KEHINDE MOSHOOD v. THE STATE
(2014)LCN/7015(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of March, 2014
CA/I/67B/2007
RATIO
CONDITIONS WHERE AN IDENTIFICATION PARADE IS NECESSARY
I do not accept the argument of the Appellant’s Counsel that the failure of the prosecution to prove that an identification parade was conducted must be held to be fatal to the prosecution’s case. The Supreme Court in the case of The State vs. Olashehu Salawu (2011) LPELR – 8252 (SC) stated the law thus:
“It is settled law that it is not in all cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime or the day of the incident, a formal identification may be unnecessary. Furthermore, where an accused person by his confession has identified himself, there would be no need for any further identification parade. Identification is the means of establishing whether a person charged with an offence is the same person who committed the offence. It is essential in instances where –
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) The victim or witness was confronted by the offender for a very short time;
(c) The victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.
Let me hasten to add that an identification parade is not a sine qua non for identification in all cases where there has been a fleeting encounter with the victim of a crime if there is yet other evidence leading conclusively to the identity of the perpetrator of the offence. See the recent Supreme Court judgment in the case of Maileudi Aliyu vs. The State (2014) ALL FWLR part 711 p. 1492 at p. 1506. Per OBIETONBARA DANIEL-KALIO, J.C.A.
WHETHER AN ACCUSED PERSON CAN BE CONVICTED SINGULARLY ON HIS CONFESSIONAL STATEMENT
It is an old established principle of our law that an accused person can be convicted on his confessional statement alone where the confession is consistent with other ascertained facts which have been proved. See Akpan vs. State (1992) NWLR part 248 per Karibi-Whyte p. 439 at page 468.
Because of the importance attached to a confessional statement it is advisable that it be subjected to some tests as prescribed in the old English case of R v. Sykes (1913) 8 CR. APP. At 233.
The tests were approved by the West African Court of Appeal in the case of Kanu vs. The King 1952/55 14 WACA 80. See Shazali vs. The State (1988) NWLR part 98 p. 164. The tests entail that the judge asks himself the following questions:-
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the murder? (if the case is one of murder)
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved.
In the case of Shazali vs. The State (supra) the Supreme Court stated that if the confessional statement passes the above tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If on the other hand the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.
I think it is necessary to reproduce here in extenso the views of the trial judge in arriving at his conclusions. See at page 112- 113.
“In the instant case, the learned defence counsel has advanced many reasons why the accused’s statement (Exhibit C, C1 and C2) should not be upheld against them but most of those reasons are an attempt to reopen the issues already dealt with in the trial within a trial. However, the court is enjoined to test a confession as to its truth before upholding it by examining it along other evidence in the case so as to determine the following –
(1) Whether there is anything outside it to show that it is true;
(2) Whether it is corroborated;
(3) Whether the facts stated in it are true in so far as can be tested;
(4) Whether the accused’s confession is possible and
(5) Whether the confession is consistent with other facts which have been ascertained and proved.
See R v. Obiasa (1962) 2 SCNLR 402. Per OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
KEHINDE MOSHOOD Appellant(s)
AND
THE STATE Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is in respect of a criminal matter. The Appellant Kehinde Moshood was charged with two others for conspiracy to commit armed robbery and armed robbery. The Appellant and the others charged along with him were accused of serial robberies at two locations in Abeokuta namely Kemta Housing Estate Idi-Aba and No.1, Odunbaku Avenue on the 4th of November 1999. The Appellant was alleged to have made a confessional statement. Based primarily on that confessional statement, the Appellant was convicted of the offence and sentenced to death by firing squad. It is apposite to state that a total of ten witnesses testified for the prosecution while the Appellant who testified as Dw3 testified on his own behalf.
Aggrieved by the judgment (the judgment was delivered on the 1st of August 2003) the Appellant prepared a Notice of Appeal dated 8th of August, 2003. (See at page 120 of the Record of Appeal). Apparently, he omitted, failed or neglected to file it. It was not until the 4th of October 2010 that a Notice of Appeal was duly filed consequent upon a Motion for extension of time granted by this court. The Notice of Appeal was deemed as properly filed and served on 15/11/2010.
In the Notice of Appeal, the Appellant attacked the judgment of the trial judge on the following four grounds, viz-
“1. That the learned trial judge committed a grave error in law in convicting the Appellant of the offences of armed robbery and sentencing him to death by firing squad when the law under which the charge was brought is in violation of the Appellant’s constitutional rights as enshrined in Section 36(6)(a) and is inconsistent therewith.
2. The learned trial judge erred in law and occasioned a grave miscarriage of justice in holding that the prosecution proved its case of conspiracy to commit armed robbery and armed robbery against the Appellant when the identity of the Appellant was never established by any procedure known to law.
3. The learned trial judge erred in law in wrongly evaluating the evidence given at the trial within a trial and thereby admitting inadmissible evidence (the confessional statements of the Appellant and the co-accused persons) on which he relied in convicting and sentencing the Appellant.
4. The learned trial judge erred in law when he held that the prosecution had proved its case of conspiracy to commit armed robbery and armed robbery against the Appellant when he failed to take into account the material contradictions and discrepancies in the evidence given by the prosecution witnesses.
The grounds each had accompanying particulars but I do not consider it necessary to reproduce them here as they are rather prolix.
Olakunle Agbebi Esq. Appellant Counsel filed Appellant’s Brief of Argument on 10/1/2013. The same was deemed as properly filed and served on 7/10/2013 consequent upon an order of this court. The Respondent’s Counsel B. A. Adebayo Esq. filed the Respondent’s Brief on 30/10/13.
Appellant’s Counsel identified four issues for determination in this appeal. They are as follows:-
“1. Whether the provisions of Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Decree, 1999 under which the Appellant was tried, convicted and sentenced are not inconsistent with the provisions of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999 and therefore void?
2. Whether the failure by the prosecution to identify the Appellant as one of the robbers is not fatal to the case for the prosecution?
3. Whether the learned trial judge was right in admitting Exhibit C in evidence and attaching any weight to it?
4. Whether the learned trial judge was right in holding that the prosecution proved a case of conspiracy and armed robbery against the Appellant beyond reasonable doubt?
The Respondent’s Counsel considered that only one issue is necessary for the determination of this appeal. He formulated that issue as follows:-
“Whether the prosecution proved beyond reasonable doubt the offences of conspiracy to commit armed robbery and armed robbery against the Appellant having regard to the evidence before the trial court”.
I observed that the formulation of a lone issue notwithstanding, the Respondent’s counsel joined issues on the Appellant’s issue 1.
This appeal has a sister appeal in CA/I/67A/2007. I was privileged to write the lead judgment in that sister appeal. The facts in this appeal are exactly the same as the facts in the sister appeal. The reason is that the Appellant in this appeal was a co-accused at the trial court with the Appellant in CA/I/67A/2007. While the Appellant in CA/I/67A/2007 was the 2nd accused at the trial court, the Appellant in this appeal was the 3rd accused in that court. Counsel in both appeals are the same, the issues formulated in both appeals are the same, and the arguments in both appeals are the same. That being the case, the maxim de Similibus idem est judicium, that is, in like cases the decisions is the same, applies. I cannot however simply adopt my judgment in CA/I/67A/2007 and be done with this judgment. That will deny those who did not read that judgment, the benefit of understanding the reasons for the decision in this judgment, I will therefore repeat to a large extent the submissions of Counsel and my views in appeal No.CA/I/67A/2007 in this appeal.
In considering this appeal, I will consider the issues for determination as formulated by the Appellant’s Counsel. As earlier stated, issue 1 is whether the provisions of Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Decrees 1999 under which the Appellant was tried, convicted and sentenced are not inconsistent with the provisions of Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 and therefore void.
Learned Counsel related the issue to ground 1 of the grounds of appeal. He submitted that Section 1(3) of the Constitution of the Federal Republic of Nigeria 1999 provides that where any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall, to the extent of its inconsistency, be void. Learned counsel also referred to Section 36(6)(a) of the Constitution which requires that every person who is charged with a criminal offence shall be entitled to be informed promptly in the language that he understands and in details of the nature of the offence. It was submitted that Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Decree 1999 does not give any description of the nature or detail of the offence of armed robbery either as to what constitutes the offence or as to the ingredients of the offence. Learned counsel referred to the meaning of ‘nature’ as defined by the New Edition of the Oxford Advanced Learner’s Dictionary. He contended that the word as defined in the said dictionary means “the basic qualities of a thing” and submitted that it is completely different from the particulars of the offence as usually stated in a charge.
Learned counsel further referred to the meaning of the noun “particulars” as stated in the same Oxford Advanced Learner’s Dictionary. It was submitted that the particulars of the offence do not themselves constitute the statutory offence charged and do not also state the basic qualities of the offence.
Turning to Section 401 and 402 of the Criminal Code Act Cap. C.38 Laws of the Federation of Nigeria 2004, learned counsel by way of comparison with Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, submitted that the Sections of the Criminal Code Act are consistent with Section 36(6)(a) of the Constitution while Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act is inconsistent with the said constitutional provision.
It was submitted that in view of the provisions of Section 1(3) of the 1999 Constitution, there was no valid law under which the Appellant was charged as in his view, Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act as amended is void for being inconsistent with Section 36(6)(a) of the Constitution. Learned Counsel urged us in the circumstances to set aside the conviction and sentenced passed on the Appellant.
In his argument in response to the submissions of Appellant’s Counsel on issue 1, the learned counsel to the Respondent referred us to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunals (Certain Consequential Amendments etc) Decree 1999 and in particular to Section 15 of the said Act which defines Robbery in a manner similar to the definition in Section 401 0f the Criminal Code Act. It was argued that it cannot be true that the provisions of law contained in the charge against the Appellant is inconsistent with the provisions of Section 36(6)(a) of the Constitution.
It seems to me that the basis of the Appellant’s Counsel’s Argument on inconsistency of Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended with Section 36(6)(a) of the Constitution has to do with the expression “nature of the offence,” in the Constitution which in learned counsel’s view was not complied with in Section 1(2)(a) of the Robbery and Firearms (Special Provisions Act) as the nature of the offence is not disclosed in that Act.
But I think there is a misconception here. When Section 36(6)(a) of the Constitution talks about nature of the offence it talks about it with reference to the criminal offence for which a person is charged with. Therefore, all that is required is to look at the charge against an accused person and see if the charge discloses the nature of the offence. It is of course important that an accused person knows the nature of the charge, he is facing so as to be properly guided in defending himself.
Appellant’s Counsel talks about the definition of “nature” as given in the New Edition of the Oxford Advanced Learners Dictionary which learned counsel said was defined as “the basic qualities of a thing”. The meaning assigned to the word “nature” by the Chambers Concise Dictionary are quite handful, but I think that two are useful here. The word according to the Chambers Concise Dictionary means “a fundamental tendency; essential character, attitude or outlook”. The word also means “a kind, sort or type” It seems to me therefore that what Section 36(6)(a) of the Constitution means when it says that; “Every person who is charged with a criminal offence shall be entitled to be informed properly in the language that he understands and in detail of the nature of the offence” is simply that with regard to the nature of the offence, the person should be informed of the essential character, or kind or type of offence he is charged with. This does not require an anatomy of the particular law under which the person is charged. What is the character or kind or type of offence with which the Appellant was charged? I think the answer is straightforward: it is armed robbery and conspiracy to commit armed robbery. The Appellant could not have been under any illusion about that. The charge against him in count 1 and 2 before the lower court reads:
1st Count
“That you Lekan Shodiya, Sampson Idowu, Kehinde Moshood and others now at large on or about the 4th day of November, 1999, at Abeokuta in the Abeokuta Judicial Division, did conspire to commit a felony, to wit: armed robbery at Mr. Olusesan Sowunmi’s residence at Kemta Housing Estate, Idi-Aba, and thereby committed an offence contrary to Section 5(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398, Laws of the Federation of Nigeria, 1990 as amended by the Tribunals (Certain Consequential Amendments) etc Act, 1999”.
2nd Count
“That you Sampson Idowu, Kehinde Moshood and others now at large on or about the 4th day of November, 1999, at Kemta Housing Estate, Idi-Aba, in the Abeokuta Judicial Division, while armed with guns and other offensive weapons/ robbed one Simiat Sowunmi of her jewelries (sic) and the sum of N6,000 and 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, 1990 as amended by the Tribunals (Certain Consequential Amendments) etc Act, 1999”.
It is in my view that the charge above is very explicit about the nature of the offence that the Appellant faced. I do not really know how the issue of conflict between Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act and Section 36 (6)(a) of the Constitution comes into the picture in all of this. The issue of conflict between the Act and the Constitution does not arise. The argument along that line by Appellant’s Counsel in my humble view is misconceived.
I now turn to issue 2. Issue 2 formulated by the Appellant’s Counsel as will be recalled, is whether the failure by the prosecution to identify the Appellant as one of the robbers is not fatal to the case of the prosecution. On this issue, learned counsel referred us to the ingredients of the offence of armed robbery as stated in a plethora of cases including Alabi vs. State (1993) 7 NWLR part 307 p. 511 at 523 and Bozim vs. State (1985) 2 NWLR part 8 p. 465 at 469. It was contended that the prosecution failed to establish that the Appellant was one of the robbers as none of the 7 prosecution witnesses identified him.
It was submitted that there is nothing in the Record of Appeal to indicate that an identification parade was carried out for the purpose of establishing the identity of the Appellant as one of the robbers. Learned Counsel submitted that the failure of the prosecution to prove that an identification parade was conducted must be held to be fatal to the prosecution’s case. It was submitted that the only case where an identification parade can be dispensed with is where the accused person was either caught at the scene of the crime or where he was caught fleeing from the scene of crime, none of which scenarios applied in this case. Learned Counsel submitted that the failure of the prosecution witnesses to identify the Appellant created a reasonable doubt as to whether the Appellant was one of the robbers involved in the incidents that occurred on the 4th of November, 1999. He urged the court to resolve the doubt in favour of the Appellant. He cited the case of Abu Ankwa vs. The State (1969) ALL NLR p. 128; Okonji vs. The State (1987) NSCC 291 at 302.
I do not accept the argument of the Appellant’s Counsel that the failure of the prosecution to prove that an identification parade was conducted must be held to be fatal to the prosecution’s case. The Supreme Court in the case of The State vs. Olashehu Salawu (2011) LPELR – 8252 (SC) stated the law thus:
“It is settled law that it is not in all cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime or the day of the incident, a formal identification may be unnecessary. Furthermore, where an accused person by his confession has identified himself, there would be no need for any further identification parade. Identification is the means of establishing whether a person charged with an offence is the same person who committed the offence. It is essential in instances where –
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) The victim or witness was confronted by the offender for a very short time;
(c) The victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.
Let me hasten to add that an identification parade is not a sine qua non for identification in all cases where there has been a fleeting encounter with the victim of a crime if there is yet other evidence leading conclusively to the identity of the perpetrator of the offence. See the recent Supreme Court judgment in the case of Maileudi Aliyu vs. The State (2014) ALL FWLR part 711 p. 1492 at p. 1506.
In the light of the authorities cited above, it is clear to me that an identification parade was not necessary in this case since as learned counsel to the Appellant himself pointed out, none of the 7 witnesses had any encounter with the Appellant. There must be an encounter even if fleeting before an identification parade can be justified.
Besides, as explained in The State vs. Salawu (supra) an identification parade will not be necessary where an accused person has identified himself by his confession. In the case on appeal here, the basis of the conviction of the Appellant is a confessional statement. Going by the face value of that confessional statement, the Appellant identified himself as having committed the offence. In the circumstances, an identification parade is uncalled for.
I now turn to issue 3 which is whether the lower court was right in admitting Exhibit C i.e. the confessional statement in evidence and attaching weight to it.
Appellant’s Counsel submitted that in view of the fact that the Appellant maintained in his evidence that the confessional statement, Exhibit C was induced by violence, the learned trial judge should have discountenanced it. It was argued that a confessional statement obtained through threat, promise or torture is inadmissible in evidence. The case of R v. Haske (1961) SCNLR 90 was cited. It was submitted that the learned trial judge erred when he found that Exhibit C was voluntarily made in his ruling after the trial within the trial. We were referred to page 59 – 62 of the Record of Appeal. Learned Counsel submitted that the learned trial judge was in error when he gave undue weight to Exhibit C and that there was nothing on record which so supports Exhibit C as to justify the conclusion of the learned trial judge that conspiracy was proved against the Appellant beyond reasonable doubt. It was contended that the learned trial judge did not properly subject the confessional statement, Exhibit C to the test laid down in R v. Sykes (1913) 18 CR App. R 233 as there was nothing outside the confessional statement to show that it was true. Learned Counsel urged us to resolve issue 3 in the Appellant’s favour and hold that the confessional statement was not made voluntarily.
Issue 3 as I see it deals with two things, namely (1) whether the confessional statement was rightly admitted in evidence and (2) if it was, the weight to be attached to it. With regard to the sub-issue of the weight to be attached to the confessional statement, I think it is sub-sumed under issue 4 and indeed also dealt with under that issue. I will therefore deal with it when considering issue 4. I am emboldened in this view by the decision of the Supreme Court in the case of Owie vs. The State (1985) NWLR part 3 p. 470 where that court explained as follows:-
“The rule with respect to conducting a trial within a trial operates only in cases questioning the voluntariness or otherwise of confessions. It does not apply to questions of weight to be attached to admissible evidence admitted. The question of weight of evidence is always decided as in this case, at the end of the trial in relation to the totality of the evidence adduced before the court”.
The issue of the voluntariness of the confessional statement arose out of dissatisfaction with the ruling of the trial judge who held that the confessional statement Exhibit C was admissible in evidence as the Appellant’s confessional statement. I will now consider if the trial judge was right to have admitted the statement of the Appellant as his confessional statement. In taking on this task, I am very mindful of the boundaries set for Appellate Courts with regard to evaluation of evidence and findings of fact. Now, evaluation of evidence and findings of fact are the forte of trial courts. They see witnesses and are in a position to form opinion that an appellate court no matter how perspicacious, cannot.
Appellate Courts deal only with the cold records of appeal. The evaluation of evidence and findings of facts of trial judges ought therefore to be respected on account of their vantage position of seeing and hearing witnesses. However, where evaluation of evidence and findings of facts by a trial court are perverse and show a misapprehension of the facts, the appellate court can step in and reverse same.
In the ruling of the lower court after the trial within the trial was conducted, we find the following views of the trial judge as they relate to the Appellant.
At page 60 of the Record, the trial court noted thus:-
“Pw2 (Sgt. Kure) said that it was to him that the 3rd accused made his statement following his arrest. He further said that he charged and cautioned the 3rd accused before the latter volunteered the statement which he said the 3rd accused made in Yoruba and which he (Pw3) recorded in English Language. Pw3 said that the 3rd accused was satisfied, that the statement was correctly recorded and explained to him in Yoruba by the witness. This witness also said that he took the 3rd accused and his statement before the same S.P.O, in charge of the Anti-robbery Section at the State C. I. D. Eleweran at that time and that the statement was accordingly endorsed by the S.P.O. who signed it and that the 3rd accused also signed it. He denied beating or doing anything of that kind to the 3rd accused before or during the statement making.
Further at page 60 – 61, the trial judge stated:
“All the accused admitted however that they made the statements in question which were eventually endorsed by one of the said S.P.O.’s . Each accused also admitted telling the SPO that he had made his statement freely and voluntarily, although for fear of further punishment, before the statement was endorsed by that SPO”.
The learned trial judge then concluded thus at page 61;
“From the foregoing, the only logical and reasonable conclusion that I can draw is that the stories of beatings and torture now being told by the accused are mere after thought. The evidence clearly shows that the policemen who took the statement from the accused (i.e. PW1 and PW2) observed all the necessary procedure when taking the accused’s statements -including taking the accused and their statement before Pw3 – a superior police officer to whom each of the accused confirmed making the statement freely and voluntarily”.
Now as stated by the Supreme Court per Oputa JSC in Ojegele vs. The State (1988) NWLR part 71 p. 414:
“In any dispute as to the voluntary nature of any given statement, the onus is on the prosecution to prove positively and affirmatively beyond reasonable doubt that the statement is voluntary”.
Again, the Supreme Court per Ogwuegbu JSC stated thus in Emeka vs. State (2001) 14 NWLR part 734 p. 666;
“When there is a trial within a trial, the onus is on the prosecution to prove that it was free and voluntary in order that evidence of a confessor may be admissible. It must be affirmatively proved that the confession was free and voluntary”.
While this court will loathe to interfere with the evaluation of evidence of the trial court in its ruling in the trial within the trial, I think it will be hard not to say in this instance that the evaluation of evidence and finding of facts were not perverse. On the record, the Appellant vigorously stated that he was tortured and was bold to say so to the Senior Police Officers (S.P.O.’s). See his evidence at page 54- 55 of the Record where he gave evidence thus:
“When I answered that I knew nothing about the robbery, Inspector Ekong picked up the big stick in the room and smashed it on my forehead. I was told to tell the truth and when I repeated the same thing that I knew nothing about the robbery, I was handcuffed and, told to mount a drum. While in that position, the said Sgt. Kure got hold of the wire in that room and started beating me with it…
I was beaten so mercilessly that it got to the point when the beating became unbearable for me and at that point I had to confess that I took part in the robbery although that was not true but just to avoid further punishment….on the following day I was taken to a Senior Police with the statement. The said S.P.O. asked me if I made the statement voluntarily and freely and I told him that I made it when the punishment to me by Sgt. Kure became unbearable. His reply was that that did not concern him. He then endorsed the statement and signed it”.
From the foregoing evidence of the Appellant, I see no reason why same should be dismissively regarded as an after-thought. The authorities cited above require that the prosecution proves the confessional statement affirmatively beyond reasonable doubt. I don’t think that was done in this case. It is for this reason that I find the finding of the trial judge that the confessional statement was made voluntarily to be perverse.
Although I find that Exhibit C was wrongly admitted as a confessional statement, it can suffice as an ordinary statement. In Gbadamosi & Anor. vs. The State (1992) NWLR part 266 p. 465 it was held by the Supreme Court that a statement wrongly admitted as a confessional statement can, if it has no other defects, be admitted as an ordinary statement.
I now turn to issue 4. Issue 4 as will be recalled, is whether the learned trial judge was right in holding that the prosecution proved the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt.
In arguing this issue, learned counsel for the Appellant submitted that the burden placed on the prosecution to prove its case against the Appellant beyond reasonable doubt does not shift. He cited the case of Nwosu vs. State (1998) 8 NWLR part 562 p. 433 at 444; Aighagbon vs. State (2000) 7 NWLR part 666 p. 704. It was submitted that the prosecution failed to prove the guilt of the Appellant beyond reasonable doubt. It was submitted that none of the 7 prosecution witnesses identified the Appellant as having been involved in the robbery, and nothing incriminating was found on the person of the Appellant or in his house. It was argued that the confessional statement used in convicting the Appellant was wrongly admitted and even if it were rightly admitted, did not pass the six tests prescribed in the case of Dawa vs. State (1980) 8 – 11 SC 236. Learned counsel submitted that without the confessional statement, there is absolutely nothing to sustain the sentence passed on the Appellant.
Appellant’s Counsel pointed out a number of discrepancies in the case of the prosecution. He referred to the evidence of Pw8 at page 22-24 of the Record to the effect that empty cartridges were found at the scene of crime and submitted that there was no explanation of which scene of crime was being referred to. It was submitted that there was no medical evidence and no ballistic report to show the type of gun that was fired. It was contended that the evidence of Pw8 as to the location of the stolen car is different from the location indicated in the confessional statement. We were urged to resolve all the doubts in favour of the Appellant.
The Respondent’s Counsel on his part submitted that the prosecution successfully proved and established all the ingredients of the offence of armed robbery. It was contended that the circumstances that led to the arrest of the Appellant together with his confessional statement were considered by the trial judge and that same linked the Appellant with the two robbery incidents. It was argued that evaluation of evidence and ascription of probative value to same are the primary duties of the trial court. We were urged not to disturb the findings of the learned trial judge. Respondent’s Counsel contended that the statement of the Appellant was freely made and that the learned trial judge correctly and properly evaluated the evidence given during the trial within trial and came to the right conclusion in admitting the confessional statement of the Appellant and acting on it to convict hm. We were urged to hold that the prosecution proved its case beyond reasonable doubt.
I have in considering issue 3 earlier in this judgment, concluded that it was wrong to have admitted the confessional statement, Exhibit C in evidence. It is obvious that the Appellant’s conviction and sentence was based on that confessional statement. That being the case, the sentence and conviction cannot stand. But assuming I am wrong in my conclusion that the confessional statement was wrongly admitted, can the conviction and sentence stand? In other word, assuming that the confessional statement was rightly admitted, can the Appellant be convicted based on it? It is an old established principle of our law that an accused person can be convicted on his confessional statement alone where the confession is consistent with other ascertained facts which have been proved. See Akpan vs. State (1992) NWLR part 248 per Karibi-Whyte p. 439 at page 468.
Because of the importance attached to a confessional statement it is advisable that it be subjected to some tests as prescribed in the old English case of R v. Sykes (1913) 8 CR. APP. At 233.
The tests were approved by the West African Court of Appeal in the case of Kanu vs. The King 1952/55 14 WACA 80. See Shazali vs. The State (1988) NWLR part 98 p. 164. The tests entail that the judge asks himself the following questions:-
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the murder? (if the case is one of murder)
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved.
In the case of Shazali vs. The State (supra) the Supreme Court stated that if the confessional statement passes the above tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If on the other hand the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.
I think it is necessary to reproduce here in extenso the views of the trial judge in arriving at his conclusions. See at page 112- 113.
“In the instant case, the learned defence counsel has advanced many reasons why the accused’s statement (Exhibit C, C1 and C2) should not be upheld against them but most of those reasons are an attempt to reopen the issues already dealt with in the trial within a trial. However, the court is enjoined to test a confession as to its truth before upholding it by examining it along other evidence in the case so as to determine the following –
(1) Whether there is anything outside it to show that it is true;
(2) Whether it is corroborated;
(3) Whether the facts stated in it are true in so far as can be tested;
(4) Whether the accused’s confession is possible and
(5) Whether the confession is consistent with other facts which have been ascertained and proved.
See R v. Obiasa (1962) 2 SCNLR 402.
In applying these tests to the facts of the instant case, one only needs to consider the evidence of Pw1, Pw2, Pw5, Pw6 and Pw7 and relate them to the statements of the accused (Exhibits C, C1 and C2). After a deep and sober reflection on the evidence of those witnesses in relation to the statement of the accused persons, I am of the firm view that the confessional statements made by the 1st – 3rd accused are substantially and materially corroborated. It is clearly established for instance that it was the same (accused and) others at large that carried out the two robberies both at Kemta Housing Estate and Ijeun-Titun (both in Abeokuta) on the same night of 4th November, 1999.
That 2nd accused was armed and that was the person who shot and wounded Pw2 at the first scene of crime at Kemta Housing Estate. It was also established and proved that the 2nd and 3rd accused were inside the Mercedes Benz Car that was driven away from the first scene of crime to the second scene at Ijeun-Titun by the gang leader (now at large). The 2nd and 3rd accused were also present at the second scene of crime where the said gang leader shot and killed the owner of the house. And the 2nd and 3rd accused joined the rest of the armed gang and its leader travelling from…Lantoro Area of Elite Road in the said Mercedes Benz car which was later abandoned in that area. All these acts corroborated by the evidence of the victims of the said robberies – particularly the evidence of Pw1, Pw2, Pw5 and Pw7 respectively.
In view of the foregoing therefore, I hold that both the 2nd and 3rd accused have been properly and sufficiently linked with the commission of the two robberies in counts 2 and 6 of this charge and that they are entitled to be convicted on their confessional statements”
It is clear from the above statement of the learned trial judge that he found corroboration of the confessional statement in the evidence of the prosecution witnesses. Now can that be right? In my humble view such corroborative evidence is specious. It is a pseudo corroboration. Let me paint a picture to drive home my point. A victim of crime reports a crime to the police. A statement of the victim is obtained. The police nabs a suspect and compel him to confess to the crime in line with the earlier statement of the victim in the custody of the police. Can such a confession be corroborated by the evidence of that victim whose evidence naturally will follow the story line in his earlier statement to the police? I think not. Corroborative evidence was defined in Omisade & Ors vs. The Queen (1964) NSCC 170 as evidence given by an independent witness which showed or tended to show that the accused committed the crime was true, not merely that the crime had been committed but that it was committed by the accused. See Nemi vs. State (1994) 10 SCNJ 1 at p. 29.
I am not satisfied that the requirement that the corroborative evidence be that of an independent witness was satisfied in this case.
From the views of the trial judge above, it is evident that there is nothing outside the evidence of the prosecution witnesses that corroborates the confessional statement.
To say that evidence of a witness obviously based on his earlier statement to the police which statement was purloined to get a confession out of an accused corroborates the confession is to be a cynic.
It seems very clearer to me that the “confessional statement” was not thoroughly examined along the line of the tests suggested in R v. Sykes (supra). Even if Exhibit C was correctly admitted as a confessional statement, I am of the firm view that no weight whatsoever should have been attached to it and that it could not be relied upon to convict the Appellant.
My conclusion therefore is that the appeal has merit. The conviction and sentence of the Appellant are hereby set aside and instead the Appellant is discharged and acquitted.
CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the judgment delivered by my learned brother Obietonbara Daniel-Kalio, JCA. I agree with his Lordships reasoning and conclusion arrived at in holding that the appeal is meritorious. I also set aside the conviction and sentence of the Appellant and instead, he is discharged and acquitted.
HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother, Obientonbara Daniel-Kalio, JCA.
My learned brother in his usual erudition, admirably considered and resolved the pertinent issues that arose for determination in this appeal. I agree entirely with him that the appeal has merit. I have nothing else useful to add. Accordingly, I also allow the appeal and set aside the judgment of the trial court. The conviction and sentence of death meted on the Appellant is hereby set aside.
Appearances
Olakunle Agbebi Esq.For Appellant
AND
B. A. Adebayo (Administrator General and Public Trustee Ogun State Ministry of Justice with E. Rahmon (Miss) State Counsel.For Respondent
