ABAH v. FRN
(2022)LCN/15936(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, January 21, 2022
CA/MK/11C/2020
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
ODEH ABAH APPELANT(S)
And
THE FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
It is trite that the burden of proof in a criminal case is static and on the prosecution and the standard of proof is beyond reasonable doubt, see the case of ANKPEGHER V. STATE (2018) LPELR-43906(SC) wherein the apex Court held thusly:
“There is no doubt that in criminal proceedings the onus of proof lies on the prosecution throughout the trial and does not shift. In other words, there is no burden on the accused person to prove his innocence. It is also trite that the standard of proof in criminal proceedings is proof beyond reasonable doubt but not proof beyond the shadow of a doubt. See: Section 135 of the Evidence Act, 2011; Ikpo vs. The State (2016) 2-3 SC (Pt. III) 88; Oseni vs. The State (2012) 5 NWLR (Pt.1293) 351 @ 388 F-G; Woolmington Vs D.P.P (1935) AC 462. As rightly stated in the lead judgment, the evidence adduced by the prosecution must be so strong as to leave only a remote possibility in favour of the accused. See: Miller Vs Minister of Pensions (1947) 2 ER 372; Bakare Vs The State (1987) 1 NWLR (Pt. 52) 579.” Per KEKERE-EKUN, J.S.C. PER NIMPAR, J.C.A.
WAYS THE PROSECUTION CAN ESTABLISH THE BURDEN OF PROOF IN CRIMINAL CASES
It is also beyond argument that the prosecution can achieve that in three different methods, they are through a confessional statement, circumstantial evidence and eye witness account as crystallized by the apex Court in the case of AKEEM V. STATE (2017) LPELR-42465(SC) and STATE V. YAHAYA (2019) LPELR-47611(SC) wherein the apex held thusly:
“It is a well-established principle of criminal law that in all criminal cases, the onus of proving that any person committed a crime or wrongful act squarely lies on the prosecution generally, except of course in some special cases or circumstance which do not apply to the instant case. The burden of proof does not shift and the standard of proof is certainly proof beyond reasonable doubt. See Ogundiya v The State (1991)3 NWLR (pt.181)519. To establish the burden of proof as required by law, the prosecution can adopt any of the three methods set out hereunder:- (a) Through evidence of eye witness who witnessed the commission of the offence, or (b) Through voluntary confessional statement of the accused person or persons; or (c) By circumstantial evidence. See Akeem Agboola v The State (2013) LPELR 20652.” Per SANUSI, J.S.C.
The prosecution can achieve that by a combination of any of the three or by a single method. There is therefore no law limiting the prosecution to the use of a single method of proving the commission of the crime alleged. PER NIMPAR, J.C.A.
DEFINITION OF A CONFESSION
A confession generally is an admission by a person accused with the commission of an offence. The Evidence Act, Section 28 defined a confession as follows:
“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 also the following cases: NKIE V. FRN (2014) LPELR-22877(SC), FRN V. IWEKA (2011) LPELR-9350(SC), ADEBAYO V. STATE (2014) LPELR-2988(SC) and DAROPALE V. STATE (2013) LPELR-20676(CA). PER NIMPAR, J.C.A.
THE MODE OF PROVING THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT
The contention of the Appellant is that the confessional statement (Exhibit D) made by the Appellant did not qualify to be given the required value because conditions precedent was not satisfied, principally that it was not voluntarily made and therefore contrary to the provisions of Section 29(2) (b) which provides thusly:
“(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained-
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.”
This does not detract from the settled mode of proving the voluntariness of a confessional statement, the burden which is on the Respondent as prosecution, see OGUNYE & ORS V. STATE (1999) LPELR-2356(SC) wherein the apex Court held thus:
“…The position will however be different where the admissibility of a statement is challenged on the ground that it was not made voluntarily …it will be incumbent on the trial Court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within a trial. See Joshua Adekanbi v. AG Western Nigeria (1966) 1 All NLR 47, Paul Ashake v. The State (1968) 2 All NLR 198, Ogoala v. The State (1991) 2 NWLR (Pt.175) 509, R v. Omokaro 7 WACA 146.” Per IGUH, J.S.C. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the Federal High Court sitting in Makurdi, Benue State and delivered by HON. JUSTICE HASSAN DIKKO on the 12th June, 2018 wherein the Appellant was found guilty and convicted on Counts 3, 4 and 5 of the Charge and discharged on counts 1 and 2. The Appellant dissatisfied with the decision, filed a Notice of Appeal dated the 6th day of September, 2018 and an Amended Notice of Appeal dated 19th July, 2021 and filed on the same day setting out 5 grounds of Appeal.
Facts leading to this appeal are straight forward and amenable to brief summary. The Appellant and one Elijah Awua Gbeyima were arraigned before the trial Court on a six counts charge, on the 6th day April, 2017, for the offences of conspiracy to commit terrorist act, facilitating and acting as an accessory to the act of terrorism by terrorist group, failure to disclose information to Law Enforcement Agency so as to secure the arrest of a Terrorist, receiving, concealing and converting a vehicle acquired upon hostage taking, dishonestly receiving a stolen vehicle, concealing and converting a Terrorist property upon hostage taking which is contrary to Sections 17 (a), 1(2) (d), 8(1), 14(1) (d) of the Terrorism (Prevention) (Amendment) Act, 2013, Section 427 of the Criminal Code Act Cap C38, Laws of the Federation of Nigeria, 2004 and Section 14(1) (d) of the Terrorism (Prevention) Act, 2013.
The Appellant and the co-defendant pleaded not guilty to all the six counts in the Charge. The case of the Respondent was that on the 2nd of December, 2016 at about 3:45a.m one Mrs. Iyuadoo Tor-Agbidye (the victim) was kidnapped from her home while sleeping at night with the intention of collecting ransom from her husband (PW2) for her release. After four days in her kidnapper’s custody and payment of ransom, she was released to her husband. Continuing, the Respondent told the lower Court that on 3rd day of December, 2016, PW2 reported that PW1 has been kidnapped alongside her husband’s (PW2) Suzuki XL7 Jeep with Registration No. ABJ 899 AX. Investigation commenced after the report was made and a ransom of N3,000,000.00 (Three Million Naira) paid for the release of PW1. During the course of investigation, it was discovered that one Monday aka Yahuze masterminded the kidnap of Mrs. Iyuadoo Tor-Agbidye (PW1). On 13th of December, 2016, the Department of State Security Services received critical intelligence report that the Appellant has received the said Suzuki XL7 Jeep, so a team of operatives including PW3 were drafted to Otukpo where the Appellant was arrested. A search was conducted at his residence and the original documents of the car were found in his possession. The Appellant was transferred to Makurdi where he voluntarily disclosed what transpired after he was duly cautioned. The Charge reads:
COUNT I
That you (1) Ode Abah (male) of No. 145 Akpah Street, Otukpo, Benue State, (2) Elijah Awua Gbeyima (male) of Pa Awua Chila Compound, Mbanemem, Konshisha LGA, Benue State on or about the 2nd day of December, 2016 in Otukpo, Benue State within the jurisdiction of this Honourable Court committed an illegal act to wit: conspired amongst yourselves and with others still at large to commit a terrorist act (dealing in terrorist property) thereby you committed an offence contrary to Section 17(a) of the Terrorism (Prevention)(Amendment) Act, 2013 and punishable under same Section 17(a) of the Terrorism (Prevention) (Amendment) Act, 2013.
COUNT II
That you (1) Ode Abah (male) of No. 145 Akpah Street, Otukpo, Benue State, (2) Elijah Awua Gbeyima (male) of Pa Awua Chila Compound, Mbanemem, Konshisha LGA, Benue State on or about the 2nd day of December, 2016 in Oturkpo, Benue State within the jurisdiction of this Honourable Court committed an illegal act to wit: assisted, facilitated and acted as an accessory to of terrorism committed by a terrorist group led by Monday alia yahuze still at large who engaged in the hostage taking of Mrs. Iyuadaoo Tor-Agbidye thereby you committed an offence contrary to Section 1 (2) (d) of the Terrorism (Prevention) (Amendment) Act, 2013 and punishable under same Section 1 (2) (d) of the Terrorism (Prevention) (Amendment) Act, 2013.
COUNT III
That you Ode Abah (male) of No. 145 Akpah Street, Oturkpo, Benue State, on or about the 2nd day of December, 2016 in Taraku, Benue State within the jurisdiction of this Honourable Court committed an illegal act to wit: had information which you knew and believed to be of material assistance in securing the apprehension and prosecution of Monday alias Yahuze and other terrorists still at large (who engaged in the hostage taking of Mrs. Iyudoo Tor-Agbidye) but failed to disclose such information to any law enforcement agency as soon as reasonably practicable thereby you committed an offence contrary to Section 8 (1) of Terrorism (Prevention) (Amendment) Act, 2013 and punishable under same Section 8(1) of the Terrorism (Prevention) (Amendment) Act, 2013.
COUNT IV
That you Ode Abah (male) of No. 145 Akpah Street, Otukpo, Benue State, on or about the 2nd day of December, 2016 in Taraku, Benue State within the jurisdiction of this Honourable Court committed an illegal act to wit: received, concealed and converted a Suzuki XL7 jeep belonging to Mr. Achia Tor-Agbidye knowing that same is a terrorist property illegally obtained upon the hostage taking of Mrs. Iyuadoo Tor-Agbidye by a terrorist group led by Monday alias Yahuze still at large thereby you committed an offence contrary to Section 14(1) (d) of the Terrorism (Prevention) (Amendment) Act, 2013 and punishable under Section 14(1) (d) of the Terrorism (Prevention) (Amendment) Act, 2013.
COUNT V
That you Ode Abah (male) of No. 145 Akpah Street, Oturkpo, Benue State, on or about the 2nd day of December, 2016 in Taraku, Benue State within the jurisdiction of this Honourable Court committed an illegal act to wit: dishonestly received a stolen vehicle (Suzuki XL7 Jeep) belonging to Mr. Achia Tor-Agbidye knowing that same was illegally obtained under gun point by terrorists thereby you committed an offence contrary to Section 427 of the Criminal Code Act Cap C38 Laws of the Federation of Nigeria 2004 and punishable under Section 427 of the Criminal Code Act, Cap Laws of the Federation of Nigeria 2004.
COUNT VI
That you Elijah Awua Gbeyima (male) of Pa Awua Chila Compound, Mbanemem, Konshisha LGA, Benue State on or about the 2nd day of December, 2016 in Abuja Federal Capital Territory, within the jurisdiction of this Honourable Court committed an illegal act to wit: received, concealed and converted a Suzuki XL7 Jeep belonging to Mr. Achia Tor-Agbidye knowing that same is a terrorist property illegally obtained upon the hostage taking of Mrs. Iyuadoo Tor-Agbidye by a terrorist group led by Monday alias Yahuze still at large thereby you committed an offence contrary to Section 14(1) (d) of the Terrorism (Prevention) (Amendment) Act 2013 and punishable under Section 14 (1) (d) of the Terrorism (Prevention) (Amendment) Act, 2013.
Before the trial Court, the Respondent called 4 witnesses who testified as PW1-PW4 and tendered 9 documents as Exhibits A1, A2, A3, B, C, D, D1, D2 and F. The Appellants aggrieved with the said judgment brought the instant appeal.
Pursuant to the Rules of the Court, the parties filed and exchange their briefs which were adopted at the hearing of the Appeal. The Appellant’s brief settled by CANICE I. NKPE, ESQ., is dated 16th day of August, 2021, filed on the same day. The Appellant distilled 4 issues for determination as follows:
1. Was Exhibit “D” not wrongly admitted in evidence by the trial Court. (Distilled from grounds 1).
2. Can Exhibit “E” be applied to impeach the credibility of PW3. (Distilled from ground 2).
3. Did the Appellant raise the defence of locus criminis timeously. (Distilled from ground 3).
4. Was the learned trial Judge right when he convicted the Appellant on Counts III, IV and V, when the prosecution did not prove the offences charged.
(Distilled from grounds 4 and 5).
The Respondent’s Brief settled by S. M. LABARAN, ESQ is dated 25th day of October, 2021 and filed on the same day but deemed 10th November, 2021. The Respondents formulated 3 issues for determination as follows:
1. Whether findings of facts made by a trial Court in a trial within trial that is based on the credibility of witnesses after watching their demeanour should be upturned by Appellate Court.
2. Whether on the circumstances of this case, the prosecution must link the defendants with locus criminis on the alleged kidnap to secure conviction for the offences charged.
3. Whether the Respondent has proved its case against the Appellant beyond reasonable doubt to secure the conviction of the Appellant.
Thereafter, the Appellants filed a Reply Brief dated 9th November, 2021 and filed on the same day but deemed 10th November, 2021.
APPELLANT’S SUBMISSION
ISSUE ONE
In arguing issue one, the Appellant submitted that the Respondent relied on the confessional statement purportedly made by the Appellant to establish the guilt of the Appellant. The Appellant referred the Court to THE STATE V. ALI AHMED (2020) LPELR-49497(SC), KAMILA V. STATE (2018) ALL FWLR (PT. 965) 1 and Section 28 of the Evidence Act, 2011. Continuing, the Appellant submitted that a confessional statement purported to have been made by an accused person standing trial is not admitted in evidence as a matter of course but it must satisfy the provisions of Section 29(2)(a) and (b) of the Evidence Act, 2011, that it was voluntarily made by the accused person, devoid of oppression or promise or favour, however, Exhibit D was procured contrary to the provisions of Section 29(2) of the Evidence Act, 2011 rather it was prepared for the Appellant by PW3 to sign, after he was coerced, severally tortured and shot on the leg by men of the Department of State Security, to admit that he committed the crime.
The Appellant contends that Sections 15(4) and 17(2) of the Administration of Criminal Justice Act, 2015 being mandatory provisions, were not complied with in the process of recording Exhibit D, as it was not made in the presence of a legal practitioner. On the same score, the Appellant contends that the video clip tendered in evidence showed vividly the persons present when the confessional statement was made and there was no legal practitioner present which grossly violates the above statutory provisions. The Appellant relied on CHARLES V. THE FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (PT. 1635) 50 and NWAKUCHE JERRY NNAJIOFOR V. FEDERAL REPUBLIC OF NIGERIA (2019) 2 NWLR (PT. 1655) 157 to support his submission. Further on this issue, the Appellant contended that the above Section cited did not give room for the exercise of discretion by the Law Enforcement Agency vested with the powers to carry out investigation. The Appellant cited MATO V. HEMBER (2018) 5 NWLR (PT. 1612) 258, UZODINMA V. IZUNASO (2011) 17 NWLR (PT. 1275) 30 and TSOKWA V. IBI (2017) 10 NWLR (PT. 1574) 343.
Consequently, the Appellant argued that the Administration of Criminal Justice Act, 2015 has made provision for the procedure to follow, to obtain the statement of any person alleged to have committed a crime and an act done contrary to those provisions will be inconsistent, and will automatically render it null and void as held in MOBIL PRODUCING (NIG) UNLIMITED … (2018) 14 NWLR (PT. 1639) 379 and INAKOJU V. ADELEKE (2007) 4 NWLR (PT. 1025) 423. Relying on Section 29 (2) and (5) of the Evidence Act, 2011, the Appellant submitted that he was actually tortured, injured on his head with a hammer and shot on the leg, which scar can still be seen and the Appellant had no choice than to admit committing the crime to preserve his life. The Appellant referred to AFOLAHAN V. STATE (2018) ALL FWLR (PT. 928) and STATE V. SALAWU (2011) ALL FWLR (PT. 594) 35.
Citing F.R.N V. BORISHADE (2015) ALL FWLR (PT.785) 244 and ONYEJEKWE V. STATE (1992) 4 SCNJ, the Appellant urge the Court not to attach any probative value to Exhibit D because outside the confessional statement there is nothing to show that the allegation against the Appellant is true, corroborated and there is nothing to show that it is consistent with other facts ascertained and proved. The Appellant relied on MICHAEL ANKPEGHER V. THE STATE (2018) 11 NWLR (PT. 1630) 249 and THE STATE V. IBRAHIM YAHAYA (2019) 13 NWLR (PT. 1690) 397.
It is the contention of the Appellant that Exhibit D was recorded for the Appellant because the Appellant cannot read and write and was purportedly read to the Appellant in English and he was requested to sign same, even though he does not understand English Language, hence, Exhibit D is a documentary hearsay which is inadmissible and lacks probative value as held in OKEREKE V. UMAHI (2016) ALL FWLR (PT. 833) 1939, THE STATE V. ALI SA’IDU (2019) 4-5 SC (PT. III) 48 and MOHAMMED BELLO V. COMMISSIONER OF POLICE PLATEAU STATE (2018) 2 NWLR (PT. 1603) 267.
In rounding up his submissions on this issue, the Appellant argued that it is trite that when inadmissible evidence is wrongly admitted in evidence, either the trial Court upon application during judgment can expunge it or an Appellate Court also possesses the power to expunge same as held in MR. CLINTON TOLAFARI & 2 ORS V. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2011) ALL FWLR (PT. 582) 1821 and BUHARI V. OBASANJO (2005) ALL FWLR (PT. 273) 1, however, despite the overwhelming evidence tendered by the Appellant, the trial Court overruled the Appellant and wrongly admitted the document in evidence. The Appellant urged the Court to resolve issue one in favour of the Appellant.
ISSUE TWO
In arguing this issue, the Appellant submitted that PW3 contradicted himself in Exhibit E, his averment in his deposition on Oath at page 149 of the Record of appeal and under cross examination at page 147 of the Record of appeal. Continuing, the Appellant submits that in several judicial authorities, appellate Courts have held that once the evidence of a witness is contradictory, the Court will abandon such evidence because it cannot pick or chose between the evidence and a witness of truth will not approbate and reprobate at will but will maintain a consistent story line. On the same score, the Appellant urge the Court to discountenance the evidence of PW3 as it is highly unreliable and has caused grave injustice to the Appellant. The Appellant referred the Court to the cases of OSADIM V. TAIWO (2010) ALL FWLR (PT. 534) 165 and ONYA V. OGBUJI (2010) (PT. 55) 12.
It is the argument of the Appellant that standard of proof in a criminal prosecution is beyond reasonable doubt and where there is doubt in the case of the prosecution caused by contradiction, the Court is to resolve the matter in favour of the accused person as held in NWALU V. STATE (2018) ALL FWLR (PT. 966) 279. Continuing, the Appellant argued that Exhibit E is a counter affidavit filed by PW3 at the Magistrate Court where he claimed that the Appellant belonged to a gang of kidnappers and armed robbers, however, during trial PW3 denied making such assertion, therefore, the Appellant tendered Exhibit E to contradict PW3 on this material point before the trial Court, subsequently, the trial Court admitted that Exhibit E contradicts the evidence of PW3 before the Court, but proceeded to hold erroneously that Exhibit E deposed to by an investigator in the process of investigation and prior to the framing of the charge and arraignment even though contradictory, cannot be used to impeach the credibility of a witness and reject his testimony in the fair determination of the case. The Appellant submitted that the trial Court ought to have disregarded the evidence of PW3 on the ground of material contradiction because putting Exhibit E and PW3’s evidence side by side will create serious doubt on the credibility of his evidence. The Appellant urge the Court to resolve issue two in favour of the Appellant.
ISSUE THREE
The Appellant contended that the issue of locus criminis should not be confused with the defence of alibi, which is required to be stated at the earliest possible time, to enable the prosecution make their investigation as to the viability of the defence, however, the prosecution did not link the Appellant to the locus criminis, which is the place the crime took place. The Appellant submitted that in the Appellant’s statement on oath and oral testimony in Court, the Appellant mentioned where he was, the time, dates and none can be traced to the locus criminis and if the prosecution is alleging that the Appellant committed the crime and is not able to link the Appellant to the locus criminis then, they are not able to prove their case beyond reasonable doubt and on that basis the Appellant should be discharged and acquitted. The Appellant relied onIBRAHIM V. C.O.P. (2017) ALL FWLR (PT. 908) 1990 and IBRAHIM V. STATE (2015) ALL FWLR (PT. 779) 1181-1182 to submit that where the charge laid is at variance with the evidence tendered, the conviction of the accused person cannot stand.
The Appellant explained extensively the concept of locus criminis and defence of Alibi and also stated their differences to submit that the trial Court was also wrong, when it held that the defence was not raised at the earliest opportunity to enable the prosecution make its findings and to secure fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria1999 (As Amended). It is the contention of the Appellant that the charge laid against the Appellant is at variance with the evidence presented by the prosecution at the trial Court because it is necessary for the prosecution to show that the Appellant was present at the venue and to prove the time and venue with certainty to earn conviction of the Appellant.
The Appellant further submits that the trial judge was wrong to hold that proof of time and venue was not necessary for the prosecution to prove its case and count 3 contains venue and time. The Appellant urge the Court to resolve this issue in favour of the Appellant.
ISSUE FOUR
In arguing issue four, the Appellant submits that it is trite law that the standard of proof in criminal cases is proof beyond reasonable doubt and the onus is on the prosecution to establish the guilt of the accused person beyond reasonable doubt and this burden does not shift until the prosecution has discharged this onus, he is not entitled to succeed as held in SUNDAY V. STATE (2013) ALL FWLR (PT. 682) 1823, GAMBO IDI V. THE STATE (2018) 4 NWLR (PT. 1610) 359, AJAEGBO V. STATE (2018) 11 NWLR (PT. 1631) 484, MBANG V. STATE (2013) ALL FWLR (PT. 674) 116, IJEOMA ANYASODOR V. THE STATE (2018) 8 NWLR (PT. 1620) 107 and TOBI V. STATE (2019) LPELR-4657(SC). It is the submission of the Appellant that the prosecution failed to establish any relationship between the Appellant and the kidnappers of PW1 and that the Appellant was aware that the Suzuki XL7 Jeep is proceed of crime. Continuing, the Appellant submits that having regard to the entire evidence led at trial Court, the trial Judge failed to properly evaluate the evidence before him and the findings of the trial Court are perverse, which has occasioned a miscarriage of justice, leading to the conviction of the Appellant. Predicated on the above, the Appellant contends that the prosecution failed to establish any form of communication between the Appellant and Monday and it is trite that where the alleged crime was not proved beyond reasonable doubt, any lingering doubts should be resolved in favour of the Appellant.
The Appellant relied on ZACHEOUS V. PEOPLE OF LAGOS STATE (SUPRA).
According to the Appellant, the trial Court was wrong when it found the Appellant guilty of concealing information about acts of terrorism, dealing in terrorist property and receiving stolen property, after it discharged and acquitted the Appellant and his co-accused on Count 1 and 2. The Appellant reproduced the judgment of the trial Court at 343 of the Record. The Appellant contended that count 3 of the charge was under Section 8(1) of the Terrorism (Prevention) (Amendment) Act, 2013, however, the Principal legislation regarding terrorism is the Terrorism Act (Prevention) Act, 2011 and there was no Amendment in 2013. That Section 7(1) of the Terrorism (Prevention) Act, 2011 which is the section that relates to this issue discloses that the section contains two parts: information which will enable the law enforcement officer prevent the commission of terrorist act or that which will secure the apprehension, prosecution or conviction, after the offence had been committed, meanwhile, the Appellant denied knowing Monday. The Appellant reproduced the holding of the trial Court at pages 345-348 to submit that there was no evidence from the prosecution suggesting that the Appellant had any information regarding any act of terrorism, which he could not volunteer to assist any Law Enforcement officer.
On the same score, the Appellant submitted that Count 4 was brought under Section 14(1) (d) of the Terrorism (Prevention)(Amendment) Act, 2013, conversely, there is no such provision under the Act of 2011 (or 2013 as claimed by the prosecution) as if the prosecution manufactured and imputed the offence into the Act and the trial Court without verification, proceeded to convict the Appellant without the existence of the offence.
The Appellant submitted that count 5 was brought under Section 427 of the Criminal Code Act, 2004 for the offence of receiving stolen property and the Act stated 3 ingredients but from the evidence led at the trial Court, none of the ingredient of the stolen property was proved by the prosecution. It was the contention of the Appellant that he is an illiterate, he cannot read and write in English Language and had no means to determine from the documents given to him by the said Monday that he is not the owner of the vehicle, that he merely assisted Monday in good faith to direct him to the 2nd Defendant, whom he knows as a car dealer. Continuing, the Appellant submitted that he did not know the said Monday as a criminal, he worked for him as an Electrician and they never met again until the 4th of day, December, 2016 when he approached him with information that he has a vehicle for sale.
Furthermore, the Appellant submits that the judgment of the trial Court shows that the conviction of the Appellant was founded on the purported confessional statement of the Appellant and the prosecution failed to prove that the Appellant is aware that Suzuki XL7 Jeep is a proceed of crime, and also from the evidence led at the trial Court, none showed that the prosecution proved its case beyond reasonable doubt. The Appellant urge the Court to decide issue four in favour of the Appellant and finally allow the appeal.
RESPONDENT’S SUBMISSION
ISSUE ONE
The Respondent submits that it is settled, that a Court can convict an accused person on the confessional statement he made, provided same is direct, positive and unequivocal about his committal of the crime.
The Respondent relied on JAMES CHIOKWE V. THE STATE (2012) LPELR-19716 (SC); YESUFU V. THE STATE (1976) 6 SC 163 and OKWGBU V. THE STATE (1992) 4 SCNJ 81 AT 110. The Respondent also relied on AGBOOLA V. STATE (2014) 9 NCC 382 to submit that it is trite law that a man may be convicted on his own confession alone and if the Court is satisfied with its truth, such confessional statement alone is sufficient to ground and support a conviction without corroboration. Continuing, the Respondent submits that there is certainly no evidence stronger than a person’s own admission or confession and such a confession is admissible.
According to the Respondent, during the trial within trial PW3 told the Court below that the confession of the Appellant was obtained voluntarily after words of caution was read to him and that there was a video recording of the confession which was admitted as Exhibit D2 and tendered through PW2 who is the head of technical section of the Department of State Security Service, Makurdi. Relying on STATE V. SULEIMAN & ORS (2018) LPELR-45636(CA), OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) 360 and ABIODUN V. STATE (2013) 9 (PT. 1358) 138, the Respondent submits that findings of facts made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanour and an Appellate Court should not upset such findings.
The Respondent contends that the Appellant did not appeal against the ruling of the trial Court in the trial within trial and it is settled that where there is no appeal against any specific findings of facts made by the trial Court, the finding remains unassailable and is binding on the parties. The Respondent referred the Court to AMELE V. SOKOTO LOCAL GOVERNMENT (2012) 5 NWLR (PT. 1292) 181, UWAZURIKE V. NWACHUKWU (2013) 3 NWLR (PT. 1342) 503 and NWAOGU V. ATUMA (2013) 11 NWLR (PT. 1346) 117. The Respondent further contend that it is the duty of the trial Court to evaluate all material evidence before it and once a trial Court has applied the established principles of law in assessment or evaluation of evidence adduced before the Court, an Appellate Court would have no viable justification to interfere with the decisions notwithstanding the style adopted in the procedure for the evaluation. The Respondent cited OGIDI V. STATE (2014) LPELR-23535(CA) and BABALOLA BORISHADE V. FEDERAL REPUBLIC OF NIGERIA (2012) 18 NWLR (PT. 1332) 347.
Furthermore, the Respondent submits that the trial Court evaluated the evidence adduced in trial within trial which led to the admission of Exhibit D and urge the Court to resolve issue one in favour of the Respondent.
ISSUE TWO
Arguing this issue, the Respondent submits that the prosecution proved before the lower Court that the offence of hostage taking was committed against PW1 and that the proceeds of such terrorism offence were associated with the Appellant. The Respondent reproduced Count III, IV and V to submit that the Appellant is only charged for his illegal involvement and dealings with the proceeds of a terrorism activity and his refusal to disclose information that could lead to the apprehension of a terrorist. The Respondent contends that the defence of locus criminis raised by the Appellant cannot avail him because the prosecution did not place him at the crime scene but he was charged for the role he played in disposing off the car stolen, therefore, it is misleading for the Appellant to claim that the he cannot be linked to the locus criminis. The Respondent further contend that the prosecution through the witnesses called in the trial including the kidnap victim who testified as PW1, the crime of hostage taking was well established and it was also established that the Suzuki XL7 was taken away from the home of the Tor-Agbidye and the car papers found in the possession of the Appellant were tendered in evidence which also corroborate this fact. The Respondent submitted that the chain of events started in the home of the Tor-Agbidye with the kidnap of PW1 that ended with the arrest of the Appellant by the DSS and the prosecution witnesses was consistent as to the place of the kidnap. The Respondent urge the Court to resolve issue two in favour of the Respondent.
ISSUE THREE
The Respondent relied on EMEKA V. THE STATE (2001) 14 NWLR (PT. 736) 666 to state that there are three ways of proving the guilt of an accused person in Court which must be proved by a combination of any two or all of the above means of proof. The Respondent submits that the Appellant made a voluntary confessional statement stating that he knows Monday through a friend (Jeffery) after he (the Appellant) complained to Jeffery that he is in need of job, then Jeffery introduced the Appellant to Monday, later on the Appellant and Monday started communicating through phone till the time Monday called him to collect the vehicle and based on this fact the trial Judge gave a ruling admitting the said confessional statement as Exhibit D after a trial within trial was conducted.
Relying on IKEMSON V. STATE (1989) 3 NWLR (PT. 110) 455, the Respondent submitted that it is trite law that before the confessional statement of the Defendant can be admitted in evidence it must be voluntary, direct, positive and unequivocal, therefore, it is based on the voluntariness, cogent, direct and unequivocal evidence that the confessional statement of the Appellant was admitted. The Respondent further relied on ISAH V. THE STATE (2007) NWLR (PT. 1049) 582 and AMOSHIMA V. THE STATE (2009) 4 NCC 296. The Respondent argued that Exhibit D2 which is a Video Compact Disk (VCD) played in Court revealed the involvement of the Appellant in the case, the testimony of PW2 and Exhibits A1, A2, A3 and Exhibit B which are relevant documents of the vehicle stolen all established concrete facts materially relevant and consistent with Exhibit D and therefore it corroborates the confessional statement of the Appellant. The Respondent submits that the trial Court relied on MOHAMMED & ANOR V. STATE (2007) 4 SC (PT. 1) 181 to submit that it can conveniently convict the 1st Defendant solely on the confessional Statement he made and the trial Court also relied on Exhibit E2 in corroborating the confessional statement of the Appellant.
Furthermore, the Respondent submits that it has discharged the burden of proof for offences for which the Appellant was charged under the Terrorism (Prevention)(Amendment) Act, 2013 and the Criminal Code Act Cap 38 Laws of the Federation of Nigeria, 2004 against the Appellant beyond reasonable doubt.
The Respondent urge the Court to resolve this issue in favour of the Respondent, dismiss the appeal and affirm the judgment of the trial Court.
APPELLANT’S REPLY
The Appellant submits that the Respondent did not file any Notice of Cross-Appeal upon which its issues for determination are predicated, that is, the issues raised for determination by the Respondent are not tied to any of the Appellant’s grounds of appeal and it is trite that any issue raised for determination which is not tied to any ground of appeal is incompetent and goes to no issue. The Appellant referred the Court to the case of CHIEF AJAYI V. TOTAL NIG. PLC (2013) 6-7S.C (PT. 1) 8, EYO ETA & ANOR V. DAZIE (2013) 2-3 S.C. (PT. III) 115 and YISI NIG. LTD V. TRADE BANK PLC (2013) 2 S.C. (PT. 1) 81 to argue that having not satisfied the necessary requirement, it is therefore incompetent and taken that the Respondent has no valid response to the Appellant’s Brief, therefore, the Appellant urge the Court to decide this appeal based on the Appellant’s brief alone.
The Appellant contends that the Respondent’s argument centers on the value of Exhibit “D” rather than focusing on whether Exhibit D satisfied the statutory requirement of Sections 28 and 29 of the Evidence Act, 2011 (as amended) and Section 15(4) and 17(2) of the Administration of Criminal Justice Act, 2015. The Appellant submits that the procurement of Exhibit D was contrary to Section 29(2) of the Evidence Act, 2011, therefore, it has no evidential value and inadmissible. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Secondly, the Appellant contended that the argument of the Respondent on failure of the Appellant to appeal the ruling of the trial Court on trial within trial is misconceived, because the fact that the Appellant did not appeal against the ruling of the trial Court on trial within trial does not preclude him from urging the Court to expunge Exhibit D which was wrongly admitted in evidence by the trial Court.
Furthermore, the Appellant submits that the cases of EMEKA V. STATE (2001) 14 NWLR (PT.736) 666 and IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455 cited by the Respondent are in complete variance with the instant case and therefore inapplicable. The Appellant urge the Court to discountenance the cases relied upon and argument thereof and allow the appeal.
RESOLUTION
After a careful consideration of the Notice of Appeal, the Record of Appeal and the Briefs filed by Counsel for the parties on both sides, the Court is inclined to adopt the issues donated by the Appellant for resolution in this appeal. This will allow the Court consider all areas of complaint that the Appellant has with the judgment of the lower Court.
It is trite that the burden of proof in a criminal case is static and on the prosecution and the standard of proof is beyond reasonable doubt, see the case of ANKPEGHER V. STATE (2018) LPELR-43906(SC) wherein the apex Court held thusly:
“There is no doubt that in criminal proceedings the onus of proof lies on the prosecution throughout the trial and does not shift. In other words, there is no burden on the accused person to prove his innocence. It is also trite that the standard of proof in criminal proceedings is proof beyond reasonable doubt but not proof beyond the shadow of a doubt. See: Section 135 of the Evidence Act, 2011; Ikpo vs. The State (2016) 2-3 SC (Pt. III) 88; Oseni vs. The State (2012) 5 NWLR (Pt.1293) 351 @ 388 F-G; Woolmington Vs D.P.P (1935) AC 462. As rightly stated in the lead judgment, the evidence adduced by the prosecution must be so strong as to leave only a remote possibility in favour of the accused. See: Miller Vs Minister of Pensions (1947) 2 ER 372; Bakare Vs The State (1987) 1 NWLR (Pt. 52) 579.” Per KEKERE-EKUN, J.S.C.
It is also beyond argument that the prosecution can achieve that in three different methods, they are through a confessional statement, circumstantial evidence and eye witness account as crystallized by the apex Court in the case of AKEEM V. STATE (2017) LPELR-42465(SC) and STATE V. YAHAYA (2019) LPELR-47611(SC) wherein the apex held thusly:
“It is a well-established principle of criminal law that in all criminal cases, the onus of proving that any person committed a crime or wrongful act squarely lies on the prosecution generally, except of course in some special cases or circumstance which do not apply to the instant case. The burden of proof does not shift and the standard of proof is certainly proof beyond reasonable doubt. See Ogundiya v The State (1991)3 NWLR (pt.181)519. To establish the burden of proof as required by law, the prosecution can adopt any of the three methods set out hereunder:- (a) Through evidence of eye witness who witnessed the commission of the offence, or (b) Through voluntary confessional statement of the accused person or persons; or (c) By circumstantial evidence. See Akeem Agboola v The State (2013) LPELR 20652.” Per SANUSI, J.S.C.
The prosecution can achieve that by a combination of any of the three or by a single method. There is therefore no law limiting the prosecution to the use of a single method of proving the commission of the crime alleged. The counts upon which the trial Judge convicted the Appellant were reproduced earlier in this judgment, they are counts 3, 4 and 5. Exhibits were tendered in the course of trial and one of such was Exhibits D and D2 which are the confessional statement of the Appellant and the video recording of how the statement was made. This forms the fulcrum of the arguments under issue one. The Appellant’s Counsel admits that a confessional statement can ground a conviction where properly made and admitted. In this case, the Respondent relied heavily on the confessional statement of the Appellant recorded during investigations.
A confession generally is an admission by a person accused with the commission of an offence. The Evidence Act, Section 28 defined a confession as follows:
“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 also the following cases: NKIE V. FRN (2014) LPELR-22877(SC), FRN V. IWEKA (2011) LPELR-9350(SC), ADEBAYO V. STATE (2014) LPELR-2988(SC) and DAROPALE V. STATE (2013) LPELR-20676(CA).
The contention of the Appellant is that the confessional statement (Exhibit D) made by the Appellant did not qualify to be given the required value because conditions precedent was not satisfied, principally that it was not voluntarily made and therefore contrary to the provisions of Section 29(2) (b) which provides thusly:
“(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained-
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.”
This does not detract from the settled mode of proving the voluntariness of a confessional statement, the burden which is on the Respondent as prosecution, see OGUNYE & ORS V. STATE (1999) LPELR-2356(SC) wherein the apex Court held thus:
“…The position will however be different where the admissibility of a statement is challenged on the ground that it was not made voluntarily …it will be incumbent on the trial Court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within a trial. See Joshua Adekanbi v. AG Western Nigeria (1966) 1 All NLR 47, Paul Ashake v. The State (1968) 2 All NLR 198, Ogoala v. The State (1991) 2 NWLR (Pt.175) 509, R v. Omokaro 7 WACA 146.” Per IGUH, J.S.C.
The Appellant contended that the statement was made by PW3 and he merely signed after being tortured and shot on the leg. He was therefore tortured into making the statement. The allegation was made before the trial Judge and trial within trial was duly conducted wherein the video recording of the interview session conducted at the DSS office was tendered and admitted without any objection as Exhibits D1 and D2 for the certificate of compliance and disc respectively. The trial Judge found that the statement was voluntarily made, see page 140 of the record of appeal.
Section 29 of the Evidence Act provides the protocol to be observed in dealing with a confessional statement where the Defendant alleges it was not voluntarily made and the trial Judge who heard and observed the witnesses in the box ruled to say that Exhibit D was voluntarily made. Ordinarily, the proceedings of a trial within trial cannot be allowed into the proceedings once ruled upon. Here, there was no appeal against the ruling in trial within trial admitting the statement and marking it as confessional, which is an appealable decision. The Appellant cannot therefore open same up for review. However, in the interest of justice, the issues raised against the said Exhibit D can be looked into.
Looking at the record, I find the evidence of the Appellant concerning the said Exhibit D falling short of the required standard after the prosecution had testified on how the statement was taken, he also said the 2nd Defendant told him how he was tortured into making the statement and the 2nd Defendant also told the Court below that the Appellant told him of the torture meted to him into making a confessional statement. That is obvious contradiction because the Appellant made his statement first and there was no how the 2nd Defendant could have shown him wounds to lead him into making the confessional statement. Secondly, the Appellant denied the content of the confessional statement which means he did not make the statement and if he did not make the statement then the question of it not made voluntarily cannot come up for consideration because in alleging a statement was not voluntarily made, the Appellant is accepting the content of the statement but for the manner it was procured through influence and torture. The burden of proving it was voluntarily made rests with the Respondent and it was discharged. The Evidence Act places the responsibility of making sure that the allegation of torture is looked into by the trial Court, it conducted a trial within trial and resolved the issue where it found that it was voluntarily made, I have nothing on record to find otherwise.
The second limb of issue one is the contention that the statement was not recorded in the presence of a Legal Practitioner as required by Sections 15(2) and 17(2) of the Administration of Criminal Justice Act and relied on CHARLES V. FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (Pt. 1635) 50 and NWAKUCHE JERRY NNAJIOFOR V. FEDERAL REPUBLIC OF NIGERIA (2019) 2 NWLR (Pt. 1655) 157 to argue in support. However, more recent decisions of the Court point otherwise, the use of the word MAY gives the investigating agency discretion and Evidence as a legislative item is covered by a substantive law, the Evidence Act 2011, it gives no room to be subjugated to a procedural law like the ACJA, I had cause to say so in the case of FRN V MAMU (2020) LPELR-50293(CA) thusly:
“Whether the provisions of the Administration of Criminal Justice Act can be used to discard a confessional statement duly admitted after a trial within trial; when to object to the admissibility of a confessional statement “…The Appellant also relied on JOHN V STATE (2016) 11 NWLR (Pt. 1523) 191 at 207 wherein the apex Court held that it is enough that the essential elements of the offence are in the statement admitting the commission of the offence. The statements admitted by the Court were admitted without any objection but were rejected on several grounds as highlighted in the Judgment appealed against. The trial Judge stated that the statements were made contrary to Section 14(2) and 17(1) and (2) of the Administration of Criminal Justice Act, they provide thus:
“14 (2): A person who has the custody of an arrested suspect shall give the suspect reasonable facilities for obtaining legal advice, access to communication for taking steps to furnish bail, and otherwise making arrangements for his defence or release.
15(4): where a suspect who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of the statement shall be in writing and may be recorded electronically on a retrievable video compact disc or such audio visual means.”
17(1): where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement.
(2): Such statement may be taken in the presence of a legal practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an officer of Civil Society Organization or Justice of the Peace or any other person of his choice. Provided that the legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.”
The Court below relied on some decisions of the Court in AKAEZE CHARLES V FRN delivered on the 19/3/2018 in Appeal No. CA/L/727A/2017; FABIAN MATHEW V STATE (unreported) decision in Appeal No. CA/L/1126/2011 delivered on the 11/12/15 and JOSEPH ZHIYA V THE PEOPLE OF LAGOS (2016) LPLER-40562(CA). The Court below adopted the definition of ‘MAY’ in the decision of AKAEZE V FRN (supra) to say it is mandatory that a statement of a suspect must be recorded in the presence of a legal practitioner failing which it must be rejected. Another reason given was that evidence of the Respondent in the witness box alleged that the statements were not voluntarily made. There is also the mention of Section 15(4) of the ACJA relied upon by the Court below. The import of the statutory use of the words ‘Shall’ and ‘May’ in the provisions reproduced above was given consideration in the case of OGUNTOYINBO V FRN (2018) LPELR-45218(CA) per OWOADE, JCA thus:
“The other complaint by the Appellant on Issue One has to do with the relationship and effect of some of the provisions of the Administration of Criminal Justice Act (ACJA) vis-a-vis the provisions of the Evidence Act 2011 on the admissibility of confessional statements. This, in my humble opinion, includes the complaint of the learned Senior Counsel for the Appellant on the views of the trial Judge contained on Page 180 of the printed Record that he could not see how the non-presence of the Appellant’s lawyers taint the voluntariness of the statements he made. The learned trial Judge said in full at Page 180 of the Record that: “Even though I also prefer as more credible, the more detailed testimony of the TWT – DW1 as against those of the prosecution witnesses, that the Defendant’s legal representatives were not allowed to be present with him in the process of his writing his statements. I however fail to see, from the evidence on record, how the non-presence of his lawyers tainted the voluntariness of the statements he made.” Another way of putting the above statement made by the learned trial Judge at Page 180 of the Record is that even if he believed the testimony of TWT – DW1 that his lawyers were not allowed to be with him while he made the statements, this fact has nothing to do with the voluntariness and perhaps also admissibility of the statement which is governed by the Provisions of Sections 28 and 29 of the Evidence Act and not also the Provision of Section 17(2) of the ACJA as suggested by the learned Senior Counsel for the Appellant. In the lines that followed the above statement of the learned trial Judge at Page 180 of the Record, he categorically explained: “that the Provision of Section 17(2) of ACJA canvassed by the learned Senior Counsel for the Defendant, that requires a Suspect’s Statement be taken in the presence of a Legal Practitioner of his choice, is also not a mandatory provision contrary to the contention of the learned Senior Counsel. My view is that the Provision is permissive and could be dispensed with depending on the exigencies of each particular case.” On the above, I perfectly agree with the learned trial Judge not only on the permissiveness of the Provision of Section 17(2) but also the portion of Section 15(4) which says the taking of the statement which shall be in writing “may be recorded electronically on a retrievable video compact disc or such other audio visual means.” I think to his credit, the draftsman of the ACJA has carefully and deliberately use the words “shall” and “may” sometimes in the same text to pointedly make a distinction between statements/sentences that are mandatory and those that are permissive. The ACJA being a teleological enterprise, its draftsman dexterously mixes the use of the command word “shall” and the permissive word “may” for textual accomplishment. This is to my mind, recognition of the fact that the ACJA itself is largely a legislation in the realm of the ideal, containing provisions that are for now clearly enforceable and sometimes provisions that could only hope for enforceability in the nearest future. All however, to fulfill its grand purpose “to ensure that the system of administration of Justice in Nigeria promotes efficient management of Criminal Justice institutions, speedy dispensation of Justice, protection of the society from crime and protection of the rights and interests of the suspect, the Defendant and the victim.” In any event, the traditional commonly repeated rule is that “shall” is mandatory and “May” is permissive. Mandatory words impose a duty; permissive words grant discretion. See: NIGERIAN NAVY VS. LABINJO (2012) 17 NWLR (PT. 1328) 56 (SC). The above analysis is different and distinct from the idea that the Evidence Act being a specific Act on evidence including trials within trials and admissibility takes precedence over the ACJA in matters of admissibility of evidence.” Per OWOADE, J.C.A.
It is trite that the handling of evidence in any adjudication is primarily covered by the Evidence Act, any other legislation which makes provision for issues touching on evidence must take its subsidiary position to the Evidence Act. The ACJA is principally a procedural law and cannot therefore over ride the Evidence Act. The Respondent contends that his statement was not recorded in the presence of a legal practitioner, this objection amongst others grounded on the ACJA all relate to confessional statements and the mischief it sought to cure was to ensure that law enforcement agents do not extract a confession by inducement, promise, force or such unlawful means. Where there is no confessional statement, the provisions cannot apply.
When a person desires to raise an objection to the admissibility of a confessional statement, the time to do so is at the point of tendering the statement and not thereafter. See ALO V STATE (2015) LPELR-24404(SC) wherein the apex Court held as follows:
“It has been long settled that the proper time to raise an objection to the voluntariness of a confessional statement is at the point when it is to be tendered in evidence. In the case of Nwachukwu v. State (2004) 17 NWLR (Pt. 902) p.262 at 273-290 it was held that: “A trial within trial is necessary only where a confessional statement is effectively challenged and not where all the opportunities at trial for such denial were never utilized. Thus, only where an issue arises as to whether a confession was made voluntarily should the exceptional procedure of holding a trial within trial be adopted by the Court…” The foregoing decision implies that objection to the voluntariness of a confessional statement must be raised timeously and not belated for purpose of conducting a possible trial within trial. See also the case of: Okaroh v. State (1988) 5 NWLR (Pt. 81) p. 214 and Queen v. Eguabor (1962) 1 SC NLR 409.” Per OGUNBIYI, J.S.C.
It is settled that an objection on the ground of involuntariness of a confessional can only be made at the point the Confessional Statement is sought to be tendered whether during the case of the prosecution or defence when the accused is in the box under cross examination. The voluntariness of a statement must be tested through a trial within trial and not by any other means. Trial within trial is a trial on its own right strictly to resolve the issue of voluntariness of a Confessional Statement. The accused must at the earliest opportunity disclose his line of challenge to the admissibility of a Confessional Statement. Failure to object to the admissibility of a Confessional Statement means it was voluntarily made. There was no objection in this case.
It is therefore illogical to contend that failure to record the statement in the presence of a legal practitioner or failure to record same will on those grounds alone throw away a Confessional Statement which has passed through a trial within trial and has been found to have been voluntarily made in a ruling. To use the provisions of the ACJA to discard a confessional statement duly admitted after a trial within trial would mean using the law to set aside a decision of the Court other than by an appeal.” Per NIMPAR, J.C.A.
See also the judgment of my learned brother, BARKA, JCA in the case of IWAH V STATE (2020) LPELR-51374(CA) where it held thusly:
“Learned counsel relied on the decisions of this Court, Lagos Division in the cases of Zhiya vs. The people of Lagos State (supra), Agbanimu vs. FRN (supra) and Awelle vs. People of Lagos State (supra) per Abubakar JCA, while interpreting similar provisions to argue that the provisions being mandatory in nature, stipulating a procedure or mode of performing an act any failure, refusal or neglect to abide there with renders anything done a nullity. I do not with respect agree with the learned counsel. In examining a similar proviso in the case of AVM Olutayo Oguntoyinbo vs. FRN (2018) LPELR-45218 (CA), per Owoade JCA, to which I concurred, we held the view that the non-compliance with the procedural provisions of Section 17(2) of the ACJA, which is in pari material with Section 7(2) of the Cross River State Law though desirable, the fact that it has not been complied with is of no consequence on the premise as rightly stated in the case afore mentioned:
“The Evidence Act being a specific Act on evidence including trials within trials and admissibility takes precedence over the ACJA, or in our own case, the Criminal Procedure Law in matters of admissibility of evidence.” This Court in the recent decision of Nneoyi Itam Enang vs. The State (unreported) Appeal No. CA/C/231c/2018 delivered on the 18th day of October, 2019 per Shuaibu JCA, specifically attending to a question quite similar to the one under consideration, found comfort in applying the decision of Owoade JCA, where he said that:
“I have painstakingly examined the decisions of this Court in Joseph Zhiya vs. The People of Lagos State (2016) LPELR-40562, Charles vs. FRN (2018) 13 NWLR (pt. 1635) 50 and Nnajiofor vs. FRN (2019) 2 NWLR (pt. 1655) 157 with regards to failure to record confessional statement in the presence of the accused legal practitioner… in any event the above decisions did not as well take cognizance of the fact that the Evidence Act is listed as Item 23 of the exclusive legislative list of the Constitution as amended. Also the Evidence Act being a specific Act on evidence including admissibility takes precedence over the ACJA in matters of admissibility”.
In the context of the case at hand, my humble view is that the Evidence Act covers the field with respect to the area of admissibility, and any other procedural legislation otherwise in conformity of the same, of no moment.” Per BARKA, J.C.A.
On the basis of the above, non-compliance with the provisions of the ACJA cannot discard the confessional statement duly admitted.
This line of argument fails and the authority of INAKOJU V. ADELEKE (supra) relied is not applicable. The said Exhibit D was tested according to the procedure laid down by the apex Court in a plethora of cases, one of which is OFORDIKE V. STATE (2019) LPELR-46411 (SC) wherein the apex Court held thus:
“… The question of involuntariness, often arises where an accused person alleges that he was subjected to torture in the making of a confessional statement. In this sort of situation, the trial Court is under obligation to conduct a trial-within-trial (also known as voire dire or mini trial) to determine the veracity or otherwise of the claim. … In other words, where an accused person denies his confessional statement, the trial Court has no obligation to conduct a trial within trial, see Abdullahi v State [2013] 11 NWLR (pt 1366) 435. This is also the only process of testing the admissibility of a confession where it is challenged on the grounds of threat, undue influence, duress etc, Nsofor v. State [2004] 18 NWLR (pt 905) 292; Auta v State [1975] 4 SC 125…” Per NWEZE, J.S.C.
The Appellant further argued that Exhibit D is documentary hearsay because of what the investigator (PW3) told the Court below concerning the Exhibit. Hearsay was defined as follows:-
“Section 37 of the Evidence Act 2011 defines Hearsay to mean a statement. (a) Oral or written made otherwise than by a witness in a proceeding, or (b) contained or recorded in a book, document or any record whatever proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of providing the truth of the matter stated in it.”
“Black’s Law Dictionary, 9th Edition at page 790, defines hearsay as follows:- “Traditionally, testimony that is given by a witness who relates not what he or she knows personally but what others have said and that is therefore dependent on the credibility of someone other than the witness, such testimony is generally inadmissible under the rules of evidence.”
The rule against hearsay does not apply to the evidence of an investigator, see ANYASODOR V. STATE (2018) LPELR-43720(SC) wherein the apex Court held thus:
“On the appellant’s counsel’s submission that the testimony of PW3 was hearsay, I am also at one with the lower Court’s conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract with in the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade vs. The State (2009) All FWLR (pt. 469) (SC) 423.” Per SANUSI, J.S.C.
As long as the basis for the argument by the Appellant is founded or based on the evidence of an investigator, it will fail, the basis upon which to consider the statement as documentary hearsay must arise from within the statement itself and not from an investigator’s evidence. More so, the Appellant also denied the content of Exhibit D when he said he merely signed it and he did not make the statement. The two positions are inconsistent when considered in the context of the arguments proffered by learned Counsel for the Appellant.
In further argument, the Appellant’s Counsel submitted that the Appellant stated that he only understood Idoma while the statement, Exhibit D was recorded in English, on this basis he contended that it was a breach of fair hearing. The statement was recorded by PW3 who told the Court below the circumstances of his writing the statement for the Appellant. In his evidence in chief, he told the Court below that he communicated to the Appellant in English and he responded in English. The Appellant alleged that there was an earlier statement in Idoma which turned out to be false. If that were the case, the contention of the Appellant would have weighed heavier but in all that was done during the investigation, it was done in English not Idoma except during trial when the Appellant chose Idoma language as a language he understands. Page 110 of the record of appeal discloses answers to cross examination where the said PW3 affirmed before the trial Court that the Appellant spoke to him in English. The fact that one cannot write English does not mean he cannot understand English. And if it’s the choice to opt for Idoma language during trial, that is allowed and is his constitutional right but cannot mean that if he previously presented himself as one who understood English, the later choice as constitutionally allowed will nullify previous transactions or statements made in English. Understanding is different from being able to read and write in the said language. Most of people speak their native languages fluently without the ability to write and read same. The alleged issue of breach of fair hearing is not made out and is discountenanced.
There is no question about the competence of the Court to expunge inadmissible evidence that was wrongly admitted, the said Exhibit D went through the process to be admitted and it cannot be said to be inadmissible evidence that should be expunged at this stage and the trial Judge was right to also refuse to expunge same after his finding that its admission satisfied the conditions set out in the case of COP V. ALOZIE (2017) LPELR 41983 (SC).
The Appellant’s wild allegations made to prove that he was tortured were not believed by the Court below, the gun wound stoutly mentioned was not shown to the trial Judge nor a medical report tendered. The trial Judge evaluated the evidence and arrived a final decision. I find no reason to disbelieve him or disturb his findings.
Furthermore, the testimony of PW2 and Exhibits A1, A2, A3 and Exhibit B which are relevant documents of the vehicle stolen all established concrete facts materially relevant and consistent with Exhibit D and therefore the statement was duly corroborate. The trial Court relied on MOHAMMED & ANOR V. STATE (2007) 4 SC (PT. 1) 181 to find that it can conveniently convict the Appellant solely on the confessional Statement he made and the trial Court also relied on Exhibit D2 in corroborating the confessional statement of the Appellant.
It is trite that once a decision is taken on the admissibility of the confessional statement in a ruling, that settles the matter except on appeal. Issues raised and resolved in the trial within trial remains settled and cannot be imported into the main trial for further consideration. The fact that the trial Judge admitted the said Exhibit D as a confessional statement, that is settled. Unless the record discloses clear breach of procedure and statutory provisions, the Court cannot overturn the findings of the trial Court without basis. Issue one is resolved against the Appellant.
Under issue two, the Appellant sought to know if Exhibit E can be used to impeach the credibility of PW3. The said Exhibit E is an affidavit sworn by the said PW3 when the matter was under investigation and in reaction to an application for production of the Appellant wherein he stated that the Appellant allegedly belonged to a gang of armed robbers and kidnappers and releasing him will jeopardize investigations because other suspects were still at large. Paragraphs 3, 4 and 5 of the affidavit (Exhibit E) says:
“3. That by virtue of the office I occupy, I am conversant with the facts of this case being that the applicant was arrested in connection to series of armed robberies, kidnapping and terrorism related offences.
4. That the other members of the Applicant’s group are still at large.
5. That the safety of persons and victims is at risk had the applicant not being arrested.”
The fact remains that the Appellant was arrested following a report of kidnapping and armed robbery of the car that gave rise to the arraignment. It is quite clear that the facts were stated in the course of investigations and before the Appellant was arraigned. How that could impugn the credibility of the witness is implausible and unlikely. The fact remains that the said witness is an investigator and he relies on findings made in the course of investigation and what other people tell him in the course of investigations. They are not his personal opinions nor conclusions and in any case, it was still subject to the final opinion of the prosecuting agency after vetting. The trial Judge also rightly rejected the contention of the Appellant.
The Appellant argued that the content of the Exhibit E contradicts his evidence in chief and therefore the entire evidence in chief should be discountenanced because of contradiction and the effect of contradiction to the evidence of a party can be seen in the cases of IBRAHIM V. STATE (1991) LPELR-1404(SC), STATE V. MUSA (2019) LPELR-47541 (SC) and DAGAYYA V. STATE (2006) LPELR-912(SC). The contradiction is with regards to evidence in the course of trial and not an investigating officer who is allowed to work on hearsay.
The presumed contradictory evidence is the said Exhibit E tendered by the Appellant’s counsel during cross examination to discredit the witness and it is not evidence presented in the prosecution of the case. It cannot qualify as contradictory evidence. The said Exhibit is not part of the case for the prosecution, not being part of the evidence of the witness on record, at best, the Appellant could use it to challenge the credibility of the witness but since it is not part of the case for the prosecution, it cannot fall under contradictory evidence so as to cause the evidence of PW3 to be discountenanced.
Furthermore, as at the time relevant to the investigation, can the facts deposed to be conclusively said to be false? An investigator works with information gathered from various sources and that is always before the filtering stage where a prima facie case can be said to have been established. The witness in answer to questions put to him by the Appellant’s Counsel told the Court he did not lie. If those facts were stated during trial then, the argument of the Appellant may deserve some credit but not when it was not the evidence of the witness before the Court during trial.
It is trite that an investigator can tell the Court what he was told, see IBRAHIM KAMILA V. THE STATE (2018) LPELR-43603(SC).
I find that there was no contradiction in the case of the Respondent so as to cause a doubt in the case of the prosecution and to make it to fail. The cases of AFOLAHAN V. STATE (supra) and NWALU V. STATE (supra) relied upon by the Appellant are not relevant in this situation. I resolve issue two against the Appellant.
The Appellant under issue three sought to know if the defence of locus criminis was raised timeously and went on to state that defence should not be confused with the defence of alibi which is required to be raised at the earliest opportunity to allow the prosecution to investigate same. The phrase locus criminis simply means the place where the crime was committed and the Appellant tried to distinguish same with alibi.
Alibi is simply saying he was elsewhere when the crime was committed, the apex Court considered the meaning and the nature of the defence in several cases. See one of such, the case of OPEYEMI V STATE (2019) LPELR- 48764(SC) which held thus:
“The definitions of alibi in the Black’s Law Dictionary 7th Edition by Bryan A. Garner at page 72 are thus:-
(1) “A defence based on physical impossibility of Defendant’s guilt by placing the Defendant in a location other than the scene of crime at the relevant time”.
(2) “The fact or state of having been elsewhere when the offence was committed”.
The definitions stated above as guide, it is to be noted that to be used as a defence, alibi has to be raised at the earliest opportunity available to the accused with the particulars in tow as it is not the duty of the accused to prove the alibi. All the accused needs do at the investigative stage is state the alibi or where he was at the material time of the offence outside the location of the crime. Then the burden falls on the prosecution to investigate the truth or falsity of the alibi. It is not enough to put up the alibi at large and expect it to be effective as a defence without the supply of the particulars provided by the accused with which the prosecution would then carry out the burden of proving or disproving the same. See Mohammed v State (2014) SC (Pt.111) 79 at 82-83; Olatinwo v State (2013) All FWLR (Pt.685) 312 at 316; Ajayi v State (2013) All FWLR (Pt.711) 1457 at 1462; Ikono v The State (1973) 8 NSCC 582 at 363; Esangbedo v The State (1989) 20 NSCC (Pt.111) 23 at 32; Egwumi v State (2013) All FWLR (Pt.678) 824 at 827.” Per PETER-ODILI, J.S.C.
The same argument was made by the Appellant before the trial Court and here, again it is alleged that the Respondent failed to link the Appellant to the place or scene of crime and therefore failed to prove the allegation beyond reasonable doubt, therefore the Appellant should be discharged. The Appellant was convicted for the offences name in Counts 3, 4 and 5 of the charge sheet which were reproduced earlier in this judgment. Count three talks about withholding of information and this has nothing to do with the place of crime because the information moves around with the Appellant and the place he received such information is not relevant to the fact of withholding which is the offence. The alleged defence of locus criminis is not relevant here. Count four alleges receipt, concealment and conversion of the car- a Suzuki jeep, the car used for the kidnap in question. The accusation here is not the kidnapping that had taken place before the Appellant came into the picture but that he received the car, conceal it and converted same. The allegation did not mention where the said acts took place to warrant the Appellant raising the issue of locus criminis. Count five on its part specifically named and stated that the Appellant at Otukpo received the stolen car which was illegally obtained, the car belonged to Mr. Achia Tor-Agbidye which was taken under gun point. Here too, the allegation only named Otukpo and that is where the Appellant resides and was arrested. The 3 counts of the charge upon which the Appellant was convicted cannot be said to have relevance to locus criminis and in any case, it is settled principle of criminal law that even where the different acts or elements of an offence take place across state boundaries, the actors can be tried in any of the States where part of the crime was committed, see the case of PATRICK NJOVENS V. THE STATE (1973) 5 SC 17.
The argument of the Appellant would have made sense if the elements of the crime alleged against him extended beyond Benue State. The defence of locus criminis would only be relevant where the complete offence was committed outside the jurisdiction of the Court and the charge alleged otherwise. The evidence led did not also go against the facts alleged against the Appellant in the charge. Furthermore, going by the line of argument of learned Counsel, it is simply within the concept of the defence of alibi as found by the trial Judge, see page 330 of the record of appeal.
If the Appellant suggests as argued that it is a defence, then it should be established by the Appellant, it could have been something else to suggest alibi at defence stage when the law requires the Appellant to raise the defence of alibi early enough to allow the investigating agency to investigate, both were not done as required and the disposition of the Appellant fell squarely under the defence of alibi. The trial Judge understood the implication of the argument proffered by the Appellant and against the backdrop of the charge and the evidence presented. The Appellant argued that the charge is at variance with the evidence without identifying particular aspects of the evidence which are not in harmony with the charge. It cannot be made at large. The facts against the Appellant were facts of an accessory after the fact of kidnapping and therefore, the location of the kidnapping cannot be ascribed to him.
I agree with the Appellant that the burden of proof is upon the prosecution and the standard in a criminal case is beyond reasonable doubt and the Court below found that the burden was discharged.
Failure to be very definite about time and venue cannot defeat a charge. Offences are not committed in the presence of time keepers so as to expect that the definite time of committing an offence must be proved, if it were so, then one can simply say most crimes cannot be proved. The charge usually says “on or about” which presupposes that the date and time, if any, stated is not definite but close to when the crime was committed. Proof of exact time is not one of the elements of the offence required to be proved beyond reasonable doubt. The Court below dutifully evaluated the evidence and arrived at a finding which this Court cannot disturb without valid reasons. Issue three is resolved against the Appellant.
Continuing, the determination of this appeal, the Court shall look at issue four as distilled by the Appellant. Here, the Appellant focused on the burden of proof as settled by a long line of authorities and contended that the Respondent failed to discharge the burden placed on it by law and failed to establish a link or relationship between the Appellant and the kidnappers of PW1. Arguing further, the Appellant submitted that the trial Court failed to evaluate the evidence properly, with particular reference to the evidence of PW3 which he argued lacked probative value and should have created a doubt to be discarded. The trial Judge found that the Appellant made contact with one Monday the one who kidnapped PW1, if physical contact was made, failure to tender call logs between them cannot be fatal. Furthermore, there is no ingredient of the offences the Appellant was found guilty of that required physical contact to be proved before it can be said to have been established. It is strange that learned Counsel for the Appellant is going into arguments which have no value, because even the Appellant admitted there was communication between him and Monday and narrated how the car was arranged to be moved to Abuja and how the issue of car papers was also handled, see Exhibit D, the confessional statement. What other communication did the Appellant want established beyond what he admitted and which the trial Judge found established. When there was physical contact how then can call logs be used to prove such contact? A doubt arises where facts are not so established and there are yawning gaps in the case of the prosecution which is not the case here. The fact that the Appellant was discharged of the main offence and convicted for concealing information which was after the fact of terrorism cannot be defeated by that singular fact.
The Appellant dwelt so much on the error in naming the relevant law under which the Appellant was convicted, arguing that there is no Section 8(1) of the Terrorism (Prevention) Amendment Act, 2013 but that the Principal Act is the Terrorism (Prevention) Act, 2011. It is settled that an error in stating the correct Section and Law cannot defeat a charge, see IKPA V. STATE (2017) LPELR-42590 (SC) wherein the apex Court held thus:
“… Again, in the case of John Ojukwu v Police 5 ECSLR 245, the Supreme Court went on to hold that where an offence charged exist in the Statute book but there is an error in quoting the correct Section, the error is not taken as fatal as long as the accused has not been misled. In the case at hand, the appellant has not shown how he was misled and so the charge remained valid and the proceedings secured.” Per PETER-ODILI, J.S.C.
The Appellant’s Counsel graciously quoted the correct Section of the Law, see page 20-21 of the Appellants Brief. This confirms that there is a valid law in existence which provided for the offence under which the Appellant was convicted. That line of argument is preposterous and must be discountenanced.
The trial Judge’s reliance on Exhibit D cannot be faulted having been admitted after fulfilling all preconditions to its admissibility. It is evidence before the Court which could be relied upon by the trial Judge.
The element of prior knowledge on the part of the Appellant is a requirement of the law, however, reviewing the circumstantial evidence surrounding the involvement of the Appellant, the element of knowledge cannot be said to be absent, he admitted so in his confessional statement. The manner the relationship was with the said Monday, a very short period of being acquainted and to be trusted with the car and particulars leaves no room for doubt on the fact that there was knowledge, appellant also applied for a job and was referred to Monday who was the kidnapper and who gave him the car. The Appellant in fact was more zealous in ensuring the car got to Abuja and to no other but the 2nd Defendant who deals in stolen cars. Circumstantial evidence weighs against the Appellant. The trial Judge found that the Appellant was not a truthful witness and that has eroded the integrity of his defence and submissions. That finding was not appealed against, it is taken as established.
The Appellant has failed to persuade the Court to set aside the judgment of the trial Court. I resolve issue 4 against the Appellant.
Having resolved all issues against the Appellant, the appeal therefore lacks merit and must fail. The judgment of the trial Court delivered by HON. JUSTICE HASSAN DIKKO on the 12th June, 2018 is hereby affirmed.
IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of reading the Lead Judgment of my Learned Brother, YARGATA B. NIMPAR JCA, before now, and I am in total agreement with his reasoning and conclusion on all the issues distilled for determination that this Appeal lacks merit and same is accordingly dismissed.
My Lord had comprehensively dealt with the issue of admissibility of Exhibit ‘D’ which is the extra-judicial Confessional Statement of the Accused/Appellant that had been tested under the crucible of trial-within-trial in arriving at the decision that the said Exhibit ‘D’ was voluntarily made. On the non-compliance with the provisions of Section 17(2) of Administration of Criminal Justice Act which purportedly rendered the Appellant’s Confessional Statement inadmissible because the said Confessional Statement was not recorded before a Legal Practitioner of his choice, I am also of the view that since Exhibit ‘D1’ and ‘D2’ which were the video recording of Appellant’s interview session conducted by the DSS and the Certificate of Compliance were tendered without objection, the authorities of CHARLES Vs. FEDERAL REPUBLIC OF NIGERIA (2018) 13 NWLR (PT.1635) 50 and K. J. NNAJIOFOR vs. FRN (2019) 2 NWLR (PT.1655) 157 cited by the Learned Counsel to the Appellant are inapplicable to the facts and circumstances of this case. Rather, the dicta of my Noble Lords OWOADE, JCA, in OGUNTOYINBO vs. FRN (2018) LPELR – 45218; NIMPAR, JCA IN FRN VS. MAMU (2020) LPELR – 50293 (CA); BARKA, JCA in IWAH vs. THE STATE (2020) LPELR – 51374 (CA) and SUAIBU, JCA in CA/C/231C/2018 – NNOYI ITAM ENANG VS STATE (Unreported decision of this Court, Calabar Division) which were cited by my Lord in the Lead Judgment have eruditely analysed and settled the position of the law on the interpretation of the provisions of Sections 15 and 17 of the Administration of Criminal Justice Act and Administration of Criminal Justice Law as far as the non-compliance particularly with Section 17(2) of the above Act is concerned. I adopt my Lord’s position as mine in concurring with the Lead Judgment that Appellant’s Confessional Statement was rightly admitted and reliable to ground his conviction by the Learned Trial Judge.
Apart from the above position taken by my Learned Brother in the Lead Judgment, Exhibits D-D2 had complied with the principles or conditions precedent guiding the admissibility of Confessional Statements as laid down in the English case of R. vs. SYKES (1913) I CR. APP. REP. 233 which is that the Court of trial must be able to answer the following questions before reliance is placed on a Confessional Statement to convict an Accused person to wit:
1. Is there anything outside it to show that it is true?
2. Is it corroborated?
3. Are the facts stated in it true as far as they can be tested?
4. Was the Accused the man who had the opportunity of committing the offence?
5. Is the confession possible?
6. Is it consistent with other facts which have been ascertained and proved?
See the celebrated case of ADESINA vs. THE STATE (2012) 14 NWLR (PT.1321) 429 at 447 – 448 PARAS. H – C; per ADEKEYE, J.S.C following DAWA vs. THE STATE (1980) 8-11 S.C. 236 and OJEGELE vs. THE STATE (1988) 1 NWLR (PT. 71) 414; AKA’AHS, J.S.C in GALADIMA vs. THE STATE (2012) NWLR (PT.1333) 610 AT 626 PARAS B- H.
From the facts and circumstances of this case, all the above enumerated conditions precedent were satisfied before the Appellant’s Confessional Statement was admitted and relied upon by the trial Court in convicting him (Appellant) for the offences with which he was charged. The law having been settled on a plethora of decided cases by the Apex Court and indeed this Court, that a confession is the best and most reliable evidence in Criminal Law for as the Legendary Judicial Icon (now of blessed memory) NIKI TOBI, J.S.C had charactesically put it in ADEBAYO vs. ATTORNEY GENERAL OF OGUN STATE (2008) 7 NWLR (PT.1085) 201 AT 221, PARAS F – G (2008) 33 NSCQR (PT. 11):
“In it, the Accused admits that he committed the offence for which he is charged. For this purpose, the Accused is the figurative horse’s mouth.
He committed the offence and confesses and admits the offence. There cannot be better evidence and so the law is that a trial judge can admit Confessional Statement, if it was made voluntarily and without any inducement, thereat or promise from any person in authority.”
As has also been long settled by decided authorities, the voluntary confession of guilt by an Accused person which is positive and sufficiently established as in this case should occupy the highest echelon of authority when it comes to proof beyond reasonable doubt. See the dicta of the Legal Sage OPUTA, J.S.C in the celebrated case of ADIO & ANOR vs. THE STATE (1986) NWLR (PT 24) 58 AT 593 – 594 and OGBUAGU, J.S.C in ADA V. THE STATE (2008) 13 NWLR (pt.1103) 149 at PARA G – H.
In the instant case, I agree with the Lead Judgment that even on the Confessional Statement of the Appellant alone, the Prosecution did prove their case beyond reasonable doubt.
As for all other issues for determination which my Lord resolved in favour of the Respondents and against the Appellant, I shall adopt all his reasonings as mine in dismissing the Appellant’s Appeal and affirming the Judgment of the Lower Court convicting and sentencing the Appellant on Counts 3, 4 and 5 of the Charge preferred against him.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the leading judgment delivered by my learned brother HON. JUSTICE YARGATA BYENCHIT NIMPAR, JCA. and I entirely agree with the reasoning and conclusion therein that this appeal lacks merit.
The facts were set out in the leading judgment and the issues raised were carefully examined and resolved. Be that as it may, I am tempted to chip in a few words by way of contribution particularly as it touches on the contention by the appellant that the confessional statement made by the appellant did not qualify to be given the required value because conditions precedent were not satisfied.
It is beyond citing of authorities to state that the burden of in a criminal trial is upon the prosecution from start to finish as it does not shift, as was stated in NASIRU V STATE (1999) LPELR-1945(SC) as follows:
“Now, it is trite that in a criminal case the burden of proof lies on the prosecution and the standard of such is proof beyond reasonable doubt. See Section 138 of the Evidence Act, Cap.112 of the Laws of the Federation of Nigeria, 1990. However, the expression “beyond reasonable doubt” does not mean beyond any shadow of doubt – see Akalezi vs The state (1993) 2 NWLR (Pt.273) 1 at P.13.” Per UWAIS, J.S.C.
The Respondent is under a duty to prove the allegation of crime beyond reasonable doubt and the import of that standard was reiterated in the above cited case, which is not beyond any shadow of doubt, but establishing the guilt of the accused person with compelling and conclusive evidence, with a high degree of compulsion which is consistent with degree of probability.
The Respondent has 3 basic ways of proving the commission of a crime as they were stated in the case of AKPAN vs. STATE (2016) LPELR- 40113(SC) thus:
“In reiteration of what is now trite to establish the culpability of an accused in proof of a crime, any one of the following means is acceptable, that is: (a) Direct evidence also known as evidence of an eye-witness or witnesses. (b) Confessional statement of the accused person. (c) Circumstantial evidence. See also Emeka vs State (2002) 32 WRN 37 or (2006) 6 SCNJ 259.”
In the case of EMMANUEL UGBOJI V. THE STATE (2017) LPELR- 43427(SC) the apex Court reiterated thus:
“It is settled law; that there are three methods for proving an offence by the prosecution in order to obtain conviction. These three methods of proof are as follows:- (a) By the testimonies of witnesses (Direct evidence) (b) Through voluntary confessional Statement of an accused person (c) Through circumstantial evidence.” Per SANUSI, JSC.
The Respondent can adopt any of the 3 methods or a combination of them in proving the commission of a crime beyond reasonable doubt.
The respondent relied on the confessional statement purportedly made by the appellant to establish the guilt of the appellant. The appellant on other hand contended that, a confessional statement purported to have been made by an accused person standing trial is not admitted as a matter of course but it must satisfy the provision of Section 28 (2) (a) and (b) of the Evidence Act, 2011.
A confessional statement is a voluntary admission or declaration by an accused person of his participation in a crime. It is an admission of guilt; it must either admit the elements of the offence or all the facts which constitute the offence. Once the Court is satisfied with the genuineness of a confession, a conviction can be based entirely on it and such conviction should not be disturbed by an appellate Court. See Afolabi vs State (2013) 6-7 S.C. (pt. II) 1 at 34; Yahaya vs. State (2001) 10 N.W.L.R (pt.721) 360; Olabode vs. State (2000) 5-6 S.C (Pt. 11)29.
When the confessional statement of an accused person sought to be tendered is objected to on the ground that the said statement was not made voluntarily, the trial Court has a duty to try the issue of whether or not the statement was voluntarily made. A trial within trial (voir dire) or a mini trial is conducted. Therein the prosecution is afforded the opportunity of marshaling evidence in support of its claim that the accused confessional statement was made voluntarily. In the said trial the defendant and his witness (if any) have an opportunity of debunking such claims and as such it is in that mini trial that the defense counsel endeavors to foreclose the admissibility of such a statement. See Adebowale vs. State (2013) 16 N.W.L.R (pt. 1379) 104 at 126; Olayinka vs. State (2007) 4 S.C (pt 1) 210 at 220; (2007) 9 N.W.L.R (pt.1040) 561.
Section 29 of the Evidence Act 2011 provides for the procedure to be followed where the defendant contends the voluntariness of the confessional statement. I have looked at the records of proceedings closely, but I find it difficult to believe that the said confessional statement ‘Exhibit D’ was not voluntarily made. The trial within trial was duly conducted and therein, the video recording of the interrogation conducted was duly tendered and admitted as Exhibits ‘D1’ and ‘D2’ without any objection, and a certificate of compliance in line with Section 84 of the Evidence Act, 2011 was issued.
I therefore agree that the trial judge’s reliance on Exhibit ‘D’ cannot be faulted, having been duly admitted after fulfilling all conditions necessary to its admissibility.
Again, the appellant denied the content of the confessional statement which is to say that he did not make the statement. In raising an objection at the trial as to the voluntariness of a confessional statement being tendered as exhibit, the appellant needs to be categorical and specific in the tenor of the objection he raises. An accused person who denies making any statement at all and seeks the rejection of one the prosecution asserts he has made, would be seen as resiling from that which he indeed voluntarily made. That fact does not in law render the statement, if confessional inadmissible. See Abdullahi vs. State (2013) 11 N.W.L.R (pt. 1366); Gboko v. State (2007) 2 N.W.L.R (pt. 1063) 272 at 279. The apex Court put it more elaborate in Akpa vs. State (2008) 14 N.W.L.R (pt.1106) 72 where it held thus;
Where an accused person denies making a confessional statement, the trial Court is expected to admit the statement in evidence as an exhibit and in its judgment decide whether or not such denial avails the accused person. Then a confession does not become inadmissible merely because an accused person denies having made it. In this respect a confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession. In short, denial of an accused person of making a statement to the police is an issue of fact to be treated in the judgment as the issue does not affect admissibility of the statement.
Again, the appellant also contended that exhibit D is documentary hearsay, because of what investigator (IPO) told the Court concerning the exhibit. The law is trite that the evidence of an IPO is never to be tagged as documentary hearsay. See the case of ISA vs. The State (2019) LPELR- 49363. It is obvious that the investigative police officer is not always at the scene of the crime. His findings and investigation comes after the crime had been committed. He obtains statement from the accused person and even witnesses. It is after gathering adequate information and evidence that he testifies in Court giving a clear and vivid synopsis of what he did during his investigation. He tenders the statement of both the accused person and in some cases that of the witnesses as documents and exhibits obtained during the course of investigation. Therefore he gives direct evidence in Court pursuant to the outcome of the investigation.
The apex Court held in the case of ANYASODOR vs. IGP (2018) LPELR- 43720 thus;
To my mind, all that the pw3 (IPO) did was to give evidence on what he actually saw or had witnessed or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct. The evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of decided authorities had adjudged such evidence as direct evidence and therefore not hearsay.
From the foregoing therefore, it is my considered view that the Trial Court was right to have convicted the Appellant on the evidence of the IPO, on the ground that the evidence was not hearsay coupled with the fact that the IPO was a member of the team that conducted the investigation of the alleged crime.
Indeed, the material elements for the charges against the appellant has been proved beyond reasonable doubt in line with Section 138 (1) of the Evidence Act, 2011. It must be reiterated that this standard of proof beyond reasonable doubt is not synonymous with proof beyond all shadow of doubt. What it means is that the prosecution in establishing the guilt of the accused person with compelling and conclusive evidence which translate to a standard that is consistent with a high degree of probability. That, is on display herein and the evidence by which the appellant had sought to impugn the evidence of the prosecution witness with, were not material and sufficient contradictions to create doubt which would be resolved in favour of the appellant.
Consequent upon the foregoing, coupled with the better reasoning in the lead judgment, I see no reason to depart from the findings and conclusions of the Court below. I find no merit in this appeal which I have no difficulty in dismissing it.
Appearances:
C.I. Nkpe, Esq. For Appellant(s)
…For Respondent(s)