CORAM

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OLUKAYODE ARIWOOLA

OLUKAYODE ARIWOOLA

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PARTIES

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TAJUDEEN ADISA

APPELLANTS

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THE STATE

RESPONDENTS

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

The Appellant and his co-accused were tried for conspiracy to commit armed robbery and armed robbery and were sentenced to death for the said offences by the Ogun State High Court. They appealed against their conviction and sentence to the Court of Appeal, Ibadan, which held that the prosecution proved the first ingredient of the offence namely that there was a robbery. But on the second ingredient, the trial court held that since the prosecution failed to tender the cutlass and the axe which were allegedly used in the armed robbery operation and no explanation was supplied for the failure to tender them, the armed robbery was not proved. On this basis the lower court set aside the conviction and sentence to death of the Appellants for conspiracy and armed robbery but found them guilty of conspiracy and robbery simpliciter and sentenced them to 21 years imprisonment each without option of fine on each of the counts. The court ordered that the sentences should run concurrently. Further dissatisfied, 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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Whether the Court of Appeal was right when, although it set aside the conviction by the trial court, of the appellant for the offences of conspiracy to commit armed robbery and armed robbery and thereupon quashed the sentences of death passed by the said court; yet it found the appellant guilty of conspiracy to commit robbery and robbery in the absence of cogent, credible and sufficient evidence before it which proved that in fact, there had been a robbery and/or that, if there had indeed been a robbery, the appellant was involved in same?

 

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RATIONES DECIDENDI

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CONFESSION -WHETHER A COURT CAN CONVICT AN ACCUSED PERSON SOLELY ON HIS RETRACTED CONFESSION

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“The law is settled beyond peradventure that a court may convict an accused person solely on the basis of his confession even when he has retracted or resiled from the confession. See: Ikemson v. State (1989) 3 NWLR (Pt.110) 455.”

 

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CONFESSIONAL STATEMENT- STEPS A COURT SHOULD TAKE WHERE AN ACCUSED PERSON DENIES MAKING A CONFESSIONAL STATEMENT

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“It is also the law that where an accused person outrightly denies making a confessional statement, the trial court should admit the statement in evidence as an exhibit and decide later whether or not such denial avails the accused. In other words the Court should evaluate the confession, the testimony of the accused and the other pieces of evidence adduced at the trial and then decide if there is any independent or corroborative evidence no matter how slight showing that the offence was committed and it was the accused who committed it See: Onyegbu v. State (1994) 1 NWLR (Pt. 320) 328: Dele v State (2011) 1 NWLR (Pt. 1229) 508.”

 

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CORROBORATIVE EVIDENCE- NATURE OF THE CORROBORATIVE EVIDENCE NEEDED TO CONVICT AN ACCUSED PERSON WHERE HE DENIES HIS CONFESSION

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“The corroborative evidence needed to convict an accused must be evidence which confirms in some material particulars not only that the crime has been committed but also that it was the appellant who committed it. See: Mbele v. State (1990) 4 NWLR (Pt. 145) 484.”

 

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FINDING OF FACTS BY A TRIAL COURT – INSTANCE WHEN AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF FACT OF A TRIAL COURT

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“This is a finding made by the trial Judge who is in the vantage position of assessing the credibility of the witnesses in the trial by watching their demeanor and from that vantage position has the privilege of believing and accepting the evidence of the witness in preference to the evidence adduced by the defence. See: Adelumo v. State (1988) 1 NWLR (Pt. 73)683 and Sugh v. State (1988) 2 NWLR (Pt. 77) 478. Any finding of a court based on facts cannot and will not be interfered with by an appellate court unless the finding is perverse and is not supported by credible evidence. See: Anyegwu v. Onuche (2009) 3 NWLR (Pt. 1129) 659; Nwokorobia v. Nwogu (2009) 10 NWLR (Pt. 1150) 553.”

 

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CONTRADICTIONS – NATURE OF CONTRADICTIONS THAT WOULD WARRANT THE SETTING ASIDE OF A LOWER COURT’S JUDGMENT BY AN APPELLATE COURT

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“It is trite that an appellate court will set aside a lower court’s judgment on the ground that there are contradictions only when such contradictions are material contradictions See: Archibong v. State (2006) 14 NWLR (Pt. 1000) 349.”

 

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MATERIAL CONTRADICTION- NATURE OF EVIDENCE THAT QUALIFIES AS MATERIAL CONTRADICTION

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“The evidence that will qualify as material contradiction is the evidence that will cast reasonable doubt as to the guilt of the accused. See: Nwabueze v. State (1988) 4 NWLR (Pt. 86) 16.”

 

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COMMISION OF CRIME- WHETHER THE TENDERING OF WEAPONS USED IN THE COMMISSION OF CRIME CONSTITUTES PROOF OF THE CRIME

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“While conceding that if weapons allegedly used in a robbery operation are tendered in evidence, this will make the prosecution’s case watertight but it is not sine qua non to proving armed robbery and the law still remains that if there are other pieces of evidence on which the Court can rely to convict for the offence charged, the conviction will not be set aside See: Fatai Olayinka v. State(2007) 9 NWLR (Pt. 1040) 561.”

 

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IDENTIFICATION PARADE- WHETHER A FAILURE TO CARRY OUT AN IDENTIFICATION PARADE IS A GROUND FOR SETTING ASIDE A CONVICTION

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“The same principle applies with identification parade. If the accused can be identified by some means other than through an identification parade, his conviction should not be set aside simply because an identification was not carried out. See: Bassey Akpan Archibong v. State (2004) 1 NWLR (Pt. 855) 488: Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501.”

 

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DISMISSAL OF AN APPEAL – GROUND UPON WHICH AN APPEAL CAN BE DISMISSED

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“Firstly, because the appeal is against the concurrent findings, of fact by the two courts below and appellant having not shown that the findings are perverse the appeal must accordingly fail. See Ezeanah V. Atta {2004} LPELR-1198 (SC) and Yesufu V. Adamawa (2010) LPELR-3523 (SC)”.

 

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EVALUATION OF EVIDENCE – WHETHER APPELLATE COURTS ARE AT LIBERTY TO INTERFERE WITH THE EVALUATION OF EVIDENCE BY A TRIAL A COURT

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“It must be stressed that where, as in this case; the appellant begrudges the evaluation of evidence undertaken by the trial court and credibility of the witnesses is made an issue, the lower court and indeed this Court are all in a disadvantaged position except where the trial court failed or did the evaluation and drew wrong inferences. The trial court that saw and assessed the credibility of the witnesses’ remains best empowered to consider their testimonies and assign probative value to them. See Odofin V. Mogaji (I978) 4 SC 91at 93 and Ayorinde & 0rs V. Sogunro & 6 ors (2012) 4-5 SC 150. In the case at hand the appellant who failed to show that the trial court’s findings as affirmed by the lower court are not borne by the evidence on record must have his appeal dismissed. See Uka V. Irolo (2002) 7 SCNJ 137 and Atolagbe V. Shorun (2012) 4 SC (Pt 1) 250.

 

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CREDIBILITY OF WITNESSES – ATTITUDE OF THE SUPREME COURT WHEN AN APPEAL BOTHERS ON THE ISSUE OF CREDIBILITY OF WITNESSES

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“This Court is handicapped when an Appeal turns on the issue of credibility because it is the trial Court that saw the witnesses, heard them and watched their demeanour in Court that is in the position to believe or disbelieve the witnesses, and its belief can only be questioned on appeal, if it is against the drift of the evidence when considered as a whole – see Adelumola V. The State (1988) 1 NWLR (Pt. 73) 683 SC”.

 

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FINDINGS OF FACTS BY A TRIAL COURT – CIRCUMSTANCES WHERE THE SUPREME COURT WOULD INTERFERE WITH THE FINDINGS OF FACTS BY A TRIAL COURT

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“There is a rebuttable presumption that its findings on primary facts are correct, and the duty of this Court to interfere with improper findings or correct erroneous conclusions by the trial Court would only come into play where the trial Court had failed to properly examine and evaluate the evidence before the Court – see Sanni V. The State (1993) 4 NWLR (Pt. 285) 99 and Nwankwoala V. State (2005) 12 NWLR (pt 940) 637”.

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Evidence Act 2011

Robbery and Fireams (Special Provisions) Amendment Decree 1971

 

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