Judgment
EMMANUEL AKOMAYE AGIM, J.S.C.: (Delivering the Leading Judgment): This appeal No. SC.934/2016 was commenced on 8/8/2016 when the appellant herein filed a notice of appeal against the judgment of the Court of Appeal delivered on 24/6/2016 in CA/KA/148CA/2013, affirming the judgment of the High Court of Ondo State at Akure delivered on 16/5/2013 in criminal case No. AK/24C/2012 convicting and sentencing the appellant to death for conspiracy to commit armed robbery and armed robbery. The notice of this appeal contains 2 grounds for this appeal.
Both sides have filed, exchange and adopted their respective briefs as follows – appellant’s brief and respondent’s brief. The appellant’s brief raised the following issues for determination. 1.
Whether the judgment and decision of the Court of Appeal which unjustifiably failed and refused to consider and pronounce on the issue/defence of irregular use of confessional statement of co-accused to convict the appellant does not amount to a denial of the right to fair hearing of the appellant and thus rendering the judgment of the Court of Appeal arrived at such circumstances liable to be set aside (Ground 1) 2.
Whether, having regard to the entire circumstances of this case, the Court of Appeal was correct in affirming the conviction and sentence of the appellant for the offence of conspiracy and armed robbery when the requisite ingredient of the offences has not been proved beyond reasonable doubt by the prosecution. (Ground 2).
The respondent’s belief raised two issues for determination as follows- 1. Whether in the circumstances of this case and having regards to the evidence led before the trial Court, the Court of Appeal can be said to have dispassionately considered the appellant’s case before affirming his conviction for conspiracy and armed robbery. 2. Whether, in view of the evidence led before the trial Court, the Court of Appeal was right in upholding the conviction of the appellant for conspiracy and armed robbery.
I will determine this appeal on the basis of the issues raised in the appellant’s brief. Let me start with issue No. 1 I have carefully read and considered the arguments in the respective briefs on this issue.
Learned counsel for the appellant has strenuously argued that the appellant had in the Court of Appeal argued in his brief that it was wrong for the trial Court to rely on the confessional statement of the co-accused to convict the appellant and that the Court of Appeal failed to consider and determine the issue raised by that argument. But learned counsel for the appellant did not reproduce or refer to the part of the appellant’s brief in the Court of Appeal containing such argument. Without drawing our attention to such argument, we can reasonably presume that such argument was never made.
Learned counsel cannot just make such assertion without more and expect this Court to make his case for him by burrowing into the records to find out if he made such argument, and if it finds out that he did, use it to strengthen his argument and then decide the point, We would not want to step down into the arena in this way, in the face of two concurring decisions of Courts against him.
As it is, the said argument of learned counsel for the appellant lacks merit and is hereby dismissed. The records of this appeal show that the appellant herein was jointly charged and tried with Tayo Ikujuni for conspiracy to commit armed robbery and armed robbery. The appellant was the 2nd accused. Tayo Ikujuni was the 1st accused. The second confessional statement of 1st accused made on 30/7/2011 was admitted through PW3 as exhibit P14. His first confessional statement made on 27/7/2011 was admitted through PW7 as Exhibit P16.
The appellant (2nd accused) equally made two confessional statements, exhibits P15 and P16A.
The trial Court in its judgment reviewed in detail the testimonies of all the prosecution witnesses, the confessional statements of each accused, the evidence of the incriminating materials recovered from the appellant and the evidence of each accused in defence, before making findings of material facts on the basis of the totality of the evidence before it. It did not rely on the confessional statements of the 1st accused to convict the appellant (2nd accused).
It relied on the confessional statements of the appellant, which it fully reproduced verbatim in the judgment, the testimonies of PW1 to PW8 and the evidence of the appellant in defence as DW2 in convicting him. The argument of learned counsel for the appellant that the trial Court relied on the confessional statements of the appellant’s co-accused to convict the appellant is not supported by the terms of the judgment of the trial Court.
The appellant did not refer to or reproduce the part of the trial Court’s judgment that relied on the confessional statements of his co-accused to convict him. The argument is therefore not valid for consideration. It is incompetent. Arguments in an appeal must be based on what is contained in the record of the appeal. Allegations of events not contained in the record are not valid for consideration. Arguments on the basis of facts not contained in the record of appeal are incompetent. See Akpan v. The State (1987) 5 SCNJ 112; (1992) 6 NWLR (Pt. 248) 439.
For the above reasons, I resolve issue No. 1 in favour of the respondent.
Let me now determine issue No. 2 which asks: Whether, having regard to the entire circumstances of this case, the Court of Appeal was correct in affirming the conviction and sentence of the appellant for the offence of conspiracy and armed robbery when the requisite ingredient of the offences has not been proved beyond reasonable doubt by the prosecution (Ground 2).
The testimonies of PW1 to PW8 and exhibits P14 and P16, the extra-judicial confessional statements establish beyond reasonable doubt that the appellant and other persons conspired to commit armed robbery, that PW1, PW2 and PW4 were robbed in their houses on 27/7/2011, by the appellant and his gang of armed robbers, an armed robbery and the appellant participated in the armed robbery.
In the light of the foregoing, I hold that this appeal fails as it lacks merit. It is accordingly dismissed.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Agim, JSC, and I agree with him that this appeal completely lacks merit.
The issue in this appeal boils down to credibility of Witnesses, and “credibility” is the quality of being convincing or believable. Thus, since the trial Court has the liberty and privilege to believe one witness or disbelieve another, its findings based thereon, is almost sacrosanct, as its belief or disbelief can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole – Adelumola v. State (1988) 1 NWLR (Pt. 73) 683.
Besides, there is a rebuttable presumption that its findings of fact are correct, and the duty of this Court to interfere would only come into play where the trial Court failed to properly examine and evaluate the evidence before the Court. In this case, the Court of Appeal affirmed the trial Court’s findings predicated on the credibility of the witnesses. It believed the witnesses called by the prosecution and disbelieved the appellant.
The appellant has not provided this Court with any reason to question the concurrent findings of the trial Court and Court of Appeal that touches on credibility.
What is more, the law says that where there is sufficient evidence to support the concurrent findings of the two lower Courts, they will not be disturbed unless there is significant error apparent on the record; that is, the findings are shown to be perverse, or some miscarriage of justice or some violation of the principles of law or procedure is shown thereon – see Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509 SC. In this case, there is more than enough evidence established by the prosecution to support concurrent findings of fact by the trial Court and Court of Appeal.
In the circumstances, this Court cannot intervene.
It is for this and the other eloquent reasons in the lead judgment, which I adopt as mine in its entirety, that I also dismiss this appeal.
UWANI MUSA ABBA AJI, J.S.C.: I was privileged to read in advance the draft judgment of my learned brother, Emmanuel Agim, JSC, just delivered, and I agree with his reasoning and conclusion that this appeal be dismissed.
The appellant herein was the 2nd accused person and charged with conspiracy to commit armed robbery and armed robbery.
Thus, this appeal is connected with SC/933/2016. The confessional statements of the appellant contained in exhibits P14 and P16 (a), the testimonies of PW1-PW8, have linked the appellant to the robbery of 27/7/2011.
Worthy of note is that this appeal is an offshoot of the concurrent findings of fact of both the trial and lower Courts. This Court is always careful to interfere with such decisions except there is clear case of perversion or miscarriage of justice. The fate of the appellant is unfortunately sealed as the facts are against him. I therefore agree with the conclusion of my learned brother that this appeal grossly lacks merit and ought to be dismissed. It is hereby dismissed.
SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: The appellant along with several other persons on 27th July 2011 between 12:30am and 1:30am invaded houses in Ondo town including the houses of PW1 and PW4. They had successfully broken into the houses of the PW1 and PW4 and made away with several items before the police arrived and there was exchange of gun fire between the police and the armed robbers. The appellant was arrested on the account of the 1st accused person who had mentioned him as belonging to the gang that carried out the robbery operation.
The 1st accused person not only mentioned the appellant to the police but led them to the appellant’s house where the appellant was arrested. On the 19th day of November, 2012 the appellant alongside one other accused were arraigned in the High Court of Ondo State, Akure Division on an information containing one count of conspiracy to commit armed robbery and two counts of armed robbery. The appellant during the trial pleaded not guilty to all the counts. The prosecution called 8 witnesses while the appellant testified on his own behalf.
The trial judge in his judgment convicted and sentenced the appellant to death by hanging.
Aggrieved by the decision of the trial Court, the appellant appealed to the Court of Appeal, Akure Division via notice of appeal. The lower Court in its judgment delivered on the 24th day of June 2017 dismissed the appellants appeal and upheld the conviction and sentence of the appellant. Dissatisfied with the judgment of the lower Court, the appellant consequently filed a notice of appeal on the 8th of August 2016 containing two grounds. The following two issues were distilled for determination in the appellants brief of argument. To writ:- 1.
Whether the judgment and decision of the Court of Appeal which unjustifiably failed and refused to consider and pronounce on the issue/defence of irregular use of confessional statement of co accused to convict the appellant does not amount to a denial of the right to fair hearing of the appellant and thus rendering the judgment of the Court of Appeal arrived at such circumstance liable to be set aside (Ground 1). 2.
Whether, having regard to the entire circumstances of this case, the Court of Appeal was correct in affirming the conviction and sentence of the appellant for the offence of conspiracy and armed robbery when the requisite ingredient of the offences has not been proved reasonable doubt by the prosecution (Ground 2).
In the respondents brief of argument the following two issues were formulated:- 1. Whether in the circumstances of this case and having regards to the evidence led before the trial Court, the Court of Appeal can be said to have dispassionately considered the appellant’s case before affirming his conviction for conspiracy and armed robbery. 2. Whether in view of the evidence led before the trial Court, the Court of Appeal was right in upholding the conviction of the appellant for conspiracy and armed robbery.
I have carefully perused the submissions as contained in the parties’ briefs of argument. The submissions of the respondents in their brief of argument is basically a summary of the evidence adduced at the trial Court, the real issue raised in this appeal by the appellant is that the lower Court’s decision was hinged on the 1st accused confessional statement in dismissing the appeal.
A careful perusal of the judgement of the lower Court shows that the lower Court carefully examined the evidence adduced at the trial Court and rarely relied on the confessional statement of the appellant himself let alone that of the 1st accused. The lower Court decision is predicated on 3 main evidential points. 1. The evidence of PW5 (police) stating that the 1st accused led the police to the House of the appellant because he was one of the robbers. 2.
The appellant did not raise the issue of involuntariness of the confessional statement when they were tendered but instead raised it during his defence at the dock. 3. The appellant during the trial stated he had no gun on him and did not enter any of the houses broken into but merely kept watch. In summary, these pieces of evidence relied on by the lower Court in affirming the decision of the trial Court are basically fool proof as they were not rebutted by the appellant.
The lower Court did not rely on the confessional statement of the accused to convict the appellant but rather relied on the incriminating evidence of a co-accused. For emphasis and clarity I will cite the case of Mohammed Usman v. The State (2019) LPELR- 47396(SC) (2019) 15 NWLR (Pt. 1696) 411 where this Court held inter alia that:- “The position of the law is that the statement of a co-accused person to the police is binding on him only – See Suberu v. State (2010) 8 NWLR (Pt. 1197) 586.
However, where the evidence incriminating an accused person comes from a co-accused person, the Court is at liberty to rely on it as long as the co-accused person, who gave such incriminating evidence, was tried along with that accused person – See Dairo v. The State (2017) LPELR-43724(SC); (2018) 7 NWLR (Pt. 1619) 399 and Michael v. State (2008) 13 NWLR (Pt. 1104) 361.”
For this and the more detailed reasons given in the leading judgment of my learned brother E. A. Agim, JSC. I also hold this appeal lacks merit and deserves an order of dismissal. Appeal dismissed.
TIJJANI ABUBAKAR, J.S.C.: My learned brother Emmanuel Akomaye Agim, JSC, granted me the privilege of having a preview of the comprehensive leading judgment prepared and rendered in this appeal. My Lord has fully and sufficiently covered the field, I have nothing more to add, the reasoning and conclusion in the leading judgment are in accord with my own, I therefore adopt them as mine and endorse the entire judgment affirming the judgment of the lower Court, and abide by all consequential orders including the order on costs. Appeal dismissed.