Shina Akinrionola V. The State (2016)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Akure Judicial Division which affirmed the decision of the High Court of Ondo State, sitting at Akure wherein the appellant was convicted of the offences of conspiracy and armed robbery, and sentenced to death by hanging contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearms (Special provisions) Act Cap. 398 Vol. XXll Laws the Federation 1990, respectively.

The facts leading to this appeal as can be garnered from the record of appeal shows that the appellant on or about the 11th of December, 2003 at about 9.00 pm at No. 126 Oba Adesina Road. Akure popularly known as NAO Supermarket in the Akure judicial Division, while armed with guns and other dangerous weapons did rob one Ndubuisi Agatha (the Director of NAO Supermarket) of properties and cash valued at about Four Hundred and Forty Thousand Naira (N440,000.00) only.

The record further shows that in January 2004, while a team of detectives were investigating a robbery case at Araromi, the appellant and one other confessed to a previous case of robbery

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which happened at NAO Supermarket on the 11th December, 2003.

The case of the defence in respect of the appellant is that he was a victim of police random arrest at Araromi where he was waiting to take a bike. About seven of them were arrested. Appellant states that his statement – Exhibit B1 was not confessional. He also denied in open Court his participation in the robbery. At the close of evidence and addresses of counsel, the learned trial judge delivered judgment on 2nd November, 2010 and found the appellant guilty of conspiracy and armed robbery and thereby sentenced him to death accordingly.

Being dissatisfied with the judgment of the trial Court, the appellant appealed to the Court below which dismissed the appeal in a judgment delivered on 25th, June, 2014. The appellant has further appealed to this Court. Notice of appeal was filed on the 11th July, 2014 with three grounds of appeal.

On 28th, April, 2016 when this appeal was heard, both parties adopted their respective briefs which they had filed and exchanged. In the appellant’s brief settled by Adeniji Kazeem Esq., and filed on 20th October,2014, three issues have been distilled for

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the determination of this appeal. The issues are as follows:-

”(1) Whether the prosecution discharged the burden of proving that Exhibit B1 – the alleged confessional statement was corroborated or confirmed as true in line with a plethora of Supreme Court authorities

(2) Whether there was any reliable evidence in proof of the identity of the appellant as committing the offence in view of the material contradicting evidence of PW1, PW2, PW3 and PW4 in respect of the identification

(3) In view of the evidence before the Court, whether the Court of appeal was correct to have held that the prosecution proved the case of armed robbery against the appellant beyond reasonable doubt”

Also, in the brief settled by G.A Olowoporoku, Esq, Director Legal Research, Ministry of Justice, Akure on behalf of the respondent, similar issues distilled by the appellant are formulated though couched differently in the following words:-

”(1) Whether the learned justices of the Court of Appeal were right in affirming the conviction and sentence of death imposed on the appellant (solely on the appellant’s confessional statement) in the light of evidence before

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the Court.

(2) Whether the procedure adopted for identifying the appellant as one of those who committed armed robbery at NAO Supermarket on 11th December, 2003 is valid in law

(3) Whether the learned justices of the Court of Appeal were right in holding that the prosecution proved its case beyond reasonable doubt at the trial Court.”

I shall in the circumstance determine this appeal based on the three issues submitted by the parties herein without necessarily preferring the issues as couched by any of the parties, all pointing to the same direction with the same import. I need to mention that the appellant filed and adopted a reply brief on 21/8/15 which shall be given adequate treatment where necessary.

On the first issue, the learned counsel for the appellant after stating the ingredients of the offence of armed robbery as decided in the case of Adekoya v. The State (2012) LPELR – 7815 (SC) and also stating that a confessional statement must be direct, clear, precise and unequivocal, submitted that an assiduous or careful look at Exhibit B1 will clearly reveal that it is not direct, positive or unequivocal and thus does not qualify as a confessional

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statement. As regards the statement of the appellant in Exhibit B1 that he ”suddenly saw John(m) Ola (m) and Majata (m) coming out from NAO Supermarket along Stadium Road, Akure” on the night of the robbery attack, learned counsel submitted that the use of the word ”suddenly” shows that he was not part of the robbery incident. Also that the use of the word ”they” refers to a group distinct from the appellant in contradistinction to the word ‘we’ which refers to a person and the rest of a group that includes the person.

Learned counsel submitted that Exhibit B1 cannot conclusively support the Courts’ inference and conclusion that the appellant admitted committing the offence of armed robbery on 11th December, 2003 at NAO Supermarket, Akure. It is his view that the statement is capable of two interpretations and should be resolved in favour of the appellant relying on the case of Solola & Anor v. The State (2005) LPELR 3101(SC)

Submitting further, learned counsel opined that given the questionable, doubtful and ambitious nature of Exhibit B1, the prosecution failed to proffer other evidence to support the charge of armed robbery against the appellant. It

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is his view that the prosecution must produce independent evidence to corroborate the alleged confessional statement before it can be used to convict the appellant. He submitted that the appellant failed to do this. He relies on the cases of Asimiyu Alarape & Ors v. The State (2001) LPELR – 412 (SC) Bature v. State (1994) 1 NWLR (pt. 320) 267 at 283 – 284, Ogudo v. State (2011) 18 NWLR (pt. 1278) 1 at 32, Ike v. The State (2001) LPELR – 1480 (SC).

It is the stand of learned counsel that the evidence of PW1 and PW2 did not corroborate Exhibit B1. He urged the Court to resolve this issue in favour of the appellant.

In response, the learned counsel for the respondent submitted that the learned justices of the Court of Appeal were right in affirming the conviction and sentence of the appellant in the light of Exhibit B1 – the confessional statement of the appellant. According to him, once a statement is in compliance with the law and rules governing the method for taking it and it is tendered and admitted as an exhibit, then it is good evidence and and no amount of retraction will vitiate its admission as a voluntary statement, relying on the cases

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of Ikemson v. State (1998) 1 ACLR 80 at 92 Paragraphs 15-20, Nwachukwu v. State (2004) 17 NWLR (pt. 902).

Submitting further, learned counsel for the respondent opined that where a confessional statement is voluntary, free, direct and positive, it can be relied upon, without more, to convcict an accused person. He cites the cases of Adio & Anor v. The State (2005) 4 ACLR, 296 at 310 Tegwonor v. The State (2008) 1 NWLR (pt. 1069) 630 at 654. He submitted that Exhibit B1 is direct, unequivocal and voluntarily made and satisfies the provisions of the Evidence Act, 2011.

Learned counsel agrees that is desirable to have some evidence outside the confessional statement in view of the test recommended in the case of Nwaebonyi v. The State (1994) 5 NWLR (pt.343) 138 at 150 and Alarape v. The State (2001) 5 NWLR (pt. 705) 79. It is his argument that in the instant case, the evidence of PW1, PW2, PW3 and PW4 were evidence outside the confessional statement which linked the appellant to the commissioning of the crime.

It was further submitted that contrary to the appellant’s submission that Exhibit B1 is capable of two interpretations. it is positive, direct and satisfies the requirement of the law. Referring to

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the statement, learned counsel submitted that only one meaning is attributable to Exhibit B1.

On the alleged contradiction between the evidence of PW1 and Exhibit B1, Learned counsel submitted that it is not material, relying on the case of Dibie & Ors v. The State (2008) 6 ACLR 329. He urged the Court to resolve this issue against the appellant.

In the appellant’s reply brief learned counsel submitted relying on the case Dankidi v. State (2014) LPELR – 23812 (CA) that a piece of evidence that is supposed to corroborate another evidence must not be at loggerheads with the evidence it intends to confirm. He urged the Court to reject the submission that the evidence of PW1, PW2 and PW3 and PW4 corroborated Exhibit B1.

By Section 28 of the Evidence Act 2011, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed that crime. Thus a voluntary confession of guilt, if fully consistent and probable and is coupled with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the Court can convict. For the aviodance of doubt, a trial Court can only rely on a confessional

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statement where the said statement is shown to be direct, positive, unequivocal and voluntarily made. See Ogoala v. The State (1991) 2 NWLR (pt. 175) 509, Akpan v. State (1992) 7 SCNJ 22, Yusufu v. State (1976) 6 SC 167, Obasi v. State (1965) NMLR 129, Jafiya Kopa v. The State (1971) 7 NSCC 166.

In the instant case, the main plank of appellant’s complaint on this issue is that the content of the statement i.e Exhibit B1 does not show that the appellant committed the offence. In circumstance therefore, it is expedient to reproduce the said statement in this judgment for case of reference. It states:

I sina Akinrinsola(m) having been duly cautioned in English language that I am not obliged to say anything unless I wish to do so,but whatever I say will be taken down in writing and may be given in evidence.

Signed

Sina Akinrinlola

I wish to state as follows: I am a native of Akure. I attended Ireakari Community Primary School, Akure and passed out in 1991. Later proceeded to St. Dominic High School, Ikesina park, Akure in the year 1992 and stopped at JSS III in 1995. My father is called Akinrinlola and he died in 1995. My mother is called Dada and she is living in the house where I also lived. On leaving school, I went to learn the school. I

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went to learn Building material at old garage under one Ola. I spent one year with him before I got my own shop where I was selling cement at Oke-Ijebu street, Akure but I stopped selling cement when I got case with chief Justice Falodun. I fought his driver who had a broken leg. The incident happened January 2003. It was sometimes in November 2003 that i got to know Akeem (m) at Old garage. He used to come to drink there. I also got to know one Gbenga (m) at the beer parlour. Also one Sunday John and Daniel (m) it was on December, 2003 that myself, Sina, Gbenga (m) Sunday (m) Daniel with Ola(m) that we went to Araromi street, Akure in the midnight and robbed a man. It was Gbenga(m) that took us to the man and Gbenga knows him well. We collected money there but I dont know the amount because it was Gbenga that handled the money we also took from the place some electronic gadgets which have already been recovered from us by the police. And after about a week later I went to stadium junction Akure around 9’0 clock in evening. I saw one boy called Okoh with a M/Benz car and I was playing with him when I suddenly saw John Olu(m) and Mojola(m) coming out from NAO supermarket

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along Stadium road, Akure. As I saw them I knew that they come to operate and I went away with them. We went in the stadium car park where they dropped down the items which they collected from the NAO Supermarket. Among the items dropped on the ground one are some wrist watches, one handset, two bottles of wine. They gave me four thousand naira (4,000.00) out of the money they collected from the supermarket with a wrist watch which is now recovered from my hand. I left them at the place and I did not know how they go about the rest items. But I know that they will sell them. I saw a toy gun which is black and long with Ola on that day. It was from John (m)Ola(m) and Majata(m) that I know Okoli. I have not gone out to rob with Ola, John and Majata (m) before now unless this one at NAO Supermarket on that day, Majata(m) gave me one woman wrist watch while John gave me the one I mentioned above. I did not know the woman they collected from the supermarket. Majata is a native of Idanre and he can be found at Idanre. I dont know how we can found Ola (m)because is not from Akure and i dont know his town. John is

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now in cell with me. That Araromi place where we robbed, I was shared with only one thousand nine hundred naira (N1,900.00) and one VCD Player. The VCD Player is now with the police here. And after about a week to that of NAO Supermarket, myself- Sina and Gbenga also went to Araromi Street Akure in the night and robbed a house where we collected two handsets and some amount of money. It was Gbenga (m)that handled the money. He later gave me #2,500.00 as my share and one of the Handsets. I have dropped my own Handset to the police now. It was on the 26th December, 2003 at PZ area that I was arrested by the police at SARS here.They took Gbenga(m)along with them who pointed me out to them. The woman wristwatch given to me by Majata(m) have been sold out by me at the rate of N600.00 to Hausa man under Oba Adesida Bridge, Akure. I cannot be able to identify the Hausa man if I see him again. That is all.

Signed 23/1/2004 Sinna Akinrinsola.”

There is no doubt that from the above statement of the appellant which is Exhibit B1, although the appellant used the words “they” and “them’ and that he “suddenly” saw the other robbers come out from NAO Supermarket, he went ahead to also state in the same statement as follows:

“l

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have not gone out to rob with Ola, John and Majsta before now unless this one at the NAO Supermarket on that day.”

The learned counsel for the appellant argued that Exhibit B1 is capable of two interpretations: one being that he did not take part and the other that he took part. He cited the case of Solola & Anor. v. The State (supra) to urge that the Court ought to reject the said statement and should not rely on it.

My Lords, may I at this stage ask this question, i.e is the statement made by the appellant – Exhibit B1 capable of two interpretations I ask the question because this Court had, in Solola & Anor v. The State (supra), stated as follows:-

”Before a confessional statement could result in the conviction of an accused, it must be unequivocal in the sense that it leads to the guilt of the maker. Where a so -called

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confessional statement is capable of two interpretations in the realm of guilt and non guilt, or wayward, a trial judge will not convict the accused but give him the benefit of doubt”. per Tobi, JSC (at page 39, paras C-E).

My assessment of Exhibit B1 which accords with the views of the two Courts below is that it leads to one interpretation only, that is to say, that the appellant confessed that he not only took part in the armed robbery which took place at NAO Supermarket, but he also took part in the sharing of the booty. The appellant listed the items and cash given to him which were the product of the attack at the supermarket. He even said he did not take part in any other robbery except the one at NAO Supermarket. There is certainly no other interpretation than that.

One may ask, was it a coincidence that immediately the robbers came out of the Supermaket, the appellant met them and they came together to share the items stolen from the Supermarket it must be noted that the robbery took place at 9.00 pm. So, what was the appellant doing there

One issue I need to clarify is that for the view expressed by Tobi, JSC in Solola & Anor v.

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The State (supra) to apply, it must be shown that it is the statement of the accused alone that is to be relied upon to convict the accused. In the instant case, the conviction of the appellant was not based on Exhibit B1 alone. Evidence of the prosecution witnesses clearly showed that the appellant was one of the robbers who attacked NAO Supermarket. PW1 at page 41 of the record states that:

“On the night of December, 11 20O3, the 2 armed persons came into NAO supermarket and they asked us to lie down and they are (sic) with gun. They stole our wrist watches, wines, rings, ear rings and they took all the money that we made that day. I can’t remember the amount but the money was much. Yes I can identify the 2 armed robbers that came to our shop on that day. The 2 accused persons are the ones. I am sure because I know them. I know them because they were not wearing masks when they came to our shop on that date”

The learned trial judge on both the confessional statement of the appellant and the evidence of the prosecution witness to convict the appellant. This was upheld by the Court below.

The other major argument in this issue is that there

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was nothing outside the confessional statement to corroborate it. I am aware that this Court has decided in a plethora of cases that it is desirable to have outside a confession, some evidence of the circumstances which make it probable that the confession is true. See Hassan v. The State (2001) 15 NWLR (pt. 735) 184, Onochie & 7 Ors v. The Republic (1955) NWLR 307, Kanu & Ors v. The King (1952) 14 WACA 30, Edhigere v. State (1996) 8 NWLR (pt. 464) 1, Effiong v. State (1998) 8 NWLR (PT. 562) 362.

The Courts have over the years laid down conditions to test the veracity of a confessional statement as follows:-

1. Is there anything outside the confession which shows that it may be true

2 Is it corroborated in anyway

3. Are the relevant statements of fact made in it most likely true as far as they can be tested
4. Did the accused have the opportunity of committing the offence
5. Is the confession possible
6. Is the alleged confession consistent with other facts which have been ascertained and established

See R. v. Sykes CAR 233, Nwaebonyi v. The State (1994) s NWLR (pt. 343) 138 at 150.

A cursory look

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at the above conditions vis-a-vis confessional statement of the appellant will show clearly that the said statement – Exhibit B1 falls within those conditions. He was at the scene, he shared the booty and he also said he took part. So what else This Court has even held that so long as the Court is satisfied with its truth, a confessional statement alone is sufficient to ground and support a conviction without corroboration.

See Alarape v. State (2001) 5 NWLR (pt. 705) 79, Oseni v. State (2012) LPELR – 7833 (SC) Yahaya v. The State (1986) 12 SC 282 at 290, The State v. Salawu (2011) LPELR – 8252 (SC), Nsofor v. The State (2004) 18 NWLR (pt. 905) 292.

From all I have said above, it is crystal clear that the Court below was right to affirm that Exhibt B1 the confessional statement of the appellant is true and was appropriately corroborated by the evidence of the prosecution witnesses. As it turns out, this issue is resolved against the appellant.

On the second issue which has to do with the identification of the appellant, the learned counsel for the appellant submitted that juxtaposing the facts of the instant case with settled authorities, the method/procedure for

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identifying the appellant was totally wrong, incorrect and thus there was no reliable evidence confirming the identity of the appellant as the person who committed the crime. According to him, if the two Courts below had properly conceived the Supreme Court’s decision in Ikemson v. The State (supra) and other relevant authorities on this point, they would have concluded that an identification parade procedure was a sine quo non and more potent in determining the identity of appellant. That all the ingredients which would necessitate the holding of an identification parade were present in the instant case. He relies on the cases of Afolabi v. The State (2010) LPELR – 197 (SC) Sadiki v The State (2013) LPELR – 20588 (SC)

It was further submitted that since the robbery took place at night, there was no evidence that there was light in the supermarket. Also, that the Court ought to have taken notice of epileptic power supply in this country and hold that there was no light when the thieves struck. He cited the case of Ndidi v. The State (2007) 13 NWLR (pt. 1052) 651. He further submitted that there are no distinguishing mark, no physical features

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of the appellant communicated to the police by the PW1 and PW2.

Learned counsel opined that it is without doubt that there was no previous relationship between the PW1, PW2 and the appellant. And based on this fact, the purported identification of the appellant is replete with material doubts which ought to be resolved in favour of the appellant. The following case were further cited to buttress his submissions. They are Bozin v. The State (1985) LPELR – 799 (SC), Casesikarie v. State (2012) LPELR – 15533 (SC) and Alabi v. The State (1993) 7 NWLR (pt. 307) 511.

Learned counsel then urged the Court to resolve this issue in favour of the appellant.

Responding to the 2nd issue, learned counsel for the respondent submitted that there was proper identification of the appellant as one of those who committed armed robbery at NAO Supermarket, Akure on 11th December, 2003. Referring to the evidence of PW1 and PW2, learned counsel submitted further that based on same and the identification parade carried out at the shop before the trial of the appellant, it is beyond doubt that the appellant was properly identified as one of the robbers. Citing the case

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of Ikemson v. The State (supra) learned counsel submitted that any of the conditions laid down therein on identification would do in view of the fact that PW1 and PW2 testified that the robbers were bare-faced thus affording them the opportunity to observe and take in the faces of their attakers.

Apart from identification of the appellant by PW1 and PW2, Learned counsel submitted that the appellant identified himself in Exhibit B1 that he attacked NAO Supermarket on the night in question. Thus, by his confession he had identified himself, he opined, citing and relying yet again of the case of Ikemson v. The State (supra). He urged the Court to resolve the second issue against the appelant.

Simply put, identification is the process of showing, proving or recognizing who or what somebody or something is and in relation to a criminal trial, it more often than not, relates to the identification of an accused person or persons who took part in the commission of an offence. An accused person may be identified directly either by the victim of the crime or by witnesses who were at the scene of crime. An accused person can also be identified by

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circumstantial evidence. For instance, where an accused person is found in possession of items stolen from a shop shortly after the shop was burgled. Moreso a person found running away from a murder scene with blood stained knife or machete may be so linked with the commission of the offence until it is proved otherwise. However, the best form of identification is the prompt one by the victim or people who saw the crime committed. See Adamu v. State (1991) 4 NWLR (Pt. 187) 530.

Now considering the proper mode of identification in matters of this nature, this Court stated clearly in Adamu v. State (supra) as follows:-

“The entire circumstances of a case determine the type of identification necessary. In some cases when there is more of suspicion rather than some concrete evidence against an accused person, an identification parade may be necessary whereby the accused person is lined up among other persons or even suspects and the victim or witness is asked to identify the culprit. But such method is not necessary if the victim of the crime or a witness thereof promptly identifies the criminal without prodding as has happened in this case.”

See

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Adamu v. State (1991) LPELR – 73 (SC) at page 9, Paragraphs C-E See also Okosi v. State (1989) 1 NWLR (pt. 100) 642, 656, Mbenu v. State (1988) 3 NWLR (pt.84) 615, 628.

In the instant case, the appellant was identified by PW1 and PW2 who were victims of the armed robbery attack. Learned counsel for the appellant had argued that in view of the epileptic nature of electricity supply in this country, the two Courts below ought to have taken judicial notice of it and hold that there was no light that night for PW1 and PW2 to have seen the robbers. The said argument, to say the least, is speculative and this Court does not act on speculation. The PW1 and PW2 said they saw the robbers including the appellant because they were not masked. In Adeyemi v. The State (1991) LPELR – 168 (SC), this Court held that where a witness who gave evidence of visual identification was not cross examined or shaken under cross-examination, nothing stops a trial judge from accepting his evidence. There is no indication that the learrned counsel for the appellant was able to shake the PW1 and PW2 under cross examination in this respect. it is too late in the day to make such submission.<br< p=””

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Both the learned counsel for the appellant and the respondent referred this Court to the principles governing proper identification as enunciated in Ikemson v. State (supra) which include the following:

“1. The description of the accused given to the police shortly after the commission of the offence.

2. The opportunity the victim had of observing the accused and
3. What features of the accused noted by the victim and communicated to the police.”

I need to emphasize that in matters of identification, the trial Court and indeed all Courts must be satisfied that the evidence of identification proves beyond reasonable doubt that the accused before the Court was the person who actually committed the offence charged. In the instant case, the learned trial judge held as follows at P.118 of the record:-

“In the case at hand, PW1 and PW2 stated unequivocally, their ability to identify the 2 accused persons when they were brought to their shop by the police.

This piece of evidence was also corroborated by the evidence of PW3 who under oath testified that the accused persons were taken to the shop where they demonstrated to the team the parts

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they took during the robbery incidence and that the 1st accused person was caught wearing one of the wrist watches tendered as Exhibit P3”

The learned trial Judge went further to state on page 116 of the record on issue of identification that:

“it is uncontroverted and unchallenged evidence of PW1 and PW2 that on the night of the alleged robbery, they were able to identify the robbers. They were able to identify the robbers because they were not masked as their faces were opened and they saw their faces when they rushed in”

The evidence of identity of the appellant was described by the learned trial judge as “uncontroverted” and “unchallenged”. Since the appellant did not challenge the evidence at the trial Court, he is deemed to have admitted the said evidence. Identification depends on the mental ability and perception of individuals. The fact that Mr. A cannot recognize somebody he saw together with Mr. B, does not mean that Mr. B cannot also recognize the said person. Their mental ability and perception are not the same. See Adeyemi v. State (1991) 2 NWLR (pt. 170) 679.

Although the PW1 and PW2 clearly identified the appellant as the armed robbers who attacked them at NAO

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Supermarket in the night of 11th December, 2003, there was indeed no need for any identification parade. The reason is that the appellant in his statement to the police – Exhibit B1 had identified himself when he said:

“… I have not gone out to rob with Ola, John and Majata (m) before now unless one at the NAO Supermarket on that day, Majata (m) gave me one women wrist watch”

As was held in Adeyemi v. State (supra), it is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. An accused person who has made a confessional statement which is accepted by the Court has indeed identified himself. To talk about any further identification is, to say the least, superfluous. It is my view that the Court below was right when it held that the learned trial judge was on a strong wicket that the appellant was properly identified as one of the robbers who struck at NAO Supermarket Akure on the night of 11th December, 2003. Accordingly, this issue does not avail the appellant. Issue 2 is thus resolved against the appellant.

The third issue is whether the Court below was correct to have held that the prosecution proved the case of armed robbery against the appellant beyond reasonable doubt.

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In his argument the learned counsel for the appellant reiterated and repeated his earlier arguments on the confessional statement of the appellant. He strongly urges that the Courts below ought not to have relied on the said statement to convict the appellant.

The other submission relates to the decision of the trial Court on page 119 of the record which, inter- alia states:

“The oral testimony of the 2nd accused person on the circumstances leading to their arrest contrary to their confessional statements is not convincing to this Court ….. Outside these testimonies, both accused persons did not call any other witness to corroborate, confirm or affirm their testimonies in this regard.”

Based on the above finding of the learned trial judge, learned counsel submitted on Paragraph 13:10 of their brief that the Court placed on the appellant the burden of proving his innocence, contrary to the provision of Section 36 (5) of the Constitution of the Federal Republic of Nigeria (as amended). He then went ahead to cite the cases of the State v. Isiaka (2013) LPELR – 20521 (SC), STATE V. OGBUBUNJI

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(2001) LPELR – 3223 (SC) and Alabi v. The State (supra). He then urged the Court to resolve the issue in favour of the appellant.

Learned counsel for the respondent submitted that the learned justices of the Court of Appeal were right in holding that the prosecution proved its case beyond reasonable doubt. He further submitted that Exhibit B1 which was admitted in evidence is part of the case of the prosecution and the Court is bound to consider its probative value. Learned counsel argued further that the evidence of PW1 and PW2 which rightly corroborate Exhibit B1 shows that the learned trial judge properly and rightly placed evidential weight on Exhibit B1 in holding that the offence of armed robbery against the appellant was proved beyond reasonable doubt. Moreso, that the evidence of PW1 and PW2 were never challenged or controverted and as such the two Courts below were right to rely on them, relying on Omeregbe v. Lawani (1980) 3 – 4 (REPRINT) 70 AT 76. He urged the Court to resolve this issue against the appellant.

Let me state categorically that in criminal proceedings, the onus is always on the prosecution to establish the guilt of the accused

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beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidience. See Sebastian S. Yongo & Anor v. COP (1992) LPELR 3528 (SC), (1992) 4 SCNJ 113, Uche Williams v. The State (1992) LPELR- 3492 (SC), (1992) 10 SCNJ, 74, Babuga v. The State (1996) 7 NWLR (Pt. 460) 279 Onubogu v. The State (1974) 9 SC 1 at 40

In order to succeed in a charge of armed robbery as in this case, the prosecution must prove beyond reasonable doubt the following ingredient:

1. That there was robbery or a series of robberies.
2. That each robbery was an armed robbery, and
3. That the appellant ( accused) was the robber or one of those who took part in the armed robbery.

It is to be noted that all the above ingredients must be proved beyond reasonable doubt before a conviction can be sustained. See Ogudo v. The State (2011) LPELR- 860 (SC, Bozin v. The State (1985) 2 NWLR (Pt. 8) 465, The State v. Olashehu Salawu (2011) LPELR -8252 (SC), Amina v. State (1990) 6 NWLR (pt. 155) 125.

In the instant case, the appellant’s counsel repeated his

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argument in issue 1 in respect of the confessional statement of the appellant. Both the learned trial judge and the Court of Appeal upheld the said statement i.e Exhibit B1 as the confessional statement of the appellant. I had earlier in this judgment put a stamp of finality on the said statement as a voluntary confessional statement of the appellant. In the said statement, the appellant admitted committing the offence. I do not think it is necessary to repeat the exercise here.

The other argument relates to the view of the trial Court that the oral testimony of the appellant in connection with his arrest was contrary to his confessional statement. Contrary to the argument of learned counsel for the appellant, the position taken by the trial Court did not in my opinion amount to placing the burden of proof on the appellant. Far from it. Therefore, the argument on the issue is of no moment.

Now, considering the evidence led against the appellant in this case, much have been said in issue one relating to the uncontradicted and uncontroverted evidence of PW1 and PW2 that armed robbery took place at NAO Supermarket, Akure on 11th December, 2003 at

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about 9.00pm. The items and cash stolen are well documented. The appellant made a confessional statement in which he affirmed that he took part in the robbery as I had earlier reproduced in this judgment. Again, he stated that he saw a gun used. PW1 and PW2 also said they saw a gun. Issue of identification of the appellant came up in issue 2 which I had just addressed. All these evidence point irresistibly to the fact that the prosecution proved its case against the appellant beyond reasonable doubt.

The Court below in its judgment stated the position as follows:-

“With the confession of the appellant as contained in Exhibit B1, added to the testimonies of the PW1, PW2, PW3 and PW4, it cannot be removed from the prosecution the fact that the prosecution has indeed proved the necessary ingredients of the offence of armed robbery against the appellant” (See page 223 of the record)

Just as the two Court below, I have no doubt in my mind at all that the prosecution proved the case of armed robbery against the appellant beyond reasonable doubt. Accordingly, issue 3 does not avail the appellant and is thus resolved against him.

On the whole,

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having resolved the three issues against the appellant, all that remains to be said is that there is no merit in this appeal and is accordingly dismissed. I affirm the judgment of the Court of Appeal delivered on 25th June, 2014 which upheld the conviction and sentence of the appellant to death for the offence of armed robbery by the High Court of Ondo State.

Appeal dismissed.

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SC.524/2014