Tajudeen Fabiyi V The State (2015)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Benin Division affirming the conviction and sentence of the appellant and three others by the Edo State High Court for Conspiracy and Armed Robbery punishable under Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 of the laws of the Federation 1990, committed on or about 30th day of November, 1996 at Benin City within the trial court’s jurisdiction. The team had conspired and robbed one Donatus Osigwe of the sum of N164,000.00 while armed with knives and other offensive weapons.
The respondent called five witnesses to make out its case at the trial court. PW1, had reported to the police that his son, the 1st accused, had stolen the sum of N190,000.00 from his shop in Benin City on 16/11/96 and, in company of others, robbed the next shop to his on 30-11-96. 1st accused on his arrest, volunteered a statement which led to the arrest of the others including the appellant herein. He also identified the appellant to PW1 and PW5 as a member of his gang that robbed PW2’s shop of the sum of N164,000.00. PW3, Ifeanyi Chukwu Eze, was in his father’s shop, No 12A Mission Road Benin City, when the robbery gang struck on 30-11-96 around 10pm. 1st accused, PW3’s brother, PW3 told the trial court, emerged and accosted another brother of theirs, Chidebere Eze, and one Clifford Umorji from the next store, demanding money from them. Along with four others of his gang, the 1st accused proceeded with Clifford to PW2’s store where, according to PW4, they carted away the sum of N130,000.00.
The statements of the five man robbery gang, on being arrested, were recorded by PW5 through whom the statements were tendered and admitted in evidence without objection. Exhibit “D”, which turned out to be confessional, is appellant’s own statement. 1st accused died in prison before the commencement of the trial and conviction of his gang including the appellant at the trial court.
Appellant testified in his own defence. He denied being a member of the robbery gang and or having participated in the particular armed robbery. In his evidence at trial, he told the court that he was tortured and forced to sign Exhibit “D”.
At the end of trial and addresses of counsel, the trial court in a considered judgment, having found that the respondent had proved its case beyond reasonable doubt, convicted and sentenced the four accused persons accordingly. Dissatisfied, the appellant appealed to the Court of Appeal, Benin Division, hereinafter referred to as the lower court, whereat in dismissing the appeal, the court affirmed the trial court’s decision.
Still aggrieved, the appellant further appealed to this Court on a Notice filed on 7th July, 2008 containing four grounds against the lower court’s judgment delivered on 13th December, 2004.
At the hearing of the appeal, parties adopted and relied on their briefs, including appellant’s reply brief, which had earlier been filed and exchanged, as their respective arguments for and against the appeal. Having abandoned the Notice of Preliminary Objection filed against the appeal as well as arguments in respect of same by learned counsel to the respondent, the processes were accordingly struck out.
The four issues distilled by the appellant from his four grounds of appeal for the determination of the appeal read:-
“(i) Whether the issue of the identity of the Appellant and the co-accused persons raised on the Appeal before the Court of Appeal did not arise from the proceedings and Judgment of the Trial Court (Court of first instance) and as such could not be raised and argued on Appeal without leave first had and obtained
(ii) Whether the Learned Justices of the Court of Appeal did not err in law and occasion serious miscarriage of justice when they failed to discharge and acquit the Appellant of the offence of Conspiracy to Commit Armed Robbery and Armed Robbery by reasoning thus as follows:
‘On the issue of identification parade not having been conducted by the Police when the Appellant was not identified by the prosecution witness, it is said somewhere in his judgment that the identity of the Appellants was never made an issue before the trial Court. This is what the trial Judge said in judgment.
‘… The 1st Accused now deceased did not testify but before the trial, it was he who identified the accused person with whom he said he sent (sic) for the robbery. This led to the arrest of the accused persons who were not identified by any of the prosecution witnesses except PW1 who claimed he went with Police and 1st Accused to apprehend them…’
This simply means that PW1 who went with the deceased to arrest the Appellants, along with Police identified the Appellants as those implicated by Monday Eze (deceased) they cannot recognize the other four persons. They were identified by Monday Eze their gang leader and PW1 with whom the arrest was made, PW3 and PW4 did not know them before so why the need for identification parade, identification parade will be necessary if and only if there is doubt in the mind of the witnesses as to whether it was the accused persons or somebody else who committed the offence. No such doubt has been created in the present case.’
(iii) Whether the Learned Justices of the Court of Appeal did not err in law and occasion serious miscarriage of justice when they held that the Prosecution proved beyond reasonable doubt, the two count Charge of conspiracy to commit armed robbery and armed robbery, being the case of the Prosecution against the Appellant and other Accused Persons
(iv) Whether the Court of Appeal did not err in law and occasion serious miscarriage of justice when it reasoned as follows:
‘In the present case the Learned Trial Judge carefully tested the Confessional Statements of the Appellants with the Evidence adduced by the Prosecution Witnesses and found their Confessional Statements to be direct and positive on the commission of offence. I have also considered the Appellants’ Confessional Statements Exhibits A-D, the Evidence of PW1, 3 and 4 appears to corroborate the confessional statements and from the statements of facts made therein, the confession of the Appellants is quite probable.”
The two issues the respondent formulated at page 6 of its brief as arising for the determination of the appeal are:-
“(i) Whether the lower court committed an error and the error occasioned a serious miscarriage of justice when it held that the identity of the appellant as one of the robbers was not raised as an issue before the trial court and could not therefore be raised before them without leave. (ground 1).
(ii) Whether on the evidence of the prosecution witnesses and the confessional statements of the appellant and his co-accused the lower court was in error in not discharging and acquitting the appellant for the offences of conspiracy to commit armed robbery and armed robbery. (grounds 2, 3 and 4).”
The issues distilled by the appellant, it is observed, are not only verbose and inelegant but also inappropriate. For the determination of the appeal, respondent’s two issues which subsume appellant’s issues and more pointedly define the latter’s grudges are hereby preferred. Resolving the appeal within the purview of respondent’s issues will thus be undertaken.
Appellant’s principal complaint pertains the concurrent findings of the lower courts on his guilt inspite of respondent’s failure to prove his participation in the commission of the offences beyond reasonable doubt as required by law. An answer to the question whether or not the lower court’s decision is sustainable on the basis of the evidence on record will, therefore, suffice. The subsidiary issue as to whether the lower court is right in its affirmation of the trial court’s reliance on appellant’s confessional statement, Exhibit “D”, to convict him, will be considered as well. The resolve to determine the appeal in this perspective draws from the grounds in appellant’s Notice of appeal.
Whereas appellant’s 1st issue is argued on its own, the remaining three issues are jointly argued in the appellant’s briefs. Appellant’s arguments in respect of his 1st issue will therefore be viewed against respondent’s 1st issue while the Appellant’s joint arguments in respect of his 2nd, 3rd and 4th issues will be considered under respondent’s 2nd issue.
In arguing the appeal, learned appellant counsel refers to the finding of the lower court at page 125 lines 14 – 15 of the record and contends that the finding is perverse. It cannot be right, it is argued, for the court to hold that the identity of the appellant was never an issue at the trial court and having been raised for the first time at the lower court, it was incompetent.
The trial court, at page 73 lines 23 to 27 of the record, submits learned appellant counsel, has found as a fact that five men were involved in the commission of the offences. The participation of the appellant in the commission of the offences, it is further submitted, remains an issue for determination all through his trial. The appellant who was never arrested or identified at the scene of crime and has not been connected by any piece of evidence to the commission of the offences, it is argued, cannot legally be convicted. Having pleaded not guilty to the charge, it is contended, the respondent had the duty of proving its case against the appellant beyond reasonable doubt. Failure of the lower court to consider the fact that none of the witnesses called by the respondent identified the appellant as a party to the armed robbery, learned counsel further argues, remains fatal to the court’s decision. The appellant needed no leave of the lower court before he raised the issue. The lower court’s non-consideration of the issue having occasioned miscarriage of justice, concludes learned appellant’s counsel, entitles the appellant to discharge and acquittal.
On appellant’s 2nd, 3rd and 4th issues for determination, respondent’s 2nd issue, learned appellant’s counsel refers to the lower court’s correct statement of the law at page 133 of the record that where an accused person resiles from the confessional statement made by him, the law requires that the trial court ensures that corroborative evidence outside the confessional statement exists before the accused is convicted. The lower court’s affirmation of the trial court’s conviction of the appellant without ensuring that such evidence exists however, learned counsel submits, is legally indefensible. The lower court’s finding at page 137 lines 1-5 that the trial court had, at page 76 lines 14-25 of the record fulfilled this requirement, it is thus contended, is not borne out by the evidence on record. Relying on Sanmabow v. The State (1967) NMLR 314, Asimiyu Alarape v. The State (2001) FWLR (Pt 41) 1872 at 1876, Mrs. Rakiya Habu Fari v. Federal Mortgage Finance Ltd (2004) ALL FWLR (Pt 235) 27 and Isaac Gaji & 2 Ors v. Emmanuel D. Paye (2003) FWLR (Pt 163). Learned appellant counsel submits that the issues on the appeal be resolved against the respondent. He concludes by urging the court to allow the appeal.
Responding, learned respondent’s counsel submits that it is academic to dwell on the lower court’s finding that appellant was raising the issue of appellant’s identity for the first time before it and the consequence of doing so without the court’s leave. The truth is that, learned counsel submits, the court had, after all, considered and determined the issue. Learned respondent’s counsel refers to pages 127 and 133 of the record of appeal and maintains that the lower court is right to have held that an identification parade of the appellant was unnecessary since the unchallenged evidence of PW1 and PW5 had, in addition to his confessional statement, linked the appellant to the offences for which he was convicted. In any event, the appellant who did not, either at the trial court or at the lower court, raise the defence of mistaken identity cannot successfully complain that the matter was not resolved by the lower court. Relying on Gaji v. Paye (2003) 8 NWLR (Pt 823) 583 and Balogun V. Ag Ogun State (2002) 6 NWLR (Pt.763) 264 at 534. Learned respondent counsel urges that the court resolve its first issue against the appellant.
On its 2nd issue, learned counsel postulates that appellant’s other grudge revolves around the evidence the trial court relied upon to convict the appellant and the lower court’s affirmation of the findings on the basis of the evidence. It is submitted that the two courts relied on the testimonies of particularly PW1 and PW5 in addition to the confessional statement of the appellant, Exhibit “D”. The appellant’s retraction of his confession, it is contended, does not make the statement less reliable. The trial court was entitled to rely on the confession having found the evidence of PW1, PW2, PW3 and PW5 corroborative of the content of the confessional statement. Referring to the trial court’s evaluation of the evidence led by parties at pages 76-77 of the record, which exercise the lower court endorsed, and the decisions in Idowu v. The State (2000) 7 SC (Pt 11) 50 at 62-63 and Ikemson v. The State (1989) 3 NWLR (Pt 110) 455, learned respondent’s counsel urges the resolution of the issue as well as the appeal against the appellant.
The principal issue the appeal raises is a very narrow one. The appeal challenges the concurrent findings of fact by the two courts below which this Court allows only where such findings are shown to be manifestly perverse. The appeal succeeds if the appellant establishes that the findings he attacks neither draw from the evidence on record nor are in compliance with known principles of law or procedure and have also occasioned injustice. See Afolalu v. The State (2010) 5-7 SC (Pt 11) 93, Ugwuanyi v. FRN (2012) 3 SC (Pt 11) 95 and Osuagwu v. State (2013) 1-2 SC (Pt 1) 37.
It has been submitted that the lower court’s failure to determine the issue of appellant’s identity is fatal. I agree with learned appellant counsel that failure of the prosecution to establish that an accused was indeed the person who committed the offence disentitles the trial court from convicting and the appellate court from affirming such erroneous conviction. It must strongly be emphasized, however, that the identification of an accused becomes relevant only where same is an issue before the trial court. Where, therefore, the court is not confronted with the issue because, on the basis of evidence available to the court, the question has ceased to be relevant, the court will not be expected to dwell needlessly on the issue. The appellate court, in the same vein, will be right to affirm the trial court’s correct refusal to be bothered with the identity of the accused that has been established by evidence before the court.
In revisiting the principle, my lord Ariwoola JSC, in Adebayo v. State (2014) 12 NWLR (Pt.1422) 613 at 639-640 stated thus:-
“It is also settled law that an identification parade is very essential and useful whenever there is doubt as to the ability of a victim to recognize the suspect who participated in carrying out the crime or where the identity of the said suspect or accused person is in dispute. However, where there is certainty or no dispute as to the identity of the perpetrator of a crime, there will be no need for an identification parade to further identify the offender. See; R v. Turnbull (1976) 3 All ER 549, or (1977) QB 224 at 228 – 231; P. Ikemson v. State (1989) 1 CLRN 1, (1989) 3 NWLR (Pt.110) 455.” (Underlining supplied for emphasis).
See also Akeem Agboola v. The State (2013) 5 SCNJ 683 at 701-702.
In the instant case, it is on record that appellant’s arrest was effected following his being identified by the 1st Accused to PW1, and PW5. The latter, Police Investigating Officer, is emphatic on the point. Appellant’s link with the offences he has been convicted for, given the further evidence in Exhibit “D”, his confessional statement, ceases to be in doubt. These facts remained uncontroverted and fatal to appellant’s case.
My perusal of the entire record of this appeal vindicates the lower court’s finding that the evidence on record does not suggest any doubt as to the identity of the appellant in relation to the offences he is convicted for by the trial court to warrant findings contrary to those he further appeals against. It is true that the appellant requires no leave to raise on appeal any defence he is, on the face of the record, entitled to. Having however failed even at this level to show that the evidence on record has made the slightest suggestion in that regard, appellant’s complaint on the point must fail too. It is for the foregoing that the 1st issue is resolved against the appellant.
On their 2nd issue, learned appellant’s counsel is also glaringly wrong in his submission that appellant’s conviction by the trial court draws solely from his confessional statement, Exhibit “D”. Even if it does, it is not, for certain, the law that the lower court’s affirmation of appellant’s conviction can be set aside on that score alone. The correct principle is that once appellant’s extra judicial statement is the confessional statement the law allows courts to convict an accused upon, appellant’s conviction and its affirmation by the lower court must persist.
This Court has, in a seemingly endless number of decisions, held that though desired that convictions be based on evidence outside the confessional statement of an accused, a conviction based solely on the confessional statement of the accused, where same is direct, positive and unequivocal, does prevail on appeal inspite of the absence of any corroborating evidence. See Ikpasa v. State (1981) 9 SC 7 and Achabua v. State (1996) 12 SC 63.
The question to answer at this juncture relates to the quality of appellant’s confessional statement and whether or not in affirming the decision of the trial court, the lower court had ensured that the decision is, in addition to the confessional statement, founded on other pieces of evidence as well.
The decision of the trial court which the lower court affirmed, see page 76 of the record of Appeal, inter-alia reads:-
“In this case on hand, I have carefully perused each of the statements of the accused persons Exhibit ‘A’-‘D’ and they are direct and positive on the commission of the offence. The evidence of PW3 and PW4 that four persons came with 1st accused to rob them at night appears to corroborate the confessional statements….The retraction made by the accused persons appears to be carefully rehearsed and I do not believe them. I am satisfied with the truth contained in the confessional statement which confirms the evidence given by the prosecution witnesses.”
The court further opined thus:-
“In allowing the confessional statements of the accused persons to be tendered without objection to enable the court test for voluntariness and reising (sic) the issue during the defence and address state (sic) appear to me to be too late in the day. From the available evidence of PW.5, there is no reason for the court to believe the ascertion (sic) by the accused persons that they were tortured when this was not taken up when the IPO testified as P.W.5.”
In restating the principle on the point, this Court per Obaseki JSC, opined in Jimoh Yesufu v. The State (1976) 6 SC 167 at 173 thus:-
“There is a long line of judicial authorities (on the effect of confessions and we agree with the statement which establish that in Nigeria, a free and voluntary confession of guilt by a prisoner, whether under examination before a magistrate or otherwise, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant convictions without any corroborative evidence so long as the court is satisfied of the truth of the confession (Edet Obasi v. The State (1965) NMLR 119). But it is desirable to have outside a defendant’s confession to the police, some evidence, be it slight of the circumstances which make it probable that the confession was true.
Paul Onochie & 7 Others v. The Republic (1966) NMLR 307; R. v. Kanu 14 WACA 30.”
The lower court’s affirmation of the trial court’s reliance on the confessional statement of the appellant as corroborated in the testimonies of PW1, PW3, PW4 and PW5 cannot, in the face of the principles enunciated by this Court in the foregoing, be wrong.
Finally, appellant’s spirited contention that respondent had not proved its case beyond reasonable doubt, given the evidence on record, cannot be sustained.
It is trite that the confessional statement of an accused remains the best proof of what he had done. In the case at hand, beyond appellant’s confessional statement, Exhibit “D”, the testimonies particularly of PW1 and PW5 further establish the fact that there was armed robbery undertaken by the five man gang and that the appellant was a member of the gang. It is equally in evidence that the members of the gang had acted in concert in carrying out the robbery. Both courts are entitled to infer from these facts, which constitute the ingredients of the offences the appellant is convicted for, that the respondent has proved its case against the appellant as required by the law. See Bozin v. State (1985) 2 NWLR (Pt 8) 455 at 469, Alabi v. The State (1993) 7 NWLR (Pt 307) 5 and Olayinka v. State (2007) 9 NWLR (Pt 1040) 561; (2007) 8 SCM 193.
On the whole, the appellant has failed to show that the concurrent findings of the two courts below are perverse. His appeal must accordingly fail and I hereby adjudge it has. In the result, the appeal is dismissed. The lower court’s judgment affirming appellant’s conviction and sentence by the trial court for Conspiracy and Armed Robbery punishable under Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, CAP. 398 of the Laws of the Federation 1990 is hereby affirmed.