Aiyetigbon V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.S.C.
This appeal No. SC.934/2016 was commenced on 8/8/2016 when the appellant herein filed a notice of appeal against the judgment of the Court of Appeal delivered on 24/6/2016 in CA/KA/148CA/2013, affirming the judgment of the High Court of Ondo State at Akure delivered on 16/5/2013 in criminal case No. AK/24C/2012 convicting and sentencing the appellant to death for conspiracy to commit armed robbery and armed robbery. The notice of this appeal contains 2 grounds for this appeal.
Both sides have filed, exchange and adopted their respective briefs as follows – appellant’s brief and respondent’s brief. The appellant’s brief raised the following issues for determination.
1. Whether the judgment and decision of the Court of Appeal which unjustifiably failed and refused to consider and pronounce on the issue/defence of irregular use of confessional statement of co-accused to convict the appellant does not amount to a denial of the right to fair hearing of the appellant and thus rendering the judgment of the Court of Appeal arrived at such circumstances liable to be set aside (Ground 1)
- Whether, having regard to the entire circumstances of this case, the Court of Appeal was correct in affirming the conviction and sentence of the appellant for the offence of conspiracy and armed robbery when the requisite ingredient of the offences has not been proved beyond reasonable doubt by the prosecution. (Ground 2).
The respondent’s belief raised two issues for determination as follows-
- Whether in the circumstances of this case and having regards to the evidence led before the trial Court, the Court of Appeal can be said to have dispassionately considered the appellant’s case before affirming his conviction for conspiracy and armed robbery.
- Whether, in view of the evidence led before the trial Court, the Court of Appeal was right in upholding the conviction of the appellant for conspiracy and armed robbery.
I will determine this appeal on the basis of the issues raised in the appellant’s brief.
Let me start with issue No. 1
I have carefully read and considered the arguments in the respective briefs on this issue.
Learned counsel for the appellant has strenuously argued that the appellant had in the Court of Appeal argued in his brief that it was wrong for the trial Court to rely on the confessional statement of the co-accused to convict the appellant and that the Court of Appeal failed to consider and determine the issue raised by that argument. But learned counsel for the appellant did not reproduce or refer to the part of the appellant’s brief in the Court of Appeal containing such argument. Without drawing our attention to such argument, we can reasonably presume that such argument was never made.
Learned counsel cannot just make such assertion without more and expect this Court to make his case for him by burrowing into the records to find out if he made such argument, and if it finds out that he did, use it to strengthen his argument and then decide the point, We would not want to step down into the arena in this way, in the face of two concurring decisions of Courts against him. As it is, the said argument of learned counsel for the appellant lacks merit and is hereby dismissed.
The records of this appeal show that the appellant herein was jointly charged and tried with Tayo Ikujuni for conspiracy to commit armed robbery and armed robbery. The appellant was the 2nd accused. Tayo Ikujuni was the 1st accused. The second confessional statement of 1st accused made on 30/7/2011 was admitted through PW3 as exhibit P14. His first confessional statement made on 27/7/2011 was admitted through PW7 as Exhibit P16.
The appellant (2nd accused) equally made two confessional statements, exhibits P15 and P16A.
The trial Court in its judgment reviewed in detail the testimonies of all the prosecution witnesses, the confessional statements of each accused, the evidence of the incriminating materials recovered from the appellant and the evidence of each accused in defence, before making findings of material facts on the basis of the totality of the evidence before it. It did not rely on the confessional statements of the 1st accused to convict the appellant (2nd accused). It relied on the confessional statements of the appellant, which it fully reproduced verbatim in the judgment, the testimonies of PW1 to PW8 and the evidence of the appellant in defence as DW2 in convicting him.
The argument of learned counsel for the appellant that the trial Court relied on the confessional statements of the appellant’s co-accused to convict the appellant is not supported by the terms of the judgment of the trial Court. The appellant did not refer to or reproduce the part of the trial Court’s judgment that relied on the confessional statements of his co-accused to convict him. The argument is therefore not valid for consideration. It is incompetent. Arguments in an appeal must be based on what is contained in the record of the appeal. Allegations of events not contained in the record are not valid for consideration. Arguments on the basis of facts not contained in the record of appeal are incompetent. See Akpan v. The State (1987) 5 SCNJ 112; (1992) 6 NWLR (Pt. 248) 439.
For the above reasons, I resolve issue No. 1 in favour of the respondent.
Let me now determine issue No. 2 which asks:
Whether, having regard to the entire circumstances of this case, the Court of Appeal was correct in affirming the conviction and sentence of the appellant for the offence of conspiracy and armed robbery when the requisite ingredient of the offences has not been proved beyond reasonable doubt by the prosecution (Ground 2). The testimonies of PW1 to PW8 and exhibits P14 and P16, the extra-judicial confessional statements establish beyond reasonable doubt that the appellant and other persons conspired to commit armed robbery, that PW1, PW2 and PW4 were robbed in their houses on 27/7/2011, by the appellant and his gang of armed robbers, an armed robbery and the appellant participated in the armed robbery.
In the light of the foregoing, I hold that this appeal fails as it lacks merit. It is accordingly dismissed.
SC.934/2016