Olayode V. State (2020)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
The appellant was arraigned and convicted along with one Fahd Kamaldeen and two others, then at large, for conspiracy and the series of armed robberies they carried out between 2010 and 2011 in Ilorin metropolis on a thirteen count information. On account of the same information, they were also charged for killing the owner of one of the supermarkets in the course of one of the robberies. Their trial and conviction occurred under the Robbery and Firearms (Special Provisions) Act 2004 and the Penal Code for the conspiracy, robbery and culpable homicide respectively.
Under the 1st and 2nd counts, the accused were charged with conspiracy and the robbery at the Peculiar Grace supermarket where, on 4th May 2011, while armed, they dispossessed the owners and staff of the shop various items including money, Blackberry and Nokia x2 handsets and a KIA Rio car with registration number Lagos DL 8505 D. The offences are punishable under Sections 6(a) and 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act 2004.
Under counts 3 and 4, the information, the appellant and the others were accused of conspiring and robbing the Food and Nut supermarket Ilorin and one of its customers Dr. Mohammed Jamiu Adeyi of their money and handsets on the 12th of April, 2011.
Counts 5 and 6 alleged conspiracy and robbery by the appellant and the other accused persons against one Mrs. Franca Mbanugo whom they dispossessed of her Toyota Camry car and other items on the 25/10/2010 at gun point.
Under counts 7 and 8 of the information, the group were alleged to have conspired and, while armed, robbed Olumese and Sons Beer Distributors of large sums of money sometime in November 2010.
In counts 9, 10 and 11 of the information, the appellant and the others were accused of not only conspiring and robbing the ‘B’ System supermarket located at Ahmadu Bello Way Ilorin, owned by one Basil Nwafor, they also shot and killed the latter.
The appellant and his co-accused were alleged under the 12th and 13th counts for conspiring and robbing, at gun point, Buno supermarket, located at No. 34 Offa Road Ilorin, on 1st December 2010.
One Mr. Monday Oginndiagba, PW 17, investigated the case against the criminal group.
He testified with sixteen others for the prosecution at the Kwara State High Court sitting in Ilorin.
The brief facts of the case against the appellant and the others is that on the 19th May, 2011 the group, while driving in a Honda car with registration number Kwara AH 195 FUF, were flagged down by a team of SARS police officers along Airport Road Ilorin. They refused to stop. The patrol team pursued and arrested the appellant. His co-travelers in the vehicle had escaped arrest. In the course of investigation, the appellant and Fahd Kamaldeen, his co-accused, made confessional statements all of which were tendered after a trial within trial had been conducted following the objection raised against their voluntariness. Appellant’s confessional statements, tendered and admitted through PW17, are marked Exhibits N and O.
PW4 is the owner of Exhibit E, the Nokia handset, she told the trial Court she had been dispossessed of at the Peculiar Grace supermarket by the appellant and his co-accused. Exhibit E was recovered in the Honda vehicle driven by the appellant on the day of his arrest by the SARS patrol team.
PW4, PW5, PW6, PW9, PW10 and PW13, all eye witnesses to some of the robberies and the killing of Mr. Basil, fixed the appellant to the venue of the respective offence as a participant.
Appellant and his co-accused, were further identified at an identification parade by their victims who had variously, before appellant’s arrest, reported their being robbed. The identification parade took place at the SARS police office.
The appellant, who has a bad leg and limps, gave evidence in his own defence. He disputed the prosecution’s assertion that the injury that caused his bad leg was sustained in the course of one of the armed robberies he is convicted for. Instead, he insists, a motor cycle accident was the cause of the bad leg; that he never refused to stop on the day of his arrest when the police patrol team flagged him to; that he was never a member of any robbery gang or had had anything to do with any of the prosecution witnesses.
In the trial Court’s judgment delivered on the 16/9/2014, the appellant was discharged and acquitted in respect of counts 5, 6, 7, 8, 12 and 13 of the charge which the prosecution was held not to have proved beyond reasonable doubt. The Court however convicted and sentenced the appellant under counts 1, 2, 3, 4, 9, 10 and 11 for the conspiracy and robberies at Peculiar Grace supermarket, Food and Nut supermarket, a sister agency and the killing of Mr. Basil, the owner of the former, in the course of the robbery.
Dissatisfied, the appellant appealed to the Court of Appeal, Ilorin Division, hereinafter referred to as the lower Court. The dismissal of the appeal and the affirmation of appellant’s conviction and sentence by the trial Court explains his further appeal to this Court on a notice filed on 3rd August, 2017 containing nine grounds.
The sole issue distilled at paragraph 3.01 of the appellant’s brief, which the respondent adopted in its brief as having arisen for the determination of the appeal, reads:-
“Whether from the materials before this Honourable Court, the Court of Appeal was correct in affirming the judgment of the trial Court that the prosecution established the identity of the appellant as one of the persons who participated in any of the robberies with which he was convicted and sentenced to death.” (Underlining supplied for emphasis). In the brief which M. l. Hanafi of counsel adopted and relied upon at the hearing of the appeal, it is argued for the appellant that for the prosecution to secure conviction for any of the offences, it must prove all their ingredients beyond reasonable doubt. Sections 135 and 138 of the Evidence Act make the discharge of the burden, which does not shift, mandatory on the part of the prosecution. This is the essence of the decisions of various Courts, learned appellant counsel submits in ITU V. STATE (2016) 5 NWLR (PT 1506) 443 at 465, EROMOSELE V. FRN (2017) 1 NWLR (PT 1545) 55 at 89, IBRAHIM V. THE STATE (2008) 17 NWLR (PT 1115) 205 at 221 and FAMAKINWA V. THE STATE (2016) 11 NWLR (PT 1524) 538 at 560.
The appellant, it is further submitted, is charged with the offences of conspiracy and Armed Robbery contrary to Sections 6(a) and 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act 2004 respectively. He is also charged under Section 221 of the Penal Code for the death of one Basil Nwafor. It is incumbent on the prosecution to link the appellant with the commission of all the three offences that he is tried for. The appellant, learned counsel submits, was not arrested at the scene of any of the offences. Failure of the prosecution to establish the identity of the appellant in relation to any of the robberies, nay, all the offences, it is argued, disentitle it from succeeding in the case. In the case at hand where the identity of the appellant was in issue and the two Courts had acted recklessly in convicting the appellant, as held by the apex Court in ALABI V. STATE (1993) 7 NWLR (PT 307) 511 at 522, OKANLAWON V. STATE (2015) 17 NWLR (PT 1489) 445, OLUFOHAI V. THE STATE (2015) 3 NWLR (PT 1445) 172 and UKPABI V. STATE (2004) 11 NWLR (PT 884) 439, learned counsel submits, their decisions cannot be sustained on appeal.
The appellant, learned counsel further argues, was convicted for participating in three different armed robberies at Peculiar Grace Supermarket, the Foods and Nuts supermarket and the ‘B’ supermarket. The evidence of appellant’s identity given in Court witnesses as well as at the identification parade conducted by the police, appellant counsel contends, remain shaky, unreliable and incapable of sustaining his conviction by the two Courts. The time within which the eye witnesses, PW2, PW4, PW5 and PW6, viewed the appellant was insufficient for them to recognize his features and retain same in their memory. The fact that the prosecution witnesses were prompted at the identification parades to fish out the appellant, it is contended, makes their evidence unreliable. The trial Court’s finding at page 300 of the record which the lower Court affirmed at pages 625 – 626, learned counsel submits, are erroneous.
The concurrent finding of the two Courts below that Exhibit E was owned by PW4 when the questionable Exhibit E3 PW4 asserts is the receipt of her purchase of the handset is clearly lacking in any probative value. The evidence of PW 7, 8 and 10 at pages 158-160 of the record clearly reveal also that they cannot be relied upon. The witnesses lied face down too frightened, to observe the features of the appellant who had a gun. And it was at night.
The identification parade carried out to establish the identity of the appellant was not conducted in the manner the law allows. The weakness in the entire evidence which seeks to fix the appellant on the various dates and venue of the robberies, learned counsel for the appellant contends, disentitle both Courts from their concurrent conviction and sentence of the appellant. Learned counsel refers to IKEMSON V. THE STATE (1989) 3 NWLR (PT 110) 455, SUNDAY NDIDI V. THE STATE (2007) 13 NWLR (PT 1052) 633 and OLANIPEKUN V. THE STATE (2016) 13 NWLR (PT 1528) 100.
On the whole, learned appellant’s counsel urges that the appeal be allowed and the appellant acquitted and discharged.
Mr. Mumini Esq., learned Director of Public Prosecutions Kwara State, is very terse in his response to appellant’s arguments. The appellant’s complaint on the evidence of identification proffered by the prosecution in establishing the appellant’s presence at the venue of the crime makes no sense at all. The entire circumstances of a case determine the necessity of an identification parade. Identification parade, it is argued, becomes necessary only where the arrest and circumstances of the arrest are entirely based on suspicion. Where there was prompt identification of an accused, it is submitted, a parade ceases to be a necessity. Identification parade, learned counsel stresses, is not a sine qua non to obtaining a conviction for a crime. The parade can only be insisted upon where the victim of the crime did not know the accused and had his first acquaintance with the offender during the commission of the offence. The time available for the witness to observe the offender, learned respondent counsel submits, determines the reliability of the evidence of the witness. Learned counsel refers to PATRICK IKEMSON V. THE STATE I CLRM and NWATURUOCHA V. STATE (2011) LPELR – 8119 (SC). Further relying on FATAI V. STATE (2013) LPELR – 20182, learned DPP maintains that where the accused identifies himself by making a confessional statement admitting the crime, identification parade is usually dispensed with. The appellant, it is further argued, was arrested on the 19/5/20 with Exhibit E, PW4’s Nokia handset, in his possession. The two Courts are right, learned counsel submits, to invoke Section 167(a) of the Evidence Act in presuming, that the appellant is the person who dispossessed PW4 of the handset. By virtue of Exhibit E, E3 N and O, appellant’s confessional statements, further proof of appellant’s identity through an identification parade is unnecessary. Reference is further made to USUNG V. STATE (2009) ALL FWLR (PT 462) 1203, a decision of the Court of Appeal for persuasive purposes and the apex Court’s decision in BABARINDE V. THE STATE (2014) ALL FWLR (PT 717) 606 at 631-632 and EBENEHI V. THE STATE (2008) 10 NWLR (PT 1096) 596.
Beyond Exhibit E, N and O, learned DPP contends, the prosecution had linked the appellant with the series of robberies he is convicted for through the evidence of PW2, PW4, PW5, PW7 and PW8 at pages 150, 153, 156, 158 and 159 of the record of appeal. All these witnesses consistently described the appellant whom they easily picked at the parades because of his limp given a bad leg. Concluding, learned counsel entreats that the appeal be dismissed.
My Lords, appellant’s real grouse in this appeal is that his concurrent conviction by the two Courts for conspiracy, series of robberies and culpable homicide does not evolve from the evidence on record. Neither the evidence of the eye witnesses to the robberies and act of shooting Mr. Basil to death nor the formal parade conducted with the view to identifying the appellant, it is has been argued, satisfies the legal requirement the evidence should to ground conviction.
On what evidence, it may be asked, did the trial Court base its decision against the appellant the affirmation of which decision by the lower Court is said to be perverse?
At page 323 of the record, the trial Court has held inter-alia as follows:-
“Exhibits N and O are confessional statements. The 1st accused confessed to the charge in counts 1, 2, 3 and 4 in the extra-judicial statements. He admitted that he conspired with the 2nd accused and two other persons at large to rob. He confessed that the four of them robbed at peculiar grace Supermarket Olorunsogo, Ilorin on 4/05/2011 and Nut Supermarket Ilorin on 12/04/2011.”
(Underlining supplied for emphasis).
The Court continued thus:-
“The two extra-judicial statements (Exhibits N and O) made by the 1st accused and Exhibit P made by the 2nd accused were found by the Court in trial within trial to have been volunteered to the police freely. The confession of the 1st accused in Exhibits N and O were corroborated by the evidence of PW2, PW4 PW5 PW6 PW7 PW8 and PW10 the victims of the two robbery…
The evidence of the prosecution witnesses convinced me that the confession of the 1st accused is possible and true.” (Underlining supplied for emphasis).
At page 326, the trial Court concluded thus:-
“On the whole, I am satisfied from the overwhelming and believable evidence adduced that the prosecution has established against the 1st accused person ingredients of the offence of armed robbery in counts 2, 4 and 10, and the ingredients of the offence of conspiracy in counts 1, 3 and 9…
The ingredients of the offence of culpable homicide punishable under Section 221 of the Penal Code were also established against the 1st accused to the standard required in criminal cases, that is, beyond reasonable doubt. I find him guilty of the offence as charged in count 11 and I hereby convict him of same.” (Underlining supplied for emphasis).
In affirming the decision of the trial Court, the lower Court concluded its judgment at page 641 of the record as follows:-
“Issue 3 is whether the prosecution proved beyond reasonable doubt the charges of conspiracy, armed robbery and culpable homicide against the appellant. As shown earlier in this judgment, the whole argument of the appellant was rooted on his almighty issue of mistaken identity/insufficient proof of his identity_ by the prosecution witnesses. As it turned out, that issue has been ill-founded and resolved against him. The root having been found weak and dry, the branches must necessarily wither away and collapse with it…. the appellant did not only rob the three supermarkets in issue while armed but carelessly ordered the killing of Mr. Basil Nwafor after robbing his shop.” (Underlining supplied for emphasis).
The trial Court, which decision is affirmed in the foregoing, relied largely on Exhibits N and O appellant’s confession, it found voluntary and particularly corroborated by the evidence of the prosecution witnesses. The trial Court also invoked 167(a) of the Evidence Act given Exhibit E, PW4 was dispossessed of during one of the robberies the appellant took part in.
The principle applicable to the facts of the instant case is that appellant’s extra-judicial confession having been proved to have been made voluntarily and it is a positive, direct and unequivocal admission of his guilt, a Court may convict the accused on it alone without the need for further corroboration of same. The trial Court has rightly stated this much a position which, at page 375 of the record, the lower Court affirmed. The reliance of the two Courts in this regard on some decisions of this Court in STEPHEN V. STATE (2013) ALL FWLR (PT 705) 229 at 239, IKEMSON V. STATE (1989) 3 NWLR (PT 110) 455, LASISI V. STATE (2013) ALL FWLR (PT 707) 611 at 636-637 and SHURUMO V. STATE (2010) ALL FWLR (PT 551) 1406 at 1447 at the prompting of the learned respondent’s counsel is unassailable.
It is however evident from the record of the appeal that beyond Exhibit N and O, appellant’s voluntary confession, the two Courts acted further on the evidence of eye witnesses in convicting the appellant. This Court in its numerous decisions has admonished Courts to look for anything outside the confession of an accused which vindicates the veracity of the confession. See ISSA BIO V. STATE (2020) LPELR – 50258 (SC), OSETOLA AND ANOR V. THE STATE (2012) LPELR – 9348 and AKPAN V. STATE (2001) 15 NWLR (PT 737) 745. The resort of the two Courts to evidence outside appellant’s confession fulfills this requirement of the law.
Lastly, in view of the sufficient evidence on which appellant’s conviction hinges, his further grudge against the evidence linking him with the offences, arising from the identification parade, must also come to naught. I agree with the learned DPP for the respondent that where there is sufficient evidence linking the accused with the offences charged, as is the case herein, identification parade is unnecessary and superfluous. In AGBOOLA V. THE STATE (2013) LPELR – 20052 this Court stated thus:-
“Generally, identification evidence is evidence intending to show that a person charged with an offence is the same as the person who was seen committing the offence.
Therefore, whenever the trial Court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt the accused before the Court was the person who actually committed the offence with which he is charged.”
See also ADAMU V. STATE (supra) and NWATURUOCHA V. STATE (2011) LPELR – 8119 (SC).
From the evidence on record, it ceases to be in doubt that the appellant had conspired with others and, while armed, robbed at the various venues and, in one of the robberies, killed a human being.
I am satisfied that the decisions of the two Courts below amply demonstrate compliance with the principle contained in the many decisions of this Court on the principles applicable to this case. The concurrent finding of guilt so arrived at is not perverse. It must persist. See SUNDAY V. STATE (2017) LPELR – 42259 (SC) and OFORDIKE V. STATE (2019) LPELR – 48456 (SC). Appellant’s lone issue is accordingly resolved against him and the appeal resultantly dismissed. Appellant’s conviction and sentence by the trial Court for the three offences is hereby further affirmed.