CORAM

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OBANDE FESTUS OGBUINYA JCA

ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL

ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL

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PARTIES

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ISMAILA ANIMASHAUN

APPELLANTS 

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THE STATE OF LAGOS

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE,

 

 

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SUMMARY OF FACTS

The Appellant as the 4th Defendant in Charge No. ID/448C/2014 was charged together with three others; Kabiru Salau, Oluwatoyin Olalekan and Moses Tademo before the Lagos Judicial Division of the High Court of Lagos State by way of Information on a Four (4) Count charge.

The Trial Court in its Judgment discharged and acquitted the Appellant of Count 1 and 3 but found him guilty of Count 2 and 4 which is the offence of Conspiracy to commit Armed Robbery and Armed Robbery respectively. The Appellant was consequently convicted and sentenced to death by hanging for the offence of Conspiracy to commit Armed Robbery and Armed Robbery.

Aggrieved by the decision, the Appellant made the instant appeal.

 

 

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HELD

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Appeal dismissed

 

 

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ISSUES

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Whether the failure of the Prosecution to conduct identification parade exculpates the Appellant from the offence of Armed Robbery?

Whether in the circumstance of this case, the trial Court rightly admitted the Confessional Statement of the Appellant in evidence and relied on same to convict the Appellant?

Whether the non-compliance of the confessional Statement of the Appellant with the provisions of Section 9 (3) of the Administration of Criminal Justice Law of Lagos State, 2011 renders it inadmissible in evidence?

 

 

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RATIONES DECIDENDI

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ISSUES FOR DETERMINATION – THE PURPOSE OF FORMULATING ISSUES FOR DETERMINATION

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It is trite that the purpose of formulating issues for determination is to narrow the issues in controversy between the parties in the interest of accuracy, clarity, and brevity to lead to more judicious and proper determination of an appeal.  – Per A. S. Umar, JCA

 

 

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ARMED ROBBERY – INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

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Section 295 of the Criminal Law of Lagos State provides that:

295. Any person who commits the offence of robbery shall on conviction be sentenced to imprisonment for not less than twenty-one years.

(1) Where –

(a) Any offender mentioned in subsection (1) of this section is armed with any firearm or nay offensive weapon or any obnoxious or chemical materials or is in company of any person so armed; or

(b) At or immediately before or immediately after the time of robbery, the said offender wounds or uses violence on any person, the offender shall be sentenced to death.

The Supreme Court in the case of Bozin v State (1985) LPELR- 799 (SC) highlighted the ingredients of the offence of Armed Robbery to wit:

1. There was a robbery

2. That the robbery or each of the robbery was an armed robbery

3. That the defendant to

ok part in the armed robberies

See also the case of Olayinka vs. State (2007) 9 NWLR (Pt.1040) 561. – Per A. S. Umar, JCA

 

 

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PROSECUTION – BURDEN OF PROOF ON THE PROSECUTION AND HOW THE PROSECUTION CAN PROVE ITS CASE AGAINST THE ACCUSED

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“In the case of Adeyemo vs. State (2015) 16 NWLR (Pt. 1485) 311, the Supreme Court has settled it that the Prosecution can prove its case against the accused person by all or any of the following means:

a. Evidence of any eye witness of the crime

b. Confession or admission when voluntarily made by the accused;

c. Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.

The law is settled in criminal trials that the burden of proving the guilt of an accused person rest on the prosecution which has to prove the case beyond reasonable doubt. Proof beyond reasonable doubt means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt.– Per A. S. Umar, JCA”

 

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CONFESSIONAL STATEMENT – WHEN A CONFESSIONAL STATEMENT IS DULY ADMITTED IN EVIDENCE

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“…it is trite that confessional statement is the best form of evidence John vs. State (2019) LPELR-46936 (SC) and once it is duly admitted in evidence, the trial Court can convict on it.

Also, both PW1 and PW2 are victims of the incident of robbery and the law treats the evidence of a victim as that of an eye witness. See: Lawal vs. State of Lagos (2021) LPELR-53456(CA); Giki vs. State (2018) 6 NWLR (Pt. 1615) 237.

The testimonies of PW1 and PW2 are eye-witness testimonies and it was held by the Supreme Court that eye witness testimony is the next best evidence in proof of a crime after the confessional statement of an accused person. See Olusegun vs. State (2020) LPELR-51156(CA).– Per A. S. Umar, JCA”

 

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IDETIFICATION PARADE – THE PURPOSE OF IDENTIFICATION PARADE

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“It is important to note that the purpose of identification parade is to show that the person charged is the same as the person who was seen committing the offence. See Alao vs. State (2013) LPELR-22209(CA).

It is settled law that it is not in all cases that an identification parade is necessary. Where there is a good and cogent evidence connecting the accused person to the commission of the crime, an identification parade may not be necessary. See: Moshood vs. State (2014) LPELR-22934(CA).

In the case of Ogoala vs. State (1991) LPELR-2307(SC), the Supreme Court per Nnaemeka-Agu, JSC held that:

“An Identification parade should never be conducted for purely cosmetic reasons. It should be limited to cases of real doubt or dispute as to the identity of an accused person or his connection with the offence charged”– Per A. S. Umar, JCA”

 

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IDENTIFICATION PARADE – WHEN IDENTIFICATION PARADE IS NOT NECESSARY

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…where there is good and cogent evidence connecting the accused person to the commission of the crime, identification parade may not be necessary.

“In the case of Olayode vs. State (2020) LPELR-52519(SC), the Apex Court per Mohammad, JSC held thus:

“I agree with the learned DPP for the Respondent that where there is sufficient evidence linking the accused with the offences charged, as is the case herein, identification parade is unnecessary and superfluous. Therefore, whenever the trial Court is confronted with identification evidence, it is expected to ensure and be satisfied that the evidence proves beyond reasonable doubt the accused before the Court was the person who actually committed the offence with which he is charged.”– Per A. S. Umar, JCA”

 

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CONFESSIONAL STATEMENT – WHEN A COURT CAN CONVICT ON A RETRACTED CONFESSIONAL STATEMENT

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“…there is no better evidence than confessional statement in our criminal procedure. See John vs. State (Supra) and once a confessional statement is duly admitted in evidence, the trial Court can safely convict an accused person based on it. See Solola vs. State (2005) 11 NWLR (Pt. 937) 460.

Assuming this Court wants to agree that the confessional statement of the Appellant was retracted, it is the law that the Court can still convict on it subject to the rules laid down in R vs. Skyes (1913) 8 CAR 223 and approved by the West African Court of Appeal in Kanu vs. King (1952) 14 WACA 30. 89 and the Supreme Court in the case of State vs. Masiga (2018) 8 NWLR (Pt. 1622) 383 where the Apex Court set out the test when it held thus:

“A court can convict on the retracted confessional statement of an accused person, but before this is properly done the trial judge should evaluate the confession and testimony of the accused person, which is different from his retracted confession and then ask himself the following questions:

a. is there anything outside confession to show that it is true?

b. is it corroborated?

c. are the relevant statements made in it of facts true as far as they can be tested?

d. did the accused person have the opportunity of committing the offence charged?

e. is the confession possible?

f. is the confession consistent with other facts which have been ascertained and have been proved?”

It is important that before conviction can be properly based on a retracted confessional statement there ought to be some corroborative evidence outside the confession which would make it probable that the confession was true. See Haruna vs. AG of Federation (2012) LPELR-7821(SC). – Per A. S. Umar, JCA

 

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CONFESSIONAL STATEMENT – DUTY OF THE COURT WHEN AN ACCUSED OBJECTS TO A CONFESSIONAL STATEMENT

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“First, it is worthy of note that the position of the law is that when an accused person objects to a confessional statement on the ground that it was not voluntarily made by him, the trial Court has a duty to try the issue of the voluntariness or otherwise of such statement through the conduct of a trial within trial. See Giki vs. State (2018) LPELR-43604 (SC); Gbadamosi vs. State (1992) 1 NWLR (Pt. 266). Failure of a trial Court to conduct trial within trial where issue of voluntariness of a confessional statement is raised, renders such statement inadmissible. See the case of Emeka vs. State (2001) 14 NWLR (Pt.734) 666 where the Supreme Court per Ogwuegbu JSC stated thus:

“The law is that where an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty of the judge to test the confession by conducting a trial within trial in order to determine whether in fact, the statement was voluntarily made” – Per A. S. Umar, JCA”

 

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COUNSEL – UNFETTERED DISCRETION OF RETAINED COUNSEL TO CONDUCT HIS CLIENTS CASE

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It is trite that a Counsel retained to conduct a case has the unfettered discretion on how to conduct the case and the clients are bound by the way and manner Counsel conducts their case, the remedy available to a dissatisfied client is to withdraw the brief. See Benjamin Oyakhere vs. The State (2005) LPELR-11325; Mosheshe General Merchants Ltd vs. Nigeria Steel Products Ltd (1987) 2 NWLR (Pt.55) 110. – Per A. S. Umar, JCA

 

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CONFESSIONAL STATEMENT – PROCEDURE WHEN AN ACCUSED ALLEGES THAT A CONFESSIONAL STATEMENT CREDITED TO HIM IS NOT VOLUNTARY

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“The law is that when an accused person alleges that the confessional statement credited to him is not voluntary, objection must be raised to its admissibility when the statement is sought to be tendered and not after it has been admitted in evidence. See Abayomi Olalekan vs. The State (2002) 2 SCN 104. The Appellant was represented by Counsel who it is assumed to know or ought to know what to do at each stage of the criminal trial. It is the law that a party who consented to a document being admitted in evidence is estopped from resiling.

I am fortified to reach the above conclusion by the pronouncement of the Supreme Court in the case of Orji vs. Federal Republic of Nigeria (2019) LPELR-46534(SC) per Ejembi Eko, JSC where it was held that:

“This Court, in all cases where a document was tendered without objection or by consent at the trial, has held that the best time to object to the admissibility of a document is at trial and at the time the document was being tendered for admission in evidence and not by way of appeal.”

The Appellant is estopped from approbating and reprobating; there should be consistency in the presentation of his case at the trial and on appeal because blowing hot and cold is evidence of lack of confidence and good faith in one’s case. See Hudu vs. Federal Republic of Nigeria (2015) LPELR-40898(CA). – Per A. S. Umar, JCA”

 

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CONFESSIONAL STATEMENT – CONFESSIONAL STATEMENT MUST BE VOLUNTARILY MADE TO BE ADMISSIBLE AGAINST THE ACCUSED

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“The summary of the provision of the ACJL under consideration is that a police officer shall ensure a confessional statement of an accused person shall be recorded in a video or made in the presence of a legal practitioner of his choice in the absence of video facility.

It must be emphasized that by every standard, a confession must be voluntary, unequivocal, free, and given without oppression or duress. In the case of COP vs. Alozie [2017] 7 NLWR [Pt. 1565] 368 at 387-389, the Supreme Court categorically held that the courts are bound to reject an accused person’s confessional statement obtained by the use of torture, duress, threat, or inducement. It is, therefore, a positive rule of Nigerian accusatorial jurisprudence that no statement of an accused person is admissible against him unless it is shown by the prosecution to have been made voluntarily. – Per A. S. Umar, JCA”

 

 

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CONFESSIONAL STATEMENT – THE NEED TO ABIDE BY PROCEDURAL GUIDELINES IN TAKING CONFESSIONAL STATEMENTS

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“It is my view that the purpose of section 9(3) of the ACJL is to remove every reasonable doubt as to the voluntariness or otherwise of the confessional statement. Where the circumstances surrounding the making of a confessional statement are shrouded and shaded, it raises the question of voluntariness or coercion.

Even where a confessional statement is made by the free will of the Appellant without following the procedural guidelines provided in section 9(3) of the ACJL, it will most often take the prosecution through the rigors of always striving to establish voluntariness whenever the question arises.

Therefore, compliance with the provisions of Section 9(3) of the ACJL is not only to achieve transparency in the arrest and the arraignment process or merely for the protection of the defendant during the arrest and trial process, it is to assist greatly the court during the trial within a trial. It will also safeguard the prosecution against malicious questions of voluntariness because it can be safely deduced that trial within a trial is usually necessitated by prosecutorial ineptness and unreliability of police officers who fail in their duty to ensure that statements extracted from suspects in their custody are obtained without any form of oppression and such statements are to be expunged. See the case of Augustine Ibeme vs. the State (2013) LPELR- 20138(SC).

However, non-compliance with the provisions of Section 9(3) of the ACJL does not render a confessional statement inadmissible. In the case of Tosin Kadiri vs. State [2019] LPELR- 47714CA, this court held that:

‘…the requirements of Section 9 (3) of the Administration of Criminal Law will not by itself render inadmissible a confessional statement that was not recorded in accordance with its tenets. It can only form part of the snippets on the basis of which a Court can infer, alongside other established evidence, that a confessional statement was obtained by oppression or circumstances which may have rendered unreliable any confession.’

Also, the Supreme Court in the case of Ajiboye vs. Federal Republic of Nigeria (2018) 13 NWLR (Pt. 1637) 430 at 452 per Sanusi JSC insightfully pronounced on the dispensability of the presence of Counsel when the statement of an accused person is being recorded. The Apex Court held that:

‘on the alleged absence of his Counsel when it was recorded, I think that reason is not cogent as it is not incumbent upon the prosecution to record an accused statement only in the presence of his Defense Counsel. The important and essential thing is that words of caution must be administered to the accused person to his understanding and to endorse the same before he decides to make the statement’ – Per A. S. Umar, JCA”

 

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EVIDENCE – THE DUTY OF THE NATIONAL ASSEMBLY TO MAKE LAWS ON EVIDENCE

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“It is worthy of note as well that Section 4 of the 1999 Constitution of the Federal Republic of Nigeria, as amended bestows legislative powers on the National Assembly and the State Houses of Assembly. Each legislative body is restricted to matters assigned to it. Evidence is listed as item 23 on the Exclusive legislative list; therefore, laws on evidence are exclusively reserved for the National Assembly to make. The State Houses of Assembly do not have the constitutional power to make laws on evidence.

Flowing from the above, the admissibility of documents in evidence is regulated by the Evidence Act, 2011 and the provision of Section 9 (3) of the ACJL. A law enacted by the House of Assembly of Lagos State cannot govern the admissibility of evidence in the criminal proceedings at the lower Court. See Benjamin vs. Kalio (2018) 15 NWLR (Pt. 1641) 38. – Per A. S. Umar, JCA”

 

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CASES CITED

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STATUTES REFERRED TO

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1.Constitution of the Federal Republic of Nigeria 1999 (as amended)

2.Criminal Law of Lagos State, 2011

3.Administration of Criminal Justice Law of Lagos State, 2011

4.Evidence Act, 2011

 

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