Suit Number:SC. 343/2007
Judges:WALTER SAMUEL NKANU ONNOGHEN JSC (Presided) JOHN AFOLABI FABIYI JSC SULEIMAN GALADIMA JSC BODE RHODES-VIVOUR JSC OLUKAYODE ARIWOOLA JSC (Read the Lead Judgment)
Counsel:Victor Opara, Esq. -for the Appellant.
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Adewale Atake, Esq. (with him, Godwin Omoaka, Esq., Izuchukwu Ohajinwa, Esq.,Arnottal Ushindi, Esq.) -for the Respondent.
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ARIWOOLA JSC (Delivering the Lead Judgment): This is an appeal against the judgment of the Court of Appeal, Benin Division, delivered on
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13 December 2004, whereby the court below affirmed the conviction and sentence of the appellant by the trial court.
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The appellant and four others had been listed on the information A paper for prosecution (see page 1 of the record) but only four persons actually stood trial before the High Court of Justice, Edo State of Nigeria, holden at Benin City. One Monday Eze, who was listed as No. 1 was reported to have died in custody and therefore, did not stand trial.Yet, his
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name was never struck out and remained until judgment was given by the B
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trial court. Therefore, he remained and was referred to throughout the
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proceedings of the trial court as the 1st accused person.
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The appellant and three others were charged with and tried for the followingoffences:
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Statement of Offence: Count 1
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Conspiracy punishable under section 5(b) of the Robbery and C
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Firearms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990
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Particulars of offence
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Sule Musa (M), Tirimisiyu Adebayo (M), Olufemi Ajayi (M) and Tajudeen Fabiyi (M) on or about 30 November 1996 at D Benin city within the jurisdiction of the Benin Robbery and Firearms Tribunal, conspired with one another to commit a felony to wit: armed robbery.
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Statement of offence: Count 2
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Armedrobbery punishable under section1(2)(a) ofthe Robbery E
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and Firearms (Special Provisions) Act, Cap. 398, Laws of
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the Federation of Nigeria, 1990.
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Particulars of offence
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Sule Musa (M), Tirimisiyu Adebayo (M), Olufemi Ajayi (M) and Tajudeen Fabiyi (M) on or about 30 November 1996 at
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Benin city within the jurisdiction of the Benin Robbery and F
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Firearms Tribunal robbed one Donatus Osigwe (M) of the sum of N164,000.00 (one hundred and sixty-four thousand naira) while armed with knife and other offensive weapons.
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The prosecution called five witnesses in proof of the charge against
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the four accused persons that stood trial. The prosecution’s case goes thus: G
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On 30 November 1996, one Monday Eze, (now deceased) as the then 1st accused with four men went to his father’s shop at No. 12A Mission Road, Benin City in the night. Monday later identified the four men as the appellant herein and three others. When they could not get any money from
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his father’s shop, the men went into the shop of one Chief McDenson H
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Okenwa (the PW2) and stole the sum of N164,000.00 (one hundred and
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sixty-four thousand naira). They were said to be armed with jack knives and other offensive weapon.
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Upon the arrest of Monday Eze; (herein after referred to as the 1st accused) for the robbery incident, he confessed to the police and mentioned the others with whom he carried out the operation on that day.
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The PW1 - Hyginus Eze is the father to the 1st accused. The 1st accused took the PW1 and a policeman to identifythe otherfour co-accused
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and they were accordingly arrested. All of the accused persons made statements to the police. These statements were tendered by the PW5 - the
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Investigating Police Officer (IPO) during trial. They were admitted without objection and marked exhibitsA, B, C and D respectively.
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After the prosecution closedits case, each of the four accused persons
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testified in their respective defence but called no other witness.
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At the conclusion of trial, the trial court found each of the four accused
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guilty as charged, convicted and sentenced each one of them to death by hanging.
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Being dissatisfied with the judgment led to the appeal jointly to the court below by the four convicts, including the instant appellant.
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The court below on 13 December 2004 in its judgment, found the
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appeal lackingin merit and thereby dismissed same. It affirmed the conviction and sentence of the trial court against the appellants.
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Being dissatisfied again with the decision of the court below, the appellant further appealed to this court upon four(4) grounds of appeal
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contained in his notice of appeal filed on 5 September 2008.
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When the appeal came up for hearingon 6 March 2014, the learned
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counsel for the appellant, Victor Opara, Esq., identified the appellant’s brief of argument he had fled on 19 May 2010 but which was deemed properly filed and served on 26 June 2013. He adopted and relied on same brief of argument to urge on us to allow the appeal and set aside the judgment of the
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court below.
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Mr. Adewale Atake, learned counsel for the state also identified the respondent’s brief of argument filed on 19 April 2013. He adopted and relied on same brief to urge on the court to dismiss the appeal for want of merit and affirm the judgment of the court below which had earlier affirmed
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the decision of the trial court.
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From the appellant’s brief of argument was distilled the following four issues for determination of the appeal.
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Issues for determination Issue 1:
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Whether the issue of the identity of the appellant and the co- accused persons raised on the appeal before the Court of
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Appeal did not arise from the proceedings and judgment of the trial court (court of first instance) and as such, could be
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raised and argued on appeal without leave first had and A
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obtained.
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Issue 2:
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Whether the learned justices of the Court of Appeal did not err in law and occasion serious miscarriage of justice when
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they failed to discharge and acquit the appellant of the offence B
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of conspiracy to commit armed robbery and armed robbery
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by reasoning thus as follows:
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“On the issue of identification parade not having been conducted by the police when the appellant was not identifiedby the prosecution witness, it is said somewhere
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in this judgment that the identity of the appellants was C
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never made an issue before the trial court. This is what the trial judge said in the judgment.
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‘... The 1st accused, now deceased did not testify but before the trial, it was he who identified the
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accused persons with whom he said he sent for D
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the robbery. This led to the arrest of the accused persons who were not identified by any of the prosecution witnesses, except the PW1 who claimed he went with the police and the 1st
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accused to apprehend them...’ E
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This simply means that the PW1 who went with the
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deceased to arrest the appellants, along with the 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
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gang leader and the PW1 with whom the arrest was F
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made. The PW3 and PW4 did not know them before, so why the need for identification parade?
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Identification parade will be necessary if and only if there is doubt in the mind of the witnesses as to whether
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it was the accused persons or somebody else who G
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committed the offence.
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No such doubt has been created in the present case.”
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Issue 3.
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Whether the learned justices of the Court of Appeal did not
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err in law and occasion serious miscarriage of justice when H
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theyheld that the prosecutionproved beyondreasonable doubt,
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the two count charges of conspiracy to commit armed robbery and armed robbery, being the case of the prosecution against
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the appellant and other accused persons?
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Issue 4:
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Whether the Court ofAppeal did not err in law and occasion serious miscarriage of justice when it reasoned as follows:
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“In the present case, the learned trial judge carefully
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tested the confessional statements of the appellants with the evidence adduced by the prosecution witnesses and
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found their confessional statements to be direct and positive on the commission of the offence. I have also considered the appellants’ confessional statements - exhibitsA -D, the evidence ofthe PW1, 3 and 4 appears
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to corroborate the confessional statements and from
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the statements of facts made therein, the confession of the appellants is quite probable.”
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In the said appellant’s brief of argument, learned counsel stated that the four issues were distilled from the four grounds of appeal respectively.
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In its brief of argument filed on 19 April 2013, the respondent
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formulated two issues from the four grounds of appeal filed by the appellant. The issues are as follows:
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Whether the lower court committed an error and the error occasioned a serious miscarriage of justice when it held that
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the identity of the appellant as one of the robbers was not raised as an issue before the trial court and could not therefore
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be raised before them without leave. (Ground 1).
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2. 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 dischargingand acquitting
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the appellant for the offences of conspiracy to commit armed
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robbery and armed robbery. (Grounds 2, 3 and 4)
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In the brief of argument, the appellant argued issue 1 separately while issues 2, 3 and 4 were argued together.
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As it can be clearly seen above, issue 1 of the appellant’s four issues
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is in essence the same as issue 1 of the respondent, while issues 2, 3 and 4 of the appellant are covered by issue No. 2 of the respondent.
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In arguing issue No. 1, learned counsel for the appellant referred to a couple of paragraphs and pages of the record for the findings of the trial court and that in its judgment, the trial court had referred to the submission
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of the learned counsel for the accused persons in her address that the prosecution failed to prove the charge against the accused persons beyond
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reasonable doubt. He referred to count 2 of the charge, which is armed robbery and gave the ingredients of the offence which the prosecutor was
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expected to prove to earn the conviction of the appellant. He relied on State A
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v. Bello (1989)1 CL RN 370; Bozin v. State (1985) 2 NWLR (Pt. 8) 465 at 469.
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He submitted that the identity of an accused person is always in issue in cases of armed robbery and that in the instant case, the identity of
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the appellant was in issue before the trial court. B
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Learned counsel contended that none of the prosecution witnesses
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identified the appellant as a party to the armed robbery but the fact was not considered by the court below.
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Learned counsel conceded that when an appellant intends to raise,
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canvass and argue an issue for the first time before the Court of Appeal, leave of the court must be sought and obtained. He contended that the C
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court below seemed to suggest that the issue of the identity of the appellant was a non issue at the trial court. But that the issue of the identity of the appellant was the main plank on which the case was fought at the trial court.
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He referred to the charge against the appellant as armed robbery D
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and contended that one of the principal ingredients of the offence which must be established by the prosecution is the participation of the accused person in the robbery. Once there is doubt as to the identity of the accused person as the one or one of those who carried out the operation, he submitted
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that the doubt should be resolved in favour of the appellant. E
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Learned counsel contended that if the lower court had considered
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the issue of the identity of the appellant, it is very likely that a verdict of not guilty would have been returned in favour of the appellant. He submitted that the failure of the lower court to consider that material issue occasioned a miscarriage of justice to the detriment of the appellant. He urged the
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court to resolve the issue in favour of the appellant. F
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In handling this issue, learned counsel for the respondent contended that the issue is largely, if not entirely, an academic issue. He stated that the lower court which held that the issue of the identity of the appellant was raised for the first time, before them without leave nonetheless proceeded
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to consider the arguments on the issue of identity of the appellant and ruled G
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that the appellant was identified by the PW1 and that an identification parade would only be necessary if there was doubt in the mind of the witnesses. On this ground alone, he urged the court to resolve the issue against the appellant.
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However, learned counsel contended that assumingwithout conceding H
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that the lower court was wrong to hold that it was a new issue which
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required their leave to be raised, it was submitted that no miscarriage of justice was occasioned to the appellant who alleged “serious miscarriage of
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justice”.
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Learned counsel quoted copiously from the judgment of the lower court where the issue of identification of the appellant was considered and resolved. He referred to the unchallenged evidence of the PW5, who was the IPO that investigated the case. He contended that the said testimony of
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the PW5 was not challenged or contradicted under cross-examination by the counsel to the appellant. He submitted that the effect of the failure to
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cross-examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. He cited Gaji v. Paye (2003) FWLR (Pt. 163) l, (2003) 8 NWLR (Pt. 823) 583.
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Learned counsel submitted further that in the circumstance of this
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case, an identification parade was not necessary, the appellant having been
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identified before arrest. He relied on Balogun v. Attorney-General, Ogun State (2002) FWLR (Pt. 100) 1287, (2002) 6 NWLR (Pt. 763) 264 at 534.
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Learned counsel contended that indeed, the appellant and the other co- accused persons did not raise the issue of mistaken identity as part of their
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defence. The issue was not raisedin the cross-examination ofthe prosecution
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witnesses. Learned counsel further contended that even the appellant and others did not raise the issue of mistaken identity in their evidence before the trialcourt which should have given the foundation for an identification parade. He submitted that the issue of the appellant’s identity is an issue
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of fact that ought to be raised through or by witnesses but it was not so raised. He submitted further that, it was not a matter for counsel’s
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address or argument. He urged the court to resolve the issue against the appellant.
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As I stated earlier, the appellant argued the other three issues together
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and these are subsume in issue No. 2 of the respondent.
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In his brief of argument, the learned appellant’s counsel contended
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that having submitted that it was in issue before the trial court that the appellant was one of those that robbed the store of the PW1 on or about the 30 November 1996, whether the learned justices of the lower court did not err in law and occasion serious miscarriage of justice when they failed to
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discharge and acquit the appellant of the offence charged. Learned counsel
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referred to the testimony of the PW1 on the event that took place in his store and the store of the PW2 at No. 12A Mission Road, Benin City, Edo State on pages 40 - 45 of the record and the testimonies of the PW3 and PW4 on pages 42 - 44 of the record. He however conceded that the learned
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trial judge had foundthat the prosecution witnesseshad identifiedthe appellant and other accused persons with him based on the fact that the deceased 1st
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accused had earlier identified the appellant and the others in the presence of the PW1. But that yet, the trial court was not convinced that the testimony
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was credible enough to link the appellant and co-accused with the charge. A
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Learned counsel contended that the court below however used the same identification ofthe appellant with whichthe trial court was not satisfied as a basis to conclude on the complicity of the appellant in the charge. He submitted that it is entirely the responsibility of the trial court to consider the
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totality of evidence of witnessesin its evaluation ofsame, relyingon Adebayo B
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v. Adusei (2005) All FWLR (Pt. 240) 15 at 176-177.
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Learned counsel contended that as one of the principal issues before the trial court was whether there was any incriminating evidence linking the appellant and other co-accused with the robbery at the shop of the PW2, the issue was not whether or not there was a robbery. He submitted that
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the trial court was not deciding whether there was a robbery incident at the C
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shop of the PW2 alone, but whether the appellant and others were the ones that committed the robbery with force of arms.
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Learned counsel referred to the findings of the trial court on the statements made by the appellant and others to the police and how same were admitted without objection and marked as exhibits. He contended that D even though the trial court alluded to the case of R v. Skyes at page 75, line
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30 of the record, there was nothingwhatsoever in the judgment to suggest that the court applied the test prescribed in the case for the statements accredited to the appellant. He submitted that there was no independent
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corroborative evidence linkingthe appellant to the commission of the crime E
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hence, there was nothing outside the purported confession to show that it
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was true. He relied on Alarape v. State (2001) FWLR (Pt. 41) 1872, for the test for determining the veracity of confessional statement.
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Learned counsel conceded that a confessional statement is sufficient to
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ground a conviction in a criminal offence relying on Nwachukwu v. State
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(2007)All FWLR (Pt. 390) 1380 at 1406. He however contended that only F
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confessional statement which has satisfied all the requirements of the law to be confessional properly so called, can indeed satisfy the burden of proof required of the prosecution to discharge in order to secure a conviction.
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Learned counsel conceded that neither the appellant nor the counsel that defended him raised objection to the voluntariness of the statement G when it was being tendered at the trial court. But he contended that the reason why the appellant did not object was because he was not trained in law to know the exact time to raise the issue of involuntariness of the confessional statement. Learned counsel urged the court to bear in mind
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that this appeal relates to a capital offence that may at the end of the day, H
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lead to loss of life hence, the principle in R v. Skyes and Alarape v. State
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should be adopted meticulously.
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Learned counsel referred to part of the testimony of the PW3 and
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PW4 and submitted that their evidence did not corroborate the retracted statements. Such as to establish the identity of the appellant and other persons charged with him, as those that committed the robbery at the store of the PW2.
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Learned counsel contended that it is the duty of the trial court to
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evaluate the evidence adduced by parties, make findings and take resolutions but in this case, the trial court did not do so. He contended further that the
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lower court which could have, pursuant to section 16 of the Court of Appeal Act, re-evaluated the evidence in the case also failed to do so. He submitted that this occasioned a miscarriage of justice to the detriment ofthe appellant. He submitted that the lower court merely alluded to the case of R. v. Skyes
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without actually followingthe legal principles enunciated therein. Otherwise,
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learned counsel felt the lower court would have found that there is nothing outside the retracted confessional statement linking the appellant to the robbery. He submitted that the non identification of the appellant by the witnesses as one of those that committed the robbery cast a serious doubt
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as to the identity of the appellant regarding the robbery incident and the
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doubt of the appellant. He urged the court to resolve the doubt in favour of the appellant and set aside the decision of the lower court which affirmed the conviction and sentence of the appellant on the two count charges of conspiracy to commit armed robbery and armed robbery and finally, order
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the discharge and acquittal of the appellant.
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In responding, learned counsel for the respondent contended that
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issue No. 2 questions the evidence relied on by the two courts below in convicting the appellant for the offences of conspiracy to commit armed robbery and armed robbery. He referred to the evidence of the PW1 - PW5 and the confessional statements of the appellant and his co-convicts
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as exhibits A, B, C and D.
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He contended further that the PW5 who tendered exhibits A - D wasnot cross-examined nor challenged on how the statementswere obtained from the appellant and others despite the fact that he gave graphic details of the steps he meticulously tookin recordingand confirmingthe confessional
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statements. He referred to the testimony of the PW1 who was present
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when the 1st accused, his son identified the appellant and others and they were arrested by the police. He contended that the identity of the appellant was therefore not in doubt. He referred to the testimony of the appellant where he did not deny that he was in the house of the 4th accused person
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(Olufemi Ajayi) where the robbery plan was hatched and from where the gang proceeded to the operation.
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Learned counsel referred to the oral testimony of the 4th accused where he admitted knowing the appellant and the 1st and 2nd accused
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persons. He contended that throughout the proceedings, the appellant did A not deny knowingthe other accused persons whose statements the PW5 claimed to have confronted the appellant with without objection. He noted that these statements contain the graphic details of the involvement of the appellant in the said operation.
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Learned counsel submitted that under the administration of criminal B
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justice system, the identity ofan accusedperson is not limitedto identification
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parade. It can be established in different ways, such as:
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By direct evidence of an eyewitness in which case, an identification parade may not be necessary; Circumstantialevidence where the factspoints to the irresistible conclusion that the accused and no other person committed C
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the offence;
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By the admissions of an accused person either in his extra-judicial statement or in his evidence in court.
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Learned counsel submitted that it is the entire circumstances of a case that determines the type of identification that would be necessary. He D cited Adamu v. State (1991) 6 SCNJ 33, (1991) 4 NWLR (Pt. 187) 530.
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Learned counsel contended that the position in which the appellant put himselfby not objectingtothe admissibility of the confessional statements on the ground of involuntariness is that his grouse to the use of the
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confessional statement must be severally limited to showing that there is E
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not even the slightest of evidence which shows that the confessional
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statements have moved the appellant’s case outside the issue of identifying him with the crimes because the confessional statement most eloquently identified the appellant with the crimes.
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On the effect of the appellant raising objection to his confessional statement after same had been admitted by the trial court without objection F
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and the witness had been discharged, learned counsel cited Idowu v. State
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(2000)FWLR (Pt.16) 2672,(2000) 7SC (Pt. 11) 50 at 62 - 63. He contended
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that all that the court was obliged to do, which he believed the trial court ably did was to look to see if there were some slight evidence showing that
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the confession was true. On this, he referred to page 74 of the record of G
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appeal for the findings of the trial court on the testimony of the PW1, which the court accepted as providingcorroboration forthe confession al statement of the appellant to find him guilty as charged. Learned counsel submitted that the failure to cross-examine the prosecution witnesses on the material
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facts contained in the confessional statement is an admission of the facts. H
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He relied on Njiokwuemeni v. Ochei (2004) 2 LRECN 112, (2004) 15
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NWLR (Pt. 895) 196 at 226; Ogoala v. State (1991) 2 NWLR (Pt. 175)
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509, (1991) 2 LRCN 66 at 68.
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Learned counsel submitted further that once an accused retracts from his statement after it has been admitted, what is left for the trial court is to consider what weight to attach to it. He relied on Rex v. Skyes ; Kanu v. King (1952) 14 WACA 30; Dawa v. State (1980) 8 - 11 SC 236;
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Nwaebonyi v. State (1994) 5 SCNJ 86, (1994) 5 NWLR (Pt. 343) 138.
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Learned counsel submitted that the testimony of the PW3 and PW4, who were eyewitnesses to the crime effectively corroborated the confessional
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statements - exhibitsA, B, C and D. He stated that all the factors required for testing the truth of the confessional statements were fulfilled. He submitted further that a free and voluntary confessional statement satisfactorily provedwill ground a conviction even without any corroborative
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evidence. He relied on Nwachukwu v. State (2005) 4 LRCN CC 53 at 75,
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(2007) All FWLR (Pt. 390) 1380.
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Learned counsel asks whether the learned trial judge satisfied himself that exhibits A- D were positive, true and probable in attaching weight to it. He submitted that the trial judge did, referringto the court’s findings and the
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conclusion at page 76 of the record which were rightly affirmed by the
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lower court.
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Learned counsel submitted that takinginto account the circumstances of this case, the prosecution proved the case against the appellant as charged beyond reasonable doubt. He submitted further that reasonable doubt has
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been held to mean proof which carry a high degree of probability but not proof beyond every shadow of doubt, relying on Onafowokan v. State
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(1987) 3 NWLR (Pt. 61) 538, (1987) 7 SCNJ 238.
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Learned counsel referred to the charge against the appellant and his co-accused and what the prosecution was required to establish to earn conviction for the charge. He referred to the five witnesses called by the
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prosecution and the documents tendered and admitted, including the
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confessional statements of the appellant to submit that all the elements of the charge were established. He submitted that from the totality of the evidence led at the trial, the prosecution did prove the charge of conspiracy to commit armed robbery and armed robbery for which the appellant was
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tried and convicted as required by law.
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Learned counsel contended that the findings of fact by the trial court, which the lower court rightly affirmed are amply supported by exhibits A - D and the evidence of all the prosecution witnesses. He submitted that not being perverse, this court should not interfere with those findings and
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conclusions. He cited Oguonzee v. State (1998) 5 NWLR (Pt. 551) 521,
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(1998) 4 SC 110 at 121 - 1 22. He urged the court to resolve the issue
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against the appellant and in conclusion, finally urged the court to dismiss the appeal for want of merit and affirm the judgment of the trial court which
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was earlier rightly affirmed by the lower court. A
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As earlier noted, while the appellant’s issue No. 1 is the same as the first issue formulated by the respondent, the appellant’s issues 2,3 and 4 are subsume in the 2nd issue distilled by the respondent for determination of this appeal. Indeed,the appellant has onlyproliferated issue No. 2 by splitting
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it into three different issues. Therefore, having been duly formulated from B
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and related to the same grounds of appeal filed by the appellant, my lords, I
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am convinced that this appeal will be properly determined with the two issues formulated by the respondent.
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Issue No. 1:
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There is no doubt that the issue of identity of the appellant with the other co-accused was considered by the trial court in its judgment. On the C
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event of 30 November 1996 which led to the charge preferred against the appellant, the trial judge found as follows:
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“From the facts of this case, the evidence of the PW1, PW3 and PW4 confirm that there was stealing from the PW2’s store on 30 November 1996. Some money was removed from D the store of the PW2 at No. 12A Mission Road, Benin City.
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Though the PW2 was not in the store, the PW4 was in the store when he openedthe store unknowingly for some persons, as he heard a familiar voice. I believe he saw the 1st accused
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and recognised him. He also saw four others with him. That E
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they were armed and they stole money from the store. I find
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as a fact that on 30 November 1996, five men armed went to the store at No. 12A Mission Road and removed cash from the boy, the PW4.”
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Upon the above findings by the trial court, it went further to raise the question as to whether the accused persons (the appellant and other co- F
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accused) were those who went to the store.
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On record, the prosecution through the PW1 led evidence which showed that the 1st accused, now deceased, and son to the PW1 had confessed to the crime and implicated the other accused persons. The trial court further found that the PW1 testified that he and the police were led by G the 1st accused to apprehend the 2nd, 3rd and 4th accused persons, the 5th accused had earlier escaped but was also later apprehended and brought to book.
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The trialcourt further found that though the 1st accused, now deceased
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did not testify but that before the trial, he had identified the accused persons H
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including,the appellant as the persons withwhom he carried out the robbery,
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and that led to the arrest of the accused persons who were not identified by the prosecution witnesses, except the PW1 who was in company of the
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police and the 1st accused to apprehend them.
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In his testimony in court on pages 56 - 58 of the record, the appellant totally denied being present at the scene on 30 November 1996, when the alleged robbery was said to have taken place in Benin City. He claimed to have been in Lagos at the toll gate hawking bread.
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There is no doubt that the appellant’s defence was an alibi in a way.
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Alibi means when a person charged with an offence says that he was not
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at the scene of crime at the time the alleged offence was committed. That he was indeed somewhere else and therefore, he was not the person who committed the offence: Okosi v. State (1989) 1 SCLRN29, (1989) 1 NWLR
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(Pt. 100) 642; Agboola v. State (2013) All FWLR (Pt. 704) 139 (2013) 8
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C SCM 157, (2013) 11 NWLR (Pt. 1366) 619, (2013) 54 NSQR (Pt. 11) 1162.
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The law is trite that if an accused person raises unequivocally the issue of alibi , that he was somewhere else other than the locus delicti at the time of the commission of the offence with which he is charged and gives some facts and circumstances of his whereabout, the prosecution is
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duty bound to investigate the alibi set up,to verifyits truthfulnessor otherwise.
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As earlier shown in the findings of the trial court, the issue of alibi was not raised by the appellant when it would be possible to be investigated by the police. Even though no burden is placed on the accused person to prove his alibi but he is not expected to merely state that he was not at the
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scene of the crime without more. He owes it a duty to give the lead and particulars of his whereabout at the earliest opportunity, which will lead the
-*-
prosecution in their investigation of the alibi : Yanor v. State (1968) NMLR 337, (1965) 1 All NLR 193; Ozulonye v. State (1981) NCR 38 at 50.
-*-
It is clear from the findings of the trial court also that the issue of
-*-
identity of the appellant was not in dispute or controversy. The court agreed
-*-
that he was properly identified by the 1st accused who died before the trial
-*-
began.
-*-
There is no doubt that in cases of armed robbery, the identity of an accused person is always in issue but in the instant case, the identity of the appellant was not directly made an issue to have warranted the conduct of
-*-
an identification parade before the case was charged to court.
-*-
The appellant has alleged that the court below committed an error and this 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 therefore could not be raised before the court
-*-
without leave.
-*-
The learned appellant’s counsel has rightly conceded that when an
-*-
appellant intends to raise, canvass and argue an issue for the first time before the appellate court, leave of the court must be first sought and
-*-
obtained. He however contended that the issue of identity of the appellant A was the main plank on which the appellant’s case was fought at the trial court. Imust saythat I am not in the slightest doubt that the learned appellant’s counsel misconceived the issue of identification of an accused person and how it should be resolved. The appellant has contended that the court below
-*-
ought to have separately considered and resolved the issue of the identity of B
-*-
the appellant and others when there was no identification parade conducted
-*-
by the police to resolve the identity of the appellants.
-*-
What then is an identification parade? It is a police identification procedure in which a criminal suspect and other physically similar persons are shown to the victim or witness to determine whether the suspect can be
-*-
identified as the perpetrator or one of the perpetrators of the crime. It is C
-*-
otherwise called and referred to as “line up”.
-*-
It is trite law that an identification parade is not a sine qua non for identification in all cases where there has been a fleeting encounter with the victim of a crime, if there is yet other pieces of evidence leading
-*-
conclusively tothe identity of the perpetrator of the offence.An identification D
-*-
parade only becomes necessary where the victim of the crime did not know the accused before his acquittance with him during the commission of the offence.
-*-
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 recognise the E
-*-
suspect who participated in carryingout 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: R v. Turubul (1976) 3 All ER 549, (1977) QB 224 at 228 - 231; Ikemson v.
-*-
State (1989) 3 (Pt. 110) 455, (1989) 1 CLRN 1. F
-*-
In this case, the court below did consider the issue of identification as dealt with by the trial court. It even went as far as quoting what the trial court said on the identity of the appellants. The lower court came to the following conclusion, havingreferred to the findings of the trial court:
-*-
“This simply means that the PW1 who went withthe deceased G
-*-
to arrest the appellants along with the police, identified the appellants as those implicated by Moday Eze. Both the PW3 and PW4 whose shops were broken into testified that they only recognisedMonday Eze (deceased), theycannot recognise
-*-
the other four persons. They were identified by Monday Eze, H
-*-
their gang leader and the PW1 with whom the arrest was
-*-
made. The 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.”
-*-
From the above, notwithstanding that the lower court had held that
-*-
the issue of identification parade was not made an issue for consideration before the trial court, hence cannot be raised before it without leave, the
-*-
court rightly dealt with the issue of the identity of the appellants. As a result, no error was committed by the lower court and no miscarriage of justice has been occasioned. The appellant was properly identified as one of the perpetrators of the robbery that took place on 30 November 1996.
-*-
Accordingly, issue No. 1 is resolved against the appellant.
-*-
Issue No. 2.
-*-
This issue attacks the evidence the prosecution relied upon, including the statements obtained from the appellant. Learned appellant’s counsel contended that the trial court wrongly convicted and sentencedthe appellant
-*-
hence, the lower court ought to have discharged and acquitted the appellant
-*-
for the offences of conspiracy to commit armed robbery and armed robbery.
-*-
In its judgment, the lower court had held as follows:
-*-
“It is manifest from the judgment of the trial court that the learned trial judge based his conviction of the appellants on
-*-
the confessional statements of the appellants admitted as exhibits A,B,C and D. The trial court said at pages 74 - 76 of
-*-
the record thus;
-*-
‘... The statements of the accused persons were tendered exhibits with no objection concerning their voluntariness but each accused in his evidence in chief
-*-
contended that they were forced to sign the statement
-*-
after being tortured. They retracted their statements...
-*-
... In this case at hand, I have carefully perused each of statements of the accused persons, exhibits A - D and they are direct and positive on the commission of the
-*-
offence. The evidence of the PW3 and PW4 that the
-*-
four persons came with the 1st accused to rob them at night appears to corroborate the confessional statements. The evidence too that they were armed is corroborated by the evidence of the PW3 and PW4...
-*-
I am satisfied with the truth contained in the confessional statement which confirms the evidence given by the
-*-
prosecution witnesses...”
-*-
It is already established and the law is clear that for the prosecution
-*-
to establish and earn a conviction for the offence of armed robbery, it will A
-*-
be required to prove the following:
-*-
That there was infact a robbery; That the robbery was an armed robbery; and That the accused person was the armed robber.
-*-
See Bozin v. State (1985) 7 SC 450, (1985) 2 NWLR (Pt. 8) 465 at B
-*-
467; Alabi v. State (1993) 3 SCNJ 109, (1993) 7 NWLR (Pt. 307) 551;
-*-
Olayinka v. State (2007) All FWLR (Pt. 373) 163, (2007) 4 SC (Pt. 1) 201,
-*-
(2007) 9 NWLR (Pt. 1040) 561, (2007) 8 SCM 193.
-*-
In order to satisfy the above requirements and earn conviction of the appellant; the prosecution called and relied on the testimony of its five
-*-
witnesses, the PW1 - PW5 and the statements obtained from the appellant. C
-*-
From the testimonies of the prosecution witnesses and that of the appellant, the trial court found that on 30 November 1996, there was a stealing from the PW2’s store at No. 12A, Mission Road, Benin City. That the PW4 who was in the store recognised the deceased, 1st accused amongst
-*-
the five men that went to the store. The trial court also found that the said D
-*-
men were armed with dangerous weaponsto remove the sum of N130,000.00 (one hundred and thirty thousand naira) from the PW4.
-*-
As noted above in the judgment of the trial court, the appellant was said to have made a confessional statement which the trial court found to
-*-
be direct and positive onthe involvement of the appellant in the commission E
-*-
of the alleged offence.
-*-
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime and this includes both extra judicial and judicial confessions. It also includes an incriminating admission made that is not direct and positive and
-*-
short of a full confession. See section 27(1) of the Evidence Act. Confession F
-*-
hasalso beenheld to be a criminal suspect’s oral orwritten acknowledgement of guilt, which often includes details about the crime alleged. In other words, a confession is an acknowledgement in express words by the accused in a criminal case, of the truth of the main fact charged or of some essential part
-*-
of it: Akpan v. State (2001) FWLR (Pt. 56) 735, (2001) 11 SCM 66, (2001) G
-*-
15 NWLR (Pt. 737) 745, (2001) 7 SC (Pt. 1) 124; Nwachukwu v. State
-*-
(2002) FWLR (Pt. 123) 312, (2002)12 SCM 143, (2002) 7 SC (Pt. 1) 124,
-*-
(2002)11 NSCQR 663; Jimoh v. State (2014) LPELR - 22464; Onuoha v.
-*-
State (1987) 4 NWLR (Pt. 65) 331.
-*-
It is noteworthy that the incident in question took place on 30 H
-*-
November 1996. The appellant who gave his age then as 23 years made a
-*-
statement to the police on 15 January 1997, inter alia , as follows:
-*-
“I hail from Ibadan, Oyo State. I was born in Lagos in 1974, to
-*-
the family of Adebayo. The primary school I attended was Ayedere Primary School, Lagos and finished in 1994. That I hawk bread at toll gate, Lagos presently. That I knew Monday Eze through Femi Ajayi in the month of November ending, when I came to Benin City. Tajudeen Fabiyi brought me to Benin City for the first time. I and Tajudeen live in Lagos but I always sleep at toll gate where I sell bread. I knew Sule
-*-
Musa alias “Rambo” when I came to Benin City in the month of November 1996. I stayed with Femi Ajayi when I came to Benin in the month of November 1996. Sometime in the month of November ending, Teren gave Sule the address of Rambo
-*-
to Tajudeen. I came to Benin City in the company of Tajudeen.
-*-
On the day of the robbery incident, Tajudeen asked me to follow them out. When we reached Monday Eze’s father’s store, I was asked to stand outside with “Rambo”. When I asked Rambo what we were there for, he asked me if Tajudeen
-*-
did not tell me that we were there to operate. I left them in the
-*-
store when I discovered that they wanted to rob in the store. Femi Ajayi gave me N20.00 (twenty naira) to go back to the house. That before we left for the store, Tajudeen was holding a jack knife with a key holder. After the robbery operation,
-*-
Monday Eze gave me the sum ofN5,000 (five thousand naira). But when I grumbled that the money was too small, Rambo
-*-
later gave me the sum of N3,000.00 (three thousand naira). That total amount to me was N8,000.00 (eight thousand naira). After the robbery operation, I went back to Lagos in company of Tajudeen Fabiyi....
-*-
I was still in Benin City with Tajudeen when Monday Eze and
-*-
Femi were arrested. I went back to Lagos alone. It was Tajudeen who gave me money to go back to Lagos. I did not know we were going to the store to rob...
-*-
I have never robbed before. This was the first time I involved
-*-
myself in a robbery operation and I did not know we were going to the store to rob”
-*-
There is no doubt that the above is a graphic narration of the event of 30 November 1996 and the role played by the appellant in the operation. It is rightly so detailed and true to have been a concoction of the prosecution.
-*-
In the appellant’s testimony in court under examination-in-chief, the appellant denied that he made any statement voluntarily to the police. He
-*-
denied knowingMonday Eze who had identified the appellant to the police as one of those with whom he carried out the robbery operation of 30
-*-
November 1996. Indeed, the appellant totally denied that he made any A statement to the police. That the alleged confessional statement was actually written by the police and he was forced to sign it. This is a complete retraction
-*-
of the above statement said to have been obtained from the appellant by the police.
-*-
It is trite law that where an accused person during trial retracts from B
-*-
or denies the extra judicial statement he had earlier made to the police
-*-
immediately after the event giving rise to the charge or arraignment against him, he owes it a duty to impeach his said earlier statement: Nwachukwu v. State (2007)All FWLR (Pt. 390) 1380, (2007) 12 SCM (Pt. 2) 447, (2007)
-*-
17 NWLR (Pt. 1062) 31 at 69; Hassan v. State (2001) FWLR (Pt. 74) 212,
-*-
(2001) 11 SCM 100, (2001) 15 WRN 175, (2001) 15 NWLR (Pt. 735) 184. C
-*-
Generally during trial, an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true or correct by showingany of the following:
-*-
That he did not in fact make any such statement as presented;
-*-
That he was not correctly recorded; or That he was unsettled in mind at the time he made the statement, or That he was induced to make the statement.
-*-
See Hassan v. State ; Kazeem v. State (2009) All FWLR (Pt. 465) E
-*-
1749, (2009) 29 WRN 43 at 68-69.
-*-
However, the way an accused person on trial can discharge the burden of establishingany of the above at the tendering of his confessional statement is by calling evidence during a trial-within-trial: Osetola v. State (2012) All FWLR (Pt. 649) 1020, (2012) 12 SCM (Pt. 2) 347, (2012) 17
-*-
NWLR (Pt. 1329) 251, (2012) 50 (2) NSCQR 598. F
-*-
In the instant case, the appellant did not object to the tendering and admissibility of his statement alleged to have been made to the police earlier stated, his statement and that of his co-accused when tendered without objection, were admitted and duly marked as exhibits.
-*-
The law is settled that a free and voluntary confession of guilt made G
-*-
by an accused person, if it is direct and positive, is sufficient to warrant his conviction without any corroborative evidence aslong as the court is satisfied of the truth of the confession: Yesufu v. State (2000) 10 WRN 1 at 14, (2001) FWLR (Pt. 60) 1422.
-*-
It is noteworthy that at the trial, the court held as follows: H
-*-
“In this case at hand, I have carefully perused each of the
-*-
statement of the accused persons exhibits A-D and they are direct and positive on the commission of the offence. The
-*-
evidence of the PW3 and PW4 that four persons came with the 1st accused to rob them at night appears to corroborate the confessional statements. The evidence too that they were armed is corroborated by the evidence of the PW3 and PW4. 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.”
-*-
As earlier stated, the appellant’s statement was tendered at and admitted by the trial court without any objection. This goes a long way to give accreditation to the prosecution’s case against the appellant.
-*-
In Alarape v. State (2001) FWLR (Pt. 41) 1872, (2001) 3 SCM 1 at
-*-
13, where a similar situation took place, this court observed as follows: “At all events, it ought to be noted that the said statements were tendered without objection from the defence. None of the prosecution witnesses were cross-examined as to their
-*-
involuntariness. It was not until the prosecution had closed its
-*-
case and the appellants were testifying in their own defence in the witness box that the issue was belatedly raised. The question of the voluntariness of that statement is tested at the time the statement itself is sought to be tendered in evidence”:
-*-
E Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, (1989) 20
-*-
NSCC (Pt. 11) 471 and Okarobu v. State (1988) 3 NWLR
-*-
(Pt. 81) 2134.
-*-
In the situation above, this court had come to the conclusion that raising a defence to the contents of a confessional statement at the state of defence in the witness box when no objection was raised and tendered was
-*-
F rightlyheld tobe an afterthought. Inthe instant case, the appellant’s statement
-*-
earlier referred to was obtained and tendered by the PW5 - the Investigating Police Officer (IPO), who was not cross-examined on the voluntariness of the statement.
-*-
I am of the firm view that the trial court was right and correct to be G satisfied from the totality of the evidence that the four accused persons, including the appellant led by the 1st accused formed the necessary common intention to prosecute an unlawful purpose when they conspired together
-*-
and went to the store at No. 12A Mission Road, Benin City to rob the PW4. On the confession of an accused person, this court had held that the:
-*-
H “Evidential value of a confession of truth is very great indeed. It is very much sought after by the police investigators and
-*-
prosecutors. It lightens the burden on the prosecution by dispensing with the need to call a host of witnesses. A
-*-
confession can support a conviction if proved to be made and A
-*-
true: Rep. v. Chartwood (1980) 1 WLR 874; A chabua v. State (1976) 12 SC 63 at 68; Yesufu v. State (1976) 6 SC
-*-
See Saidu v. State (1982) 13 NSCC 70, (1982) 4 SC 41 at 58-59.
-*-
In Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, (1991) 35 SCNJ B
-*-
61, this court per Olatawura, JSC (of blessed memory) stated that “a
-*-
confessional statement made by an accused and properly admitted in law is the best guide to the truth of the part taken by an accused”.
-*-
The statement of the appellant and that of his co-accused are truly
-*-
confessional. They were admissible and properly and legally admitted in evidence by the trial court. C
-*-
Fromthe totalityof the evidence adduced by the prosecution, including the statement obtained from the appellant which was found to be direct, positive and true, there is no doubt that all the elements of the offence of armed robbery with which the appellant was charged along with others
-*-
were present and proved. Indeed, the prosecution proved that there was a D
-*-
robbery incident on 30 November 1996 at No. 12A Mission Road, Benin City at the store of the PW4. That the robbers, including the appellant were armed with dangerous weapons, includingjack knife.And that the appellant was one of the persons who committed the robbery.
-*-
As a result, on the evidence of the prosecution witnesses with the E
-*-
confessional statements of the appellant and his co-accused upon which
-*-
the trial court rightly found the appellant guilty, convicted and sentenced them for the two count charges, the lower court was in order and properly affirmed the conviction and sentence of the appellant by the trial court.
-*-
In the record of appeal, it is clear that the lower court made concurring findings of fact on the evidence adduced by the prosecution. These findings F
-*-
are unassailable as they are based on sound principles of law. It is settled already that this court will not interfere with the concurrent findings of facts of the two courts below except when such findings of fact are shown to be unreasonable or perverse and are not a result of a proper exercise of judicial
-*-
discretion or there is a miscarriage of justice or violation of some principles G
-*-
of law or procedure by the courts: Ngilari v. Mothercat Ltd (1999) 13 NWLR(Pt. 636)626, (1999)12SCNJ 101,(1999) 12 SC (Pt.11) 1; Agbomeji
-*-
v. Bakare (1998) 9 NWLR (Pt.564) 1, (1998) 7 SC (Pt. 1) 10; Ogbobaja
-*-
v. Amiula (2009) 18 NWLR (Pt. 1172) 45.
-*-
In this case, I cannot see any good reason to interfere with the H
-*-
concurrent findings of fact on the evidence adduced by the prosecution.
-*-
The lower court rightly found that the appellant was rightly convicted based on his confessional statement, corroborated by the testimony of the
-*-
prosecution witnesses. Accordingly, issue two is resolved against the appellant.
-*-
In the final analysis and without any further ado, this appeal is adjudged lacking in merit and liable to dismissal. The appeal is hereby dismissed.
-*-
In the circumstance, the conviction and sentence of the appellant by the trial court on 28 June 2001 which was affirmed on by the Court of
-*-
Appeal on 13 December 2004, is hereby affirmed.
-*-
ONNOGHEN JSC: I have had the benefit of readingin advance, the lead judgment of my learned brother,Ariwoola, JSC just delivered.
-*-
I agree with his reasoning and conclusion that the appeal is without merit whatsoever and should consequently be dismissed.
-*-
I therefore order accordingly. Appeal dismissed.
-*-
FABIYI JSC: I have had a preview of the judgment just delivered by my learned brother, Ariwoola, JSC. I agree with the reasons therein advanced as well as the conclusion that the appeallacks merit and should be dismissed.
-*-
E The facts of the matter have been clearly set out in the lead judgment. I seek leave to rely mainly on same. The appellant, alongwith others at the
-*-
trial court, stood trial on a two count charge of conspiracy to commit armed robbery and armed robbery. The trial court garnered evidence and based mainly on his confession made in exhibit ‘B’, the appellant was convicted and sentenced alongwith others. He appealed to the Court ofAppeal, which heard same and dismissed it. He has decided to further appeal to this court. The appellant attempted to bank on a plea of alibi which he surreptitiously put up during his oral testimony in court. He denied being present at the scene on 30 November 1996 when the alleged robbery took place in Benin City. He claimed to be at Lagos toll gate hawking bread. The
-*-
G plea of alibi should have been made at the earliest opportunity with due
-*-
particulars during investigations by the police to enable same to be investigated and ascertain in its veracity or otherwise: Bello v. Police (1956) 2 SCNLR 113; Gachi v. State (1973) 1 NMLR 331; Odu v. State (2001)
-*-
FWLR (Pt. 37) 1078, (2001) 5 SCNJ 115 at 120, (2001) 10 NWLR (Pt. 77
-*-
H 2) 668.
-*-
It is clear that the appellant’s plea of alibi , found by the trial court
-*-
and affirmed by the court below to be an afterthought, rests on a firm ground. They were no doubt correct. Further, the evidence on record fixed
-*-
the appellant at the locus criminis at the material time. Any purported plea A
-*-
of alibi by the appellant fizzles into the thin air: Njovens v. State (1973) 5 SC 17, (1973) 1 NMLR 331.
-*-
The trial court relied mainly on the appellant’s confessional statement in exhibit ‘B’ to nail him. It was found that same was voluntarily made. It is
-*-
direct and positive with respect to the role played by the appellant during B
-*-
the operation. Confession is the best form of evidence to be relied upon in
-*-
searching for the truth in a criminal matter, as herein. This is because, no rational beingwill say something negative against his own interest; all things being equal. The confession was rightly relied upon by the trial court and duly affirmed by the court below: Yesufu v. State (1976) 6 SC 167.
-*-
The appellant admitted that his own share of the booty of operation C
-*-
was the sum of N8,000.00 (eight thousand naira). It appears idle to attempt to deny the obvious. The two courts below made concurrent findings of fact on all crucial points raised in the appeal. Same was not demonstrated to be perverse. I cannot see my way clear in interfering with same: Igwe v.
-*-
State (1982) 9 SC 174. D
-*-
As usual, the appellant tried to prop the idea that the offences for which he was charged were not proved beyond reasonable doubt. Same rests on shifting sand. This is because, all the essential ingredients of the two counts were clearly established. It was no doubt idle to have argued to
-*-
the contrary: Abogede v. State (1996) 4 SCNJ 223, (1996) 5 NWLR (Pt. E
-*-
448) 270 of 276.
-*-
The above is just like a tip of the iceberg. My learned brother said it all. For all the reasons adumbrated in the lead judgment which I hereby adopt and my views as above expressed in support, I find that the appeal lacks merit. It is hereby dismissed. The judgment of the court below is
-*-
hereby affirmed. F
-*-
GALADIMA JSC: I have read before now, the judgment of my learned brother, Ariwoola, JSC, just delivered. I agree with his reasoningleading to
-*-
the conclusion that this appeal be dismissed. G
-*-
The fact of this case have been set out in detail in the lead judgment. The appellant and three otherswere charged,tried, convicted and sentenced at the trial court to death for armed robbery. Dissatisfied, the convicts, including the appellant herein,appealed jointly to the Court ofAppeal, which
-*-
dismissed same for lackingin merit. It affirmed the conviction and sentence H
-*-
of the trial court.
-*-
The appellant herein was not satisfied with the decision of the court below hence, his further appeal to this court on 4 grounds. He distilled 4
-*-
issues while the respondent posited only 3 issues for determination of the appeal.
-*-
In the appellants’ brief, he argued issue 1 separately, while issues 2, 3 and 4 were argued together.
-*-
I have observed that the appellant has unnecessarily proliferated
-*-
issue No. 2 into three separate issues. The respondent’s two issues as formulated are apt and direct to the determination of the appeal.
-*-
This is one case I think the appellant cannot escape the hangman’s noose; not when he has created a niggling doubt in his pieces of defence. Firstly, he confessed on exhibit ‘B’ that he had accompanied the 1st, 2nd and 4th accused persons who were armed with offensive weapons to the
-*-
scene of crime. The court below affirmed his conviction and sentence on
-*-
the two count charges of conspiracy to commit armed robbery. In the said exhibit ‘B’, the appellant confessed that he was given N8,000.00 (eight thousand naira) as his share, and by his own admission, this was the first time he participated in armed robbery.
-*-
Learned counsel for the appellant conceded that neither the appellant
-*-
nor the counsel that defended him raised objection to the voluntariness of the statement when it was tendered at the trial. He contended however that the reason was because the appellant was not trained in law to know when to raise the issue of involuntariness of his confessional statement. It is on
-*-
record that the PW5 who tendered exhibit A - D was not cross-examined or challenged on how the statements were obtained from the appellant and
-*-
others, despite the fact that he set out graphic account of the steps he meticulously took in recording and confirming the confessional statements. Reference was made to the testimony of the PW1, who was present when the 1st accused identified the appellant and others and how they were
-*-
arrested by the police. I agree with the learned counsel for the respondent
-*-
that the identity of the appellant was not in doubt. The appellant did not deny that he was in the house of the 4th accused person, (one Olufemi Ajayi), where the robbery plan was hatched. It was from there the gang proceeded to execute their plan.
-*-
The testimony of the PW3 and PW4, who were eyewitnesses to the
-*-
crime effectively corroborated the confessional statements recorded in exhibit A, B, C and D. Free and voluntary confessional statements will ground a conviction even without any corroborative evidence: Nwachukwu v. State (2007)All FWLR (Pt. 390) 1380, (2005) 4 LRCN 53 at 75; Hassan
-*-
H v. State (2001) FWLR (Pt. 74) 212, (2001) 15 NWLR (Pt. 735) 184.
-*-
Again, the appellant failed, when he tried to raise the issue of alibi
-*-
during his oral testimony at the trial court. He denied he was at the scene of the crime at the time the alleged crime was committed. He claimed he was
-*-
at Lagos toll gate, hawkingbread when the alleged robbery took place in A Benin City. It should be noted that the issue of alibi was not raised by the appellant, soas to give the Investigating Police Officer (IPO) the opportunity
-*-
to investigate the claim. The law requires the accused person to give a hint and particulars of his whereabouts at the earliest opportunity: Gachi v.
-*-
State (1965) NMLR 331 ; Odu v. State (2001) FWLR (Pt. 37) 1078, (2001) B
-*-
5 SCNJ 115 at 120.
-*-
The findings of the trial court were based mainly on the appellant’s confessional statements effectively corroborated by the testimony of the PW1, PW3 and PW4, his co-accused. It is upon this that the court rightly found the appellant guilty, convicted and sentenced him for the two count
-*-
charges. The lower court also rightly affirmed his conviction and sentence. C
-*-
The two courts made concurrent findings of fact on the evidence adduced by the prosecution. This court will not interfere with those findings of facts of the two lower courts, save when such findings of fact are demonstrated to be unreasonable, orperverse due to improperexercise of judicial discretion,
-*-
resulting or occasioning in miscarriage of justice, or violation of some D
-*-
principles of law or procedure. The appellant has not been able to show any of these shortcomings on the part of the two courts below. I have no cause to disturb the findings.
-*-
With the fuller reasons given in the lead judgment, I too hold that the
-*-
appeal lacks merit and it is accordingly dismissed. E
-*-
Appeal dismissed.
-*-
RHODES-VIVOUR JSC: I have had the advantage of reading in draft, the lead judgment prepared by my learned brother, Ariwoola, JSC. I agree
-*-
that this appeal should be dismissed. I gratefully adopt the statement of F
-*-
facts set out in the lead judgment. When a person is arrested for committing an offence and criminal proceedings are looming, such a person becomes an accused person. If he makes a statement oral or written, acknowledging his guilt that he committed the offence, such a statement in law is a
-*-
confessional statement. The statement must either admit the offence or G
-*-
substantially all the facts which constitutes the offence. Confessional statements are only admissible in court against the maker (i.e the accused person), if it is a voluntary acknowledgement of guilt. There must be a clear admission of guilt. Exhibit B, the appellant’s confessional statement revealed
-*-
that he accompanied the 1st, 2nd , and 4th accused persons, who were H
-*-
armed with offensive weapons to wit: Jack knife, to steal from Monday
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Eze’s father’s store. After the robbery, he was given N5,000 (five thousand naira) and an additional sum of N3,000 (three thousand naira) when he
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grumbled that his share was too small. Concludinghis statement he said: “This was the fast time I involved myself in robbery operation...
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Exhibit B is a confession that the appellant participated in the armed robbery for which he was charged and convicted. He was paid N8,000.00 (eight thousand naira) as his share and by his own admission, it was the first
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time he took part in armed robbery.
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How was exhibit B admitted and was it made voluntarily?
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A confessional statement voluntarily made is an admission by the maker that he committed the offence. It is the best evidence that the accused person committed the offence since it is his own confession. The fact that there wasno objectionwhen the prosecution tendered exhibit Bis conclusive
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evidence that it was voluntarily made and a conviction solely on it is sound:
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Yesufu v. State (1976) 6 SC 167; Osuagwu v. State (2013) All FWLR (Pt. 672)1605, (2013)1-2 SC 194
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Exhibit B is a free and voluntary confession of guilt made by the appellant. It is direct and positive as to the role and reward of the appellant
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in the robbery and the fact that the robbery was the first he ever took part
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in. Exhibit B is in the circumstances, a true confessional statement.
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Exhibit B, the statement of the appellant was tendered without objection by the prosecution. No evidence was led by the appellant that exhibit B was not made voluntarily. It was after the prosecution closed its
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case during the defence testimony that the appellant retracted exhibit B, saying he was forced to sign it after being tortured. The question of
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voluntariness ofa confessional statement is tested at the time the prosecution seeks to tender it, and not after it has been tendered or at the pleasure of the defence. It amounts to an afterthought, a tissue of lies to object to the voluntariness of a statement after having not made an objection when it
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was admitted in evidence as an exhibit. Exhibit B was voluntarily made.
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It is desirable in some cases to have some evidence outside the confession, be it corroboration, which would in effect, remove all doubt and establish the fact that the confession is true: Kopa v. State (1971) 1 All NLR p. 150; Njoku v. State (1992) 8 NWLR (Pt. 262) p. 714; Osuagwu v.
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State ; Stephen v. State (2013)All FWLR (Pt. 705) 229, (2013) 3 SC.
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Evidence led by the prosecutionwitnesses remained unshaken under cross-examination and in one instance, there was no cross-examination. The testimony of the PW1, PW3 and PW4 was one way. It pointed to the guilt of the appellant. It is affirmative evidence that exhibit B was true.
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It is the practice of this court not to upset the findings of a trial court, which are affirmed by the Court of Appeal except this court is satisfied that
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the findings are perverse, or cannot be supported by evidence or there is a miscarriage of justice: R-Benkay (Nig.) Ltd v. Cadbury (Nig.) Plc (2012)
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All FWLR (Pt. 631) 1450, (2012) 3 SC (Pt. III) 169; Action Congress of A
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(Nig.) v. Lamido (2012) All FWLR (Pt. 630) 1316, (2012) 2 SC (Pt. 11)
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The reason beingthat it was the trial court that had the opportunity of seeingthe witnesses give evidence. That court was in the best position to
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form an impression of the witnesses during cross-examination, to observe B
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demeanour and conclude if the witnesses were truthful. Such findings should
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be respected by this court. The appellant was unable to show before this court that he did not participate in the robbery for which he was charged and convicted. It follows naturally that concurrent findings of both courts below were not perverse, rather, the findings were supported by credible
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evidence. C
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Once again, I agree with my learned brother that there is no merit in this appeal. Appeal dismissed.
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Appeal dismissed
Other Citations:(2014) 12 NWLR (Pt. 1422) 613
