Okon Dan Osung.v. The State (2012)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C,

The appellant was charged with the offence of Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No 5 of 1994, now Section 1(2)(a) of the robbery and firearms (Special Provisions) Act Cap. R11 Laws of Federation of Nigeria 2004. The original charge in the case was against only two accused persons, which charge was amended to include four other accused persons with the appellant as the 6th accused person. All the six accused persons pleas were taken and they all pleaded not guilty.

On the 19/11/1996, when the matter carne up for hearing, three (3) of the accused persons were reported to have died in prison, and upon the presentation of their death certificates, their names were struck out, leaving only three (3) accused persons on the charge sheet. The three accused persons pleas were also taken and again they pleaded not guilty.

At the hearing the prosecution called four witnesses while the appellant herein testified on his own behalf and called no witness. The confessional statements of the appellants, which were tendered without objection, were admitted as Exhibits 9, 10 and 11, respectively.

At the conclusion of hearing, the trial Tribunal held that the prosecution has proved its case beyond reasonable doubt found the appellant guilty of the offence charged and after conviction sentenced him to death. In arriving at its conclusion, the trial Tribunal found as follows:-

“In view of Exhibits 4, 7 and 9, I find that the denial of this offence by DW1, DW3 and DW5 in this Tribunal is of no consequence. The question is, was the operation carried out by DW1, DW3 and DW5 along Oron Road, Oron, opposite the Apostolic Church Oron on 17/6/93 an armed robbery The evidence that when the robbers surrounded the vehicle which stopped at that point to enable the ladies in the vehicle dis-embark they were armed with matchets, daggers and knifes was not contradicted. Since this piece of evidence went un-challenged I accept and believe it notwithstanding the evidence to the contrary by Dw1 in Exhibit 4 that “none of them was armed”. I find that the Operation whereby Pw1 and Pw2 were attacked and dispossessed of their money at Oron Road, Oron on 17/6/93 was armed robbery. On the basis of the evidence adduced by the prosecution in this case which evidence is largely unchallenged coupled with the confession made by the accused persons as contained in Exhibits 4, 7 and 9, I find that the prosecution has proved its case beyond reasonable doubt and I so find each of the accused persons guilty as charged”.

The appellant herein was dissatisfied with the decision of the trial Tribunal and thus appealed to the Court of Appeal Calabar Division herein after called the lower court. As can be gleaned from the briefs of argument filed by the parties, the lower court affirmed the decision of the trial Tribunal and dismissed the appeal. However, by a majority of 2 -1, the order of sentence to death was affirmed while the minority judgment of Justice Akaahs, JCA, commuted the death sentence to 21 years imprisonment.

The appellant was again dissatisfied with the judgment of the lower court and has appealed to this court. In accordance with the rules of the Supreme Court both parties filed and exchanged their respective briefs of argument. The appellant in his second amended brief of argument formulated four issues for determination as follows:-

“1. Whether the Court of Appeal was right in holding that the chairman of the robbery and firearms special tribunal adequately tested the truth of the alleged confessional statement of the appellant before relying solely on it to convict and sentence the appellant to death.

2. Whether the Court of Appeal was right in holding that there were no inconsistencies and contradictions in the evidence of the prosecution witnesses in respect of the identity of the appellant as one of the robbers who carried out the robbery operation of 17th June, 1993.
3. Whether the Court of Appeal was right in holding that the robbery incidence of 17th June, 1993, was an armed robbery incident.
4. Whether the trial at the robbery and firearms tribunal and the subsequent appeal at the Court of Appeal, Calabar in this case are a nullity considering the fact that the appellant/applicant was not tried on any charge or information as the record of appeal at the Court of Appeal, Calabar does not disclose any information or charge or statement of offence and particulars thereof against the appellant.

The respondent adopted these issues as formulated by the appellant in its brief of argument. At the hearing the learned counsel to the appellant adopted the brief of argument and urged this court to allow the appeal. The gist of the appellant’s submission on its issue 1, is that the charge or information upon which the appellant was tried and convicted was not contained in the record of proceedings and as such the appellant was not tried on any charge which renders the conviction and sentence a nullity. Furthermore, since the trial tribunal has ordered that all documentary Exhibits used in the trial be destroyed there is no basis to order a retrial. And any order of the retrial if made would amount to a double jeopardy and unjust, the appellant having been standing trial for 18 years after the arrest.

On the 2nd issue. Learned counsel submitted that the trial Tribunal did not test the correctness of the confessional statement of the appellant before relying on it to convict him. It was the submission of the learned counsel that the trial Tribunal ought to have tested the confessional statement with other evidence to test whether the contents were true or not. Hence the lower court was therefore wrong to have upheld the judgment of the Trial Tribunal based on the confessional statement. The learned counsel further submitted that although a confessional statement alone is sufficient to ground a conviction once the court is satisfied with the truth of the confession and the court normally requires some evidence in addition to the confessional statement which make it more probable, the following cases were cited thus:-

(i) Yesufu v. The State (1976) 6 SC 167

(ii) Nwachukwu V. The State (2007) 1 NWLR (Pt 1062) 31 at 64.

(iii) Odeh V. Federal Republic of Nigeria (2008) 13 NWLR (Pt.1103) 44.