Sunday Abiodun V. The State(2013)

LAWGLOBAL HUB Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Holden at Ibadan in appeal No.CA/I/127/2010 delivered on 30th November, 2011 in which the court dismissed the appeal of appellant against the decision of the High court of Ogun State, Holden at Ijebu-Ode in charge No.HCJ/5c/2008 delivered on 23rd December, 2009 in which the court convicted and sentenced appellant on a two count charge of conspiracy to commit Armed Robbery and Armed Robbery contrary to section 6(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R II Laws of the Federation of Nigeria, 2004.

The facts of the case include the following:

On the 7th day of May, 2007 at about 9:30p.m. PW1 who was the Managing Director of FAO Constant Petroleum at Ilese, Ijebu-Ode, Ogun State, closed for the day at the filing station and took the day’s proceeds, the sum of N357,150.00 in his car along with one of his staff. While driving along the road he saw a motor cycle with three men coming behind him, which overtook and blocked his vehicle in the front.

The three men attacked PW1 with broken bottles, beat him up severely and injured him. They escaped with the money and two mobile phones from the vehicle. The staff that was with him was able to escape. The robbers were pursued by good Samaritans who came to the assistance of PW1 without success. PW1 was later informed by his brother that he saw the 1st accused around the filling station earlier that day. The matter was subsequently reported to the police who arrested 1st accused who confessed to the crime and mentioned the name of the appellant as one of the armed robbers.

Appellant was also arrested and he confessed to the crime and gave details of the role he played in the commission of the crime as a result of which they were arraigned for the offence earlier mentioned in this judgment.

At trial appellant denied the charge and objected to the admissibility of the statement made on 12/5/07, which statement was later admitted and marked as exhibit ‘H’ after a trial within a trial. The trial Judge relied on exhibit ‘H’ along with other surrounding facts corroborating same in convicting appellant of the offence charged.

Appellant was not satisfied with the decision and appealed to the lower court, which as stated earlier, dismissed the appeal.

Upon a further appeal to this Court, learned Counsel for appellant BIRIYAI DAMBO ESQ in the appellant brief filed on 8/2/12, has submitted the following issues for the determination of the appeal:

“(a) Whether the trial and indeed the lower court were right in admitting EXHIBIT “H” (the alleged Confessional Statement of the Appellant) in evidence and primarily relying on same for the conviction and sentencing of the Appellant.

(b) Whether the prosecution was able to prove beyond reasonable doubt the ingredients of the offences of conspiracy to commit armed robbery and armed robbery against the Appellant based on the peculiar facts and circumstances of the entire case”

The above issues were adopted by learned counsel for respondent, J. K. OMOTOSHO ESQ in the respondent brief of argument filed on 23/3/12.

In arguing issue 1, learned Counsel for appellant submitted that the prosecution did not discharge the burden placed on them by section 29(2) (a)(b) and (3) of the Evidence Act, 2011, to prove beyond reasonable doubt that the confessional statement was not obtained by oppression or duress or in a manner contrary to the provisions of the section, relying on Egbghonome v. The State (1993) 7 NWLR (pt. 306) 382 at 432.

It is the contention of counsel that appellant objected to the admissibility of exhibit ‘H’ on the ground that he signed the said exhibit under duress; that during the trial within a trial procedure, appellant repeated his claim of torture and that he signed the statement under duress.