AREMU & ANOR. V. THE STATE
| Pages | 331-347 |
AREMU & ANOR. V. THE STATE
331
AREMU & ANOR. V. THE STATE
5
1.
MUFUTAU AREMU
2.
NURENI SULEIMAN
APPELLANTS
10
V.
THE STATE
RESPONDENT
APPEAL NO. S.C. 141/1989.
SUPREME COURT OF NIGERIA
15
UWAIS,
J.S.C.
KARIBI-WHYTE,
J.S.C.
NNAEMEKA-AGU, J.S.C.
AKPATA,
J.S.C.
NWOKEDI,
J.S.C.
20
19th July, 1991.
Criminal Law and Procedure - Armed robbery - Defence of alibi - Criteria for proper setting
25
up of - Duty of an accused in relation to - Confessional statement - retraction thereof
- Whether still admissible as a voluntary statement.
Legislation - Evidence Act, section 148(a) - Purport of
ISSUES:
30
1. Whether a retracted confessional statement to the police is still admissible in
court as a voluntary statement.
2. What are the criteria for the proper setting up of a defence of alibi.
FACTS:
35
The case against the accused persons before the High Court of Lagos was for
an offence of armed robbery, contrary to section 402(2) (a) of the Criminal Code of
Lagos State. According to the prosecution, on 8/1/83 the accused persons, in
company of two other persons, while armed with offensive weapons robbed the
p.w.1 of his 504 Peugeot car with registration No. LA 30 MA between 8.30 p.m. and
40
9.00 p.m. at Oshodi. P.w.2 was at the material time in the car with p.w.1.
33. The following day, at about 9.00 a.m.; the stolen car and another one were
stopped by p.w.4, a custom officer, at the border town of ldiroko. The stolen car
was being driven by the first accused, while the second accused was in the other
car, a taxi. P.w.4 demanded for the particulars of the two cars. The second accused
45
then alighted from the taxi and presented the vehicle particulars of the Peugeot
504 car with registration No. LA 30 MA to p.w.4 and said that the two vehicles were
travelling together. P.w.4 also demanded to see the particulars of the taxi cab which
could not be produced. It was at this stage that the driver of the taxi cab took off
in his vehicle and escaped into the Republic of Benin. The two accused persons
50 were arrested and they subsequently made confessional statements.
The learned trial judge, after a careful consideration of the case before him
accepted the evidence led by the prosecution and rejected that of the defence.
332
NIGERIAN SUPREME COURT CASES
[1991] 2 N.S.C.C.
He relied on the confessional statements of the accused persons (Exhibit A and
B) which, according to him, were corroborated by the evidence of the p.w.4. The
trial judge held that the accused persons being found in possession of the vehicle
within 12 hours of the same having been stolen, were presumed under section
148(a) of the evidence Act, to be the thieves that stole the vehicle. He therefore,
found each of the accused guilty as charged and sentenced each to death.
Being dissatisfied with the conviction and sentence of the trial court, the
accused persons appealed to the Court of Appeal which held that it was satisfied
that both accused were rightly convicted of armed robbery. It therefore dismissed
the appeal and affirmed the conviction and sentence of each accused persons by
1(
the trial court.
Still dissatisfied, both accused persons further appealed to the Supreme Court
on grounds, inter alia, that the learned justices of the Court of Appeal erred in law
when they held that the confessional statement of appellant, Exhibit A, is admissi-
ble when a previous statement made by the appellant immediately his purported
arrest at Idiroko was not accounted for by the prosecution.
HELD•
1.
Once a confessional statement to the police is properly admitted, no amount
of retraction will vitiate their admission as a voluntary statement. However,
2(
before a conviction can be properly founded on such a retracted confession,
it is desirable to have some evidence outside the confession, which would
make it probable that the confession was true. Corroboration however slight
must be sought for. In the instant case, the Exhibit A and B corroborated not
only the evidence of the p.w.4 in material details, but also the evidence of the
2!
p.w.1 and p.w.2 as to the robbery attack and its manner of execution. The trial
judge was therefore, right in admitting the confessional statements. -
(See p.
338, lines 5
1
- 52 & p.339, lines 1 - 9).
2.
A defence of alibi, to be properly set up, must be unequivocal and must be
given during the investigation and not during the hearing of evidence. The
3(
mere allegation that the accused was not at the scene is not enough. The
accused person must give some explanation of where he was and who could
know of his presence at that other place at the material time of the commission
of the offence in question. The accused must set up the defence at the first
available opportunity in order to give the police an opportunity to investigate.
In the instant case, the statements of both accused/appellants to the police,
Exhibit A and B, did not raised the issue of alibi nor was the issue raised in their
evidence in chief. It was under cross-examination that the first
accused/appellant testified that he helped one Alhaji to carry some load to
Lagos and was home by 6.45 p.m. The offence was committed at about 8.30
p.m. to 9.00 p.m. on the day in question. The alibi did not cover the material
time. Thus the plea of alibi not being properly set up did not avail the
accused/appellants.
(See p. 341, lines 27-29, 50-52 p. 342, lines 1-11 & 17-19)
3.
Section 148(a) of the Evidence Act is not a presumption of law. It is an inference
which the court may be constrained to draw from the facts of the case after
4
taking into consideration all the circumstances of the case. Whether the court
draws an inference that the recent possessor is the thief or the receiver would
again be dependent on the fact proved in evidence. The second arm of the
section 148(a) of the Evidence Act could only arise where the party found in
recent possession pleadsthat he was an innocent receiver in which case guilty
5
knowledge becomes an issue.
(See p.339, lines 37 - 41, & p.340, lines 26 - 29).
To continue reading
Request your trial