Madubigwe Awelle V. The People of Lagos State (2016)

LawGlobal-Hub Lead Judgment Report

TIJJANI ABUBAKAR, J.C.A.

 This appeal is against the Judgment of the High Court of Lagos State delivered by Ogunsanya J, on the 13th day of July 2015; wherein the Appellant was found guilty of the offence of conspiracy to commit armed robbery and armed robbery. Appellant was then convicted and sentenced to death. The facts are briefly that the Appellant was alleged to have conspired with others now at large and robbed one Gbenga Adeshina of his red coloured Murano Jeep on the 26th day of August 2012 at about 5.10 am at No; 15 Abayomi Odubena Street, Owutu, Ikorodu Lagos. Appellant was then arrested, arraigned, tried, convicted and sentenced to death. Both parties in this appeal gave their own version of what constitutes the facts of the case, at the trial the prosecution called three witnesses and tendered Exhibit P1, confessional statement of the Appellant. PW2 is one of the victims of the alleged offence, while PW1 and PW3 are investigating Police officers. It is proper for this Court to reproduce the charge against the Appellant and proceed to consider the grievance of the Appellant against the decision of the lower Court.

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The two-count charge against the Appellant read as follows:
STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to commit a felony to with: Armed Robbery contrary to Section 297 of the Criminal Law of Lagos State 2011.
PARTICULARS OF OFFENCE
MADUBIGWE AWELLE (M) and others now at large on or about the 26th day of August 2010 at about 5:10 am at No. 15 Abayomi Odubena Street Owutu, Ikorodu, Lagos in the Ikeja Judicial Division did conspire with others now at large to commit a felony to wit Armed Robbery.
STATEMENT OF OFFENCE ? 2ND COUNT
Armed Robbery contrary to Section 295 (2) (a) of the Criminal Law of Lagos State 2011.
PARTICULARS OF OFFENCE
MADUBIGWE AWELLE (M) and others now at large on or about the 26th day of August 2012 at about 5:10 am at No. 15 Abayomi Odubena Street, Owutu Ikorodu Lagos in the Ikeja Judicial Division with a gun did dispossess one Mr. Gbenga Adeshina of his red coloured Murano Jeep with Registration No. BQ 496 KUJ worth Three million, Five hundred naira.

The Learned Director of Public Prosecutions Lagos State Ministry of Justice, Mrs. Olabisi Ogungbesan, filed the charge against the

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Appellant at the lower Court. Upon reading the charge to the defendant, he pleaded not guilty and trial commenced; the Prosecution called three witness and tendered exhibit P1. The Appellant also testified at the trial. At the conclusion of trial Appellant was found guilty and sentenced to death. Appellant became dissatisfied with the decision of the lower Court and therefore filed Notice of appeal on the 17th day of August 2015 containing five grounds of appeal. The Notice of appeal is at page 97-100 of the record of appeal.

The Appellant through learned counsel Chijioke Emeka filed Appellants brief of argument on the 20th day of October 2015 and nominated three issues for determination, Appellant canvassed argument on the three issues and filed reply brief. Appellant’s three issues for determination are reproduced as follows:
1. Whether the prosecution discharged the burden of proof required by law to establish the offence of conspiracy against the Appellant.
2. Whether the learned trial Judge could safely convict the Appellant on the strength of Exhibit P1 in the face of the hearsay evidence of the prosecution witness.
3. Whether the

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Prosecution proved that the Appellant committed the offence of armed robbery for which he was convicted and sentenced to death.

The learned Director of Public prosecutions Lagos State Ministry of Justice filed the Respondents brief of argument on the 21st day of January 2016, the brief was deemed as properly filed and served on the 27th day of January 2016. The Respondent apparently adopted Appellant’s issues for determination, holding the view that issues one and three as crafted by the Appellant are substantially similar and therefore argued the two together while issue number two was argued separately by the Respondent. I therefore think that in the determination of this appeal the issues nominated by the Appellant shall form the core of discourse, I too therefore adopt them as the issues to resolve in this appeal. I also share the view that issues for determination one and three distilled by the Appellant being substantially similar may be conveniently treated together for the purpose of determining this appeal, I will therefore take the argument of counsel in that order, after taking the submissions of counsel on the entire issues submitted for

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determination, I will then proceed to resolve the issues in the final determination of the appeal.

Submitting on issue number one, learned Counsel for the Appellant said, the learned trial Judge failed to properly evaluate the evidence placed before the Court. He referred to the findings of the lower Court at page 95 of the record of appeal where the learned trial Judge found the Appellant guilty on count one and said conspiracy is a meeting of two or more minds on a plan to carry out an unlawful act, relying on the decision in ADELEKE v. STATE (2013) 16 NWLR (Pt. 1385) 125. Learned Counsel said from the findings of the lower Court, there was nothing to show that anything was said or done by the Appellant or others at large that remotely suggested anything or had any discussion or common intention to do anything at all. Counsel said the evidence relied on by the lower Court to convict the Appellant failed to meet the standard set in the case of YAKUBU v. STATE (2012) 12 NWLR (Pt. 1313) 131 at 142-143, as the evidence failed to disclose consent, agreement, or mutual consultation to commit offence between the Appellant and any other

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person.

Submitting on the alleged confessional statement of the Appellant, learned counsel said the statement failed to meet the conditions or the requirements listed in OSUAGWU v. STATE (2009) 1 NWLR (Pt. 1123) 523 at 541-542, and that there was nothing outside the alleged confession to show that it was true or that the statement was corroborated or tested, or that the prisoner had the opportunity to commit the alleged offence, or that it was possible for the prisoner to confess or that the alleged confession is consistent with other facts which have been ascertained. Learned counsel said a close examination of the entire proceedings would show that the Court relied on unverified hearsay, and that the evidence of PW1, PW2, and PW3 cannot be said to have corroborated EXHIBIT P1 (Appellants alleged confessional statement). Learned counsel for the Appellant said none of the witnesses indicted the Appellant for conspiracy in their testimony in Court, that the alleged confession is part of the information passed to PW2 by an anonymous caller, and that apart from that piece of information, there is no other evidence to sustain the alleged

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confession.

Learned Counsel for the Appellant also contended that the Appellant was at home when the alleged robbery incident occurred and the witnesses who testified at the trial did not state that Appellant was arrested at the scene of the robbery. Learned counsel said the only evidence the Court relied on was the anonymous call, which led to the arrest and procurement of EXHIBIT P1 written by PW3. Counsel said Appellant did not have the opportunity to commit the alleged offence and none of the prosecution witnesses directly or indirectly connected the Appellant to the commission of the alleged offence. Learned Counsel said the evidence of PW2 is only direct in relation to the occurrence of the offence and not the involvement of the Appellant in the alleged offence. Counsel said PW1 and PW3 commence investigation following information received from PW2.

Learned Counsel submitted that there was no evidence before the lower Court to establish admission of the alleged offence or conspiracy to commit the alleged offence by the Appellant. Learned Counsel for the Appellant referred this Court to the decision in NWOSU v. STATE (1986) 4 NWLR (Pt. 35)

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384 at 359 and submitted that judgments leading to sentence of death must not be allowed to stand if they are found to be concreted upon scraggy reasoning. He urged this Court to resolve this issue in favour of the Appellant.

?On issue number three, which is whether the prosecution proved that the Appellant committed the offence of armed robbery for which he was convicted and sentenced to death. Submitting on this issue, Learned Counsel for the Appellant said, in every criminal trial the burden of proof is always on the prosecution and never shifts, but in the instant case the prosecution failed to discharge the burden and yet the lower Court went ahead to find the Appellant guilty and sentenced him to death on the erroneous belief that the prosecution had establish the case against the appellant beyond reasonable doubt, as found at page 95 of the record of appeal. Learned Counsel said the prosecution failed to prove that it was the Appellant who committed the alleged robbery; counsel relied on the decision inTHE PEOPLE OF LAGOS STATE v. UMARU (2014) 7 NWLR (Pt. 1407) 584 at 609 to submit that to establish armed robbery, the prosecution must establish

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that there was a robbery or series of robbery, each robbery was an armed robbery and that the accused person was one of those who took part in the armed robbery, learned Counsel also relied on the decision in AGBOOLA v. STATE (2013) 11 NWLR (Pt. 1366) 619 at 641 in further support of the submission. Learned Counsel for the Appellant said there was no evidence linking the Appellant to the offence, he also submitted that the evidence of PW2 is full of contradictions as she testified to the effect that the attacker wore masks, but under cross examination she now said the attackers did not wear mask but she did not look at their faces. Learned Counsel said the evidence of witnesses for the prosecution was full of contradictions. Learned Counsel referred this Court to page 36 of the record of appeal particularly the evidence of PW2 and said the evidence relied upon by the Court to convict the Appellant was hearsay.

It was submitted on behalf of the Appellant that, it was wrong to convict on the evidence of PW1, PW2 and PW3, that the lower Court was wrong in concluding that the evidence of these witnesses is a corroboration of the confessional statement of

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the Appellant EXHIBIT P1. Counsel for the Appellant referred this Court to the decisions in ABDULLAHI v. STATE (Supra), and NWOSU v. STATE (supra) to submit that where the decision of the lower Court is perverse, Appellate Court is bound to interfere with the findings. He so urged this Court.

Learned Counsel for the Respondent reacted to Appellants issues one and three together, contending that both issues relate to evaluation of evidence by the lower Court. Learned Counsel for the Respondent said evaluation of evidence is the function of the trial Judge, and when this function is discharged satisfactorily, the Appellate Court has no business interfering with the findings of the lower Court, Counsel relied on NKEBISI v. STATE (2010) 5 NWLR (Pt. 1188) 471, WOLUCHEM v. GUDI (1981) 5 SC 291, ENANG v. ADU (1981) 11-12 S.S 25, ABISI & OTHERS v. EKWEALOR & ANOR. (1993) 6 NWLR (Pt. 302) 643, IGAPO v. STATE (1999) 12 SCNJ 140 at 160.

Learned counsel for the Respondent referred to Section 135 (1) of the Evidence Act and the decision in THE STATE v. JAMES GWANGWAN (2015) LPELR-24837 (SC) to submit that it is the duty of the prosecution to

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establish the essential ingredients of the offence against the accused person beyond reasonable doubt and that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. With regards to proof of conspiracy, learned counsel referred to the case of KAYODE BABARINDE & ORS v. THE STATE (2013) LPELR-21896 (SC), and OBIAKOR v. THE STATE (2002) 6 SC (Pt. II) 33 at 39-40 to submit that conspiracy is seldom proved by direct evidence, that conspiracy is usually established by circumstantial evidence and from inference of certain proved acts. Learned counsel for the respondent referred to page 15 of the record of appeal where the learned trial judge referred to the oral evidence of PW1, PW2, PW3 and Exhibit P1 where the Appellant admitted that he gave information to Segun and Jerry to break into the compound of the victims and steal two cars, and the Appellant also admitted that during the attack the victims were led upstairs by the persons he referred to by the Appellant as the persons he gave information to for the purpose of attacking and robbing the victims. Counsel said the learned trial Judge was right in concluding that the prosecution

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established the essential ingredients of the alleged offence against the Appellant. Learned counsel for the Respondent said the Appellant confessed his participation in the crime.

Learned counsel for the Respondent said the learned trial Judge subjected the confessional statement of the appellant to the test enumerated in SEMIU AFOLABI v. THE STATE (2013) LPELR-20700 (SC), that upon examination of the judgment of the lower Court at page 13-15 found at page 92-94 of the record of appeal, the learned trial Judge subjected the statement of the Appellant Exhibit P1 to scrutiny before coming to the conclusion that the Appellant committed the alleged offence. Counsel said the facts are clear and the inferences are palpable, relying on the decision in MICHAEL OLOYE v. THE STATE (2014) LPELR-22545 (CA). Learned Counsel for the Respondent also said there was evidence before the Court establishing the commission of the offence as required in EMEKA v. STATE (2014) LPELR-23020 (SC), and that exhibit Pl and the evidence of PW1, PW2, and PW3 established the guilt of the Appellant beyond reasonable doubt. Learned Counsel for the Appellant said the evidence of PW2 is

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direct because she testified based on what she saw and heard, and that the Appellant offered Exhibit P1 which is consistent with the evidence of PW2, and that PW1 and PW3 also gave evidence in line with what they discovered during their investigation, and that in line with the decision in GBENGA OSHO v. THE STATE (2011) LPELR-4804 and Section 29 of the Evidence Act, where information is received from an accused person and further discoveries are made in consequence of the information received, the discovery and the information may be received in evidence. Counsel therefore submitted that the discovery made from the information given by the accused person is admissible in evidence, and that the evidence of PW1 is admissible having regard to Section 29 of the Evidence Act, and the decisions in KAREEM v. STATE (2002) 8 NWLR (Pt. 770) 664 at 683, FATILEWA v. STATE (2007) ALL FWLR (347) at 711 and MURTALA ADENOLA OLADEJO v. THE STATE (1994) 6 NWLR (Pt. 348) 101 at 121.

?With regards to allegations of inconsistency in the evidence of witnesses canvassed by the Appellant, learned Counsel for the Respondent said contradictions which are minor and

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inconsequential and do not bear direct relevance to the substance of the allegation in terms of affecting the ingredients of the offence charged will not vitiate the trial, counsel referred to ENAHORO v. QUEEN (1965) NMLR 265, EMIATOR v. THE STATE (1975) 9-11 S.C. 107, AFOLALU v. THE STATE (2009) 3 NWLR (Pt. 1127) 160, NASIRU v. THE STATE (1999) 2 NWLR (Pt. 589) 87, OKOZIEBU v. THE STATE (2003) 11 NWLR (Pt. 831) 927. Learned Counsel therefore urged this Court to resolve these issues in favor of the Respondent against the Appellant.

Learned Counsel for the Appellant filed reply brief on the 10th day of February 2016, learned Counsel said the Respondent raised new issue and there was therefore need for reply. Counsel identified the new issues touching on admissibility of hearsay evidence by the lower Court, Appellants objection to the admissibility of his purported confessional statement, and the nature of contradictions sufficient to vitiate trial of the lower Court.

Learned Counsel for the Appellant said the Respondent misconceived the provisions of Section 30 of the Evidence Act as no facts were discovered and the evidence adduced by PW1 or

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any other witness at the trial was not an offshoot of any information divulged by the Appellant, learned Counsel for the Appellant said the only piece of evidence that triggered inquiry was the phone call which PW2 disclosed to PW1 and PW3 and the said phone call emanated from an unknown caller. Learned Counsel said the Appellant was arrested based on an anonymous phone call by a good Samaritan. Counsel also said there was no attempt to identify the “unknown caller”. Counsel for the Appellant said the evidence of the prosecution at the trial does not come within the provisions of Section 30 of the Evidence Act as submitted by learned Counsel for the Respondent. Learned Counsel for the Appellant said the evidence of PW3 was not a product of any discreet investigation, it was just a repetition of the evidence of PW2. Counsel for the Appellant said the cases of KAREEM v. F.R.N. (Supra) and FATILEWA v. STATE (Supra) relied on by the Respondent are not relevant in the instant appeal.

On the nature of contradictions in the evidence of witnesses, Counsel said for any contradiction to be sufficient to vitiate trial it must be material, relying on AFOLOLU v.

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STATE (Supra), learned Counsel for the Appellant said in the instant appeal the contradictions pointed out are material and therefore sufficient to vitiate the trial at the Court below.

Appellants issue number two deals with the reliance by the lower Court on Exhibit P1, the confessional statement of the Appellant to convict. Counsel referred to pages 93-94 of the record of appeal where the lower Court relied on the confessional statement of the appellant, Exhibit P1 to convict and sentence the Appellant to death. Counsel said the learned trial judge relied on the exhibit because he found it to be consistent with the testimony of PW1, PW2 and PW3, in other words the learned trial Judge held the view that the evidence of the witnesses for the prosecution corroborated the confessional statement of the Appellant. Learned counsel for the Appellant narrated the chain of information that led to the arrest of the Appellant and how Appellant came about offering the alleged confessional statement. Counsel for the Appellant said an anonymous call was put to Appellant’s sister who in turn told her husband who in turn told PW2 who in turn told PW1 and PW3, and that

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led to the arrest of the Appellant who was beaten into submission. Counsel said the trend of events shows clear hearsay and this Court must sustain the conviction and sentence. Counsel referred to the case of SUBRAMANIAN v. PUBLIC PROSECUTOR (1956) 1 WLR 956 at 969 and ODOGWU v. STATE (2013) 14 NWLR (Pt. 1373) 74 at 103-104, to submit that the evidence of PW2 was derived from husband of Appellant’s sister, who said she was called by an anonymous caller, and PW1 and 3 relied on the evidence of PW2. Counsel said the evidence is hearsay and must therefore not be admitted and if inadvertently admitted must not be acted upon and must be expunged, he relied on Sections 37 and 38 of the Evidence Act 2011. Learned Counsel said the prosecutor did not deem it appropriate to call the Appellant’s sister and her husband to testify on the anonymous call, he said failure on the part of the prosecution to call vital witness may be fatal to its case, he referred to OCHUBA v. STATE (2011) 17 NWLR (Pt. 1277) 663 at 696. Counsel also submitted that the lower Court was in grave error when it held that PW2 gave direct evidence of what she saw, heard and experienced, he referred this

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Court to page 93 of the record of appeal, to submit that contrary to the conclusion reached by the learned trial Judge, the evidence of PW2 was not direct to the effect that a crime was committed. The witness according to Counsel said even though the robbers did not wear masks, she did not look at their faces, that PW2 did not say that Appellant was among the men who robbed them.

Learned Counsel for the Appellant said PW2 made unsuccessful efforts to link the anonymous phone call to the alleged confession made by the Appellant, he said the corroboration required by law is not to the effect that an offence was committed but that the commission of the offence is linked to the accused, that the corroboration must identify the accused with the alleged offence, in support of this submission he referred this Court to the case of MUSA v. STATE (2013) 9 NWLR (Pt. 1359) 214 at 243. Learned Counsel for the Appellant said the prosecution failed to establish concrete corroboration linking the Appellant to the alleged crime, all the prosecution succeeded in doing was to establish that an offence occurred and no more, that the Appellant denied the purported

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confessional statement. He said it was therefore perverse for the trial Court to concrete its finding of guilt on the evidence of prosecution witnesses as forming sufficient corroboration for Exhibit P1. It was further submitted on behalf of the Appellant that the basis of finding of guilt by the lower Court was premised on suspicion and the law frowns against finding an accused person guilty on the basis of suspicion, relying on the decisions in ANYANWU v. STATE (2012) 16 NWLR (Pt. 1326) 221 at 270-271, BOZIN v. STATE (1985) 2 NWLR (Pt. 2) 465 and SHEHU v. STATE (2010) 8 NWLR (Pt. 1195) 112 at 135-136.

Learned Counsel for the Appellant raised the issue of non-compliance with the provisions of Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011. Counsel submitted that Appellant’s statement was procured without due compliance with the mandatory provisions of the law. Counsel submitted that contrary to the provisions of the Law, PW3, testified to the effect that when the Appellant offered the statement he was surrounded by many police officers, he referred this Court to page 47 of the record of appeal, where PW3 testified.

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Counsel said the statement of the Appellant ought to have been video-recorded or at least be taken in the presence of his legal practitioner. That even where the Accused person does not raise objection, the trial Court must evaluate the confession to determine the probability or otherwise of the confession by finding credible corroboration, Counsel relied on LASISI v. STATE (2013) 9 NWLR (Pt. 1358) 74 at 107, F.R.N. v. IWEKA (2012) 3 NWLR (Pt. 1341) 288 at 316, OGOALA v. STATE (1991) 2 NWLR (Pt. 175) 509 at 534, R v. SYKES (1913) 8 CAD at 236, and UBIERHO v. STATE (2005) 124 LRCN 297, 30.

Learned counsel for the Appellant finally submitted that the lower Court could not have safely convicted the Appellant on Exhibit P1 because the evidence of PW1, PW2 and PW3 failed to corroborate the said confessional statement. He urged this Court to resolve this issue in favor of the Appellant.

?Responding on this issue, learned Director of Public Prosecutions Lagos State said an accused person can be convicted based on his confessional statement, if the statement is direct, positive and unequivocal as to the commission of the offence charged, relying on

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PETER ILIYA AZABADA v. THE STATE (2014) LPELR-23017(SC), AKPAN v. STATE (1992) 7 SCNJ 22, and YESUFU v. STATE (1976) 6 SC 167. Learned Counsel for the Respondent also referred to GAMBO v. STATE (2014) LPELR-23974, EMEKA v. STATE (2001) 5 MJSC 1 to emphasize the submission that voluntary confessional statement of an accused person may form basis of conviction if it is direct and positive. Learned Counsel for the Respondent repeated the submission that the lower Court elide on the confessional statement of the accused Exhibit P1 and the evidence of prosecution witnesses. Counsel referred to chain of authorities on admissibility of confessional statement, and submitted that in the instant appeal case, the lower Court was right in admitting the confessional statement of the Appellant in evidence.

With regards to noncompliance with Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 by the prosecution, Learned Counsel said this issue was not canvassed at the lower Court by the Appellant and does not constitute part of the Judgment of the lower Court. Learned Director of Public Prosecutions referred to the case of GABRIEL v. STATE

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(1989) NWLR (Pt. 122) 457 to submit that the Court of Appeal cannot entertain a new issue not raised in the trial Court except questions of Law or Constitution and only with the leave of Court. Learned Counsel for the Respondent urged this Court to resolve this issue in favor of the Respondent against the Appellant.

Learned counsel for the Appellant filed reply and stated that the appellant at the trial clearly denied the statement, and having denied the statement, the learned trial Judge ought to have applied the principles in OGOALA v. STATE (1991) 2 NWLR (Pt. 175) 509 at 534, by determining if there is evidence outside the confession, if there is credible corroboration, if the accused had the opportunity to commit the crime and if the statement is consistent with other ascertained facts. Counsel said the lower Court did not satisfy all the conditions. The lower Court was therefore in grave error when it relied on the statement to convict and sentence the Appellant to death.

Learned Counsel finally urged this Court to resolve all the issues in favor of the Appellant, allow the appeal, discharge and acquit the Appellant.

?Just to

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sustain the steam, I will quickly dispose of the issue dealing with Appellants confessional statement first before resolving other issues submitted for determination by the Appellant. Appellant vehemently denied the confessional statement he offered to the police. The lower Court found in the evidence of PW1, PW2 AND PW3 sufficient corroboration and therefore accepted the confessional statement of the Appellant as credible evidence of his participation in the alleged crime. The law is settled that confessional statement forms the best evidence in proof of a charge against an accused person; the accused may be convicted on his confessional statement if the confession is free, voluntary, direct, positive and properly established. See: IDOWU v. STATE (2000) S.C. (Pt. 1) 50, ALARAPE v. STATE (2001) 14 WRN 1.

Over a period of time, the law became firmly settled that the trial Courts apply certain test in relying on confessional statement of an accused person in order to convict on such confession. The test is (1) Is there any evidence outside the confession to show that the confession is true, (2) Was the confession corroborated in any matter, (3) Are the relevant

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statements of facts made in the statement likely to be true as far as they can be tested, (4) did the accused person have the opportunity of committing the offence, (5) is the confession likely, (6) is the alleged confession consistent with other facts which have been ascertained and established. See:UBIERHO v. STATE (2005) 2 SCNJ 1 at 8.

Although an accused person can be convicted solely on his confessional statement, it is desirable to have some other evidence outside the confession to make it probable that the confession was true. See: DIBIE v. STATE (2007) 9 NWLR (Pt. 1038) 30 S.C, NWAEBONYI v. STATE (1994) 5 NWLR (Pt. 343) 130 S.C. The learned trial judge in keeping with the demands of the law said as follows at pages 88-89 of the record of appeal:
“It was PW2 that received a call from the husband of the defendant’s sister that they had received information on the person that stole the Murano Jeep. It was in the presence of PW2 that the defendant confessed that the Car had been sold to an Alfa in Ibadan. PW2 testified that it was the defendant himself who confessed to his role in the robbery at the police station.
The evidence of PW1 and

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PW3 were consistent with exhibit P1 which was the confessional statement of the defendant. The only addition was that they visited the scene of the crime and confirmed that the security guards in the house of the victim were tied up during the operation.
PW1 was told by one of the security men, that he was hit with a gun on his head. In OLADEJO v. STATE the Court of Appeal held that evidence of investigating Police officer of facts he saw or discovered in the course of investigation was not hearsay evidence to render such facts inadmissible. Thus the testimonies of PW1 and PW3 are such that this Court can rely on them. Evidence of PW2 is direct and unequivocal and was not desecrated or disparaged under cross-examined.
The evidence of PW1 and PW3 is that the defendant’s sister was living in the area where the incident occurred and the defendant was traced through a call made to the said sister and the defendant was arrested.
The defendant confessed that he led one Jerry and one Segun to the scene of the crime. PW1 could not conclude investigation on the sale of the car because she was instructed to refer the case to SARS. PW3 testified that the

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defendant and his team robbed the victim with a double barrel gum. He said the defendant was the master mind of the operation and he got to the victims house at about 2:00 pm to steal two other vehicles and when they could not succeed they gave up but as they were about to go they saw the victims coming? PW1 and PW3 were clearly not at the scene of the crime but both of them testified that they visited the scene of the crime and their findings were the same. This Court finds their testimony credible and reliable.

The Appellant raised objection to the purported confessional statement, alleging that the statement was recorded, by the prosecution and he was compelled to sign, that he was not allowed access to his counsel to secure proper representation when the statement was recorded, and that there was no video recording of the confessional statement as required by Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011. It is important to mention that the learned trial Judge relied heavily on the confessional statement along with the evidence of witnesses for the prosecution at the trial, PW1, PW2 and PW3. At the trial, the

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prosecution called Olubanjo Christopher, Investigating Police officer who recorded the confessional statement of the Appellant, his evidence is at page 42-49 of the record of appeal. The relevant testimony concerning the confessional statement is at page 44 of the record and the following took place:
“Q. You have also told this Court that the defendant volunteered a statement, can you please tell the Court under what circumstances the statement was volunteered?
A. I cautioned him in English Language, which he volunteered himself. He told me all that happened on that day and I recorded the statement for him.
Q. Why did you record the statement?
A. Because he cannot write.
Q. If you see his statement can you identify it?
A. Yes.
Q. Please take a look at it.
A. This is the statement Sir.
MR HARUN. My Lord we seek to tender the statement
SPEAKER 3. My Lord we object to the tendering of this document as the IPO only wrote the statement and asked the defendant to sign it. He was only asked to sign it therefore.
HON. JUSTICE OGUNSANYA. In other words, it is not his statement?
MR. OBUAGBAKA. Yes My Lord.<br< p=””

</br<

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HON. JUSTICE OGUNSANYA: Witness identified statement defense. Counsel objected. Yes Mr. Harun.
MR. HARUN: My Lord the defence Counsel’s objection does not affect the admissibility, it only goes to the weight to be attached to the statement. We humbly pray the Court to accept the statement as exhibit as same is relevant has been identified by the witness in the box.
HON. JUSTICE OGUNSANYA: Can I see the statement? You wrote the statement for the defendant.
A. Yes.
HON. JUSTICE OGUNSANYA: And you recorded the statement for the defendant?
A. Yes, My Lord.
HON. JUSTICE OGUNSANYA: In the course of the trial of this case, one Christopher Odugbanjo testify that he recorded the defendant’s statement, the witness was shown the statement and he identified it as the statement of the defendant. He said, he recorded the statement because the defendant cannot write. Defendants Counsel objected to the tendering of the statement on the ground that it was not the statement of the defendant. According to him, the defendant told that he was merely told to sign the statement. It was not his statement. Counsel, pleaded non-est factum to the tendering of

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the statement. The prosecution Counsel replied to the objection that the objection did not affect the admissibility of the statement but rather it would affect the weight to be attached to the said document and the parties will address the Court on that issue in their final address. The document is hereby admitted by the Court and Marked exhibit P1″.

At page 47 of the record of appeal, witness told the Court under cross-examination that when he recorded the statement of the Appellant there were several policemen around. The confessional statement of the Appellant is at page 21-27 of the record of appeal.

Appellant also testified in Court at page 53-54 of the record of appeal part of his evidence reads as follows:
“At the Ketu police station he was being asked where is the vehicle, he said he doesn?t steal vehicles and that he is not a thief that he works in Ketu Mile 2 Garage. So he was still being beaten and he asked where is the stolen vehicle and some name of the gangsters were being mentioned which he never knew from Adam. That the police told him that if he should get in touch with those mentioned gang members else he will be

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killed. He now asked the policemen that how do they know that he stole a vehicle, he was informed that a telephone call was made to the police station that his name was being mentioned as the one who procured other men to steal a vehicle?”

The Appellant protested his involvement from the on-set and said he was subjected to beating, this is found from his evidence in Court, and from the record of proceedings at the trial, particularly with regards to the recording and admissibility of EXHIBIT P1, there is no doubt that the defendant raised objection at the trial even though the learned trial Judge admitted the confessional statement. The Appellant raised the issue of non-compliance with the provisions of Section 9(3) of the Administration of Criminal Justice Law by the prosecution in this appeal. The relevant Section provides as follows and I quote:
9(3)
“Where any person who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of such statement is recorded on a video and the said recording and copies of it may be produced at the trial provided that

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in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.”
The law clearly provides that where an accused person desires to offer confessional statement, the Police officer investigating the case is required to ensure that the process is covered by video recording or where video recording is not available, the statement must be recorded in the presence of legal practitioner appointed by the Accused person.
The purpose of Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 is to provide conducive and assuring atmosphere for persons standing trial under our criminal Justice system, to obviate incidents of abuse of human rights. I also see the provisions as positive development in granting accused person’s assurance of fair trial. It is a provision designed to check-make abuse of human rights by overzealous security officers who by all means, must ensure that an accused person is subjected to undue hardship and cowed to confession. In the instant appeal, the Appellant denied making the statement; the witness for the prosecution said he offered to write

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the statement for the Appellant because he could not write. A very careful examination of the statement will show that Appellant signed the statement, and there is no indication that the contents were read and interpreted to the Appellant, and if he could read and write in English why the gracious offer to write for him by the prosecution? Where an accused person does not profess illiteracy and inability to write his statement by himself, any offer by the police or investigating Agencies to write his statement for him will make the statement suspect.

The Appellant said he was beaten and compelled to sign the statement prepared by the police, and PW3 said he recorded the statement for him, in the presence of other police officers. The circumstances surrounding the recording of Appellants statement created doubt as to the veracity of the statement. I think the time has come for all active participants in our criminal Justice system to follow the law and do what is just, right and proper. I think the provisions of Section 9(3) are also purpose made provisions designed to achieve transparency in arrest and arraignment process, they are provisions that are

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crafted for the protection of the accused person during arrest and trial process, they are mandatory and must be observed and respected, where the prosecution fails to comply with the mandatory provisions of Section 9(3) of the Administration of Criminal Justice Law, any confessional statement extracted from an accused person without video recording or in the presence of Counsel for the accused shall be rendered impotent. Exhibit P1 the purported voluntary confessional statement offered by the Appellant is therefore invalid having failed to satisfy the requirements of Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011.

The object of the administration of Criminal Justice Law is to protect accused persons and illiterate accused persons against possible fraud and exploitation by being made to append their signatures on statements which do not convey or manifest their real intention. Exhibit P1, left us in doubt as to whether the Appellant actually made the statement or not. For any evidence to warrant conviction, it must be beyond reasonable doubt. Where the evidence elicited at the trial is susceptible to either guilt or

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innocence of the accused person, it must be held that reasonable doubt is created, and the law is well settled that where there is doubt in the case of the prosecution, the doubt must be resolved in favour of the accused person. See: ACHIBONE v. STATE (2006) 14 NWLR (PHOOO) 349 at, 374. The lower Court fell into grave error when it convicted and sentenced the Appellant to death on the strength of Exhibit P1. Issue number two is therefore resolved in favor of the Appellant.

Appellants issues One and three deal with the offences of Robbery and conspiracy. Appellant submitted that the prosecution failed to establish the two offences against him beyond reasonable doubt having regard to the quality of evidence led by the prosecution at the trial. The law is settled that in criminal trials the burden of proving allegations of crime beyond reasonable doubt rests on the prosecution, and this burden does not shift. See: Section 135 of the Evidence Act 2011, WOOLMINGTON v. D.P.P. (1935) AC 462, ESANGBEDO v. THE STATE (1989) 4 NWLR (Pt. 113) 57, UDO v. STATE (2006) 15 NWLR (Pt. 1001) 179, MICHAEL v. STATE (2008) 13 NWLR (Pt. 1104) 361, KIM v. STATE (1992) 4 NWLR

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(Pt. 233) 17, ANI v. STATE (2003) 11 NWLR (Pt. 830), BELLO v. STATE (2012) 8 NWLR (Pt. 1302) 207. In criminal trials, even where the accused person admits in his statement to the police that he committed the offence, the prosecution is not relieved of the burden of establishing the guilt of the accused beyond reasonable doubt. See: ABOKOKUYANRO v. STATE (2016) LPELR-40107 (SC). The allegation against the Appellant in the instant case is that of armed robbery and the settled position of the law is that to establish armed robbery against an accused person, the prosecution must lead credible evidence to establish the essential ingredients of the offence of armed robbery beyond reasonable doubt, the prosecution must prove that there was robbery or series of robberies, and that each robbery was an armed robbery, meaning that the accused person was armed with firearm or an offensive weapon and that the accused person took part in the armed robbery. See: ANI v. STATE (supra), OGUDU v. STATE (2011) 45 NSCQR (Pt. 1) 278.
To establish the alleged offence against the accused person, the prosecution must establish the essential ingredients of the offence, and

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before coming to the conclusion that the offence has been committed, the trial Court must be satisfied that the ingredients have been established beyond reasonable doubt by the prosecution. In the instant case therefore, the first duty on the prosecution is to establish that robbery or series of robberies occurred. To establish this particular essential ingredient of the offence, the evidence of PW2 is relevant, this witness gave evidence at page 35-37 of the record of appeal and part of the testimony of the witness is reproduced as follows:
“We were coming from church that day at 5 am, in the morning we went for night vigil, when we got to the gate my husband horned nobody respond, so my younger brother now got down from the car to knock the gate so 2 men just appear. Hit my husband with a gun and opened the door for me. The man started beating my husband, so the one that opened the door for me, I carried my babies and followed him inside. The one that beat my husband searched all my pockets and my husband carried a purse. They went inside. On getting inside we met another 2 guys with gun making 4. They said we should lie down; the four of them came out of

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the gate with our car. They ran away with the jeep. I went to police station to report.”

The testimony of PW2 is clearly to the effect that there was robbery because PW2 was directly affected by the act and was therefore a victim of the alleged offence. PW2 also testified to the effect that one of the Robbers was armed with a gun at the time of the attack, this in my view also shows that the alleged robbery was an armed robbery coming from direct testimony of PW1 as rightly found by the lower Court. The learned trial Judge while holding that there was robbery and that it was an armed robbery said as follows at page 87- 88 of the record of appeal:
“Looking at the case presented by the prosecution witness, there is direct evidence of PW2 who witness the robbery and the arrest and confession of the defendant to the crime. The prosecution would need to prove beyond reasonable doubt if there was a robbery and if it was the defendant that participated in the robbery and if the defendant was armed or was in conspiracy with those who were armed with offensive weapons.
Now it is not in dispute that there was theft of a Murano Jeep with Registration

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No. BQ 496 KUJJ belonging to Gbenga Adeshina, what the prosecution needs to prove beyond reasonable doubt is that it was the defendant that took part in the theft of the car. The testimony of PW2 is that two men suddenly appeared to them at the gate of their house and one of them hit her husband with a gun. She testified that one of them led her and her husband upstairs and they collected several items in the house and thereafter the armed men drove their Murano Jeep away?”

From the evidence of PW2, the learned trial Judge was right in coming to the conclusion that robbery occurred and that it was an armed robbery, the evidence of PW2 therefore covered the first and the second ingredient of the offence of armed robbery. With regards to proof of guilt or participation of the Appellant in the alleged armed robbery which constitutes the next ingredient, culpability of an accused person in proof of crime may be established by direct evidence from eyewitness to the commission of the alleged crime, confessional statement of the accused person or circumstantial evidence. See:EMEKA v. STATE (2002) 32 WRN 37.

?The learned trial judge

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relied on Exhibit P1 confessional statement offered by the appellant upon his arrest, and this Court has already held the view that the confessional statement is invalid for reasons of failure by the prosecution to comply with Section 9(3) of the Administration of Criminal Justice Law of Lagos State. The learned trial Judge relied on the confessional statement when he said as follows at page 93 of the record of appeal:
“? The testimony of PW1, PW2, and PW3 corroborated Exhibit P1. PW2 gave direct evidence of what she saw, heard and experience during and after the robbery. Her statement is consistent with all the facts that have been established by the prosecution. This Court finds and holds that the statement was made and executed by the defendant and it shall be accorded full probative value.”

With due respect to the learned trial Judge, the Appellant was not identified by the witness and the entire evidence against the Appellant was that there was anonymous phone call. In criminal trials, the onus of proof is squarely on the prosecution to establish the guilt of the Accused beyond reasonable doubt; this is achieved by establishing the

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essential ingredients of the offence by leading credible and believable evidence against the accused at the trial, when this is done, the prosecution will be seen to have discharged the burden of proof. See: SEBASTIAN YONGO & ANOR v. COMM. OF POLICE (1992) 4 SCNJ 113.

From the evidence led by the prosecution, it is apparent that the prosecution failed to establish the participation of the Appellant in the alleged offence beyond reasonable doubt. The entire witnesses for the prosecution failed to establish the guilt of the Appellant; the prosecution must lead compelling and conclusive evidence to establish the guilt of the Appellant. The confessional statement, which the lower Court relied on as sufficient basis for its decision failed to qualify as a valid confessional statement. Issue number one is therefore resolved in favour of the appellant.

Issue number three relates to conspiracy. To prove conspiracy the prosecution must prove that there was an agreement between two or more persons to do or cause to be done an illegal act, or commit some act, which is not illegal by illegal means. Conspiracy is hardly established by direct evidence

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because it is usually hatched in utmost secrecy, it is usually established by circumstantial evidence in proof of the agreement of the confederates.

In the instant case, the learned trial Judge relied on the confessional statement of the Appellant, this Court has already rendered the confessional statement invalid and any decision based on the said confessional statement is equally rendered invalid. The lower Court said as follows at page 94 of the record of appeal and I quote:
“The defendant admitted that the persons with whom he planned the robbery were those that led the victim and his family upstairs to their house and eventually stole his Murano jeep… The admission of the defendant clearly establish the necessary ingredients of the offence of conspiracy to commit armed robbery contrary to Section 297 of the Criminal Law? It is settled law that an accused person can be convicted solely on his confessional statement. This is premised on the reasoning that what an accused person says against his interest without police influence is most likely to be true.”

It is not necessary to subject this issue to any further serious

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discourse since this Court has already held the view that; the confessional statement of the Appellant that constitutes the plank of the decision of the lower Court is no longer potent, it will be safe to hold that any decision predicated on the incompetent confessional statement is equally invalid. I hold the view that the prosecution failed to establish allegation of conspiracy against the Appellant. This issue is also resolved in favor of the Appellant.

Having resolved the three issues in favor of the Appellant, it follows therefore that Appellant’s appeal is meritorious and therefore succeeds, the decision of the lower Court delivered by Ogunsanya J, on the 13th day of July 2015 sentencing the Appellant to death is hereby set aside. Appellant is accordingly discharged and acquitted.

Other Citations: (2016)LCN/8694(CA)