Karimu Sunday V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered by their Lordships, Haruna Simon Tsammani, Obietonbara Daniel-Kalio, Mudashiru Nasiru Oninyangi, JJCA with Tsammani, JCA delivering the leading judgment. That Court dismissed the appeal of the accused/appellant after his conviction and sentence by the trial Court per N. I. Agbelu J of the High Court of Ogun State.

The facts as background would be captured hereunder as follows:-

FACTS:

At the trial before the Honourable Justice N. I. Agbelu of the High Court of Ogun State, it was alleged that the appellant who was wearing a black cap, black goggles and a black handkerchief which covered his mouth, on 09/03/04, at about 5pm, went to a cement shop in Ijebu-Igbo, owned by one Ramotalai Alege (PW1), on a motorcycle. Upon arriving at the shop, the appellant alighted from the motorcycle and asked the rider, one Alaba Adesina, to wait for him. The appellant is alleged to have entered the shop on the pre of purchasing 70 bags of cement from PW1. The appellant requested the cost of the bags of

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cement and as PW1 was about to take out a calculator from her bag, the appellant was alleged to have snatched her bag containing N3,600 and bolted out of the shop. The appellant then jumped onto a waiting motor cycle in a bid to escape with PW1 in pursuit. The appellant then threatened PW1 with a dagger which he pulled from his back pocket, but PW1 then began to shout for help, which attracted people to the scene.

According to PW1, when people started coming to the scene, the person who was waiting with the motor cycle tried to move away with the appellant, but Pw2 pulled down the motor cycle and the appellant jumped down and started running away. However, the appellant and the rider were eventually apprehended by concerned bystanders, including an off-duty policeman, who had been alerted by the alarm raised by PW1 and PW2. The rider was apprehended at the scene of the crime, while the appellant was arrested a short distance from the scene of the crime. Upon his arrest, the appellant was taken to the police station along with PW1 and PW2, and the rider of the motor cycle. At the station, the appellant made an extra judicial confessional statement. The

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statements of the rider and PW1 and PW2 were also obtained by the Police. Kareem Sunday’s confessional statement (Exhibits B-B1) will be found at pages 8-13 of the record.

At the trial, the appellant pleaded not guilty to the charge. The prosecution called three (3) witnesses and tendered six exhibits, including the appellants extra judicial statement obtained by the Police. The appellant testified in his own defence but called no other witnesses in support of his case. The appellant however made a bare denial of the charge and sought to retract his extra-judicial confessional statements (Exhibits B B1) on the ground that he did not write it. The appellant however, admitted to appending his signature to the confessional statements after they had been read to him by the Police. The evidence of Ramotalai Alege (PW1) and Jaiye Alaba (PW2), who both positively identified the appellant as the person who robbed PW1, will be found at pages 25 – 27 and 32 to 33 respectively of the record. The evidence of Adeniran Kehinde (PW3) the Police Officer who investigated the offence will be found at pages 42 – 44 and 50 to 53 of the record.

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In a judgment delivered on 28/12/2011, the learned trial judge held that the prosecution had proved its case beyond reasonable doubt and convicted the appellant and sentence him to death by handing. The judgment of the trial Court will be found at pages 65 to 81 of the record. Aggrieved by this decision, the appellant filed a Notice of Appeal dated 21/3/2014 against the decision of the trial judge seeking orders quashing his conviction and the sentence of death passed on him.

On 05/12/2014, the lower Court dismissed the appellants appeal and affirmed his conviction and the sentence of death passed on him by the trial Court under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act.

The appellant, aggrieved with this decision filed a Notice of Appeal 29/12/14 containing eight grounds of appeal against the judgment of the lower Court. The Notice of Appeal will be found at pages 182 186 to 186D of the record.

Musibau Adetunmbi of counsel for the appellant at the hearing of the appeal on 9th day of February, 2017 adopted his brief of argument filed on 9th day of February, 2015 and a reply brief filed on 24th day of March,

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2016 and deemed properly filed and served on the 9th February, 2017. Learned counsel for the appellant distilled four issues for determination which are as follows:-

1. In the peculiar circumstances of this case, did the Honourable Court below come to a justifiable conclusion in law and equity when the said Court held that in between the appellant and the said Alaba Adesina, the appellant was the passenger, hence he was the person that committed the crime in issue. (Grounds 1, 3, 4, 5 and 8).
2. Whether the defence put up by the appellant is probable such that it can be said that the prosecution failed to prove its case beyond reasonable doubt against the appellant. (Grounds 2 and 9).
3. Taking into consideration of PW3 at pages 43-44 and 50-53 of the record and that of the appellant at pages 59-61 of the record, can it be equitably contended that the prosecution did not withhold evidence in the cause of trial at the trial Court. (Ground 10).
4. Whether a diligent and careful assessment of the evidence on record shows that the offence in issue is armed robbery rather than stealing. (Grounds 6 and 7).

Adedapo Tunde-Olowu of counsel for

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the respondent adopted the brief of argument of the respondent filed on 11/3/2016 and deemed filed on 9/2/17. He crafted a sole issue, viz:-

”Whether the Court of Appeal rightly held that the prosecution proved the offence of armed robbery against the appellant beyond reasonable doubt. (Grounds 1 to 10 of the Notice of Appeal).”

This single issue of the respondent clearly covers all aspects of questions that need be answered in the determination of the appeal and so I have no hesitation in using it for that purpose.

SOLE ISSUE:

This raises the question whether the Court of Appeal or Court below rightly held that the prosecution proved the offence of armed robbery against the appellant beyond reasonable doubt.

Learned counsel for the appellant contended that it is the duty of counsel representing an accused person especially one facing a capital offence to use all resources at his disposal that is his knowledge of the law to ensure that the accused person has the best defence possible. He cited Adelu v. State (2014) 13 NWLR (Pt.1425) 465 at 490; Udofia v State (1998) 3 NWLR (Pt.84) 533 at 542.

It was submitted for the appellant that

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the criminalisation of the appellant as a passenger was not borne out by evidence and that the dock identification of the appellant as the robber was faulty.

Musibau Adetunmbi Esq. of counsel stated that the appellant testified under cross-examination that he an Igala man by tribe and so the learned justice of the Court below got it wrong when they held that the appellant did not testify that he could not have volunteered Exhibits B-B1 because he does not understand Yoruba language. That the Court below had acted in the mistaken belief that there was a dichotomy in examination in Chief as against cross-examination. That the correct view is that the totality of evidence of a party must be taken together. He cited Lagga v Sarhuna (2008) 16 NWLR (Pt.1114) 427 at 460; Ogundepo v. Olumesan (2011) 18 NWLR (Pt.1278) 54 at 70.

That the two Courts below erred in law when they used Exhibits B-B1 to identify the appellant as the passenger and by extension the criminal. Also that the use of the testimonies of PW1 and PW2 pinning the appellant to the scene of crime and the person who snatched the bag and so that he was the passenger was an error which this Court

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should rectify. He cited in aid the cases of Bozin v State (1985) 2 NWLR (Pt.8) 463 at 471; Abudu v State (1985) 1 NWLR (Pt.1) 55 at 62.

Learned counsel for the appellant further contended that the two Courts below erred when they rejected the totality of the appellant’s evidence as a blatant lie as there was no basis for such a conclusion. He referred to the cases of Bello v. A.G. Oyo State (1986) 5 NWLR (Pt.45) 825 at 886; Adelumola v. State (1988) 1 NWLR (Pt.73) 683 at 690.

It was submitted for the appellant that the prosecution withheld evidence when they failed to produce the statement he made containing valid defences favourable to the appellant. Learned counsel cited Oforlette v State (2000) 12 NWLR (Pt.681) 415.

Learned counsel concluded by stating that the prosecution had not proved their case beyond reasonable doubt and the appeal should be allowed with the verdicts of the Court below set aside.

In response, Mr. Tunde-Olowu stated that the extra-judicial confessional statement of the appellant Exhibits B-B1 wherein he admitted unequivocally that he was the robber and not the rider of the motorcycle was sufficient to establish him as the

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robber which admission was corroborated by the evidence of PW1 and PW2. That the concurrent findings of the two Courts below on the identity of the appellant as the robber should not be interfered with by this Court as there is nothing perverse in those findings. He cited Ogunbayo v State (2007) 8 NWLR (Pt.1035) 157; Nwangbomu v. State (1994) 2 NWLR (Pt.327) 380 at 402.

For the respondent, it was canvassed that appellant when he testified at the trial his own defence did not state that he neither spoke nor understood Yoruba language. That he testified being an Igala man did not change the position of understanding of Yoruba language. He cited Olalekan v. State (2001) 18 NWLR (Pt.746) 793 at 824 in support.

Learned counsel for the respondent stated further that the challenge to the voluntariness of the confessional statement Exhibits B-B1 at this appellate stage cannot be sustained as it was belated. He cited Ikemson v. State (1981) 3 NWLR (Pt.110) 455; Akpan v. State (2001) 5 NWLR (Pt.737) 745 at 763.

Also contended for the respondent is that appellant in evidence did not raise the issue of speaking or understanding Yoruba language and so such an

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issue now being raised by counsel in his address would not be a substitute for the direct and positive evidence which appellant could proffer. He cited Okwejiminor v Egbakeji (2008) 5 NWLR (Pt.1079) 172 at 223.

That the two Courts below properly evaluated the confessional statement and evidence convicting the appellant, the retraction notwithstanding.

That there was no evidence of a withheld piece of evidence. Also that there is no foundation on which the concurrent findings of the two Courts below would be interfered with or upset and the conclusion, conviction and sentence should be upheld.

What is being fought at this stage is whether or not the concurrent findings of the two Courts below were sustainable or not. That is to say, while the appellant urges this Court to depart from those findings and set them aside, the respondent posits the findings and subsequent conclusion were supported by the evidence available to the trial Court and which the Court of Appeal had the opportunity of evaluating and so no foundation upon which an interference or upset by this Court can be justified.

At pages 72-73 of the record, the findings of the trial Court

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in a bullet point manner are found and they are thus:-

“(i) That on 9th March, 2004, at about 5:00pm, PW1 and PW2 were sitting down in front of a cement shop belonging to PW1.

(ii) That the accused put on black face cap, black goggle and black handkerchief which he tied round his mouth.

(iii) That the accused approached Pw1 and requested to know the price of one bag of cement and was given the price. Thereafter, he wanted to know the price of 70 bags of cement.

(iv) PW1 took out her handbag and wanted to take out her calculator to determine the price of 70 bags of cement requested by the accused. However, the accused snatched the bag from her containing a sum of N3,600.00.

(v) The accused immediately escaped with the handbag and wanted to join a motorcycle that was brought to the scene. Both PW1 and PW2 pursued him while the accused pointed a knife at the Pw1 and Pw2 but was later arrested while running away from the scene by neighbours”.

The learned trial judge further held as follows:-

On the 1st ingredient which is whether there was a robbery, the evidence of PW1 was that on the 9th March, 2004 at about 5:00p.m.,

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she was in her shop sitting down with PW2 when the accused came and requested to know the price of one bag of cement which she told him. He further requested to know the price of 70 bags of cement and she was about taking out a calculator from her handbag, when the accused snatched the bag containing a sum of N3,600.00. The accused ran away with the bag but was pursued and arrested by neighbours. The evidence was corroborated by PW2 who was an eye witness to the incident. The evidence was not challenged or controverted as regards the snatching of the bag containing a sum of N3,600.00.

I therefore, find and hold that the offence of robbery which is constituted by stealing has been committed by the accused person”.

At pages 75-76 of the record, the findings of the learned trial judge are well captured and they are as follows:-

I have carefully gone through Exhibit ‘A’, the extra-judicial statement made by PW2 wherein she told the

Police about the robbery incident involving the accused person. It was not contained in Exhibit ‘A’ that the accused pointed a dagger at her while she was pursuing him. The issue of dagger is material to the

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charge of Armed Robbery because once an accused was armed during the robbery the offence constituted is Armed Robbery. However, PW2 who was with PW1 and also an eyewitness to the robbery incident in his evidence testified as follows:-

On that day, the Accused put on a face cap and used his handkerchief to cover his mouth while he used the face cap to cover his face. While we were pursuing the accused, I saw a small pen knife with him, He was holding the pen knife.

The evidence of the Pw2 above put beyond doubt that the accused was armed on the day of the incident. He was not cross-examined on the issue. The fact that Exhibit ‘A’ did not contain the fact that the accused was armed which fact was given evidence on in Court by the PW1, does not affect the case of the prosecution on the issue that the Accused was armed with dagger or knife which he used to threaten PW1 while pursuing him. Be that as it may, PW1 stated that she told the Police that the accused threatened her with a dagger but it was not recorded. I believe the evidence of PW2 who was an eyewitness to the crime that the accused held a pen knife on the day of the

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incident while he was being pursued and was later arrested. PW2 was not cross-examined on the issue hence the evidence is credible. I therefore find and hold that the accused was armed with offensive weapon during the commission of the offence.

At this juncture, it is now pertinent to consider the evidential value of Exhibits B-B1. The Accused denied making the statement and testified that the only statement he made in connection with his arrest was made at Ijebu-Igbo Police Station. Alhaji Oduwole counsel to the accused, initially opposed the admissibility of the statement on the ground that it was involuntary. He later withdrew the objection and contended that it was not made by the accused hence it was admitted in evidence as Exhibits B-B1.

The accused denied making the statement and testified that he did not know anything about it. He testified that the statement was written by the police and was asked to sign it and he signed it in one place. The statement was confessional in nature and it was accordingly endorsed. In the circumstance, my duty is to decide the truth or otherwise of the confessional statement calling in aid, guides and principles

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laid down in decided cases, namely:-

(i) Is there anything outside the confession, to show that it is true

(ii) Is it corroborated

(iii) Are the relevant statements of fact therein true as far as they can be tested

(iv) Did the accused have the opportunity of committing the crime

(v) Is his confession possible

(vi) Are the statements in the confession consistent with other facts which have been ascertained and proved

See Idowu v. The State 3 SNCOR 96 132 133; Ekpeyong v. The State (1991) 5 NWLR (Pt.200) 683 at 688; Ojegele v. The State (1988) 1 NWLR (Pt.71) 414 at 416.

Under cross-examination, he testified that he is from Abegukolo Local Government Area of Kogi State, that he was farming at a Village called Ifase and later proceeded to Ojoo Village, that the Reg. No. of the motorcycle taken to the scene of the crime is OY 1765 DU. All these facts were contained in Exhibits B-B1. Besides, he admitted that he signed the statement in one place. Finally, the contents of Exhibits B-B1 as to how the offence was committed confirmed the evidence of PW1 and PW2 as regards the possession of a dagger/knife and charm

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for protection, how he was arrested while escaping from the scene and that he and one Alaba Adesina went to the scene of crime.

From the facts and circumstances of this case. I find and hold that the accused made Exhibits B-B1. Exhibits B-B1 is direct and positive. It is the law that a free and voluntary confession of guild by an accused person occupies the highest place of authenticity when it comes to proof beyond reasonable doubt. see Adio v The State (1986) 2 NWLR (Pt.24) 581 at 584.

In Exhibits B-B1, the accused admitted that he was in possession of one dagger or knife when they were going to PW1’s cement shop. The offence of Armed Robbery has been made out by the prosecution against the accused person.

On the matter of the identity of the accused person and the defence he put up, the learned trial judge had held at page 77 of the record thus:-

PW1 gave evidence that it was the accused who approached him for the price of a bag of cement and thereafter requested to know the price of 70 bags and thereafter snatched her handbag containing a sum of N3,600.00 which was the proceeds of her sales. She further gave a vivid

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account of the accused appearance as to his mode of dressing with a black face cap, black goggle and a handkerchief used to cover his mouth. These facts were confirmed by PW2 an eyewitness who was at the scene while it was also contained in Exhibits B-B1. It is to be noted that the accused was arrested while he attempted to escape from the scene. The identity of the accused was therefore, not in doubt. From the evidence before the Court, I hold that the accused was the one, who committed the offence on 9th March, 2004.

From the foregoing, I hold that the prosecution has proved the offence of Armed Robbery against the accused beyond reasonable doubt.

I shall now consider the defence of the accused person. It is a trite law that the defence of an accused however stupid, fanciful or doubtful, it must be considered for what is worth. See Bozin v The State (1985) 2 NWLR (Pt.8) 481, Opayemi v. The State (1985) 2 NWLR (Pt.101) at 163. The accused denied the knowledge of the offence and also denied committing it. As regards Exhibits C, D and F which are the items recovered from him, he denied being in possession of them when he was arrested. He gave evidence

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that he is a commercial motorcyclist. On 9th March, 2004 he was riding his motorcycle for business when he was stopped by a passenger. He told him that he was going to Licensing Office which he obliged him but that he did not know the place. The passenger told him that he would direct him.

On getting there, the passenger told him to stop and he demanded for his fares. The passenger told the accused to hold on while the passenger crossed the road. The accused parked the motorcycle. While he was waiting, he saw some people with his passenger fighting with him while they approached him. The people came to him and alleged that both of them came together to do business hence they started beating him and was consequently arrested.

The evidence was at variance with Exhibits B-B1. However, I had earlier, in this Judgment, held that the Exhibits B-B1 is the statement of the accused person wherein he narrated vividly how the Armed Robbery offence was carried out together with one Alabi Adesina. I rejected the evidence of the accused and hold that he made Exhibits B-B1 and that the contents were true. The statement finds support with the evidence of PW1 and

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PW2 who witnessed the offence when it was being committed. I do not believe the evidence of the Accused that he did not commit the offence”.

The Court of Appeal or Lower Court had no difficulty agreeing with the findings of the Court of first instance and stated so in its own words as follows:-

It would be seen that this statement of the appellant, which is undeniably confessional, amply and substantially supports the testimony of the prosecution witnesses. It therefore puts a lie to the contention that he was not the passenger but one Alaba. Accordingly when read along with the testimony of the PW1 and PW2, there is no doubting the fact that it was the appellant who robbed the PW1 on the 9th day of March, 2004 at about 5.00p.m. The Arguments of learned counsel for the appellant, with due respect, apparently tried to pull wool on the eye of the Court. In the abundance of evidence on the record against the appellant, that cannot be achieved. The appellant was caught “red-handed” committing the act of robbery while armed with a dagger, and so cannot escape the consequence of his action. I therefore agree with the learned trial judge, that the

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evidence (defence) of the appellant was “a carefully woven design” to deceive the Court. The learned trial Judge promptly saw through it”.

See pages 174-175.

Now getting back on track to this Court, I shall quote the salient parts of the two confessional statements, Exhibits B and B1 which are thus:-

Exhibit B:

I entered one Okada and drop me beside cement shop. I told the Okada man to wait for me. I did not know the Okada man name. I entered the cement shop and I met one woman who was selling the cement. I snatched the woman brown hand bag which I suspect contained money and I took to my heel. I was running but the Okada did not move as he held me. I stabbed him with dagger knife held me before others in the areas started called (sic) thief! thief!! thief!!!, I wore a black cap. While I was running towards Idunnu Hospital Ijebu-Igbo I was caught.

I am only person (sic) that went to shop and snatch the hand bag before the woman raised alarm called Ole Ole. I was pursued and caught before I was brought to police station where I make this statement…” (Emphasis added).

EXHIBIT B1

“On that day, Owolabi

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who is also known to be Alaba Adesina took me to his motorcycle while both of us proceeded to station area, Ijebu-Igbo. On our way going for robbery operation Alaba carried a small gun and two cartridges while I was with one dagger-knife and charm for my protection. On getting to station area in Ijebu-Igbo, we saw a woman selling cement and we branched at this place. When we branched, Alabi (sic) was on the motorcycle while I came down from the motorcycle and pretended as if I wanted to buy cement. I priced the cement while pricing the woman was trying to calculate its money, unexpectedly I snatched the bag containing some amount of money from the woman and immediately took to my heels. The people around started pursuing me and shouting thief!! Thief!! but Alaba was trying to escape with the motorcycle but he was eventually arrested in the spot. When I was running one man who I later knew to be a policeman but in mufti started pursuing me while he was trying firing up before I was arrested. I am a robber, when I was going for the operation with Alaba I wore a black cap to cover my face and a black eyeglass while Alaba also used glass and cap to cover

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his face”.

In those extra-judicial statements, confessional in nature it is to be taken as the best evidence against the accused/appellant as they contained admissions of his guilt. The attempt to retract did not augur well as there was nothing stopping the statement being admitted and being given the probative value they deserved being direct and positive. Also not to be lost sight of is that they are sufficient in the circumstances alone to sustain a conviction. See Ikemson v State (1989) 3 NWLR (Pt.110) 455; Alarape v. State (2001) 5 NWLR (Pt.705) 79.

However, there were also corroborative pieces of evidence from the narration of PW1, victim of the robbery and that of PW2.

The evidence of PW1 and PW2 corroborated the matter of the identification of the appellant as the robber as she testified on the close encounters with the appellant from the time of the robbery at about 5p.m. up to the time the appellant was arrested and taken to the police station.

That stance contrasted with the testimony put up by the appellant remained unassailable. This because appellant on the one hand made a bare denial of the charges against him retracted the

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confessional statements, claiming he did not make them. Thereafter he admitted making them even though he merely signed as they were written down by the police officer.

On the concurrent findings of the two Courts below, this Court is loath to interfere as the exceptional circumstances such as perversity of findings or miscarriage of justice have not occurred. An interference which appellant is now seeking is not a given or dished out just for the fun or heck of it. See Ogunbayo v. State (2007) 8 NWLR (Pt.1035) 157; Nwanobomu v State (1994) 2 NWLR (Pt.327) 380 at 402.

I need to make reference to the argument herein surfacing from counsel for the appellant in the attempt to impugn the integrity of the confessional statement on the ground that the appellant could not have volunteered the confessional statements in Yoruba language because he is Igala ethnic tribe and so there is the presumption that he did not understand Yoruba. This argument in my humble view remains an exotic presentation in the line of duty of learned counsel for the appellant as no matter how beautiful and persuasive a rendition in argument of counsel, it cannot replace evidence

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and would not be used controvert the evidence as provided on the other side. The records show that at the trial, learned counsel for the appellant virtually objected to the statement being admitted evidence, on the ground that he was forced to sign the document and the learned trial judge adjourned the matter for a trial within trial so as to determine the voluntariness of the statement. At the resumed hearing, learned counsel withdrew the objection on the voluntariness or otherwise of the statement and rather stated that appellant did not make and so the statements sailed in. Nothing on the issue of ethnic stock or language be Igala or Yoruba came into the discourse at the trial Court including when the appellant testified in his own defence to show a disadvantage in communication. Therefore, not only is it too late at the address stage to raise the matter of a lack of understanding of Yoruba language nor the address of counsel the appropriate forum to impugn the voluntariness of the confessional statement. I place reliance on the cases of Olalekan v The State (2001) 18 NWLR (Pt.746) 793 at 824; Akpan v. State (2001) 15 NWLR (Pt.737) 748 at 758; Ikemson v. State

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(1989) 2 NWLR (Pt.110) 455; Okwejiminor v Gbakeji (2008) 5 NWLR (Pt.1079) 172 at 223.

The conclusion on the confessional statements is that the appellant failed to satisfy the trial Court that his retraction of the statements be taken seriously especially when the trial Court subjected positively the confessional statements to the tests as laid down the English decision R. v. Skyes (1913) 8 Cr App Report 233 and which our Nigerian Courts have adopted and utilised. It is being guided by that test, that the trial Court found that there was a surfeit of evidence corroborating the confessional statement and demonstrated that the statement was true and correct. Furthermore, the recovered incriminating items, bag, two lire cartridges, Exhibits C-F proffered independent corroboration of the confessional statements. See Idowu v. The State (2000) 12 NWLR (Pt.680) 48; Alarape v The State (2000) 5 NWLR (Pt.705) 79.

On the appellants grouse for the prosecutions failure to produce a statement which appellant claimed he made to PW3 at Ijebu-Igbo, it did not change the fortune of the appellant as the prosecution is not obligated to produce any number

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of witnesses before it can be said to have discharged its duty of proof beyond reasonable doubt. The reason is that the law demands the establishment of the essential elements of an offence beyond reasonable doubt and if that is achieved by only one witness, so be it, the requirement of the law is fulfilled. In this instance, the situation is all the more against the appellants position with a rock solid confessional statement which on its own is enough upon which a conviction can be secured. See Olakunle v. State (2014) LPELR – 4344.

Indeed what is expected of a prosecution, the respondent has effectively discharged and there is no basis on which the concurrent findings of the two Courts below can be interfered with. The conclusion therefore is that this appeal lacks merit and is hereby dismissed. I affirm the decision of the Court of Appeal in its affirmation of the judgment, conviction and sentence of the Accused/Appellant.

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