CHIEF OKEY IKORO V. HON. OSITA IZUNASO & ORS
May 30, 2025S. O. ADOLE V BONIFACE B. GWAR
May 30, 2025Legalpedia Citation: (2008) Legalpedia (CA) 61115
In the Court of Appeal
HOLDEN AT IBADAN
Mon Apr 7, 2008
Suit Number: CA/I/136/2005
CORAM
PARTIES
ADEWALE KABIRU APPELLANTS
ATTORNEY GENERAL, OGUN STATE RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant was arraigned before the trial court on a six count charge of Conspiracy and Armed Robbery contrary to and punishable under Section 1(2)(a) and Section 5(b) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1990. The Appellant pleaded not guilty to the charges while the Prosecution called six witnesses at the trial. At the close of the Prosecution’s case, the Appellant testified in his defence and called no witness. The case of the Prosecution is that on the 13th day of August, 1996, the Appellant and others at large carried out an armed robbery operation at No.5, Temidire Ope-Oluwa Street, Ita Oshin in Ogun State during which several of the residents were robbed of their belongings. The Appellant fled after the incident and was arrested hours later by police officers who took him back to the victims for identification. The victims identified the Appellant as the one who collected their money. The Appellant on his part denied ever robbing anybody and said he was abducted at Iyana Abule-Otun Bus Stop at Lafenwa, Abeokuta and taken to the police station at about 8.45 am as he was about to board a taxi to Isale-Igbehin on 14/08/96. He put up a defence of mistaken identity. After considering the case of the Prosecution and the Appellant’s defence, the learned trial judge found the Appellant guilty as charged and sentenced him to death by hanging. It is against this judgment that the Appellant has filed an appeal before this court
HELD
Appeal Allowed
ISSUES
Whether the denied confessional statement, Exhibit ‘A” simplicita if admissible is sufficient to ground conviction of an accused person? Whether the defence of Alibi (mistaken identity) avail the Appellant?
RATIONES DECIDENDI
BURDEN OF PROOF IN CRIMINAL CASES – ON WHO LIES THE BURDEN OF PROOF IN CRIMINAL CASES
“There is no doubt that an armed robbery incident took place from the evidence of the prosecution witnesses. The question is: was there any evidence before the trial court that the appellant was one of the armed robbers? It is trite that in criminal cases, the burden is always on the prosecution to prove the charge beyond reasonable doubt. Okpular v. State (1990) 7 NWLR (Pt 164) 581; Oduneye v. State (2001) 2 NWLR (Pt 697) 311. I will examine closely the evidence of the prosecution witnesses.”
ADMISSION- IMPLICATION OF AN ADMISSION UNDER CAUTION IN CRIMINAL TRIAL
“Once an accused person makes a statement under caution saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. See Kareem v. F.R.N (supra); Gira v State (1996)6 NWLR (Pt 443) 375; Liya v. State (1998) 2 NWLR (Pt 538) 397.”
CONFESSIONAL STATEMENT- CONDITIONS UPON WHICH A CONFESSIONAL STATEMENT CAN SUSTAIN A CONVICTION
“A confessional statement, so long as it is free and voluntary, direct, positive and properly proved is enough to sustain a conviction. Akpan v. State (1990) 7 NWLR (Pt 160) 101; Obosi v. State (1965) NWLR 119: Egboghonome v. State (1993) 7 NWLR (Pt 306) 383; Bature v. State (1994) 1 NWLR (Pt 320) 267; Yesufu v. State (1976) 6 SC 167.”
CONFESSIONAL STATEMENT- TEST TO BE APPLIED TO A RETRACTED CONFESSIONAL STATEMENT
“Where an accused resiles from his confessional statement, his conviction depends on the confessional statement being subjected to the test laid down in R v. Sykes (supra) applied in Kanu v. R (1952) 14 WACA 30. But, in Corporal Jona Dawa v. The State (1980) 8-11 SC 236 at 267-268 it was said that not only must the confession pass all the tests satisfactorily but that the tests would be applied whether the statement was retracted or not. As it is, it is immaterial that the appellant retracted his statement, Exhibit ‘A’ See Bassey v. State (1993) 7 NWLR (Pt.306) 469 at 479. The tests are:
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 prisoner one who had the opportunity of committing the offence?
S. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
See Ikpara v. Ali of Bendel State (1981) 9 SC 7; Onochie v. The Republic (1966) NWLR page 307; Akpan v. The State (1992) 6 NWLR (Pt 248) page 439.”
CONFESSIONAL STATEMENT – ATTITUDE OF THE COURT TO CONFESSIONAL STATEMENT
“Generally, the Courts are not disposed to act on a confession without first testing the truth thereof. It is desirable to have outside the accused person’s confession, some corroborative evidence, no matter how slight of the circumstances which make it probable that the confession is true. See Paul Onochie & Ors v. The Republic (1966) NWLR 307; Jafiya Kapa v. The State (1971) 1 All NLR 150; Yesufu v. State (supra); Obosi v. State (supra). If the confessional statement passes these tests satisfactorily, a conviction founded on it would be invariably upheld, but if the confessional statement fails to pass the above tests, no conviction can properly be founded on it, and if any is founded on it, it would be difficult to sustain on appeal. In Ebhomien and Others v. The Queen (1963) 1 All NR 365, the appeal was allowed on the ground that the confessional statement on which the conviction was based was not voluntary, while in Obue v. The State (1976) 2 SC 141, the appeal was allowed because there was no proof of the veracity of the allegation contained in the statement.”
CONFESSIONAL STATEMENT – DUTY OF THE POLICE TO PROVE CONFESSIONAL STATEMENT
“It is the duty of the police to prove the confessional statement or to confirm the contents of Exhibit ‘A’, which would directly link the appellant to the crime.”
CONFESSION OF AN ACCUSED – WHETHER THE CONFESSION OF AN ACCUSED PERSON ALONE IS SUFFICIENT TO GROUND A CONVICTION
“In R. v. Sykes (supra) relied upon in R v. Kanu (supra) the tests were laid down, that a man could be convicted on his own confession alone, but the rule is that the confession must pass all the tests laid down satisfactorily, the tests would be applied whether the statement was retracted or not. Bassey v. State (1993) 7 NWLR (Pt 306) 469; Corporal Jona Dawa v. The State (1980) 8 – 11 SC 236. The prosecution needs to prove some facts and/or circumstances outside the confession which made it probable that the confession was true, then there would be a clear ground for conviction.”
ADMISSIBILITY OF A CONFESSIONAL STATEMENT – DUTY OF THE TRIAL COURT WHERE THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT IS CHALLENGED
“Where the admissibility of a confessional or any statement is challenged on the ground that it was not made voluntarily, it is incumbent on the trial court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within a trial. Adekanbi v. Ali Western Nigeria (1966) 1 All NLR 47. Ashake v. State (1968) 2 All NLR 198. Ogoala v. State (1991) Omokaro (1941) 7 WACA 146. Ogunye v. State (supra).”
CONFESSION – WHETHER A PERSON CAN BE CONVICTED ON THE ERRONEOUS ASSUMPTION THAT THERE IS EVIDENCE AGAINST HIM THROUGH ALLEGED CONFESSION OR ADMISSION
“In Ogunye v. State (supra) it was held that no one can be lawfully convicted on the erroneous assumption that there is evidence against him through alleged confession or admission.”
CONFESSIONAL STATEMENT – WHETHER THE FAILURE TO CONFIRM A CONFESSIONAL STATEMENT BEFORE A SENIOR POLICE OFFICER WILL RENDER SAME UNRELIABLE IN COURT
“The learned appellant’s counsel argued that Exhibit ‘A’ was not confirmed before a senior police officer, this is not a legal requirement which if not complied with would render the confessional statement unreliable. See Edhigre v. The State (1996) 8 NWLR (Pt 464) 1 at 7 SC; Akpan v. State (1992) 6 NWLR (Pt 248) 439 at 472 SC.”
DEFENCES – DUTY OF THE TRIAL COURT TO CONSIDER ANY DEFENCE RAISED BY AN ACCUSED PERSON
“Even though a defence put up by an accused, no matter how flimsy or worthless it may seem must be considered by the trial court as rightly argued by the learned appellant’s counsel.”
DEFENCE OF ALIBI – EFFECT OF A FAILURE TO INVESTIGATE A DEFENCE OF ALIBI RAISED BY AN ACCUSED PERSON IN CRIMINAL TRIAL
“Where an accused person was not caught at the scene of a crime and raises the defence of alibi and the defence is not investigated, it will cast serious doubt on the evidence adduced by the prosecution, the prosecution is to disprove the defence of alibi.”
DEFENCE OF ALIBI- CONDITIONS FOR SUCCESSFULLY RAISING A DEFENCE OF ALIBI
“On the other hand a defence of alibi must be unequivocal and must be raised during investigation of the allegation against the accused person and not during trial. This will enable the prosecution investigate the truth of the alibi. Merely alleging that he was not at the scene of the crime by an accused is not enough. For it to succeed, he must give some explanation of where he was and the persons who knew of his presence at that other place at the time of the commission of the offence in question. In the present case the defence of alibi was raised by the appellant during the trial, there were no particulars in support as to exactly where he was, with whom and what he was doing at the material time. Merely saying he was elsewhere is not enough. The essence is to exclude the accused person’s presence at the scene when the offence was committed and that the accused could not have committed the offence. See Nsofor v. State (supra); Yanar v. State (1965) 1 All NLR 193. Salami v. State (supra). It is not the duty of the accused to establish by evidence the alibi but for the prosecution to disprove it, but the defence has to be properly raised. See Ozulonye v. The State (1981) 1 NCR 38.”
PLEA OF ALIBI – INSTANCE WHERE THE INVESTIGATION OF A PLEA OF ALIBI WILL NOT BE NECESSARY
“The appellant did not raise the defence of alibi at his arrest but at the trial. The prosecution was not therefore obliged to investigate the plea of alibi. In his evidence the appellant did not give evidence to support his defence of alibi or mistaken identity as to where he was and those who could testify to his presence in that other place rather than the scene of crime, making it impossible for him to have been present at the time and place of the robbery. In such a situation, the onus would then be on the prosecution to disprove it. As earlier stated, where properly raised it is the duty of the prosecution to disprove the alibi by calling evidence, it follows therefore that the alibi must be raised early to enable the prosecution to investigate it and call evidence, if necessary, in rebuttal. An accused raising the defence of alibi must therefore do so at the earliest opportunity. See Sowemimo v. The State (2001) 36 NRN 52. R v. Lewis (1969) 2 Q.B 1, Adio v. The State (1986) 2 NSCC 815, Adedeji v. The State (1971) 1 All NLR 75. Gachi v. The State (1965) NMLR 33, Fatoyinbo v. AG Western Nigeria (1966) NWLR 4, Eze v. State (1976) 1 SC 125, Ozaki v. State (1991) 21 NSCC (Pt 1) 79, (1990) 1 NWLR (Pt.124) 92. On the other hand, where there is positive and credible evidence, accepted by the court, which evidence fixed the appellant at the scene of crime as one of the parties to the crime, the prosecution has no duty to call evidence in rebuttal of the defence of alibi or in conducting an identification parade to exclude the appellant. See Ede v. Federal Republic Of Nigeria (2001) 1 NWLR (pt 695) 502.”
DEFENCE OF ALIBI – INSTANCE WHEN AN ACCUSED PERSON HAS NOT PROPERLY RAISE THE DEFENCE OF ALIBI
“It is clear that the appellant did not give the police the opportunity to investigate the alibi, as a result he cannot rely on it. In this case, since the appellant raised the defence of alibi at the trial and said he was elsewhere at the time the offence was committed has made an assertion he has to prove, which in this case he failed to do. See Ibrahim v. State (1991) 22 NSCC (Pt.1) 587; ,(1991) 4 NWLR (Pt m186) 399. The defence of alibi or mistaken identity has not been properly raised by the appellant”.
CONFESSIONAL STATEMENT – WHETHER THE COURT CONVICT AN ACCUSED PERSON SOLELY ON HIS CONFESSIONAL STATEMENT
“The law is that in such an instance it is most desirable to look for some corroborative evidence outside the purported confession of the accused before conviction, otherwise, the conviction would be difficult to sustain. In the instant case it has turned out to be so. Decisions of this and the apex court in this regard seem legion but in particular see Akpan Vs. The State (1992) 6 NWLR (Pt. 248) 439 and Obue Vs. The State (1976) 2 SC 141; Kapa Vs. The State (1971) 1 ALL NLR 150”.
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Evidence Act, 2011|Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the federation of Nigeria 1990.|
