ALADE v. STATE
(2022)LCN/16174(CA)
In the Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Monday, March 07, 2022
CA/PH/5CR/2019
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Olabode Abimbola Adegbehingbe Justice of the Court of Appeal
Between
JAMES ALADE APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON PROVING THE INNOCENCE OF AN ACCUSED PERSON
Under our criminal system, an accused person is presumed innocent until the prosecution proves his guilt beyond reasonable doubt. Thus, the prosecution is duty bound to establish the guilt of the accused by cogent and credible evidence adduced before the Court.
From the arguments proffered, I deduced that the totality of the arguments on the issues nominated in this appeal can be treated and determined together as they are inter related.
The prosecution can discharge the onus placed on it through :-
a) Direct evidence of witnesses;
b) Circumstantial evidence; or
c) Reliance on a confessional statement of an accused person voluntarily made. PER ABDULLAHI, J.C.A.
WHETHER OR NOT A CONFESSIONAL STATEMENT MUST BE POSITIVE AND DIRECT TO BE UTILIZED BY THE COURT
It is trite law that for a confessional statement to be so acclaimed and utilized, it must be direct, positive and unequivocal of facts that satisfy the ingredients of the offence(s) accused person confessed to have committed. See the case of Edun V. Federal Republic of Nigeria (Supra).
It is when the statement is correctly a confessional that the issue of the tests to its veracity necessitating the application of the rules propounded by the case of Daniel Nsofor & Anor. V. State (Supra) relied on by the trial Court would come into play. PER ABDULLAHI, J.C.A.
THE STANDARD OF PROOF IN CRIMINAL MATTERS
The law requires all the essential or vital ingredients of the offences charged be proved beyond reasonable doubt. Thus, where one of the essential ingredients of the offence(s) charged is not proved, it means that the offence has not been proved in accordance with the law, that is, beyond reasonable doubt. See the cases of Musa & Ors. V. State (2005) 2 FWLR (Pt. 261) 343; Oyebola V. State (2007) LPELR–5003 (CA); Aiguoreghian V. State (2004) 3 NWLR (Pt. 860) 367; Rasaki V. State (2011) 16 NWLR (Pt. 1273) 251 & Tanko V. State (2008) 16 NWLR (Pt. 1114) 597. PER ABDULLAHI, J.C.A.
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is a criminal appeal against the trial, conviction and sentence of the Appellant by the High Court of Bayelsa State presided over by the Honourable Justice I. Eradiri sitting at the Yenagoa Judicial Division of the said Court. By the judgment of the Court below delivered on the 26th day of October 2018, the Appellant (who was the 1st Accused in the Court below) was found guilty of conspiracy, Attempted Armed Robbery, House Breaking and membership of a secret cult but discharged and acquitted on the count of stealing.
BRIEF STATEMENT OF FACTS
By an Amended Information dated 12th June 2017 and filed on the 13th of June 2017, the Appellant who was the 1st of three (3) Accused persons so charged, was arraigned on a six (6) count charge (Set out on pages 22-25 of the Records) as follows:
COUNT I:
STATEMENT OF OFFENCE
CONSPIRACY, an offence punishable under Section 444(a) of the Criminal Code Law, Cap C14 Laws of Bayelsa State,2006.
PARTICULARS OF OFFENCE
That you James Alade ‘m’, Uche Michael ‘m’ and Ineye George ‘m’ on or before the 6th day of December, 2016 in Yenagoa, within the Yenagoa Judicial Division of the Bayelsa State High Court did conspire among yourselves to commit felon (sic) to wit: Attempted Armed robbery and thereby committed an offence.
COUNT II:
STATEMENT OF OFFENCE
ATTEMPTED ARMED ROBBERY, an offence punishable under Section 330(2) of the Criminal Code Law, Cap C14 Laws of Bayelsa State, 2006.
PARTICULARS OF OFFENCE
That you James Alade ‘m’, Uche Michael ‘m’ and Ineye George ‘m’ on the 6th day of December, 2016 at about 01:30 Hrs, at Azikoro Community, within Yenagoa Judicial Division of the Bayelsa State High Court did attempt to rob the resident (sic) of Hon. Ozims F. Ozims and thereby committed an offence.
COUNT III:
STATEMENT OF OFFENCE
ATTEMPTED ARMED ROBBERY, an offence punishable under Section 330(2) of the Criminal Code Law, Cap C14 Laws of Bayelsa State, 2006.
PARTICULARS OF OFFENCE
That you James Alade ‘m’, Uche Michael ‘m’ and Ineye George ‘m’ on the 6th day of December, 2016 at about 01:35 Hrs, Azikoro Community in the Yenagoa Judicial Division of the Bayelsa State High Court did attempted (sic) to rob the resident (sic) of Lawrence U. Kalani and thereby committed an offence.
COUNT IV:
STATEMENT OF OFFENCE
HOUSE BREAKING, an offence punishable under Section 338(1)(a) of the Criminal Code Law, Cap C14 Laws of Bayelsa State, 2006.
PARTICULARS OF OFFENCE
That you James Alade ‘m’, Uche Michael ‘m’ and Ineye George ‘m’ on the 6th day of December, 2016 at Azikoro Community in the Yenagoa Judicial Division of the Bayelsa State High Court did break and enter into (sic) house of one Okebile Daniel with intent to commit a Felony therein and thereby committed an offence.
COUNT V:
STATEMENT OF OFFENCE
STEALING, an offence punishable under Section 317(9) of the Criminal Code Law, Cap C14 Laws of Bayelsa State, 2006.
PARTICULARS OF OFFENCE
That you James Alade ‘m’, Uche Michael ‘m’ and Ineye George ‘m’ on the 6th day of December, 2016 at Azikoro Community in the Yenagoa Judicial Division of the Bayelsa State High Court did steal one Somo Water pumping machine valued at N50,000 (Fifty Thousand Naira only), property of one Okebile Daniel and thereby committed an offence
COUNT VI:
STATEMENT OF OFFENCE
BEING A MEMBER OF A SECRET CULT, an offence punishable under Section 1(4) of Bayelsa State Secret Cult/Societies and Similar Activities (Prohibition) Law, 2012.
PARTICULARS OF OFFENCE
That you James Alade ‘m’, Uche Michael ‘m’ and Ineye George ‘m’ on the 6th day of December,2016 at Azikoro Community in the Yenagoa Judicial Division of the Bayelsa State High Court being a member of a secret cult group known as GREEN LANDERS listed in paragraph 102 of the Schedule to the Bayelsa State Secret Cult/Societies and Similar Activities (Prohibition) Law, 2012 and thereby committed an offence.
The Appellant, as his co-accused, pleaded not guilty to all the counts of the information when they were arraigned on 16/6/2017.
At the trial the prosecution called three (3) witnesses at the close of which the Appellant testified in his own defence.
The gist of the prosecution’s case is that the Accused/Appellant and two others on 6/12/2016 at Azikoro community, Yenagoa, conspired and attempted to rob the homes of PW1, Deputy Superintendent of Police, Lawrence Umokoro Kelani and PW3 – Mrs. Linda Ozims. See pages 85-92 and 107-111 of the Records.
The prosecution called three (3) witnesses and relied on the alleged confessional/extra-judicial statement of the Appellant, Exhibit B tendered through PW2 – Inspector Ubong Emmanuel, the Investigating Police Officer (IPO). See page 94 of the Record of Appeal.
The Appellant testified for himself without calling any witness, denied committing the offences and retracted his alleged confessional statement, Exhibit B claiming that he did not make the alleged confessional statement. In his testimony in Court he stated that on his way to his welding work early in the morning of 6/12/2016, he was stopped at Best Man Street, Yenagoa by the PW1 and informed him that there was a robbery incident the previous night on his street and he was out arresting any person as a possible suspect. He added that he introduced himself to PW1 that he was a welder and the person previously seen in the company of his (PW1’s) daughter; whereupon PW1 got angry and accused him of being the person that usually sleep with his daughter in his house when he is not at home. He ordered the Appellant to accompany him to his house for possible identification by his neighbours as the person who has the alleged amorous relationship with his daughter. Appellant claimed that he refused to follow PW1 as ordered whereupon PW1 threatened and actually shot him on his foot and left him there. As he was there screaming for help, a tricycle driver helped to convey him to Azikoro Police Station where they narrated the incident. The DPO at the Azikoro ordered him to be taken to a hospital. He was taken to the Federal Medical Centre where he was refused treatment because of absence of police report. Appellant was then taken to Anti-Vice, but they were on parade and then driven to SARS where he explained what had happened and his written statement was taken by a policeman known to Appellant as ‘Tallest’ which he thumb printed. It was tallest that called PW2- Inspector Ubong, being the Team Leader who intervened to stop the initial order of arrest of the PW1 by ‘Tallest’. It was later that PW1 was invited and he then made the false allegation against him that he was one of the robbers that allegedly attempted to rob his home and he shot him.
At the close of evidence, both the Defence and prosecuting counsel, filed and adopted their respective final written addresses contained on pages 52-81 of the Records.
In its judgment dated 26/10/2018 (contained at pages 145-190 of the Records), the trial Court found the Appellant together with the other two Defendants guilty and sentenced them as contained at pages 189-190 of the records.
Against the said judgment of the trial Court, the Appellant lodged this present appeal containing six (6) grounds of Appeal. See pages 205-210 of the Records and with leave of Court a further 2 grounds were added.
In compliance with the extant Rules of the Court of Appeal, the appeal was heard on the 12th of January, 2022 by adoption of already filed and exchanged Briefs of Argument for the parties.
L. A. Mitee, Esq. appeared with O. Awari, Esq. for the Appellant and adopted the Appellant’s Brief of Argument settled by him. E. T. Boatman (PSC) MOJ, Bayelsa State appeared for the Respondent and adopted the Respondent’s Brief of Argument settled by him.
ISSUES FOR DETERMINATION
The Appellant submitted three (3) issues for determination of this appeal, as follows:
1. Whether or not the trial Court was right and/or justified in holding that Exhibit B amounted to a confession to the offences charged and thus justified in convicting the Appellant on the basis thereof?
2. Assuming without conceding that Exhibit B, the Appellant’s extra-judicial statement was confessional, whether or not the trial Court correctly applied the rule in Nsofor V. State (2004) 18 NWLR (Pt. 905) 292?
3. Whether or not the trial Court was right and/or justified in convicting the Appellant of the offences charged on the basis of the evidence led in this case.
The Respondent presented two (2) issues for determination to wit:
1. Whether the learned trial Judge was right in relying on Exhibit ‘B’ to along with other evidence adduced by the prosecution to convict the Appellant. (Grounds 1, 2, 6 & 7).
2. Whether the learned trial Judge did not properly evaluate the evidence adduced at the lower Court, including the extra-judicial statement of the Appellant (Exhibit B) before arriving at the conclusion that the Respondent has proved its case against the Appellant beyond reasonable doubt. (Grounds 1, 2, 3, 4, 5, & 8).
The two sets of issues as stated above are identical in what they are questioning for determination. I will therefore make use of the Appellant’s set of issues being the originator of the appeal as a result of his dissatisfaction with the decision appealed against.
DETERMINATION OF ISSUES
ISSUE 1
Whether or not the trial Court was right and/or justified in holding that Exhibit B amounted to a confession to the offences charged and thus justified in convicting the Appellant on the basis thereof?
In his argument of issue 1, the learned counsel for the Appellant said that it is the bounded duty of the prosecution to establish the charge(s) against an accused beyond reasonable doubt. He referred to pages 174–175 of the Record of Appeal where the trial Court found that the prosecution can discharge this onus through:
(a) Direct evidence of witnesses, or
(b) Circumstantial evidence, or
(c) Reliance on a confessional statement of an accused person voluntarily made.
That at page 174, the trial Court held that: “In proving its case, the prosecution relied on direct evidence, circumstantial evidence and the confessional statements of the accused persons.”
He contended that in the course of trial, the accused persons denied and retracted their confessional statements. He referred to pages 176-178 of the records where the trial Court set out in extenso the Appellant’s alleged confessional statement in its judgment. That nowhere in the alleged confessional statement, the Appellant admitted to the offences of conspiracy to commit the offences charged.
He submitted that for a confessional statement to be utilised, it must be direct, positive, true and unequivocal of the facts that satisfy the ingredients of the offence(s) the accused person confessed to have committed. Relied on the Supreme Court decision in Edun V. Federal Republic of Nigeria (2019) 13 NWLR (Pt. 1689) 326 at 366 where Peter Odili, JSC stated the law as follows:
“I must humbly state though what the Appellant had admitted to might on the face of it look confessional as it may be, it has to be such as the trial Court would find within it that the ingredients of the offence have been made out inside the confines of the offences charged.”
Counsel submitted that the learned trial Judge erred in treating the Appellant’s extra-judicial statement – Exhibit B as a confessional statement and convicting the Appellant of the offences charged solely on the basis of such a statement when it was not direct, positive and unequivocal admission of the offences charged.
He further submitted that it is when the statement is correctly a confessional statement that the issue of the test of its veracity necessitating the application of rules propounded by the case of Daniel Nsofor & Anor. V. State (2004) 18 NWLR (Pt. 905) 292 relied on by the trial Court would come into play.
Counsel said that with regard to the count on Membership of Secret Cult, whilst Exhibit B talks of “Blue Spy”, the charge itself alleges membership of “GREENLANDERS”. He contended that there were serious contradictions in the case of the prosecution. That the trial Court erred in law in convicting the Appellant on the basis of such contradictions on the very foundation of the evidence in support of the charge. That the situation in this case, on this point is not dissimilar to what happened in the case of Edun V. FRN (Supra).
He said that another aspect of this issue of contradiction is where there is conflict between an accused’s extra–judicial statement to the police and his oral testimony before the Court, the Court should reject both evidence and rather look at other facts to corroborate before conviction. Referred and relied on the case of Ogie V. The State (2017) 16 NWLR (Pt. 1591) 287 at 299 Paras. F–H.
He contended that the Appellant’s testimony on oath was completely different from what is contained in Exhibit B and that on the strength of Ogie V. State (Supra), the lower Court ought to have disregarded both versions and if it is so done, no credible legal evidence to sustain the charge against the Appellant.
Counsel urged us to resolve this issue in favour of the Appellant .
In response, the learned counsel to the Respondent argued under the Respondent’s issue 1 that the position of the law is that, the moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or actus reus or both, the prosecution has discharged the burden placed on it by law. Relied on the case of Adeleke V. State (2014) All FWLR (Pt. 722) 1655 at 1673, Paras. B–D.
That in proving the guilt of an accused, the prosecution can bring him within one of these three methods:- (1) Direct evidence (2) Circumstantial evidence (3) confessional statement. That proof of one of the three is sufficient to secure his conviction. Referred to the case of FRN V. Barminas (2017) ALL FWLR (Pt. 882) 1256 at 1277, Paras. A –B.
That the Appellant did object to the tendering of the confessional statement when it was to be tendered by the prosecution on 05/10/2017 on the ground that he was not the maker and the objection was overruled.
He submitted that mere denial of a confessional statement does not make it inadmissible, rather what the Court will look at is the weight to be attached to it. Referred and relied on the case of Pedro V. State (2018) LPELR–44460 (SC).
He further submitted that the trial Court was right in relying on Exhibit B to convict the Appellant placing reliance on the evidence adduced by the prosecution witnesses as corroborating factors. That it is in evidence, the Appellant confessed in Exhibit B that he went for the robbery with one Kingsley George, Joseph Snu and another whose name is not known to him on 06/12/2016. That it is settled law that a trial Court is free to act on a confessional statement duly admitted in the course of the trial so long as there is evidence outside to corroborate such confession.
ISSUE 2
Assuming without conceding that Exhibit B, the Appellant’s Extra-Judicial statement was confessional, whether or not the trial Court correctly applied the rule in Nsofor V. State (2004) 18 NWLR (Pt. 905) 292?
Learned counsel for the Appellant contended that the lower Court held that the extra-judicial statement of the Appellant – Exhibit B was confessional and therefore his testimony on oath was a retraction of the confession. He said that the learned trial Judge stated the law correctly when he cited the decision in Nsofor V. State (Supra) as follows:
1. Is there anything outside the confessional statement to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts true as far as they can be tested?
4. Was the prisoner one who had the opportunity to commit the offence?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?”
Counsel referred to pages 183-184 of the record of appeal, thus:
“The PW1 and PW3 testified that there was an attempted armed robbery on the 6th of December, 2016 in their houses at Azikoro. Both witnesses also gave consistent evidence of the time the incident took place, although their testimonies as to the exact number of robbers seen was not so. However, I regard that as inconsequential given that the PW1 and PW3 lived apart and could not have seen them at the same time and from the same angle. The PW1’s testimony that he fired at the legs of the armed robbers and later realized that the bullet hit one of them, who turned out to be the 1st accused, on his left leg was consistent with the fact that the 1st accused was arrested a few hours within the vicinity of the crime with a bullet wound to his left leg. The PW3 also testified that the robbers actually entered into her kitchen by damaging the kitchen door and left behind two machetes and kitchen knives in her kitchen. I have compared all those pieces of oral evidence adduced by the PW1 and PW3 and found that they corroborated the facts stated by the accused persons in their confessional statements.”
He said that as could be seen from the above passage of the trial Court’s attempt at evaluation of evidence, there is absolutely nothing to show that any of the tests in Nsofor’s case was actually applied or met. He referred to the confessional statement set out in the trial Court’s judgment, contained at pages 176–178 of the Record of Appeal as follows:
“I am a native of Bomadi town in Bomadi local government area of Delta State. I was born in April 21st 1995 into the family of Akona. I attended Olu Community primary school Bomadi and Community Secondary School Bomadi and I stop in JSS II due to my inability to read and write. I decided to go into handwork where I learned construction and welding, I learned construction and welding in Azikoro village, my boss was one IK. I became independent in the year 2014. Presently I have a workshop at cemetery road Azikoro village. One Engineer Douye open the workshop for me to manage. I have been managing the workshop since 2015. I am single but have two children a boy and a girl. The boy is living with me while the girl lives with her mother. I live alone. My father Alade lives at Swali while my mother lives at Azikoro village. On the 4th December 2016, I met one girl name Dorris, surname unknown at Bolex car wash and we exchanged numbers yesterday being 05/12/2016. I invited her to my house around 8pm and I had sex with her and after which I escorted her around 1am and while I was escorting my girlfriend I met one Kingsley George, Joseph surnames unknown and one other one name unknown close to the complainant’s house and Kingsley said, that is the house and pointed finger at the house and I asked Kingsley what happened in that house, he said, he want us to robbed the house and steal the plasma televisions. The house is a fence building, with bar wire, Kingsley used block and press the bar wire and jump inside the compound. Joseph followed and third person name unknown followed. Kingsley said should wait outside the fence and gave me torch light. My girlfriend did not go with us to the house. After accessing the compound, Kingsley, Joseph and the third person name unknown bend the kitchen protector and went inside the house, break the ceiling and jumped inside the kitchen that was when a woman name unknown raised alarm called the neighbours, Kingsley, Joseph ran out of the house and we went to another house to robbed, and while kingsley was trying to open the window, a man voice out from inside and asked who is that and we ran-away while l was running, the man came out and (shot) fire a gunshot first on air then shot me on my left leg. I felt down on the ground and craw to the bush where I was later arrested. Kingsley is the gang leader. I don’t the complainant. Is Dorris my girlfriend that initiated the idea of robbing the complainant. The reason I suspected Dorris is that As soon as we met Kingsley and Joseph, she gave them handshake and excused Kingsley to a corner, I didn’t hear what they discussed. I don’t know Kingsley whereabout, I don’t know his address, Kingsley is an ljaw boy. Doris is my girlfriend she stayed at Bestman street Azikoro but I don’t know the fix address so also is Joseph I don’t know his address, Joseph is equally an ljaw boy. They are all my friends. Kingsley put something inside his trouser that look like a gun. I tried to find out what was inside his trouser but he could not allowed me to talk. I carried a big torch light while Joseph and the third person carried machete and knife respectively. Is two houses that we attempted to robbed. This is my first time of coming out with them to robbed. (The)I know Kingsley and his gang are into robbery because I have heard them discussing robbery while smoking at the ghetto. Our meeting point is Swali slaugher. Nobody introduced Kingsley to me, Kingsley came to my workshop on his own that l should give him fifty naira to enable him go to Azikoro village which I did, Kingsley introduced Joseph to me as his friend, we have been friends for over two months now. I am a member of a cult group called Blue Spy, I was initiated into the confraternity in the year 2013 by Gideon Preye, Solo and Prince, They are all in Delta State. Here in Yenagoa I don’t embrace any cult group but my friends are members of confraternity called Greenland. My friends that are Greenlanders are Kerereke, Frank, Littleman, others I don’t know them by names but I know them facially, I also know their houses. Another one is Gift surname unknown. Gift house is known to me, Gift is an ljaw boy.”
He argued that there is nothing in the above passage of the trial Court’s judgment that corroborated anything contained in the said alleged confessional statement. He then submitted that the learned trial Judge cannot legitimately take umbrage under the phrase ‘I have compared all those pieces of evidence’ without actually doing so before coming to the conclusion that there was corroboration. That the lower Court fell into grave error by not applying any of the tests enunciated by NSOFOR’s decision.
Counsel referred to testimonies of PW1 and PW3 at pages 85–88 and pages 107–109 of the records respectively and contended that confessional statement of the Appellant and the evidence of PW1 and PW3, the victims of the crime for which the Appellant was convicted are unrelated. That for a piece of evidence to be corroborative of another, it must relate and support the other evidence. Relied on the cases of State V. Yahaya (2019) 13 NWLR (Pt. 1690) 397 at 428–429 Paras. H–A and Adesina V. The People of Lagos State (2019) 1 SC (Pt. 1) 62.
That for a Court of law to convict on a confessional statement, such statement must not only be free and voluntarily but must be direct, positive and properly established that the accused committed the particular crime that he confessed to. Referred to the case of Laddan V. State (2016) 5 NWLR (Pt. 1506) 403 at 420.
Counsel referred to Section 101(1) of the Evidence Act, 2011 and said that the lower Court had duty to compare the admitted signature of the Appellant with the disputed signature on Exhibit B relying on the decision of the Supreme Court in Adenle V. Olude (2002) 18 NWLR (Pt. 799) 413 at 431 and MTN (Nig.) Communications Ltd. V. Auta (2020) 8 NWLR (Pt. 1726) 258 at 272–273.
He referred to the discrepancy between the evidence of PW1 and PW2 on the arrest of the Appellant at pages 85 and 91 of the records for the PW1 and also pages 93–96 of the records for the PW2. That PW1 stated that he was not present during the arrest of the Appellant but was told that he was arrested and he should come to identify him. Whereas, PW2 said that it was the PW1 (Lawrence Kelani) that arrested the Appellant and brought him to the station.
Counsel submitted that with the denial of the signature on a document that becomes a crucial issue, the Court had a duty to make comparison of signatures in the documentary exhibits before coming to a reasonable conclusion in the matter. Cited the cases of Adenle V. Olude (2002) 18 NWLR (Pt. 799) 413 at 413–432 and Mobil Producing Nig. Unltd. V. Hope (2016) LPELR–41191 (CA).
He further submitted that Exhibit B could not have been correct by its inconsistencies and with the sufficient evidence which impeached same. Cited and relied on the case of Onwumere V. State (1991) 4 NWLR (Pt. 186) 428, Ratio 4 at 440, E–F wherein the Supreme Court held as follows:
“If an accused person at the trial resiles from his confessional statement, it is his function to explain to the Court as part of his defence the reason for the inconsistency and to lead evidence to establish that his confessional statement cannot be correct by showing either:-
a) That he was not correctly recorded; or
b) That he, in fact, did not make the statement; or
c) That he was unsettled in mind at time the statement was made; or
d) That he was induced to make the statement.”
He also submitted that where a Court’s decision, as in the instant case, does not arise from the evidence on record, it is the duty of the Appellate Court to set it aside. Igbikis V. State (2017) 11 NWLR (Pt. 1575) 126 at 143, Paras. C – E where the Court held as follows :
“I agree with learned Appellant counsel that on the authorities a Court’s decision which does not arise from the evidence on record constitutes such miscarriage of justice that imposes on the appellate Court the duty to set same aside.”
Counsel urge us to set aside the decision of the trial Court on the alleged confessional statement of the Appellant.
In response, the learned counsel to the Respondent stated that a cursory look at the extra–judicial statement of the PW1 and PW3 will show that the confessional statement of the Appellant is corroborated as the facts contained in their respective statements along with their evidence provide the corroboration needed to ground a conviction. He referred to pages 85–92 and 107–111 of records which contained the evidence of PW1 and PW3.
That it is settled that a trial Court is at liberty to act on relevant facts which were not disputed or discredited through cross-examinations. He stated that the facts as evidenced in the testimonies of the prosecution witnesses, particularly, PW1 and PW3 as to how the robbers made attempt to break into their houses in an attempt to rob them was not discredited through cross-examination. Thus, it was submitted that the trial Court was right in holding that the prosecution proved its case in counts 2 and 3 through the evidence of PW1 and PW3. Reliance on the cases of Ebenezer V. State (2016) LPELR–41637 (CA) 13, Paras. A–E and Patrick Oforlete V. The State (2000) LPELR–2270 (SC) 34, Paras. A–F.
Counsel submitted that the inconsistency rule does not apply to an accused. Reliance on the cases of Egboghonome V. State (1993) 7 NWLR (Pt. 306) and Ayinde V. State (2018) LPELR–44761 (SC) 49–50, Paras. A–B.
He submitted further that the trial Judge was right when he held on page 187 of the records that confessional statement of the Appellant having been properly admitted in evidence, conviction can be based on it. He then urged us to dismiss the appeal.
ISSUE 3
Whether or not the trial Court was right and/or justified in convicting the Appellant of the offences charged on the basis of the evidence led in this case?
Learned counsel for the Appellant referred to submissions in issues 1 and 2 and said there was no evidence outside Exhibit B to corroborate it. He argued that in the absence of the said Exhibit B, there was no evidence to sustain any of the counts of the offences charged.
On the charge of conspiracy, he said that it must be proved beyond reasonable doubt by the prosecution with evidence prescribing the meeting of the minds to commit the offences charged. Referred to Okafor V. State (2016) NWLR (Pt. 1502) 248 at 265. That the prosecution ought to show through direct, circumstantial or confessional statement of the accused that there was an agreement to commit the offence charged. That the names of persons alleged in Exhibit B to haven agreed with Appellant allegedly are different from the names of his co-accused and no attempt was made by the prosecution to reconcile both sets of names, especially where all the accused denied knowing each other before their arrest.
Counsel submitted that the view expressed by the trial Court at pages 184–185 of the records that the Appellant admitted in Exhibit B to the fact of his meeting, presence and participation with the other co-accused in the crimes charged in the information and therefore conspiracy was proved, are not supported by any evidence before the Court. That a Court of law is not permitted to base its decision on speculation but on hard evidence. Cited and relied on State V. Ajayi (2016) 14 NWLR (Pt. 1532) 196 at 232, Paras. D–E where it was held that:
“Speculation or suspicion, no matter how strong cannot ground conviction. It cannot take the place of legal proof.”
He further submitted that a Court of law cannot convict for an offence of conspiracy in the absence of corroborative evidence. Referred to the case of Afolahan V. State (2018) 8 NWLR (Pt. 1621) 223 at 250.
Counsel urged us to discharge and acquit the Appellant for the alleged offence of conspiracy to commit attempted Armed Robbery for lack of evidence to that effect before the Court on which inference could be drawn.
On Attempted Armed Robbery, he referred to the decision of the Supreme Court in Ezeuko V. The State (2016) 6 NWLR (Pt. 1509) 529 at 590 Paras. A–B. That the prosecution must prove beyond reasonable doubt that the accused/Appellant began to put his intention into execution by the means adopted towards the fulfilment of the criminal act but did not fulfil the actual act to commit the full offences.
He contended that the law requires the prosecution to prove that the offender at the material time was armed with dangerous or offensive weapon, or offensive instrument, or was in company with any person(s) so armed at or immediately before or after the time of the offence.
That the prosecution in an attempt to prove the offences of Attempted Armed Robbery relied on the evidence of PW1 at pages 85–92 and that of PW3 at pages 107–111 of the Record of Appeal.
That from the evidence of the prosecution witnesses relied upon by the trial Court, it could be deduced that the Appellant was not caught at the residence of either PW1 or PW3 or by the police anywhere around the vicinity where the alleged offences were attempted. He said that there was no proof that the Appellant was with any weapon or in company of other persons with weapon or weapons attempting to rob PW1 and PW3. That by not tendering the alleged knives and matchetes, evidence about them are hearsay at worst and weightless at best.
Counsel contended that the trial Court erred to have relied on the evidence of PW3 to the effect that the alleged abandoned knives and matchetes at her residence were those of the Appellant and his co-accused, when such information was not provided to the police at the earliest opportunity when she wrote her statement – Exhibit E. That the position of the law has been explained by the Supreme Court in the case of Kanu V. A. G. Imo State (2019) 10 NWLR (Pt. 1680) 369 at 384, Paras. G–B.
He submitted that since there was no direct or circumstantial evidence against the Appellant about his involvement in the said offences charged, what was required of the trial Court was discharge and acquittal of the Appellant. Relied on the case of Wisdom V. State (2017) 14 NWLR (Pt. 1586) 446 at 464 Paras. E.
Counsel raised the issue of identity by an eye witness of the accused which he said that it must be clear and without any doubt. Referred to the case of Egbufor V. State (2019) 5 NWLR (Pt. 1665) 260 at 278, Paras. A–B.
He submitted that where as in the instant case, the identity of those who attempted to rob the PW1 and PW3 were in doubt, it was imperative for the police to have conducted an identification parade before charging them to Court. Relied on the case of Okiemute V. State (2017) 15 NWLR (Pt. 1535) 297 at 318, Paras. B–C. He also relied on the case of Osuagwu V. State (2016) 16 NWLR (Pt. 1537) 31 at 59, Paras. E–F to submit that where identification parade is poor or whereby the evidence of the prosecution’s witness, the accused/Defendant was not properly identified, the only option left for the Court is to return a verdict of not guilty.
That from the prosecution’s witnesses, especially PW1 and PW3 who admitted not identifying the Appellant at the time of the alleged attempted robbery and that of PW2, the IPO that the Appellant and others were not identified before their arrest and no identification parade was carried out by the police, it will not be safe to convict the Appellant in such circumstances.
On HOUSE BREAKING, the learned counsel submitted that the learned trial Judge was in error when he convicted the Appellant of house breaking into a house he was not charged for. That there was no direct evidence that the Appellant was one of the alleged robbers that broke into the house of PW3 as he was not properly identified by PW3 or any other witness. That the trial Court’s attempt to resort to circumstantial evidence would fail because before a Court can convict on such evidence, it must be compelling, unequivocal and lead to the conclusion that the accused person and no one else committed the offence. Referred to the case of Dada V. State (2019) 3 NWLR (Pt. 1659) 305.
On MEMBERSHIP OF SECRET CULT, counsel submitted that it is not enough for the prosecution to rely on an alleged confessional statement of doubtful authenticity which was retracted by the accused/Defendant in Court to seek conviction. That in any case, the alleged secret cult in Exhibit B is “BLUE SPY” whilst in the charge it is stated to be “GREENLANDERS.” That where as in this case, the particulars stated in the charge are different from facts proved in evidence, a conviction based on them cannot stand. Referred to the case of Agumadi V. Queen (1963) 1 SCNLR 379.
On CONTRADICTIONS, learned counsel for the Appellant referred to the testimonies of the prosecution witnesses – PW1, PW2 and PW3 on record. He said that PW1 and PW2 testified that the attempted robbery incident at PW1’s resident occurred at 2:30am and that PW3 testified that the attempted robbery in her house occurred at 2:30am and lasted for two (2) hours. That how can the same accused be at the PW1’s residence at 2:30am and at PW3’s house at the same date and time to also remain in PW3’s house for 2 hours from the said 2:30am?
He referred further to PW1 testimony that the Appellant was arrested by SARS, the PW2 – IPO who is an official of the said SARS testified that it was PW1 who took the 1st accused person to SARS office and that he was only detailed to take his statement.
Counsel submitted that the contradictions are so material which should create serious doubts in the mind of the Court that ought to be resolved in favour of the accused. Cited and relied on the case of Ahmed V. The State (1999) 7 NWLR (Pt. 612) 641 at 672, Para. E.
In conclusion, counsel submitted that the contradictions are grave, material and substantial that it was erroneous for the trial Court to have ignored them in its judgment. Referred to the case of Ogu V. Cop (2018) 8 NWLR (Pt. 1620) 134 at 163. That the conviction of the Appellant ought to be set aside and consequently be discharged and acquitted.
In response, the learned counsel to the Respondent submitted that the trial Judge was right in convicting the Appellant for the offences charged. That neither of the prosecution witnesses nor Exhibits B–D were impeached during cross-examination. That the position of the law is that unchallenged or uncontradicted evidence is the safest to rely on. Cited and relied on the case of Victor Essien Victor V. The State (2009) LPELR–8151 (CA) 21, Paras. A–E.
He contended that a Defendant can be convicted solely on a confessional statement so long as there are facts outside the confessional statement which corroborate facts as evidenced in the confessional statement. Relied on the case of Ogunsanya Oluwaseyi V. The State SC. 610/2016 PP. 18–23, Paras. F- A.
That it is a settled law that in accepting a confessional statement as the needed evidence required to convict an accused person, the Court must guide itself of the followings:
1. Did the accused person have the opportunity to commit the alleged offence?
2. If he had the opportunity, was the confession a true fact of what transpired?
3. Is there anything to corroborate the confession?
Reference made to the cases of Golden Dibie V. The State (2007) 1 All FWLR (Pt. 362) 114–115 and Nsofor V. State (Supra).
He opined that Exhibit B was corroborated by Exhibits A and E and the respective evidence of the prosecution witnesses. He submitted that the learned trial Judge was right in his evaluation of the evidence of the prosecution witnesses and the Exhibits tendered before the Court in arriving at the conclusion that indeed there were corroborative evidence outside the confessional statement of the Appellant to ground a conviction. Referred to pages 184–185 of the records where the learned trial Judge dealt with the issue of corroboration.
Counsel submitted that the evidence of the prosecution witnesses, accepted by the trial Court is corroborative enough to convict the Appellant. Cited the case of Yahaya V. State (2016) LPELR–40254 (CA) 49, Paras. A–C.
He further submitted that the trial Court properly evaluated the evidence before it in arriving at its conclusion.
On the offence CONSPIRACY, learned counsel contended that it is on record that the uncontradicted evidence of PW1 and PW2 are to the effect that the robbers who made attempt to enter their respective homes to rob them were more than one person. That the Appellant was arrested after he was shot by the PW1 in the process of escaping from the scene of crime. That the offence is usually proved through the circumstances surrounding the commission of the offence. That in this case, Exhibit B, C and D which are the uncontested extra-judicial statements of the three defendants in the trial Court, all gave corroborative accounts of how they went out to rob on the 6th of December, 2016. That the trial Court was right in convicting the Appellant along with his two co-accused for the offence of conspiracy.
Counsel referred to the cases of Abiodun V. State (2012) 7 NWLR (Pt. 1299) 412 Paras. G–H and Adeleke V. State (2013) LPELR–20971 (SC) on what constitutes conspiracy. He then submitted that the learned trial Judge was right in holding that the Appellant conspired with his co-convicts to carry out the offences upon which he was convicted.
On the issue of ATTEMPTED ROBBERY, Learned counsel to the Respondent said that the PW1 testified to the effect that the robbers had already entered his compound and was taking steps to enter his house when he raised alarm. That the PW3 testified to the effect that the robbers had already broken into her kitchen through the back door and was making effort to gain entrance into the parlour when she raised alarm.
He submitted that the learned trial Judge was right in convicting the Appellant and his co-convicts because the steps taken amounted to an attempt. Relied on the case of Osetola & Anor. V. The State (2012) LPELR–9348 (SC) 43–44, Paras. C–A.
He referred to Exhibits B, C and D and the evidence of the PW3 and submitted that the Appellant with his co-convicts were armed. He urged us to discountenance the submissions of counsel to the Appellant on the recovery and tendering of the weapon used in the commission of the offence. That it is not a condition precedent for a conviction on armed robbery or attempt. Cited and relied on the cases of Agugua V. State (2017) LPELR–42021 (SC) 24, Paras. D–F and Ujani V. State (2018) All FWLR (Pt. 956) 601.
On the charge of CULTISM, Counsel submitted that the learned trial Judge was right in convicting the Appellant for the offence of cultism. That the Appellant confessed on that and a duly admitted confessional statement is basis for conviction without corroboration, so long as it is true. Referred to FRN V. Daminas (Supra).
He contended that the finding of facts that the Appellant is a member of ICELANDERS Secret Cult was not challenged. That the implication is that the Appellant agreed with the decision of the Court below that he is a member of the BLUE SPY secret cult group. Cited and relied on the case of Egboma V. State (2013) LPELR–21358 (CA) 54, Paras. C–F.
Counsel opined that even though the BLUE SPY CULT group is not listed as one of the prohibited secret societies, the learned trial Judge was right in holding that the provisions of Section 1(2) and (3) of the Bayelsa State Secret Cults/Societies and Similar Activities (Prohibition) Law, 2012 covers such groups which are not listed.
In conclusion, he submitted that the trial Judge thoroughly evaluated the evidence of the prosecution in arriving at its decision, thus prayed that the appeal be dismissed.
RESOLUTION OF THE ARGUMENTS
Under our criminal system, an accused person is presumed innocent until the prosecution proves his guilt beyond reasonable doubt. Thus, the prosecution is duty bound to establish the guilt of the accused by cogent and credible evidence adduced before the Court.
From the arguments proffered, I deduced that the totality of the arguments on the issues nominated in this appeal can be treated and determined together as they are inter related.
The prosecution can discharge the onus placed on it through :-
a) Direct evidence of witnesses;
b) Circumstantial evidence; or
c) Reliance on a confessional statement of an accused person voluntarily made.
It is the holden of the trial Court at page 174 of the Record of Appeal thus: “In proving its case, the prosecution relied on direct evidence, circumstantial evidence and confessional statements of the accused persons” By this quoted holden of the lower Court, the onus placed on the prosecution would have been deemed to be discharged. A proper reading of the lower Court’s judgment on records, disclosed otherwise. It shows that the learned trial Judge relied mainly on the confessional statement of the Appellant and only alluded to aspects of the prosecution’s evidence (direct and circumstantial) that appear to corroborate the alleged confessional statement.
The Appellant was charged with conspiracy with Uche Michael and Ineye George (his co-accused) and attempt to rob the residences of the PW1 and PW3 at Azikoro Community, as well as membership of Greenlander, Secret Cult.
It is trite law that for a confessional statement to be so acclaimed and utilized, it must be direct, positive and unequivocal of facts that satisfy the ingredients of the offence(s) accused person confessed to have committed. See the case of Edun V. Federal Republic of Nigeria (Supra).
It is when the statement is correctly a confessional that the issue of the tests to its veracity necessitating the application of the rules propounded by the case of Daniel Nsofor & Anor. V. State (Supra) relied on by the trial Court would come into play.
It is the prosecution’s case as contained in Exhibit B that the Appellant with one Kingsley George, Joseph surname unknown and two others whose names are unknown attempted to rob and steal plasma Televisions in two buildings. That the conspiracy, house breaking and also the entry were all in that single process. Whereas the evidence of PW1-3 are to the effect that three persons were involved in the alleged offences. In the same Exhibit B, it was stated that the Appellant is a member of a cult called “Blue Spy” but the charge against him alleged membership of “Green Landers.”
Looking at the records shows that the Appellant’s testimony on oath before the trial Court below was completely different from what is contained in his alleged confessional statement – Exhibit B which the Appellant retracted.
There are clear contradictions between the statements in Exhibit B and the Appellant’s testimony. It is the law that where there is conflict between an accused’s extra-judicial statement to the police and his oral testimony before the Court, the Court should reject both evidence and rather look at other facts to corroborate. See the case of Ogie V. State (Supra).
My perusal of the record of appeal disclosed that the efforts made by the learned trial Judge to evaluate the evidence did not pass the tests in Nsofor’s case. The attempt as shown on pages 183-4 of the records has not convincingly made up corroboration of the alleged confessional statement in Exhibit B. This I found and so hold.
The evidence of PW1 and PW3 on record (the victims of the alleged crimes) did not positively help matters. This is because for a piece of evidence to be corroborative of another, it must relate and support that other evidence. See the case of State V. Yahaya (Supra) where Peter-Odili, JSC opined that:
“The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime.”
Also in Adesina V. The People of Lagos (Supra) it was held that only legal evidence could corroborate another, as such, hearsay evidence cannot be used as corroboratory evidence. See the case of Ladan V. State (Supra).
There is nothing in the entire judgment of the lower Court, apart from the confessional statement that linked the Appellant to the offences of conspiracy and attempted robbery for which the Appellant was convicted. It is not enough for the prosecution to lead evidence that there was an attempted robbery and the robbers were armed without credible evidence which proves beyond reasonable doubt, that the Appellant was one of the robbers that attempted to rob the PW1 and PW3. In other words, there must be credible evidence which links or identifies the Appellant as one of the robbers beyond reasonable doubt. This I found and so hold that no such credible and reliable evidence on record. See the cases of Ndidi V. The State (2007) 13 NWLR (Pt. 1052) 633; Tanko V. State (2006) 18 NWLR (Pt. 1114) 591 & Ayinde V. State (2018) LPELR–44761 (SC). It must be proved beyond reasonable doubt by the prosecution with evidence describing the meeting of the mind to commit the offences charged as explained in the case of Okafor V. State (2016) NWLR (Pt. 1502) 248 @ 265. The views of the learned trial Judge inter alia that the Appellant admitted in his confessional statement expressed at pages 184–185 of the records are not supported by any evidence before the Court. A Court of law is not permitted to base its decision on speculation but on hard evidence as held in the case of State V. Ajayi (Supra). Therefore, a Court of law, as in the instant case, cannot convict for an offence of conspiracy in the absence of any corroborative evidence. See the case of Afolahan V. State (2018) (Supra).
It is my humble view that the alleged offence of Attempted Armed Robbery was not established by the prosecution against the Appellant in accordance with the position of law as explained by the Supreme Court in the case of Ezeuko V. The State (Supra).
As to House Breaking, the views expressed by the trial Court at page 189, lines 5–10 of the records is equally not supported by evidence as the Appellant was not properly identified by PW3 or any other witness. It is therefore not in conformity with the decision in the case of Dada V. State (Supra).
For Membership of Secret Cult, it was not enough for the prosecution to rely on an alleged confessional statement which was retracted by the Appellant to secure conviction that an accused belongs to a secret cult. Moreso, that the alleged Secret Cult in Exhibit B is “Blue Spy” while in the charge, it was stated to be “GreenLanders”. A conviction based on such situations cannot stand, this I hold. See the case of Agumadu V. Queen (1963) 1 SCNLR, 379.
I am in firm agreement with the learned counsel for the Appellant that the prosecution’s case at the trial Court was afflicted with several contradictions which made it unsafe for the Court to have relied on such pieces of evidence to convict the Appellant. I so hold.
I am of the opinion that where there is doubt by the evidence of the prosecution, as in the instant case, such doubt should be resolved in favour of the accused person. See the case of Ahmed V. The State (1999) 7 NWLR (Pt. 612) 641 at 672, Para. E. I therefore hold that on the face of the material and substantial contradictions, it was erroneous for the trial Court to have ignored them in its judgment. See the case of Ogu V. COP (2018) 8 NWLR (Pt. 1620) 134 at 163.
Flowing from the above, the allegations of conspiracy, Attempted Armed Robbery, House Breaking and Membership of Secret Cult were not proved beyond reasonable doubt. The law requires all the essential or vital ingredients of the offences charged be proved beyond reasonable doubt. Thus, where one of the essential ingredients of the offence(s) charged is not proved, it means that the offence has not been proved in accordance with the law, that is, beyond reasonable doubt. See the cases of Musa & Ors. V. State (2005) 2 FWLR (Pt. 261) 343; Oyebola V. State (2007) LPELR–5003 (CA);Aiguoreghian V. State (2004) 3 NWLR (Pt. 860) 367; Rasaki V. State (2011) 16 NWLR (Pt. 1273) 251 & Tanko V. State (2008) 16 NWLR (Pt. 1114) 597.
Based on the aforementioned, the Court below erred in law to have convicted and sentenced the Appellant in the face of violent, substantial and material contradictions in the evidence of the prosecution. For this reason, this appeal succeeds and is hereby allowed. The conviction of the Appellant on the offences charged against him and the sentence are therefore set aside.
The judgment of the High Court of Justice, Bayelsa State delivered on the 26th of October 2018 in Charge No. YHC/47C/2017 is accordingly set aside. The Appellant is discharged and acquitted. Consequently, the Appellant is to be released from custody.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abdullahi, J.C.A.
OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: I read the draft of the judgment by my learned brother, RIDWAN MAIWADA ABDULLAHI, JCA.
I agree with the reasoning and order stated in the judgment and which I hereby adopt as mine.
Appearances:
L. A. Mitee, Esq. with him, O. Awari, Esq. For Appellant(s)
E. T. Boatman, Esq. (PSC) MOJ, Bayelsa State For Respondent(s)
