➥ CASE SUMMARY OF:
Segun Ajibade v. The State (SC. 439/2011, 14 Dec 2012)
by Branham Chima.
➥ ISSUES RAISED
Resting case on that of prosecution.
➥ CASE FACT/HISTORY
The appellant herein and three (3) other persons were arrested and charged on two counts of conspiracy to commit felony to wit armed robbery and the offenceof armed robbery contrary to section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of Federal Republic of Nigeria (as amended) by the Tribunal (Certain Consequential Amendments etc) Decree 1999.
On 23 October 2000 the appellant and three others, whilst armed with offensive weapons to wit an iron rod, stole a Lister generating set at Elf filling station, Abeokuta Ogun State. In the process, the appellant and others killed one of the guards by hitting him on the head with iron rod, while the other was seriously injured. At the trial, the prosecution called eleven (11) witnesses and tendered 13 exhibits while the appellant rested his case on that of the prosecution. On 25 May 2002, Adebayo the prosecution counsel, announced that the prosecution has closed its case. Then, Adeniyi the defence counsel asked A for an adjournment to enable him adequately prepare for the defence, court then adjourned for defence.
The trial court proceeded to deliver its judgment on 14 November 2003 in which it found the accused persons guilty of the offences charged and sentenced them to death after convicting them.
The appellant was dissatisfied with the judgment and as a result appealed to the Court of Appeal, Ibadan Division, hereinafter called the lower court. The Court of Appeal in its judgment delivered on 25 July 2011 affirmed the judgment of the trial court.
The appellant was again dissatisfied with the lower court judgment and has appealed to this court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the learned judge rightly convicted the appellant of the offences of conspiracy to commit armed robbery and armed robbery?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The conviction was in order).
[THE APPELLANT CONFESSED TO THE COMMISSION OF THE CRIME
‘It is clear from the evidence and the confessions and statements exhibits A and K of the appellant, that he participated in the robbery that led to the killing of one guard while the other was injured.” Exhibit ‘H’, the confessional statement of 4th accused person gave details of how the robbery was planned and roles played by each of them. The lower court on this point found as follows: “The appellants’ position is compounded by exhibits ‘A’ and ‘K’ which are without doubt confessional statements of the offence of armed robbery for which he was charged. These exhibits were admitted without objection at the trial court.The appellant did not contend that the statements were not made by him or that they were not made by him voluntarily and must therefore be taken as having made the confessional statement chronicling his involvement in the crime. Exhibits ‘A’ and ‘K’ are a detailed step by step account of how the plan to steal the generator of the ELF filling station was hatched and meticulously executed…It is the law that an accused person can be convicted on his confessional statement alone: Ikemson v. State (1989) 3 NWLR (Pt. 110) 455. Finally and reverting to confessional statements of the appellant, I hold a strong view that the appellant did not or refuse or even fail to rebut or contradict the prosecution’s evidence. He chose to keep mum, within his legal right to do so, in a negative way. Neither did he advance any evidence that he did not participate in the commission of said armed robbery. The confessional statements of the appellant must be regarded as voluntarily made since the rules and the laws governing the methods for taking them A were complied with fully. The confessional statements referred to above are consequently good and credible evidence having been admitted in evidence without any objection coming from the accused counsel. There was no evidence that the appellant in one way or the other retracted from the confessional statements. It is my view that both trial and lower courts have done a good job and they both arrived at correct conclusion. The contents of the said statements are such that they were made voluntarily by the appellant.’]
II. Whether the trial court was in breach of section 36(4)(5) of the Constitution of the Federal Republic of Nigeria, 1999?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The trial court did not breach the provisions of the constitution).
[‘THE ACCUSED PERSON CHOSE TO REMAIN SILENT AND NOT TO ENTER DEFENCE
‘A close examination of the word will disclose whether or not these provisions were breached. On 21 May 2002, the following happened: “Adebayo announces the closure of the prosecution’s case. “Adeniyi asked for adjournment to enable him adequately prepare for the defence. Court: Case is adjourned till 10 July 2002 for defence.” On 1August 2002, the defence counsel wrote a letter for adjournment. This is what took place on that day. Accused persons are present. B. A. Adebayo (PSC) appears for the State. Says he has seen the letter written to the court by the learned counsel for the accused persons to explain his absence from court and to request for the adjournment of the case. Says further that he is not opposing the application for adjournment. Court – case (sic) adjournment till 8 October 2002 for defence to open.” Then on 16 October 2002, the following also took place in court. “Accused persons are present A. Adebayo (PSC) for the State O. Adeniyi appears for the accused persons. Adeniyi: Says the prosecution has closed its case and that the defence is resting on the prosecution’s case. He proceeds to address the court…” Learned counsel to the appellant was in court, no attempt was made to call any witness neither did he challenge the correctness of the prosecution’s counsel that rests its case on that of the prosecution. A In the circumstances of this case can it be said that the trial court did not call the defendant to proceed with their defence. The lower court on this point held as follows: “Perhaps it is at this juncture that I should say a word or two about the effect of an accused saying nothing in his defence as was observed in this case. At page 58 of the record of appeal is stated the fact that the accused person led no defence at the hearing of this case. Also at page 60 of the record of appeal the learned trial judge remarked as follows: “I have before now stated that the accused persons did not lead evidence at the hearing of this case. They restedtheir case on that of prosecution. Now what is the effect of this in law? The answer is provided in the case of N. M. Ali v. The State (1988) 1 NWLR (Pt. 68) 1, (1988) 7 NSCC 14. In the said case, Honourable Justice Craig, JSC, in the lead judgment , dwelling on the legal effect of an accused person electingnot to give evidence on oath stated at page 22 thus: Make an unsworn statement from the dock, in which case he will not be liable to cross-examination or He may give sworn evidence in witness box and be cross- examined, or He may elect not to say anything at all. The learned trial judge went further to say that in the instant case the appellant chose (sic) the third alternative of not saying anything at all which is well within his legal rights to do so.” On the effect of the accused adopting to remain silent the learned trial judge referred to the concurring judgment of Oputa, JSC in this case at pages 27 – 28 thus: “…if the defence rests and refuses to put an accused person into the witness box to depose to his own version of the events, then the learned trialjudge is denied theopportunity of listeningto the accused tell his story of watching his demeanour, or assessing his credibility, and of making the necessary choice between his story and that of the prosecution. In the final result, the trial court will have to decide the case on the evidence befo re it un deterr ed b y th e incompleteness of tale from drawing all inferences that properly flow from the evidence of the prosecution. The defence has shut itself out and will have himself to blame. The court will not be expected to speculate on what the accused might have said if he testified. That is the law and I completely agree” My lords, on my own I also agree with the above findings of the lower court. The appellant’s counsel was called upon to proceed with the defence and refused to take the opportunity to be heard. I must say, there is limit to the operations of section 36(4) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. What it requires is to give a party a right to be heard in the determination of any allegation madeagainst him, when such an opportunity is given and the party failed to utilise such opportunity to present his case or defence for determination, he could no longer be heard to complain that his right to fair hearing has been breached: Ogunsanya v. The State (2011) All FWLR (Pt. 590) 1203, (2011) 6 SCNJ 190 at 211 – 212. The complaint of breach of his right to fair hearing by the appellant is, I think, without foundation, and I resolve this issue in favour of the respondent.’]
‘As a result, what I have been labouring to state all along is that the appeal is totally devoid of merit. I dismiss the appealand affirm the judgment of the Court of Appeal which upheld the conviction and sentence of deathon the appellant. He was rightly convicted: Emeka v. The State (2001) FWLR (Pt. 66) 682, (2001) 6 SCNJ 259 at 266 per Belgore, JSC, and R. v. Kanu and Ors. (1952) 14 WACA 30 the existence of the confessional statements of the appellant and other overwhelming evidence made me to dismiss this appeal outrightly. I so hold.’
➥ FURTHER DICTA:
⦿ THE EFFECT OF RESTING CASE ON THAT OF PROSECUTION
In further emphasis and even at the risk of repeating myself, I will restate that an accused person who rests his case on that of the prosecution has taken a gamble and a risk. He has, in other words shut out himself and will have no one but himself to blame. This is because, he does not wish to place any fact before the trial court other than those which the prosecution has presented in evidence. It also confirms that he does not wish to explain any facts, or rebut any allegation made against him. The rating of the effect is not less than admission of the evidence led by the prosecution: Mogaji v. Nigeria Army (2008) 8 NWLR (Pt. 1089) 338, (2008) 3 NCC 490 at 490 and Igabele v. State (2005) All FWLR (Pt. 285) 568, (2005) 1 NCC 59. In other words, by the appellant choosing to rest his case on the prosecution, he had denied the trial court the opportunity of assessing the credibility of the accused as a witness as compared to the prosecution for purpose of evaluation and determining which side to believe. The appellant should not therefore be given the privilege of being heard on that which he freely chose to do. The appellant in short had shut himself out and should therefore not be heard to complain. In the absence of any evidence from the appellant therefore, reliance was properly sustained on his confessional statement which was admitted in evidence. The accused’s statement, being confessional by nature is accorded the same effect as a witness’s evidence which is credible. The accused as it were can be properly convicted solely on his own confessional statement without more. The further authorities are the cases of Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383, (1993) 9 SCNJ (Pt 1) 1 at 29; Ekpe v. The State (1994) 9 NWLR (Pt. 368) 263, (1994) 12 SCNJ 131 at 137 and Akpan v. The State (2001) FWLR (Pt. 56) 735, (2000) 7 SC (Pt. 11) 29 at 40 which are all A relevant in point. — Ogunbiyi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)