- USMAN ISAH & ORS. V. THE STATE
(2010)LCN/3943(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of July, 2010
CA/K/122/C/08
RATIO
CALLING OF WITNESSES: WHETHER THE PROSECUTION IS ONLY REQUIRED TO CALL THE VITAL WITNESSES WHO WOULD HELP TO ESTABLISH THE INGREDIENTS OF THE OFFENCE WITH WHICH THE ACCUSED IS CHARGED AND NOT UNDER ANY OBLIGATION IN LAW OR COMPULSION TO CALL ALL THE INTENDED WITNESSES FOR THE PROSECUTION
I must observe that the prosecution is under no obligation in law or compulsion to call all the intended witnesses for the prosecution, nor is it bound to call any of them at all. The basic requirement is for the vital witnesses who would help to establish, beyond reasonable doubt, the ingredients of the offence with which the accused is charged to be called. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
CONFESSION: WHAT THE TERM “CONFESSION” ENTAILS
A confession is said to be a voluntary statement made by a person charged with the commission of a crime or misdemeanour, communicated to another person, wherein he acknowledges himself to be guilty of the offence charged, and discloses the circumstances of the act or the share and participation which he had in it”. Therefore, a voluntary confession is one made spontaneously by a person accused of crime, free from the influence of any extraneous disturbing cause, and in particular, was not influenced or extorted by violence, threats, or promises. It is the product of an essentially free and unconstrained choice by its maker, and is made with full knowledge of nature and consequences of the confession. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
INVOLUNTARILY OBTAINED STATEMENT: WHETHER AN INVOLUNTARILY OBTAINED STATEMENT CAN BE USED IN PROSECUTING AN ACCUSED PERSON
It is a known principle that an involuntarily obtained statement admitting commission of crime or confession cannot be used in prosecuting an accused person. Such a statement is inadmissible both because it is likely to be unreliable and because of society’s aversion to forced confession, even if true. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
CONFESSIONAL STATEMENT: WHETHER WHERE THE OBJECTION TO THE ADMISSIBILITY OF AN ACCUSED’S CONFESSIONAL STATEMENT IS BASED ON THE GROUNDS THAT IT WAS NOT READ OVER TO HIM AND THAT HE DID NOT MAKE IT, THE COURT CAN STILL TREAT IT AS A VOLUNTARILY MADE CONFESSIONAL STATEMENT
It is trite that where the objection to the admissibility of an accused’s confessional statement is based on the grounds that it was not read over to him and that he did not make it, but, not on the ground that the said statement was involuntarily made, he was coerced, or induced to make it, the statement is treated as a voluntary one, and, is admissible without the Court holding a trial within a trial, which is necessary only in cases where the issue of involuntariness or otherwise of a confession arises. See the cases of Nsofor vs. The State (2002) 10 N.W.L.R. Part 775 page 274. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
CONFESSIONAL STATEMENT: THE APPROACH TO BE FOLLOWED IN ASSESSING THE QUALITY OF A CONFESSIONAL STATEMENT WHETHER RETRACTED OR NOT
In Ubierho vs. State (2002) 5 N.W.L.R Part 819 page 644, the Supreme Court stated that the approach to be followed in assessing the quality of a confessional statement whether retracted or not is to ask the following questions: “(a) Whether there is anything outside the confession which shows that it may be true; (b) Whether the confessional statement is in fact corroborated; (c) Whether the relevant statement of fact made in it are most likely true as far as they can be tested; (d) Whether the accused had the opportunity of committing the offence; (e) Whether the confession is possible; (f) Whether the alleged confession is consistent with other facts that have been ascertained and established”. See also Shande vs. State (2005) N.W.L.R. Part 907 page 218, Hassan vs. State (2001) 1 N.W.L.R. Part 735 page 184 and Madjemu vs. State (2001) 9 N.W.L.R Part 718 page 349. PER THERESA NGOLIKA ORJI-ABADUA, J.C.A
JUSTICES
BABA ALKALI BA’ABA (OFR) Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
Between
1. USMAN ISAH
2. BELLO RILWANU
3. UMAR MUSHADE Appellant(s)
AND
THE STATE Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A(Delivering the Leading Judgment): The criminal charge brought against the Appellants before the Kaduna State High Court reads thus;
“That you, Usman Isa, Bello Rilwanu and Umar Mushade jointly on or about 31st day of August, 1999, at about 6:45pm, attacked and robbed monies, other valuables and bicycle from one Salisu Badamasi and his friends on their way home from Anchau Market of Kubau Local Government Area. You thereby committed an offence punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions Act) Cap 398, Laws of the Federation of Nigeria”.
On 12/12/2001, the charge was read over to the Appellants and to which, they, individually, entered a plea of not guilty.
Two witnesses testified on behalf of the prosecution while the Appellants testified for themselves. During the trial, the issue of admissibility of the confessional statements of the Appellants cropped up and their objections were overruled and the same were admitted as Exhibits 1, 1(A), 2, 2(A), and 5, 5(A) respectively. At the end of the trial, the trial Court found the three accused persons guilty of a lesser offence under 2(1) of the Robbery and Firearms (Special Provisions) Act, Cap 398 L.F.N, 1990 and sentenced each of them to 14 years imprisonment.
The Appellants were unsatisfied with the said judgment and then proceeded to lodge an appeal against the same which they predicated on four grounds of appeal.
The Appellants, through their Counsel, A.T. Kehinde Esq., filed their Brief of Argument in which two issues were propositioned for consideration by this Court. The issues raised are:
“1. Whether the learned trial Judge was right in relying on Exhibits 1, 1(a), 2, 2(a) and 5, 5(a) held to be the confessional statements and finding the Appellants guilty without investigation.
2. Whether the guilt of the Appellants was proved beyond reasonable doubt having regard to the totality of the evidence.”
In the Respondent’s Brief of Argument settled by Tawo E. Tawo Esq, only one issue was tabled for this Court’s determination, that is to say:
“Whether the learned trial judge was wrong in admitting and relying solely on the confessional statements of the Appellants; Exhibits 1, 1(a), 2, 2(a) 5 and 5(a) in convicting them for the offence of robbery”.
A.T. Kehinde Esq., Learned Counsel for the Appellants, argued in respect of issue No. 1 that for a confessional statement to be legally admissible and be acted upon by the Court, it must be voluntary, positive and unequivocal, and, that any question as to its voluntariness must be tested before same is acted upon by the trial Court. He cited Yesufu vs. The State (1976) 6 S.C. 163 at 173, Okegbu vs. State (1984) 8 S.C. 65 and Kim vs. The State (1992) 4 S.C.N.J. 81 at 110.
Learned Counsel strenuously argued that the objections were timeously raised, on behalf of the Appellants, to the admissibility of the said confessional statements at the point of their being tendered, on the grounds that; (a) the Appellants did not thumb print the statements and; (b) they did not know the contents of the same.
He made reference to the evidence of P.W.1 under cross-examination at page 24(sic) lines 22-23, where he acknowledged that there are two thumb prints, and, 8 thumbs, and the thumb print is reversal of the thumb print. Counsel, also, referred to the testimony of P.W.2., that he took statement from Idi, but, he did not recover the bicycle, and, that he recorded the statement of one Salisu Badamasi and two other persons. He recorded the statement of one Usman Isa, the 1st accused person.
Counsel further argued that some doubt exists regarding the statements of the 1st and 3rd Appellants purportedly tendered by P.W.1. P.W.1 told the Court that he recorded statements from other persons, apart from the 1st and 3rd Appellants, but, he did not tell the Court the where-about of those statements.
Counsel contended that the statements purportedly credited to the 1st and 3rd Appellants were those of the other persons recorded by P.W.1. He then urged that the doubt be resolved in favour of the Appellants.
Counsel stressed that the same fate fell on the statement of the 2nd Appellant who denied making the statement at the time it was being tendered by P.W.2. He referred to Lawson Jack vs. Shell Petroleum (2002) 7S.C. (pt. 11)112.
Learned Counsel reproduced a sentence from the evidence of P.W.2., where he said that he cautioned the 2nd Appellant in Hausa, read to him, the statement which he understood, and, then “signed thumb print”. He argued that the 2nd Appellant being an illiterate, cannot sign and thumb print at the same time. Counsel stated that from P.W.2’s testimony, it seems that it was only the cautionary section that the 2nd Appellant signed and thumb printed. He said that no mention was made on whether the 2nd Appellant signed the statement at all. He referred to Dawa vs. The State (1980) All N.L.R 226 at 241, Ojegele vs. The State (1988) 1 N.W.L.R Part 71 page 414 at 421 paragraphs D-E and section 138 of the Evidence Act in support. He further stressed that no corroborative evidence was presented by the prosecution, except the recording of statements by P.W.1 and P.W.2. Counsel further argued that since the Appellants raised objection to the admissibility of the said confessional statements at the point they were being tendered, the learned trial judge ought to have conducted a trial within a trial to determine the voluntariness of the same. He seriously submitted that the omission to so order, had occasioned a serious miscarriage of justice to the Appellants. Counsel drew the Court’s attention to the decision in Anthony Nwachukwu vs. The State 31 NSCOR 312 at 352 which restated the time at which the voluntariness of a statement could be raised, and, then urged that issue No. 1 be resolved in favour of the Appellants.
Arguing in respect of issue No. 2, learned Counsel stressed that in order to secure a conviction for the offence of robbery, the prosecution must prove the following ingredients:
1. That there was robbery.
2. That the accused was the robber or in the company of the robbers.
He argued that the prosecution failed to prove any of the ingredients. Counsel highlighted the inconsistencies in the evidence of P.W.2., where at one point, he said that after the transfer of the case together with the case diary to them, for investigation, they recorded the statements of the Appellants, and, visited the scene of crime where nothing was recovered, and, on the other hand, at page 27 lines 1-2, he stated that a locally made pistol and cartridges were found on the 2nd Accused. Counsel further pointed out that the statements which the prosecution witnesses said were recorded from Salisu Badamasi and Idi were not tendered for undisclosed reasons. He urged this Court to invoke the provisions of section 149(d) against the prosecution for with-holding the evidence.
Counsel further contended that the named victims of the alleged crimes were not called, at least, to identify the Appellants as the offenders. He also stressed that the case diary that recorded what happened at the point of their arrest was not tendered even though, it was handed over to the prosecution witnesses by the police officer who allegedly transferred the Appellants to the State CID, Kaduna.
Further, Counsel doubted whether the weapons tendered in evidence were indeed recovered from the Appellants, since the persons who allegedly arrested them did not testify. He also noted that contrary to the pronouncement of the trial Court at page 60 of the record, the evidence of P.W.1 and P.W.2 are not direct evidence. He cited the case of Adesujo Akinkunmi & 3 ors vs. The State (1987) 3 S.C 152 at 163 per Eso, J.C.S., where it was held that it is better to err on the side of acquittal when facts presented in a case are inconclusive towards a conviction or leave one with a margin of doubt. Counsel further cited the cases of Akalonu vs. The State (2002) 10 NSCQR (IT 20) 1252 at 1254 and Edem Udo vs. The State (2006) 27 NSCQR 887 and submitted that the allegations against the Appellants have not been proved. He persuaded that issue No. 2 be resolved in favour of the Appellants, and, for this Court to allow the appeal and set aside the decision of the trial Court.
Arguing on behalf of the Respondent, Tawo E. Tawo Esq., made reference to section 27 sub-sections (1) and (2) of the Evidence Act, the evidence of the prosecution witnesses, particularly at pages 21-25 and 25-28 of the record of appeal, and, the case of Patrick Ikenson & 2 ors vs. The State (1989) 3 N.W.L.R Part 110 page 45 and submitted that once an accused person makes a statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional, and, in that regard, Exhibits 1, 1(A), 2, 2 (A), and 5, 5(A) are confessional statements.
He pointedly argued that the Appellants did not object to the admissibility of the said confessional statements on the ground of involuntariness. The Appellants merely denied making those statements. He emphasised that it is only when the admissibility of a confessional statement is objected to on the ground that it was not voluntarily made, that a trial within a trial should be conducted. He cited the cases of Ikpase vs. A.G., Bendel State (1981) 9 S.C. 7 at 28, Obidiozo vs. The State (1987) 4 N.W.L.R Part 67 page 748 at 762, Ehot vs. The State (1993) 4 N.W.L.R. Part 290 ration 9 and Fred Dapere Gira vs. The State (1996) 4 N.W.L.R. Part 443 p.375 at 388 paragraphs F-G. He further referred to Nkwuda Edamine vs. The State (1996) 3 N.W.L.R. Part 438 page 530 at 537 paragraphs D-E, Ikemson (supra) and Joseph Idowu vs. The State (2000) 7 SC. 50 at 62 and submitted that a free and voluntary confession of guilt made by an accused person, if it is direct and positive, is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession. He, also, stated that an accused person can be convicted solely on his confessional statement.
Counsel further stressed that it is not mandatory that for a Court to convict based on confessional statement, there must be corroboration. He argued that the main test is, whether the confessional statement is proved, direct, positive, unequivocal and amounted to an admission of guilt of the accused person, which can only be determined from the contents of the confessional statement. He, therefore, submitted that the trial Court was right when it held at page 60 of the record that the statements obtained from the accused persons were their confessional statements which they voluntarily made. Counsel stated that the issue of voluntariness of those confessional statements was never raised at the trial Court. He said that the evidence of P.W.1 as to the method adopted in recording the statements of the Appellants was clear, explicit and consistent with the rules of obtaining statements from suspects and/or accused persons. He referred to the evidence of P.W.1 on how he recorded the statements of the 1st and 3rd accused persons in Hausa language and translated the same into English, how they made four thumb prints each, one on the cautionary statement in Hausa language, the second on the statement in Hausa language, the third was on the English version of the cautionary statement, and, the fourth, on the English translation of the statement. Each had four thumb prints and that brought the total for two of them to eight (8) thumb prints. Counsel said there was no doubt about the recorded statements of the 1st and 3rd Accused persons, let alone there being other statements recorded from other persons that were not tendered in evidence. He explained that Salisu Badamasi was the complainant and his statement could not have been confessional statement. He further explained that the other two persons whose statements were mentioned by P.W.1 were the 1st and 3rd Accused persons. According to Counsel, it is deducible from the phrase “signed thumb printed’ used by P.W.2 regarding the statement of the 2nd Accused person, that it was a slip of tongue. He submitted that a different connotation would have emerged had P.W.2 said that the 2nd Accused ‘signed and thumb printed’.
On the issue of proof beyond reasonable doubt, Counsel submitted that a confessional statement, if voluntarily made, is the strongest evidence since it came directly from the mouth of the accused. He cited the case of Ganiyu Gbadamosi and 2 ors vs. The State (1991) 6 N.W.L.R. Part 196 page 182 at 202 paragraphs F-G in support.
Counsel further stated that the contention of the Appellants that failure by the prosecution to call the victims of the robbery to testify is fatal to the prosecution case is unfounded because, it is not compulsory to call every witness to give evidence in a trial, more so, where the confessional statements are direct, positive and unequivocal. He then urged that the appeal be dismissed.
The prosecution’s first witness, CPL. Aminu Hamza, with No. 127615, attached to the CID Kaduna Anti-Robbery Section told the trial Court that on the 6th September, 1999 at about 1700 hrs, he was in the Police Anti-Robbery and Car Theft Department when the DPO Anchau Division transferred a case of armed robbery together with three accused persons and two Exhibits comprising locally made pistol and two red rifle cartridges for further investigation. The case was then assigned to them for investigation. His team comprised of himself, CPL Anthony Kahuwa and Gabriel Akamedu. He, P.W.1, recorded the statement of one Salisu Badamasi and two other persons. He recorded the statement of one Usman Isa, the 1st Accused person. He cautioned the 1st Accused in Hausa, and read over to him the words of the same, which he understood, and, then thumb printed. Then at the request of P.W.1., the 1st Accused volunteered his statement and thumb printed thereon, and he, P.W.1., counter-signed. He took the 1st Accused to his superior officer, Deputy Superindent, Ibrahim Dishi, who, also, read the statement over to the 1st accused person, which he accepted to have made. As a result, the DSP endorsed the statement recorded in Hausa. The said Hausa and English versions of the statement were tendered as Exhibits 1 and 1A respectively.
He, also, cautioned the 3rd Accused person, after which the Accused made a voluntary statement in Hausa, which he, P.W.1., translated into English language. The 3rd Accused thumb printed on the cautionary statement, and, on his Hausa statement and the translated English statement. He also took him to DSP Ibrahim Dishi, who read the statement over to him which he admitted to be his, and, the DSP then endorsed the statement with red biro. The said statements were admitted as Exhibits 2 and 2(A) respectively.
P.W.1 further stated that two Exhibits were recovered from the accused. The 1st Accused held one locally made pistol and one life red cartridge. The pistol and the red cartridge were admitted and marked as Exhibits 3 and 4 respectively.
In his cross-examination, P.W.1., said he did not personally recover those Exhibits. He narrated that there were two thumb prints, eight thumb prints. The thumb print was reversal of the thumb print. He further said that apart from recording the statements and visiting the scene of the incident, he did nothing else. He recorded Idi’s statement, but, he did not recover the bicycle from him. He took the 3rd Accused to the scene in the company of other detectives who were from Anti-Robbery.
P.W.2, CPL, Anthony Kahuwai No. 87381, attached to D Department, State CID Kaduna, confirmed that on 6/9/99, a case of armed robbery with a case diary involving the three Accused persons was transferred to their department for investigation. Also handed over to them, were two locally made pistols and cartridges each. The case was assigned to their team for investigation.
He identified P.W.1., as one of the officers in his said team. He, P.W.2., recorded the statement of the 2nd Accused, i.e. the 2nd Appellant in this appeal. He explained the charge to the 2nd Accused person which he understood, and, then, agreed to make a statement in Hausa Language. He cautioned him which he understood, and, also, thumb printed on the cautionary statement. He recorded the statement of the 2nd Accused person in Hausa, and, also translated the same into English Language. He took the 2nd Accused person to DSP Ibrahim Dishi, who read the 2nd Accused person’s statement over to him, which he, 2nd Accused person admitted as his statement, before the DSP endorsed on the statements. They were admitted as Exhibits 5 and 5(A) respectively. He said that the locally made pistol and cartridges were found in the possession of the 2nd Accused which, he numbered as B and B1.
They were kept in the custody of the Exhibit keeper. The locally made pistol and cartridge were admitted as Exhibits 6 and 7 respectively. They visited the scene of incident but found nothing there.
Under cross-examination, P.W.2 could not remember if he recorded the statement of any other suspect aside the 2nd Accused. He was not sure if he recorded the statement of the complainant.
He did not know if the statement of Idi was recorded or if Idi was charged for receiving stolen property. Mohammed was amongst the other three who went to the scene of crime.
The 1st Appellant testified as D.W.1. He said he is a farmer and a cattle rearer. He did not know the other two accused persons. In August, 1999, on one Saturday, he went to take over rearing of their cattle from his junior brother and ‘Yanbanga’, i.e. Vigilante people arrested him and took him to their office. They did not inform him of the offence he committed.
He slept in their office for two days before they took him to Unguwar Bawa Police Station and, from there, he was taken to CID Kaduna.
He did not make statement at the Unguwar Police Station, but, at the State CID. He denied making the statement in Exhibits 1 and 1(A) tendered by Aminu Hamza. He said he signed the statement he made in Arabic. D.W.1. further said that the ammunitions tendered through the said Aminu Hamza were not recovered from him. He denied having anything to do with them. He did not mention Salisu Badamasi and his friends. He did not know Salisu Badamasi.
In his cross-examination He said he knew the other two accused persons for the first time at the State CID and he did not know Anchau market. He said he did not know his village was known as Nasarawa. He inherited some cattle from his father. He is also farming in Ningi village, Bauchi, i.e. Lumbi in Ningi, Banchi State. The Village Head of Lumbi is Ja,afaru Isah. He, D.W.1., came to Nasarawa with his junior brother.
The 2nd Appellant, Bello Rilwanu, although described on the record as having testified as D.W.1, indeed, gave his evidence immediately after the testimony of D.W.1., Usman Isah, and, that being the situation he ought to have been numbered as D.W.2., on the record. He said he resided in Gwambe, but, on one Wednesday in August, 1999, he left Gwambe for Dembo village in Zaria where his in-law was residing to pay him a visit. When he arrived Dembo, and after enquiries from people on how to locate his in-law, he was directed to Likebo village where he was told some Fulani people were resident in. On his way to the Likebo village, he met some people with whom he exchanged some pleasantries. He told them he was a visitor and was then visiting his in law who migrated from Jibiya. They showed him the direction to the place, but, after about a short distance, they called him back and asked him to go back to Dembo village with them. They asked him whether he was a first time visitor to the area, he answered yes.
They did not believe him and immediately tied his hands down. He slept with them. They were Yanbanga people, and; they did not inform him of any thing he had committed. Then, on Friday morning, they took him to Maigama Police Station. He became unconscious at the station with blood-stained body. He spent two days at the Maigama Police Station.
In his cross-examination, he said he was holding only the N50 bread he bought in Zaria. He is a Fulani and he rears cattle at Gwandone (sic) village in Gwambe (sic) District. He did not know the District Head of Kwadone,(sic) but, he knew Sarki Fulani Kwadone (sic). He further said that they not attend Salah ceremony at Gwambe(sic). He stayed less than a year in Kwadone(sic) before he migrated with his uncle and younger brother from Didewi Kwadem (sic). The people who arrested him did not tell him the offence he committed.
The D.W.3, the 3rd Appellant, said he rears cattle as well. He met his co-accused persons for the first time at the State CID. He denied robbing one Salisu Badamasi. On one Wednesday, at about 10am, he was arrested by Vigilante people, Yanbanga, at Doka in Kauru Village, Kauru Local Government, on his way to buy potash Kanwa. They did not inform him of the offence, but, said he would know when they get to Kaduna. He was taken to Panbeguwa Police Station. Then, on Friday he was brought out from cell under a Mango tree where his statement was taken and was returned to the cell on 31/5/01. He said that the statement tendered in Court was not his, and, no gun or cartridge was recovered from him. He denied robbing Salisu Badamasi and his brother of their money and bicycle. He was cross-examined.
It ought to be reminded that the Appellants herein were, at trial the Court, charged with the heinous crime of armed robbery punishable under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990, which carried with it, a death penalty. It was a one count charge and, their conviction by the trial Court was squarely based on the confessional statements allegedly made by them. It cannot be over-emphasised that due to the grave nature of offences such as this and their life terminating penalties, Courts are always enjoined to ensure that all the evidence adduced by both the prosecution and defence are carefully scrutinised and all the applicable laws intensely and microscopically examined before any pronouncement is made on the guilt or otherwise of the accused persons.
The issues propounded by the parties in their respective Briefs of Argument had thoroughly been subjected to a microscopic examination, and, it seems clear, therefore, that this appeal will be superbly considered on the lone, but, strong and all encompassing issue elegantly articulated in the Respondent’s Brief of Argument, that is to say; ‘whether the learned trial Judge was wrong in admitting and relying solely on the confessional statements of the Appellants; Exhibits 1, 1(A), 2, 2(A) and 5, 5(A) in convicting them for the offence of robbery”.
It is extremely important to recognise, for all intents and purposes, that only P.W.1. and P.W.2., the two Police officers, at the State C.I.D., who recorded the statements of the three Appellants were presented before the trial Court as the prosecution witnesses. It is, equally, imperative to note that names of about seven witnesses were listed on the Proof of Evidence filed before the trial Court, but, for some inexplicable reasons on the record, none of them, particularly, the eye witnesses to the said grave offence, nor any of the victims, who would have been in an excellent position to identify the Appellants, narrate to the trial Court how the crime was perpetrated by the Appellants, e.t.c, was called by the prosecution. Although, I must observe that the prosecution is under no obligation in law or compulsion to call all the intended witnesses for the prosecution, nor is it bound to call any of them at all. The basic requirement is for the vital witnesses who would help to establish, beyond reasonable doubt, the ingredients of the offence with which the accused is charged to be called. I will leave this for now, but, at the appropriate stage, the facts adumbrated hereinbefore shall be adequately considered in this judgment.
Given the contentions of the Appellants regarding the admissibility of Exhibits 1, 1(A), 2, 2(A), and 5, 5(A), the said confessional statements; the vital point this Court has to thrash out at this juncture is, whether it was wrong in law for the trial Court to have admitted those alleged confessional statements of the Appellants notwithstanding the vehement opposition by the Appellants on the grounds that they neither made, nor thumb printed any of those statements?
To appreciate this point fully, it will be more prudent to reproduce the excerpt from the record of proceedings of the trial Court at pages 12, 13 and 16 of the record of this appeal, so as to perceive the precise words articulated by Counsel for the Appellants during his objections to admissibility of the said confessional statements. The trial Court recorded the following:
At p. 12,
“Mr. Michael: I seek to tender the statement of the 1st accused both Hausa and English version.
Mr. Asogwa: Defence Counsel the accused said that he is not the maker of the statement he did not thumb print same and he did not know the facts contained in the statement.
Michael: What the 1st accused did is retraction of the statement.
Court: The objection is mere retraction this will not make the statement inadmissible consequently. The objection overruled the statement of the 1st accused admitted as follows.
1, Hausa statement Exhibit 1
2. English translation Exhibit 1A” At p. 13,
Mr. Asogwa: 3rd Accused said that it is not his statement he never thumb-print same. He did not know the facts contained in the statement.
Prosecution Michael: The objection are mere on retraction I am asking the Court to admit the statement.
Court: The objection is mere retraction which would not form basis to reject the statement the objection overruled the statement of the 3rd accused accordingly admitted Court Exhibit as follows:
1. Hausa statement Exhibit 2
2. English translation 2(A)”
At p. 16,
“Mr. Michael: I seek to tender the statement of the 2nd accused person.
Mr. Asogwa: The 2nd accused said he is not the maker of the statement he never thumb print same. He never gave such statement to the police.
Mr. Michael: The statement relevant under section 37 Evidence Act what 2nd accused said is mere denial.
Court: The statement is relevant is mere retraction the statement and admissible in evidence the objection overrules the statement of 2nd accused accordingly admitted Court Exhibit as follows:
1. Hausa statement Exhibit 5
2. English translation Exhibit 5(A)”.
I must observe that I was never amused but rather dismayed at the volume of typographic errors I noticed on the record of proceedings of the lower Court. Steps should rather be taken to equip all the Courts in the Country with highly trained and qualified Secretaries, Stenographers, and Legal Assistants who will be assisting in proof-reading some of these Courts’ documents and conducting legal researches for the Judges/Justices, rather than leaving Judicial officers at the hands of copy-typists, thereby making the Judges/Justices’ work cumbersome.
It is conspicuous on the record that none of the objections raised by the Defence Counsel to the admissibility of Exhibits 1,1 (A), 2, 2(A) and 5, 5(A) was suggestive of any fact that those statements were involuntarily made by the Appellants or that they were coerced into making the same. What was clearly projected was total denial of those statements by the Appellants. Even the evidence of D.W.3 bore this out, on how he was brought out from the cell on Monday under a Mango tree and he explained how he was arrested and then made his statement, after which he was retuned to the cell.
The salient question now is; ‘what does the word ‘confession’ connote, and, under what circumstance would it be admitted in evidence without the trial Court conducting any investigation into it or having a trial within a trial to test its veracity?
“A confession is said to be a voluntary statement made by a person charged with the commission of a crime or misdemeanour, communicated to another person, wherein he acknowledges himself to be guilty of the offence charged, and discloses the circumstances of the act or the share and participation which he had in it”. Therefore, a voluntary confession is one made spontaneously by a person accused of crime, free from the influence of any extraneous disturbing cause, and in particular, was not influenced or extorted by violence, threats, or promises. It is the product of an essentially free and unconstrained choice by its maker, and is made with full knowledge of nature and consequences of the confession.
It is clear from the above definition that ‘voluntary’ is the adjective qualifying ‘confession’
Whereas an involuntary confession is one induced by hope, promise, fear, violence, torture or threat. What all these irresistibly lead to is that the only condition for admissibility of any confessional statement is, if it is shown to have been voluntarily made by the accused, but, the moment an accused alleges that the statement was extracted from him not based on his volition, then the Court must enquire into the circumstances under which it was made.
As I observed earlier, the objection raised by the Defence Counsel when the said statements were being tendered were simply denials made by the accused persons. The Appellants refused to admit or accept the alleged confessional statements as theirs, but, it is interesting to recognise that no allegation of any brutality, coercion, threats or promise of any sort was raised by them against the investigating police officers.
The questions now are; ‘whether denial of making a confessional statement is synonymous with alleging that it was involuntarily made or obtained, and, whether mere denial of the confessional statement renders such statement inadmissible?
It is a known principle that an involuntarily obtained statement admitting commission of crime or confession cannot be used in prosecuting an accused person. Such a statement is inadmissible both because it is likely to be unreliable and because of society’s aversion to forced confession, even if true.
It is clear as crystal that denial of an alleged confessional statement is, not in the least, the same as alleging that it was made without the volition or free will of the accused. Therefore, the law is that a confession or an admission by an accused of the commission of the offence with which he is charged is not rendered inadmissible in evidence merely because the accused, at the point of tendering of the said statement or during his examination in chief or cross-examination denied ever making such statement.
A confessional statement is rendered inadmissible if the accused claimed he was coerced into making the same, and, a trial within a trial was conducted during which he was able to prove to the Court the frightful circumstance under which the said statement was obtained from him.
In the instant case, it is clear on the record that the Appellants, did not, through their Counsel and during the trial, particularly, at the point when the prosecution Counsel applied to tender the said confessional statements, object to their admissibility on the ground that they were involuntarily made or obtained from them with coercion or as a result of threat to their lives or promise of any advantage, etc.
It is trite that where the objection to the admissibility of an accused’s confessional statement is based on the grounds that it was not read over to him and that he did not make it, but, not on the ground that the said statement was involuntarily made, he was coerced, or induced to make it, the statement is treated as a voluntary one, and, is admissible without the Court holding a trial within a trial, which is necessary only in cases where the issue of involuntariness or otherwise of a confession arises. See the cases of Nsofor vs. The State (2002) 10 N.W.L.R. Part 775 page 274, per Ba’aba, J.C.A. Further, in Akpan vs. State (2008) 14 N.W.L.R Part 1106 page 72 the Supreme Court at pages 97 and 98 paras. H-C, per Ogbuagu, J.S.C., stated thus:
“When the learned Counsel for the appellant objected to the tendering of what has been described by him in the appellant’s Brief, as “purported confessional statement of the appellant”, on the ground that the signature thereon, was not that of the appellant and that the appellant was seeing the document for the first time – i.e. that he never made the statement, in my respectful view, a trial within trial, should not have been conducted. This is because, trial within the trial is ordered and conducted where the voluntariness of the making of the statement by an accused person, is in issue or raised by an accused person. In other words, where an accused person admits making the statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial is conducted in order to determine whether the statement was voluntary or made by duress or otherwise. When the trial Judge, is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the Court.”
As I observed earlier, there is nothing on the record suggestive of the fact that the admissibility of those Exhibits was objected to based on their involuntariness which would have necessitated the trial Court holding a trial with a trial or conducting an investigation in respect thereof, and that being the case, I am, therefore inclined, in the light of the above principles, to hold that the trial Court was not wrong in admitting Exhibits 1, 1(A), 2, 2(A) and 5 and 5(A) in evidence as confessional statements of the Appellants.
On the contention whether the trial Court should not have relied solely on the said confessional statements to convict the Appellants for the offence of armed robbery, it is a long aged principle that a confessional statement may be sufficient to ground a conviction notwithstanding its retraction by the accused. See Idowu vs. The State (2000) 12 N.W.L.R. Part 680 page 48 where the Supreme Court further stated that all the Court will need to do is to consider both the confession and the evidence in retraction and decide where the truth lies. A free and voluntary confession of guilt made by an accused person, if it is direct and positive, is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession. It must be emphasised that admissibility of a confessional statement is one thing, while the weight to be attached to it is a different thing altogether. The nature of weight to be attached to any confessional statement admitted in evidence can only be ascertained after the confessional statement has undergone certain tests.
In Ubierho vs. State (2002) 5 N.W.L.R Part 819 page 644, the Supreme Court stated that the approach to be followed in assessing the quality of a confessional statement whether retracted or not is to ask the following questions:
“(a) Whether there is anything outside the confession which shows that it may be true;
(b) Whether the confessional statement is in fact corroborated;
(c) Whether the relevant statement of fact made in it are most likely true as far as they can be tested;
(d) Whether the accused had the opportunity of committing the offence;
(e) Whether the confession is possible;
(f) Whether the alleged confession is consistent with other facts that have been ascertained and established”.
See also Shande vs. State (2005) N.W.L.R. Part 907 page 218, Hassan vs. State (2001) 1 N.W.L.R. Part 735 page 184 and Madjemu vs. State (2001) 9 N.W.L.R Part 718 page 349.
The onus is on the prosecution to prove beyond reasonable doubt that the person charged with the commission of an offence indeed committed the said offence.
The guilt of an accused person can be proved by;
(a) The confessional statement of the accused person; or
(b) Circumstantial evidence;
(c) Evidence of eye witness. The prosecution does not always need an eye witness account to convict an accused of the crime if the charge can otherwise be proved.
As a matter of practice, the Courts normally require some evidence in addition to a confessional statement which makes the confessional statement probable that same is truth.
In the instant case, the Appellants were tried for the offence of-armed robbery-at the lower Court. In order to establish commission of the offence of armed robbery, the prosecution must prove thus:
(a) that there was a robbery or a series of robberies;
(b) each robbery was an armed robbery; and
(c) the accused was one of those who took part in the robbery.
In proof of the ingredients, it should be noted that the prosecution is not obliged to call a host of witnesses, but, it’s case could be weakened by the failure to call material witnesses. It is within the discretion of the prosecution to call the witness or number of witnesses required to prove the commission of the offence beyond reasonable doubt. It need not call an eye witness if it has reasonable belief that such a witness would not speak the truth, though, a conviction may be quashed if a witness whose evidence could have swayed the Court or established the commission of the offence was not called.
In the instant appeal, Messrs Salisu Badamasi, Saleh Isah, Saleh Mohammed and Sule Mohammed who were listed in the proof of evidence as victims of the alleged armed robbery offence were not called as witnesses. Salisu Badamasi was said to have been robbed of the sum of N300 by the accused persons who were holding pistols in their hands. Saleh Isah was allegedly robbed of the sum of N510 by the said accused persons while armed with a gun.
Saleh Mohammed was also robbed of the sum of N330.00 by the accused persons while in possession of a gun. Saleh Mohammed was said to have abandoned his bicycle between the road from Anchau Market and his village when he was accosted by the accused persons. In the said proof of evidence, one Sgt Nuhu Sadan was indicated as having recorded the complaint at Bambeguwa Police Station. Sgt. Abdullahi Shittu was the one who arrested the accused persons and investigated the compliant and Cpl. Yahaya Kantiyok, it was said, would corroborate the investigation and arrest of the accused persons by Sgt. Shittu.
It is difficult, I must say, to ascertain from the record where the contents of the said Exhibits 1, 1(A), 2, 2(A) and 5, 5(A) were tested by the trial Court with facts outside the statements and along with other evidence adduced by the prosecution before reaching conclusion in the case.
In fact, apart from the testimonies of P.W.1 and P.W.2, the two police officers who recorded the said confessional statements of the Appellants, and whose names, ironically, did not appear on the Proof of Evidence which was filed after they had, obviously, obtained the statements of the Appellants, no other evidence was adduced by the prosecution with which the contents of the said confessional statements could have been tested. The confessional statements made by the Appellants were not corroborated by any independent testimony of a witness for the prosecution. Apart from the contents of the said Exhibits, there was no iota of evidence before the trial Court confirming that any robbery took place, and that the robbers were armed, and, that it was the Appellants who actually participated in the robbery or were the robbers. There was no evidence outside the Appellants’ said confessional statements which implicated them in this heinous offence, who identified them as those that robbed Salisu Badamasi and his friends. I must observe, too, that contrary to the claims of the prosecution Counsel and the prosecution witnesses that the Appellants thumb printed the English versions of the said statements translated by them from Hausa language into English language, thereby making the entire thumb prints on the documents eight, none of the translated English version was thumb printed by any of the Appellants. They thumb printed only the ones that were recorded in Hausa language.
I could not observe any evidence outside the confessional statements of the Appellants that convinced the trial Court to convict them.
It is necessary to note that it is not the duty of an accused person to produce evidence and witnesses to prove that he did not commit the offence he is alleged to have committed. The duty is on the police to whom he had made statement to investigate and interview the witnesses named and bring then forward to prove that the accused did what he was alleged to have done. See Onyirimba vs. State (2002) 11 N.W.L.R Part 777 page 83, per Ikongbeh, J.C.A.
The prosecution should have brought any of those vital witnesses or explain their inability to bring them.
In Asake vs. Nigeria Army Council (2007) 1 N.W.L.R part 1015 p. 408, it was held that where a material witness who ought to have been called by the prosecution to testify on his allegation and who would have been subjected to cross-examination, a potent tool for perforating falsehood, was not called and no plausible explanation was given for failure to call him, the allegation is left to speculation by the Court.
In the instant case the prosecution did not call any of the victims of the crime nor the police officers who actually investigated the offence.
Although it is not essential to prove the case with absolute certainty, the ingredients of the offence charged, however, must he proved as required by law, and to the satisfaction of the Court.
There is no page on the record where the trial Court subjected the said confessional statements to any test so as to ascertain their veracity. The Court, simply, relied on them without ascertaining any corresponding or corroborative evidence. A lot of doubts exist in this case, and, I am afraid, they have to be resolved in favour of the Appellants.
It is clear from the record that the said confessional statements of the Appellants were not subjected to any scrutiny by the trial Court. No witness testified saying that the Appellants robbed him either with or without any gun. The police officer who supposedly arrested them immediately after the incident was not called to give evidence.
I am sorry to state that the criminal charge and the ingredients of the offence of armed robbery preferred against the Appellants were not proved beyond reasonable doubt notwithstanding the existence of the said confessional statements. The prosecution, I believe, ought to have done a better job if it had done its home work properly, rather than just clutching to its chest, the said confessional statements.
I, therefore, find this appeal meritorious. Accordingly, this appeal is hereby allowed. The conviction and sentence of the Appellants by the Kaduna State High Court are hereby set aside. The Appellants are hereby discharged and acquitted.
BABA ALKALI BA’ABA, JCA: I have had the benefit of reading in draft the lead judgment of my learned brother, Orji-Abadua, JCA. I agree with his reasoning and conclusion that the appeal is meritorious and should be allowed.
I therefore allow the appeal and abide by the consequential orders contained in the lead judgment.
JOHN INYANG OKORO, JCA: I had the privilege of reading in advance the judgment just delivered by my learned brother, Orji-Abadua, JCA and I agree with him that this appeal has merit and ought to be allowed. My learned brother has admirably and quite efficiently resolved the salient issues submitted for the determination of this appeal. For the reasons expressed in the lead judgment which I adopt as mine, I agree that the conviction of the Appellants be set aside as I join to order that they be and are hereby discharged and acquitted.
Appearances
A.T. KEHINDE EsqFor Appellant
AND
TAWO.E.TAWO Esq;For Respondent
