Adeyemi Pedro V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal Akure Division or lower Court or Court below, Coram: Mojeed A.Owoade, Mohammed A. Danjuma and James Shehu Abiriyi JCA delivered on 20th day of March 2015 which dismissed the appeal against the judgment of Ondo State High Court sitting in Akure by O. O. Akeredolu J (as he then was) on the 9th of July, 2013 and upheld the conviction and sentence of the appellant to death by hanging.
The background facts of the appeal are set out hereunder, viz:.
SUMMARY OF FACTS
On the 13th day of November 2012, the Appellant was arraigned before an Akure High Court, on a one count charge of armed robbery pursuant to Section 1(2) (a) of the Robbery and Firearms(Special Provisions) Act, Cap. R 11, Vol.14 Laws of the Federation of Nigeria 2OO4.
The Appellant pleaded not guilty to the offence contained in the charge. See page 14 of the Record.
The case thereafter proceeded to trial wherein the Prosecution (Respondent) called 4 witnesses, while the Appellant refused to give evidence and thereupon the
trial judge adjourned for counsel’s final address which was filed and adopted by Parties.
Exhibits P1, P2, and P3, P4, P4 and P5 were tendered and admitted in the course of the trial.
The case for the prosecution was that on the 23rd day of May, 2011, PW1 was moving towards Arakale at about 09:15pm, when he met the Appellant who flashed a torch light at him. The Appellant later moved closer to PW1, brought out a gun which he then pointed at PW1’s head, gave him a slap, forcibly collected the sum of N11,300 and two Nokia phones from PW1, and finally pushed him into mud water on the road. After the Appellant left PW1, the latter narrated the incident to a team of Police Officers that he met when he was walking along the road. When the phone of one of the police officers was later used to call PW1’s phone, the Appellant picked the call and ordered PW1 to come and collect his sim with the sum of N10,000 at a Hotel which PW1 could not remember its name. PW1 was later advised by the Police Officers to decline the offer made by the appellant. At about 11:00pm of the same day, PW1 received a call from the Appellant instructing him to wait for him at Ijomu
Junction, PW1 later waited at the said junction after informing some plain clothes Policemen who were also present at the said junction at about 20 minutes afterwards, PW1’s phone rang again and he saw the Appellant standing directly opposite him, thereafter the Appellant asked “where is the N10,000” but as the PW1 was trying to beg him, the Appellant attempted to leave the scene. At this point, PW1 suddenly jumped across the Taxi cab that was between them, and the Police Officer quickly came out to effect Appellant’s arrest. However, the Appellant was holding on to the gun while the policemen were beating him. About five bullets were shot to disperse people away from the area and afterwards the Appellant was arrested and taken to the Police station.
The Appellant refused to give evidence at the trial Court, although he admitted in his two extra-judicial statements made to the Police which rightly admitted as Exhibits P1 and P2, that he was actively involved in how PW1 was robbed.
At the close of evidence from both sides, and address by the counsel, learned trial judge in a judgment delivered on 9th day of July, 2013, found the Appellant
guilty of the offence of armed robbery.
The Appellant being dissatisfied with his conviction and sentence filed his amended Notice of Appeal on the 3rd of January 2014.
The Appellant, not also being satisfied with the judgment of the Court of Appeal, Akure Judicial Division filed another Notice of Appeal on the 9th of April 2015 to the Supreme Court.
The appeal was heard on 15th day of February, 2018 on which date, learned counsel for the appellant adopted the appellant’s brief of argument filed on 7th day of December 2015 in which was crafted a sole issue for determination which is as follows:
Whether from the facts before the Court, was the prosecution able to prove the offence of armed robbery beyond reasonable doubt.
Learned counsel for the respondent Aderemi Olatubora adopted the brief of argument filed on the 20th of September, 2016 and deemed filed on 22nd February 2017 and distilled a single issue which is thus:
Whether having regard to the quality of the evidence led and ingredients of the offence of armed robbery the Court of Appeal was not right in holding that the prosecution proved the case of armed robbery against
the appellant beyond reasonable doubt at the trial Court.
I shall make use of the simply distilled issue of the appellant which in substance ask the same question as that of the respondent.
Whether from the facts before the Court, the prosecution was able to prove the offence of armed robbery beyond reasonable doubt as required by law.
Learned counsel for the appellant submitted that the conviction of the appellant was faulty since the preconditions of the offence of armed robbery were not met. He cited Bozin v State, Okosi v A. G. Ben (1989) 1 NWLR (Pt.100) 642; Section 135 (1) (2) and (3) of Evidence Act, 2011; Ahmed v State (2001) 8 SCQLR 273: Adekoya v State (2012) 49 SCQLR 1119.
That the prosecution was able to establish 2 out of the 3 necessary ingredients that is that there was a robbery which was an armed robbery but failed to establish that the appellant was one of the perpetrators. That PW1 who was an eye witness could not have been able to identify the appellant in this case. He referred to Almu v State (2009) 38 NSCQLR 416 at 431; Chukwu v State (1996) 7 NWLR (Pt.463) 686.
Learned counsel contended for the appellant that the
situation produced a reasonable doubt which has to be resolved in favour of the appellant. He cited Okpulor v State (1990) 7 NWLR (Pt.164) 581; Oduneye v State (2001) 2 NWLR (Pt. 697) 311.
Learned counsel for the appellant stated that the purported confessional statement fell short of what a confessional statement should be as required by law as it was neither positive nor direct. That the Court should note that appellant retracted the said statement for which a corroborative evidence outside the statement was necessary and since that did not happen the confessional statement could not be used to sustain the conviction. He cited Nsofor v State (2002) 10 NWLR (Pt.775) 274: Paul Onoche v FRN (1996) NWLR 307; In Re: Osakwe (1994) 2 NWLR (Pt. 326) 273 at 300. Learned counsel for the respondent called the Court’s attention to the fact that the appeal is on concurrent findings of facts of the two Courts below which the apex Court would not lightly set aside as the exceptions for which such an action would be taken by this Court are lacking. He cited Military Governor of Lagos State v Adeyiga (2012) 5 NWLR (Pt.1293) 297 at 334, 336 and 338,
Adonike v The State (2015) 7 NWLR (Pt. 1458) 237 at 286, Shurumo v The State (2010) 19 NWLR (Pt 1226) 54 at 100-101; Sobakin v The State (1981) 5SC 75; Igwe v The State (1982) 9SC 174.
He submitted that the prosecution proved its case beyond reasonable doubt as the ingredients of the offence of armed robbery were established against the appellant through compelling direct evidence such as the appellant’s confessional statement which was proven to be true and sufficiently corroborated by the evidence of the prosecution witnesses. He cited Tanko v The State (2008) 16 NWLR (Pt.1114) 639; Bolanle v The State (2005) 7 NWLR (Pt.925) 431; Princewill v The State (1994) 7-8 SC (Pt.11) 226 at 240.
That there was proper identification of the appellant and the evidence of prosecutions witnesses PW1, PW2, PW3 and PW4 were strong, cogent and effective alongside the confessional statements P1 and PW2. That in the circumstances, an identification parade was uncalled for. He referred to
Onuoha v The State (1998) 5 NWLR (pt. 548) 118 at 134 135; Ikemson v The State (1989) 3 NWLR (pt.110)457 at 472, Madagwa v The State (1988) 5 NWLR (pt.92) 60 etc.
That the proof beyond reasonable doubt was made out. He relied on Ajayi v The State (2013) 9 NWLR (pt.1360) 589 at 616, 624.
That the appellant resiling from the confessional statement neither made it inadmissible nor unusable. He cited Lasisi v The State (2013) 9 NWLR (Pt.1358) 74 at 93; Demo Oseni v The State (2012) 5 NWLR (Pt.1293) 351 at 387; Dibie v The State (2007) 9 NWLR (Pt.1038) 30.
In summary, the appellant’s angle is that proof beyond reasonable doubt was not established based on the fact that the identification of the appellant as the person who allegedly robbed the PW1 was in doubt and the alleged confessional statement referred to another person and not PW1 in this case.
Respondent taking another route contends that the proof beyond reasonable doubt was established and this properly found in the concurrent findings of the two Courts below based on proper evaluation of evidence.
The appellant was charged for armed robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol.14 Laws of the Federation of Nigeria, 2004.
The particulars of the offence allege that the appellant on or
about the 23rd May, 2011 at Arakale, Akure in Akure Judicial Division, while armed with a gun robbed Mr. Akachukwu Lawrence of his two Nokia handsets valued at N25,000.00 and a cash sum of N11,300.
It is to be noted that to prove the offence of armed robbery as charged, the following ingredients of the offence must be established either directly or through circumstantial evidence and they are thus:
a) That there was a robbery or series of robberies
b) That the robbery was an armed robbery
c) That the accused participated in the robbery.
The important condition for these essential elements is that all three ingredients must be complete none excepting. It is not enough that two of the ingredients are in place while one or two are absent, They all must co-exist for the offence to be well founded and said to have been established or proved. See Tanko v The State (2008) 16 NWLR (Pt.1114) 639; Bolanle v The State (2005) 7 NWLR (Pt. 925) 431.
A journey back to the trial Court shows that PW1, a victim of the said robbery incident narrated how the appellant who was unknown to him before the incident threatened him with a gun, slapped him and dispossessed him of
the two Nokia Phones and the sum of N11,300.00 and later pushed him, PW1 into mud water on the road.
In the confessional statements of the appellant, P1 the appellant stated that he robbed one Oke of his two phones at gun point after which he pushed him into the gutter. That he was got at when the said Oke called the number of one of those phones purporting to need help retrieve the phones on payment of N5000.00 and the appellant had answered the call.
Exhibit P2 is another extra-judicial statement of the appellant at page 10 of the Record of Appeal. Excerpts from Exhibit P2 are as follows:
…On 23rd May, 2011, at about 2220hrs, I was standing at Arakale street looking for a motorcycle to convey me to my house at Odopetu when I saw one man coming towards where I stand, The man wanted to fall into a fit, and I pointed my torchlight to his way and he thanked me. As he was going, I followed him and pointed my locally made pistol and collected his two phones and asked him to run away. After ten minutes, one of his phones rang and I received the call not knowing that it was the complainant. He started pleading with me that he had many contact
numbers for his business, that if I return it back, he wiil give me N5000…
PW1 had stated thus:
…as I was moving I saw a man with torch light flashing the torch light at me, I greeted him in Yoruba language “E kale oo,’ and he responded immediately I entered in between the two buildings. In between the two buildings I entered Arakale road. He moved very closer to me and before I knew what was happening he brought out a gun and pointed it on my head”.
Excerpts of PW2’s evidence on records reads:
“…he said I should take him to Oja area along Oba Adesida road, which we agreed on N50. I took him there. Immediately he alighted the motorcycle he was calling on somebody and I demanded for my money which he never gave me, He started talking with that man. As they were struggling the police man came to arrest them. They searched him there and recovered one locally made pistol…”
Under cross examination PW2 on the same issue stated as follows:
“…at the time of arrest he was fighting with somebody. I did not see police point gun at him. The police recovered locally made pistol which I saw…
The trial Court had utilized the evidence of PW1 wherein graphic details of the event were proffered including how he was attacked by the appellant who dispossessed of his money and two Nokia phones, after which PW1 had called on one of those handsets in a negotiation play for the release of the sim card and a meeting point was agreed upon and with PW1 alerting the Policemen on patrol appellant was arrested after a further pretended negotiation.
The evidence of PW1 was synchronized by that of PW2, the motorcyclist who confirmed conveying the appellant to that point of meeting where he was arrested. This piece of evidence was unchallenged.
PW3 and PW4 testified being the Police Officers who investigated the crime and obtained the confessional statements, P1 and PW2 of the appellant. What shows up quite clearly is the fact that an identification parade was not a necessity in the circumstances in the light of the contact between appellant and the victim, PW1. This coupled with the second meeting so soon thereafter in respect of the put up negotiation for the phones and sim card thus making a possible identification parade an overkill and unnecessary. The contact between victim and attacker cannot be
described as a fleeting one for which PW1 would have difficulty in recognising his assailant. See the cases of Onuoha v The State (1998) 5 NWLR (Pt. 548) 118 at 134-135; Ikemson v The State(1989) 3 NWLR (Pt. 110) 457 at 472; Madagwa v The State (1988) 5 NWLR (Pt.92) 60.
An indepth consideration of the confessional statements produced statement voluntarily made which are direct, positive and unequivocal as to the admission of the guilt of the accused/appellant and such as sufficient to ground a conviction of the appellant irrespective of the appellant’s resiling from the statement during the trial. I place reliance on the cases of Lasisi v The State (2013) 9 NWLR (Pt.1358) 74 at 93; Demo Oseni v The State (2012) 5 NWLR (Pt.1293) 351 at 387.
At the risk of over flogging an issue, it has to be said that there is no evidence stronger than a person’s own admission or confession which is often as in the case denied or retracted at trial. That retraction does not affect its admissibility but is taken into consideration in deciding what weight to be attached to it. In that consideration of weight in the resiled confessional statement
the following questions are asked of himself by the trial judge, viz:
- Is there anything outside the confession to show that it is true
- Is it corroborated
- Are the relevant statements made in it of facts, true as far as they can be tested
- Was the accused the one who held the opportunity of committing the offence alleged
- Is his confession possible
- Is it consistent with other facts which have been ascertained and have been proved See the case of Dibie v The State (2007) 9 NWLR (Pt. 1038) 30.
As I stated earlier the fact that the accused denied at the earliest opportunity of making the statement, that does not stop the statement being admitted in evidence but the timing of the retraction lends weight in considering what use it would be put. In this I am guided by the words of my learned brother Ngwuta JSC in Demo Oseni v The State (2012) 5 NWLR (Pt.1293) 351 at 372-373 where he stated as follows:
“The Appellant took the earliest opportunity when the statement was offered in evidence to deny having made it. A mere denial without more, even at the earliest opportunity, cannot on the facts of this
case, lend weight to be denial. The denial is bare statement bereft of any supporting fact and standing only on the ipse dixit of the Appellant. As stated earlier, the statement was not challenged on ground of voluntariness and the trial Court rightly declined the invitation to conduct trial within trial”.
In the case at hand even without corroboration, the two confessional statement’s P1 and P2 can sustain the conviction of the appellant. However, if one is for corroboration of the confessional statements, the evidence of PW1, PW2 and anchored by the police officers PW3 and PW4 apply a load of that. It is therefore, now faced the concurrent findings of fact and conclusion by the trial Court and Court of Appeal, this Court being a policy Court has laid down the rules of not disturbing concurrent findings and conclusion reached at within the evidence and materials before Court and in line with the relevant legislations on substantive and procedural law. In this instance there has been no infraction in that regard and for effect I shall refer to the case of:
Military Governor of Lagos State v Adeyiga (2012) 5 NWLR (Pt.1293) 291 at 334, 336 and 338.
In Adonike v The State (2015) 7 NWLR (Pt.1458) 237 at 286 this Honourable Court per Rhodes-Vivour, JSC, held:
“The Supreme Court will rarely upset the findings made by the trial Court and affirmed by the Court of Appeal. This is so, because such findings were arrived at after cross-examination and observed of the witnesses by the trial judge. Such concurrent findings of the two Courts below, ought to carry much weight in an Appeal Court which did not have the opportunity or advantage of the trial Court…”
a) Shurumo v The State (2010) 19 NWLR (Pt.1226) at 100-101.
b) Sobakin v The State (1981) 5 SC 75.
In the end I have no difficulty in going along the concurrent findings of fact of the two Courts below and hold that the prosecution proved its case beyond reasonable doubt bearing in mind that the appellant was identified directly, positively and credibly through the evidence of PW1 and PW2 and upon the evaluation of the totality of the evidence before the Court including the confessional statements which are free, direct, positive, unequivocal and voluntary enough to ground the conviction. See Stephen v The State (1986)
5 NWLR (Pt.46) 978.
This appeal clearly lacks merits and I do not hesitate in saying so. Appeal is dismissed as I affirm the decision of the Court of Appeal which upheld the judgment, conviction and sentence of the appellant.