In the Supreme Court of Nigeria Holden at Abuja On Friday, the 11th day of June, 2021

Before Their Lordships
Amina Adamu Augie
Uwani Musa Abba Aji
Mohammed Lawal Garba
Samuel Chukwudumebi Oseji
Emmanuel Akomaye Agim
Justices, Supreme Court

SC. 1149C/2018

Between

Akeem Afolabi Appellant

And

The State Respondent

(Lead Judgement delivered by Honourable Samuel Chukwudumebi Oseji, JSC)

Facts

The Appellant was jointly charged with two others and arraigned at the High Court of Kwara State, on charges of conspiracy to commit armed robbery and armed robbery. The Prosecution’s case was that the Appellant, together with two others, while armed with a gun, robbed the Complainant of her Honda CRV car at the gate of her house. The Prosecution also alleged that the armed robbers drove the car to Ibadan, sold it for the sum of N300,000.00 and shared the proceeds amongst themselves. Sometime in August 2013, the Complainant was called to the station where she was informed that the accused persons had been arrested, and they were subsequently charged to court. In proof of its case, the Prosecution called three witnesses and tendered seven Exhibits – Exhibit P1 – P7.

The Appellant denied the case of the Prosecution, and alleged that he was arrested while on his way to Lagos on 15th April, 2013 at Odo-Oba, Oyo State. He posited that because he had an appointment in Lagos at 3pm on the day he was arrested, he was forced to seek alternative means of transportation where he walked to the highway and flagged down an oncoming Sienna vehicle. As he made to enter the Sienna, two men in mufti alighted from the Sienna vehicle, pointing guns at him, and ushered him into the Sienna, where he met two other persons who had also been arrested, and they were taken to the Special Armed Robbery Squad Office, Ilorin. It was also his case that, he did not make or sign any confessional statement. The Appellant and the other accused persons, testified in their defence.

At the end of the trial, the court convicted and sentenced the Appellant and others to death by hanging. Dissatisfied with his conviction and sentence, the Appellant appealed to the Court of Appeal, which court dismissed the appeal. Still dissatisfied, the Appellant further appealed to the Supreme Court.

The Respondent, in its Brief of Argument, raised a Preliminary Objection challenging an issue formulated by the Appellant, on ground that the issue was a fresh issue for which no leave of court was sought and obtained.

Issues for Determination

In the substantive appeal, the following sole issue was considered by the court:
“Whether the offences the Appellant was convicted for were proved beyond reasonable doubt by the Respondent (as Prosecution), having regard to the evidence adduced at the trial.”

Arguments

Arguing the Preliminary Objection, counsel for the Respondent submitted that where a party seeks to argue before the court any fresh issue not canvassed at the lower court(s), whether the issue pertains to law or otherwise, leave to file and argue the issue must be first be sought and obtained pursuant to Order 6(5) of the Supreme Court Rules, 2008. Responding to the submission above, counsel for the Appellant submitted that the Appellant gave notice of his intention to seek leave of court, to raise and argue the ground of appeal complained of before or at the hearing of this appeal. Counsel urged the court to countenance the Ground of Appeal in question (Ground 5), to avoid a serious miscarriage of justice from being occasioned to the Appellant who may likely be prejudiced by the pieces of evidence of character admitted by the trial court, when the Appellant did not put his character in issue in line with the provisions of the Section 82 of the Evidence Act, 2011. Counsel reasoned that the question of bad character is one of exceptional public importance, which the court below could have raised suo motu to prevent an obvious miscarriage of justice. He relied on CHUKWUEKE v THE STATE (1991) 7 NWLR (Pt. 205) 604 at 619d-620h.

Regarding the sole issue in the substantive appeal, counsel for the Appellant submitted that in a criminal charge, the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt by virtue of Section 138 of the Evidence Act. And, to succeed in proving the commission of the offence of conspiracy under Section 6(a)of the Robbery and Firearms Act, the Prosecution has a burden to establish the existence of an agreement between two or more persons to do an illegal act, or an act which is not illegal by illegal means; that the illegal act was done in furtherance of the agreement; and that each of the accused persons participated in the illegality. Counsel added that the basic requirements of an offence of armed robbery which the Prosecution is obliged to prove before the conviction of the Appellant, is the identity of the Appellant and the participation of the Appellant in the act of robbery, beyond reasonable doubt. Counsel maintained that, the Prosecution woefully failed to prove that the Appellant was one of the armed robbers who robbed the Complainant. He relied on ALABI v THE STATE (1993) 7 NWLR (Pt. 307) 511. Counsel argued that the Appellant’s confessional statement (Exhibit P4), being a photocopy of a public document, is inadmissible in law; the only form of secondary evidence of a public document that is admissible is the certified true copy of the original; and where a piece of evidence that is inadmissible in any event is admitted, it is the duty of the court to expunge it from the record – AROMOLARAN v AGORO (2014) LPELR-24037, SC. On the need to corroborate Exhibit P4, counsel contented that before a conviction can be based on such retracted confessional statement, there should be some corroborative evidence outside the confession which will make it probable that the confession is true.
In reaction, counsel for the Respondent submitted that where an accused person, as in this case, admits to the commission of a crime, narrates where and to whom he sold the stolen items obtained from the robbery, and goes further to plead with the victim to forgive him for the heinous crime committed, then a formal identification parade is not only irrelevant, but waste of precious time. Counsel relied on the case of OKASHETU v THE STATE (2016) All FWLR (Pt. 861) 1262. On the issue of admissibility of a photocopy of Exhibit P4, counsel submitted that the grouse of the Appellant is totally misconceived; the issue was never raised before the trial court and that Exhibit P4 was a statement made in the handwriting of the Appellant which was admitted by the learned trial Judge after an extensive trial-within-trial. On the need for corroboration of Exhibit P4, counsel to the Respondent argued that an accused person can be convicted on his own confession alone, whether retracted or not, provided that the confession is free, voluntary, direct, and positive. Once these attributes are present, a confessional statement must rank amongst the highest, if not the highest method by which the commission of a crime is proved- ABIRIFON v THE STATE (2013) All FWLR (Pt. 707) 665.

Court’s Judgement and Rationale

In line with its practice, the Apex Court considered first, the Preliminary Objection. The court however, noted that any objection to a ground or some grounds of appeal, where the other grounds are in order, should be by way of Motion on Notice to strike out the incompetent ground; and this could be argued in the brief and not by way of Preliminary Objection. A perusal of Ground 5 together with its particulars would reveal that the issue canvassed therein was raised in this court for the first time; it is a fresh issue and nowhere on record can it be found that leave was granted to the Appellant, to raise and argue a fresh issue. Mere indication of intention to seek leave, without more, does not obviate the need for the Appellant to seek and obtain the leave of court. In effect, the new ground is incompetent and hereby struck out.

Deciding the sole issue, the Supreme Court held by way of general restatement of the law that, the standard of proof required, and burden placed on the Prosecution, is one beyond reasonable doubt. It is elementary that to secure a conviction of armed robbery, under Section 1(2) of the Robbery and Firearms Act, the Prosecution must prove the following ingredients of the offence: that there was a robbery or series of robberies, that robbery or each of the robberies was committed by a person or persons who was or were armed, and that the accused person was either the robber or one of the persons that took part in the robbery- DONDOS v THE STATE (2021) LPELR-53380.

The court held that it is only the testimony of PW2 (the Complainant/Victim) that will be relevant, in determining whether or not there was a robbery at her residence and whether the robbers were armed with offensive weapons. The evidence of PW2 in this instance with regard to the robbery incident, is not only explicit and unequivocal, it was not discredited under cross-examination. Thus, by virtue of the evidence of PW2, the first ingredient of the offence of armed robbery has been established by the Prosecution beyond reasonable doubt. On the second ingredient, the Supreme Court held that, going by the evidence given by PW1 (the Exhibit keeper), PW2 (the Complainant/Victim) and PW3 (the Investigating Police Officer), the Prosecution has also established beyond reasonable doubt that the robbery incident at the house of PW2 was an armed robbery. On the third ingredient, the Apex Court held that there is no law requiring that an accused person must be seen at the scene of the crime, before he can be fixed with commission of the crime. Where the Prosecution adduces cogent, sufficient and acceptable evidence, fixing the accused person at the scene of the crime at the material time, the fact that he was not arrested at the scene of the crime pales into insignificance – STATE v SAIDU (2019) LPELR-47397(SC). Indeed, case law has devised three ways of establishing commission of a crime, which are: confessional statement of the accused, evidence of an eyewitness or circumstantial evidence. These three ways are not conjunctive, but disjunctive; however, a confessional statement is the best evidence to ground a conviction, and it can be relied upon solely where voluntary, and does not become inadmissible even if the accused person denied having made it – IDOWU v THE STATE (2000) 7 SC. The Supreme Court held that, Exhibit P4 was rightly admitted as an admission of the guilt of the Appellant by the courts below, and that the evidence fixed the Appellant at the scene of the crime; therefore, the third ingredient of the offence of armed robbery was established by the Prosecutor.

On the contention that Exhibit P4 was a photocopy and inadmissible, the Supreme Court held that Exhibit P4 is not a secondary copy of the original, and therefore, admissible.
On the offence of conspiracy, the court relied on the case of AKINLOLU v THE STATE (2017) LPELR-42670 for the definition of conspiracy, and held that all the evidence adduced at the trial inferentially showed that there was a conspiracy concert on when, how and where to carry out the robbery operations. The court therefore, upheld the concurrent decisions of the trial court and Court of Appeal, which held that the offence of conspiracy was proved beyond reasonable doubt.

Appeal Dismissed.

Representation
M.I. Hanafi with O.A Omolase and Y.A Yusuf for the Appellant.

J.A. Mumini, SAN (D.P.P. MOJ Kwara State) with K.U. Abimbola (ACSC for the Respondent).

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)