Adewa Sunday v. The State (2024)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

UWANI MUSA ABBA AJI, JSC (Delivering the leading judgment)

The case of the respondent is that on 4/6/2013, one Abosede Oyeyemi Malomo (PW1) was robbed of her money, Nokia Phone and Ipad in her house at Ilogbo Ekiti by the appellant and his co-accused persons, who were armed with gun and cutlass. Discreet investigations and tracking of the Nokia phone carted away from PW1 by the culprits led to the arrest of the appellant and 2nd defendant.

In the cause of interrogation, appellant voluntarily confessed to the commission of the crime and other items stolen i.e an Ipad that was recovered from the sister of 2nd defendant were tendered in evidence.

The learned trial Judge convicted and sentenced the appellant and his partner in crime (Adedayo Amos) to death by hanging. On appeal, the Court of Appeal on 29/3/2022 affirmed the judgment of the trial court, hence this appeal.

The appellant’s learned counsel filed his brief of argument on 17/8/2022 and nominated these issues for the determination of this appeal:

1. Whether the Court of Appeal was right in upholding the trial court’s conviction of the appellant for the offence of armed robbery.
2. Whether the Court of Appeal was right when it held that the testimonies of the prosecution corroborated the fact that the appellant made exhibit C.
3. Whether the Court of Appeal was right when it held that the trial court properly evaluated the evidence of PW1, the only witness to the crime.
4. Whether the Court of Appeal was right to hold that the circumstances that would have necessitated conducting an identification parade did not exist.

The respondent’s learned counsel on 21/6/2023 presented his brief deemed filed on 30/11/2023 and formulated these issues:

1. Whether the Court of Appeal was not right in upholding the trial court’s conviction of the appellant for the offence of armed robbery.
2. Whether the lower court was not right when it held that the testimonies of the prosecution’s witness corroborated exhibit C.
3. Whether the Court of Appeal was not right when it held that the trial court properly evaluated the evidence of PW1.
4. Whether the court of appeal was not right to hold that the circumstances that would have necessitated conducting an identification parade did not exist in this case.

The determinative and comprehensive issue in this appeal is; whether by the circumstances of this appeal, the evidence and procedure, the Court of Appeal was not right to uphold the conviction and sentence of the appellant.

Issue for determination:

Whether by the circumstances of this appeal, the evidence and procedure, the Court of Appeal was not right to uphold the conviction and sentence of the appellant.

The learned counsel to the appellant submitted that there was no credible and conclusive evidence that the appellant was part of those that carried out the robbery because prior to the event of 4/6/2015. That PW1 did not know the appellant and could not have physically examined him during the alleged attacked with exactitude. It was contended that the power outage in the apartment of PW1 casts serious degree of doubt as to the ability of PW1 to recognize and identify the appellant with any exactitude. The identity of the appellant as one of the armed robbers who robbed PW1 on the 4/6/2015 was not established. His further submission is that the material contradiction in the evidence of PW1 and PW2 when the former insisted that she saw real guns as opposed to the calved guns disguised as real guns tendered in evidence by the latter is fatal to the case of the respondent. Similarly, that even if the appellant made exhibit C, the alleged confessional statement, the facts contained in the said exhibit was induced and could not have been made voluntarily by the appellant. Thus, apart from exhibit C, there is no compelling evidence of the prosecution that can justify the conviction of the appellant. In another angle, it was argued that the evidence of PW1 and PW2 did not in any way whatsoever corroborate the fact that the appellant made exhibit C and the law is trite that the court can only convict on the retracted confessional statement only when the statement is subjected to the six-way test to determine the weight to be attached to the statement as decided in Madjemu v. The State (2001) 25 WRN 1; (2001) 9 NWLR (Pt. 718) 349. Therefore, that exhibit C is not consistent with the evidence of PW 1 and PW2. Again, that the power outage in the apartment of PW 1 and the movement from the position of illumination to the various non-illuminated rooms necessitated an identification parade which ought to have been conducted. He referred to Seun v. State (2019) 8 NWLR (Pt.1673) SC 156, paras. D- F. He prayed this court to allow the appeal and set aside the conviction and sentence of the appellant.

In reaction, the respondent submitted that the respondent had been able to prove its case against the appellant. That there was direct evidence of the victim and eye-witness to the crime who gave credible account of how the appellant robbed her of her phones and the three members of the criminal gang took their turn to rape her. Also, the circumstance of the arrest of the appellant and the 2nd defendant and the recovery of items carted away from PW 1, the victim, all pointed irresistibly to the fact that the appellant was among the criminals that robbed PW1 on the day of the incident. Above all, upon the arrest of the appellant, PW1 properly identified him and he later voluntarily confessed to the commission of the crime admitted in evidence as exhibit C, attested to by a superior officer via attestation form duly signed by the appellant as exhibit C1. On the identity of the appellant, he argued that PW1 gave uncontroverted and uncontradicted evidence that the appellant was the first of the armed robbers to enter her room when she was reading and the reading lamp was directed at his face before he made the light to face down. It was responded that nowhere in the record was it stated that it was a toy or wood gun that was directed at PW1 but a gun and cutlass.

Further, that nowhere in the record was it stated that PW 2 gave evidence at the trial court and that exhibit C was ‘obtained’ or forced out of the appellant. Again, that although exhibit C is copiously corroborated in this case, a free, voluntary, direct and positive confessional statement properly proved is enough to sustain a conviction even without corroboration. He cited in support Olakunle v. State (2018) 6 NWLR (Pt. 1614) 19 at 113 para. G, Peter v. State (2018) 13 NWLR (Pt. 1635) 1 at 13 paras. D-F. In the same light, it was contended that the appellant’s retraction from his confessional statement will not affect its admissibility once it satisfies the conditions long established in Simeon v. State (2018) 12 NWLR (Pt. 1635) 128 at 148 paras. E-G.

On the identification of the appellant, it was argued that PW1 properly identified the appellant as one of the three persons that robbed her at gun point; hence there is no need for identification parade. He cited in support Samuel v. State (2021) 2 NWLR (Pt. 1761) 451 paras. C-D. He urged for the resolution of this issue in favour of the respondent and to dismiss the appeal.

Resolution of issue: