the appellant as charged is without foundation. As shown above the test were duly conducted and left the learned judge without any doubt as to the truthfulness of the confessions. The fact that PW1?s uniform taken from him at the robbery of 16/8/07 was found with the Appellant confirms the truthfulness of the confession in addition to other factors as stated above. We have no reason whatever to interfere with the conclusions of the learned trial judge as regards the admissibility of the confessional statements as urged on us by the Appellant.
?
It is trite that a voluntary confession of guilt, if fully consistent and probable with clear proof that a crime has been committed is satisfactory evidence without more on which the Court can convict. All that is required is that the confessional statement be direct, positive and unequivocal about the committal of the offence and that the Court is satisfied about the truth of the confession. See the following cases: OGOALA V STATE (1991) 2 NWLR (PT. 175) 509; AKPAN V STATE (1992) NWLR (PT. 248); HASSAN V STATE
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(2001) 7 SCNJ 643 @ 652; UBIERHO V STATE (2005) 5 NWLR (PT. 919) 644; ODEH V FRN (2008) 13 NWLR (PT. 1103) 1.
The contention of the Appellant that no proper identification parade was conducted or that no evidence of identification parade was led before the trial Court is completely of no moment in view of the confessional statements. However, as submitted by learned counsel for the Respondent, PW1 had stated before the trial Court as follows: ?I rushed down to the station the accused was brought before me; I immediately recognized and identified him as one of those that robbed us?. Page 37 lines 12 ? 14 of the Record. There was no cross-examination of PW1 on this identification evidence. The Court was consequently right in accepting the evidence without more. Furthermore the confessional statements of the Appellant confirmed his identity as one of the perpetrators of the crime. The trial judge was right when his lordship held at Pages 59-60 of the Record of Appeal as follows:
?Upon the strength of the available evidence, the prosecution has fully proved the ingredients of the offences of conspiracy to commit armed robbery
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and armed robbery. It has been shown that the accused in company with others agreed to rob; that they robbed PW1 and that the robbery was armed robbery. It has also been proved that the accused partook in both the conspiracy and the armed robbery. By direct, confessional and circumstantial evidence therefore the guilt of the accused has been proved beyond doubt in my view.?
The contention of the Appellant that it appeared the trial Court sought to have the appellant convicted at all cost is not borne out by the facts and evidence led in the case as shown in the Record of Proceedings. I read carefully the confessional statements and the evidence in chief of PW1 to see if there was clear evidence that the Appellant and his accomplices were actually armed during the robbery of 16/8/07 for if they were not the sentence could be reduced to conviction for robbery and not armed robbery. While there was no clear evidence in the confessional statements and the evidence in chief of PW1, the cross-examination of PW1 clarified the point. In answer to a question during cross-examination, PW1 testified: ?One of the robbers pointed pump action gun at us.
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Others carried locally made guns and cutlasses.? Learned counsel for the Appellant thus under cross-examination supplied the missing link which confirmed that it was truly a case of armed robbery and not robbery simpliciter. At any rate it was unlikely and out of the ordinary that a robbery could be conducted in the Highway without arms. Several vehicles were robbed on that day. The Appellant had further argued that there were contradictions in the case of the Prosecution which raised doubt that ought to have been resolved in his favour. There were no material contradictions. For example, PW1 had testified that the robbers were 8 while in the confessional statement, the Appellant said they were four. That kind of contradiction is totally immaterial to the guilt of the accused. In the case of NDIKE V STATE (1994) LPELR-1971 (SC) Ogwuegbu JSC observed:
?It is not all contradictions in the testimony of prosecution witnesses that are fatal to its case. For any conflict or contradiction to be fatal, it must be substantial and fundamental to the main issues in question before the Court. What is material depends on the facts of each
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case.?
Whether the assailants were four or eight is immaterial to the substance of the matter, which is whether PW1 and others were robbed with arms by the Appellant and his accomplices on 16/8/07. The totality of the evidence against the Appellant is confounding. We have no reason whatever to interfere with the judgment of the lower Court. I hold that this appeal is not meritorious. It is hereby dismissed. The judgment of the High Court of Ogun State Abeokuta in Charge No AB/35R/2012 delivered by Akinyemi J. on 13/7/15 convicting the Appellant of conspiracy and armed robbery and sentencing him to death by hanging is affirmed.
MODUPE FASANMI, J.C.A.: I read before now the draft of the judgment of my learned brother Chinwe Eugenia Iyizoba JCA.
The totality of the evidence against the Appellant is overwhelming and this Court has no reason whatsoever to interfere with the judgment of the trial Court.
?I agree entirely with the reasoning and conclusion of my learned brother in the judgment. The appeal is devoid of merit and it is hereby dismissed. I abide by the consequential orders contained
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therein.
HARUNA SIMON TSAMMANI, J.C.A.: I read before now, a draft of the judgment just delivered by my learned brother Chinwe Eugenia Iyizoba, JCA.
In the instant case, the Confessional Statement of the Appellant was tendered and admitted in evidence without objection by the Appellant who was represented by counsel. In that case, the need to conduct a Trial-Within-a Trial did not arise. See Owie v. State (1985) NWLR (pt.3) p.470; Stephen Haruna v. The A.G. of the Federation (2010) LPELR ? 4233(CA) and F.R.N. v. T. A. Dairo & Ors (2015) LPELR – 24303 (SC). It therefore means that the Confessional Statement of the Appellant was duly proved and admitted. The totality of the evidence on record effectively satisfied the six tests rule as laid down in a plethora of cases for determining the truthfulness of the confession. See Amoshima v. The State (2008) LPELR – 4369 (CA); Ogunsanya Oluwaseyi v. The State (2016) LPELR – 41121 (CA) and Rasheed Lasisi v. The State 2013 LPELR – 20183 (SC). The Appellant was arrested wearing the police uniform he took from the PW1.
It is for the above reason and the fuller reasons ably
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captured in the lead judgment that I agreed that this appeal lacks merit. It is hereby dismissed.
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Appearances:
YEMI ADEWALE, ESQ.For Appellant(s)
OLUDAYO OSUNFISAN, ESQ., DPP MINISTRY OF JUSTICE OGUN STATE with him, O.A. SONOIKI, CHIEF STATE COUNSEL.For Respondent(s)
Appearances
YEMI ADEWALE, ESQ.For Appellant
AND
OLUDAYO OSUNFISAN, ESQ., DPP MINISTRY OF JUSTICE OGUN STATE with him, O.A. SONOIKI, CHIEF STATE COUNSEL.For Respondent
