Sunday Abiodun V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment of Ogun State High Court of Justice, Ijebu-Ode judicial division, delivered by Ogunsanya, J. on 23rd December, 2009. The appellant and two others were arraigned before the High Court of Justice Ogun State and tried on a two counts charge of conspiracy to commit Armed Robbery and Armed Robbery contrary to section 6(b) and 1 (2) (a) of the Robbery and Firearms (Special provisions) Act Cap. R.11 Laws of the Federation of Nigeria, 2004.

The case for the prosecution at the trial court was that on 7/5/2007 at about 9.30 p.m., the PW1, who was the managing Director of FAO Construct Petroleum at Ilese, Ijebu-Ode closed for the day at the filling station. He took the day’s proceed the sum of three hundred and fifty seven thousand one hundred and fifty naira (N357,150) in his car with one of his staff. While driving along the road, he saw a motorcycle with three men coming behind his vehicle. The motorcycle overtook his car and blocked his vehicle in the front. The three men rushed down from the motorcycle, attacked him, gave him serious beating, injured him with a broken bottle and went away with the money and two mobile phones in the vehicle.

His staff that was in the vehicle with him was able to escape, He was later assisted by two people around, who also pursued the robbers without success. They returned to the scene of the crime where (PW1’s) brother Leke Osiyemi informed him that he saw the 1st accused person around the filling station that day. The case was thereafter reported to the police. The Police arrested the first accused person and upon his arrest he confessed and mentioned the name of the Appellant as one of the armed robbers. This resulted to the arrest of the Appellant who also confessed to the crime and stated the role he played before and after the robbery incident.

Following the arrest, the Appellant and two others were arraigned and tried on a two counts charge of conspiracy to commit Armed Robbery and Armed Robbery contrary to section 6(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation of Nigeria, 2004. At the trial prosecution called two witnesses and tendered nine exhibits. The appellant being the 3rd accused gave evidence in his own defence and denied the charge, and objected to the admissibility of his statement dated 12/5/2007.

The statement was later admitted as exhibit H after a trial within trial was conducted. In a well considered Judgment the learned trial Judge convicted the appellant and two others for the offences they were charged and sentenced them to death.

The appellant who was the 3rd accused being dissatisfied with judgment consequently appealed to this court against his conviction vide his Notice of Appeal dated 30th December, 2009. On 4th October, 2010 leave was granted to the appellant by this court to amend his notice of appeal and same was deemed amended on 23rd June, 2010 having been duly filed. The amended notice of appeal contained 4 (four) grounds of appeal.

In accordance with the Practice of this court parties exchanged briefs of arguments. Appellant’s brief filed on 28/10/2010 was deemed properly filed and served on 20/01/2011. While the respondent’s brief of argument filed on 20/6/2011 was deemed properly filed and served on 21/6/2011. At the hearing of the appeal Appellant’s counsel adopted the appellant’s brief of argument and urged the court to allow the appeal and set aside the conviction and sentence ordered by the trial court. Respondent’s counsel similarly adopted the respondent’s brief and urged the court to affirm the decision of the lower court.

The Appellant formulated two issues for determination in this appeal as follows:-

i. Whether the trial court was right in admitting Exhibit H (the alleged confessional statement of the appellant) in evidence and/or attaching any or much weight to the said exhibit H and convicting the appellant based on the said exhibit H?

ii. Whether the respondent proved the offences of conspiracy to commit armed robbery and robbery against the appellant beyond reasonable doubt?

Respondent on its part adopted the two issues raised by the appellant with slight modifications, The two issues read thus:-

1. Whether the trial court was right in admitting exhibit H (the confessional statement of the appellant) in evidence and attaching evidential weight to it and using same in convicting the Appellant.
2. Whether the respondent proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt.

In determining this appeal I will adopt the two issues formulated by the appellant. As earlier noted the respondent adopted appellant’s issues with slight modifications.

Issue No.1 is distilled from ground two of the Notice of Appeal. Exhibit H is the alleged confessional statement made by the appellant at Atan Police Station, Ijebu-Ode. See: pages 33 to 38 of the record. The alleged confessional statement was tendered in evidence by the prosecution through PW2, the Investigating Police Officer attached to Area Command, Ijebu-Ode who investigated the case against the appellant. The contention of the appellant is that exhibit H ought not to have been admitted by the trial court as same was obtained under duress. The Appellant denied making the statement when he testified in the trial within trial conducted by the trial court. That the appellant who is not literate in English language volunteered a statement in Yoruba language yet his statement which was not read over to him was recorded in English language. Tha this alone is enough to put the trial court on the alert regarding the weight to be attached to Exhibit H after it had been wrongly admitted. The trial court in admitting Exhibit H in evidence as having been made voluntarily relied on inter-alia with the regularity of the signature on the said Exhibit H and the fact that there was no blood stain on the document. It was contended that it is unrealistic to expect to see blood stains on Exhibit H.