LEKAN OLAOYE & ANOR v. THE STATE
(2014)LCN/7204(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of May, 2014
CA/L/881/08
RATIO
EVIDENCE: CONDUCTING TRIAL WITHIN TRIAL TO DETERMINE THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT
Where an accused person contends that a confessional statement sought to be tendered on evidence was not made by him voluntarily. It is the duty of the Court to test the confession by conducting a trial within trial in order to determine whether a confessional statement is voluntarily made is of fact. See: OBIDIOZO V. THE STATE (1987) 4 NWLR (Pt.67) 48; SAMSON EMEKA V. THE STATE (Supra). Both the prosecuting counsel and the defence counsel addressed the Court on admissibility of the Appellants confessional statements during the trial within trial and on the 9th of the March, 2006, the trial judge in a considered ruling held that the Appellants statements were made voluntarily, and admitted them as Exhibits “H” and “D” respectively. In evaluation of evidence and ascertaining the truth of a confessional statement including its voluntariness, a trial judge is in a better position because of the opportunity to hear evidence of witnesses and observe their demeanor during examination. per SIDI DAUDA BAGE, J.C.A.
EVIDENCE: RELEVANCY OF A CONFESSIONAL STATEMENT
It is trite that where an accused retracts or denies being maker of a confessional statement, such confessional statement is admissible once it is relevant. The Court shall at end determine the veracity and probative value to be attached to such confession. See IKPASA V. STATE (1981) NSCC 300 at 309. The 2nd Appellant said he had a gun shot injury in the course of the interrogation as such Exhibit D was not voluntary. It was needless for the trial Court to inquire when the said injury was sustained since the 2nd Appellant denies making Exhibit “D”. On determining the truth or otherwise of a confessional statement, see the principle laid down by the Supreme Court in IKPO V. THE STATE (1995) NWIR (Pt.421) 540 at 554; OBIODIOZO V. THE STATE (1987) NWLR (Pt.67) 748; OFORLETE V. THE STATE (2000) NWLR (Pt 697) 311. per SIDI DAUDA BAGE, J.C.A.
WORDS AND PHRASES: CONFESSION
A confession is an admission made at any time by a person charged with a crime; stating or suggesting the inference that he committed that crime. See Section 27(1) of the Evidence Act. The admission by an accused person of his signature to a confessional statement is without anything more evidence that he is the maker of the document in the sense that either he writes it or accepts or agrees with its contents. So in my view an accused person’s signature or thumb print to a written statement is an integral part of that statement. So if an accused person alleges that the signature or thumb print to the confessional statement was not voluntary, he necessarily questions the voluntariness of the whole of the confessional statement on the ground that it is not voluntary. per SIDI DAUDA BAGE, J.C.A
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
YARGATA NIMPAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. LEKAN OLAOYE
2. IBRAHIM KAMILA Appellant(s)
AND
THE STATE Respondent(s)
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellants against the judgment of Honourable Justice D. O. Oluwayemi of the Lagos High Court delivered on the 13th day of December, 2007 convicting and sentencing the Appellants to be hanged until they are dead [judgment which is at page 228 – 279 of the Record of Appeal). At the Court below, the Appellants were charged with Conspiracy to commit Armed Robbery and Armed Robbery (See page 3 of record of appeal):
STATEMENT OF OFFENCE 1ST – COUNT
Conspiracy to commit Armed Robbery contrary to Section 403A of the Criminal Code, Cap 32 Vol. 2 Laws of Lagos State, 1994.
PARTICULARS OF OFFENCE
Lekan Olaoye (m) and Ibrahim Kamila (m) on or about the 7th day of December, 2000 at Lagos, in the Ikeja Judicial Division conspired with others now at large to commit a felony to wit: Armed Robbery.
STATEMENT OF OFFENCE – 2ND COUNT
Armed Robbery Contrary to Section 402(2)(A) of the Criminal Code, Cap 32 Vol. 2 Laws of Lagos State, 1994.
PARTICULARS OF OFFENCE
Lekan Olaoye (m) and Ibrahim Kamila (m) on or about the 7th day of December, 2000 at Akoka, Lagos, in the Ikeja Judicial Division whilst armed with offensive weapons to wit: guns, robbed Chief Layi Balogun of N20,000.00, one Omega wrist watch and one Cellular Phone.
STATEMENT OF OFFENCE – 2ND COUNT
Murder Contrary to Section 319(1) of the Criminal Code Cap 32 Vol. 2, Laws of Lagos State, 1994.
PARTICULARS OF OFFENCE
Lekan Olaoye (m) and Ibrahim Kamila (m) on or about the 7th day of December, 2000 at Akoka, Lagos, in the Ikeja Judicial Division murdered one Chief Layi Balogun.
STATEMENT OF OFFENCE – 2ND COUNT
Receiving Stolen goods contrary to Section 427 of the Criminal Code Cap J2 Volume 2, Laws of Lagos State, 1994.
PARTICULARS OF OFFENCE
Saheed Akinsede (m) and Sunday Igboke (m) on or about 7th day of December 2000, at Mile 12, Ketu Lagos State in the Ikeja Judicial Division received one Cellular Phone knowing that it was stolen.
STATEMENT OF OFFENCE – 2ND COUNT
Receiving stolen goods contrary to Section 427 of the Criminal Code Cap 32 Volume 2, Laws of Lagos State, 1994.
PARTICULARS OF OFFENCE
Saheed Akinsede (m) on or about 7th day of December 2000, at Mile 12, near Ketu Lagos State, in the Ikeja Judicial Division received one Omega Wrist Watch knowing that it was stolen property.
STATEMENT OF OFFENCE – 2ND COUNT
Receiving stolen goods contrary to Section 427 of the Criminal Code Cap 32 Volume 2, Laws of Lagos State, 1994.
PARTICULARS OF OFFENCE
Ngozi Nwarisi (m) on or about the 8th day of December 2000 at No. 6, Market Street, Marina, Lagos, in Lagos State, received one Omega Wrist Watch knowing that it was stolen.
Briefly the prosecution’s case at the High court was that:
The Appellants were amongst the four accused persons arraigned on a five count information relating to Conspiracy to commit Armed Robbery,Armed Robbery and Murder of one Layi Balogun (deceased). The Respondent filed before the Lower Court the information, the charge and proof of evidence containing inter alia the names of Yinka Balogun, Sergeant Longe Olajide, and Sergeant (Later promoted Inspector Isaiah Adesokan as witness of the Respondent. Also included in the proofs of evidence are the proposed witnesses statements extra-judicial statements of the Appellant (a Cellular Phone and an Omega Wrist Watch [See pages 2 – 38 of the Record of Appeal).
Upon Appellants’ arraignment on the 22nd day of March, 2005, the Appellants pleaded NOT GUILTY respectively to each count in the information. The prosecution in discharging the onus of proof beyond reasonable doubt called three witnesses, while the 1st and 2nd Appellant testified on oath in their defence but called no witnesses.
The evidence relied upon by the prosecution consist of the extra-judicial statements of 1st and 2nd Appellants the Oral testimonies of Olajide Longe (PW1); Yinka Balogun [PW2) Inspector Isaiah Adesokan the investigating police officer as PW3) Seven (7) Exhibits were tendered by the prosecution and two exhibits tendered by the defence. After the evidence of the prosecution and defence; the respective Counsel for the accused addressed Court. Thereafter, the learned trial judge gave judgment. The accused persons appealed in one Notice of appeal dated and filed 11th January, 2013. The said five (5) Grounds of the Notice of Appeal is hereunder reproduced, shun of their particulars.
MISDIRECTION IN LAW
The learned trial judge misdirected himself in the law when he held admissible the extra judicial statement of the Appellants made to the Police (Exhibit D and F) under duress and consequently admitted and relied on the statement to convict the Appellants.
MISDIRECTION IN LAW
The learned trial judge misdirected herself in law in relying on Exhibit D and F being the extra judicial statements of the Appellants to the Police in convicting them of charges of conspiracy to commit Armed Robbery, Robbery and Murder when the said Exhibits D and F are inadmissible in law.
MISDIRECTION IN LAW
The learned trial judge misdirected himself in by holding that the evidence of PW1, PW2 and PW3 as to the guilt of the Appellants, are credible whereas the evidence is manifestly unreliable, contradictory, presumptive, unrealistic and untrue.
MISDIRECTION IN LAW
The learned trial judge erred in law by exclusively placing reliance on evidence of PW1, PW2, and PW3 and holding that prosecution has proved their case against the Appellants on all the three charges – conspiracy to commit Armed Robbery, Armed Robbery and Murder.
ERROR IN LAW
The learned trial judge erred in law for believing the evidence of prosecution’s witnesses without furnishing or stating any reasons whatsoever for her findings and conclusions.
From the grounds, the Appellants distilled the following three (3) issues for determination as follows:
(1) Whether the learned trial judge’s admission of Exhibits D & H (the extra judicial statements of the Appellants) was right and proper in Law?
(2) Whether the learned trial judge was right in relying on Exhibit D & H as cogent and relevant in coming to a decision to convict and sentence the Appellants
(3) Whether the prosecution placed Evidence credible and cogent enough to constitute proof beyond reasonable doubt of the guilt of the Appellants and so properly and adequately ground conviction of the Appellants?
On the other hand the Respondent formulated the following two (2) issues for the determination of the Appeal as follows:
(1) Whether the admission of the extra-judicial statements of the 1st and 2nd Appellants as Exhibit H and D by the trial judge was right and proper in Law?
(2) Whether apart from Exhibit H and D, the prosecution has led cogent and credible evidence in proving the guilt of the Appellant beyond reasonable doubt.
After a careful examination of the two sets of issues as formulated by the parties, I tend to be guided by those formulated by the Respondent. The two issues have captured all the three issues of the Appellants, and have also made the management of the appeal easier. The first issue for determination in this appeal is:
“Whether the admissions of the Extra judicial statements of the 1st and 2nd Appellants as Exhibits D and H by the trial judge was right and proper in Law?”
In arguing the first (1st) issue, learned counsel to the Appellants submitted that, the learned trial judge in holding Exhibits D and F admissible failed to properly evaluate evidence presented before the Lower court during the trial within trial session held to determine the admissibility of Exhibits D and F and thus came to the wrong conclusion that it was admissible. In this case Exhibits D and H are extra-judicial statements of the Appellants, the statements are clearly confessional in nature. At the Lower court, when the prosecution sought to tender these Statements (Exhibits D and H) as Exhibits, Appellants opposed the tendering on the ground that the Statements were not voluntarily made specifically, the Appellants claimed that they were subjected to the ill-use of torture by the police in making of those Statements.
The Lower Court ordered a trial within trial to test the voluntariness or otherwise of the Statements. At the end of the trial within trial, the learned trial judge held that the Appellants were not tortured and that the Statements was not forced out of them, but voluntarily made. The learned trial judge in further holding that the appending of the signatures of Appellants signature to the Statement is proof that it was made voluntary but this should not be allowed to stand. Furthermore, since the prosecution claimed that the Appellants were taken before a superior Police Officer after their confessional statements, the prosecution should have presented the said superior Police officer in Court as a witness to corroborate the assertions. The Court in holding the Appellants culpable of the charges against them wrongly relied on Exhibits D and H and held wrongly that by the said Exhibits the Appellants had properly confessed quilt of the charges against them. An admission by a Court of inadmissible evidence is wrongful, and would vitiate judgment if such an admission played a part in influencing the decision of the Court in the determination of the case. (See Section 227(1) of the Evidence Act, LFN 1990). In various parts of the judgment there are clear indications that the Court placed heavy reliance on these inadmissible evidence Exhibits D and H were considered so important by the learned trial judge that the Court convicted on them alone, and as such it is reasonable to infer that these Exhibits were they not admitted, would most certainly have led the learned trial judge to a conclusion different from her eventual decision, this particularly more so as will show the very strong weakness of the oral evidence of prosecution witnesses before the trial judge. These weaknesses were glossed over by the learned trial judge because of the influence of Exhibits D and H, which were evidence admitted before the testimonies of prosecution witnesses were presented to the trial Court.
In reply to the submissions of the Appellants above, Learned Counsel to the Respondent submitted that, it is trite that once an accused makes a statement under caution saying or admitting that he/she committed the offence with which he/she is charged, the statement becomes confessional. Being confessional in nature, it becomes relevant to the proceedings by virtue of Section 27(2) of the Evidence Act. See: MBANENGEN SHADE V. THE STATE (2004) ALL FWLR (Pt. 223) 1955 at 1977 paras A – B. It is beyond reasonable doubt that Exhibit D and H are confessional in nature as the 1st and 2nd Appellants explained vividly how they met the deceased and agreed to rob him by trailing him to his residence at Akoka Lagos. It is trite that where extra-judicial statement of an accused person is confessional in nature, such is sufficient to sustain conviction if proved to be direct and voluntary. See SUNDAY ULUEBEKA V. THE STATE (2000) 7 NWLR (Pt. 665) 404 AT 428; SAMSON EMEKA V. THE STATE (2001) 14 NWLR (Pt.734) 666 at 682.
Where an accused person contends that a confessional statement sought to be tendered on evidence was not made by him voluntarily. It is the duty of the Court to test the confession by conducting a trial within trial in order to determine whether a confessional statement is voluntarily made is of fact. See: OBIDIOZO V. THE STATE (1987) 4 NWLR (Pt.67) 48; SAMSON EMEKA V. THE STATE (Supra). Both the prosecuting counsel and the defence counsel addressed the Court on admissibility of the Appellants confessional statements during the trial within trial and on the 9th of the March, 2006, the trial judge in a considered ruling held that the Appellants statements were made voluntarily, and admitted them as Exhibits “H” and “D” respectively. In evaluation of evidence and ascertaining the truth of a confessional statement including its voluntariness, a trial judge is in a better position because of the opportunity to hear evidence of witnesses and observe their demeanor during examination.
It is trite that where an accused retracts or denies being maker of a confessional statement, such confessional statement is admissible once it is relevant. The Court shall at end determine the veracity and probative value to be attached to such confession. See IKPASA V. STATE (1981) NSCC 300 at 309. The 2nd Appellant said he had a gun shot injury in the course of the interrogation as such Exhibit D was not voluntary. It was needless for the trial Court to inquire when the said injury was sustained since the 2nd Appellant denies making Exhibit “D”. On determining the truth or otherwise of a confessional statement, see the principle laid down by the Supreme Court in IKPO V. THE STATE (1995) NWIR (Pt.421) 540 at 554; OBIODIOZO V. THE STATE (1987) NWLR (Pt.67) 748; OFORLETE V. THE STATE (2000) NWLR (Pt 697) 311.
On the part of the Court, submissions of counsel on both sides is carefully examined.
The point of contention with respect to this issue, resile on, whether the admission of the extra judicial statements of the 1st and 2nd Appellants as Exhibits H and D by the trial judge was right and proper in Law? In my very recent decision in this Court (unreported), in Appeal No. CA/B/154C/2007 delivered in Benin Division on Friday the 19th day of April, 2013 at page 21 thereto in SUNDAY EHIMIYIEN V. STATE; I did stated as follows on the admissibility of confessional statements:
On the admissibility of the confessional statements of the Appellant Exhibits “E” and “G1”, the Law is that in this country where criminal trials are usually held by a judge sitting alone without a jury, a distinction is usually drawn as regards a practice and procedure in relation to the admissibility of a confession in evidence of trial proceeding between a confession objected on the ground that it was not made at all by accused person in which case such as confession may be said to have been retracted; and a confession objected to on the ground that it was not voluntary in that although an accused person agreed to have made the confession his complaint would be that he was forced or induced to make it.
In the latter case, what is attacked is admissibility in evidence of the confession and therefore a trial within a trial must be held. The confession having been challenged on voire dire so as to determine whether or not the confession was voluntary. If at the end of such trial, the Court comes to the conclusion that the confession was not voluntary, then it is not admissible in evidence and the Court should so rule.
In the former case, where the confession is wholly retracted the question as to whether or not the confession is admissible in evidence does not arise for decision at all. The trial judge is entitled to admit the confession in evidence as something which had occurred in the course of investigation conducted by the police into the case; and thereafter to decide or find a matter of fact at the conclusion of the case as to whether or not in all the circumstances, the accused person did make the statement as alleged by the police.
I did cite for reference some decisions of the Supreme Court on the subject. See: GOWDIN IKPASA V. BENDEL STATE (1981) 9 SC 7 at Pp 26 – 29; INUSA SAIDI V. THE STATE 91982) 4 SC 41 at 69; IGBINEWEKA OWIE V. THE STATE (1985) 4 SC (Pt.2) 1 at 27; ALARAPE V. THE STATE (2001) 2 SC 114; UCHE OBIODIOZO & ORS. V. THE STATE (1987) 12 SC 74 at Pp.93 and 100 – 102; also reported in (1987) 4 NWLR 748.
In the instant appeal at page 3 of the Appellant’s brief, it was contended as follows:
The learned trial judge in holding Exhibits D and H admissible failed to properly evaluate evidence prevented before the lower Court during the trial within trial sessions held to determine the admissibility of Exhibit D and H and thus came to the wrong conclusion that it was admissible. For the 1st Appellant it was his evidence that he was interrogated in a place called “theatre by the I.P.O. (PW1 in the trial within trial). That the I.P.O. shot him in the leg during the interrogation, and that he was to make the statement while suffering the torture ordinarily, the onus of proof that gunshot injury was inflicted upon the 1st Appellant whilst in police custody should fall on the Appellant but the fact of his custodial restraint which robbed him necessarily of his freedom to act as he pleased in practical terms transfers the burden on the prosecution to show that the injury was not sustained in their custody during interrogation. The learned trial judge holding that the appending of the signature of the 1st Appellant’s signature to the statement, is proof that it was voluntarily made by the 1st Appellant should not be allowed to stand, for if a statement is involuntarily made or made out of coercion, the authentication of same by the maker necessarily suffers the same fact of coercion and forms part of a single process, coercion.
At page 5, the last paragraph of the Appellant’s brief it was stated:
As regard the 2nd Appellant, Ibrahim Kamila, there was also a trial within trial conducted to determine the admissibility or otherwise of his extra judicial statement made to the police. However, the truth of a statement goes to its credibility and is different and distinct and completely irrelevant to the fact of the voluntariness or otherwise of the said statement either wholly or as a part of a larger body of statement. The involuntariness of the making of a true statement does not impugn its veracity but certainly impugn its admissibility under our law.
The reason given by the learned trial judge in holding that Exhibit H (extra-judicial statement of 2nd Appellant) was voluntarily made was that she believe that the Appellant and PW1 were in a conducive atmosphere, and that the accused person signed the statement before a superior police officer when he was taken to by the investigating police officer. As in the case of the 1st Appellant the prosecution ought to have produced as a witness the superior police officer to whom the 2nd Appellant was taken and before whom he admitted making the statement voluntarily.
The trial Court in its ruling delivered on the 21st of January, 2001, admitting Exhibits D and H after the trial within trial on page 108 of the Record of Appeal stated as follows:
From the totality of the evidence of PW1, DW1 and the submission of the learned counsel Mrs. B. Akintade and Mr. J.A. Sanni and having regard to the contents of Exhibit ID1, I believe the statement was obtained in a conclusive atmosphere since the 1st accused person said he did know PW2 before his arrest, then most of the facts in Exhibit D were given by the accused person to PW1. He may have been tortured but not by PW1. The accused was given handful opportunity to deny the statement being made voluntarily when he was taken before a superior police officer.
The situation in the instant appeal is that, although it is not denied that the trial Court, had conducted a trial within trial, before admitting in evidence Exhibits ‘D” and “H”, the two Appellants now deny the statements attributed to them together with the signatures on them. We find guide on how to resolve such denials in the Supreme Court’s decision of UCHE OBIDIOZO & ORS. V. THE STATE (1987) 12 SC 74 at Pp. 93 and 100 – 102 (Also reported in (1987) 4 NWLR 748). The apex Court stated as follows:
In a situation where an accused person denied a statement attributed to him together with the signature on it there is evidently no issue as to whether the statement was made voluntarily. Equally the same is a situation where an accused person denies the body of a statement but admits his signature on it but alleges nothing suggesting that the signature to it was not voluntary. It is the situation where an accused person denies being the maker of a confession in a written statement but adds that in any event the signature to the confessional statement was not voluntary in that his signature or thumb-print to it was obtained by an inducement, threat or promise having reference to the charge against him and proceeding from a person of authority that I am now concerned with. It appears to me that given the facts in R. v. IGWE and the decision there even in this last statement arises in such a situation. I have quoted above Sections 27 and 28 of the Evidence Act which are relevant to the issues of confession I am now considering.
A confession is an admission made at any time by a person charged with a crime; stating or suggesting the inference that he committed that crime. See Section 27(1) of the Evidence Act. The admission by an accused person of his signature to a confessional statement is without anything more evidence that he is the maker of the document in the sense that either he writes it or accepts or agrees with its contents. So in my view an accused person’s signature or thumb print to a written statement is an integral part of that statement. So if an accused person alleges that the signature or thumb print to the confessional statement was not voluntary, he necessarily questions the voluntariness of the whole of the confessional statement on the ground that it is not voluntary.
In such a situation I am inclined to agree with counsel for both parties that it cannot rightly be said that no issue arises as to whether the confessional statement was made voluntary. And because of Section 28 of the Evidence Act as interpreted in the decisions, I have earlier on cited in this judgment the issue of admissibility of the statement must be tried before it is admitted in evidence so in so far as the decision in R. v. IGWE tends to suggest, having regard to the grounds of the objection to the admissibility of the confessional statement in the case, that once an accused person denies making a confessional statement a trial within a to determine its admissibility is not necessary and that it is immaterial that the accuse person alleges that his undoubted signature to the statement was not voluntary, it goes too far. I would say that in a situation where an accused person alleges that his admitted signature to a confession was not voluntary an issue as to whether the confession was made voluntarily arises for as I have shown above the accused person’s signature to a confessional written statement is an integral part of that statement.
I quoted the above decision of the Supreme Court in extension, having found the decision and its circumstance, on all fours, with the present appeal. In the instant appeal the two Appellants 1st and 2nd, made their respective statements [extra judicial) to the police. Each signed his own statements. At trial they both challenged the voluntariness of the statements with their signatures on them. The learned trial judge conducted a trial within trial to ascertain their voluntaries. After reviewing the evidence place before Court in the trial within trial, the learned trial judge held that appending of the signatures by the Appellants is proof that those statements were voluntarily made. This in my view, is in line with, the decision of the Supreme Court in UCHE OBIDIOZO & ORS. V. THE STATE (supra). The learned trial judge had followed logically the guide set by the apex court for admissions of such statements. It was right on the part of the trial Court to have admitted the confessional statements of the 1st and 2nd Appellants and marked them as Exhibits “H” and “D” respectively. I do not have any reason to disturb the decision of the trial Court on this issue. I resolve issue No.1 against the Appellants and in favour of the Respondent.
On Issue No. 2 to wit whether apart from Exhibits H and D the prosecution has led cogent and credible evidence in proof of the guilt of the Appellants beyond reasonable doubt.
Learned counsel to the Appellants provided the summary of the evidence the of PW1 and concluded that his evidence has a strong question mark on his credibility as a witness and should be treated as one witness who possibly had other purpose, other than justice to serve in the giving of his evidence before the trial Court. On PW2’s evidence that he did not know the Appellants or any other alleged assailants before 7/12/2000, the date of the incident. It is also clear that the incident happened at night and took about 20 minutes. It is also clear that before the trial of this case took place, not only were the Appellants paraded by the police on the television as being among those who robbed and killed the deceased, but PW2 watched the parade. Where there is a lacuna or the nexus between a criminal suspect and the commission of a crime is broken, such an accused person cannot be found culpable of the commission of the crime. See the learned author: Criminal Law in Nigeria by Prof. C.O. Okonkwo 2nd edition Published 1980 at page 93.
Also before the trial Court PW3 who is the investigating police officer claimed in his testimony that the police receive information via intelligence supplied by a cell-mate of the 2nd Appellant that the 2nd Appellant was boasting in his cell of his participation in the robbery and murder attack. Prosecution however did not present the alleged informant in Court and thus the evidence of PW3 in this regard should be considered inadmissible and unacceptable for being hearsay. (See Sections 76 and 77 of the Evidence Act) see also PHARMACIST BOARD OF NIGERIA V. ADEGBESOTE (1986) NWLR 707. The Law is that, it is not the guilt of the accused person that is paramount under our legal system but the proof of this guilt. It is not the duty of a Court of Law to prove the guilt of an accused person or to help the prosecution to do her duty, which is the duty of proving the guilt of the accused persons. See: ADEBAYO V. ADUSEI (2004) NWLR (Pt.962) 44. The trial Courts summary of the arguments is that; the said Court failed neglected or refused to properly evaluate the evidence before if hence the need for this Court to revaluate the evidence and finds for the Appellants. On the principles guiding the evaluation of evidence. See: MOGAJI V. ODOFIN (1978) 4 SC 91 and AKAD INDUSTRIAL LTD. V. OLUBODE (2004) NWLR [Pt.862) 1. This court should hold that the prosecution has not proved its case beyond reasonable doubt against the accused persons to warrant their conviction by the trial Court.
In reply to the submission of the learned Counsel to the Appellants, Respondent’s Counsel submitted that apart from the confessional statements of 1st and 2nd Appellants being exhibits H and D there are other cogent and credible evidence which irresistibly point to the guilt of the 1st and 2nd Appellants to the offences of conspiracy, armed robbery murder for which the Appellants were charged, arraigned tried and found guilty and convicted of. The shooting of the deceased person one Lai Balogun by the 1st and 2nd Appellants was with mens rea that death or grievous bodily harm was a probable consequence. See IME DAVID IDIOK V. THE STATE (2008) MJSC VOL. 6 Page 36 at 57 paras A – E. See also Section 319(1) of the Criminal Code; GRACE AKINFE V. STATE (1988) 3 NWLR (Pt.85) 729 at 745. See again the uncontradiced evidence of PW1 and PW2. The offence of murder like all other offences can be proved by either direct evidences given by witness who saw and watched the act of killing or by circumstantial evidence which unequivocal links the accused person to the death of the deceased. See IME DAVID IDIOK V. THE STATE (supra) at 57 paragraphs E – F.
The fact that PW2 saw the 1st and 2nd Appellants trailed deceased into his room PW2 heard gunshot a and shout from the deceased, PW2 immediately went to deceased room and found him in the pool of his blood after 1st and 2nd appellants and their gang had left. These circumstances are so cogent strong and unequivocally linked the 1st and 2nd Appellants to the death of the deceased person. See: EDWIN OGBA V. THE STATE (1992) 2 NWLR (Pt.222) 164 at 199. On the charges of conspiracy and Armed Robbery there are sufficient credible and cogent evidence that 1st and 2nd Appellants and their gang conspired together and went to the residence of deceased on 7th December, 2000 stole the sum of N20,000.00 cellular phone Omega Wrist watch while armed with gun. We provided the essential proof for the offence of conspiracy. See MAJEKODUNMI V. R. (1952) 14 WACA 64. The trial judge rightly and properly evaluated the evidence of PW1 and PW2 in convicting both the 1st and 2nd Appellants for Conspiracy to commit Armed Robbery, this is from the evidence of PW1, PW2, PW3 as well as Exhibits B, C, E and F. See BOZINS V. THE STATE (1985) NWLR [Pt.8) 465. ALAWIYE V. OGUNSANYA (2004) 4 NWLR (Pt.864) 486. As to the failure to conduct an identification parade, where victims are attacked at a very close range for over 20 minutes identity of suspects cannot be an issue. The only circumstance where a conviction would be set aside is where suspects are pointed out to victim by police or where photograph of suspects are shown to victim before identification or where identity of suspects are in doubt and no identification parade was conducted. See SUNDAY OMEGA V. THE STATE (1964) 1 ANLR 379. The prosecution had proved the guilt of 1st and 2nd Appellants beyond reasonable doubt by the uncontroverted and uncontradicted evidence of PW1, PW2, PW3 as well as Exhibits A, B, C, D, E, F tendered and admitted before the Lower Court. The Respondent had discharged the onus of proof in proving the guilt of the 1st and 2nd Appellants beyond reasonable doubt, and the trial Court rightly evaluated the evidence before convicting them.
On the part of the Court submissions on both sides is carefully examined. The main crux of this issue is that, putting aside Exhibits “H” and “D” which are the confessional statements of the 1st and 2nd Appellants, has the prosecution led cogent and credible evidence in proof of the guilt of the Appellants beyond reasonable doubt. The Respondent in justifying to this Court that it made out its case beyond reasonable doubt apart from Exhibits “H” and “D” which were the confessional statements of the 1st and 2nd Appellants, said that it made out its proof beyond reasonable doubt on the other parlance of the uncontroverted and uncontradicted evidence of PW1, PW2, and PW3, as well as Exhibits A, B, C, E, F, tendered and admitted before the Lower Court. The Appellants counsel disagrees. He maintained that the learned trial judge misdirected himself in Law by holding that the evidence of PW1, PW2, and PW3 as to the guilt of the Appellants are credible whereas the evidence is manifestly unreliable, contradictory, presumptive, unrealistic and untrue. For a witness to be adjudged credible by a Court or tribunal of Law, his evidence must be worthy of belief and entitled to credit. PW1 and pW2 gave evidence before the Court that they saw the Appellants participate in the robbery and murder of the deceased Layi Balogun on 7-12-2000, whereas in their extra-judicial statements to the police made at the earliest instance, they made no mention of the Appellants or gave any description of them in the said statements. They gave evidence that it was only when the Appellants were shown on television and paraded by the police as those who robbed and killed the deceased that they recognized them as participants in the incident. The evidence that he was shot twice in the chest and once in the hand during the incident all at close range and yet was able to recognizes the Appellants as participants in the robbery incidence even though no evidence was given to show any previous knowledge of them. PW3 gave hearsay evidence that the 2nd Appellant boasted of participating in the robbery operation against the deceased Layi Balogun to a criminal suspect while in a police cell, but prosecution failed to produce the unknown criminal suspect informant to give evidence in Court of the alleged fact.
This Court has painstakingly read both the extra-judicial statements of PW1, PW2. Also the deposition on Oath of the evidence of PW1, PW2, PW3. This Court without any difficulty arrived at the fact that the learned trial judge had performed the duty imposed upon him by Law, in evaluating the evidence before him and ascribing probative values to them. The learned trial judge diligently and meticulously discharged that responsibility. The law is already trite that, the duty to evaluate and ascribe probative values to the evidence is in the province of the trial Court and not the Appellant court. See the Supreme Court’s decision in EZE IBEH V. THE STATE (1997) 1 SCNI 256 at 271, WALI JSC (as he then was) stated as follows:
On evaluation of evidence, I wish to stress firstly, by saying that confirmation of the concurrent findings of facts by this Court of the decisions of the two Courts below is compelling in the sense that it is an avowed and age-long judicial policy in this Country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings of them are matters within the province of the Court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify and watching their demeanours. See BALOGUN & ORS. V. ALIMI AGBOOLA (1974) 1 ALL NLR (Pt.2) 66; THE MILITARY GOV. OF WESTERN STATE V. AFOLABI LANIBE & ANR. (1974) 1 ALL NLR (Pt.2) 179, for this reason, there is a presumption that a trial judge’s decision on facts is correct; a presumption which must be displaced by a person who seeks to upset the decision if he can. An Appellate Court for its part in such a case should always be reluctant to interfere or to substitute its view of the facts for those of the court of trial. See AJAO V. AJAO (1986) 5 NWLR (Pt.45) 802; AKPONUGHO V. ADJAKODAJA (1933) 2 WACA 24.
In the same year 1977 Onu JSC [as he then was) also pronounced on the subject of evaluation of evidence at the trial Court. See: ABEL NKADO & ORS. V. OZULIKE OBIANO & ANR. (1997) 5 SCNJ 33 at 54.
The bottom line of the Supreme Court’s decision of EZE IBEH V. THE STATE (supra) is that, there is the presumption that a trial judge’s decision on facts is correct; a presumption which must be displaced by a person who seeks to upset the decision if he can. In the instant appeal, the learned Counsel to the Appellants strenuously worked to upset the decision of the learned trial judge on facts. I had earlier in this judgment stated how he considered that the learned trial judge had misdirected himself on the evidence of PW1, PW2 and PW3. The Evidence of PW1, PW2 are evidences of eye witnesses to the event who saw it all when it happened. It was direct and positive, and this Court is unable to see how the learned trial judge misapplied those facts to upset them. PW3’s evidence is attacked as being a hearsay for his failure to produce the cell-mate of the 2nd Appellant who reported as boasting of being a participant in the robbery in question. This also had no effect whatsoever as this fact only constituted an aspect of the evidence of the PW3 as the investigating police officer (IPO). The efforts made by the Appellants to upset the findings of facts made by the learned trial judge had not yielded any result to upset it. Let me state, here, and now, that, the determination earlier on by this Court, of issue No. 1, with relation to the confessional statements of Appellants, Exhibits “H” and “D” had dealt with the meat of this appeal. The issue No. 2 dealing other credible and cogent fact by the prosecution, amounts to mere surplusage with Exhibits “H” and “D” already admitted against the Appellants, the Law is that even without corroboration of a confession it is sufficient to support conviction, so long as the Court is satisfied of its truth. See: MOHAMMED J. YAHAYA V. THE STATE (1986) 12 SC 282 at 290; ISAAC STEPHEN V. THE STATE (1986) 12 SC. 450 at 470; R. V. ITULE (1961) ALL NLR 462 at 465; SULE IYANDA SALAWU V. THE STATE (1971) N.M.L.R 249; GRACE AKINFE V. THE STATE (1988) 7 SCNJ [PT.11) 226,at pp 237 – 239.
Let me say a few words on proof beyond reasonable doubt.
The state of the Law is that proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. It is also the law that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. See: MICHEAL AKOGWU & ANOR. V. THE STATE (2000) CLRN 27 at 39; CYRIACUS OGIDI & ORS. V. THE STATE (2005) 1 NCE 163 at 177; AMUSA OPOOLA ADIO & ANOR V. THE STATE (1986) 4 SC 194 at Pp 219 – 220; MUFUTAU BAKARE V. THE STATE (1987) 3 SC 1 at 5; ABEKE ONAFOWOKAN V. THE STATE, (1987) 7 SCNI 233 at 249; BASIL AKALEZI V. THE STATE (1993) 2 NWLR (Pt 273) 1 at 13.
From the record before this Court, I am unable to find any cogent reason to disturb the findings of the learned trial judge that this case has been proved beyond reasonable doubt against the Appellants.
Let me also say a few words on when identification parade may be necessary. In the instant appeal, evidence have it that, it was when the 1st and 2nd Appellants were paraded on the television as participants in the robbery incidence which resulted in the death of the deceased person, that PW1 , PW2 identified them as part of the gang. Would it have been necessary for another round of identification parade, when the PW1, PW2, who were eye witnesses to the incidence said they had direct interaction with the 1st and 2nd Appellants for over 20 minutes. That in my view is sufficient time to fully identify a person. As to when the identification parade would be necessary the law is already settled. See TAJUDEEN ALABI V. THE STATE (1993) 7 NWLR (Pt.307) 511 at 527, the Supreme Court stated as follows:
Identification parades are usually conducted when the identity of a suspect (as indeed established in the instant case) is in doubt. As re-echoed by this Court in cases such as BOZIN’S case (supra) OKOSI’s case (supra) and ADAMU V. THE STATE (1986) 3 NWLR (Pt. 32) 865, to mention but a few, identification parade means a group of person of identical size and common physical features assembled by the police from whom a witness identifies a suspect or suspects unaided and untutored. See also MBENU V. THE STATE (1988) 3 NWLR (Pt.84) 615…what is more the Courts of this country have consistently held that whenever the case against an accused depends wholly or substantially on the correctness of the identification of the accused which the latter alleges to be mistaken, the judge should warn himself of the special regard for caution before convicting the accused in reliance on correctness of the identification (see AUDU V. THE STATE (supra), OKOSI V. THE STATE (supra), ANYANWU V. THE STATE (supra); UKORAH V. THE STATE (1977) 4 SC 167 at 171; NWABUEZE V. THE STATE (1988) 4 NWLR (Pt 86) 16 at 30 – 31 and MBENU V. THE STATE (supra).
On the issue of identification parade when it arises also see: PATRICK IKEMSON & ORS. V. THE STATE (1988) 6 SCNI (Pt.1) 54 at 65; ALABI V. THE STATE (1993) 7 NWLR (Pt.307) 511 at 524; ALIYU WAKAIA & ORS. V. THE STATE (1991) 8 NWLR (Pt.211) 552 at 565; SANNI ADISA V. THE STATE (1991) 1 NWLR (Pt. 168) 490 at 506.
In the instant appeal, evidence have it that the 1st and 2nd Appellants were paraded on the television screen as those who committed the offences in question, before they were identified by PW1, and PW2. Another round of identification parade as demanded by the Appellants having in view the authorities of the Supreme Court cited above would be unnecessary.
On the whole therefore, this Court is in tandem with the Lower Court that, the offences for which the 1st and 2nd Appellants were both charged with, have been proved against them, beyond reasonable doubt. The Appeal is devoid of any merit and it is hereby dismissed by this Court.
The judgment of Hon. Justice D. O. Oluwayemi of the High Court of Lagos State, in charge NO. ID/28C/2001 delivered on the 13th day of December, 2007, convicting and sentencing the Appellants to be hanged until they are dead (Judgment which is at page 228 – 279 of the Record of Appeal), is hereby affirmed by this Court. May the Good Lord, have mercy on their souls.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading the judgment just read and I have nothing to add as my learned brother Bage, JCA has so covered the grounds that left no place for any further contribution. I agree with the conclusions arrived at and the orders made therein.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother Sidi Dauda Bage JCA.
This is live count information relating to Conspiracy to commit Armed Robbery, Armed Robbery and Murder of one Layi Balogun (deceased).
After hearing, final judgment was entered and the two accused now Appellants dissatisfied with the judgment tiled a notice of appeal dated and filed on the 11th Jan 2013 with s grounds as reproduced in the lead judgment, from which 2 issues formulated by the Respondent which incidentally captured all the issues of the Appellants were adopted.
I agree entirely with the reasoning and conclusions contained therein and have nothing extra to add except to emphasize that on issue 2.
Whether the prosecution has proved its case beyond doubt against the accused persons to warrant the conviction by the trial judge?
Having gone through the evaluation of evidence before the trial court and more-highlighted in the lead judgment, the position has been stated in the case of Corporal Bonny Aikhabueki v. The State in SC.225/2011 on 21st June 2013 cited as 2013 LPER 20806 (SC) where Galadima JSC held ‘it is the law that for circumstantial evidence to ground a conviction it must lead to only one conclusion that is the guilt of the accused. However where there are other possibilities (as in this case at hand) the opportunity of committing the offence with which he was charged such an accused cannot be convicted of murder’ see Osai & 3 Ors v. The State 1976 11 SC 39, he further stated.
It follows therefore that the evidence relied upon to establish a charge of murder may be direct or circumstantial whether the evidence is direct or circumstantial it must establish the guilt of the accused person beyond reasonable doubt in this connection the onus which is on the prosecution as a general rule never shifts and misdirection on the question of onus is fatal unless it can be shown that on a proper direction the result will be the same. See also Ozaki v State 1990 1 NWLR (Pt.124) 92.
In JULIUS ABIFARIN V. THE STATE SC.103/2011 2013 LPELR 20807 (SC) Ogunbiyi JSC. Held that in proving an accused guilty the prosecution must bring him with within one of the methods; direct evidence circumstantial evidence or by the accused statement proof of one of the foregoing will suffice to secure conviction.
In the case at hand, there is uncontroverted evidence of (which was neither shaken during cross examination) pw1 and pw2 at pages 43-47 of the record that Pw2 was 1st & 2nd appellants trail the deceased into his room, PW2 heard gun shots and shout from the deceased PW2 immediately went to the deceased room and found him in the pool of his blood after 1st & 2nd appellant and their gang had left.
Its was crystal clear and conclusive that only the 1st & 2nd appellants were with the deceased and it pointed without an iota of doubt that no one else could have caused the death except the 1st & the 2nd appellants and no one else had the opportunity of committing the offence therefore the offence has proved beyond reasonable doubt.
For this reason and more as elaborately contained in the lead judgment of my brother earlier referred to, I too find no merit in the appeal and dismiss same, while affirming the decision of the lower court.
Appearances
Taiwo Adedeji with Folashade OwolabiFor Appellant
AND
M.B. Olaniyi (Mrs.) Director OPPS Office Lagos State, holding the brief of E.I. Alakija (Mrs.) with Adebayo Haruna Chief State Counsel, A. Adeleye State CounselFor Respondent
