IN THE SUPREME COURT OF NIGERIA
SUIT NO: SC14/2011
PETITIONER: DEMO OSENI
RESPONDENT: THE STATE
DATE DELIVERED: 2012-02-14
IBRAHIM TANKO MUHAMMAD, OLUFUNLOLA OYELOLA ADEKEYE, SULEIMAN GALADINMA, NWALI SLYVESTER NGWUTA, OLUKAYODE ARIWOOLA
The appellant was charged along with one Abubakar Umaru Sadiq with the offences of conspiracy and armed robbery before the High Court of Justice of Kwara State, lIorin Judicial Division. The counts of conspiracy and armed robbery were laid under S.97 of the Penal Code and S.l (2)(a) and (b) of the Robbery and Fire Arms (Special Provision) Act Cap. R.ll Laws of the Federation 2004, respectively.
In the course of the trial, the Criminal Justice Committee of Kwara State released the 1st accused person Abubakar Umaru Sadiq on bail based on ground of ill-health. Subsequently, he was reported dead and his name struck out of the charge. At the end of the trial, the learned trial Judge discharged and acquitted the 2nd accused, the appellant herein, of the offence of conspiracy. He was however convicted of the offence of armed robbery and sentenced to death by hanging.
The appellant appealed to the Court of Appeal Ilorin. The lower Court dismissed the appeal and affirmed the decision of the trial High Court.
Appellant has appealed to this Court on four grounds which are hereunder Reproduced shorn of their particulars:-
The Court of Appeal erred in law when it held that the respondent proved its case beyond reasonable doubt.
The Court of Appeal misdirected itself when it held that the confessional statement was sufficiently corroborated.
The Court of Appeal misdirected itself in law when it held that the argument that the appellant speaks and understands a different language from that of the prosecution witnesses cannot avail the appellant the benefit of doubt in view of the fact that the witnesses were not cross-examined on how they heard the confession of the appellant.
The Court of Appeal misdirected itself when it held that the learned trial Judge was right in convicting the appellant of the offence of armed robbery while discharging him on the offence of conspiracy.
In compliance with the rules, learned Counsel for the parties filed and exchanged briefs of argument. From the four grounds of appeal in the Notice of Appeal, learned Counsel for the appellant formulated the following two issues for Issues for determination:
(a) Whether in view of the evidence adduced at the trial, Court the Court of Appeal was right to have affirmed the decision of the trial Court that the charge of armed robbery was proved beyond reasonable doubt.
(Related to Grounds 1 & 2).
(b) Whether the Court of Appeal was right when it held that Exhibit 5 was rightly acted upon by the learned trial Judge.
(Related to Grounds 3 & 4).
Learned Counsel for the respondent adopted the two issues presented by the appellant.
Arguing issue one in his brief, learned counsel for the appellant referred to S .138(1) of the Evidence Act on the burden of proof in criminal cases. He relied on s.36 (6) (5) and (11) of the Constitution of the Federal Republic of Nigeria 1999 as amended and on the presumption of innocence. He cited Chianugo v. State (2002) 2 NWLR (Pt. 750) 225 at 236. He argued that to prove armed robbery, the prosecution must prove three ingredients:
(a) That there was robbery.
(b) That the robbery was armed robbery.
(c) That the deceased was one of those who robbed.
He relied on Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 at 566-567. He argued that the prosecution must prove, in addition to the above ingredients, that the accused at, or immediately after, the time of the robbery inflicted wounds or used any personal violence on any person. He contended that the prosecution did not prove the ingredients of the offence of armed robbery as enumerated above.
He argued that the prosecution relied heavily on what he called discredited confessional statement of the appellant. He said the State sought to corroborate the statement by pieces of evidence which had no existence outside the confession and which were inadmissible hearsay evidence. He relied on Akpa v. State (2008) 14 NWLR (Pt. 1106) p.72 at 99 Para D-E;
Nwachukwu v. State (2002) 2 NWLR (Pt. 751) p.366 in his contention that the trial Court failed in its duty to consider the circumstances under which the confession was made with a view to deciding the weight to be attached to it.
Learned Counsel conceded that the appropriate time to raise objection to the statement on grounds of involuntariness is at the point of tendering the statement. He cited Alarape v. The State (2001) FWLR (Pt. 41) 1872 at 1875. He regretted that Counsel for the appellant at the trial Court did not object to the statement and said that the trial Court should have been more cautious and considered the statement in the light of the testimony of the appellant. He relied on Ismail v. State (2008)
15 NWLR (Pt. 1111) page 593 at 621 para. D-E; Efffong v. State (1998) 8 NWLR (Pt. 562) 632 in support of his argument that before a conviction can be founded on a retracted confession, it is desirable to have some evidence outside the confession which would make it possible that the confession is true. He said there was no eye -witness to the incident leading to the charge against the appellant and what the prosecution witness claimed to have heard the appellant say was not direct but hearsay evidence and not admissible. He relied on Jolayemi v. Alaoye (2004) 12 NWLR (Pt. 887) 322 at 341.
He argued that what the prosecution witnesses claimed they heard the appellant say was not direct experience or sensation emanating directly from a fact in issue. He referred to Ojo v. Gbarono (1999) 8 NWLR (Pt. 615) 374 at 387 wherein such statement as testified to by the prosecution witnesses were admitted as what the witness heard during the incident. He argued that the evidence of prosecution witnesses is extraneous to, and cannot corroborate, the confessional statement of the appellant.
Learned Counsel conceded that a search warrant was executed leading to the recovery of a cutlass based on the confessional statement but argued that in the face of uncontroverted testimony of the appellant at the trial the Court should have been cautious in placing reliance on the recovery of the cutlass. He relied on Orji v. State (2008) 10 NWLR (Pt. 1094)
31 at 50 in his argument that the recovery of a cutlass in the appellant’s shed is no conclusive proof of crime. He added that there was no forensic examination to prove that the cutlass was the instrument of crime as alleged by the prosecution.
He argued further that even though the 1st accused was caught with the stolen motorcycle, the prosecution did not establish a link between the appellant and the said 1st accused. He urged the Court to resolve the issue in favour of the appellant.
In Issue Two, learned Counsel relied on Akpa v. The State (2007) 2 NWLR (Pt. 1019) p.500; Uwagboe v. State (2007) 6
NWLR (Pt. 1031) 606 at 623 and contended that the trial Court should have considered the following before convicting the appellant based on the confessional statement:
(I) Is there anything outside the confession to show that it is true’
(ii) Is it corroborated
(iii) Are the facts therein stated as true as far as can be tested’
(iv) Had the accused person the opportunity of committing the offence’
(v) Is the confession possible’
(vi) Is the confession consistent with other facts ascertained and proved’
Counsel argued that there is nothing outside Exhibit P5 to show that the appellant committed any crime or conspired with the 1st accused or any other person to commit any crime. He re-emphasised that Exhibit P5 is not corroborated. He argued that the facts contained in Exhibit P5 and the testimonies of the prosecution witnesses are not true as far as the same can be tested. He maintained that the confession is inconsistent with other facts and findings of the Court. He referred to the evidence of PW2 who he said under cross-examination admitted that he speaks only the Baruten whereas the appellant speaks and understands only Hausa and Fulani languages.
On the neglect of Counsel to cross-examine the prosecution witnesses on the language they spoke vis-a-vis the appellant, learned Counsel relied on the presumption of innocence in S.36 (5) of the Constitution (supra). Learned Counsel added:
‘A corollary of this is that an accused person has the sole discretion whether to cross-examine the prosecution witnesses or not and the exercise of that discretion, or lack of it, should not serve as the basis of any imputation of guilt by the Court.”
Counsel argued that even though Exhibit P5 was admitted in evidence, the appellant never adopted same and in fact, disclaimed it and said he was forced to append his thumbprint on it. Learned Counsel emphasised that the evidence of the appellant in his defence was not contradicted, disputed or successfully challenged by the prosecution. He urged the Court to resolve the issue in favour of the appellant. In conclusion, he urged the Court to allow the appeal and set aside the decision of the lower court affirming the decision of the trial court.
In dealing with issue one in his brief, learned counsel for the respondent naturally contended that the charge against the appellant was proved beyond reasonable doubt as found by the trial Court and affirmed by the lower Court. He emphasised that proof beyond reasonable doubt is not and should not be mistaken for proof, beyond every shadow of doubt. He argued that once the prosecution has proved that an offence has been committed and that no other than the accused has committed the offence, the proof beyond reasonable doubt is attained. He relied on Mufutau Bakaru v The State (1987) 3 SC 1 at p.5.