Akinkunmi V. State (2022)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant, who was the second accused person at the Abeokuta Judicial Division of the High Court of Ogun State, was arraigned alongside three other accused persons, on a four-count charge of Conspiracy to commit Armed Robbery, Armed Robbery and Attempted Armed Robbery contrary to Sections 6 (b), 1 (2)(a) and 2 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of the Federation of Nigeria, 2004.

At the trial, the appellant pleaded not guilty to all charges. The Prosecution called eight (8) witnesses and tendered exhibits in proof of their case. In their defence, the appellant and his co-accused persons testified for themselves and their Counsel addressed the Court. The trial Court, in its judgment delivered on the 19th day of October, 2015, convicted and sentenced the appellant to death by hanging.

​Dissatisfied with the judgment of the trial Court, the appellant appealed to the Court of Appeal (“lower Court”). By a judgment delivered on the 6th day of December, 2019, the lower Court affirmed the decision of the trial Court and dismissed the appeal.

Still dissatisfied with the judgment, the appellant appealed to this Court, via an Amended Notice of Appeal filed on the 29th day of January 2020, containing eight (8) grounds of appeal.

​The appellant, by his brief of argument, filed on the 29th day of January, 2020 and deemed filed on the 9th day of December, 2021, distilled four issues for determination, to wit:

1. Whether the Court of Appeal was right in affirming the trial and conviction of the appellant when it held that the prosecution proved the offence of conspiracy to commit armed robbery, armed robbery and attempted armed robbery against the appellant beyond reasonable doubt?
2. Whether the Court of Appeal was right in affirming the trial and conviction of the appellant considering the reliance placed on exhibits 2, 2A and 7, the alleged confessional statements of the appellant and the testimonies of PW1 and PW2 to convict the appellant without any consideration of the defence put forward by the appellant?
3. Whether the Court of Appeal was right in affirming the trial and conviction of the appellant when the evidence of PW1 to PW7 are not cogent enough or sufficient to support the charge of armed robbery under the Robbery and Firearms (Special Provisions) Act?
4. Whether the Court of Appeal was right in affirming the trial and conviction of the appellant considering the totality of evidence adduced by the Prosecution, the learned Justices ought to have set aside the judgment of the Trial Judge and in its place discharged and acquit the appellant?

In response, the respondent, by a brief of argument filed on the 30th day of October, 2020, and deemed filed on the 9th day of December, 2021, formulated two issues for determination, to wit:

1. Whether the lower Court was right in affirming the trial Court’s acceptance of and reliance on the appellant’s confessional statements; and
2. Whether the lower Court was right in affirming the trial Court’s conviction and sentence of the appellant.

​My Lords, I have closely examined the issues identified in the respective briefs of the parties. I find that the respondent’s issue No. 1 is identical with issue No. 2 of the appellant. The respondent’s issue No, 2 is identical with Issue Nos. 1, 3 and 4 of the appellant. For this purpose, I take the view that the respondents’ two issues are actually determinative of this appeal.

ISSUE ONE

Whether the Lower Court was right in affirming the trial Court’s acceptance of and reliance on the appellant’s confessional statements?

APPELLANT’S SUBMISSIONS

Learned Counsel for the appellant contended that the trial Court failed in its duty to take the evidence of the appellant as a whole in considering the defence open to him, Asanya v State (1991) 3 NWLR (pt. 180) 422, 452. He referred to pages 117 and 118 of the Record of Appeal, wherein the appellant had alleged that he had been trapped and set up to write those statements during trial.

​Learned counsel pointed out that there were contradictions in the testimony of PW1 and PW2, adding that on this score alone, it is crystal clear that the identity of the person who purportedly attacked PW1 or victim of 1st June, 2012 was in doubt and the Police ought to have conducted an identification parade to ascertain the veracity of PW1 and PW2’s claim. He argued further that the incident occurred at night when vision cannot be said to be very clear thereby necessitating an investigation as to the real identity of the perpetrator of the alleged offence as required by law in such circumstance. He cited these cases: Eyisi v The State (2000) 12 SC (pt.1) 24; Okosi v The State (1989) 2 SC (pt.1) 126 and Alonge v IGP (1959) SCNLR 15; State v Olashehu Salawu (2011) 12 SC (pt. IV) 191 at 237; Bozin v State (1985) 2 NSCC 1087, 1091.

Arguing further, he submitted that the trial Court erred when it relied on the appellant’s alleged confessional statements, exhibits 2A, 2, and 7, holding that the confessional statements have been freely and voluntarily made without properly considering the defence of the appellant and/or test the truth and make specific findings and pronouncements on same.