EMWANTA OGIEMWONYI v. THE STATE
(2016)LCN/8472(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/B/293C/2014
RATIO
EVIDENCE: CONFESSIONAL STATEMENT; EFFECT OF A CONFESSIONAL STATEMENT
In NWACHUKWU VS THE STATE (2007) LPELR 8075 (SC) Ratio 6, the Supreme Court held, inter alia, that:-
a confessional statement, it is now firmly established, is the best evidence in our criminal procedure. It is a statement of admission of guilt by the accused person and the trial Court must admit it in evidence unless it is contested at the trial.
And in Ratio 5, the Court held that:-
Once a confessional statement is admitted in evidence, it becomes part of the case for the prosecution which the trial Judge is bound to consider its probative value. PER JIMI OLUKAYODE BADA, J.C.A.
EVIDENCE: INGREDIENTS OF PROVING THE GUILT OF AN OFFENCE
In the prosecution of an accused, in order to prove the guilt, the ingredients of the offence has to be proved beyond reasonable doubt. And in discharging the burden of proof on the prosecution, the guilt of an accused can be proved by
(1) The confessional statement of the accused OR
(2) Circumstantial evidence OR
(3) Evidence of an eyewitness of the crime.
See OSENI VS THE STATE (2012) Volume 208 LRCN Page 151 at 158 Ratio 9.
I am of the view that the existence of any of the three conditions enumerated above is enough to establish the ingredients of an offence in a criminal trial. PER JIMI OLUKAYODE BADA, J.C.A.
CRIMINAL LAW: INGREDIENTS FOR PROVING THE OFFENCE OF ARMED ROBBERY
The ingredients required in proving the offence of armed robbery are:-
(1) That there was a robbery;
(2) That the robbery was an armed robbery;
(3) That the accused, while with arms participated in the robbery. PER JIMI OLUKAYODE BADA, J.C.A.
EVIDENCE: BURDEN OF PROOF; BURDEN OF PROOF IN CRIMINAL TRIALS
In criminal trials the onus is upon the prosecution to establish the guilt of the accused person by proving the offence charged beyond reasonable doubt. It is rudimentary law that there are three ways or methods of proving the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eye witnesses.
See EMEKA Vs. THE STATE (2001) 32 WRN 37 at 49 and OKUDO vs. THE STATE (2011) 3 NWLR (PT.1234) 209 at 236D. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
EMWANTA OGIEMWONYI Appellant(s)
AND
THE STATE Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice, Benin Judicial Division, Edo State of Nigeria in Charge No. B/133C/2011 ? THE STATE VS EMWANTA OGIEMWONYI delivered on the 27th day of February 2014 wherein the Accused/Appellant was convicted of the offences of conspiracy to commit armed robbery and armed robbery punishable under Section 6(b) and 12(a) of the Robbery and Firearms (Special Provisions) Act and sentenced to death.
Briefly, the facts of the case are that on the 12/12/2009 at about 8.30pm, the Appellant and one Maleke Imagbenikaro (now deceased) while armed with a cut to size gun robbed one Mohammed Azeez, while on his way home from work, of his two handsets (Nokia 1200 and Nokia 1600). The victim Mohammed Azeez raised an alarm which alerted the neighbours who quickly came to his aid. This led to the arrest of Maleke Imagbenikaro, while the Appellant fled the scene of crime. The two handsets and the gun used in the robbery were recovered from Maleke Imagbenikaro. The
said Maleke Imagbenikaro was beaten before he was handed over to the police. The victim of the robbery identified the said Maleke Imagbenikaro. He confessed to the crime and mentioned the Appellant as one of the robbers who robbed Mohammed Azeez on 12/12/2009. The said Maleke Imagbenikaro took police to their hideout where the Appellant was arrested. The Appellant also confessed to have been involved in the said robbery of Mohammed Azeez on 12/12/2009, he was also identified. Maleke Imagbenikaro later died in police custody and as a result, the Appellant was charged alone at the High Court for conspiracy to commit armed robbery and armed robbery.
PW1 (the investigating Police Officer, CPL Oladinni Olasumbo) testified and told Court how late Maleke Imagbenikaro confessed and how he led police to their hideout where Appellant was arrested. Appellant also confessed and took police to the scene of crime. And this was later reduced into writing and admitted in evidence at the lower Court and marked as Exhibit ?A?. The said Exhibit ?A? was attested to by the D.P.O – a senior Police Officer.
?The Appellant retracted the statement at
the point of tendering it in Court, but it was admitted in evidence.
The Appellant in his defence denied the allegation. He testified for himself and called one witness. He denied making Exhibit ?A? and said that he was forced to sign another statement. He testified that late Maleke Imagbenikaro was just his co-tenant. He stated that on the day of the robbery, he slept over at his grandmother?s house who celebrated her birthday.
DW1 also testified for the Appellant and told the Court that she was with the Appellant at their grandmother?s house on the night of the robbery.
At the end of the trial, the learned trial Judge believed the evidence of the prosecution witness and also found that Exhibit ?A? was made by the Appellant.
Consequently, the Appellant was convicted and sentenced to death.
The Appellant who is dissatisfied with the said Judgment now appealed to this Court seeking to have his conviction set aside and a verdict of acquittal entered in his favour.
The learned counsel for the Appellant formulated three issues for the determination of the appeal the issues are reproduced as
follows: –
?ISSUE NO. 1
Whether the evidence of PW1 has any probative value to warrant same being relied upon by the learned trial Judge in finding that the prosecution proved the charge against the Appellant beyond reasonable doubt.
ISSUE NO. 2
Whether the learned trial Judge was right in ascribing probative value to Exhibit ?A? and relying thereon in finding that the prosecution proved the charge against the Appellant beyond reasonable doubt.
ISSUE NO 3
Whether the prosecution?s failure to call the alleged victim of the robbery and/or any other eyewitness to the alleged robbery and/or tender in evidence the weapon allegedly used in the robbery and/or the recovered stolen items was in the circumstances, fatal to its case.?
?On the other hand, the learned counsel for the Respondent also formulated
two issues for the determination of the appeal. The issues are reproduced as follows:
?ISSUE NO. 1
Whether the learned trial Judge was right to have admitted Exhibit ?A? and ascribed probative value to it, thereby convicting the Appellant on it.
ISSUE NO. 2
Whether having regards to the totality of the evidence led at the trial and the circumstance of this case, the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.?
At the hearing, the learned counsel for the Appellant stated that the appeal is against the Judgment of Edo State High Court delivered on 27/2/2014 wherein the Appellant was sentenced to death.
The notice of appeal was filed on 2/4/2014 while the Appellant?s brief of argument was filed on 19/9/2014. Also the Appellant?s reply brief was filed on 5/12/2014 and it was deemed as properly filed on
22/6/15.
The learned counsel for the Appellant adopted the Appellants brief of argument and relied on it as his argument in urging that the appeal be allowed and the Judgment of the lower Court set aside.
The learned counsel for the Respondent, also referred to the Respondent’s brief of argument filed on 17/10/2014.
He adopted the said Respondents brief of argument and relied on it as his argument in urging that the appeal be dismissed.
I have carefully examined the issues formulated for determination of the appeal by counsel for the parties and I am of the view that the issues formulated by counsel for the Respondent though similar to that formulated on behalf of the Appellant but that it is apt and would take care of the issues in controversy in this appeal. I will therefore rely on the said issue formulated on behalf of the Respondent.
ISSUE FOR DETERMINATION OF THE APPEAL
ISSUE NO.1
Whether the learned trial Judge was right to have admitted
Exhibit A and ascribed probative value to it thereby convicting the Appellant on it.
The Learned Counsel for the Appellant referred to the alleged statement of the Accused/Appellant which the Appellant denied and contended that the statement he was made to sign was blood stained. He relied on:- NWOCHA VS THE STATE (2012) 9 NWLR Part 306 Page 571 at 593 594 paragraphs C F pages 586 587 paragraphs F B. Page 587 paragraphs C F, Page 589 paragraph G and Page 595 paragraphs B C.
The learned counsel for the Appellant contended that the issue to determine is whether the Appellant actually made Exhibit A and whether the trial Court ought to have attached any weight to same. He relied on the cases of:
– ONOCHIE & OTHERS VS THE REPUBLIC (1966) NMLR Pages 307;
– STATE VS ISAH (2012) 16 NWLR Part 1327 Page 613 at 629 630 paragraphs H A;
– OSENI VS THE STATE (2012) 5 NWLR Part 1293 Page 351 at 374 paragragh E-F.
The learned counsel for the Appellant submitted that the lower Court did not follow the principles in the above mentioned cases before Exhibit A was admitted in Evidence.
Furthermore, counsel referred the record which showed that Exhibit A was corroborated by the evidence of the sole prosecution witness (PWI) which also showed that the confession was true (see pages 85 86 of the record)
It was submitted on behalf of the Appellant that the evidence of PWI could not be relied upon as corroborating Exhibit A, because the evidence was merely hearsay.
It was submitted on behalf of the Appellant, that Exhibit A woefully failed the tests spelt out in the cases relied upon earlier and therefore the Court should not have accorded any evidential weight/value to it.
The learned counsel for the Appellant urged that the issue be resolved in favour of the Appellant.
In his response, the learned counsel for the Respondent, submitted that Exhibit A was properly admitted by the lower Court. It was submitted further that retraction of a confessional statement by an accused person does not render it inadmissible.
He relied on the following cases:
– NGUMA VS A.G. IMO STATE (2011) LPELR 4593 Ratio 3;
– AKIBU HASSAN VS THE STATE (2001) LPELR 1358;
– NWOCHA VS THE STATE (2012) LPELR 9223 Ratio 5;
– OLUSANYA VS THE STATE (2012) ALL FWLR Page 573 at 574 575 Ratio 1.
It was also submitted on behalf of the Respondent, that the evaluation of evidence and the ascription of probative value to such evidence is the primary function of the trial Court. He relied on the following cases:
– OGUNNIYI VS THE STATE (2012) LPELR 8567 (CA);
– OSENI VS THE STATE (Supra).
He finally urged that the issue be resolved in favour of the Respondent.
The learned counsel for the Appellant in his reply brief of argument contended that although the general principle of law is that the evaluation of evidence and ascription of probative value thereto is the primary function of the trial Court, but there are certain circumstances where an Appellate Court will be in as good a position to evaluate if the question is documentary in nature.
He relied on the following cases: –
– ODUTOLA VS MABOGUNJE (2013) 7 NWLR Part 1354 Page 522 at 548 paragraphs D E;
– AGBAKOBA VS INEC (2008) 18 NWLR Part 1119 Page 489 at 555 paragraphs F H;
– LAWAL VS DAWODU (1972) 8 9 SC Page
83;
– FASHANU VS ADEKOYA (1974) 6 SC Page 83;
– BALOGUN VS AKANJI (1988) 1 NWLR Part 70 Page 301.
He submitted that it is appropriate for this Court to review Exhibit A
The learned counsel for the Appellant contended that Exhibit ‘A’ did not pass the six tests listed in the case of OSENI VS THE STATE (Supra) to have warranted any weight being attached to it.
It has to be emphasised at this stage that retraction of confessional statement by an accused person does not render it inadmissible.
In the case of AKIBU HASSAN VS THE STATE (Supra) Ratio 3, the Supreme Court held among others that:-
“On the part of an accused person who wants to resile from or retract his earlier confessional statement which he made extra judiciously to the police, such a statement is not rendered inadmissible by the mere denial or retraction by the said accused person.”
See also the following cases:-
– NGUMA VS A.G. IMO STATE (Supra);
– NWOCHA VS THE STATE (Supra).
Learned counsel for the Respondent, submitted that the evaluation of evidence and ascription of probative
value to such evidence is the primary function of the trial Court.
Evaluation of evidence entails the consideration of every evidence on an issue. In considering such evidence, the Court has a duty to consider the relation between the evidence and the issue as well as the positive value of such evidence. This will involve a thorough appraisal and assessment of the evidence that will logically result in a conclusion of law or an inference of fact. It is the trial Judge that saw, heard and assessed the witnesses as they testified at the trial. After he has evaluated and appraised the facts properly, it is not the business of an Appellate Court to interfere and substitute its own views for the views of the trial Court. This is because evaluation of evidence provides the factual basis of the decision arrived at by the Court.
It is settled law that in ascribing probative value to a confessional statement, whether retracted or admitted during trial as in the case of Exhibit A, the Court must subject the confessional statement to the following tests:-
(a) Is there anything outside it to show that it is true?
(b) Is it corroborated?
(c) Are the facts stated in it true as far as they can be tested?
(d) Does the accused person have the opportunity of committing the offence?
(e) Is the accused persons confession possible?
(f) Is the confession consistent with other ascertained facts?
A careful reading of the evidence of the Appellant on pages 45 46 of record of appeal would reveal that at line 27, the accused stated thus:-
“I did not sign any statement and I was beaten and threatened. I.P.O. threatened to shoot me if I did not sign. I signed it with force…”
The learned counsel for the Appellant submitted that the question to be answered is whether the Appellant actually made Exhibit A and whether the Court ought to have attached any weight to same.
In ONOCHIE & OTHERS VS THE REPUBLIC (1966) NMLR Page 307, it was held among others that:-
It is desirable to have, outside a defendants confession to
the police, some evidence, be it slight of circumstances which make it probable that the confession was true.
Also in STATE VS ISAH (2012) 16 NWLR Part 1327 Page 613 at 629 630 paragraphs H A, the Supreme Court held among others thus:-
The underlining consideration is whether the confessional statement was voluntary and true.
It follows naturally that it is desirable to have outside the confession some evidence that would make it probable that the confession was true. In the absence of any evidence outside the confession it would be unsafe to sustain a conviction as there would be grave doubts if the confessions were true.
In this appeal under consideration, the learned trial Judge subjected Exhibit ?A to the tests enumerated earlier in this Judgment on pages 82 88 of the record of appeal.
On page 85 lines 18 and 19 and page 86 lines 1 18 of the record of appeal, the learned trial Judge held as follows:-
“In subjecting Exhibit A to the six tests earlier highlightened, I
find that I have answered the tests or questions in the affirmative, for the confessional statement is clearly corroborated by the evidence of the sole prosecution witness which also showed that the confession was true.
The accused clearly had the opportunity of committing the offence as his attempts to set up a belated alibi crashed. What is more, the evidence of the sole prosecution witness that the accused took the police to the scene as the place where they robbed the complainant was elicited during cross examination. It was never suggested to the sole prosecution witness that the accused did not admit the robbery allegation. Now Exhibit ?A has actually gone further than admitting the robbery with Maleke on 12/12/2009. It had provided personal particulars of the accused like address, occupation, his village/local government, year of birth and parents; primary and secondary schools, gang members, how they acquired their gun and how they kept same etcetera.”
Also, the learned trial Judge on page 85 lines 6 ? 9 of the record of appeal held thus:
The accused confirmed
the identity of Maleke both in Exhibit A and an oath and in Exhibit A confirmed that Maleke was arrested at the scene after the robbery operation but that he (accused) escaped.
The Supreme Court in EDOHO VS THE STATE (2012) Volume 10 LRCNCC Page 81 at 96 Ratio 17 held, inter alia, that:-
As regards finding of facts by a trial Court, it is settled that evaluation of evidence is the exclusive preserve of a trial Court. An Appellate Court lacks the power to interfere or disturb such findings of facts particularly when such findings are supported by evidence on record.
In view of the foregoing, and after a careful perusal of the evidence, submissions of counsel for the parties and Judgment of the trial Court, I am of the view that the learned trial Judge has done a thorough and diligent evaluation of evidence in this case and there is no reason to disturb the findings of the trial Court.
This Issue No. 1 is therefore resolved in favour of the Respondent and against the Appellant.
ISSUE NO. 2
Whether having regard to the totality of the evidence led at the trial and the circumstance of this case, the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.
The learned counsel for the Appellant referred to the evidence of PW1 and submitted that he was not an eyewitness to the alleged robbery incident. He stated further that PW1 was detailed to investigate the robbery incident.
He submitted that the testimony of PW1 amounted to hearsay which is inadmissible.
He relied on Section 38 of the Evidence Act 2011, and the following cases:-
– F.R.N. VS USMAN (2012) 8 NWLR Part 1301 Page 141 at 160 paragraphs B C;
– NWOCHA VS STATE (2012) 9 NWLR Part 1306 Page 571 at pages 593 594 paragraphs C F.
It was also submitted on behalf of the Appellant that to sustain a conviction on a charge of armed robbery, the prosecution must lead cogent and credible evidence to establish beyond reasonable doubt that there was a robbery, the robbery was carried out with the use of offensive weapons and
that the accused person participated in the robbery. And the prosecution must show that an agreement between two or more persons to do an illegal act or an act which is not legal by illegal means, and that illegal act was done in furtherance of agreement and that each of the accused persons participated in the illegality i.e. conspiracy in order to sustain a charge of conspiracy.
The learned counsel for the Appellant also contended that the prosecution called only PW1 and suppressed the crucial evidence from other witnesses who witnessed the crime who could have established the ingredients of the offences.
He submitted that the prosecution in a criminal trial is not bound to call any particular witness but that it is duty bound to adduce all relevant evidence. He relied on the following cases:-
– NWOCHA VS STATE (Supra) at Page 589 paragraph G;
– STATE VS ISAH (Supra) at Page 630 paragraphs B ? D;
– OGUDO VS STATE (Supra) Page 31 32 paragraphs G B Ratio 13.
He finally submitted that since there is no cogent, reliable, credible and authentic evidence on record to prove the offences laid down in the charge
preferred against the Appellant i.e. to show that the Appellant conspired with anybody to commit robbery whilst armed with a cut to size gun or did actually commit the substantive offence, the prosecution ought to have tendered in evidence the offensive weapon it alleged was used in carrying out the robbery which from every indication, it had in its custody at the time of the trial.
He then urged that this issue be resolved in favour of the Appellant.
In his response, the learned counsel for the Respondent submitted that the determination of the credibility of witnesses is the primary function of the trial Judge who heard and saw those witnesses. He relied upon the case of: OGUNNIYI VS THE STATE (Supra) Ratio 4.
He also contended that an unimpeachable evidence of an investigating police officer cannot be regarded as hearsay. He went further that PW1 testified as to what he discovered during the course of the investigation of this case.
It was also submitted on behalf of the Respondent that the prosecution is not required to call a host of witnesses to prove its case.
He relied on the case of:-
– ONAFOWOKAN VS THE STATE (1987)
LPELR 2666 Ratio 4.
He also referred to Exhibit A and submitted that it sufficiently established the ingredients required to prove the offence of conspiracy and armed robbery.
It was further submitted on behalf of the Respondent that the failure to call the complainant was not in any way fatal to the Respondent’s case since the prosecution has succeeded in proving the case of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt as required by law.
He finally urged that this issue be resolved in favour of the Respondent.
In his reply brief of argument, the Appellant contended that the Appellant challenged the evidence of the prosecution’s lone witness, in so far as it tends to establish the ingredients of the offence for which the Appellant was convicted, on grounds of being hearsay evidence. The learned counsel for the Appellant restated that the crux of the appeal is that the totality of the evidence placed before the trial Court i.e. Exhibit A and the testimony of PW1 did not establish the charge against the Appellant.
He therefore urged that this
appeal be allowed.
There is no doubt in this case that Exhibit “A” is a confessional statement, and it is settled law that a Court can convict on a confessional statement of an accused person alone without corroboration.
As a general rule, a free and voluntary extra judicial confession provides the most satisfactory, the best and the strongest evidence against an accused person. This is so because no man in his right senses will make admissions prejudicial to his interest and safety if the facts are not true and correct.
In NWACHUKWU VS THE STATE (2007) LPELR 8075 (SC) Ratio 6, the Supreme Court held, inter alia, that:-
a confessional statement, it is now firmly established, is the best evidence in our criminal procedure. It is a statement of admission of guilt by the accused person and the trial Court must admit it in evidence unless it is contested at the trial.
And in Ratio 5, the Court held that:-
Once a confessional statement is admitted in evidence, it becomes part of the case for the prosecution which the trial Judge is bound to consider its probative
value.
In the prosecution of an accused, in order to prove the guilt, the ingredients of the offence has to be proved beyond reasonable doubt. And in discharging the burden of proof on the prosecution, the guilt of an accused can be proved by
(1) The confessional statement of the accused OR
(2) Circumstantial evidence OR
(3) Evidence of an eyewitness of the crime.
See OSENI VS THE STATE (2012) Volume 208 LRCN Page 151 at 158 Ratio 9.
I am of the view that the existence of any of the three conditions enumerated above is enough to establish the ingredients of an offence in a criminal trial.
The ingredients required in proving the offence of armed robbery are:-
(1) That there was a robbery;
(2) That the robbery was an armed robbery;
(3) That the accused, while with arms participated in the robbery.
In arriving at the conclusion that Exhibit A sufficiently established the ingredients of the
offence of armed robbery, the learned trial Judge held thus on page 84 lines 12 20 that:-
Exhibit A disclosed that on 12/12/2009, the accused and Maleke (now late) discussed between themselves and decided to go out and look for who to rob. It revealed how they both moved to Iso Street with their cut to size single barrel gun, how they saw the complainant waiting along the street towards them and attacked him with their gun and dispossessed him of his two phones. The charge was that the accused and Maleke Imagbenikaro (now late) on 12/12/2009 at Iso Lane, off Iso Street, Upper Sakponba Road, robbed Mohammed Azeez of two Nokia handsets while armed with gun.
On the issue of offence of conspiracy. Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is ordinarily a matter of inference, deduced from certain criminal acts of an apparent criminal purpose common between them. See FOLORUNSHO ALUFOHAI VS THE STATE (2015) NWLR Part 1445 Page 172.
In order to secure conviction on a count of conspiracy, the prosecution must
establish the elements of agreement to do something which is unlawful or to do something which is lawful by unlawful means.
Although the offence of conspiracy is difficult to prove by direct evidence as it is often hatched in secrecy, however it has been held in many cases that conviction for conspiracy is usually based on circumstantial evidence.
See OGUNNIYI VS THE STATE (2012) LPELR 8567 (CA).
The learned counsel for the Appellant contended that the offence of conspiracy was not proved. But the learned trial Judge on pages 87 lines 13 19 and page 88 lines 1-4 held thus:-
Now the sole prosecution witness has told the Court that Maleke (now late) confessed that the accused as having gone to the robbery operation with him and that the accused admitted the allegation. In Exhibit A, extra judicial confessional statement of the accused, he had told the police that on 12th December 2009 at about 8:00pm myself and Maleke M discussed with ourselves and we decided to go out and look for who to robbefore they saw the victim and robbed him with their gun. I am
therefore unable to agree with the learned defence counsel that there was no evidence of conspiracy.
Also on page 85 lines 3 7, the learned trial Judge held thus:-
“Now the sole prosecution witness Oladini Olasumbor had told the Court that the accused was implicated by Maleke who had been arrested at the scene by street people. The accused confirmed the identity of Maleke both in Exhibit A and on oath and in Exhibit Aconfirmed that Maleke was arrested at the scene after the robbery operation but that he (accused) escaped.”
It was contended on behalf of the Appellant that the failure to call the complainant is fatal to the prosecution’s case. But in my humble view, a careful consideration of the evidence by the learned trial Judge has revealed that with the materials placed before the Court, the accused participated in the robbery of Mohammed Azeez on 12/12/2009.
The learned trial Judge before rejecting the Appellants case and then accepted the Respondents case, he evaluated the evidence as follows on page 88
lines 8 – 20 of the record of appeal stated thus:-
“I therefore believe the sole prosecution witness that the accused admitted the allegation. I however, disbelieve the later denial of the accused. He had claimed that he could not leave his grandmothers house after her birthday party on 12/12/2009. Yet he could not decide if the party ended at 6.oopm or 10.00pm. He could not decide if he did not sign Exhibit A or if he was forced to sign it. He did not even know the name of his grandmother whose birthday party he attended on 12/12/2009. In any event, he only tried to raise a defence of alibi at the stage of defence. I therefore reject the defence on oath of the accused as very equivocatory. On the other hand, I accept the prosecutions case which was also admitted by the accused.”
Consequent upon the foregoing, I am of the view that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.
Reasonable doubt does not mean proof beyond every iota of doubt or proof beyond every shadow of doubt, but
proof which convey a high degree of probability.
See the following cases:-
– MUSA VS THE STATE (2012) Volume 10 LRCNCC Page 255 at 262 ratio II;
– SHURUMO VS THE STATE (2012) Volume 10 LRCNCC Page 1 at 9 ratio 16;
– AFOLALU VS THE STATE (2011) Volume 194 LRCN Page 136 at 142 and 144 ratios 1 and 4;
– JUA VS STATE (2010) 43 WRN Page 1 at 24- 25.
This Issue No. 2 is therefore resolved in favour of the Respondent and against the Appellant.
With the resolution of the two issues for determination in this appeal against the Appellant, this appeal is therefore devoid of any merit and it is therefore dismissed.
In the result, the conviction and sentence of the Appellant by the learned trial Judge in Charge No. B/133C/2011 – THE STATE VS EMWANTA OGIEMWONYI delivered on the 27th day of February 2014 is hereby affirmed.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: My learned brother, JIMI OLUKAYODE BADA, J.C.A., made available to me, in a draft form, the Judgment just delivered.
I am in agreement with his reasoning and conclusion.
For the same reasons which I hereby adopt as mine, I too
conclude that the Appeal is lacking in merit and I also dismiss it.
Consequently, the conviction and sentence of the Appellant as contained in the Judgment of the Edo State High Court delivered on the 27th day of February, 2014 is affirmed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: In criminal trials the onus is upon the prosecution to establish the guilt of the accused person by proving the offence charged beyond reasonable doubt. It is rudimentary law that there are three ways or methods of proving the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eye witnesses.
See EMEKA Vs. THE STATE (2001) 32 WRN 37 at 49 and OKUDO vs. THE STATE (2011) 3 NWLR (PT.1234) 209 at 236D.
At the trial before the lower Court, the prosecution, inter alia, relied on the confessional statement made by the Appellant which was admitted in evidence as Exhibit A. It is settled law that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an
accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO Vs. A-G OGUN STATE (2008) 7 NWLR (PT.1085) 201 at 221 F-G, USMAN vs. THE STATE (2011) 3 NWLR (PT.1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT.1293) 351 at 387. The free and voluntary confessional statement of an accused person alone is enough to sustain the conviction of an accused person where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth. See YESUFU VS. THE STATE (1976) 6 SC 167 at 173, IDOWU VS. THE STATE (2000) 7 SC (PT.II) 50 at 62 ? 63, DIBIE VS. THE STATE (2007) 9 NWLR (PT.1038) 30 at 51A ? B and 636-H. KAZA VS THE STATE (2008) 7 NWLR (PT.1085) 125 at 166A, 194A and 195D, OSENI VS. THE STATE (supra) at 374 and EGBOGHONOME VS. THE STATE (1993) 7 NWLR (PT.306) 385.
Even though the Appellant retracted the confessional statement at the trial, it is hornbook law that the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the
statement inadmissible in evidence. See ALARAPE VS. THE STATE (2001) 14 WRN 1 AT 20, KAREEM VS. FRN (2001) 49 WRN 97 at 111, EHOT VS. THE STATE (1993) 5 SCNJ 65, EGBOGHONOME VS. THE STATE (supra) at 431 and OBISI VS. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38 ? 39. An accused person can still be convicted on the basis of such retracted confessional statement: HASSAN VS. THE STATE (2001) 7 SC (PT.II) 85 at 93.
Howbeit, the legal position is that a Court cannot act on the confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the English case of R. vs SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases by our Courts including NWAEBONYI VS. THE STATE (1994) 5 NWLR (PT.343) 138, AKINMOJU vs. THE STATE (2004) 4 SC (PT.I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJSC 168 at 188 ? 189, ALARAPE vs. THE STATE (supra) and OSENI vs. THE STATE (supra) at 387 to mention a few. The tests which have been laid down
to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether:
1. There is anything outside the confessional to show that it is true.
2. It is corroborated.
3. The facts stated in the confession are true as far as can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is consistent with the other facts ascertained and proved.
The lower Court duly applied the requisite test to ascertain the veracity of the confessional statement before arriving at a conviction based, inter alia, on the said confessional statement.
Having insightfully considered the Records of Appeal and the submissions in the briefs of argument filed and exchanged by the parties, I am satisfied that the lower Court arrived at the right decision. Th confessional statement of the Appellant, Exhibit A, which was well proved admits the essential ingredients of the offence charged. It is the best evidence that can be
produced: EDAMINE vs. THE STATE (1996) LPELR (1002) 1 at 12.
It is for the foregoing reasons and the sapience resonating in the leading judgment of my learned brother, Jimi Olukayode Badam J.C.A. which I was privileged to read in draft, that I am allegiant that this appeal is totally devoid of merit. Accordingly, I equally join in dismissing the appeal. The judgment of the High Court of Edo State in Charge No.B/133C/2011 delivered on 27th February 2014 is hereby affirmed. The conviction and sentence imposed on the Appellant are accordingly upheld.
?Appeal Dismissed.
Appearances
Mr. Emmanuel Achukwu with him, J.N. OkoagwuFor Appellant
AND
Mr. Oluwole Iyamu (Solicitor General, Edo State) with him, Mrs. R.O.
Ohaimire (Senior State Counsel) and Miss M.O.U. Eruaga (Senior State Counsel)For Respondent
