EGELEMBA v. STATE
(2022)LCN/16444(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Thursday, March 17, 2022
CA/OW/153C/2020
Before Our Lordships:
James Gambo Abundaga Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
KELECHI EGELEMBA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
POSITION OF LAW ON CONFESSIONAL STATEMENT
The Supreme Court in Federal Republic of Nigeria v. Usman (2012) ALL FWLR (Pt 632) Pg 1639 at 1652 held that both the recorder and the interpreter must give evidence in Court otherwise the statement is merely a documentary hearsay and inadmissible. See also Auta v The State (2018) LPELR 44490(CA) and Olalekan v The State (2002) 4 WRN 146. IBRAHIM WAKILI JAURO, J.C.A.
IBRAHIM WAKILI JAURO, J.C.A. (Delivering the Leading Jugdment): This appeal is against the Judgment of the High Court of Abia State (hereinafter referred to as the “Lower Court”) delivered by Hon. Justice Ogechi Okehielem (hereinafter referred to as the ‘trial Judge’) delivered on 22nd December 2011.
The Appellant herein was charged along with two co-accused persons at the High Court of Abia State, Umuahia Judicial Division, for the following offences:
(i) Conspiracy- Section 5(b) of the Robbery and Firearms (Special Provisions) Act;
(ii) Armed Robbery- Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act;
(iii) Conspiracy- Section 516(a) of the Criminal Code; and
(iii) Kidnapping-Section 20 of the Trafficking in Persons (Prohibition) Law Enforcement and Administration Act 2003. He pleaded “Not Guilty” to these charges. The alleged incident took place on 12 April 2008.
The prosecution in proof of its case called three witnesses while the accused persons testified in their respective defences following the overruling of their NO-case submission by the Court.
At the conclusion of the trial, the Learned trial Judge dismissed the charges of Conspiracy and Kidnapping, but found the accused persons guilty of Armed Robbery and sentenced them to death by hanging. The Learned Trial Judge placed reliance on the Confessional Statements allegedly made by the accused persons in reaching this decision despite the fact that they were not tendered through the alleged makers or the person that allegedly recorded them.
Dissatisfied with the judgement of the trial Court, the Appellant filed a Notice of Appeal on 30th June 2020.
Counsel raised the fact that this Court in Ijebuonwu James v. The State CA/OW/119/2013 (unreported judgment of this Court delivered on 5/5/2017) discharged and acquitted the Appellant therein who was a co-convict with the present Appellant. This Honourable Court upturned the judgment of the lower Court in this matter as erroneous in law, and Ijebuonwu James who was convicted on the same charges and facts as the present Appellant was discharged and acquitted.
ISSUES FOR DETERMINATION:
The Appellant by a Notice of Appeal containing six grounds filed on 30/6/20 and regularised on 20/9/21 challenged the Judgment of the trial Court. The Appellant’s Brief of Argument settled by Linda Njideka Onyishi Esq. was filed on 1/7/20 and deemed on 28/9/21. From the six grounds of Appeal, Learned Counsel for the Appellant formulated the following issues for determination:
“(1) Whether the Learned Trial Judge’s improper evaluation of material evidence at trial, leading to the conviction of the Appellant, occasioned injustice to the Appellant warranting a setting aside of the judgment of conviction delivered by the trial Court? (Ground 1)
(2) Whether the failure of the Prosecution to tender the alleged weapon and other material evidence at trial is fatal to Prosecution’s case? (Ground 2)
(3) Whether the alleged confessional statement relied upon by the Trial Court in finding the Appellant guilty of Armed Robbery ought not to be expunged as being inadmissible ab initio; and was it sufficient to convict the Appellant based on the confessional statement where he retracted same and the Prosecution failed to adduce any credible evidence at trial to corroborate the alleged extrajudicial confession? (Grounds 3, 4 and 5)
(4) Whether the Learned Trial Judge was correct in holding that the Prosecution has proved the offence of Armed Robbery beyond reasonable doubt where the evidence failed to establish material ingredients of the offence? (Ground 6).”
The Respondent’s brief of argument settled by N. J. Obioma Esq., Learned Director of Public Prosecution (DPP) Abia State was filed on 22/1/21 and deemed on 28/9/21. The DPP distilled a lone issue for determination and that is:-
“Whether the lower Court was right in convicting the Appellant to death for Armed Robbery contrary to Section 192 (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Vol. 14, Laws of the Federation of Nigeria, 2004”.
I must say that the issues distilled by the Appellant are adequate to deal with the present appeal as the issues have equally subsumed the sole issue formulated by the Respondent. I therefore adopt the four issues for determination as formulated by the Appellant in resolving the Appeal. Furthermore, I will first deal with the submission of the Learned Counsel for the Appellant on all the issues formulated. Thereafter, I will consider the submission of the Respondent on the sole issue it raised and then put up my resolution on all the issues taken together.
SUBMISSION OF APPELLANT
Issue One:
Whether the learned trial judge’s improper evaluation of material evidence at trial, leading to the conviction of the appellant, occasioned injustice to the appellant warranting a setting aside of the judgment of conviction delivered by the trial Court?
The Learned Counsel submitted that the Court improperly eradicated the evidence of ‘PW1’ and ‘PW2’ with regards to the Mercedes Benz ‘C’ Class or ‘E’ Class and Navy Blue Colour or Black and the finding of the trial Judge that the colour was “navy blue or black,” not much difference as both colours are dark is wrong given the nature of the offence.
And on the confessional statement of the Appellant Counsel submitted that Exhibit ‘F’ was never made by the Appellant but yet the trial Judge found that the Appellant’s statement “were not contested at the trial”, page 161 is clearly an erroneous evaluation. On improperly evaluated evidence counsel submitted-
“….. the position of the law is that: “An Appellant who complains improper evaluation of evidence must in order to succeed be able to identify or specify the evidence improperly evaluated or not evaluated and show convincingly that if the error had been corrected, the judgment appealed against cannot stand. See Dakur vs. Dapal (1998) 10 NWLR (PT. 571) 573 at 589.” Per AJI, J.C.A.
Counsel continued that the evaluation of the evidence of ‘PW1’ and ‘PW2’ with regards to the Mercedes Benz Car whether a ‘C’ Class or ‘E’ Class is material error by the trial Court. So also, the finding of the trial Court on the Confessional Statement of the Appellant which was not supported by evidence. Counsel cited First African Trust Bank Ltd. v. Partnership Invest Co. Ltd (2003) 18 NWLR (Pt 851) 35 where it was held:
“The law is trite that: “The Appeal Court is usually not in a hurry to perturb or disturb the findings of facts made by the trial Court except where such findings are unsound or are perverse. Where however, the judgment of the lower Court was reached either upon erroneous inference drawn from finding of facts or that its application of the law to properly found facts is perverse or erroneous, the Appeal Court has the duty to intervene to correct the injustice so caused. See First African Trust Bank Ltd. v. Partnership Invest Co. Ltd (2003) 18 NWLR (Pt 851) 35 or (2003) 12 SC (Pt. I) 90.” Per WAMBAI, J.C.A.
“Where the trial Court has not properly evaluated the evidence, the appellate Court can safely and properly set the findings made aside- Crown Flour Mills Ltd. v. Olokun. It is noteworthy that in Ijebuonwu James v. The State, while upturning the judgment of the Trial Court and acquitting the Appellant – who was convicted together with this present Appellant at the Trial Court- this Honourable Court held the finding of the Trial Court on this issue as improper and unsupportable. That judgment of this Honourable Court has not been appealed against and Ijebuonwu James, who was convicted together with the present Appellant and one other co-accused, has since regained his freedom.”
Counsel urged the Court to resolve issue one in favour of the Appellant.
Issue Two:
Whether the failure of the prosecution to tender the alleged weapon and other material evidence at trial is fatal to the prosecution’s case?
On this, Counsel for the Appellant submitted that the marked difference between the testimony of ‘PW1’ and ‘PW2’ over the Mercedes Benz Car and the non-production of items said to be recovered by ‘PW2’ following the arrest of the Appellant and the other co-accused persons though not fatal but only where there is armful and compelling evidence and that in the instant case proof of the prosecution’s case depends on the production of those items so as to link the appellant to the offence.
Counsel cited Section 149(d) Evidence Act LFN 2004 (now Section 167 (d) of the Evidence Act 2011) which is that-
“…The Court is to presume that any evidence which could be and is not produced, would if produced, be unfavourable to the person who withholds it. The Supreme Court, while upholding this provision of the law in The People of Lagos State v. Umaru held that: “I am in agreement with the Court below in its decision to apply the provision of Section 149 (d) of the Evidence Act. Perhaps it was because of fear of contradiction or rather, negation of what was alleged that was why the statements of PW1 and that of the respondent and other corroborating evidence, were withheld by the prosecution. It is to be noted that Courts of Law are paragons of Justice. They rely on what is produced before them as evidence cannot be given in air. In the type of case on appeal, such evidence must be given through a person and Section 149(d) of the Evidence Act can be accomplished by calling a particular witness to tender a particular object or document which if not tendered will be fatal to the prosecution’s case. The objects alleged to have been recovered and the statements of both the ‘PW1’ and the respondent ought to have been tendered by the prosecution. They were not so tendered through the relevant witnesses who testified. This, certainly, devastated the quality of the oral evidence led before the trial Court thereby laying no foundation upon which the learned trial judge would rely on to convict. I cannot but decide this issue against the appellant. This issue is captured by the appellant in his issue No. 2 which corresponds to respondent’s issue No. 1.” Per MUHAMMAD, J.S.C.
He finally submitted that failure of the prosecution to tender any of the items allegedly recovered from the accused persons at the trial Court is fatal to the case of the prosecution. And that the finding by the trial judge that: “police also, recovered again from these said Mercedes Benz Car, most likely or probable the gun pointed at ‘PW1’ (ought not to be allowed to stand. He added that this Court in Ijebuonwu James V The State (Supra), held this finding of the trial Court to be speculative and overruled it.
Issue Three:
Whether the alleged confessional statement relied upon by the trial Court in finding the appellant guilty of armed robbery ought not to be expunged as being inadmissible ab initio; and was it sufficient to convict the appellant based on the confessional statement where he retracted same and the prosecution failed to adduce any credible evidence at trial to corroborate the alleged extrajudicial confession?
Counsel submitted on the general rule of a confessional statement viz:-
“The general rule is that a confessional statement is not rendered inadmissible merely because it was not tendered through the recorder-
Ekpo v. State – However, where the language in which the confessional statement was recorded is different from the language spoken by the accused person, the prosecution has the burden to call the person that acted as interpreter in recording of the confessional statement as a witness and failure to do this renders the confessional statement inadmissible ab initio. If the interpreter also acted as the recorder, it becomes mandatory to tender the confessional statement through the recorder otherwise it amounts to documentary hearsay.
In Federal Republic of Nigeria v. Usman, the Supreme Court held: “When the purpose of tendering a statement is to establish the truth of its contents and the statement was obtained with the help of an interpreter, both the interpreter and the person who recorded the statement must give evidence in Court.
The statement is hearsay and inadmissible if the interpreter does not testify in Court.”
In Auta v. The State, where the prosecution failed to call the police officer that interpreted and recorded the statement of the accused from Hausa to English Language, the Court of Appeal relied on the above decision of the Supreme Court to expunge the confessional statement admitted by the trial Court for being documentary hearsay and inadmissible.”
“He added that, the Record of Appeal clearly shows that the Appellant communicates only through Igbo Language. All the communications that transpired between the Appellant and the Trial Court were done through an interpreter because the Appellant neither speaks nor understands English Language. However, Exhibit ‘F’ alleged to be the confessional statement or the Appellant was recorded in English Language. This made it pertinent for the recorder of the statement to be called as a witness by the prosecution. Indeed, Exhibit ‘F’ ought to have been tendered through the IPO- one officer George Anyanwu- that purportedly recorded it, and not just dumped on the Trial Court through ‘PW3’ that did not even participate in the investigation of the case- let alone was present when the alleged confessional statement was obtained at d recorded. The failure of the prosecution to tender Exhibit ‘F’ through the IPO that purportedly recorded it or call the IPO as a witness at the trial, rendered Exhibit ‘F’ inadmissible ab initio, and same ought to be expunged in the light of the authorities cited above.”
It is worthy to note that in Ijebuonwu James v. The State (Supra), while rightly expunging Exhibit ‘G’ admitted as a confessional statement or a confession statement where it is not sought to be tendered by the maker (i.e. accused person) or through the maker, is not just tendered by the recorder of the said statement by dumping it on the Court as it were. The recorder of the said statement must adduce evidence to show how the said statement came to be made by the accused person; how it came to be that he recorded the same; the language in which the confessional statement was made and recorded if not recorded in the language in which it was made; and who served as interpreter if one was used.
He urged the Court to expunge the confessional statement Exhibit ‘F’ for being inadmissible ab initio having not been tendered through the recorder and interpreter.
Issue Four:
Whether the learned trial judge was correct in holding that the prosecution has proved the offence of armed robbery beyond reasonable doubt where the evidence failed to establish material ingredients of the offence?
Here Counsel relied on the case of Nkwocha v. AG of Imo State (Supra) where the Supreme Court reiterated the position of the law on this issue thus:
“It is to be noted that the essential ingredients of the offence of armed robbery are:
(1) That there was a robbery.
(2) That it was an armed robbery.
(3) That the accused was the robber or one of the robbers. All the three ingredients must be altogether proved for the offence to be said to have been proved. See Adekoya v. State (2012) MSCJ vol. 11 p. 20-21.” Per PETER-ODILI, J.S.C.
“Counsel submitted that the prosecution at the trial may be said to have attempted to prove the first two ingredients of armed robbery listed above through the evidence of ‘PW 1’ who testified of how she was robbed and kidnapped by four masked men who were armed with a gun. However, the totality of the case and evidence presented by the prosecution at the trial failed entirely to establish the third ingredient which must be established in order to secure a conviction for armed robbery. The prosecution failed woefully to prove that the Appellant was one of the persons that allegedly robbed ‘PW1’- the alleged victim.”
“Firstly, ‘PW1’ stated during cross-examination, the persons that robbed her were masked and she could not identify or recognize them (ROA page 63). She never at any time recognized or identified the Appellant as one of the persons that robbed her with a gun.”
“Secondly, ‘PW1’ testified that her car that was driven away by the masked gunmen, was a Mercedes Benz C Class. However, ‘PW2’ that allegedly recovered the stolen car from the Appellant and the other accused persons, testified that it was a Mercedes Benz E Class that he recovered. The vehicle allegedly recovered by ‘PW2’ or its particulars was not tendered in evidence by the prosecution. As such, there is material contradiction and doubt as to whether it was the same car which was allegedly robbed at gun point from ‘PW1’ that was allegedly recovered by ‘PW2’ from the Appellant. This contradiction and doubt ought to be resolved in favour of the Appellant in law”.
“Thirdly, the Appellant was not arrested at the scene of the crime alleged by ‘PW1’ and there is no piece of evidence whatsoever that connects the Appellant to the scene.”
“Further, none of the items allegedly recovered from the Appellant and the other accused persons which could have connected the Appellant to the crime alleged by ‘PW1’, was tendered by the prosecution. There was therefore no material evidence whatsoever that connects the Appellant to the alleged crime.”
He urged the Court to resolve this issue in favour of the Appellant.
SUBMISSION OF RESPONDENT
Learned DPP for the Respondent submitted that the guilt of an accused can be established in three ways relying on Ogedengbe v. State (2014) NWLR Part 1421 at 379 para C. per Peter-Odili, J.S.C. See also, Kinsley Omoregie v. The State (2017) 5-6 S. C. (pt. II) 107 at 120 per Sanusi, J.S.C.
On proof required of a prosecution, it is one beyond reasonable doubt. And that proof required in a criminal trial, no matter how serious the offence might be, is always proof beyond reasonable doubt; it is not proof beyond the shadow of doubt. See Moses Jua v. State (2010) 1 – 2 SC. 96. Ebere v. The State (2017) 2-3 SC (Pt. III) pg. 101 at 121 per Ogundiyi, JSC. And that in the instant case, the prosecution by the direct oral evidence of ‘PW1’ and circumstantial evidence of ‘PW2’ and ‘PW3’ fixed the Appellant at the scene of crime.
“It is accepted that an appellant who relies on improper evaluation of evidence to set aside the judgment, has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached, would have been different and in favour of the party complaining of wrong evaluation. Where a trial Court believes a witness. The onus shifts to the appellant to show that the trial Court failed to consider the relevant facts. See the case of Adelumola v. The State (1988) 1 NWLR (Pt. 73) 683 at 691; (1988) 3 SCNJ (Pt. 1) 68, 74, 75. “Per OGBUAGU, J.S.C. Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471 at 492 paras B-C. An irregularity is not a factor justifying the setting aside of a verdict or decision unless it is established that there has been a miscarriage of justice by the Court’s decision.”
He submitted that the issue to consider at that stage is whether the learned trial Judge was wrong to convict the appellant. It is relevant to consider whether the evidence adduced by the prosecution is sufficient enough to convict the appellants of the offence charged in the information. Per MOHAMMED, J.S.C. Emedo v. State (2002) 15 NWLR (Pt. 789)196 at 205 paras A- B;(2002) 7 S.C (Pt.II) 162 Eyisi v. State (2000) 15 NWLR (Pt.691) 555(2000) 12 S.C (Pt I) 24.
“He submitted that the lower Court rightly evaluated the evidence before it and that the Appellant has not been able to show which piece of evidence was wrongly evaluated and failure to tender the weapon by the prosecution is not fatal on the basis of the impeccable confessional statement of the appellant. See: Simon V. The State (2017) LPELR-41988(SC) Per CHlMA CENTUS NWEZE JSC, wherein the Court held thus “Once there is cogent, reliable and authentic oral and documentary evidence which the Court believes and admits, failure to tender the weapons employed in the robbery cannot be prejudicial to the case of the prosecution”. Hence the character and circumstances of the case would determine whether the presence of the weapon was imperative or not. In the case at hand, the evidence of the ‘PW1’, ‘PW2’, ‘PW3’ and the Confessional Statement of the Defendants goes a long way to show that there was an armed robbery incident and that the Defendants participated actively in it, and that the Defendants were armed. See also: Adamu vs. The State (2017) LPELR-41436(SC).
And further submitted that the trial Court was right in convicting the Appellant for the offence, convicting and sentencing the Appellant to death for Armed Robbery contrary to Section 1 (2)(a) of the Robbery and Firearms (Special Provision) Act, Cap. R11, Vol. 14, Laws of the Federation of Nigeria, 2004 and we urge the Court to so hold and resolve the issue in favour of the Respondent”.
Finally, Counsel urged the Court to dismiss the Appeal as the prosecution proved its case beyond reasonable doubt.
RESOLUTIONS
In resolving issue one, I must say that indeed the testimony of PW1 and PW2 were at variance and the finding of the trial judge on same did not help matters. In my considered view, the finding of the trial judge on the evidence of PW1 and PW2 is erroneous and cannot stand. First African Trust Bank Ltd. v. Partnership Invest. Co. Ltd. (2003) 18 NWLR pt. 851 Pg. 35. Consequently, issue one is resolved in favour of the Appellant.
On issue two, Learned Counsel for the Respondent placed emphasis on the confessional statement of the Appellant and that failure to tender this weapon by the prosecution is not fatal to its case. He cited Simon v. The State (2017) LPELR 41988 SC per Chino Centus Nweze. In resolving this issue of course recourse should be made to Section 167(d) of the Evidence Act 1990 as to non-production of evidence which could be and is not produced, the presumption is that if produced would be unfavourable to the person who withholds it. Here items were alleged robbed and were recovered but never tendered before the Court. Such none tendering is fatal to the prosecution’s case in the circumstances as there was no nexus shown between the Appellant and the items so recovered. Issue two must equally be resolved in favour of the Appellant.
On issue three, the confessional statement of the Appellant Exhibit ‘F’, the Counsel for the Respondent indeed made a heavy weather on it and that it clearly shows there was robbery and the Appellant was one of those who took part in the robbery. In resolving this issue, it is a fact that the confessional statement of the Appellant was recorded in a language other than English Language. The recorder of the statement was not called to testifying but it was tendered through a witness who did not even take part in the investigation. The Supreme Court in Federal Republic of Nigeria v. Usman (2012) ALL FWLR (Pt 632) Pg 1639 at 1652 held that both the recorder and the interpreter must give evidence in Court otherwise the statement is merely a documentary hearsay and inadmissible. See also Auta v The State (2018) LPELR 44490(CA) and Olalekan v The State (2002) 4 WRN 146. Thus the Appellant’s Exhibit ‘F’ is therefore inadmissible in the circumstances and must be and is hereby expunged. Issue three is resolved in favour of the Appellant.
Issue 4
On issue four, from the evidence proffered by the prosecution in this case, there are material contradictions, particularly between the evidence of PW1 and PW2 that the offence of Armed Robbery cannot be said to be proved beyond reasonable doubt. It is a fact that there was no eye witness to the incidence and the evidence could not fix the Appellant at the scene of crime or link him up with the alleged offence. I do not see how the prosecution proved that the Appellant was one of those who took part in the alleged robbery. And in the absence of any evidence, issue four is resolved in favour of the Appellant.
In the result I find the appeal to be meritorious on all the four issues having been resolved in favour of the Appellant. The appeal is hereby allowed. The judgment of the lower Court of 22nd day of December, 2011 in respect of the Appellant who was convicted for the offence of armed robbery and sentenced to death by hanging is hereby set aside. The Appellant is hereby discharged and acquitted.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the Judgment delivered by my learned brother, Ibrahim W. Jauro, JCA I agree that there is merit in this appeal.
Apart from the dearth of direct witness account that could fix the appellant to the offence as one of the perpetrators, the alleged confessional statement (Exhibit F) on which the appellant was convicted is inadmissible.
The appeal is therefore also allowed by me, the consequence of which is that the conviction must be set aside and the appellant discharge and acquitted.
I find it quite disturbing that the prosecution of serious crimes such as murder could fail based on clear issues of law, such as where the confessional statement of an accused could be tendered by a person who was not the recorder, or the recorder cum interpreter.
ADEMOLA SAMUEL BOLA, J.C.A.: I had the benefit of reading in draft form the Judgment delivered by my learned Brother, IBRAHIM WAKILI JAURO, JCA. I am in agreement with his concise reasoning and conclusion as contained in the Judgment.
I abide by his conclusion upholding the appeal for being meritorious. I abide by the consequential orders made.
Appearances:
M. H. Okere (Mrs.) For Appellant(s)
Ngozi J. Obioma DPP Abia State with him F. O. Ugwumadu SSC. For Respondent(s)
