Adewale Kabiru V. Attorney General, Ogun State (2008)

LawGlobal-Hub Lead Judgment Report

CHIDI NWAOMA UWA. J.C.A.

This is an appeal against the judgment of Honourable Justice M.A. Dipeolu of the Ogun State High Court, sitting in Abeokuta on 18th June, 2004.

The appellant was arraigned before the trial court on a six count charge of Conspiracy and Armed Robbery contrary to and punishable under Section 1(2)(a) and Section 5(b) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the federation of Nigeria 1990.

The appellant pleaded not guilty to the charges while the prosecution called six witnesses at the trial. At the close of the prosecution’s case, the appellant testified in his defence and called no witness.

The case of the prosecution is that on the 13th day of August, 1996 the appellant and others at large carried out an armed robbery operation at No.5, Temidire Ope-Oluwa Street, Ita Oshin in Ogun State during which several of the residents were robbed of their belongings. The appellant fled after the incident and was arrested hours later by policemen who took him back to the victims for identification. The victims alleged they identified the appellant as the one who collected their money.

The appellant on his part denied ever robbing anybody and said he was abducted at Iyana Abule-Otun Bus Stop at Lafenwa, Abeokuta and taken to the police station at about 8.45 am as he was about to board a taxi to Isale-Igbehin on 14/08/96. He put up a defence of mistaken identity.

After considering the case of the prosecution and the appellant’s defence, the learned trial judge found the appellant guilty as charged and sentenced him to death by hanging.

It is against this judgment that the appellant originally filed a Notice of Appeal dated 24th June 2004 with a sole ground, which was on 29/11/05 amended with a Notice of Appeal containing three grounds.

Two issues were formulated for determination. They are:

1. Whether the denied confessional statement, Exhibit ‘A” simplicita if admissible is sufficient to ground conviction of an accused person?
2. Whether the defence of Alibi (mistaken identity) avail the Appellant?

On 20/9/07 this court on application, granted the learned appellant’s counsel an order setting down the Appeal for hearing on the strength of the Appellant’s brief alone, the respondent having failed to file any brief.

Even though the respondent was served with the hearing Notice on 9/10/07, when this appeal came up for hearing on 16/1/08 the respondent was neither in court nor represented by counsel. The appeal was therefore argued on the appellant’s brief alone.

In his brief, the learned appellant’s counsel, Oladipo Okpeseyi Esq. submitted that no one could be lawfully convicted on the erroneous assumption that there is evidence against him either through alleged confession or admission or by proof and relied on the case of Ogunye v. State (1999) 5 NWLR (Pt 604.) 548 at 577D. He argued that there are three alleged confessional statements, one made to and recorded by PW5 at Lafenwa Police Station on 13/8/96, the second to PW6 dated 13/6/96 and the third on 14/8/96. He stated that the trial judge expunged both oral and documentary evidence of PW6 from the records, including the alleged statements by the appellant. Further that the evidence of PW1, PW2 and PW3 were discredited by the trial judge, that the only evidence left against the appellant is the evidence of PW5 and the alleged confessional statement, Exhibit ‘A’ recorded by PW5. He argued that the evidence of PW5 is not credible and should not be relied upon. Further that the evidence of PW5 showed gross incompetence as rightly found by the trial judge. The learned counsel highlighted aspects of the PW5’s evidence which the prosecution ought to provide answers for or explain for it to prove its case beyond reasonable doubt. He argued that the evidence of PW5 is not credible, should not be relied upon and should be discountenanced. The learned appellant’s counsel agreed with the trial court that an accused person cannot be convicted upon a statement that is not admissible in evidence against him unless it is shown by the prosecution to have been voluntarily made. Learned counsel cited and relied on the case of Kareem v. Federal Republic of Nigeria (No.2) (2002) 8 NWLR (Pt.770) 664 at 682-684 a-h.

Learned counsel argued that Exhibit ‘A’ which was denied by the appellant was not proved to have been voluntarily obtained.

In the alternative argument without conceding, learned counsel submitted that if the admission of Exhibit ‘A’ was proper it cannot ground conviction for an offence with death penalty, with the statement as the only evidence. He cited and relied on the case of Kareem v. Federal Republic of Nigeria (No.1) (2002) 8 NWLR (Pt 220) 664 at page 636-656 A-C. The learned counsel highlighted the conditions that would make a statement voluntary even though an accused has resiled from a confessional statement as laid down in R v. Sykes (1913). 18 CR.App. R. 233. He highlighted the contents of Exhibit ‘A’, and argued that the prosecution did not take any steps to prove, disprove and or confirm any of the material statements made in Exhibit ‘A’ that would link the Appellant to the crime. Further that the circumstances of the appellant’s arrest was not proved, for instance that nothing in Exhibit ‘A’ showed that the appellant was arrested with any other person who was later released, neither did Exhibit ‘A’ show that the appellant was arrested with a broken leg, taken to the scene of the crime, was identified by PW1, PW2, and PW3 or any other person. Further that Exhibit ‘A’ was not counter signed by a Superior Police Officer. He argued that the trial court should not have relied on Exhibit ‘A’ if the court had subjected Exhibit ‘A’ to the test enunciated in Kareem v. F.R.N. Nos. 1 and 2 (supra). That convicting the appellant on Exhibit ‘A’ alone occasioned a miscarriage of justice.