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Kushimo V. State (2021) LLJR-SC

Kushimo V. State (2021)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C. 

The instant appeal is consequent upon the judgment of the Court of Appeal, Ibadan Judicial Division delivered on October 28th, 2016, in appeal No. CA/IB/227/2015. By the judgment in question, the Court below affirmed the judgment of the High Court of Ogun State, holden at Abeokuta, delivered on December 18th, 2014, in charge No. AB/2R/2013, thereby convicting and sentencing the Appellant and one other person to death by hanging for the offences of conspiracy to commit robbery and armed robbery, punishable under Sections 6(b) and 1(2) (a) of the Robbery and Fire Arms (Special Provisions) Act CAP R11, Laws of the Federation of Nigeria, 2004.

BACKGROUND FACTS

On July 17th, 2013, the Appellant and one other person were arraigned before the trial High Court upon a four count information – viz:

COUNT I

STATEMENT OF OFFENCE

CONSPIRACY TO COMMIT ARMED ROBBERY

Contrary to Section 6(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special provisions) Act (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

​LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large, on or about the 16th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division conspired to commit a felony to wit: Armed Robbery.

COUNT II

STATEMENT OF OFFENCE

ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 16th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed Rukayat Ajayi of Three Hundred and Fifty Thousand Naira (N350,000.00) and her mobile phones.

COUNT III

STATEMENT OF OFFENCE

ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 10th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed one Zainab Ahmed of her Nokia mobile phone.

COUNT IV

STATEMENT OF OFFENCE

ARMED ROBBERY, Contrary to Section 1(2)(a) of the Robbery and Firearms (Special provision) Act, (Cap R11) Laws of Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE

LUKMAN KUSHIMO (M), OLALEKAN MUSTAPHA and others now at large on or about the 10th of September, 2010, at No. 62 Isabo Road Abeokuta, in the Abeokuta Judicial Division while armed with guns, knife and cutlass robbed one Taiwo Adekoya of his three mobile phones.

The Appellant pleaded not guilty to the 4 count charge read and explained there to in Yoruba Language. The charge proceeded to trial, at the close of which, the trial Court delivered the vexed judgment to the following conclusive effect:

It is evidently clear that the 1st and 2nd accused persons conspired with one Morufu who is at large to rob PW1, PW2 and others of their belongings on the 16/09/2010. I hold that they are guilty of the offence of conspiracy in count I.

In the final analysis, I find the prosecution has proved all four counts against the accused persons. I hereby find the accused persons guilty as charged. They are hereby convicted on all four counts of the information.

Accordingly, the trial Court proceeded, in the absence of an allocutus, to pass sentences upon the Appellant and co-convict:

SENTENCING

By law, the punishment for the offences of conspiracy to commit armed robbery, and armed robbery in counts I-IV of this information and for which the accused persons have been charged, tried and found guilty is a mandatory one over which I have no discretion to exercise.

Accordingly, on count I, the 1st and 2nd accused persons are hereby sentenced to death by hanging by the neck till they are dead. On counts II-IV, the 1st and 2nd accused persons are hereby sentenced to death by hanging by the neck till they are dead.

Not unnaturally, the Appellant has been utterly dissatisfied with conviction and sentences passed thereupon by the trial Court, thus appealed to the Court below. On October 28th, 2016 the Court below delivered the vexed judgment to the conclusive effect:

Although, learned counsel for the Appellant did not specifically challenge the finding of the trial Judge on the count of conspiracy, there is no doubt from the confessional statement that the three culprits formed a common intention or agreement to effect an unlawful purpose, to wit armed robbery. They did not act individually but in pursuance of a common purpose to commit armed robbery. The actual commission of the offence provided evidence of their common intention…

Having resolved the sole issue against the appellant, I hold that this appeal lacks merit. It is hereby dismissed. I affirm the judgment of the lower Court.

With a view to exhausting the right of a further appeal accorded thereto under the Constitution of the Federal Republic of Nigeria, 1999, as amended, the Appellant has deemed it expedient to institute the present appeal. On January 28th, when the appeal came up for hearing, the learned counsel had the opportunity to address the Court and thereby adopted the argument contained in the respective briefs thereof. Thus, resulting in reserving judgment.

The Appellant’s brief, settled by Mutalubi Ojo Adebayo Esq. on 06/02/2018, spans a total of 16 pages. At page 3 thereof, a sole issue has been formulated:

Whether by the nature of evidence on the record, the Justices of the Court of Appeal rightly affirmed the conviction and sentence of the Appellant by the trial Court in holding that the prosecution has proved its case against the Appellant beyond reasonable doubt. (This issue covers the two grounds of appeal).

The argument of the Appellant’s learned counsel in a nutshell, is to the effect that the offence was allegedly committed in the night around 7pm. And that Appellant was not arrested at the scene of crime. The record does not bear the source of the purported information, based on which the Appellant was arrested.

It was submitted, that the Appellant had denied Exhibits P10 and 12 – the confessional statement. The evidence of PW1 under cross-examination was copiously referred to, to the effect that the PW1 saw the Appellant (2nd Accused person) for the first time in her life-time at the police station at Ibara. Thereby, rendering the said Exhibits P10 and P12 the confessional statement impossible and doubtful. See, NWABUEZE VS STATE (1988) 7 SCNJ 248, 257, 258; ANI VS. STATE (2009) ALL FWLR (pt. 482) 1044, 1062. KASA VS. STATE (1994) 5 NWLR (pt. 344) 269 @ 286 paragraphs C-H.

​Further agued by the learned counsel, that once the victim of robbery says he saw the person that robbed him and can identify that person, identification parade becomes necessary, and must be conducted. See BOZIN VS. STATE (1985) NNCL VOLUME 16 (part II) 1087 at 1092 lines 40 – 45.

It was posited, that the prosecution’s case is fraught with doubt, as a result of material contradictions or lack of sufficient evidence. See IBEH VS. THE STATE (1997) 1 NWLR (pt. 484) 632 at 650; ONUOHA VS. THE STATE (1988) 8 – 11 236, et al.

The case of EDIBO VS. STATE (2007) A FWLR (pt. 384) 192 at 207 paragraphs C-D was also cited and relied upon, to the effect that the Appellant can be given the benefit of any defence available to him.

Thus, it’s vehemently posited, that for the charge of conspiracy to commit armed robbery to be sustained, certain elements must be established by the prosecution beyond reasonable doubt. See, AFOLALU VS. THE STATE (2010) 16 NWLR (pt. 1220) 584; (2010) LPELR-197 SC 26 paragraphs A – F; SANI VS. THE STATE (2015) 6-7 (pt. 11), @ 17-78, et al.

​Conclusively, the Court is urged upon to resolve the sole issue against the Respondent, upturn the verdict of acquittal and discharge in favour of the Appellant.

Contrariwise, the Respondent’s brief, settled by Adekolapo Ilorin, Esq. on 25/04/2018, spans a total of 19 pages. At page 4, the learned counsel has deemed it expedient to distil a sole issue from ground 2 of the Appellant’s notice of appeal:

Whether from the entirety of the evidence on Record, as well as material available, the conviction of the Appellant for the offences, of conspiracy to commit Armed Robbery as well as Armed Robbery is justified in the circumstances of this case.

The pith of the Respondent’s submission, is that the combination of the evidence of PW1, PW2, PW3, PW4 and Exhibits P1-P11 gives credence to the fact that there indeed was an armed robbery on 16/11/2010 at No. 62, Sabo Road Abeokuta.

It was argued, that the said gun pointed at the PW1 was one of the locally made guns (Exhibits P6 and P7) recovered from the scene of arrest of the DW2, the accused. Further argued, that Exhibits P10 and P12 both give credence to the fact that the accused was one of those who took part in the crime.

​According to the learned counsel, a confessional statement, without more, is enough to sustain a conviction. See ACHABUA VS. THE STATE (1978) 12 S.C. (pt. 63) 68-69.

See also  Patrick Njovens & Ors. v. The State (1973) LLJR-SC

It was equally submitted, that no defence of alibi was raised at the trial. And long after the Appellant was arrested, he was unable to adduce any evidence to support the defence that he was somewhere else on 16/09/2010 at the time of the incident. See ESSIEN VS. THE STATE (2013) LPELR-20749.

It is posited, that the prosecution has proved beyond reasonable doubt that the Appellant was at the scene of the crime on 16/09/2010. That this has been successfully established by the direct evidence in Exhibits p10 and p12, adequately corroborated by the evidence of PW1, PW2, PW3 and PW4. See ONAH VS. STATE (1985) 3 NWLR (pt. 12) 236, 244 paragraphs C-D; AKINBISADE VS. THE STATE (2006) 17 NWLR (pt. 1007) 184, 212 paragraphs A-B, et al.

​On the whole, the Court is urged to hold, that from the foregoing, the evidence, both circumstantial and confessional, is not just cogent, but complete and unequivocal that no other conclusion ought to be inferred than that the Appellant was not only at the scene of the crime on the day of the incident, but that he also committed the offences for which he was convicted.

I have accorded a critical, albeit dispassionate, consideration upon the nature and circumstances surrounding the instant appeal, the argument of the learned counsel contained in their respective briefs vis-a-vis the record of appeal as a whole. I would want to think and hold, that the sole issue distilled by the Appellant from the two grounds of the notice of appeal is very much germane to and apt for the determination of the appeal itself. Thus, I have deemed it most apt to adopt the sole issue with a view to determining the appeal, one way or the other.

DETERMINATION OF THE APPEAL

As copiously alluded to above, the sole issue for resolution raised the very vexed question of whether or not by the nature of the evidence on record, the Court below rightly affirmed the conviction and sentence of the Appellant by the trial Court on the ground that the prosecution has proved its case against the Appellant beyond reasonable doubt.

​It is a trite fundamental doctrine, that for the prosecution to succeed in sustaining the charge of armed robbery against an accused person, under Section 1(2) (a) of the Robbery and Firearms (Special provisions) Act Laws of the Federation of Nigeria, 2004 (supra), it has the burden of proving beyond reasonable doubt the following ingredients:

(i) That there was an armed robbery or a series of armed robbery;

(ii) That the robbery was an armed robbery

(iii) That the accused person had participated in the commission of the armed robbery;

See, AGBOOLA VS. THE STATE (2013) NWLR (pt. 1366); (2013) LPELR-SC 434 2011 @ 26 paragraphs D-G; BOZIN VS. THE STATE (1985) 2 NWLR (pt. 8) 465 @ 467; ALABI VS. THE STATE (1993) 7 NWLR (pt. 307) 551, et al.

In the instant case, with a view to proving its case against the Appellant, the prosecution had called a total of four witnesses who testified as PW1, PW2, PW3 and PW4, respectively. The prosecution had equally tendered a total of 13 exhibits – Exhibits P1 – P13, respectively.

The PW1 was in the person of Rukayat Ajayi, a trader of No. 14 Osho Majiyagbe, Adigbe, Abeokuta. The evidence of the PW1 is contained at pages 53-54 (examination-in-chief) and 54-56 (cross-examination) of the Record of Appeal.

In a nutshell, the examination-in-chief of the PW1 is to the effect, inter alia, that on 16/09/2010 at about 7pm, she was at her shop and a consignment of rice and oil was being offloaded for her:

“Then, I saw the 1st accused person was holding a gun and pointing it directly at me. The 3rd person was the one giving instruction. He instructed the people with me and my daughter to lie face down and he asked me to bring out my bag, that in case I hesitated, he would shoot my daughter. I looked around and saw that the 1st accused has entered the 3rd shop to mine and was ordering the people there to keep their mouths shut. Out of the fear that they should not kill my daughter and with the memory that my mother also died from an armed robbery attack; I released my bag to that 3rd person… I was shouting and screaming and crying while they were being pursed (sic).”

Under cross-examination by the defence counsel, the PW1 stated inter alia:

“At the police station, Ibara, I identified the 2nd accused (who was arrested) as one of the robbers that came to my shop. I saw the 2nd accused for the 1st time in my life at the police station. I had never seen him before then… I was not at the scene when the 2nd was apprehended, I met him at Ibara police station. The accused persons robbed me.”

The PW2, Zainab Ahmed gave evidence to the effect, inter alia:

“I recollect that on 16th September, 2010, at about 7pm, myself and my mother were sitting at 2 different tables in front of our shop. The people that came to offload goods for us were sitting at the 3rd shop of ours. Suddenly, a man appeared and stood before my mother, asking her to co-operate with him because he is “Jegun jera” (someone who eats the meat along with the bone), failing which he would try his gun on me. He said all he needed was her bag and that he was not holding a toy gun. I looked around and saw that another man with gun holding the people in the 3rd shop to ours hostage… There were three men that came to robbery operation.”

Under cross-examination, the PW2 maintained that she was told by the robber to face down:

“It was only at the point of collecting my phone that they requested me to look up again. I went to Ibara police station the next day to only make statement.”

​The PW3, Ogunleye Idowu, was woman police sergeant No. 021457 attached to the Ogun state CID Anti-Robbery section, Abeokuta. According to the PW3:

“The 23rd September, 2010, I was on duty at the above office when the 2 accused persons were transferred from Ibara Division along with a case file and exhibit (2) Locally made guns, one live cartridge, one expended cartridge, a cutlass, one knife and one motorcycle. I identify the exhibits now.”

The said items having been identified by the PW3, they were accordingly admitted by the trial Court as exhibits P2, P3, P4, P5, P6 and P7, respectively. An application and Bond paper for the release of the motorcycle to Oladeinde Akeem (the alleged owner thereof) were equally identified by the PW3 and accordingly admitted by the trial Court as exhibits 8 and 9.

It was equally stated by the PW3 that accused persons were allegedly thoroughly beaten and injured by a mob:

“After they had been treated and I saw that they were in good condition to make statements. I rearrested, charged and cautioned of accused one after the other in English and they volunteered their statements also in English Language which I recorded … They signed as the maker which I signed as the recorded. The statements being in nature, took the 2 accused persons before my superior officer, ASP SP Fola Ogunkoya (now deceased). In my presence, the statements were read over to the accused persons in English language by my superior and they confirmed them to be their statements. My superior endorsed the statements, the accused persons signed and I also signed as the IPO. I now identify the statements of the accused persons.”

Having been so identified by the PW3, the statement of the 1st accused (Appellant) was admitted by the trial Court as exhibit P11.

Under cross-examination by the defence counsel, the PW3 maintained that he could not remember how many days after the case file was transferred that they visited the scene of crime.

​The PW4, was Akeem Salami police Sgt No-205956. He testified to the effect that on the said 16/09/2010, he was on duty at Ibara Divisional police HQS at about 23:15hrs, when a case of conspiracy and armed robbery was reported and referred to him for investigation. It was in the course of that investigation that he rearrested the 1st and 2nd accused persons. He also found two locally made pistols, one live cartridge and one expended one on the 2nd accused person. He charged and cautioned both accused persons and recorded their respective statements. However, the confessional statements being confessional had to be confirmed and duly endorsed by a senior police officer in the person of DSP Jacob Olayemi. The confessional statements of the 1st and 2nd accused persons were identified by the PW4 and accordingly admitted by the trial Court as Exhibits 12 and 13 respectively. The PW4 equally identified Exhibits P2-P7 respectively.

Under cross-examination by the defence counsel, the PW4 maintained thus:

“The 2nd accused person was arrested on the 16th September, 2010. He was brought to me and I rearrested him. I set my eyes on the 2nd accused for the 1st time at Ibara police station. It was a group of person that brought the 2nd accused to the station that also brought 2 locally made pistols, one live cartridge and one expended cartridge to the statement. One cutlass and one knife were found on the 1st accused upon his arrest at laderin on the 21st September, 2010. All that I told the Court is all I did in respect of this case except that a police officer, I am on the lookout for the co-suspect who is at large.”

See also  E.A. Garuba V. Kwara Investment Company Ltd. & Ors (2005) LLJR-SC

​Consequent, upon the testimony of the PW4, the prosecution deemed it expedient to close its case. Thus, the Appellant opened the defence thereof on 21/12/2014 as DW1. The Appellant (as 1st Accused person) testified in examination-in-chief that prior to his incarceration in the prison, he was living at Odemo village in Adigbe where he worked as a bricklayer.

On the 16/09/2010, in question he went to his working place somewhere behind the mechanic village at Kobape and returned home at 6.30pm and slept. According to the Appellant:

“On the 17th and 18th, I also went to work and returned on 19th was Sunday and I did not go to work. On Monday 20th I was weak and did not go to work. It was on the 21st September, 2010, that I went to work again at the same site of Kobape I rode a commercial motorcycle I noticed a crows shouting. I then asked the motorcyclist not to leave yet in order for me to find out what was happening. The motorcyclist waited while the noise confirmed. About five minutes later, a bus drove in and some mobile policemen alighted from it people started to run away. I stood there with some people. That was how those of us standing there (including the motorcyclist) were arrested and driven away to somewhere near trade fair complex. Their the mopol informed their boss of our arrests. The boss inquired if anything was found in our possession and they answered in the negative. The boss ordered that we be taken to the police station at Ibara.

Conclusively, the Appellant stated in his examination-in-chief thus:

“When I was taken to the State SCID, I was already seated in car when another man was brought to join me in the car. He is the and accused person… It was Exhibits P12 that the police men thumb printed my thumb on involved in any act of armed robbery.”

Under cross-examination by the prosecution the Appellant stated:

“It was where I went to work on the 21st September, 2010, that I was arrested… of his were arrested- myself, the motorcyclist, one other bricklayer and another person. The 2nd accused was not one of those arrested with us on that day.

​Against the backdrop of the circumstances surrounding the instant case vis-a-vis, the totality of the evidence adduced at the trial, there is every cogent reason for me to uphold the concurrent findings of the trial Court and the Court below, to the effect that there was a robbery incident on September 16th, 2010 at No. 62 Isabo Road, Abeokuta, Ogun State, thereby establishing the 1st ingredient of the offence of armed robbery beyond reasonable doubt under Section 1(2)(a) of the Armed Robbery And Fire Arms (Provisions) Act Laws of the Federation of Nigeria, 2004 (Supra).

It is not at all controversial, as amply established by the prosecution vide the PW1 and PW2, that on the said 16/09/2010, at about 7pm while the PW1 and PW2 were seated outside their shops and goods were being off-loaded thereinto, the Appellants and two other persons who were armed with guns invaded their shops and robbed them of their belongings. Most particularly, the PW1 was robbed of her hand bang containing the sum of #350,000.00 (Three Hundred and Fifty Thousand Naira).

With particular regard to the 2nd and 3rd ingredients of the offence, whether the robbery was armed robbery properly so called, the evidence of the PW1 is to the effect that:

PW1:

“On the 16th September, 2010, at about 7pm I was at my shop and a consignment of rice and oil was being offloaded for me. Then I sand the 1st accused person (Appellant) was holding a gun (sic) and pointing it directly at me. The 3rd person was the one giving instruction. He instructed the people with me and my daughter (PW2) to lie face down and he asked me to being out my bag that in case I hesitated he would shoot my (PW2). Looked around and saw that the 1st Accused (Appellant) has entered the 3rd shop to and was ordering the people there to keep their mouth shut.

… the 3rd person requested for the phones of those lying down and he collected them after taking my bag.”

The testimony of the PW2 is largely corroborative of the evidence of the PW1; the fact that the PW1 had stated under cross-examination that she had seen the 2nd accused person at Ibara Police Station for the first time in her life, notwithstanding!

​The PW1 was most particularly emphatic that the Appellant (1st Accused Person) had actively participated in the armed robbery incident in question. Thus, the PW1 was specific and unequivocal in regard to the role actively played by the Appellant and the two other persons in the commission of the armed robbery on that day and time in question. As aptly found by the trial Court at page 112 (lines 1 – 18) of the Record:

“PW1 said that 1st accused was on standby on a motorcycle, the 2nd accused was holding a gun and the 3rd accused held a gun, pointed it directly at her and requested for her bag … PW 1 was called on the phone that one of the robbers had been caught and she went over to the scene where he was apprehended. By the time she got there, they moved him to Ibara Police Station. Their she met the 2nd accused who was apprehended with a gun and she identified as one of the robbers that came to her shop that evening. PW1 also identified the 1st accused person in this Court as the person who was on standby on a motorcycle at the time of the robbery.”

Undoubtedly, the foregoing finding by the trial Court which was duly upheld by the Court below, is cogent, unassailable and duly supported by the evidence on record. It is a trite fundamental doctrine, an eyewitness account of the commission of any act, be it an offence (crime) or otherwise, is the best specie of evidence amenable to the Courts. See IMO VS. THE STATE (2001) 1 NWLR (Pt. 694) 314.

​It was the argument of the Appellant, at page 7 (paragraphs 6.00-6.04) of the brief thereof, to the effect:

[T]hat no identification parade was conducted in this case… [T]he purported identification of the Appellant by the 2nd accused person (sic) is no identification as it was rather strange and cannot take the place of the proper identification parade which under the law, is required in this case.

Instructively, the term ‘identification’ in criminal law, denotes the act or process of providing that a person charged with an offence and arraigned before a Court of law or Tribunal is the same person who actually committed that offense.

The term ‘identification’ is varied and ubiquitous: (i) DOCK IDENTIFICATION: refers to an in-Court declaration by an eyewitness to a crime that the defendant (accused person) in the dock was the person who committed the crime or was present at the scene of the crime. Also termed ‘in-Court identification’; (ii) EYEWITNESS IDENTIFICATION: This type of identification denotes a naming or description by which a person who has witnessed (seen) testifies from memory about the person or persons involved. For many years, Courts, especially in the USA, have recognized that eyewitness identification belongs to the league of the least reliable forms of evidence. Most particularly, DNA exonerations have proved that eyewitness identification is frequently inaccurate. See U.S. VS BROWNLEE 454 F. 3d. 131, 141-142 (3d, Cir, 2006); MEMORY CORRUPTION, which is thus an issue in regard to the accuracy of eyewitness identification. See BLACK’S LAW DICTIONARY 11TH Edition, 2019 @ 893-894, 1180.

The essence of identification parade under the rules of criminal procedure and practice, cannot be overemphasized. Identification parade is required when the identity of the suspect is in doubt, most especially where:

(i) The offence was committed in the dark and the victim only had a fleeting encounter with the robber,

(ii) It is clear that the victim was traumatized in the course of the commission of the crime,

(iii) The eyewitness or victim fails at the earliest opportunity to name the person known to him. Who he claims committed the crime.

However, where the victim of the crime or witness promptly identifies the suspect, there would be no need for an identification parade. See OSUAGWU VS. THE STATE (2013) LPELR-19823 (SC) Per Rhodes-Vivour, JSC @ 18 paragraphs B – F.

The law is well settled, that where is good and cogent evidence linking the defendant (accused person) to the crime on the day of the incident, then a formal identification becomes quite unnecessary. See AFOLALU VS. THE STATE (2010) 16 NWLR (Pt. 1220) 584 PER Adekeye, JSC @ 616 paragraph A. THOMAS VS THE STATE (2017) 9 NWLR (Pt. 1570) 230 @ 256 paragraphs G-H; et al.

See also  Chief Amos Amadi & Ors V. Richard Ohuru & Ors (1978) LLJR-SC

What’s more, by virtue of Exhibits P10 and P12 (the Appellant’s confessional statements made at the Ibara police station and State CID Eleweran, respectively), there is every reason to believe that the Appellant had actively participated in the commission of the armed robbery in-question. Hear the Appellant (PW) in his own words:

“On the 16/09/2010 at about 5pm, I received a phone call from one Morufu (surname unknown) who is a gang of mine, myself and Morufu have both robbed people on transit before, we both snatch bags from passerby of Adigbe area. When he called me on phone on that day 16/9/2010, he told me to join him at Adedotun area where we normally meet when we are going for operation. When I got to Adedotun, I met Morufu who called me on phone and Lekan, though I have never met him with Lekan before. It is the first operation that I will go with Lekan. I only go on operation with Morufu.

On 16/9/2010 at about 1900hrs, as we were going, myself, Morufu and Lekan on my motorcycle Reg. No QS 218 AKD with guns, knife and cutlass to operation, though we did not have any specific place to go on that night, we only have it in mind that wherever we see open and chance we will rob. That is why when we got to Isabo junction and we saw a woman sitting in front of her shop, when we sighted this woman, we stopped and I parked my motorcycle. I positioned my motorcycle while Morufu and Lekan went with gun to the woman…”

Undoubtedly, the Appellant’s confessional statement (Exhibits P10 and P12) have been further corroborated by the evidence of the prosecution star witnesses, in the persons of the PW1 and PW2, copiously alluded to above. Thus, the active participation of the Appellant in perpetrating the armed robbery in question is not at all doubtful, notwithstanding the retracting of the said confessional statements by the Appellant in the eleventh hour!

Indeed, the doctrine is well settled, to the unmistakable effect, that a retraction of a confessional statement does not necessarily render such a statement void. That’s to say, a confessional statement does not become inadmissible merely because it is subsequently retracted by the maker thereof in the course of trial. See SOLOMON THOMAS AKPAN VS. THE STATE (1992) NWLR (pt. 248); (1992) 7 SCNJ 22; (1992) LPELR-381 (SC) per Karibi – Whyte, JSC @ 36 paragraphs E-F; SHITTU VS. THE STATE (1970) 1 ALL NLR 228; QUEEN VS. ITULE (1961) 1 ALL NLR 462; (1961) 2 SCNLR 183; ADAMU VS. A.G BENDEL STATE (1986) 2 NWLR (pt. 22) 284; AREMU VS. THE STATE (1991) 7 NWLR (pt. 201) 1; EJINIMA VS. THE STATE (1991) 6 NWLR (pt. 200) 627.

By virtue of the plethora of authorities on the point, inclusive of the locus classicus – R. VS. SKYES (1913) 8 CR. A. R 233, in order to determine the weight to be attached to a confessional statement, it behooves the Court to resolve whether or not:

(i) There is anything outside the confession to show that it is true:

(ii) The confession is corroborated.

(iii) There are relevant, facts made therein true as far as they can be tested;

(iv) The defendant (Accused person) was one who had the opportunity of committing the offence armed robbery in the instant case.

(v) The said confession was possible;

(vi) The confession was consistent with other facts which have been ascertained and duly proved beyond reasonable doubt.

See NSOFOR VS. THE STATE (2004) 18 NWLR (pt. 905) 292; NWACHUKWU VS. THE STATE (2007) 17 NWLR (Pt. 1062) 31.

​A confessional statement, once it’s duly established to be free, voluntary, direct and positive, is quite sufficient to sustain a conviction. However, the Court is required to, first and foremost, test the veracity (truth) of the confession before acting thereupon, thus, once the Court comes to the inevitable conclusion that the confession is true, the confessional statement alone is sufficient to ground and support a conviction without corroboration. Albeit the veritable test for determining the veracity of confessional statement, is to seek any other extraneous evidence, no matter how slight, of circumstances which render it probable that the confession is indeed true. See ALARAPE VS. THE STATE (2001) 5 NWLR (Pt. 705) 79 @ 98 Paragraphs F-G; ACHABUA VS. THE STATE (1976) 12 SC. (Pt. 63) 68-69.

Remarkably, the trial Court made some far-reaching findings in the course of the vexed judgment at pages 115-116 of the Record:

5) It is noteworthy that the 1st accused person (Appellant) who was later arrested on the 21/09/2010, stated in Exhibits P10 & P12 that the 1st accused was a new comer to their gang and his first robbery outing with them was on the 16/09/2010. He stated that he and Monefu (now at large) had been carrying out previous robberies together. He further stated that five days after they robbed PW1 and PW2, he and Monefu met again at their usual spot and went on another expedition at Laderin Estate to harass workers on building sites and extort money from them, from where he got arrested and Monefu again escaped.

6) Also in Exhibits P10, P12, the 1st accused had stated that he was a commercial motorcyclist … and that on the 16/09/2010, he carried the other two robbers on that motorcycle to the scene of crime. These extra-judicial statements of his one corroborated by the evidence of PW3 & PW4 to the effect that one Bajah Motorcycle was recovered on the day of the incident. They one also corroborated by the evidence of PW3 that the owner of the motorcycle applied to the police for its release and same was released to him on bond.

I find the confessions in the extra-judicial statements (Exhibits P10-P13) to be consistent with other facts which have been proved by the prosecution and I believe that the accused persons had the opportunity of committing the crime, particularly as they could not give satisfactory explanations in their oral evidence before this Court as to the cause of their arrests.

On the part thereof, the Court below aptly held at page 179 (lines 10-17) of the Record:

The alibi the Appellant tried to set up in his evidence chief was Unverifiable and Unreliable. The alibi was not set up at the Police Station to enable the police carry out appropriate investigation. Analysis of the Status of the Confessional Statements was masterfully set out by the trial Judge in the judgment at pages 113-117. His Lordship thus tested fully the reliability of the Confessional Statement and was right in basing the conviction of the Appellant on it; the Appellant having fully identified himself in the confession as a party to the robbery.

Arguably, the foregoing concurrent findings of the two Courts are most undoubtedly cogent, unassailable, and duly supported by the evidence on record.

As aptly postulated by the Court below at page 179 (lines 18-22) of the said Record, although the Appellant did not specifically challenge the finding of the trial Court in regard to the conspiracy count, there is no doubt from Exhibits P10 and P12 in question, the Appellant and the two other persons had formed a common intention (agreement) to effect an unlawful purpose: armed robbery. Undoubtedly, the Appellant and the two other persons did not act individually, but rather, in pursuance of a common purpose with a view to committing armed robbery. Thus, the actual commission of the offence of the armed robbery in question provided a veritable evidence of the trio’s common intention, as aptly held by the two Courts below in the concurrent findings thereof in question.

Indeed, it’s a well settled doctrine per-adventure by this Court in a plethora of veritable authorities, that where there is sufficient evidence to support concurrent findings by the two lower Courts, such findings ought not to be tempered with (disturbed), unless the findings are shown to be perverse, or occasioned some miscarriage of justice, or breached some fundamental principle of law or procedure. See OGOALA VS. THE STATE (1991) 2 NWLR (pt. 175) 509; (1991) 3 SCNJ, 61; (1991) 3 SC 80; (1991) LPELR-2307 (SC) per Nnaemeka – Agu, JSC @ 25-26 paragraphs G-B; NASAMU VS. THE STATE (1979) 69 SC 173. SOBAKIN VS. THE STATE (1981) 5SC 75; NWIBOKO VS. THE STATE (1985) 4 SC (pt. 11) 183; IKEM VS. THE STATE (1985) 1 NWLR (pt.2) 378 @ 388.

Hence, against the backdrop of the foregoing far-reaching postulations, I am of the considered view that the sole issue raised and canvassed in the appeal by the respective parties ought to be, and same is hereby resolved against the Appellant. Thus, having ultimately resolved the sole issue against the Appellant, the appeal resultantly fails, and same is hereby dismissed by me.

The concurrent judgment of the Court below, is hereby affirmed.


SC.317/2017

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