BELLO v. STATE
(2020)LCN/14339(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, June 19, 2020
CA/A/799C/2017
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
MUSTAPHA BELLO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE LAW ON CONFESSIONAL STATEMENTS
The law on confessional statement has not changed and it can only be admitted where it is found to be voluntarily made and once so proved, it can ground a conviction, see DIBIA V STATE (2017) LPELR-48453 (SC) which said thus: “Once a confession is shown to be free and voluntary, positive and proved to be true, the maker, the accused person, can be convicted on it. See Joseph Okoro Abasi v. The State (1992) 8 NWLR (Pt.260) 383..PER NIMPAR, J.C.A.
DUTY OF THE TRIAL JUDGE WHERE AN ISSUE HAS ARISEN WHETHER A CONFESSIONAL STATEMENT IS ADMISSIBLE
See Gbadamosi v. The State (1992) 11 -12 SCNJ 265; (1992) 9 NWLR (Pt. 256) 465 wherein Ogundare, JSC re-stated the law that when an issue has arisen whether a confessional statement is admissible in evidence that issue of law must be determined by the trial Judge at the time the statement is being tendered in evidence and that it cannot be received in evidence without the prosecution first establishing that it was made voluntarily. See also Dawa vs The State (1980) 8-11 SC. 236 at 238, (1980) 12 NSCC 334 at 345. ….
See also KOLAWOLE V STATE (2015) LPLER- 24400(SC) – distinction between a confessional statement challenged on the ground that the accused did not make the statement and confessional statement challenged on the ground that it is not voluntarily made, the apex Court held:
“It is now trite that a confessional statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. In quite a number of cases decided by this Court, where on the production of a confessional statement or any statement, it is challenged by the defence on the ground that the accused did not make it at all, such an objection does not go to the admissibility of the statement and the trial Court is entitled to admit the confession in evidence as a statement the prosecution claims to have obtained from the accused person and thereafter to decide or find as a matter of fact whether or not the accused person in fact made the statement at the conclusion of the trial. See Godwin Ikpasa v. Bendel State (1981) 9 SC 7 at 28, Pele Ogunye v. The State (1999) 5 NWLR (Pt.604) 518. The position will however be different where the admissibility of a statement is challenged on the ground that it was not made voluntarily. In the later case 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 GBADAMOSI & ANOR. V. THE STATE (1992) 11/12 SCNJ 268, OJEGELE V. STATE (1988) NWLR (PT.71) 414.” PER OKORO, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT THERE IS A LAW THAT SAYS THE LANGUAGE IN WHICH A CONFESSIONAL STATEMENT WAS GIVEN MUST BE THE SAME AS THE ONE THE ACCUSED WOULD TESTIFY DURING THE TRIAL
There is no law that says that the language in which a confessional statement was given must be the same as the one the accused would testify during the trial. A witness is allowed to testify in a language of his choice and if he needs the assistance of an interpreter, the Court should provide. A person accused can opt to plead and testify in a language different from the language he gave his statement to the Police. The fact that the Appellant speaks Hausa, English and Yoruba was not denied. The Appellant was represented by counsel who did not apply for an interpreter nor complained during trial if the allegation is true, the apex Court in the case of EGWUMI V STATE (2013) LPELR-20091(SC) held as follows:
“An accused person who does not understand the language of the Court, and is not represented by counsel must be provided with an interpreter. Failure to provide an interpreter would amount to a clear breach of his right to fair hearing and may render the trial a nullity. Where accused person is represented by counsel and there was no objection on the issue, it would amount to a futile exercise to raise it on Appeal. SEE LOCKMAN V. STATE 1972 ALL NLR P.498 STATE V. GWONTO 1983 1 SCNLR P.142 MADU V. STATE 1997 1 NWLR PT. 483 P.386″ PER RHODES-VIVOUR, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT MINOR DISCREPANCIES OR CONTRADICTIONS IN THE ORAL TESTIMONY OF A WITNESS, DESTROYS THE CREDIBITY OF THE WITNESS
But minor discrepancies between a previous written statement and subsequent oral testimony do not destroy the credibility of witness. See; Ayo Gabriel Vs. The State (1989) 5 NWLR (Pt.457) 468 at 469; Jerry Ikuepenikan Vs. The State (2011) 2 NWLR (Pt. 1229) 449 at 454. It is also settled law that, it is not in all cases where there are discrepancies or contradictions in the prosecution’s case, that an accused person will be entitled to an acquittal. It is only when discrepancies or contradictions, are on material point or points in the prosecution’s case, which create some doubt that the accused person is entitled to benefit therefrom. See; John Agbo Vs. The State (2006) NWLR (Pt.977) 545; (2006) 1 SC (Pt.4) 73. Minor contradictions in the evidence of the prosecution witnesses cannot be fatal to the case of the prosecution. But convictions in respect of material contradictions in the evidence adduced by prosecution are unsafe and will be set aside. See; Akpnenva Vs. The State (1982) 4 SC 78; (1982) 13 NSCC 85; Nicholas Wankey Vs. The State (1993) 5 NWLR (pt. 292) 542; (1993) LPELR – 3470 (SC). It is however trite law that for any conflict, contradiction or mix-up in the evidence of the prosecution witnesses to be fatal to the case, the conflict or mix-up must be substantial and fundamental to the issues in question before the Court. See; MANSHEP NAMSOH VS THE STATE (1993) 5 NWLR (PT 292) 129; (1993) 6 SCNJ 55; (1993) LPELR – 1937 (SC).” PER ARIWOOLA, J.S.C. PER NIMPAR, J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of Niger State High Court sitting in Minna and presided over by Hon. Justice Aisha A. L. B. Bwari, delivered on the 20th June, 2016 wherein the Court below found the Appellant guilty of the offence of Armed Robbery and was sentenced to death and other terms of imprisonment. Dissatisfied with the Ruling delivered on 20th June, 2016 and the decision delivered on the 12th July, 2017, the Appellant filed a Notice of Appeal with leave of Court on the setting out 7 Grounds of Appeal which was deemed properly on the 19th February, 2019.
Facts giving rise to this Appeal are amenable to brief summary. The Appellant and 2 others were arraigned for armed robbery and possession of fire arm without license. During trial, the other two escaped from custody and the trial proceeded against the Appellant. The allegation is that the Appellant along with the 2 others while hooded broke into the house of the Complainant, Dr. Philip Usman Akor while armed with cutlasses and a pistol. They demanded for money and when they could not get the money they opted for handsets.
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In the process they inflicted injuries on the sons of Dr. Philip with cutlass and in the course of scuffle, the boys collected the cutlasses and in turn inflicted severe cuts on the Appellant and his friends. That the hood with which they had covered their faces fell off and the boys identified them (the appellant) as the boys in their neighbourhood. The armed robbers escaped but two of them were arrested at a clinic in Maikunkele while being treated for the injuries while one was arrested in the neighbourhood.
The prosecution called 3 witnesses while the Appellant testified in defence and did not call any witness. Written addresses were filed and exchanged, after due consideration, the Court below found the Appellant guilty and sentenced him accordingly thus this Appeal.
The Appellant’s Brief settled by E.S.OLUWABIYI, ESQ., dated 12th day of March, 2019 was filed on the 12/3/19. It distilled 3 issues for determination namely:
i. Whether the admission of Exhibit A (the alleged confessional statement of the Appellant) was not a breach of Sections 34 (1) (a) and 36(6) of the Constitution of the Federal Republic of Nigeria 1999 (as amended)
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which render same liable to be expunged from the Record of the Court. (Distilled from Grounds 1,2 and 5)
ii. Whether the reliance by the learned trial Judge on the irreconcilable, inconsistent and contradictory testimonies of the Respondent’s witnesses to convict the Appellant for the offences charged did not occasion a miscarriage of justice to the Appellant. (Distilled from Ground 4)
iii. Whether the Respondent proved all the ingredients necessary to ground the conviction of the Appellant for the offences of armed Robbery and illegal possession of firearms against the Appellant.
The Respondent’s Brief settled by M.G. CHIROMA ESQ., the Director of Public Prosecutions , Ministry of Justice, Niger State. The Respondent formulated a sole issue for determination in this Appeal as follows:
Whether considering the totality of the evidence adduced by the prosecution, the prosecution did not prove its case against the Appellant beyond reasonable doubt to sustain the conviction?
I have considered the Notice of Appeal, the Record of Appeal and the briefs of parties and I am inclined to adopt the sole issue donated by the Respondent,
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this being a Criminal Appeal, all issues revolve around the burden on the Respondent to prove the charge beyond reasonable doubt. In resolving the sole issue all the issues of the Appellant shall be considered.
The Appellant along two others, who escaped from prison custody during a jail break in the course of the trial and are now at large were charged with four (4) count charge of the offence Armed Robbery contrary to Section 1 (2) (a) and (b) and possession of fire arms without license contrary to Section 2(3) and 3(1) of the Robbery and Fire Arms (Special Provision) Act 2004 to which accused persons pleaded not guilty to the four count charged. The proceedings against 2nd and 3rd Accused persons were stayed in accordance with Section 259 of the Criminal Procedure Code of Niger State Cap. Laws of Niger State 1989 but continued against the 1st Accused and the matter proceeded to trial.
Thereafter the Appellant filed a Reply brief dated the 24th day of April, 2019.
I have carefully considered the Notice of Appeal, the record of Appeal and briefs of counsel in the Appeal. This being a criminal Appeal, all the issues of the Appellant can
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conveniently be considered under the sole issue donated by the Respondent because evaluation of evidence runs through all the issues and it will be expedient to resolve it seamlessly.
APPELLANTS’ SUBMISSIONS
ISSUE ONE
The Appellant in arguing issue 1 submitted that after dismissing the Appellant’s objection to the admissibility of the extra judicial confessional statement allegedly made by the Appellant, the learned trial Judge admitted same as Exhibit A and relied almost exclusively on the same to convict the Appellant of the offences charged.
Learned Counsel argued that from the Appellant’s testimony in the trial within trial contained at page 89 to 90 of the Record of Appeal, it shows that the Appellant was severally beaten and given cuts with cutlass on his head and leg by Inspector Saidu, Inspector Hussaini and Sgt Ndagi in order to forcefully extract confession out of him and the same testimony was not demolished under cross-examination by the Respondent.
The Appellant submitted further that for a confessional statement to be relied upon by a trial Court such statement must be voluntarily given by the Accused
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person citing Section 29 of the Evidence Act, 2011 and the cases of KOLAWOLE V STATE (2015) ALL FWLR (Pt 778) 864 @ 891 and OSENI V STATE (2011) ALL FWLR (Pt.592) 1722 @ 1741.
Appellant argued that the Respondent’s PW1 in the trial within trial whose evidence is contained at page 86-88 of the Record of Appeal claimed that the Appellant voluntarily confessed to committing the offence and the same witness at page 88 said “I asked him to tell me how he participated in the crime and which he freely did”; that the witness already concluded at that stage that the appellant indeed participated in the crime, it is his humble submission that the Appellant was tortured.
The Appellant submitted that by Section 34(1) (a) of the Constitution of the Federal Republic of Nigeria provides:
Every individual is entitled to respect for the dignity of his person, and accordingly
(a) No person shall be subjected to torture or to inhuman or degrading treatment.
Appellant submitted that the constitutionally guaranteed fundamental right of the Appellant is not taken away by his arrest and interrogation by the police, the series of beating during
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his arrest and interrogation constitute a flagrant breach of his fundamental right to the dignity of his person and the admission of Exhibit A which was extracted from that process renders the trial null and void. They urge us to so hold.
The Counsel submitted that it is clear from the evidence of the Appellant that the purported confessional statement admitted in evidence as Exhibit A was obtained contrary to the clear and extant provision of the Evidence Act. That the confessional statement was not obtained voluntarily and the learned trial Judge ought not to have relied on the same in arriving at his decision to convict the Appellant. He referred to the case of ONYENYE V STATE (2012) ALL FWLR (Pt 643) 1810 @ 1813.
The Appellant went further to submit that no matter how atrocious the crime allegedly committed by an accused person, confessional statement obtained through torture is inadmissible. He referred to A V SECRETARY OF THE STATE (2006) 1 ALL ER 575 H. L and BANJO V STATE (Supra). The Appellant further submitted that apart from involuntariness of Exhibit A, the reason the learned trial Judge ought not to have admitted it as Exhibit is that
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Exhibit A was recorded by PW3 in English language which language the PW3 said the Appellant understands and speaks very well. However at page 149 of the Record of Appeal, the Judgment of the Court below reflects that the accused speaks Hausa. The same was replete at page 54 of the Record of Appeal and other trial dates when the Appellant was recorded as speaking Hausa. He continued to submit that although PW1 Inspector Baba Ahmed Manta testified in trial within trial and stated that the Appellant speaks Hausa, English and Yoruba, the Appellant argued that Section 241 of the Criminal Procedure Code and Section 36(6) of the 1999 Constitution of Nigeria was violated because there was no interpreter present or sworn on record, relied on THE STATE V SALISU MOHAMMED GWONTO (1983) LPELR-3220(SC) and MALAM MADU V THE STATE (1997) LPELR-1808 (SC).
The Appellant submitted that Exhibit A is self-contradictory and therefore unsafe and unreliable in convicting the appellant of the offences charged. The testimonies of all the three witnesses for the Respondent showed that the Appellant and 2 others (now at large) entered the scene of robbery at about 8:30pm, Exhibit A
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said that the Appellants with other robbers left their drinking place at about 2000hrs and this is self-contradictory and unreliable. The Appellant urges the Court to resolve this in favor of the Appellant.
Arguing further, Appellant’s argued that reliance on Exhibit A in convicting the Appellant of the offence charged occasioned a miscarriage of justice to the Appellant because there is no scintilla of evidence before this Honorable Court that Exhibit A was made in the presence of the Appellant’s counsel or any legal practitioner. The Appellant submitted that the effect of such a failure on the part of the Respondent especially in this Appeal when the Appellant disowns the Exhibit A and that the investigation was not transparent. Citing the case of OWHORUKE V COMMISSIONER OF POLICE (2015) ALL FWLR (Pt 801) 1401-1407.
Appellant argued that assuming without conceding that the Appellant made Exhibit A, the law is trite that extra judicial statement to the police is not evidence of the truth of its contents – SUBERU V STATE (2010) 8 NWLR (pt. 1197) 586.
The Appellant urges the Court to expunge the said confessional statement, EXHIBIT A
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from the Record of the Court and not to attach any probative value to it
ISSUE TWO
The Appellant in arguing issue 2 submitted that it is a trite law that where evidence adduced by the plaintiff or prosecution is contradictory, it would have failed to discharge the onus of proof which the law places on the prosecution. He refer to YAKUBU V JAUROYEL (2014) ALL FWLR (pt 734) 1 @ 42.
Learned Counsel submitted that a cursory look at the evidence of the three (3) witnesses called by the Respondent in support of its case shows that their evidence is replete with manifest irreconcilable inconsistencies and contradictions which render the evidence and the Court cannot pick which of the pieces of evidence to believe but must, reject both citing KAYILI V YILBUK (2015) ALL FWLR (pt. 775) 347 @ 390.
Furthermore the Appellant submitted that the identification of the Appellant was not established as a participant in the armed robbery in the house of PW1 and that a necessary ingredient of the offence is not proved and he urged us to so hold.
Appellant argued that contradictions in the evidence of PW1 and PW2 are very material and ought to be resolved
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in favour of the Appellant and not to be explained away by the learned trial Judge that there was light in the room, he cited MOMODU V STATE (2008) ALL FWLR (Pt.447) 67 @ 122.
ISSUE THREE
The Appellant in arguing issue 3 argued that it is trite law that before a person can be convicted of any offence charged, all the ingredients of the offence must be proved by the prosecution. He restated the ingredients which constitute the offence of armed robbery in Section 1(1) of the Robbery and Firearms (Special Provision) Act Cap R11, Laws of the Federation 2004 thus:
1. That there was robbery or series of robberies
2. The robbery or each robbery was committed by person or persons who were armed
3. That the accused person was one of those who took part in the armed robbery.
Referred to YUSUF AKEEM V THE STATE (2017) LPELR-42465 (SC)
The Appellant submitted that such ingredients of the offence must all co-exist and must be proved beyond reasonable doubt by the prosecution to secure a conviction. He relied on the following authorities ADENIYI ADEKOYA V THE STATE (2012) LPELR-7815 (SC) 1 @ 30, and AKINLO IFEDAYO V THE STATE (2014)
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LPELR-24232(CA)
He argued further that prosecution witnesses testified that the Appellant had a pistol and the two others at large were armed with cutlasses at the crime scene, and apart from disputing the voluntariness of Exhibit A upon which the judge relied to convict him, Appellant also testified that he was not at the scene of the crime. The Appellant submitted that the cutlasses and pistol ought to have been tendered in evidence as proof that the Appellant was either armed with firearm or offensive weapon or was in the company of persons so armed. He submitted that the necessary ingredient of the offence of armed robbery were not proved by the prosecution FATAI OLAYINKA V THE STATE (2007) LPELR-2580 (SC) 1 @ 21-22.
The Appellant submitted that there is a doubt as to who in particular was seen by the prosecution witnesses, that there should have been an identification parade but the prosecution failed to conduct one. Also the failure of the prosecution to call a witness from Nasara clinic, Maikunkel, Minna to testify as to the identity of the Appellant as the person or one of the persons whose injuries were treated at the clinic further cast
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doubt on the case of the prosecution especially in line with the Appellant’s testimony that he was treated for injuries inflicted on him by the police. He urge the Court to resolve issue three in his favour and set aside the conviction and sentence of the Appellant.
RESPONDENT’S SUBMISSION
Whether considering the totality of the evidence adduced by the prosecution, the case against the Appellant was not proved beyond reasonable doubt to sustain the conviction?
The Respondent submitted that in every criminal trial the onus of proof lies on the prosecution which must prove its case against the accused person beyond reasonable doubt and which presupposes that all the essential elements of the offence must be proved beyond reasonable doubt. Relied on Section 135 of the Evidence Act 2011 (as amended), OKOH V STATE (2014) 8 NWLR (pt 1410) 502 @ 511, AJAYI V STATE (2013) 9 NWLR (pt 1360) 589, and BASSEY v. STATE (2012) 12 NWLR (pt 1314) 209 @ 218.
Respondent submitted that the prosecution can prove its case against an accused in any one of the following or all the following:
(a) By the evidence of the eye witnesses
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(b) By confessional statement of the accused person
(c) By circumstantial evidence. Citing AKWUOBI V STATE (2017) 2 NWLR (pt 1550) 421 @ 429
The Respondent listed the ingredients of the offence of armed robbery in Section 1(2) (a) and (b) of the Robbery and Fire Arms (Special provision) Act 2004.
On the 1st ingredient, that there was robbery or series of robberies, the Respondent submitted that PW1 by name Dr Philip Akor testified and stated how three armed robbers including the Appellant came into his house and demanded for money but there was no money to give them, they demanded for handsets which the victim gave them, not satisfied the robbers resorted to violence and used cutlass on PW1’s children, having been pushed to the wall, PW1’s children challenged the robbers, seized the cutlass from the armed robbers and started to also cut the robbers. In the process their mask fell from their faces and the tallest which is the accused picked the mask and took to their heels. That he recognized and identified them as boys who lived around their neighborhood, he took his children to the police station to report the incident so that they could be
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taken to hospital for treatment. PW1 said him and the police went round to clinics to see if the robbers come for treatment, and while in Nasara clinic, the accused and one Savior Ahmadu (the 2nd accused now at large) came for treatment of their wounds inflicted in them by the children of PW1 and they were arrested at the Nasara clinic. PW2 also testified in the same manner.
It is the Respondent case that the evidence of PW1, PW2 and Exhibit A – the statement of the accused proves the 1st ingredient of the offence.
The Respondent on the 2nd ingredient of the offence that each or any of the robbers was armed at the time of the operation of the robbery submitted that PW1 and PW2 and Exhibit A proved the 2nd ingredient of the offence. PW1 and PW2 testified that the accused in company of the other two now at large were armed with cutlass and pistol. The cutlass was used to inflict injuries on the head and leg of the Appellant. These were the injuries the accused testifying as DW1 both at the trial within trial and main trial alleged were inflicted by the police. From the evidence of Pw1, Pw2 and Exhibit A, it is not in doubt that the accused in company
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of the other two robbers were armed.
The Respondent on the 3rd ingredient that the accused took part or was one of the robbers in the robbery operation submitted that PW1, PW2 testified that when the fight between the robbers and PW2 became serious the mask on the faces of the two robbers fell off, they recognized the accused and realized they are boys in their neighborhood. The accused testifying as DW1 in the trial within trial and the main trial said he had wounds on his head and legs corroborating the evidence of PW2 who said he injured the accused on his head and leg. The content of Exhibit A which is the extra-judicial statement of the accused to the police, it is obvious that the accused was one of the robbers that took part in the robbery operation, it is their humble submission that the 3rd ingredient of the offence has been proved. They adduced credible, compelling and strong evidence in proof of its case against the accused person therefore the prosecution proved its case beyond reasonable doubt.
He submitted that none of the Appellant’s five Grounds of Appeal is against the result of the trial within trial which is an appealable
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decision.
The Respondent further argued that Ground 3 of the Grounds of the Appeal has been rendered incompetent because issue 1 and issue 4 were distilled from the said Ground 3 therefore it is incompetent.
RESOLUTION OF THE APPEAL
The Appellant was arraigned for the offences of armed robbery, attempted armed robbery and being in possession of firearm. He pleaded not guilty to the crimes and trial proceeded leading to his conviction and sentence. It is settled that the burden of proof is on the Respondent and the standard is beyond reasonable doubt, see STATE V MUSA (2019) LPELR-47541(SC) which held:
“The law is well settled that in order to obtain conviction on any charge or offence or in criminal cases generally, the burden of proof is on the prosecution throughout and it does not shift. See Obade v State (1991) 6 NWLR (pt.198)435 at 456; Godwin Igabele II Vs The State (2006)SCQLR (W125)322.” Per SANUSI, J.S.C.
It is also established that the Respondent can prove its case against the Appellant by three ways; the apex Court in the case of BILLE V STATE (2016) LPELR-40832(SC) listed the methods thus:
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“There are three ways of proving a crime in Court. These are: (1) Direct evidence. (2) Confessional statement/statements made by the accused, and (3) Circumstantial evidence. See Adeyemo v. State (2015) 4 SC (pt. 11) 112 at 129 paras 30-35. If the accused pleads guilty and admits the facts as laid the prosecution has no duty to prove what has been admitted.” Per NGWUTA, J.S.C.
The Respondent has the option of which method to use and it could be one or a combination of any of the methods as long as it can prove the ingredients of the offence. The Respondent called three witnesses and the Appellant testified in defence and did not call any witness. The ingredients of the offence of armed robbery under Section 1(2) (a) & (b) of the Robbery and Firearm Special Provision Act are as follows:
i. That there was a robbery or series of robberies
ii. That each or any of the robbery was armed at the time of the operation of the robbery
iii. That the accused was one of the robbers or had taken part in the robbery operation.
See STATE V AJAYI (2016) LPELR-40663(SC) which held thus:
“In order to convict an accused person for armed robbery the prosecution must prove
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the following ingredients: (a) That there was an armed robbery; (b) That the accused person was armed; and (c) That the accused was armed when he participated in the robbery. See OLAYINKA v. THE STATE (2007) 45 W.R.N 147. By the definition of the word “robbery” under Section 11 of the Robbery and Fire-Arms (Special Provisions) Act. Cap. 11, LFN 2004, robbery is established if accompanied by violence or threat of violence to facilitate the stealing. See ARUNA v. STATE (1990) 6 NWLR (Pt.155), OKOBI v. THE STATE (1954) NSCC vol. 15 page 520.” Per GALADIMA, J.S.C.
The Appellant contends that the confessional statement which was admitted after a trial within trial breached Section 34(1) (a) and 36(6) of the Constitution, they provide thus:
“Section 34 (1) (a):
Every individual is entitled to respect for the dignity of his person, and accordingly-
No person shall be subjected to or to inhuman or degrading;
And
Section 36(6)
Every person who is charged with a criminal offence shall be entitled to-
(a) To be informed promptly in the language in the language that he understands and in detail of the nature of offence;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
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(b) To be given adequate time and facilities for the preparation of his defence;
(c) To defend himself in person or by a legal practitioner of his own choice;
(d) To examine in person or by his legal practitioner the witnesses attendance and carry out the examination of witnesses to testify on his behalf before the Court or same conditions as those applying to the witnesses called by the prosecution; and
(e) Have, without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
The argument of the Appellant is that above sections were breached because the Appellant was tortured into making his extra judicial statement which was found to be confessional and admitted after a trial within trial. The duty of evaluating evidence is that of the trial Judge, the Appellant has not raised anything new to warrant this Court reversing the findings that there was no torture. This is confounded by the fact that the Appellant also retracted the statement. When an accused person flatly denies a statement, trial within trial is not necessary because he is simply saying the statement is not
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his and that is different from an accused person saying, he was tortured in which case, the prosecution must prove that the statement was voluntarily made. Appellant also in one breath said he was merely asked to sign a statement he did not make. With all the inconsistencies in exactly what the objection was, the trial Court dutifully conducted a trial within trial. The trial Court found that the statement was voluntarily made. The allegation of having scars on the head and the knee from cuts inflicted on him by the police came after trial within trial was not proved. He further alleged that he was beaten by over 10 policemen until he confessed, this too the trial Court disbelieved him. The allegation only surfaced during his defence in the trial within trial and not earlier.
Thus, whatever PW1 said at the trial within trial, in evidence in chief or cross-examination, stays there and cannot be used, in any way or form, in the main trial. However, the confessional Statement made by the Appellant to the Police, which was admitted in evidence after the trial within trial, is a different matter altogether. It can be said to have crashed through the barrier
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between those two proceedings, and lawfully transported from the trial within trial to the main trial, where it entrenched itself, as part and parcel of the case for the Prosecution, which is what it is – see EGBOGHONOME V. STATE (1993) 7 NWLR (Pt.306) 383 SC.
The Investigating Police Officer who recorded the statement gave consistent evidence and was not shaken under cross-examination. Looking at the inconsistent allegations made by the Appellant, he flatly denied all his particulars. It was in evidence that when he went to rob, PW1 testified that he was overpowered and inflicted with on the head and leg cuts. He therefore would naturally have scars from those injuries. He was arrested at Nasara clinic immediately after he escaped from the scene of crime. He went there to treat the injuries from the counter attack. He also admitted that the scars are from a cutlass, the same cutlass he went with when he went to rob. Having previously denied the statement in one breath, one might ask which is the statement that was not voluntarily made? If there was a confessional statement, he admits making it but involuntarily. The trial Court obviously found that the
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Respondent established that the statement was voluntarily made, some facts told the trial Court confirms the Appellant made the statement voluntarily as the allegation of torture was not supported by evidence. The beating and cuts came from the victims of his criminal activity.
The law on confessional statement has not changed and it can only be admitted where it is found to be voluntarily made and once so proved, it can ground a conviction, see DIBIA V STATE (2017) LPELR-48453 (SC) which said thus:
“Once a confession is shown to be free and voluntary, positive and proved to be true, the maker, the accused person, can be convicted on it. See Joseph Okoro Abasi v. The State (1992) 8 NWLR (Pt.260) 383…
which the Court of Appeal duly affirmed, was done by the trial Court upon taking into consideration the cautionary practice of subjecting the retracted confession to the tests prescribed in Chukwuka Ogudo v. The State (supra). Particularly as to the truth of the confession and its making, the opportunity the Appellant had to commit the attempted robbery and the other facts relevant to the proof of the offence of attempted robbery. There was no
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injustice done to the Appellant by the dismissal of his retraction of Exhibit “A”. See Gbadamosi v. The State (1992) 11 -12 SCNJ 265; (1992) 9 NWLR (Pt. 256) 465 wherein Ogundare, JSC re-stated the law that when an issue has arisen whether a confessional statement is admissible in evidence that issue of law must be determined by the trial Judge at the time the statement is being tendered in evidence and that it cannot be received in evidence without the prosecution first establishing that it was made voluntarily. See also Dawa vs The State (1980) 8-11 SC. 236 at 238, (1980) 12 NSCC 334 at 345. ….
See also KOLAWOLE V STATE (2015) LPLER- 24400(SC) – distinction between a confessional statement challenged on the ground that the accused did not make the statement and confessional statement challenged on the ground that it is not voluntarily made, the apex Court held:
“It is now trite that a confessional statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. In quite a number of cases decided by this Court, where on the
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production of a confessional statement or any statement, it is challenged by the defence on the ground that the accused did not make it at all, such an objection does not go to the admissibility of the statement and the trial Court is entitled to admit the confession in evidence as a statement the prosecution claims to have obtained from the accused person and thereafter to decide or find as a matter of fact whether or not the accused person in fact made the statement at the conclusion of the trial. See Godwin Ikpasa v. Bendel State (1981) 9 SC 7 at 28, Pele Ogunye v. The State (1999) 5 NWLR (Pt.604) 518. The position will however be different where the admissibility of a statement is challenged on the ground that it was not made voluntarily. In the later case 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 GBADAMOSI & ANOR. V. THE STATE (1992) 11/12 SCNJ 268, OJEGELE V. STATE (1988) NWLR (PT.71) 414.” PER OKORO, J.S.C.
Appellant’s contention seem to lose sight of the fact that he was identified at the scene of crime and arrested
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immediately after the commission of the crime at a clinic while treating wounds he got at the scene of crime. The Confessional Statement- Exhibit A was made the same day the Appellant was arrested. Failure to take the Appellant and the confessional statement to a superior Police Officer for endorsement cannot defeat the statement, see TOPE V STATE (2019) LPELR-47837(SC) where ABBA-AJI, JSC held thus:
“It is argued by the Appellant that Exhibit C did not contain the endorsement of PW2, the Investigating Police Officer, who took over from PW1. That the endorsement Form was not tendered alongside with Exhibit C to make it admissible in law. It is good that the administrative practice of endorsing the confessional statement of the accused person before a senior police officer be followed so that a gap in the evidence is not created, however, it has not yet received legal requirement for the admissibility of a confessional statement. “The failure to observe the procedure of taking the Accused/Appellant before a Superior Police Officer in respect to Exhibit has not rendered the statement inadmissible as it is not the requirement of any law. All that the taking
26
or the endorsement of the Superior officer would portend is making proof of its voluntariness easier and no more.” See Per PETER-ODILI, JSC in EHIMIYEIN V. STATE (2016) LPELR-40341(SC).” Per ABBA AJI ,JSC.
The question of the IPO suggesting commission of the crime is of no moment because there was overwhelming eye witness account of the Commission of the crime. It was not any alleged torture that informed the confessional statement, the trial judge was right and as observed earlier the confessional statement was voluntary made. The Appeal against the separate trial in the trial within trial is unmeritorious. The Appellant only named the other Police men he alleged beat him in his defence within the trial within trial, it was not possible therefore to call those Police officers to rebut the allegation of the Appellant, the prosecution having closed its case. The learned counsel cannot use his address as evidence; paragraph 3.16 of the Appellant’s brief is not informed by evidence before the trial Court.
The other argument put forward by the Appellant was that he gave his evidence in Hausa and not the language in which the confessional statement
27
was taken. There is no law that says that the language in which a confessional statement was given must be the same as the one the accused would testify during the trial. A witness is allowed to testify in a language of his choice and if he needs the assistance of an interpreter, the Court should provide. A person accused can opt to plead and testify in a language different from the language he gave his statement to the Police. The fact that the Appellant speaks Hausa, English and Yoruba was not denied. The Appellant was represented by counsel who did not apply for an interpreter nor complained during trial if the allegation is true, the apex Court in the case of EGWUMI V STATE (2013) LPELR-20091(SC) held as follows:
“An accused person who does not understand the language of the Court, and is not represented by counsel must be provided with an interpreter. Failure to provide an interpreter would amount to a clear breach of his right to fair hearing and may render the trial a nullity. Where accused person is represented by counsel and there was no objection on the issue, it would amount to a futile exercise to raise it on Appeal. SEE LOCKMAN V. STATE 1972
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ALL NLR P.498 STATE V. GWONTO 1983 1 SCNLR P.142 MADU V. STATE 1997 1 NWLR PT. 483 P.386″ PER RHODES-VIVOUR, J.S.C.
Appellant further submitted that there is a contradiction in Exhibit A, the confessional statement, he contended that there is a difference in time between what PW1 said that the Appellant entered his house about 8.30pm while in the confessional statement it was said the Appellant left the drinking place for the scene of crime at 2000hrs. In the first place a contradiction cannot arise between opposing sides that is not the law. Contradiction occurs within the case of a party. It is always bad for the case of a party, expectedly, the Appellant will contest the case of the prosecution and what he said is not a contradiction in the case of the Respondents. Contradiction was defined in the case of ADOBA V STATE (2018) LPELR-44065(SC) as follows:
“It is already settled law that “two pieces of evidence contradict one another when they are by themselves inconsistent” and a discrepancy may occur when a piece of evidence stops short of or contains a little more than what the other piece of evidence says or contains, some minor difference in
29
details. But minor discrepancies between a previous written statement and subsequent oral testimony do not destroy the credibility of witness. See; Ayo Gabriel Vs. The State (1989) 5 NWLR (Pt.457) 468 at 469; Jerry Ikuepenikan Vs. The State (2011) 2 NWLR (Pt. 1229) 449 at 454. It is also settled law that, it is not in all cases where there are discrepancies or contradictions in the prosecution’s case, that an accused person will be entitled to an acquittal. It is only when discrepancies or contradictions, are on material point or points in the prosecution’s case, which create some doubt that the accused person is entitled to benefit therefrom. See; John Agbo Vs. The State (2006) NWLR (Pt.977) 545; (2006) 1 SC (Pt.4) 73. Minor contradictions in the evidence of the prosecution witnesses cannot be fatal to the case of the prosecution. But convictions in respect of material contradictions in the evidence adduced by prosecution are unsafe and will be set aside. See; Akpnenva Vs. The State (1982) 4 SC 78; (1982) 13 NSCC 85; Nicholas Wankey Vs. The State (1993) 5 NWLR (pt. 292) 542; (1993) LPELR – 3470 (SC). It is however trite law that for any conflict,
30
contradiction or mix-up in the evidence of the prosecution witnesses to be fatal to the case, the conflict or mix-up must be substantial and fundamental to the issues in question before the Court. See; MANSHEP NAMSOH VS THE STATE (1993) 5 NWLR (PT 292) 129; (1993) 6 SCNJ 55; (1993) LPELR – 1937 (SC).” PER ARIWOOLA, J.S.C
The substantiality of contradiction was not established by the Appellant. The difference of about 30minutes in time between the parties cannot affect the merit of the case. That is neither material nor substantial as to affect the case of the Respondent particularly where the ingredients of the offence are proved. The trial Court found no contradiction that could affect the strength of the Respondent’s case and I also agree.
The confessional statement is usually tested before it can be relied upon to convict the accused so it goes beyond just making of a confessional statement or the retraction of same, see DIBIA V STATE (2017) LPELR-48453(SC) where EKO, JSC expounded further on the principle on when to rely on a retracted confessional statement in the following words:
The Appellant, on established authorities emanating
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from this Court, including Onyenye v. The State (2012) 15 NWLR (Pt. 1324) 586 at 619; Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1 at 45; Egboghonome v. The State (1993) 7 NWLR (Pt.306) 383; Edet Ekpe v. The State (1994) 12 SCNJ 131, (1994) 9 NWLR (Pt. 368) 263; Gabriel v. The State (2010) 6 NWLR (Pt.1190) 280, etc, did agree and concede correctly in law that a retracted confessional statement is admissible in evidence in law. It is a valid piece of evidence on which a Court of law can act on to determine the guilt of the maker. It is not the law, based on the inconsistency rule, that a retracted confessional statement that is credible ceases to be reliable merely because the maker, upon his subsequent change of heart, had made a retraction of his previous confession. As this Court, per Rhodes-Vivour, JSC, stated in Chukwuka Ogudo v. The State (2011) (supra) at page 26, paras. C-G – “A Court can convict on the retracted confessional statement of an accused person but before this is properly done the trial Judge should evaluate the confession and (the) testimony of the accused person and all the evidence available. This entails the trial Judge examining the
32
new version of event presented by the accused person which is different from his retracted confession and the Judge asking himself the following questions – (a) Is there anything outside the confession to show that it is true (b) Is it corroborated (c) Are the relevant facts made in it of facts true as they can be treated (d) Did the accused person have the opportunity of committing the offence charged (e) Is the confession possible (f) Is the confession consistent with other facts which have been ascertained and have been proved. See Kanu & Anor. v. King (1954) 14 WACA p. 30; Mbenu v. State (1988) 3 NWLR (Pt.84) p. 615; Stephen v. State (1986) 5 NWLR (Pt.46) p. 78. These tests have been designed to ensure that no wrong person is convicted on a purported confession that turns out to be a hoax or sham. It is one of the steps designed by the Courts to ensure that only persons who admit their guilt truly are convicted for their misdeeds. The standard of proof the trial Judge requires for corroboration of the fact that the accused person made the retracted confession is not as high as this appellant has made it to appear. Where there is circumstantial evidence
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corroborating the contents of a retracted confessional statement, the trial Judge may draw the inference that the confessional statement was made by the accused and that his attempt to retract the same was a belated after thought; so stated by Coker, JSC, In Re: Nwahurubia – Unreported SC 476/66 of 9th December, 1966. Once the confessional statement is supported and consistent with other evidence, the accused may be convicted on the basis of his confessional statement. SEE THE STATE V. BAKO -UNREPORTED SC. 219/1968 OF 29TH NOVEMBER, 1968 PER LEWIS, JSC.” PER EKO, J.S.C
Other surrounding facts exist to verify the content of a confessional statement in this case. There were eye witnesses whose evidence was not controverted, the Appellant was arrested same day at a clinic while being treated. He was identified by the victims and the natures of the wounds are consistent with the evidence of the prosecution witnesses. The facts in the confessional statement also are consistent with facts outside of it. I have no doubt that the confessional statement was proved and the trial Judge rightly relied on it to convict the Appellant. Furthermore, reliance on the case
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of OWHORUKE V COMMISSIONER OF POLICE (2015) ALL FWLR (Pt. 801) 1401 at 1407 is of no moment because the apex Court in that case did not say that when a confessional statement is not taken in the presence of counsel to the accused, it is should be rejected and it was not a ratio of the decision, it said:
“It is seriously recommended that a confessional statement should only be taken from such suspects if and only if his counsel is present or in the presence of a legal practitioner. Where this is not done such statement should be rejected by the Court”.
The beginning of the statement sealed every argument of the Appellant. The learned jurist said, “seriously recommended”, it did not say that is the law but a proposition. The word ‘recommended’ by dictionary.com is defined as worthy of confidence, acceptance, and use; also advisable or expedient, and not being a ratio decidendi, it is not the law but a proposal.
Assuming the confessional statement was not proved, there is still enough evidence to convict the Appellant. The evidence of prosecution witnesses which was not impeached under cross-examination is
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strong enough to secure a conviction.
The Appellant further contended that the right to fair hearing was breached because he alleged that he was beaten but the Court ruled against him. With all due respect, over ruling the Appellant cannot amount to breach of fair hearing. A Court must resolve issues one way or the other. The fact that Appellant was given an opportunity to state and allege that he was beaten means he was given a hearing. Fair hearing was described in the case of FMBN & ANOR V OWODUNNI (2018) LPELR-44556(SC) thus:
“By Section 36(1) of the Constitution of the Federal Republic of Nigeria (Promulgation) 1999 as amended it is guaranteed that in the determination of his civil rights and obligations, including question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time by a Court or other Tribunals established by law in such manner as to secure its independence and impartiality. Fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. It does not matter whether the Panel is
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Administrative or quasi criminal Panel or body See: – 1. R. ARIORI & ORS V MURAIWO B. O. ELEMO & ORS (1983) 1 SC 13 AT 23 – 24 per OBASEKI, JSC. 2. CHIEF J.L.E. DUKE V GOVERNMENT OF CROSS-RIVER STATE & ORS (2013) 1 NWLR (PART 1356) 347 AT 366 B – C per GALADIMA, JSC who said:- The principle of fair hearing is that both sides must be given an opportunity to present their respective cases… It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto.” In other words equal opportunity must be given and accorded all sides to the dispute before a Court of law or before Disciplinary Committee, Administrative Panel and the likes in accordance with the dictates of Section 36(1) of the 1999 Constitution as amended. Where it is proved that a Party was not accorded or given opportunity to defend himself before a Court or Tribunal, the proceedings of such Court, Tribunal, Panel or Ad Hoc Committee would be rendered a nullity and will be vacated or set aside forthwith. See NICHOLAS CHUKWU JEKWU UKACHUKWU VS PDP & ORS (2014) 2 SCM 2002 AT 223 F – D – 224 A – H
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per K. M. O. KEKERE-EKUN. JSC
It is certain that fair hearing by a Court or other judicial Tribunal under Section 36(1) of the 1999 Constitution – the ground norm, incorporates the audi alteram partem rub. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a Court or Tribunal without being given an opportunity of being heard. The rule is one of the essential cornerstones of our judicial Process. See: AMADI V. THOMAS APLIN CO. LTD. (1972) 4 5C 228: KANO N. A. V. OBIORA (1959) SCNLR 577.
It is only when the party aggrieved has been heard that the trial Judge would be seen as discharging the duty of an unbiased umpire. Learned Counsel for the Appellant feels that his surmised absence of miscarriage of justice ameliorates an infringement of a provision of fundamental human right. Such is not correct. The violation of the rule of audi alteram partem, per se, lays the breach of the Fundamental Human Right. Once the right is violated, it is irrelevant whether a decision made subsequent thereto is correct. See: TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 9 SCNJ 1; (1989) 4 NWLR (PT.117) 517.
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A denial of the right to be heard is a breach of constitutional right, natural justice and rules of Court. Such cannot and ought not to be condoned in any respect. See OTAPO V. SUNMONU (1987) 2 NWLR (Pt. 58) 587. It is a basic and fundamental principle of the administration of justice that no decision can be regarded as valid unless the trial judge or Court has heard both sides in the conflict. See DEDUWA V. OKORODUDU (1976) 9 – 10 SC. 329.
On the right to the dignity of Appellant’s person, reference was made to the alleged torture, if it were proved, then one can safely agree that a person should not be subjected to torture or in human treatment, however, the scars in issue here did not arise from Police torture. The Appellant went on a robbery operation and was inflicted the injuries by the victim and wants to shift it to Police torture. There is cogent evidence on where he got the wound and scars. Learned counsel is twisting the law here by importing constitutional provisions that have no relevance to the facts in issue, parties should stop screaming breach of fair hearing when there is no ground to justify same. See
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AYOADE V STATE (2020) LPELR-49379(SC) where the apex Court said:
“The term, fair hearing, is a recurring decimal in criminal cases because, it is a fundamental right guaranteed to citizens under the Constitution, and a breach of which will nullify the proceedings in favour of a victim, therefore, it is very easy for lawyers and litigants alike to come crying to an appellate Court that their right to fair hearing has been violated. But “fair hearing” is not just an expression of mere rhetoric or empty verbalism; it cannot be construed outside the facts, and a Party alleging the breach must show clearly that the said right is violated or breached – see Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC. In other words, it is not enough for a Party alleging such a breach to merely mention fair hearing, and expect this Court to automatically side with him and determine the case in his favour; just for the asking. The facts of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading, as this Court made very clear in Adebayo V. A.-G., Ogun State (supra). – – – Circumstances where a Party cannot be
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heard to complain of being denied the right to fair hearing were stated by the Apex Court as follows: “l said it in the past and will say it again that the duty of the Court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case, but it is not the duty of the Court to make sure that a Party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A Party, who refuses or fails to take advantage of the fair hearing process, created by the Court, cannot turn around to accuse the Court of denying him fair hearing. This is not fair to the Court, and counsel must not instigate his client to accuse the Court of denying him fair hearing. After all, there is the adage that the best the owner of the horse can do, is to take the horse to the water, he cannot force it to drink the water. The horse has to do that by itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter.”
The Appellant further contended that the case of the prosecution was full of inconsistencies and contradictory, the word was defined earlier. Appellant referred to the evidence
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of PW1 and PW2 that PW1 told the Court below that the mask fell off the faces of two of the armed robbers while PW2 said the mask fell of the Appellant’s face. I do not accept that it is inconsistency because each person is giving evidence as to what he witnessed. If the face mask did not fall off, then it could a doubt create. In any case, the case against the Appellant was established by both witnesses that the mask he wore fell off and his face was seen, thus and he was identified. The other aspect emphasized by the Appellant is the light situation in the house when the robbers came and how they were identified. The eye witnesses admitted there was no PHCN supply but there was light from a rechargeable lamp. The contention that there was total darkness cannot hold because light from a lantern can be bright enough for recognition of previously known faces. The Appellant is wrong to conclude that there was total darkness that is why the family members were sitting in the veranda and not inside the house. Owners of a house can decide where to relax in the evening, that could be done even when there is light. PW2 during re- examination clarified what he
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meant when he said there was no light to mean no NEPA (PHCN) light at the time the robbers came. PW1 admitted knowing the Appellant in the neighbourhood before the day of the incident so he was not a total strange to the victims. The trial Judge in the Judgment found that there was no material contradiction as to affect the case of the Respondent and further identification came from the wounds inflicted on the Appellant as he was arrested at Nasara Clinic while treating his wounds. The essence of the contradictions if any is to create a doubt in favour of the Appellant, however, in this case, no doubt was created in the circumstances of this case and the case of MOMODU V STATE (2008) ALL FWLR (Pt. 447) 67 at 122 is not relevant here.
Did the Appellant raise an alibi? The learned counsel to the Appellant argued that the Appellant told the Police that he had just alighted from a taxi when he was arrested. The Appellant therefore is saying that he was not at the scene of crime. Recall that he was arrested at the clinic trying to treat wounds inflicted by the victim and he was together with his co accused. He failed to give the particulars of the taxi and who
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were in the taxi with him so as to assist the Police in investigating the alibi. An alibi cannot be at large, the burden of giving facts to establish alibi is on the accused and not the prosecution, see AKEEM V STATE (2017) LPELR- 42465(SC) which held:
“When a suspect arrested for committing a crime, e.g armed robbery, Murder etc and he says he has an alibi, what he is saying is that he was nowhere near or at the scene of the crime when it was committed. He is saying that he was elsewhere, so he could not have committed the offence. The onus of establishing an alibi is on the suspect since it is within his personal knowledge. The suspect should at the first opportunity he has to write a statement raise the defence of alibi. An alibi should be very detailed on where he was at the time the offence was committed. He should give the names of people he was with, their addresses e.t.c. A detailed alibi is mandatory since a plea of alibi is demolished if that prosecution leads sufficient evidence to fix the suspect at the scene of crime at the time in question. An alibi is established not on its proof beyond reasonable doubt, but on the balance of probabilities.
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See Osuagwu v State (2013) ALL FWLR (Pt. 672) p. 1605. Mohammed v State (2015) 2 SC (Pt. 1) p. 163, Uche v State (2015) 4-5 SC (Pt. 11) p.140, Sani v State (2015) 6-7 SC (Pt. 11) p. 1. In this case the accused person raised the defence of alibi for the first time during his trial. A genuine alibi always fresh in the mind of the accused person. Since he never raised the defence of alibi at the earliest opportunity, i.e when he wrote his statement, raising it in Court during trial is an afterthought. By raising the defence of alibi for the first time during trial, the accused person is deliberately denying the investigating Police Officers the opportunity to investigate the alibi, a clear attempt to frustrate the trial, knowing fully well that it is too late to investigate an alibi during trial. In the circumstances such an alibi should not be considered as there is nothing to consider.” Per RHODES-VIVOUR, J.S.C
In any charge of armed Robbery, the prosecution must prove the ingredients of the offence as listed earlier on this judgment, see also YUSUF AKEEM V THE STATE (2017) LPELR-42465 (SC). Prosecution witnesses proved that there was a robbery and that
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the Appellant who was identified at the scene was arrested at Nasara Clinic treating wounds inflicted on him and Exhibit A the confessional statement of the Appellant wherein he admitted committing the offence narrated how the offence was executed. The robbers were armed with a locally made pistol and cutlasses which were abandoned in their haste to escape from the scene of crime when their identity was exposed. Appellant was cut on the head and his leg. PW2 identified the Appellant clearly. I agree with the trial Court in its findings that the Appellant committed the offence and the sentence was lawful. Failure to tender the weapons used is not fatal to the case of the Respondent, see FATAI OLAYINKA V THE STATE (2007) LPELR-2580(SC); MUSA V STATE (2016) LPELR-42803 (SC); JATO V STATE (2019) LPLER- 49310 (SC) and SALEH V STATE(2018) LPELR-46337(SC) wherein GALUMJE, JSC held:
“This Court has in a number of decided cases, held that the failure by the prosecutor to produce and tender in evidence the weapon used in the commission of an offence is not fatal, provided there is circumstantial evidence strong enough to point to the accused as the perpetrator of the
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crime. See Olayinka v State (2007)9 NWLR (Pt.1040)561, Victor v State (2013)12 NWLR (Pt.1369)465, State v Umaru (2014) LPELR 22466 (SC). In the instant case, the appellant admitted that he used a stick to hit the deceased. PW1 and PW2 confirmed that it was a stick that was used in hitting the deceased on the head. With these pieces of evidence, I am of the firm view that the failure to produce the stick by the prosecution is not fatal to its case.” Per GALUMJE, J.S.C.
The prosecution is generously not under any duty to call a host of witness or any particular witness as long as it can prove the ingredients of the offence, see IKENNE V THE STATE (2018) LPELR- 44695(SC) where EKO,JSC held:
“The Appellant has also made a huge fire ball out of the failure of the prosecution to call eye witnesses whose evidence, they say were material. And on this failure, they submit that these eye witnesses were not called because their evidence, if they were called, would be unfavorable and/or prejudicial to the prosecution’s case. They pitch this argument on the statutory presumption under Section 167(d) of the Evidence Act, 2011. That presumption does not avail the
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Appellant. It also does not impose on the prosecution the duty to call particular witnesses. The burden on the prosecution to prove the guilt of the Appellant beyond reasonable doubt is discharged, once the prosecution proved same by some qualitative evidence, and not necessarily on any quantum of evidence. Credible evidence of a single witness, believed, completely discharges this burden: IJIOFOR v. THE STATE (2005) 5 N.S.C.Q.R (Pt. 1) 209 at 2037. The duty of the prosecution to prosecute and not to persecute the Appellant, does not impose on them any duty or burden to call hostile witnesses. Their duty is discharged if they made available, at the trial, facts uncovered from investigation that establish the alleged guilt of the accused person; and the defence has been given an opportunity to call any evidence, if they are mindful to, that rebuts or refutes the prosecution’s evidence. Cross-examination of prosecution’s witnesses is another opportunity the defence has to dislodge the prosecution’s case. The presumption under Section 167(d) of the Evidence Act works on both sides. The defence made so much fuss about the failure of the prosecution to call the
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alleged eye witnesses without telling the world why they also did not call the evidence of these alleged witnesses.” Per EKO, J.S.C
Failure to call staff of the clinic cannot affect the case of the Respondents because those who arrested the Appellant at the clinic testified. The prosecution witnesses proved the case beyond reasonable doubt.
Flowing from above and having resolved the sole issue adopted by the Court for determination in this appeal against the Appellant, the appeal lacks merit and is hereby dismissed. The Judgment of Niger State High Court of Justice in suit No: delivered on the 20th June, 2016 is hereby affirmed.
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now the draft of the lead judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA.
His Lordship has appraised and resolved the sole issue for determination. I agree that the appeal lacks merit and I too dismiss the same. Let me however add few words.
The law is settled that in order to secure conviction in a criminal trial, the prosecution has a duty to prove all the ingredients of the offence charged. Failure to prove any of the ingredients of
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the offence charged will entitle the accused to an order of discharge and acquittal by the trial or appellate Court.
In establishing the ingredients of the offence, the evidence of the prosecution may flow from any of the following:
1. Voluntary confessional statement of the accused person(s); or
2. Circumstantial evidence which must be cogent, unequivocal and compelling leading to the irresistible conclusion that the accused and no other person committed the offence; or
3. Evidence of eye-witness or witnesses otherwise known as direct evidence.
See also: THE STATE V. SUNDAY (2019) LPELR-46943 (SC); TAIYE V. STATE (2018) LPELR-44466(SC); UGOCHUKWU OKEREKE V. THE STATE (2016) LPELR – 40012 (SC); AKINLOLU V. THE STATE (2015) LPELR – 25986 (SC); OGEDENGBE V. THE STATE (2014) 12 NWLR (pt. 1421) 338; UGBOJI V. STATE (2017) LPELR-43427(SC); AGBOOLA V. STATE (2013) 11 NWLR (PT. 1366) 619 AT 641.
In OMOJU V. FRN (2008) LPELR-2647 (SC) p. 17 paras A-D, the apex Court, per Niki Tobi, JSC (of blessed memory) held thus:
“A confession is the strongest evidence against an accused person as it determines his guilt in most cases. A
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voluntary confession made by an accused person is relevant and admissible against him at the trial… As a matter of law, an accused person may be convicted on his confessional statement alone if, (a) the confession is free and voluntary; (b) there are facts in the evidence for the prosecution which show that the confession is true.”
See also: BASSEY V. STATE (2019) LPELR-46910 (SC); AWOSIKA V. STATE (2018) LPELR-44351 (SC); MUSA V. STATE (2018) LPELR-43846 (SC); AJIBADE V. STATE (2012) LPELR-15531 (SC); AKPAN V. STATE (2001) LPELR-383 (SC).
The Appellant’s counsel herein argued that the trial Court ought not to have relied on Exhibit A (the Appellant’s confessional statement), alleging that the same was made involuntarily. It is on record that the trial Court conducted a trial within trial and found that the statement was voluntarily made; as the Appellant’s allegation of torture was not supported by evidence. It is pertinent to stress here that an accused person can be convicted solely on his confessional statement once it is found to be voluntary, direct and positive. The need for corroborative evidence is only desirable and
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not necessarily mandatory. In AYEDATIWOR V. STATE (2018) LPELR-43847 (SC) AT PP. 23-24 PARAS E-C, Ariwoola, JSC stated:
“Ordinarily, and the law is trite on the point that, a man may be convicted on his own confession alone even without corroboration and there is no law against it. The position of the law is that if a suspect makes a free and voluntary confession in his extra judicial statement to the police, which confession is found to be direct and positive and the Court is satisfied with its truth, such confessional statement alone is sufficient to ground conviction without corroboration. See; ASIMIVU ALARAPE & ORS. V. THE STATE (2001) 2 NWLR (PT.705) 79; (2001) 2 SC 114; (2001) LPELR- 412 (SC); OZANA UBIERHO V. THE STATE (2005) 5 NWLR (PT. 919) 644; (2005) 2 SC (PT. 1) 18; (2005) LPELR- 3283. There is certainly no evidence stronger than a person’s own admission or confession. The confession is admissible. See; Akeem Agboola Vs. The State (2013) 11 NWLR (Pt.1366) 619; (2013) 8 SCM, 157; (2013) All FWLR (Pt. 704) 139; (2013) LPELR-20652.”
See also: KAMILA V. STATE (2018) LPELR-43603 (SC); OLAOYE V. STATE (2018) LPELR-43601
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(SC); FAMUYIWA V. STATE (2017) LPELR-43836 (SC).
It therefore follows that where a confessional statement meets the test of admissibility, it alone without more, is sufficient to ground a conviction for the offence which was admitted by the accused. And the requirement of proof beyond reasonable doubt in criminal cases would have been completely and fully satisfied by the prosecution. In ALO V. STATE (2015) LPELR- 24404 (SC) p 51-52 PARA C-A, it was held that:
“Once such a confessional statement meets the test of admissibility, it alone without more, is sufficient to ground a conviction for the offence which was admitted by the accused. And the requirement of proof beyond reasonable doubt in criminal cases would have been completely and fully satisfied by the prosecution.”
See also: GODSGIFT V. STATE (2016) LPELR- 40540 pp37-38 PARAS F-E.
Accordingly, in the instant case where the trial Court found the confessional statement of the Appellant to be direct and positive and it believed in its truth, the trial Court had the legal backing to convict the Appellant on his confessional statement. More so as there were other
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corroborating circumstantial and direct evidence adduced by the Respondent to back up the admission made by the Appellant in the said Exhibit A. The Appellant was identified by the victims at the scene of the crime and later arrested same day at a clinic where he was treating the wounds inflicted on him. This evidence was not challenged.
Without saying more, and resting on the more detailed reasons in the lead judgment, I hold that the Respondent proved all the ingredients necessary to sustain the charge against the Appellant and therefore proved its case beyond reasonable doubt.
In conclusion, I also dismiss the appeal and affirm the Judgment of the High Court of Niger State delivered on 12th July, 2017 in SUIT NO: NSHC/MN/11C/2013.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother YARGATA BYENCHIT NIMPAR, JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein, I adopt the Judgment as mine with nothing further to add.
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Appearances:
S. OLUWABIYI, Esq. For Appellant(s)
G. CHIROMA, Esq. (DPP NIGER STATE) For Respondent(s)
