CORAM

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CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

JOHN AFOLABI FABIYI     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

CLARA BATA OGUNBIYI     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

OLUKAYODE ARIWOOLA     JUSTICE, SUPREME COURT

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PARTIES

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IDOWU OKANLAWON   APPELLANTS

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 THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Appellant and his co- accused, conspired and robbed one Evangelist Oluseye Ogunremi by breaking into his house with dangerous weapons demanding for money. One of the accused persons hit the evangelist with an iron rod on his head and went away with the sum of N80, 000.00 including two handsets. Subsequently, the 1st accused person approached Pw 1 who was an electronic repairer and asked him to either buy the handset or dispose off them for the sum of N3, 000.00 but the witness became suspicious and called on the phone numbers on one of the handsets. The second witness (Pw 2) picked and narrated the story of how he was robbed and this led to the arrest of the Appellant and the co-accused persons. They were charged on two counts for conspiracy to commit armed Robbery contrary to section 5 (b) and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap.398, Laws of the Federation of Nigeria, 1990, and armed with firearms to rob contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap.398 Laws of the Federation of Nigeria, 1999. Upon arraignment, they pleaded not guilty to the charge and consequently were tried, convicted and sentenced to death by hanging. Dissatisfied with the conviction by the trial Court, the Appellant appealed to the Court of Appeal which dismissed his appeal. Based on the judgment of the Court of Appeal, the Appellant has appealed to this Court.

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HELD

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Appeal Dismissed

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ISSUES

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1. Whether the court below was right in affirming the conviction and sentence of the appellant notwithstanding that there was no identification parade by the Police?

2. Whether the lower court was right when it affirmed that the accused person had a fair hearing when he was prosecuted and defended by the Ministry of Justice, Ogun State?

 

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RATIONES DECIDENDI

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FAIR HEARING – PRINCIPLE OF FAIR HEARING

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“The principle of fair hearing as constitutionally guaranteed in Section 36 of the 1999 Constitution, no doubt is derived from the principle of Natural Justice with its twin pillars of “audi alterem partem” and “nemo judex in causa sua”. This principle of fair hearing is no doubt fundamental to the administration of justice. The court is required to conduct trial or hearing of a case with all fairness to both parties to the suit and without bias or partiality in favour of or against either party. It is note worthy that complaint of breach of fair hearing is usually against the court or tribunal, whether the parties before the court were afforded equal opportunity to fully ventilate their grievance. See: Peters Pam & Anor Vs Mohammed & Anor (2008) 5-6 SC (Pt. l) 83;Deduwa Vs. Okorodudu(1976) NMLR 236 at 246; (1976) 9-10 SC 329.”PER O. ARIWOOLA, J.S.C

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CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION – NATURE OF CONTRADICTION IN THE EVIDENCE OF THE PROSECUTION THAT WOULD BE FATAL

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“Contradiction in the evidence of the prosecution that will be fatal must be substantial. Minor contradiction which did not affect the credibility of witnesses may not be fatal. Contradiction must relate to substance. Trivial contradiction should not vitiate a trial. See: Ankwa vs. The State (1969) 1 All NLR 133; Queen vs. lyanda (1960) SCNLR 595; Omisade vs. The Queen (1964) 1 All NLR 233; Sele vs. The State (1993) 1 SCNLR 15 at 22-23, (1993) 1 NWLR (Pt. 269) 276.”PER J. A. FABIYI, J.S.C

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IDENTIFICATION PARADE – INSTANCES WHERE IDENTIFICATION PARADE WOULD BE NECESSARY

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“Generally, an identification parade would become necessary only in the following situations of visual identification –
(i) Where the victim did not know the accused person before and his first acquitance with him is during the commission of the offence;
(ii) Where the victim was confronted by the offender for a very short time; and
(iii) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused. See:R Vs. Turnbull (1976) 3 A11 ER 549 or (1977) 2B 224 at 228231;Ikemson Vs. The State (Supra).” PER O. ARIWOOLA, J.S.C

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CONFESSIONAL STATEMENT – DUTY OF AN ACCUSED PERSON WHO INTENDS TO IMPEACH HIS EARLIER STATEMENT

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“During the proceedings, an accused person desirous of impeaching his earlier statement is duty bound to establish that his earlier statement cannot be true or correct by showing any of the following:
(i) That he did not in fact make any such statement as presented; or
(ii) That he was not correctly recorded; or
(iii) That he was unsettled in mind at the time he made the statement; or
(iv) That he was induced to make the statement.See; Hassan Vs. State (Supra) Folorunsho Kazeem Vs The State(2009) 29 WRN43.”PER O.ARIWOOLA, J.S.C

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PROOF OF GUILT OF AN ACCUSED PERSON – WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON

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“It is trite law that the guilt of an accused person charged with the commission of an offence can be established by any or all of the following :-
(i) The confessional statement of the accused;
(ii) Circumstantial evidence;
(iii) Evidence of an eye witness.
See: Alufohai V. State (supra)” PER O. ARIWOOLA, J.S.C

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IDENTIFICATION PARADE – IDENTIFICATION PARADE IS UNNECESSARY WHERE THE IDENTITY OF THE ACCUSED PERSON IS NOT IN DOUBT

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“Where the identity of the accused person is not in doubt, the Police is not bound to conduct any identification parade. See: Ojukwu vs. The State (2002) 4 NWLR (pt. 746) 80; Okosi vs. The State (1989) 1 NWLR (Pt. 100) 642.” PER J. A. FABIYI, J.S.C

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EVIDENCE OF IDENTIFICATION – IT IS THE DUTY OF A TRIAL COURT TO ENSURE THAT THE ACCUSED PERSON BEFORE THE COURT WAS ACTUALLY THE PERSON WHO COMMITTED THE OFFENCE WITH WHICH HE IS CHARGED

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“Identification generally, is evidence tending to show that the person charged with an offence is the person who was seen committing the offence. Therefore, whenever the trial court is confronted with evidence of identification, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the court was actually the person who committed the offence with which he is charged. See: Patrick Ikemson Vs. The State (1989) 3 NWLR (Pt.110) 455; (1981) (LRN), Agboola Vs. The State (supra).” PER O. ARIWOOLA, J.S.C

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WITNESSES – IT IS THE RESPONSIBILITY OF THE PROSECUTION TO DETERMINE THE NUMBER OF WITNESSES IT NEEDS IN PROVING ITS CASE AGAINST AN ACCUSED PERSON

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“This court has stated in plethora of cases over and over again that how many witnesses the Prosecution needs to prove its case against any accused person is entirely its responsibility but not that of the defence. See: IJiofor Vs. The State (2006) 6 NSCQR (Pt. l)209.” PER O. ARIWOOLA, J.S.C

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EXTRA-JUDICIAL CONFESSION – WHERE AN EXTRA-JUDICIAL CONFESSION HAS BEEN PROVED AND ESTABLISHED TO HAVE BEEN MADE VOLUNTARILY, SUCH CONFESSION WILL SUFFICE TO GROUND A FINDING OF GUILT

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“The law is settled, that where an extra-judicial confession has been proved and established to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of guilt, regardless of the fact that the maker resiles therefrom or retracted it altogether at the trial. See: Egboghonome Vs The State (1993) 7 NWLR (Pt.306) 383; Osetola vs State (Supra) ”PER O. ARIWOOLA, J.S.C

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ARMED ROBBERY – ELEMENTS THAT MUST BE PROVED TO ESTABLISH A CHARGE OF ARMED ROBBERY

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“It is already settled that to enable the prosecution to establish the charge of armed robbery, the following elements must be proved :-
(i) That there was a robbery or series of robberies;
(ii) That the robber(s) was/were armed.
That the accused person was the armed robber or one of the armed robbers. See: Bozin Vs State (1985) 2 NWLR (Pt.8) 465 at 467; AlabiVs. State (1993) 7 NWLR (Pt.307) 551;OlayinkaVs State (2007) 9 NWLR (Pt.1040) 561; (2007) 8 SCM 199; Osetola& Anor Vs The State (2012) 17 NWLR (Pt. 1329) 251; (2012) 12 SCM (Pt.2) 347.”PER O. ARIWOOLA, J.S.C

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CONSPIRACY – MEANING OF CONSPIRACY

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“Conspiracy is generally an agreement between two or more persons to do an unlawful act or doing a lawful act in an unlawful manner. Indeed, failure to prove a substantive offence does not make conviction for conspiracy inappropriate, as it is a separate and distinct offence in itself, independent of the actual offence said to have been conspired to commit. See: Segun Balogun Vs. Attorney General Ogun State (2002) 2 SC (Pt. ll) 89; (2002) 4 SCM 23; (2002) 2 SCNJ 196, Osetola & Anor Vs. State (2012) 17 NWLR (Pt.1329) 251; (2012) 12 SCM (Pt.2) 347.”PER O. ARIWOOLA, J.S.C

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RETRACTED CONFESSIONAL STATEMENT – DESIRABILITY OF HAVING OTHER EVIDENCE OUTSIDE THE RETRACTED CONFESSIONAL STATEMENT OF AN ACCUSED PERSON IN OTHER TO SUSTAIN A CONVICTION

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“Before a conviction can be properly founded on such retracted confession, it is desirable to have some evidence outside the confession which would corroborate and make it probable that the confession was true. See Sule Iyanda Salawu V. The State (1971) NWLR 249, and Nsofor V. State (2005) 4 WRN29.” PER C. B.OGUNBIYI, J.S.C

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PROOF OF THE OFFENCE OF ARMED ROBBERY – ELEMENTS THE PROSECUTION MUST ESTABLISH WHEN PROVING AN OFFENCE OF ROBBERY

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“It is trite law that for the prosecution to prove the offence, the following three elements must be established. That is, there must be proved that there was a robbery or series of robberies; that the robbers were armed and the suspect or accused was the robber or one of the robbers.”PER O. ARIWOOLA, J.S.C

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CONFESSION – MEANING OF CONFESSION -SECTION 28 OF THE EVIDENCE ACT, 2011

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“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 andjudicial confessions. It also includes an incriminating admission made that is not direct and positive and short of a full confession. See: Section 28 of the Evidence Act, 2011.” PER O. ARIWOOLA, J.S.C

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CONFESSIONAL STATEMENT – A COURT CAN CONVICT AN ACCUSED PERSON SOLELY ON HIS CONFESSIONAL STATEMENT WHERE SAME COMPLIES WITH THE STANDARD PRESCRIBED BY LAW

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“The law is trite and affirmatively established that it is open to a court to convict an accused solely on his confessional statement provided same has passed the required standard necessary and laid down by law. In otherwords the statement must be proved to have been made voluntarily and be positive and not equivocal and must state an admission of guilt. The fact that the accused has retracted the confession may not however necessarily make it in admissible. See R V. Itule (1961) All NLR 462 at 465.”PER C. B.OGUNBIYI, J.S.C

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RETRACTION OF EXTRA JUDICIAL STATEMENT – DUTY OF AN ACCUSED PERSON WHO RETRACTS FROM THE EXTRA JUDICIAL STATEMENT HE HAD EARLIER MADE TO THE POLICE

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“It is settled law that where an accused person during trial retracts from the extrajudicial statement he had earlier made to the police it behoves on him, and it is a duty on him to impeach the said earlier statement. See; Nwachukwu Vs. State(2001) 35 WRN 175 (2001) 15 NWLR (Pt.735) 184.” PER O. ARIWOOLA, J.S.C

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 999 (as amended)

Evidence Act, 2011

Robbery and Firearms (Special Provisions) Act Cap.398 Laws of the Federation of Nigeria,1999

 

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CLICK HERE TO READ FULL JUDGMENT

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