This is an appeal against the judgment of the Court of Appeal Akure Division or lower court or court below, Coram: Mojeed A.Owoacle, Mohammed A. Danjuma and James Shehu Abiriyi JJCA delivered on 20th clay of March 2015 which dismissed the appeal against the judgment of Ondo State High Court sitting in Akure by O. O. Akeredolu J (as he then was) on, the 9th of July, 2013 and upheld the conviction and sentence of the appellant to death by hanging.
SUMMARY OF FACTS
On the 13th day of November 2012, the Appellant was arraigned before an Akure High Court, on a one count charge of armed robbery pursuant to Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R 11, Vol.14 Laws of the Federation of Nigeria 2004. The Appellant pleaded not guilty to the offence contained in the charge. See page 14 of the Record.
The case thereafter proceeded to trial wherein the Prosecution (Respondent) called 4 witnesses, while the Appellant refused to give evidence and thereupon the trial judge adjourned for counsel’s final address which was filed and adopted by parties. Exhibits P1, P2, and P3, P4, P4A, and P5 were tendered and admitted in the course of the trial,
The case for the prosecution was that on the 23rd day of May, 2011, PW1 was moving towards Arakale at about 09:15pm, when he met the Appellant who flashed a torch light at him. The Appellant later moved closer to PW1, brought out a gun which he then pointed at PW1’s head, gave him a slap, forcibly collected the sum of N11, 300 and two Nokia phones from PW1, and finally pushed him into mud water on the road. After the Appellant left PW1, the latter narrated the incident to a team of Police Officers that he met when he was walking along the road. When the phone of one of the police officers was later used to call PW1’s phone, the Appellant picked the call and ordered PW1 to come and collect his sim with the sum of N10,000 at a Hotel which PW1 could not remember its name. PW1 was later advised by the Police Officers to decline the offer made by the appellant. At about 11:00pm of the same day, PW1 received a call from the Appellant instructing him to wait for him at Ijomu Junction, PW1 later waited at the said junction after informing some plain clothes Policemen who were also present at the said junction at about 20 minutes afterwards, PW1’s’ phone rang again and he saw the Appellant standing directly opposite him, thereafter the Appellant asked “where is , the N10 000?” but as the PW1 was trying to beg him, the Appellant attempted to leave the scene. At this point, PW1 suddenly jumped across the Taxi cab that was between them, and the Police Officer quickly came out to effect Appellant’s arrest. However, the Appellant was holding on to the gun while the policemen were beating him. About five bullets were shot to disperse people away from the area and afterwards the Appellant was arrested and taken to the Police Station“.
The Appellant refused to give evidence at the trial court, although he admitted in his two extra,-judicial statements made to the Police which rightly admitted as Exhibits P1 and P2, that he was actively involved in how PW1 was robbed ‘ ‘
At the close of evidence. from both sides, and address by the counsel, learned trial judge in a judgment delivered on 9th day of July, 2013 found the Appellant guilty of the offence of armed robbery
The Appellant being dissatisfied with his conviction and sentence filed his amended Notice of Appeal on the 3rd of January 2014.
The Appellant, not also being satisfied with the judgment of the Court of Appeal, Akure Judicial Division filed another Notice of Appeal on the 9th of April 2015 , to the Supreme court. ‘
Appellant’s Issue for Determination
Whether from the facts before the court, was the prosecution able to prove the offence of armed robbery beyond reasonable doubt.
That the prosecution was able to establish 2 out of the 3 necessary ingredients that is that there was a robbery which was an armed robbery but failed to establish that the appellant was one of the perpetrators. That PW1 who was an eye witness could not have been able to identify the appellant in this case. He referred to Almu v State (2009) 38 NSCQLR 416 at 431Chukwu v State (1996) 7 NWLR (Pt.463) 686.
Learned counsel contended for the appellant that the situation produced a reasonable doubt which has to be resolved in favour of the appellant. He cited Okpular v State (1990) 7 NWLR (Pt.164) 581; Odunneye v State (2001) 2 NWLR (Pt.697) 311.
Learned counsel for the appellant stated that the purported confessional statement fell short of what a confessional statement should be as required by law as it was neither positive nor direct. That the court should note that appellant retracted the said statement for which a corroborative evidence outside the statement was necessary and since that did not happen, the confessional statement could not have sustained the conviction. He cited Nsofor V state (2002) 10 NWLR (pt. 775) 274: Paul Onoche v FRN (1996) NWLR 307: In Re: Osakwe (1994) 2 NWLR (pt. 326) 273 at 300.
An in depth consideration of the confessional statement produced statement voluntarily made which was direct, positive and unequivocal as to the admission of guilt of the accused/appellant and such as sufficient to ground a conviction of the appellant irrespective of the appellant’s resiling from the statement during the trial. I place reliance on the cases of Lasisi v The State (2013) 9 NWLR (Pt.1358) 74 at 93; Demo Oseni v The State (2012) 5 NWLR (Pt.iZ93) 351 at 387.
At the risk of over flogging an issue, it has to be said that there is no evidence stronger than a person’s own admission or confession which is often as in the case denied or retracted at trial. That retraction does not affect its admissibility but is taken into consideration in deciding what weight to be attached to it. In that consideration of weight in the resiled confessional statement the following questions are asked of himself by the trial judge, viz:
1. Is there anything outside the confession to show that it is true? 2. Is it corroborated? 3. Are the relevant statements made in it of facts, true as far as they can be tested? 4. Was the accused the one who held the opportunity of committing the offence alleged? 5. Is his confession possible? [6. Is it consistent with other facts which have been ascertained and have been proved? See the case of Dibie v The State (2007) 9 NWLR (Pt.1038) 30.
As I stated earlier the fact that the accused denied at the earliest opportunity of making the statement, that does not stop the statement being admitted in evidence but the timing of the retraction lends weight in considering what use it would be put. In this I am guided by the words of my learned brother Ngwuta JSC in Demo Oseni v The State (2012) 5 NWLR (Pt.1293) 351 at 372-373 where he stated as follows:
“The Appellant took the earliest opportunity when the statement was offered in evidence to deny having made it. A mere denial without more, even at the earliest opportunity, cannot on the facts of this case, lend weight to be denial. The denial is bare statement bereft of any supporting fact and standing only on the ipse dixit of the Appellant. As stated earlier, the statement was not challenged on ground of voluntariness and the trial court rightly declined the invitation to conduct trial within trial”.
In the case at hand even without corroboration, the two confessional statements P1 and P2 can sustain the conviction of the appellant. However, if one is for corroboration of the confessional statements, the evidence of PW1, PW2 and anchored by the police officers PW3 and PW4 apply a load of that. It is therefore, now faced the concurrent findings of fact and conclusion by the trial court and Court of Appeal, this court being a policy court has laid down the rules of not disturbing concurrent findings and conclusion reached at within the evidence and materials before court and in line with the relevant legislations on substantive and procedural law. In this instance there has been no infraction in that regard and for effect I shall refer to the case of:
Military Governor of Lagos State v Adeyiga (2012) 5 NWLR (Pt.1293) 291 at 334, 336 and, 338. In Adonike v The State (2015) 7 NWLR (Pt.1458) 237 at 286 this Honourable court per Rhodes-Vivour, JSC, held:
“The Supreme Court will rarely upset the findings made by the trial court and affirmed by the Court of Appeal. This is so, because such findings were arrived at after cross-examination and observed of the witnesses by the trial judge. Such concurrent findings of the two courts below, ought to carry much weight in an Appeal Court which did not have the opportunity or advantage of the trial court…”
See also, a) Shurumo v The State (2010) 19 NWLR (Pt.1226) at 100-101. b) Sobakin v The State v (1981) 5 SC 75,
In the end I have no difficulty in going along the concurrent findings of fact of the two courts below and hold that the prosecution proved its case beyond reasonable doubt bearing in mind that the appellant was identified directly, positively and credibly through the evidence of PW1 and PW2 and upon the evaluation of the totality of the evidence before the court including the confessional statements which are free, direct, positive, unequivocal and voluntary enough to ground the conviction. See Stephen v The State (1986) 5 NWLR (Pt.46) 978. This appeal clearly lacks merits and I do not hesitate in saying so. Appeal is dismissed as I affirm the decision of the Court of Appeal which upheld the judgment, conviction and sentence of the appellant.
Mary Ukaego Peter-Odili Justice, Supreme Court
Oladipo Olasope for Appellant.
Remi Peter Olatubora and with him are Abubakar Wakawa and Muazu Abdulmutalif for Respondent
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