Samodi Mustapha V. The State (2007)

LawGlobal-Hub Lead Judgment Report

ALFRED P. E. AWALA, J.C.A.

The Appellant here was arraigned on a two count charge of conspiracy and armed robbery on 21-7-03 at the Ogun State High Court Holden at Abeokuta contrary to Section 1 (2) (a) and 5(b) of the Robbery and Firearms Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria 1990. He pleaded not guilty to all the counts. The prosecution called three witnesses to prove its case. The prosecution case in a nutshell is that on or about 14/6/03 the Appellant conspired with others still at large and robbed one Pastor Moses Akinpelu (PW1) at Holy Michael Church of Christ, Ogbo, Abeokuta, while armed with guns along with five others. The appellant robbed PW1 the sum of N20,000.00. None of the robbers was arrested at the scene of crime. PW1 who on reporting the incidence to the police stated he could identify two of the armed robbers. Having seen the appellant at Enu Gada Police station he identified him as being one of those who ‘robbed him and the appellant, on the strength of the identification, was arrested and arraigned in court on the instant head of counts charged above.

On the other hand, the case of the Appellant is that he was not one of the robbers, that robbed Pw1 who he states is his In-Law. Appellant stated that Pw1 had wanted him to beat the drum in his church at a revival and to convert him to Christianity from his Muslim faith and his refusal resulted into a disagreement between them.

In a considered judgment of 14/6/04, the lower court found the Appellant guilty on the two count charge and sentenced him to death by hanging. Dissatisfied, he has appealed to this court, on two grounds. Parties filed and exchanged brief of arguments.

The Appellant’s brief contained two issues for determination of the appeal. The two issues read:

1. Whether the prosecution proved its case beyond reasonable doubt against the appellant in view of available evidence in this case?
2. Whether the prosecution is not duty bound to satisfactorily prove a confessional statement to warrant conviction without corroborative evidence?

The respondent on the other hand also raised two issues as having arisen for determination of this appeal. These are:-

1. Whether the prosecution proved its case beyond reasonable doubt against this Appellant in view of available evidence in this case?
2. Whether the Appellant was rightly convicted based on his confessional statement as corroborated by the evidence adduced by the prosecution.

The issues raised by the parties learned counsel are similar. I prefer that the appellant’s counsel two to resolve this appeal.

Under the appellant first issue, his learned counsel contends that the onus of proof by S.138 of the Evidence Act places on the prosecution is to prove the guilt of the accused beyond reasonable doubt and it does not shift. He submits that the appellant is by s. 36 (5) by the 1999 Constitution is presumed innocent. He can only be convicted of the offences under which he is charged if and only if it is shown beyond reasonable doubt that he conspired and did rob and be linked to the offences. The Learned counsel then referred to the evidence of PW1 at page 12 lines 11 – 20 of the record of proceedings and under cross examination at page 12 lines 22-30 of the said record and submits that PW1’s testimony falls short of satisfying the burden placed on the prosecution under S. 138 (supra) because the Appellant’s identification and by extension his participation in the crime remained doubtful. Counsel submits further that it is the duty of the prosecution to eliminate any doubt created in its attempt to prove its case beyond reasonable doubt. For doubt on the identification of the appellant, he cited Bozin v. State (1985) 2 NWLR (pt.8) 453, Orimoloye v. State (1984) 7 SC 138, and Anyanwu v. State (1986) 5 NWLR (pt 43) 612 at 621 – 624.

On alibi raised by the appellant at page 36 lines 14 and 15 of t he record counsel submits the prosecution has the duty in law to take steps to verify and disprove same. As for the court, the court is obliged legally to consider the defence of alibi. He cited Isiekire Vs. State (1999) 9 NWLR (pt. 617) 43 at 65 E-F; State Vs. Obinga (1965) NMLR 172, Ifeiirika Vs. State (1999) 3 NWLR (pt. 593) 59 and Fatoyinbo Vs. AG WN (1966) WRNLR 4.

Appellant counsel submits further, the court also owes the accused a duty in law to consider all available defences, no matter how trial, available to the appellant dispassionately before dismissing same off hand. Learned Counsel also referred to the evidence of the prosecution vital witness not called like the Appellant’s friends who allegedly traveled with him to Ondo and Pwl’s wife. He cites the following cases on alibi. Ogunye v. State (1999) 5 NWLR (pt.604) 548 at 570 -571, Omoha v. State (1988) 3 NWLR (pt.83) 460. Abgyuluna v. Cop (1961) All NLR 4. And urged that 1st issue be resolved in appellant’s favour.

On issue two, “Whether the prosecution is not duty bound to satisfactorily prove a confessional statement to warrant conviction without corroborative evidence. First, Appellant’s learned counsel referred to Section 27(1) and (2) that if the Evidence Act and submits that for confession to be relevant against the maker, it must be voluntary. That section 28 of the Evidence Act clearly shows the types of confessional statements that are not qualified to be admissible in a criminal trial, those that have been induced.

Appellant’s Counsel submits that despite the fact that the learned trial judge overruled him at the “trial within trial” to enquire about the voluntariness of the confessional statement of Exhibit “A” pursuant to Section 28 of the Evidence Act, this court can reverse that decision because the fact that a robbery ever took place linking the Appellant became doubtful when PW1 himself said that the robbery took place at 2 a.m. dark night, no moon, no light, and the said Exhibit “A” showed clearly the Appellant was outside the Church premises, some of the robbers were inside the Church watching out and only two went inside PW1’s room with guns. That is enough corroboration of the Appellant’s evidence in the trial within trial that he was forced to sign it and enough to put the trial judge on enquiry that the evidence of the Appellant that he was beaten and forced to sign Exhibit ‘A’ can be true. Inspite of the fact also that the appellant claimed, he read up to JSS III, he was not allowed to write his statement himself. That certainly, the conviction of the Appellant on Exhibit ‘A’ alone is not proper and not sufficient to ground conviction; as it obviously does not pass the six tests in R. V. Sykes (13) 18 CR App 233 approved in Kanu v. R 14 WACA 30 and applied by the Supreme Court in Dawa v. State (1980) 8-11 SC 236. The six tests are:-

(1) Is there anything outside it to show that it is true (the confession)

(2) Is it corroborated?