Obinah John V. The State (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.:(Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Oyo State, Ibadan Judicial division delivered by Hon. Justice E. Esan on the 9th day of November, 2006

The Appellant was charged with six other accused persons; the first five including the Appellant were charged on a seven count charge of conspiracy to commit armed robbery, armed robbery and sheltering armed robbers contrary to section 5(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990.

The 1st and 3rd accused persons are said to have died before the trial commenced while one of the accused persons was at large, leaving four accused persons. At the close of the prosecution’s case, a submission of no case was made on behalf of the Appellant and the remaining three accused persons. The no case submission was upheld only in respect of the 4th accused (Ngozi Okafor) while the Appellant and other accused persons proceeded with their defence.

The learned trial Judge in a considered judgment convicted the ‘Appellant and two other accused persons on counts 1-6 of the charges against them and therefore sentenced them each to death by hanging.

Distraught by the trial Court’s decision, the Appellant made out a Notice of Appeal dated and filed 29th March, 2011; which Notice of Appeal was by the Order of this court amended dated the 15th June, 2011, filed on the 16th June, 2011 but deemed duly filed and served on the 12th November, 2011.

At the hearing of the appeal on the 8th day of October, 2013, the learned Counsel for the Appellant Ahmed Akanbi Esq. adopted and relied on the brief of argument of the Appellant dated 26th and filed 27th November, 2011. The said brief which was deemed duly filed and served on the 9th April, 2013 had two issues formulated for determination.

Appellant’s issues are thus:-

1. Whether the statement of the Appellant could amount to a confessional statement as provided for under section 28 of the Evidence Act 2011 and even if it is admitted as a confessional statement, was it voluntarily made?
2. Whether the prosecution proved beyond reasonable doubt, the charges against the Appellant?

Counsel for the Respondent Kofo Oguntoyinbo (Deputy Director of Public Prosecution, Ministry of Justice, Oyo State) also adopted and relied on the two issues for determination in his Respondent’s brief of Argument dated 9th April, 2013 and filed 6th June, 2013 but deemed duly filed and served on the 13th of June, 2013. The Respondent’s issues are very similar to those of the Appellant’s and are:-

1. Whether the statement of the Appellant is a confessional statement as provided under section 28 of the Evidence Act 2011?
2. Whether the prosecution has proved its case beyond reasonable doubt.

This appeal shall be determined on the two issues formulated by the Respondent whose issues are more explicit.

ISSUE ONE

The learned counsel for the Appellant submits that the statements as contained in Exhibits B and B1 (also refer to Exhibits B8 & B9(A) do not qualify in law to be considered as confessional statements upon which the Appellant can be convicted for the offence of armed robbery. That the Appellant did not in any way confess to have participated in the robbery of G.U.O. Bus on 7th May, 2003 though he admitted selling drugged pure water to passengers of a luxurious bus so that the other accused persons could dispossess the passengers of their valuables while they slept. The learned Counsel hinged his argument on the definition of confession made in Section 28(1) Evidence Act 2011 which states that:-

“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.

Counsel submits that there was no mention of the Appellant committing the crime with arms and that the trial court ought to have expunged the alleged confessional statement as it was not corroborated by any of the witnesses called by the prosecution. Counsel cited the case of Mufutau Balogun vs. The State (1994) 5 NWLR (Pt.345) 442 @ 460 and the evidence of PW5 on pages 50 of the records.