Segun Ajibade Vs The State (2012)
LAWGLOBAL HUB Lead Judgment Report
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE, J.S.C
The appellant herein and three (3) other persons were arrested and charged on two counts of conspiracy to commit felony to wit armed robbery and the offence of armed robbery contrary to section 5 (b) and 1 (2) (a) of the Robbery and Firearms (special provisions) Act Cap.398 Laws of Federal Republic of Nigeria as amended by the Tribunal (certain consequential Amendments etc) Decree 1999.
On the 23rd of October, 2000 the appellant and three others, whilst armed, with offensive weapons to wit-an iron rod, stole a Lister generating set at ELF FILLING STATION, Abeokuta Ogun State. In the process, the appellant and others killed one of the guards by hitting him on the head with iron rod, while the other was seriously injured.
At the trial the prosecution called eleven (11) witnesses and tendered 13 Exhibits while the appellant rested his case on that of the prosecution. On 25 /5/2002 Adebayo’, the prosecution counsel, announced that the prosecution has closed its case.
Then ‘Adeniyi’, the defence counsel asked for an adjournment to enable him adequately prepare for the defence, court then adjourned for defence.
On 1/8/2002 the following happened in court;-
“B. A. Adebayo (PSC) appears for the state says he has seen the letter written to the court by the learned Counsel for the accused persons to explain his absence from court and to request for the adjournment of the case. Says further that he is not opposing the application for adjournment”.
Court-Case is adjourned till 8/10/2002 for defence to open.
On the 16 /10/2002, the record of proceedings also revealed what happened that day:-
“Accused persons are present.
B. A. Adebayo (PSC) appears for the state.
C. O- Adeniyi appears for the accused persons.
Adeniyi says: The prosecution has closed its case. He proceeds to address the court.
The record also shows that even though the accused persons counsel was in the court he did not challenge the statement made by the prosecution’s counsel or made any attempt to call any witness and neither did he address the court even-though he was resting his case on that of the prosecution.
The trial court proceeded to deliver its judgment on the 14 /1/2003 in which it found the accused persons guilty of the offences charged and sentenced them to death after convicting them. The trial court in its judgment found as follows:
“The accused persons on their respective statements disclosed that they entered into the station by stealth. In particular they disclosed that their vehicle in which they travelled to the station where the generator was parked some distance there-from and that it was not until they had loosened and secured the generator that the driver was summoned into the station with his vehicle and the generator placed in it. They also disclosed how they bought pure water for the purpose of concealing the generator.
Given the objective of the accused persons which was to remove from the ELF filling station, the generator thereat and the clandestine manner adopted by them for the purpose; I find the element of unlawful act to wit, steal the generator at the ELF patrol Station. As one of the accused person pursuant to their agreement to steal the generator in question was not only armed with an iron rod but actually used the same on at least one of the guards at the station in the process of executing the objective of their agreement and which objective I have earlier found they successfully accomplished accordingly found the accused persons guilty as charged in count
In conclusion given the totality of the case presented by the prosecution and which is the only one before the court, I find counts 1 and 2 respectively proved beyond reasonable doubt against the accused persons. All the accused persons accordingly found guilty as charged”.
See P76 and 77 of the record.
The appellant was dissatisfied with the judgment and as a result appealed to the Court of Appeal Ibadan Division, herein after called the lower court. The Court of Appeal in its judgment delivered on 25/7/2011 affirmed the judgment of the trial Court. In the lead judgment delivered by Alagoa JCA as he then was, the lower Court found as follows:
“There is no doubt that there was a meeting of the minds of the appellant with the other accused persons at the lower court to cart away the ELF generating electric plant on the 23rd October, 2000.
The confessional statement of the appellant which were admitted in evidence without objection as Exhibits A and K shows clearly that he was part and parcel of the gang of robbers and even took part in loosening the electric generating plant from the ELF Filling station along Abeokuta/Lagos road on the 23rd October, 2000. I find conspiracy in count I against the appellant also proved beyond reasonable doubt by the prosecution and have no cause to disturb the findings of the learned trial Judge”
See P135 of the record of proceeding.
The appellant was again dissatisfied with the lower Court judgment and has appealed to this Court by filing his Notice of appeal. In accordance with the rules of this Court both parties filed and exchanged their respective briefs of argument. The appellant distilled two issues for determination from the grounds of appeal as follows:
- “Whether the trial and indeed the lower court were not in breach of the appellants right to fair hearing as entrenched in section 36 (4) (5) of the 1999 constitution on the singular application of section 287 (1) (a) (111) and (b) of the Criminal Procedure Act Cap 41 Laws of Federal Republic of Nigeria 2004 to the due determination of this case which has invariably occasioned gross miscarriage of justice.
- “Whether the prosecution was able to prove beyond reasonable doubt the ingredients of the offence of conspiracy to commit armed robbery and armed robbery against the appellant based on the peculiar facts and circumstances of the entire case”.
The Respondent also formulated two issues for the consideration of the appeal as follows:-
“1. Whether the learned Judge rightly convicted the appellant of the offences of conspiracy to commit armed robbery and armed robbery.
- Whether the trial court was in breach of section 36 (4) (5) of the 1999 constitution”.
At the hearing the learned counsel to the appellant adopted his brief of argument and urged this court to allow the appeal.
On issue No I, learned counsel submitted that the appellant’s right to fair hearing was breached, as he was not called upon by the trial court to enter his defence. He cited Section 287 (1) (a) (111) and (b) of the Criminal procedure Act (C. p. A) and Section 36 (4) (5) of the 1999 Constitution of the Federal Republic of Nigeria as amended. It was his contention that the two lower courts failed to give Section 287 (1) (a) (111) and (b) of CPA its natural and correct interpretation and accordingly misapplied the provisions of the aforesaid statutes. He distinguished this case from the judgment of this court in Nbamali v. The State (1998) 1 NSCC 14 in that the implications of the breach of the provisions of section 36 (4) of the 1999 constitution was not determined in that case. He contended that section 287 (1) (b) and (111) of the CPA places a burden on the trial Judge to the legal practitioner defending the appellant to proceed with the defence since at this stage the trial court had listened to all the prosecution witnesses and established that a prima facie case had been made out and to accordingly call the legal practitioner representing the appellant to open his case in accordance with the provisions of Section 287 of the C.P.A. The trial Judge’s duty is to ensure that justice is done. He relied on the case of Garba V. University of Maiduguri (1986) 1 NWLR (pt. 18) 550 at 619. He contended that the word ‘shall’ in both provisions made it mandatory for the trial court to call upon the appellant to proceed with his defence, he submitted that a party should not be punished for the mistakes of his counsel, he cites Doharty V. Doharty (1964) 1 All NLR 292 at 294; Akinyede v. Appraiser (1971) 1 All NLR 164 and Jozebon Industries v. R. Launers Import Export (1998) 1 All NLR 310 at 3 27.
On issue no.2, learned counsel contended that for the offence of armed robbery to be proved beyond reasonable doubt, the ingredients of the offence must be proved to wit:-
- There was a robbery or a series of robberies;
- The robber or robbers must be armed.
- The accused person or persons were the ones who committed the robbery.
He cited the case of Bozin V. The State (1985) 2 NWLR (pt. 8) 465. He then submitted that the way and manner the entire proceeding was conducted if placed against the facts of the case, it cannot be said that the prosecution has proved its case beyond reasonable doubt. It was his submission that as regard the first two ingredients, there is no evidence that the appellant was caught at the scene of the robbery. The robbery took place in the night and none of the witnesses could identify the appellant as one of those who participated in the robbery. He referred to the evidence of PW1. He contended that there was no evidence to prove that the generating set allegedly stolen belongs to the Elf Filing station and the Exhibit ‘C’ shows that the owner of the lister generator was one Olukoya Adedolope and not Elf Filling Station. Counsel referred to Exhibit ‘A’ and ‘K’, the confessional statements of the appellant on 11/11/2000. There is a presumption in favour of the appellant that if same were tendered it would have elicited more contradictions and evidence unfavourable to the prosecution. He therefore submitted that the court cannot pick and choose parts of the evidence of the defence favourable to the prosecution and reject the part favourable to the defence.
Learned counsel to the Respondent also adopted his brief of argument and urged this court to dismiss the appeal.
On the issue No. 1, learned counsel restated the three ingredients that needed to be proved in case of armed robbery and referred to the findings of the lower court where it found that the appellant committed armed robbery. He referred to the evidence of PW1, Exhibits C and C1, ie the bonds to produce exhibits tendered by PW2 which showed that the Lister generating set that was robbed was released to Olukoya Adedolapo, an official of ELF Petroleum Filling station.
Learned counsel also referred to Exhibit ‘A’ where the appellant admitted being one of the robbers that committed the robbery. This Exhibit ‘A’ was tendered without objection, which presupposed that the statement was made voluntarily. See Amala V. The State (2004) 6 SCNJ 55 at 67.
On the 2nd ingredients, learned counsel referred to the evidence of PW7 who gave evidence as to how the Toyota Hiace Bus conveying the Lister generating set was accosted and how PW7 traced the vehicle through its Registration Number in Licensing office and arrested the owner i.e 4th accused person, and it was PW4 who took the Police to the appellant’s house where he was arrested.
In Exhibit 4, the confessional statement of the 4th accused person which was admitted without any objection, he narrated how he was contacted by the appellant and the other accused persons and the role each of them played in the robbery operation. Exhibit ‘A’ and ‘K’, the statements of the appellant about the role he played in the operation. It was therefore submitted that the appellant could be convicted, on the basis of his confessional statements alone. See Emeka V. The State 7 NSCR 582; Amala V. The State (2004) 6 SCM 55 at 67.
On the third ingredient, he referred to the evidence of PW1 who gave account of how one of his colleagues was killed, he himself injured. Not only that evidence was used the appellant was also armed with iron rod which caused the death of one of the guards. He pointed out that the appellant elected not to give evidence in his own defence and rested his defence on the prosecution, as a result the court could be free to accept the un-contradicted evidence of the prosecution Ali v. The State (1988)7 NSCC 14 at 22.
On its issue No.2, learned counsel referred to the provisions of Section 36 (4) of the 1999 Constitution as amended and contended that the true test of fair hearing is the impression of a reasonable person who was present in court’s trial whether from his observation justice was done in the case, amongst others the following cases were cited in support.
i) Ijeoma V. State (1990;1 6 NWLR (pt. 158) 567 at 580
ii) Baba v. NCATC (1991) 5 NWLR (192) 388 at 430;
iii) Chungom v State (1992) 4 NWLR (233) 17 at 37; and
iv) Ogunsanya v. State (2011) 9 SCM 5 at 12.
Counsel then referred to the proceedings of the trial court and submitted that the counsel was called upon to give evidence on behalf of the appellant in line with provisions of Section 287 (1) (b) and the appellant was given adequate opportunities to put up his defence.
Issue No 1 of the appellant and No 2 of the respondent were on the issue of the breach of section 287 (1) (b) and (111) of CPA and Section 36 (4) of the 1999 Constitution as amended. Section 287 (1) of the CPA provides:
“At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence, the court shall call upon him for his defence and:-
a) If the defendant is not represented by a legal practitioner, the court shall inform him that he has three alternatives open to him namely:-
i) ” ” ”
ii) ” ” ”
iii) he needs say nothing at all, if he so wishes.
b) if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence”.
While Section 36 (4) of the 1999 Constitution as amended provides thus:-
“Whenever any person is charged with a criminal offence he shall unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a court or tribunal…”.
A close examination of the word will disclose whether or not these provisions were breached.
on the 21/5/2002 the following happened:-
“Adebayo announces the closure of the prosecution’s case.
“Adeniyi asked for adjournment to enable him adequately prepare for the defence.
Court. Case is adjourned till 10/7/2002 for defence”.
On 1/8/2002, the defence counsel wrote a letter for adjournment. This is what took place on that day.
Accused persons are present.
B. A. Adebayo (PSC) appears for the State.
Says he has seen the letter written to the court by the learned counsel for the accused persons to explain his absence from court and to request for the adjournment of the case. Says further that he is not opposing the application for adjournment.
Court – case (sic) adjournment till 8/10/2002 for defence to open”.
Then on 16/10/2002 the following also took place in court.
“Accused persons are present
B.A. Adebayo (PSC) for the State
C. O. Adeniyi appears for the accused persons.
Adeniyi; – Says the prosecution has closed its case and that the defence is resting on the prosecution’s case.
He proceeds to address the court…”
Learned counsel to the appellant was in Court, no attempt was made to call any witness neither did he challenge the correctness of the prosecution’s counsel that rests its case on that of the prosecution. In the circumstances of this case can it be said that the trial court did not call the defendant to proceed with their defence. The lower court on this point held as follows:
“Perhaps it is at this juncture that I should say a word or two about the effect of an accused saying nothing in his defence as was observed in this case. At page 58 of the record of appeal is stated the fact that the accused person led no defence at the hearing of this case. Also at page 60 of the record of appeal the learned trial Judge remarked as follows:
“I have before now stated that the accused persons did not lead evidence at the hearing of this case. They rested their case on that of prosecution. Now what is the effect of this in law The answer is provided in the case of N. M. Ali V. The State (1988), NSCC 14.
In the said case Honourable Justice Craig JSC, in the lead judgment, dwelling on the legal effect of an accused person electing not to give evidence on oath stated at page 22 thus:
(1) Make an unsworn statement from the dock, in which case he will not be liable to cross examination or
(2) He may give sworn evidence in witness box and be cross-examined, or
(3) He may elect not to say anything at all.
The learned trial Judge went further to say that in the instant case the appellant chosen (sic) the third alternative of not saying anything at all which is well within his legal rights to do so”.
On the effect of the accused adopting to remain silent the learned trial Judge referred to the concurring judgment of Oputa JSC in this case (Supra) at pages 27 – 28 thus:
“… if the defence rests and refuses to put an accused person into the witness box to depose to his own version of the events, then the learned trial Judge is denied the opportunity of listening to the accused tell his story of watching his demeanour, or assessing his credibility, and of making the necessary choice between his story and that of the prosecution.
In the final result, the, trial court will have to decide the case on the evidence before it undeterred by the incompleteness of tale from drawing all inferences that properly flow from the evidence of the prosecution.
The defence has shut itself out and will have itself to blame. The Court will not be expected to speculate on what the accused might have said if he testified.
That is the law and I completely agree”
My lords, on my own I also agree with the above findings of the lower court. The appellant’s counsel was called upon to proceed with the defence and refused to take the opportunity to be heard. I must say, there is limit to the operations of Section 36 (4) of the 1999 Constitution as amended.
What it requires is to give a party a right to be heard in the determination of any allegation made against him, when such an opportunity is given and the party failed to utilise such opportunity to present his case or defence for determination, he could no longer be heard to complain that his right to fair hearing has been breached. See Olunsanya v. The State (2011) 6 SCNJ 190 at 217 – 212. The complaint of breach of his right to fair hearing by the appellant is, I think, without foundation, and I resolve this issue in favour of the respondent.
On whether the offence of conspiracy and armed robbery has been proved against the appellant. It is clear from the evidence and the confessions and statements Exhibits A and K of the appellant, that he participated in the robbery that led to the killing of one guard while the other was injured”.
Exhibit ‘H’, the confessional statement of 4th Accused person gave details of how the robbery was planned and roles played by each of them. The lower court on this point found as follows:
“The appellants’ position is compounded by Exhibits ‘A’ and ‘K’ which are without doubt confessional statements of the offence of Armed Robbery for which he was charged.
These exhibits were admitted without objection at the trial Court. The appellant did not contend that the statements were not made by him or that they were not made by him voluntarily and must therefore be taken as having made the confessional statement chronicling his involvement in the crime. Exhibits ‘A’ and ‘K’ are a detailed step by step account of how the plan to steal the generator of the ELF filling station was hatched and meticulously executed … It is the law that an accused person can be convicted on his confessional statement alone. See IKEMSON v. STATE (1989) 3 NWLR (pt.110) 455.
Finally and reverting to confessional statements of the appellant, I hold a strong view that the appellant did not or refuse or even fail to rebut or contradict the prosecution’s evidence. He chose to keep mum, within his legal right to do so, in a negative way. Neither did he advance any evidence that he did not participate in the commission of said armed Robbery. The confessional statements of the appellant must be regarded as voluntarily made since the rules and the laws governing the methods for taking them were complied with fully. The confessional statements referred to above are consequently good and credible evidence having been admitted in evidence without any objection coming from the accused counsel. There was no evidence that the appellant in one way or the other retracted from the confessional statements. It is my view that both trial and lower courts have done a good job and they both arrived at correct conclusion. The contents of the said statements are such that they were made voluntarily by the appellant.
As a result, what I have been labouring to state along is that the appeal is totally devoid of merit. I dismiss the appeal and affirm the judgment of the Court of Appeal which upheld the conviction and sentence of death on the appellant. He was rightly convicted See Emeka V. The State (2001) 6 SCNJ at p.266 per Belgore JSC, and R. V. Kanu & others 14 WACA 301 the existence of the confessional statements of the appellant and other overwhelming evidence made me to dismiss this appeal out rightly. I so hold.
SC.439/2011