Tajudeen Adisa V The State (2017)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKAAHS, JSC
The appellant and his co-accused were tried for conspiracy to commit armed robbery and armed robbery and they were sentenced to death for the said offences by the Ogun State High Court. They appealed against their conviction and sentence to the Court of Appeal, Ibadan. The court held that the prosecution proved the first ingredient of the offence namely that there was a robbery. In considering the second ingredient – whether the robbery was armed robbery – the court said at page 198: –
“As has thus been seen the use of cutlass and axe permeates the evidence not only of PW2 and PW3 but also the confessional statement of 1st appellant. I think that it will be right to say that whoever the robbers were, they were armed”.
Despite this finding the Court finally held that since the prosecution failed to tender the cutlass and the axe which were allegedly used in the armed robbery operation and no explanation was supplied for the failure to tender them, the armed robbery was not proved. On this basis the lower court set aside the conviction and sentence to death of the appellants for conspiracy and armed robbery but found them guilty of conspiracy and robbery simpler and sentenced them to 21 years’ imprisonment each without option of fine on each of the counts. The court ordered that the sentences should run concurrently.
The appellant appealed on 5 grounds to the Supreme Court. Issue (iii) in the appellant’s brief was distilled from grounds 2 and 4 of the Notice of Appeal and it reads: –
Whether the Court of Appeal was right when, although it set aside the conviction by the trial court, of the appellant for the offences of conspiracy to commit armed robbery and armed robbery and thereupon quashed the sentences of death passed by the said court; yet it found the appellant guilty of conspiracy to commit robbery and robbery in the absence of cogent, credible and sufficient evidence before it which proved that in fact, there had been a robbery and/or that, if there had indeed been a robbery, the appellant was involved in same? (Distilled from Grounds 2 and 4 of the Notice of Appeal).
In his brief of argument, learned counsel for the appellant submitted that it is the fixed position of the law that the standard of proof required to convict an accused person of a crime is proof beyond reasonable doubt and there is a presumption of innocence encapsulated in section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria 1999 and section 138 of the Evidence Act 2011. He argued that in the instant case, the Court of Appeal in one breadth found that the prosecution had proved each of the elements of armed robbery beyond reasonable doubt but in another breadth held that the prosecution had not proved armed robbery beyond reasonable doubt because the alleged offensive weapons used for the alleged robbery were not tendered in evidence by the prosecution.
Learned counsel contended that since the reasoning of the lower court that the appellants took the plea based on the charge read to them which was to the effect that they carried out the armed robbery with offensive weapons to wit cutlass and axe and the prosecution failed to tender the said weapons and no explanation was forthcoming for the failure to tender them, the inevitable conclusion to be reached is that the prosecution failed to establish the charge of armed robbery.
Learned counsel disagreed with the finding made by the lower court that the evidence disclosed the offence of robbery and that the appellants committed the offence.
Learned counsel for the respondent argued that the principal issue in the appeal is whether the evidence on record justifies the lower court’s conviction of the appellant. He submitted that a court may convict an accused person solely on the basis of his confession, even if that statement is retracted. All that is needed is for the trial court to ascertain the probative value of the confessional statement by subjecting it to the tests laid down in R v. Sykes (1913) 8 Cr. App. Report 233 which was adopted in R v. Kanu (1952/1955) 14 WACA 30.
The lower court was no doubt ambivalent when it held after evaluating the evidence of PW1, PW3 and the statement of the 1st appellant which was admitted as Exhibit A that the prosecution had undoubtedly proved beyond reasonable doubt that there was a robbery and the robbers were armed (See
page 198 of the records). When this finding is juxtaposed with its consideration of the failure to tender the cutlass and the axe allegedly used during the robbery and not offering any explanation/the conclusion would be the prosecution did not discharge its burden of proving that there was an armed robbery beyond reasonable doubt even where the accused had in his statement to the police admitted committing the offence and relied on Aigbadion v. State (2000) 7 NWLR (Pt. 666) 680.
The law is settled beyond peradventure that a court may convict an accused person solely on the basis of his confession even when he has retracted or resiled from the confession. See: Ikemson v State (1989) 3 NWLR 9Pt. 110) 455. It is also the law that where an accused person out rightly denies making a confessional statement, the trial court should admit the statement in evidence as an exhibit and decide later whether or not such denial avails the accused. In other words, the Court should evaluate the confession, the testimony of the accused and the other pieces of evidence adduced at the trial and then decide if there is any independent or corroborative evidence no matter how slight showing that the offence was committed and it was the accused who committed it See: Onyegbu v. State (1994) 1 NWLR (Pt. 320) 328: Dele v State (2011) 1 NWLR (Pt. 1229) 508. The corroborative evidence needed to convict an accused must be evidence which confirms in some material particulars not only that the crime has been committed but also that it was the appellant who committed it. See: Mbele v. State (1990) 4 NWLR (Pt. 145) 484.
In his evidence, Sgt Paul Kyauta who testified as PW4 stated that he and late Sgt. Rafiu Oyewo obtained the voluntary statements of 1st and 2nd accused respectively. The statements were confessional in nature so he took the accused persons and their statements before a Superior Police Officer for endorsement. The said statements were tendered and admitted in evidence without objection as exhibits A and B.
In his evaluation of the evidence adduced at the trial in relation to the involvement of the accused persons in the robbery, the learned trial Judge stated at pages 56-57 of the records: –
“In addition to the evidence of identification the prosecution also relied on the confessional statements of the accused, exhibits A and B, both of which were admitted without objection. ……………………… The 2nd accused on his part acknowledge his signature on exhibit B but said it was recorded by a police officer. The duty of the court when considering the confessional statement of an accused has been well defined in the authorities See: Shande v. State (2005) 22 NSCQR 756; Solola v. State (2005) 22 NSCQR (Pt 1) 254. It is also settled law that a confession which the court adjudged free and voluntary, properly tendered and admitted in evidence could ground a conviction.
To ascertain the probative value of a confession, the court must subject it to the tests laid down in judicial authorities. See: Idowu v. State 3 NSCQR 96; Alarabe v. State (2001) 5 NWLR (Pt 705} 79 at 98-99. These tests are: –
1.Whether there is anything outside the confession to show that it is true.
2.Whether the statement is corroborated.
3.Whether the facts contained therein so far as can be tested are true.
4.Whether the accused had the opportunity of committing the crime.
5.Whether the confession of the accused was possible
6.Whether the confession was consistent with other facts which have been ascertained and proved in the matter.
I have considered the confessional statements, the oral evidence of the prosecution and the accused persons. The 1st accused is his friend and that they have a mutual friend named Segun who invited them to come and rob one ‘Alhaja’ at Ijebu-lgbo. He stated further that they collected N40,000.00 from Alhaja’s children and two handsets. The prosecution evidence shows that the mother of PW1 and PW3 is Alhaja and the articles stolen from the complainants included handsets. There is evidence from the PWs that the robbers did not take money from Alhaja on account of her age. The 1st accused confirmed this in exhibit A and said Alhaja prayed for Segun for this. In exhibit A the 1st accused said he received the sum of N12,000.00 as his share of the loot. In his testimony in court he confirmed that at the time of his arrest, the OPC man found about N12,000.00 on him which he claimed to have brought from Lagos. The 1st accused in exhibit A said he took the police to Lagos to arrest the 2nd accused which fact the 2nd accused confirmed in exhibit B. The 2nd accused in exhibit B confirmed all the material facts stated by the 1st accused in exhibit A especially how one Segun counselled them to embark on the nefarious venture, details of the robbery operation, the sharing of the loot at dawn, the arrest of the f accused and the temporary escape of the 2nd accused at Oru. In the light of the above, I entertain no doubt that exhibits A and B are the true confessional statements of the accused persons. The statements are true, both accused are persons who had the opportunity of committing the offence and the statements therein are consistent with other facts in Court he confirmed that at the time of his arrest, the OPC men found about N12,000.00 on him which he claimed to have brought from Lagos. The 1st accused in exhibit A said he took the police to Lagos to arrest the 2nd accused which fact the 2nd accused confirmed in exhibit B. The 2 accused in exhibit B confirmed all the material facts stated by the 1st accused in exhibit A especially how one Segun counselled them to embark on the nefarious venture, details of the robbery operation, the sharing of the loot at dawn, the arrest of the 1st accused and the temporary escape of the 2nd accused at Oru. In the light of the above, I entertain no doubt that exhibits A and B are the true confessional statements of the accused persons. The statements are true, both accused are persons who had the opportunity of committing the offence and the statements therein are consistent with other facts established in this case”.
The court below also evaluated the evidence and found that robbery was proved beyond reasonable doubt as contained in the evidence of PW1, PW3 and exhibit A where the 1st appellant said: –
“We did not collect money from Alhaja but we only collected N40,000.00 from: Alhaja’s children and two handset”
Although the lower court stated that the use of cutlass and axe permeated the evidence not only of PW2 and PW3 but the confessional statement of 1st appellant and concluded that the robbers were armed, nevertheless turned round to hold at page 205 of the records that armed robbery was not proved beyond reasonable doubt because the prosecution failed to tender the cutlass and axe. Learned counsel for the appellant pointed to this anomaly to submit that the prosecution failed to establish the charge of armed robbery beyond reasonable doubt in this case.
The learned trial Judge was painstaking in the evaluation of the evidence adduced. He considered the evidence put forward by the accused which was a denial of the charges they were facing. He analysed their evidence and this is what he said at page 57 of the records: –
“The attempt by the 1st accused to exculpate himself fell flat when his evidence is considered alongside his extra-judicial statement – exhibit A. He told the court that when the police took him on investigation to Lagos, one man along Falomo Road, banged the police vehicle with his hand. This infuriated the police officers and pronto, the man was arrested and bundled into the car and driven to Ijebu-Igbo. That unlucky innocent man is the 2nd accused! This was also the thrust of the defence of the 2nd accused in his oral evidence in court. Talk of a fairy tale and you will not be wrong. Exhibits A and B reveal that the 2nd accused who had by some strange element of luck, escaped detection by the OPC men who arrested the 1st accused, was later picked by the police when the 1st accused led them to effect his (2nd accused’s) arrest. The defence put up by the accused is not only a subterfuge designed to mislead and confuse the court. I reject defence in its entirety”.
This is a finding made by the trial Judge who is in the vantage position of assessing the credibility of the witnesses in the trial by watching their demeanour and from that vantage position has the privilege of believing and accepting the evidence of the witness in preference to the evidence adduced by the defence. See: Adelumo v. State (1988) 1 NWLR (Pt.73) 683 and Sugh v. State (1988) 2 NWLR (Pt. 77) 478. Any finding of a court based on facts cannot and will not be interfered with by an appellate court unless the finding is perverse and is not supported by credible evidence. See: Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) 659; Nwokorobia v. Nwogu (2009) 10 NWLR (Pt. 1150) 553. In the instant appeal the learned trial Judge meticulously and studiously evaluated the evidence adduced at the trial and arrived at the right decision. Arriving at a contrary decision would have led to a miscarriage of justice. It is little wonder that the lower court still reached the same conclusion that the appellants were guilty of the robbery despite the ambivalence it showed in deciding whether the offence of armed robbery was proved or not.
The lower court was cautious in endorsing the finding by the trial court that the offence committed by the appellants was armed robbery because the sentence to be imposed is the death sentence. Having made a finding at page 198 of the record that the robbers were armed and going further to say that the appellants were identified by PW1; PW2 and PW3 as robbers, there is no way the appellants would have escaped the conviction for armed robbery. The lower court however returned a verdict of the appellants being guilty of robbery and sentenced them to 21 years’ imprisonment on each of the counts to run concurrently. The respondent did not cross-appeal against sentence and there is nothing this court can do about it.
There are concurrent findings of fact made by the two lower courts that the robbery was committed by the appellants. This court should be loath to interfere with those findings unless the appellant can show that the findings are perverse.
Learned counsel for the appellant has argued that there are material inconsistencies in the evidence of PW1, PW2 and PW3; that it will be a travesty of justice to rely on their evidence and that there was no proper identification nor was there sufficient evidence to corroborate the appellant’s confessional statement, exhibit B. It was further argued that the confessional statement of the co-accused in exhibit A cannot corroborate the appellant’s confessional statement exhibit B.
It is trite that an appellate court will set aside a lower court’s judgment on the ground that there are contradictions only when such contradictions are material contradictions See: Archibong v. State (2006) 14 NWLR (Pt. 1000) 349. The mention by PW1 that he was robbed by two men who were armed with an axe and cutlass but later stating that he could identify the appellant and his co-accused as being among the 3 men who attacked him or PW2 stating that she was the one who led the robbers to Alhaja’s room cannot qualify as such material contradictions that should lead to the setting aside of the lower court’s judgement. The evidence that will qualify as material contradiction is the evidence that will cast reasonable doubt as to the guilt of the accused. See: Nwabueze v. State (1988) 4 NWLR (Pt. 86) 16. The learned trial Judge considered the complaint of the inconsistencies in the evidence of PW1, PW2 and PW3 and rejected same when he said at page 57: –
“The main complaint of the defence is that the PW1, PW2 and PW3 gave contradictory evidence as to where the armed robbers locked them up at the end of the siege. While the PW1 said they were locked up in his room, the PW2 and PW3 said they were locked up inside Alhaja’s room. This is not the type of contradiction that could vitiate a conviction as it is not material for the prosecution’s case”.
The lower court also considered the issue of contradictions in the evidence of prosecution witnesses as to where they were locked up by the armed robbers also reached the same conclusion as the trial court that the contradictions were not material. The concurrent findings by the two lower courts cannot be disturbed.
Since the two lower courts found that there were no material inconsistencies in the evidence of PW1, PW2 and PW3, their evidence corroborates the confessional statements in exhibit A and B. Exhibit A also corroborated exhibit B because the arrest of the 1st accused facilitated the arrest of the appellant who made exhibit B. As the learned trial Judge said at pages 56-57 of the records: –
“The 1st accused stated in exhibit A that the 2nd accused is his friend and that they have a mutual friend named Segun who invited them to come and rob one Alhaja at Ijebu-lgbo. The 1st accused in exhibit A said he took the police to Lagos to arrest the 2nd accused which fact the 2 accused confirmed in exhibit B”.
In exhibit B, the appellant stated thus: –
“I also know one Segun. He is a truck pusher at Law School area. On 31/8/2003 at about 6 p.m. Segun came to call me and Ola and he told us that we will followed (sic) him to Ijebu-lgbo to rob people and I and Aribigbola agreed to follow him to go to Ijebu-Igbo for the robbery operation………… I have to state that we arrived at Ijebu-Igbo around 10pm in the night and he took us to a school compound where we hid ourselves till around 1.30 am before Segun took us to the house where we operated. When we got to the house I stay (sic) outside the house watching if police or vigilante men will be coming and I was not holding anything. Segun and Aribigbola were the people that entered into the house by climbing the fence before jumping into the compound…………………………. They later show me two handsets and sum of N40,000.00 being the money they realize from the operation. After the operation Segun took us to a market place where we hid ourselves till 5 pm when Segun took us to an uncompleted building in the area where our loot was shared and sum of N9,000.00 was giving to me as my own share of the loot while N12,000.00 was giving to Aribigbola and Segun went away with the remaining money together with the two handsets. On our way going back to Lagos inside a commercial bus, men of the OPC at Oru-Ijebu stopped our vehicle and searched our body having dropped us from the vehicle. They found some charms with Aribigbola and the sum of N9,000.00 was found with me and they allowed me to go while they detained Aribigbola behind at Oru-ljebu. It was on 9/9/2003 when I was still in my shop that I saw Aribigbola and some police men and I was arrested by the police and taking to Ijebu-Igbo Police Station where I volunteer this statement…………….”
The appellant made a clean breast of his participation in the robbery and his statement corroborated the statement in exhibit “A”. He accepted that it was the 1st accused who led the police to arrest him in Lagos after he had narrowly escaped arrest by the OPC.
It is little wonder that the learned trial Judge after listening to the oral evidence of the defence described it as a fairy tale which he rejected. Consequently, the learned trial Judge found the accused guilty of the charge and sentenced them to death for armed robbery and conspiracy to commit armed robbery which the lower court commuted to 21 years’ imprisonment for robbery simpliciter.
I wish to observe that the court below proceeded on a wrong premise to hold that since the offensive weapons the appellants used in carrying out the robbery and the handsets taken during the robbery operation were not tendered and no explanation was given for not tendering them, armed robbery
was not proved. It is not possible for a court to give probative value to the evidence of PW1, PW2 and PW3 (who were the victims of the robbery and the statement of the accused who admitted using offensive weapons in a robbery operation and turn round later to hold that the offence committed is not armed robbery simply because the offensive weapons were not tendered. While conceding that if weapons allegedly used in a robbery operation are tendered in evidence, this will make the prosecution’s case watertight but it is not sine qua non to proving armed robbery and the law still remains that if there are other pieces of evidence on which the Court can rely to convict for the offence charged, the conviction will not be set aside See: Fata Olayinka v. State (2007) 9 NWLR (Pt. 1040) 561. The same principle applies with identification parade. If the accused can be identified by some means other than through an identification parade, his conviction should not be set aside simply because an identification was not carried out. See: Bassey Akpan Archibong v. State (2004) 1 NWLR (Pt. 855) 488: Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501.
The last observation I wish to make about this case which was made by Karibi-Whyte JSC in Okosun v. Bendel State (1985) 3 NWLR (Pt. 12) 283 at 295-296 is that: –
“The penal policy of the 1970s, still current, which was heralded by the promulgation of the Robbery and Firearms (Special Provisions) Decree 1970, was designed to stem the increasing wave of offence of armed robbery which was the logical aftermath of the social disorganization brought about by the civil war in this country of 1967 – 1970. Hence the increased penalties for armed robbery to replace the robbery provisions in the Criminal and Penal Codes.”
See: Section 1 (1), (2) (a & b) of the 1970 Decree and Section 3A of the Robbery and Firearms (Special Provisions) Amendment Decree 1971. In the 1970 Decree, robbery simpliciter is punishable by 21 years’ imprisonment, and robbery accompanied by firearms or any offensive weapons or persons accompanying persons committing robbery with firearms or offensive weapons, or wounding or using violence in robbery is punishable by death. By the 1971 amendment armed robbers and persons who accompany them in the commission of the offence, and those who conspire with others to commit the offence are, on conviction, punishable with death.
The current trend is to recommend to the Governor to exercise the prerogative of mercy and commute the death sentence passed on a convict for armed robbery where the evidence does not reveal that actual violence was visited on the victim of the robbery as there have been instances of toy guns being used to instil fear on the victims of the robbery in order to facilitate the robbery operation. The instant appeal would have qualified for the exercise of prerogative of mercy if the court below had not found robbery simpliciter was proved and not armed robbery.
The appeal lacks merit and it is accordingly dismissed. The conviction for robbery and the sentence of 21 years passed on the appellant on each of count of conspiracy to commit robbery and the offence of robbery which sentences are to run concurrently are hereby affirmed. For the avoidance of doubt the said sentences passed on the appellant are to take effect from 9 September 2003, the date he was arrested before trial commenced.
SC. 754/2013