Isikilu Olanipekun V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

This is an appeal against the decision of the Court of Appeal, Ibadan Judicial Division which affirmed the decision of the High Court of Justice, Ogun State wherein the appellant was sentenced to death by hanging for alleged conspiracy and armed robbery contrary to Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap.38 Vol. XXII Laws of the Federation 1990.

The appellant was the 4th accused person who was arraigned with 3 others for the offence of conspiracy and armed robbery at the High Court of Justice, Ogun State. The robbery incidence took place at Ewi’s compound, Oke-Efon area of Abeokuta in Ogun State on 18th August, 2002 but the appellant was arrested on 3rd September 2002. The prosecution’s case was that on 18th August, 2002 at about 3.30 am, the appellant in company of three others armed with guns and cutlasses broke into the apartment of Evangelist Oluseye Ogunremi who testified as PW2 and demanded for money. In the course of the robbery operation, the appellant hit PW2 with an iron on the head and subsequently ordered him to lie with his face down on the

floor. After the robbery operation, PW2 discovered that the sum of N800.00 and a Nokia and Sagem handsets were missing. On 19th August, 2002 the 1st accused went to PW1 and tried to dispose of the handsets to him. PW1’s suspicion was aroused when the 1st accused could not produce the purchase receipts for the handsets and he arranged for the arrest of the 1st accused when he received information of the robbery that took place on 18/8/2002. The 1st accused on being arrested made some statements to the Police and this led to the arrest of the other three accused persons and the recovery of two locally made single barrel shot guns in an uncompleted building. According to Inspector Titus Ogbonna who gave evidence as PW4, he cautioned the 4th accused on 15/9/2002 in pidgin English before recording his statement in Pidgin English. He read it over to him and he thumb printed. He said the statement was confessional and so he took the 4th accused to a superior Police Officer where he (4th accused) confirmed the statement. The statement was tendered in evidence without any objection and was admitted as Exhibit

“D”. Altogether, nine witnesses testified for the prosecution and were cross-examined. Several exhibits were admitted in evidence. Each of the accused gave evidence in his defence before learned counsel for the parties addressed the Court. Judgment was delivered on 21st June, 2005. The learned trial Judge held that the prosecution proved its case against the accused persons beyond reasonable doubt and therefore sentenced each of them to death by hanging for the offence of armed robbery but stayed the sentence on the 1st count which is for conspiracy.

The appellant appealed to the Court of Appeal, Ibadan but the appeal was dismissed on 29/11/2010. This is a further appeal to the Supreme Court. The Notice of Appeal containing two grounds was filed on 24/12/2010. An amended Notice containing four grounds of appeal was filed on 2/11/2012. Learned counsel filed Amended Briefs of argument. The appellant’s amended Brief was filed on 29/1/2015 while that of the Respondent was filed on 9/3/2015. Both amended briefs were deemed filed on 3/3/2016, the same date the appeal was argued. The appellant formulated two issues from Grounds 1 and 2 of the Amended Notice of

Appeal. The Respondent equally raised two issues for determination. Since no issues were distilled from Grounds 3 and the Amended Notice, they are deemed abandoned and are accordingly struck out. See: Modupe v. State (1988) 4 NWLR (pt.87) 130; Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139: Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt. 262) 641: Olaiya v. State (2010) 3 NLWR (Pt. 1181) 423.

The issues formulated by the appellant from Grounds 1 and 2 respectively of the Amended Notice of Appeal are:-

1. Whether the Court of Appeal was right to have affirmed the decision of the trial Court which was based on extraneous evidence in finding Exhibit “D” was true in total disregard of the Supreme Court’s decisions in plethora of authorities etc OKOH v. STATE (2014) LPELR 22589 (SC), (2014) 8 NWLR (Pt.1410) 502; DEMO OSENI v. STATE (2012) 5 NWLR (Pt.1293) 351
2. Whether there was any reliable evidence in proof of the identity of the Appellant to support the Court’s decision that the prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt

The same issues were raised in the respondent’s brief.

In his brief of argument, learned counsel

for the appellant referred to the judgement of the learned trial Judge where he relied on the alleged confessional statements of the accused and the fact that it was the accused persons who took the Police to where the guns were recovered to find that despite the denial by the accused of the authenticity of the said confessional statements, they were true and thus found them guilty of the robbery charge. At the Court of Appeal, the search light was centred on the veracity of Exhibit “D” in finding the appellant guilty. Learned counsel for the appellant referred to the evidence in chief as well as the cross-examination of PW4 and submitted that having established that Exhibit “D” was made in pidgin English and recorded in pidgin English, the prosecution ought to have tendered the said statement and not Exhibit “D” which authorship is shrouded in great doubt as there is no evidence before the Court that Exhibit “D” was translated from pidgin English to proper English. He concluded that the failure of the respondent to make available to the Court the appellant’s statement denied the appellant of his constitutional right to fair hearing.

Learned counsel for the

respondent submitted that both the trial Court and the Court below appraised and properly evaluated all the evidence adduced before arriving at a conclusion and urged this Court not to disturb the concurrent findings of facts of the two lower Courts since there is no miscarriage of justice which has been occasioned.

The veracity of Exhibits ‘D” was never raised in the trial Court. In the Court of Appeal, the issue of the statement being recorded in pidgin English was considered as a fabrication and the statement recorded from the appellant was never tendered in Court. Apart from PW4 who stated that he recorded Exhibit “D” pidgin English and read same over to the appellant, there is nothing to show that it was translated into another language. English the official language of the Court and it does not matter that the statement was said to have been recorded pidgin English.

The issue of fair hearing would have arisen if the appellant did not understand English at all and the statement had to be recorded in the language he speaks or understands and later translated into English. See: Section 36(6) of Constitution of the Federal Republic of Nigeria (as amended). I am

not unaware of the decisions in Queen v. Zakwakwa of Yoro (1960) 1 N.S.C.C. 8 and Nwali v. State (1991) 3 NWLR (Pt.182) 653. The two cases stress the importance of getting the original statement and the translations and those who did the translations produced in Court for purposes of comparison and testing the veracity of the translated versions. Thus in Queen v. Zakwakwa of Yoro supra, the conviction of the appellant was based on his statement recorded in Mumuye and later translated by different people into Hausa and English. His conviction was set aside because the person/s who translated the statement from Mumuye to Hausa and from Hausa to English was/were not called to be cross-examined. In Nwali v. State supra however, where the accused’s statement was recorded in Ibo language and translated into English and both versions of the statement (Ibo and English) were tendered in evidence, the Supreme Court held that the Court of Appeal could rely on the English version of the statement since the appellant did not disown the statement in English as not being the correct version of what he said was recorded in Ibo and the correctness of the statement in Ibo was not

an issue. Since both the Ibo and English versions of the statement tendered in the High Court as exhibits were before the Court of Appeal and the medium of communication is English coupled with the fact that none of the Justices who sat over the matter in the Court of Appeal was Ibo, it was needless to place the original statement recorded in Ibo before the panel.

Statements should be, wherever practicable, recorded in the language in which they are made. This is a practical wisdom directed to avoid technical arguments which could be raised. It is not an invariable practice but one to ensure the correctness and accuracy of the statements made by accused persons. See: Olalekan v. State (2001) 18 NWLR Pt.746) 793.

It is erroneous for anyone to assume that people who communicate in pidgin English do not understand proper or Queen’s English especially Nigeria. The use of pidgin English allows for free expression without minding the grammar which is usually employed in the proper English. Consequently, a statement which was said to have been recorded in pidgin does not require translation into proper English and any statement made in pidgin can be recorded in proper

English. Exhibit “D” therefore cannot be treated as secondary evidence. It is primary evidence.

The appellant testified in his own defence. Earlier, two other accused namely Lukeman Olufeko, was the the 1st accused testified as DW1; also the 2nd accused, Idowu Okanlawon testified and was mistakenly labelled DW1 instead of DW2. The 4th accused ought to be DW3. In the judgement, the 3rd accused, Akeem Jimoh was said to have testified but the record does not reflect his evidence. In his evidence in chief, the appellant said he was arrested at Ijaiye in Abeokuta on 3/9/2002. He continued his evidence thus:-

“The IPO hit me with a club on the head. I made a statement which I refused. I was handcuffed and hanged to a ceiling fan. He used a plier to remove two of my teeth. I thumb printed the statement. I was asked to bring N5,000.00. My mother brought the money but it was not enough and the Police went to collect my property – such as television, fan, radio and stabilizer”.

Under cross-examination, he denied ever seeing any of the accused persons. The appellant alleged that he was tortured and money extorted from him before he signed the statement. Objection ought to

have been taken at the time Exhibit “D” was being tendered so that a trial within trial could be ordered in order to determine the voluntariness of Exhibit “D”. See: Section 29(2) Evidence Act 2011; Durugo v. State (1992) 7 NWLR (Pt.255) 430. Since the statement was admitted without objection, it is weight to be attached to the said Exhibit that would engage the minds of the trial Court and the appellate Courts. See: Madjemu v. State (2011) 5 SCNJ 31: Obidozor v. State (1987) 4 NWLR Pt.67 48; Owie v. State (1985) 4 SC 1; Ogudo v. State (2011) 12 SC (pt. 1) 71.

On 22/4/2005, when the appellant and the other accused persons took their plea, the appellant was represented by counsel, P. C. Iwu. The charge was read to the appellant in English and Yoruba and he pleaded not guilty. There was no complaint by the learned counsel that the appellant was an illiterate. On 18/4/2005 when the appellant testified, he did not say which statement he was forced to thumb print and it was the same learned counsel who led him in evidence in chief. It is therefore a matter of conjecture for learned counsel to submit in his address that the appellant was a complete illiterate.

Learned

counsel for the appellant submitted that the Court of Appeal was wrong to have affirmed the decision of the trial Court which was based on extraneous evidence in finding that Exhibit “D” was true in total disregard of the Supreme Court’s decision in Okoh v. State 2014 8 NWLR (Pt. 1410) 502 and Demo Oseni v. State (2012) 5 NWLR (Pt. 1293) 351. The two cases dealt with the admissibility of the confessional statement which has been retracted and whether the Court can convict on such a statement. Mohammed JSC (as he then was) summed up the position of the law very succinctly in his concurring judgement in Okoh v. State supra when he said at page 531:-

“The law is well settled that an accused can be safely convicted on his retracted confessional statement if the trial Court was satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. It is however, desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confession which would make it probable that the confession was true.

See: Otufale v. The

State (1968) NMLR 261 at 265 – 266 and Uluebeka v. The State (2000) 7 NWLR (Pt.665) 404″.

In Oseni v. State supra, this Court in considering the question whether the trial Court can convict on uncorroborated confessional statement held that even without corroboration, a confession is sufficient to support a conviction so long as the Court is satisfied of its truth. This is based on the principle that a confessional statement so long as it is free, direct, positive and voluntary is enough to ground a conviction. See: R v. Omokaro (1941) 7 WACA 146; Yusuf v. State (1965) NMLR 119 and Kopa v. The State (1971) All NLR 150.

In the instant appeal, the learned trial Judge found the accused guilty of the two counts in the charge based on the fact that the confession was true. This is what the Court said at page 41 of the record:-

”The totality of this evidence in my view is that all the accused persons made confessional statements and I accept the confessional statement (sic) as true. Their denial notwithstanding having regard to other facts emanating from the accused persons and the circumstances of the case”.

The Court below considered the evidence adduced

and found that there was corroboration of Exhibit “D”. Each of the accused in his statement mentioned the names of the members of the robbery gang. In the case of the appellant, beside himself, the names of the other members were Lukman Olufeko alias “Ajakaye”, Ahmed Idowu, Akeem and Bayo. In his own statement, the 1st accused, Lukman Olufeko stated that on 17/8/2002 Bayo and Lekan met him in Lagos where they invited him to a robbery operation in Abeokuta. After the robbery operation, he was given N6,000.00 and two handsets which he tried to dispose of on 19/8/2002. He met Bola Alausa, the 1st Prosecution Witness and tried to sell the phones to him. 1st PW became suspicious when the 1st accused could not produce the receipts for the phones. He later got in touch with 2nd PW, Evangelist Oluseye Ogunremi, the victim of the robbery incident. It was after the 1st accused was arrested and made his statement that led to the arrest of the other accused and the recovery of the guns. The appellant in his statement mentioned that he stole two guns that use cartridges from the Alhaji in Ilado village and they have used the guns five times. He also said it was Lukman that took

away the Phones. The recovered phones and guns provided the necessary corroboration to the statements made by all the accused which confirmed the confession that they belonged to the same robbery gang and it was this gang that carried out the robbery on 18/8/2002. 2nd PW stated he could recognise those who carried out the robbery since they did not wear masks and even though the robbery took place at about 3.30 am, there was light and he had seen the accused before the date of the robbery. Under Section 29(1) Evidence Act 2011, a confession made by a defendant may be given in evidence against him.

Learned counsel for the respondent submitted that in the determination of any case before it, the trial Court must look at all the evidence adduced and/or tendered before it viz a viz the facts of the case in reaching its conclusion. He maintained that the Court below analysed all the bits and pieces of evidence of the case along with the statement of the appellant before arriving at its decision.

Exhibit “D” was corroborated in all material particulars and the confession was true. The conviction of the appellant was therefore not predicated only on the confessional

statements of the other co-accused persons. It was a culmination of the adoption by the appellant that he belonged to the gang of robbers which included the 1st, 2nd and 3rd accused and the corroboration of Exhibits “D” by Exhibits A, C and C1. The 1st issue is resolved against the appellant.

Issue 2 deals with the identity of the appellant. Learned counsel for the appellant pointed out that in his evidence, PW2 did not have any relationship or meeting with the appellant prior to the alleged incidence since he did not give any description of the appellant prior to his testimony in Court and that it was dock identification that was used in respect of the appellant. He then argued that the alleged robbery incidence occurred on 18/8/2002 but the dock identification of the appellant took place June 2005 – a period of about 4 years after the robbery. He submitted that the recollection of the witness is most likely to be fraught with mistakes in view of the length of time between the incidence and the dock identification of the appellant. He said that the burden of proving that the accused was the robber or one of the robbers is easily discharged when the accused is

caught at the scene of the crime or shortly thereafter.

Once it has been established that the offence of robbery has taken place and it was armed robbery, the ingredient of the offence left is to prove that the accused was the robber or one of the robbers. See: Bozin v. The State (1983) 3 NWLR (Pt.8) 465. Okosi v. A-G Bendel State (1989) 1 NWLR (Pt. 100) 642 and Ikemson v. State (1997) 1NWLR (Pt. 481) 355.

The identity of the accused becomes of paramount importance and where he is not apprehended at the scene of crime or soon after the commission of the crime, there is usually the need to conduct an identification parade especially where the victim did not know the accused prior to the robbery incident. The Court of Appeal stated the circumstances under which an identification Parade is necessary in Ndidi v. State (2007) 13 NWLR Pt. 1052 633 which was approved by this Court in Sadiku v. State (2013) 11 NWLR (Pt.1364) 191 at 213 where I said:-

”An identification parade is useful and indeed essential whenever there is a doubt about the power of a witness to recognise an accused person or when the identity of the accused person is in dispute. It is not necessary where the

witness knew or was familiar with the accused or suspect well before the alleged crime was committed… the circumstances under which an identification parade is necessary … are:-

(1) The accused was not arrested at the scene and he denies taking part in the crime; or

(2) The victim did nor know the accused before the offence; or

(3) The victim was confronted by the accused for a very short time; and/or

(4) The victim due to time and circumstances must not have had full opportunity of observing the features of the accused”

In the instant appeal, the trial Court found that Exhibit “D” was true and therefore convicted the appellant based on it. The identity of appellant as one of the robbers was therefore not in doubt. Furthermore, PW2 testified that the robbers were not masked and there was light and it was the appellant who hit him with an iron and ordered him to lie down with his face facing the floor. It will be antithetical to require an identification parade to be conducted for PW2 to pick out the appellant after he had confessed to participating in the robbery. This issue is equally resolved against the appellant. Having resolved the issues against the appellant, I find

that there is no merit in the appeal and it is accordingly dismissed. I further affirm the conviction and sentence passed on the appellant by the Court of Appeal, Ibadan in its judgement in CA/I/31C/2006 delivered on 29/11/2010 which dismissed the appeal of the appellant against his conviction for armed robbery to which he was sentenced to death by hanging in charge No. AB/14R/2003 on 21/6/2005 by the High Court of Ogun State.

Appeal dismissed.

---

SC.440/2011