Legi Mohammed V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
The appellant in this appeal and one Abu Mohammed [as accused persons] were arraigned at the High Court of Kwara State, Ilorin Judicial Division. They were, subsequently, tried by that Court which, on November 13, 2013, convicted them for the offences of Conspiracy and Armed Robbery. Hereinafter, this Court would, simply, be referred to as “The Trial Court.”
Aggrieved by his conviction, he [the appellant] appealed to the Court of Appeal, Ilorin Division, (hereinafter, simply, referred to as “The Lower Court”], which Court affirmed his conviction and sentence.
Still dissatisfied, he filed an Amended Notice of Appeal challenging the judgement of the lower Court. He presented just one issue for determination. It was couched thus:
Whether the Court of Appeal rightly held that the Prosecution proved the offence of Armed Robbery against the appellant beyond reasonable doubt
The respondent, equally, adopted this sole issue an issue which this Court too shall adopt in the determination of this appeal. Before that, however, a cursory view of
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the factual background to this appeal would not be out of place.
FACTUAL BACKGROUND
It was alleged that on or about December 28, 2011, while armed with cutlasses and Fulani sticks, the appellant, and his co-accused person, robbed three persons who were returning from Banni Market in Kaiama Local Government Area of Kwara State. The victims had gone to sell their yams to villagers at Onipede.
It was the Prosecution’s case that, when these victims got to a place at Odo Elere, and while ascending the hilly part of the road, the appellant and the co-accused person, suddenly, appeared from the bush. They started striking their victims with cutlasses and sticks.
The story, as presented by PW3, was that when the interference was getting out of hand, Fatai, his younger brother, engaged the co-accused, Abu Mohammed. He, Fatai, struck the co-accused person with a cutlass which he had collected from the self-same co-accused person.
Fatai was however, overpowered. He died in the process. PW3, who was badly injured with machete cuts on his head, had his lower arm cut off with machete. PW4, who was with
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PW3 at the scene of crime, also, suffered serious bodily injuries on his left arm. His second finger was visibly struck with a machete. The second ring finger, near the thumb, was almost cut off from its roots as a result of severe machete cuts from the appellant and his co-accused persons. PW4 recognised the appellant and his co-accused persons.
The accused persons later moved over to Fatai, appellant’s brother. PW4 then ran into the bush for sojourn. He, subsequently, met a cyclist who, graciously took to him to the village. Upon getting all the necessary information, PW7, the head of the Vigilance Team, ordered a search party across the village. The accused persons were found and taken to the Police where they were said to have confessed to the crime. Their extra-judicial statements were admitted at the Trial Court as exhibits P4 and P5.
As indicated earlier in this judgement, only a sole issue was presented for the determination of this appeal.
ARGUMENTS OF THE SOLE ISSUE
At the hearing of this appeal on October 18, 2018, both counsel were ad idem that the sole issue for the determination of this appeal was that expressed thus:
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Whether the Court of Appeal rightly held that the Prosecution proved the offence of Armed Robbery against the appellant beyond reasonable doubt
APPELLANT’S SUBMISSIONS
Having adopted the appellant’s Amended Brief of Argument, Adedapo Tunde-Olowu, Esq. placed reliance on the arguments therein on behalf of the appellant. He devoted paragraphs 4.2 – 4.11; pages 3 – 6 of the brief to the question whether the trial Court rightly verified the appellant’s thumb-print on Exhibit P5 to be able to ascertain its genuineness: a question to which he returned a negative response.
Next, he wondered whether the appellant could be convicted based on the exhibit P3 (the confessional statement of a co-accused person) which he did not adopt. Again, he returned a negative response to this question.
On the question whether the evidence of PW3; PW4 and PW7 disclosed beyond reasonable doubt that the appellant committed the offence for which he was tried, he cited Ikemson v The State 1989 NWLR (pt 110) 455; Akeem Agboola v State [2013] 11 NWLR (pt 1366) 78; Omotola v State (2009) All FWLR (pt 464) 1490.
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He took the view that the totality of the evidence adduced by these witnesses were not sufficient to convict the appellant. He maintained that the Prosecution failed to prove the essential elements of the offence of Armed Robbery, Abiodun v. State [2013] 2 3 MJSC (pt 1) 163, 178. In his submission, the trial Court’s findings were founded on conjecture and speculation, Adisa v State (1991) 1 NWLR (pt 168) 490, 500. He urged the Court to allow the appeal.
RESPONDENT’S ARGUMENTS
Learned Counsel for the respondent adopted the respondent’s Amended brief of argument which, though filed on September 19, 2018, was only deemed properly filed and served on October 18, 2018. He adopted the sole issue formulated by the appellant.
He, first, drew attention to the relevant findings and conclusions of the trial Court as affirmed by the lower Court. He opined that, as the appellant has appealed against the above concurrent findings of the lower Courts, he had the duty of establishing miscarriage of justice, Enang v Adu [1981] 11 12 SC 17, 27; Moses v State [2006] 11 NWLR (pt 992) 458, 502.
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He submitted that the respondent established the offences of Criminal Conspiracy and Armed Robbery pursuant to Section 139 (1) of the Evidence Act. On the offence of Conspiracy, he drew attention to exhibits P4 and P5. He invited the Court to read them harmoniously and to find that the appellant indeed conspired to commit armed robbery against PW3 and PW4. He further referred to pages 45 -46 of the record; pages 47 49 of the record for the corroboration of the contents of exhibits P4 and P5.
He contended that the retraction of exhibit P5 did not forbid the trial Court’s acting on it. He maintained that, even without the retracted exhibit P5, the evidence of PW3, PW4 and PW7 were sufficient to ground the conviction of the appellant. In his submission, where an accused person identifies himself in his extra-judicial statement to the Police as the person that committed an offence, wherein he fixed himself at the scene of crime, as the appellant did in exhibit P5, the argument of improper identification cannot avail him, Osuagwu v The State [2013] 5 NWLR (pt 1347) 381 -382.
RESOLUTION OF THE ISSUE
When our penal statutes incorporated the offence of armed
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robbery as a species of capital offence in our adversarial criminal justice system, the Courts were confronted with the task of enunciating the specific ingredients which must be proved to warrant a conclusion that the prosecution discharged the burden of proving its commission beyond reasonable doubt.
For this purpose, Case law evolved a Trinitarian test which comes to this. The prosecution must prove (a) the factual reality of a robbery; (b) the participation of the accused person in the said robbery operation and (c) that, at the material time when the offence was being committed, he was either armed with firearms or an offensive weapon or that he was in the company of a person who was so armed.
The cases are many. We shall, only, cite one or two here, Bozin v State (1985) 2 NWLR (pt 8) 465, 467; Okosun v AG, Bendel State (1985) 3 NWLR (pt 12) 283; Ikemson v State (1989) 3 NWLR (pt 1100) 455; Adeosun v State (2007) 46 WRN 1; FRN v Usman (2012) LPELR -7878 (SC); Bassey v State (2012) LPELR -7813 (SC); Eke v State (2011) LPELR -1133 (SC); Aruma v State [1990] 9-10 SC 87; Aminu Tanko v State [2009] 1-2 SC (pt 1) 198; Alabi v State [1993] 7 NWLR (pt 307) 511.
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The trial Court found, at page 70 of the record, in favour of the proof of these ingredients. Listen to these findings:
The second accused person in his statement said he collected N20, 000 (Twenty Thousand Naira) from one of the victim (sic). Furthermore, the victims (eye witnesses) fixed the second accused persons (sic) at the scene. PW3 stated that his brother disarmed the first accused person while PW4 said he did not know the accused [person] before until the day of the incident. The two surviving victims of the attack had a fairly long encounter with the accused person to be able to identify them, they were badly injured and deformed while their younger brother (Fatai) lost his life on the sport (sic) as a result of severe wounds he sustained from the attack… The retaliatory attack from late Fatai as shown (sic) on the head and arm of the first accused person as deduced from the evidence of PW3, 4, 7 coupled with the failure of the second accused [person] to establish his defence of alibi is a confirmation that Abu Mohammed and Legi Muhammed and no one else were those who actually committed the offence of Armed Robbery on the 26th
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day of December, 2011. PW3 and PW4 saw it all and suffered seriously from it. Their evidence and that of PW7 is (sic) more than enough to ground their conviction, Fatai Olayinka v State NCC 2 PG 505. See, also, Martins v State [1997] 1 NWLR (pt 48) 355, 365. The two accused persons are guilty of the offence (sic) of Criminal Conspiracy and Armed Robbery contrary to Section 97 of the Penal Code and Section 1 (2) of the Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria, 2004.
Interestingly, on appeal, the lower Court found considerable favour with the above findings. It [the lower Court] expressed its concurrence with the above findings in these words:
I cannot fault the analysis and decision of the learned trial Judge in convicting the appellant of the offences charged when the Court held as follows, at page of the printed record of appeal, thus:
The second accused person in his statement said he collected N20, 000 (Twenty Thousand Naira) from one of the victims. Furthermore, the victims (eye witnesses) fixed the second accused persons (sic) at the scene. PW3 stated that his brother disarmed the first
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accused person while PW4 said he did not know the accused persons before until the day of the incident. The two surviving victims of the attack had a fairly-long encounter with the accused persons to be able to identify them. They were badly injured and deformed while their youngest brother [Fatai] lost his life in the sport (sic) as a result of severe wounds he sustained from the attack… The retaliatory attack from late Fatai as shown (sic) on the head and arm of the first accused persons (sic) as deduced from the evidence of PWs 3, 4, 7, coupled with the failure of the second accused [person] to establish his defence of alibi is a confirmation that Abu Mohammed and Legi Muhammed and no one else were those who actually committed the offence of Armed Robbery on 26/12/11. PW3 and PW4 saw it all and suffered seriously from it. Their evidence and that of PW7 is (sic) more than enough to ground a conviction… The conclusion of the learned trial Judge is unassailable, I am one with same.
Pages 135 136 of the record.
In effect, the trial Court’s findings at page 70 of the record, and the lower Court’s affirmation thereof, pages 139 140
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of the record, have thus, matured into concurrent findings of two lower Courts. That notwithstanding, the appellant did not, as much as, proffer any cogent and compelling reasons for this Court’s attenuation of these concurrent findings.
In the circumstance, I cannot interfere with them, Ogbu v. State [1992] 8 NWLR (pt. 295) 255; Igago v State [1999] 14 NWLR (pt. 637) 1; Adeyemi v The State [1991] 1 NWLR (pt. 170) 679; Adeyeye v The State (2013) LPELR -19913 (SC) 46; Akpabio v State [1994] 7 NWLR (pt 359) 635; Ejikeme v. Okonkwo [1994] 8 NWLR (pt 362) 266. This must be so, for this Court does not make it a habit of disturbing the concurrent findings of two lower Courts, Woluchem v Gudi [1981] 5 SC 291, 326; Ike v Ugboaja [1993] 6 NWLR (pt. 301) 539, 569; Chinwendu v Mbamali [1980] 3-4 SC 31; Enang v Adu [1981] 11-12 SC 25, 42; Nwadike v Ibekwe [1987] 4 NWLR (pt. 67) 718; Igwego v Ezeugo [1992] 6 NWLR (pt. 249) 561, 576; Lamai v Orbih [1980] 5-7 SC 28.
If the appellant had established the perversity of these concurrent findings, this Court would have, readily, interfered,
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Ogbu v. State [1992] 8 NWLR (pt. 295) 255; Igago v State [1999] 14 NWLR (pt. 637) 1; Adeyemi v The State [1991] 1 NWLR (pt. 170) 679; Adeyeye v The State (2013) LPELR -19913 (SC) 46; Akpabio v State [1994] 7NWLR (pt 359) 635; Ejikeme v Okonkwo [1994] 8 NWLR (pt 362) 266.
That is to say, if the appellant had been able to establish that the concurrent findings took into account certain matters which they ought not to have considered or that they shut their eyes to the obvious or proved facts, etc. Baridam v State [1994] 1 NWLR (pt 320) 250, 256; Udengwu v Uzuegbu [2003] 13 NWLR (pt 836) 136, 152; Atolagbe v Shorun [1985] 1 NWLR (pt 2) 360, 375; Nwosu v Board of Customs and Excise [1988] 5 NWLR (pt 93) 225, this Court would have been in a position to interfere with them on grounds of their perversity. However, as already indicated, the appellant could not show this in the instant case.
Now, this is not the only ground for the failure of this appeal. Learned counsel for the appellant dissipated so much energy in his brief, pages 3 11, on what turned out to be a betrayal of his misconception of two dissimilar concepts in
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the law of Evidence: a misconception I now turn to.
Misconception of Appellant’s counsel
At paragraph 4.4, page 4 of the appellant’s brief, learned counsel for the appellant pointed out that it “ought to be emphasized herein that the appellant retracted the said confessional statement at the trial…” Subsequently, at paragraph 4.5, page 4 of the said brief, he pointed out that “pages 50 -51 of the record shows (sic) a scenario where the prosecuting State Counsel attempted to tender the supposed confessional statement of the appellant. Counsel to the appellant objected to the admissibility of the statement…,” [italics supplied for emphasis]
My Lords, this Court dealt, extensively, with a similar submission in C. O. P. v Alozie (2017) LPELR -41983 (SC). At pages 16 et seq of the said case, this Court [per Nweze, JSC) explained that:
… counsel would seem, by this submission, to be conflating two dissimilar situations. Surely, it is a positive rule of our accusatorial jurisprudence that no statement of an accused person is admissible against him unless it is shown by the prosecution to have been made voluntarily.
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This principle is as old as the Laws received from England. In England, the principle is as old as Hale, Gbadamosi and Anor v. State (1992) LPELR-SC.290/1991, citing Ibrahim v R (1914) AC, 559, 609; Ikpasa v State [1981] 9 SC 7, 29; John Dawa and Anor v. State (supra) at 258; Auta v State [1975] 1 All NLR 163, 169.
The question of involuntariness, often, arises where an accused person alleges that he was subjected to torture in the making of a confessional statement. In other words, though, he made the statement, it was not a product of his free will since he was forced to make it, Mbang v State [2013] 7 NWLR (pt 1352) 48; Ibeme v State [2013] 10 NWLR (pt 1362) 333; Olatunbosun v State [2013] 17 NWLR (pt 1382) 167.
In this sort of situation, the trial Court is under obligation to conduct a trial-within-trial (also known as voire dire or mini trial) to determine the veracity or otherwise of the claim.
As this Court (per Nweze, JSC) explained in Dairo v FRN (2015) LPELR – 24303 (SC):
…the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaff of
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involuntary, and, hence, inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable. The cases on this point are legion: they are countless. Only one or two of them will be cited here, Ogudo v The State [2011] 12 SC (pt 1) 71; Ibeme v The State (2013) LPELR -20138 (SC); Auta v State [1975] 4 SC 125; Effiong v State [1978] 8 NWLR (pt 562) 362; Lasisi v State(2013) LPELR -20183 (SC) 29; The State v Rabiu (2013) LPELR -19982 (SC); Ogudo v The State (2011) LPELR -860 (SC); Nwangbomu v State [1987] 4 NWLR (pt 67) 748; Ogunye v State [1999] 5 NWLR (pt 664) 548, 570.
Scholars are also, unanimous on this issue, I. H. Dennis, The Law of Evidence [Second Edition] (London: Sweet and Maxwell, 2002) 184; L. O. Aremu, “The Voluntariness of Confessions in Nigerian Law,” in 1977-1980 Nigerian Law Journal, 32; J. Amadi, Contemporary Law of Evidence in Nigeria [Vol 1] (Port Harcourt: Pearl Publishers, 2011) 324; M. A. Owoade, “Voluntariness of Confessions in Nigerian Law Need for Reform,” in 1987 Nigerian Current Law Review 179.
On the other hand, a retraction or denial of a confessional statement does not affect its admissibility,
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Mbang v State (supra). In other words, where an accused person denies his confessional statement, the trial Court has no obligation to conduct a trial within trial, Mbang v State (supra); Abdullahi v State [2013] 11 NWLR (pt 1366) 435.
This has long been settled in the very old cases of R. v Sapele and Anor (1952) 2 FSC 74; R v Itule (1961) All NLR 462; the relatively old decisions of Ikpasa v The State [1981] 9 SC 7; Akpan v State (1992) LPELR -381 (SC) 36; Osakwe v State [1994] 2 SCNJ 57; Nwangbomu v The State [1994] 2 NWLR (pt 327) 380; Bature v State [1994] 1 NWLR (pt 320) 267; Eragua and Ors v The AG, Bendel (1994) LPELR (SC) 30; Idowu v State [1996] 11 NWLR (pt 574) 354; as well as the more recent decisions of Silas Sule v State (2009) LPELR -3125 (SC) 28-30, G-B; FRN v Iweka (2011) LPELR -9350 (SC) 53; Oseni v The State (2012) LPELR – 7833 (SC) 22-23.
As has been well-settled, a confession, if voluntary, is deemed to constitute a relevant fact as against only the person who made it, hence, it is admissible against that person, only, Nsofor v State [2004] 18 NWLR (pt 905) 292; Lasisi v State [2013] 9 NWLR (pt 1358) 74; Saidu v
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State [1982] 4 SC 41; Adebayo v AG, Ogun State [2008] 2 SCNJ 352.
As a corollary, the Courts are bound to reject an accused person’s confession which eventuated from torture, duress, threat or inducement, Ehot v State [1993] 4 NWLR (pt 290) 644; Nwosu v State [1986] 4 NWLR (pt 35) 326; Odeh v FRN [2008] 12 NWLR (pt 1103) 1. The only process of determining the voluntariness of a confession is through a trial-within-trial, Mbang v State [2013] 7 NWLR (pt 1352) 48, 72. This is, also, the only process of testing the admissibility of a confession where it is challenged on the grounds of threat, undue influence, duress etc, Nsofor v State [2004] 18 NWLR (pt 905) 292; Auta v State [1975] 4 SC 125; Gbadamosi v State [1991] 6 NWLR (pt 196) 182.
…As indicated earlier, a retraction or denial of a confessional statement does not affect its admissibility, Mbang v State (supra). In other words, where an accused person denies his confessional statement, the trial Court has no obligation to conduct a trial within trial, Mbang v State (supra); Abdullahi v State [2013] 11 NWLR (pt 1366) 435; R. v Sapele and Anor (supra); R v Itule (supra); Ikpasa v The State (supra); Akpan v State
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(supra); Osakwe v State (supra); Nwangbomu v The State (supra); Bature v State (supra); Eragua and Ors v The AG, Bendel (supra); Idowu v State (supra); Silas Sule v State (supra); FRN v Iweka (supra); Oseni v The State (supra).
In the latter situation, that is, where an accused person retracts or resiles from his confessional statement, the trial Court would be perfectly, right to admit it and determine the weight to be attached to it in its judgement. For this purpose, it [the trial Court] would, consider issues, such as the ones indicated hereafter.
They are: whether there is anything outside the confession which may vindicate its veracity; whether it is corroborated in any way; whether its contents, if tested, could be true; whether the defendant had the opportunity of committing the alleged offence; whether the confession is possible and the consistency of the said confession with other facts that have been established, Osetola and Anor v. The State (2012) LPELR -9348 (SC) 32-33, G-D; Kareem v FRN [2002] 7 SCM 73; Akpan v The State [2001] 11 SCM 66.
These principles which were enunciated in R. v. Sykes
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(1913) 8 C. A. R. 233, 236 have been, consistently, endorsed by our superior Courts, Kanu v The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; [1962] 1 SCNLR 137; Obosi v The State (1965) NMLR 129; Onochie and Ors v The Republic (1966) NMLR 307; Jafiya Kopa v. The State (1971) 1 All NLR 150 Dawa v The State [1980] 8 -11 SC 236; Ejinima v The State [1991] 5 LRCN 1640, 1671; Arthur Onyejekwe v The State [1992] 4 SCNJ 1, 9; [1992] 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor. v. The State [2004] 3 NWLR (pt 860) 367; [2004] 1 SCNJ 65; [2004] 1 SC (pt.1) 65.
I entirely agree with the lower Courts that exhibits P4 and P5, read harmoniously, would lead to the conclusion that the appellant conspired with his cohorts to commit the said offence of robbery against PW3 and PW4. What is more, PW3 and PW4, victims of the said crimes, regaled the Court with sufficient corroboration of the contents of exhibits P4 and P5, pages 45 -46 of the record and pages 47 -49 of the record.
In all, the lower Courts were right in their conclusion that the testimonies of the Prosecution’s witnesses, PWs 3, 4 and 7,
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sufficiently, established the guilt of the appellant to the offence of Conspiracy contrary to Section 97 of the Penal Code and Armed Robbery contrary to Section 1 (2) of the Robbery and Fire Arms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004, Bozin v State (supra); Okosun v AG, Bendel State (supra); Ikemson v State (supra); Adeosun v State (supra); FRN v Usman (supra); Bassey v State (supra); Eke v State (supra); Aruma v State (supra); Aminu Tanko v State (supra); Alabi v State (supra).
This appeal must therefore, fail. I hereby enter an order dismissing it. I further, affirm the judgements of the lower Courts. Appeal dismissed.
SC.294/2015