OLUFEMI BABATUNDE Vs THE STATE

APPEAL NO: SC. 516/2014

Areas Of Law:

Appeal, Court, Criminal Law And Procedure, Law Of Evidence, Practice And Procedure, Words And Phrases

Summary Of Facts

The Appellant was convicted for the offence of armed robbery punishable under section 1(2) (a) and (b) of the Robbery and Fire arms (Special Provision) Act, Laws of the Federation of Nigeria 2004, he was hence sentenced to death by the High Court of Kwara State.

The case of the prosecution as presented before the trial court is that the Appellant in the company of others robbed one Alhaja Sariyu Olorunnisola of her Nissan Murano Jeep, Jewelleries, money and phones. The prosecution alleged that the Appellant was armed with gun when the offence was committed.

It was the prosecution’s case that on the 4th June, 2011, a traffic warden brought an 18 – seater passenger bus into the Nigeria Police Divisional Headquarters, Owode, Offa, for search. In the course of the search, the Appellant and another passenger in the bus were arrested while trying to escape from the scene with a black sack containing 3 guns – 2 locally made pistols and one double barrel gun with 14 cartridges. The Appellant was subsequently identified as one of the people who robbed Alhaja Olorunnisola during an identification parade. The Appellant made a confessional statement which was admitted in evidence after trial within trial was conducted.

The Appellant’s defence before the trial court is that some people who boarded that same bus had alighted along the way before the search of the bus. He gave evidence that the guns were not found on him and that it was a policeman at the police station that pointed at him and told the complainant (PW2) that he was the person that robbed her.

The trial judge found the Appellant guilty as charged and sentenced him to death by hanging. The Appellant’s appeal to the Court of Appeal was dismissed for lacking in merit. Further dissatisfied, the Appellant appealed to the Supreme Court.

 

Held

Appeal Dismissed.

 

Issues For Determination

– Whether the Court of Appeal was not in error in affirming the Judgment of the High Court when there was no proper identification of the appellant in this matter.

– Whether the Court of Appeal was right to have allowed the confession of a co-accused bind the appellant.

– Whether there was any corroboration of the retracted confessional statement of the Appellant.

– Whether offence of armed robbery has been proved beyond reasonable doubt for the Court of Appeal to have upheld the conviction of the Appellant.

– Whether the defence of the Appellant was considered by the High Court and Court of Appeal.

 

Rationes

IDENTIFICATION – DEFINITION OF IDENTIFICATION

“What is identification? This court in The State v. Aibangbee (1988) 3 NWLR CPL 84) 548, defined identification to mean: “a whole series of facts and circumstances for which a witness or witnesses associate a defendant with the commission of the offence charged. It may consist of or include evidence in form of finger prints, handwriting, palm prints, voice, identification parade, photographs or the recollection of the features of the culprit by a witness who saw him in the act of commission which is called in question or a combination of two or more of these.” See also Anyanwu v. The State (1986) 5 NWLR CPL 43) 512, Eyisi v. The State (2001) 15 NWLR CPL 691) 555.

Also in Adeyemi & ors v. The State (1991) LPELR -168 (Sc) page 23 paragraphs C -E, this court held that

“It is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade, identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined; nothing stops a trial judge from accepting his evidence.”

– PER J. I. OKORO, J.S.C

 

EVIDENCE OF IDENTIFICATION – NATURE OF EVIDENCE OF IDENTIFICATION

“After all, evidence of identification is such tending to show that the person charged with an offence is the same person who was seen committing the offence. The PW2 and PW3 have identified the appellant as one of those who robbed them, the stolen items were recovered from the appellant, and this linkage is, to say the least, proof of identification and indeed of the charge beyond reasonable doubt. See Thomas v. The State (2017) LPELR – 41735 (Sc), Adebayo v. The State (2014) LPELR – 22988 (Sc).” PER J. I. OKORO, J.S.C

 

CONFESSIONAL STATEMENT- ADMISSIBILITY OF CONFESSIONAL STATEMENT

“The law is trite that a confessional statement is admissible if it is direct,; cogent, positive and relates to the acts of the accused person, knowledge and intention, stating and/or suggesting the inference that he committed the crime charged. See Solomon Thomas Akpan v. The State (1992) 6 NWLR CPL 248) 439, Yesufu v. The State (1976) 6 Sc. 167, Obasi v. State NMLR 129.” PER. J. I. OKORO, J.S.C

 

CONFESSIONAL STATEMENT-WHETHER THE CONFESSIONAL STATEMENT OF A CO-ACCUSED CONSTITUTES EVIDENCE AGAINST AN ACCUSED PERSON

“It is settled law by statute and judicial pronouncement that the confessional statement of a co-accused is no evidence against an accused person who has not adopted the statement. That is to say, except an accused person adopts the confessional statement of a co-accused, the said -‘confessional statement cannot be used against him. See Ozaki & anor v. The State (1988) 1 SC. 109, (1990) 1 NWLR CPL 124) 92, Evbuomwam v. COP (1961) WNLR 257, The State v. Onyeukwu (2004) 14 NWLR CPL 893) 340, The State v. James Uwangwan (2015) LPELRR – 24837 (SC).” PER J. I. OKORO, J.S.C

 

CONFESSIONAL STATEMENT- EXCEPTION TO THE RULE THAT THE CONFESSIONAL STATEMENT OF A CO-ACCUSED IS NO EVIDENCE AGAINST AN ACCUSED PERSON

“However, where two accused persons make confessional statements implicating each other, and there are evidence outside their respective confessional statements, the court can convict each accused person based on his own confession. Any reference to the confessional statement of either accused person which, in the first place, are similar with identical features, by the trial judge, will not vitiate the conviction. This, to my mind, is an exception to the general rule. It would be different where one of the accused persons makes a confessional statement while the other denies the offence. See Adeleke v. The State (2013) LPELR – 20971 (Sc), Oyakire v. The State (2006) 12 SCM (Pt. 1) 369 at 380-381.” PER J. I. OKORO, J.S.C

EVIDENCE BY THE PROSECUTION – WHETHER THE COURT CAN CONVICT ON THE EVIDENCE ADDUCED BY THE PROSECUTION

“The law is trite that where the evidence adduced by the prosecution is cogent and positive that it leaves no room whatsoever for any other conclusion other than that it was the accused that committed the offence, the court can safely convict on such evidence. See Arogundade v. The State (2009) All FWLR (PL 469) 409 at 421, Kim v. The State (1999) 2 NWLR (PL 175) 662.” PER J. I. OKORO, J.S.C

CONFESSIONAL STATEMENT- GUIDING PRINCIPLE IN ASSESSING THE QUALITY OF A CONFESSIONAL STATEMENT

“In R V Sykes (1913) 8 CAR page 233, the principle guiding the court in assessing the quality of a confessional Statement whether retracted or not are;-

1. Is there anything outside the confession which shows that it may be true?

2. Is it corroborated?

3. Are the relevant statements of fact made in it true as far as can be tested?

4. Was the accused one who had the opportunity to commit the offence?

5. Is the confession possible?

6. Is it consistent with other facts which have been ascertained?

See also Onyene v. The State (2012) 15 NWLR (PL 1324) 586, Okoh v. The State (2009) All FWLR (PL 453) 1358, Alar ape v. The State (2001) 5 NWLR (PL 705) 79.” PER J. I. OKORO, J.S.C

 

OFFENCE OF ARMED ROBBERY- ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

“The essential ingredients of the offence of armed robbery may be stated as follows:-

1. That there was a robbery or series of robberies.

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

3. That the accused was the rober or one of those who took part in the armed robbery.

See Afolalu v. The State (2010) 16 NWLR CPL 1220) 584, Ikana v. The State (2014) 1 NWLR CPL 1389) 639.

These three ingredients of the offence of armed robbery must co-exist and be proved beyond reasonable doubt in order to secure a conviction.” PER J. I. OKORO, J.S.C

PROOF BEYOND REASONABLE DOUBT – MEANING OF PROOF BEYOND REASONABLE DOUBT

“Both the trial court and the court below agree that the three ingredients of the offence of armed robbery were proved beyond reasonable doubt and that proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt. It simply means establishing the guilt of an accused person with compelling and conclusive evidence, a degree of compulsion which is consistent with a high degree of probability. See Kolade v. The State (2017) LPELR – 42362 (SC), Osuagwu v. State (2013) 5 NWLR CPL 1347) 360; Oseni v. The State (2012) 5 NWLR CPL 1293) 351, Baker v. The State (1987) 1 NWLR CPL 52)579.” PER J. I. OKORO, J.S.C

 

DEFENCES – DUTY OF THE COURT TO CONSIDER ALL DEFENCES RAISED BY AN ACCUSED PERSON

“In Nwanga Nwuzoke v. The State (1988) LPELR – 2135 (SC) at page 9 paragraph B-E, this court held as follows:

“The adjudication process in this our adversarial system of administration of justice demands that every defence available to the accused on the evidence and facts before the court must be considered by the court. To refrain from a consideration of the defence because it is considered weak, farfetched, foolish, conflicting, unfounded and false is to ere seriously in the discharge of one’s duty as a Judge. Where there is no evidence to warrant consideration of the defence, the trial judge has no duty to consider the defence. It is not the duty of the judge to scout round for defences where there are none and where the evidence does not suggest one. See R. Kwabena Bio (1945) 11WACA 46 at P.48.”

(Also reported in (1988) 1 NWLR (pt. 72) 529 however, the duty of the court to consider all defences implicit in the evidence though not specifically raised. Where the prosecution has led cogent and overwhelming evidence against an accused person, as in this case, and the accused has made-a confessional statement admitting the commission of the offence, and thereafter merely denied same, I think it will be uncharitable to accused the trial court for not considering the defences “available” to the accused. It must be noted that the defence must be available in the evidence and not to be imported into the evidence by the court.” PER J. I. OKORO, J.S.C

 

DEFENCES – DUTY ON COURTS TO CONSIDER ALL DEFENCES AVAILABLE TO AN ACCUSED PERSON

“It is a fact that has become trite that all defences directly or remotely open to an appellant must be considered by the court in the interest of justice. The matter is so well engrained in our criminal justice system that the defences need not be raised by the accused/appellant before it can be considered and possibly inure to the advantage of the appellant. Therefore whenever a defence is raised by the appellant however slight or farfetched it might look on the surface, it is not for the court to brush it aside without a consideration thereof. See Akpabio v State (1994) 7 NWLR (Pt.359) 671; Ahmed v State (1999) 2 NWLR (Pt.612) 641 at 676; Ojo v State (1973) 11 SC 331 at 339; Peter v State (1994) 5 NWLR (Pt.342) 45 at 74-75.” PER M.U. PETER-ODILI,J.S.C

 

IDENTIFICATION EVIDENCE- DUTY OF COURT WHEN FACED WITH IDENTIFICATIONEVIDENCE
“When a trial court is faced with identification evidence, as in this instant case, all it is required to do is to be satisfied that the evidence of identification established the guilt of the accused beyond reasonable doubt. See Orimoloye v The State (1984)10 SC (Reprint)128; Ukpabi Vs The State (2004)6-7 SC 27.” PER A. SANUSI, J.S.C

 

CONFESSION – DEFINITION OF CONFESSION

“The word “confession” has been defined in Section 27(1) of the Evidence Act as an admission made by a person that he was responsible of committing the offence or offences. The trial court however always has a duty to consider the circumstances under which it was given and to decide what weight to be attached to it. See Akpan v The State (2008)4-5SC (pt. II)l, Oseni v The State (2012)2 SC (pt. II)51; State v Isah & 20rs (2012)7 SC (pt. III)93; Bassey v The State (2012)4-5 SC 11″ PER A. SANUSI, J.S.C

 

CONFESSIONAL STATEMENT- DUTY OF COURTS IN RELYING ON CONFESSIONAL STATEMENT TO CONVICT AN ACCUSED PERSON

“For a trial court to rely on a confessional statement to convict an accused person, it must be sure that the confession is direct, clear, unambiguous and positive. See FRN v Iweka (2011)11-12 SC (pt. I)109; Bright v The State (2012)1 SC (pt. II)47; Adesina v The State (2012)6 SC (pt.III)114.” PER A. SANUSI, J.S.C

 

Statute Referred To

Evidence Act

 

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