CHIGOZIE OKEKE v. THE PEOPLE OF LAGOS STATE
(2019)LCN/12874(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/L/1001C/2018
RATIO
INTERPRETATION: MEANING OF CONFESSION
“…it will not be out of place to look at what will amount to a confession in law. Section 28 of the Evidence Act, 2011 answers this question. The section provides thus: A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the offence. This definition has received a lot of judicial pronouncement. I will look at a few of them. InAkpan vs. State (2001) 7 SC (Pt. II) 29, the apex Court per Karibi-Whyte, JSC held: Section 27(1) of the Evidence Act has defined “confession”, as “an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime”. This definition is wide enough to cover both extra-judicial and judicial confessions. Extrajudicial confessions are those made otherwise than in the course of judicial proceedings.” PER TOBI EBIOWEI, J.C.A.
CONFESSIONAL STATEMENT: TEST OF A CONFESSIONAL STATEMENT
“The tests of determining the veracity or otherwise of a confessional statement are: (i) Whether there is any evidence outside the confession to show that it is true;
(ii) Whether it is corroborated no matter how slightly;
(iii) Whether the facts contained therein so far as can be tested are true;
(iv) Whether the accused had an opportunity to commit an offence;
(v) Whether the confession of the accused person was possible and,
(vi) Whether the confession was consistent with other facts which have been ascertained and proved. See: Ubierho vs. State (2005) 2 SC (Pt. 1) 18 at 21-22, Nsofor & Anor vs. State (2005) All FWLR (Pt. 242) 397 at 411-412. In other words, confession must be voluntary and not obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority. In the same vein, confession must be direct, clear and unambiguous and positive. See; Niyi Akinmoju vs. The State (2000) 4 SC (Pt. l) 64 at 77. In Joseph Idowu vs. The State (2000) 7 SC (Pt.11) 50 at 62, it was held that a free and voluntary confession of guilt made by an accused person, if direct and positive is sufficient to warrant conviction. And the fact that a voluntary, positive and unequivocal confession has been retracted does not necessarily make it inadmissible but before conviction can be found on such retracted alleges that his confessional statement was not made voluntarily. See: Ojegele vs. State (1988) 1 NWLR (Pt.71) 414 (1988) 5 SCNJ (Pt.2)231.” PER TOBI EBIOWEI, J.C.A.
CRIMINAL LAW: WHETHER A PERSON CAN ADMIT TO AN OFFENCE HE IS NOT CHARGED FOR
“See also Onyenye vs. State (2012) 15 NWLR (PT.1324) 586; Lasisi vs. State (2013) 9 NWLR (Pt. 1358) 745. To amount to a confession the maker must have been charged with a crime and knowing the offence for which he is charged, he makes an admission or some inferences that he committed the offence. A person cannot admit to an offence he does not know about. The implication of this, is that, the confession which a Court will accept and treat as one must be a confession made after the maker has knowledge of the charges against him. The admission must be of the specific offence for which he is charged. It will not amount to a confession if the maker does not know about the offence or if he confesses to another offence different from the one for which he is charged. Usually, it is called a confessional statement.” PER TOBI EBIOWEI, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE
“…this Court has stated in such cases as Okoro Mariagbe vs. The State (1977) 3 SC 47; and Edet Obosi vs. The State (1965) NMLR 119, the latter cited with approval in the dictum of Lord Normand in Teper vs. Queen to the effect that- ‘Circumstantial evidence may sometimes be conclusive but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another? It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which would weaken or destroy the inference.’ This is why Obaseki, JSC applying the same test in Onah vs. The State (1985) 3 NWLR (Part 12) 236 at 244 observed as follows: ‘The High Court and all Courts of law are in duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. They should act on evidence and not on hunches, rumour or suspicion so as to ensure that justice in its purest form is administered in the Courts to all and sundry.'”
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
CHIGOZIE OKEKE Appellant(s)
AND
THE PEOPLE OF LAGOS STATE Respondent(s)
TOBI EBIOWEI, J.C.A. (Delivering the Leading Judgment):
The Appellant was charged along with Emeka Ulasi on a four counts charge of conspiracy and stealing. The said Emeka Ulasi was discharged and acquitted on all the counts. The Appellant who was 1st Defendant was not that lucky as he was convicted for counts 2, 3 & 4 by the lower court. These are for the counts of stealing. He was sentenced to 3 years imprisonment from 3/5/18 for all the counts which are to run concurrently. The Appellant is serving his sentence at this material time. He is dissatisfied with the judgment and has appealed to this Court. This appeal is predicated on the amended notice of appeal filed on 21/9/18 and deemed on 25/10/18. The appeal has 8 grounds. The Appellant in his brief filed on 21/9/18 and deemed on 25/10/18 raised 4 issues for determination. The issues for determination raised by the Appellant are as follows:
i. Whether the learned trial judge was right in her finding that Exhibit P1 was a confessional statement of the Appellant and that the confessional statement was corroborated by other facts in evidence in the circumstances of this case? This issue is distilled from grounds one and seven of the Amended Notice of Appeal.
ii. Whether the learned trial Judge properly evaluated the evidence adduced at the trial when she convicted the Appellant of the offence of stealing in counts 2 to 4 of the Amended charge in this case? This issue is formulated from grounds two, five and six of the Amended Notice of Appeal.
iii. Whether the prosecution established the offence of stealing in counts 2 to 4 of the Amended charge beyond reasonable doubt to warrant the conviction of the Appellant by the learned trial judge in the circumstances of this case? This issue is based on grounds three, four and seven of the Amended Notice of Appeal and
iv. Whether the order of restitution made by the learned trial judge with respect to the property situate at No 8 Ambrose Street, Satellite Town, Lagos State was proper in law given the peculiar circumstance of this case? This issue is formulated from ground eight of the Amended Notice of Appeal.
The Respondent in its brief filed on 16/1/19 but deemed on 17/1/19 raised 3 issues for determination. They are similar with the issues raised by the Appellant. For completeness, I reproduce the Respondent?s issues for determination.
i. Whether having regard to the evidence adduced before the lower Court, the learned trial judge was not right when she held that Exhibit P1 amounted more or less to confessional statement of the Appellant and that same was corroborated by other evidence given at the trial and thereafter convicted the Appellant on same for the offence of stealing. This issue is formulated from Grounds 1 and 6 of the Amended Notice of Appeal.
ii. Whether the trial Court was not right when it held that from the totality of the evidence adduced before it, the Prosecution had been able to prove counts 2 to 4 on the offences of stealing against the Appellant beyond reasonable doubt and thereby convicted him of same. This issue is formulated from grounds two, three, four, five, and seven of the Amended Notice of Appeal.
iii. Whether the trial Court, having convicted the Appellant for the offence of stealing was right in giving an order for restitution in respect of object to crime, (ground eight of the amended notice of appeal)
The facts leading to this appeal is that the Appellant was an apprentice to the PW1 who is the Managing Director of Middle Point Nigeria Limited. The company has branches and has a great daily and monthly turn over. The Appellant was a cashier. He was supervised by the Discharged 2nd Defendant. It was discovered that within the period the Appellant was working for the PW1 that is between 2000-2002 money was alleged to be missing in the company on daily basis. This was discovered following the audit report sponsored by PW1. Since the Appellant and the 2nd Defendant were running the company then, they were suspected to have stolen the money. They were therefore charged for conspiracy and stealing. The Appellant and the discharged 2nd Defendant were charged for the same offences arising from the same facts.
The main thrust of the Respondent’s case as prosecution in the lower Court, which the lower Court upheld, was that the circumstance surrounding the case was such that the Appellant is the person who is the prime suspect with available evidence of having stolen the money. The case of the Respondent was further fortified by Exhibit P1 which is a document which appears to be a confession of the Appellant, admitting liability of the offence of stealing. As far as the Respondent and the lower Court is concerned, Exhibit P1 is a confessional statement and therefore conviction on same after passing it through the veracity test is appropriate. The lower Court at pages 43, 44 & 47 of the judgment found in pages 548-549, 552 of the record held thus:
Going further, upon a careful perusal of Exhibit P1 particularly paragraphs A4, A5, A7, B1, B2 AND B4 revealed that the 1st Defendant admitted that he stole PW1?s company money. The admission in Exhibit P1 in the opinion of the Court is more or less a confession. The law is that a free and voluntary confession is sufficient to conviction as long as the Court is satisfied it is the truth?. In applying the above test to the facts of this case, it is the opinion of the Court that he stole his company?s money was corroborated by the 1st Defendant in Exhibit P1. The Court further hold that entirety of Exhibit P1 is consistent with PW1?s evidence.It is the opinion of this Honourable Court that Exhibit P1 corroborate other facts that have been ascertained and established in this case against the 1st Defendant.
I therefore attach full weight to the Exhibit P1 because it is direct, positive and unequivocal. Therefore from the totality of the evidence adduce before the Court, it is my opinion that the prosecution has discharged the burden of proof imposed on it and has been able to prove beyond reasonable doubt that indeed the 1st Defendant who admitted in Exhibit P1 that he stole money from PW1?s company has the intention of permanently deprived PW1 of his company’s money. In doing this, he was dishonest and has unlawfully appropriated the money to his own use. I so hold. Therefore, I have no hesitation in holding that the Prosecution has proved a case of stealing against the 1st Defendant as charged in counts 2-4.
The conviction of the Appellant by the lower Court seems to be based mainly on Exhibit P1. In this judgment, I will be considering whether Exhibit P1 is actually a confessional statement and whether it has passed the veracity test to be the bases for convicting the Appellant? This is the real issue in this appeal. The answer to that question will determine whether the decision of the lower Court will be upheld or set aside.
I will now turn to the briefs before this Court. The counsel to the Appellant who settled the brief and adopted same is U.C. Ikegbule Esq., the brief was adopted on 17/1/19. On issue 1 of his brief, counsel submitted laying down the trite legal principles on confessional statement and the condition under which such a statement can lead to the conviction of the Appellant that Exhibit P1 is not a confession and therefore the lower Court was wrong to have convicted the Appellant based on it. He referred to Joseph Abasi vs. The State (1992) 3 N.S.C.C. 159; Nsofor vs. State (2004) 11-12 SC 43; Henry Odeh vs. FRN (2008) 3-4 SC 147; Nigerian Navy vs. Lambert (2008) 1 WRN 1; Raimi Afolabi vs. C.O.P. (1961) ALL NLR 654; R vs. Philip Jonah & Co (1934) 2 WACA 120; R vs. Akpan Udo Essien (1939) 4 WACA 112. It is counsel?s further submission that even if Exhibit P1 is a confession, it still cannot be used to convict the Appellant as it has not passed the veracity test. He cited Dawa vs. State (1980) 8-11 SC 236; Akinfe vs. State (1988) 3 NWLR (Pt. 85) 729; Onochie & Ors vs. The Republic (1966) NMLR 307; R vs. Michael Adedapo Omisade & Ors (1964) NMLR 67; Kada vs. State (1991) 3 NWLR (Pt. 181) 621; Omega Bank Nigeria Plc vs. O.B.C. Limited (2005) 1 SC (Pt. 1) 49 among other cases. The said Exhibit P1 must be read together in coming to the conclusion whether it is confessional or not and more so, the evidence of PW1-PW4 does not amount to corroboration of Exhibit P1. The inability of the Respondent to produce the audit report or any document that shows that money was missing in the company and that it was the Appellant that took it is fatal to the Respondent?s case and therefore the lower Court decision should be set aside. Counsel submitted referring to Section 167 (d) Evidence Act 2011 and the case of International Bank Limited vs. SCOA Nigeria Limited (Supra); Akinfe vs. State (Supra).
The Learned Counsel submitted further that the lower Court did not carry out his duty of evaluating the evidence before it when it came to the conclusion that the Appellant is guilty. This failure by the lower Court means the appellate Court can interfere with the finding of facts. He referred to Bassil vs. Fajebe (2001) vol. 21 WRN 58; Morenikeji vs. Adegbosin (2003) 25 WRN 33; Ezeala Nnajiofor & 5 Ors vs. Linus Ukonu & 2 Ors (1986) 4 NWLR (Pt. 36) 505; Odiawa vs. FRN (2008) 51 WRN 83; Ikemson vs. State (1989) 6 SC 114; Awopejo vs. State (2006) 6 WRN 1. The inability of the Respondent to tender as evidence the audit report that instigated the whole process is fatal to Respondent case, counsel submitted. He cited Katto vs. CBN (1991) 2 N.S.C.C. Vol. 22 736; Mobil Producing Nig. Unltd vs. Monokpo (2004) All FWLR 575. It is counsel’s submission that there is no evidence that money is missing. The failure of the lower Court to consider the evidence of DW3 is also fatal to Respondent?s case in the lower Court. This is counsel’s submission on issue 2 he raised on his brief.
On issue 3, counsel after stating the ingredients of the offence of stealing submitted that in view of the contradictions in the evidence of the prosecution witnesses, the Respondent did not prove its case beyond reasonable doubt. On that premise, counsel referred to a cloud of cases including Uzoka vs. State (1990) 6 NWLR (Pt. 159) 680; Amadi vs. State (1993) 8 NWLR (Pt. 314) 644; Ayub- Khan vs. State (1991) 1 NWLR (Pt. 172) 127; Onagoruwa vs. State (1993) 7 NWLR (Pt. 303) 49. It is the submission of counsel that the Respondent relied on circumstantial evidence and to secure conviction, such evidence must be positive, cogent, consistent and unequivocal. He referred to Obiakor vs. State (2002)36 W.R.N. 1; Surujpaul vs. R (1958) 3 All E.R. 300; Popoola vs. C.P. (1964) NMLR 1. The contradiction and inconsistency in the evidence of the Prosecution witnesses create doubts which will be resolved in favour of the Appellant. He referred to Nwaemereji vs. State (1997) 4 NWLR (Pt. 496) 65; Ibrahim vs. State (1991) 1 NSCC 587.
Finally on the 4th issue, it is counsel’s submission that the order of the lower Court for restitution is not tenable. He relied on Ariori vs. Elemo (2001) 36WRN 94; Egolum vs. Obasanjo (1999) 6 NWLR (Pt. 609) 58; Yusuf vs. International Institute of Tropical Agriculture (2008)32 WRN 168. Counsel urged Court to allow the appeal and set aside the judgment of the lower Court.
The Respondent brief was settled by Oyedele C. Akintola Esq., but adopted by Samuel Ogueri who held the brief of Oyedele Akintola Esq., Addressing issue 1 in the Respondent’s brief, it is counsel’s submission after referring to the law on confession and the veracity test that Exhibit P1 is a confession upon which the lower Court could convict the Appellant and that the Appellant cannot deny signing same in this appeal which was not part of the objection in the trial. He referred to Section 28 of the Evidence Act, 2011 and the cases of Nsofor vs. State (supra); Ero vs. State (2013) LPELR- 20869 (CA); Patrick Ikemson vs. State (supra); Re: Osakwe (1994) 2 NWLR (Pt. 326) 273; R vs. Kanu (1952) 14 WACA 30; Ejinima vs. The State (1991) 6 NWLR (Pt. 290) 644; Egboghonome vs. State (1993) 7 NWLR (Pt. 306) 383; Yesufu vs. State (1976) 6 SC 167; Fulani m. vs. State (2018) LPELR-45195 (SC).
The lower Court, counsel submitted considered the whole Exhibit P1, evaluated same and came to the conclusion it did on the grounds that it is a relevant document and a direct, positive and unequivocal admission of the guilt of the Appellant. Though that statement was retracted, it can still be used to convict the Appellant since it has passed the veracity test in view of the evidence of PW1-PW4 which corroborates Exhibit P1. Counsel cited Mohammed vs. State (2014) LPELR-22916 (SC); Ogbu vs. The State (1992) 8 NWLR (Pt. 259) 255; Durugo vs. State (1992) 7 NWLR (Pt. 255) 524; Ogunbayo vs. The State (2007) LPELR-2323 (SC); Nwaebonyi vs. State (supra); Ahamba vs. State (1992) 5 NWLR (pt 242) 450. Learned counsel urged Court to resolve this issue in favour of the Respondent.
On issue 2, counsel submitted that the Respondent had proved beyond reasonable doubt the guilt of the Appellant having proved all the ingredients of the offence of stealing. The Respondent relied on circumstantial evidence which according to counsel is a good form of proof. He referred to Ogbubunjo vs. The State (2001) 2 NWLR (Pt. 698) 576; Effia vs. The State (1998) 2 NWLR (Pt. 537) 275. Counsel submitted that the Respondent in the lower Court as prosecution has proved the ingredients of the offence as there is evidence that the Appellant was living above his means. It is counsel’s submission that the so called contradictions the Appellant referred to are not material and therefore are not fatal to the case of the Respondent. He referred to Ezekwesili vs. Onwuagbu (1998) 3 NWLR (Pt. 541) 217; Ibe vs.The State (1993) 7 NWLR (Pt. 304) 185; Buba vs. The State (1994) 7 NWLR (355) 195; Okpokpo vs. Uko (1997) 11 NWLR (Pt. 527) 94. The lower Court having found as a fact that the Respondent as proved its case, the appellate Court should not interfere with that finding except it is perverse. It is counsel?s submission that the finding is not perverse. He cited Moghalu vs. Ude & Anor (2000) 4 WRN 13; Adelumola vs. The State (1988) 1 NWLR (pt. 73) 683; Igago vs. State (1999) 6 NWLR (Pt. 608)568; Khaleel vs. The State (1997) 8 NWLR (Pt. 516); Ekpenyong vs. The State (1991) 6 NWLR (Pt. 200) 683; Ogbu vs. The State (supra).
On the third issue, relying on Section 290 & 297 of the Administration of the Criminal Justice Law of Lagos State, 2011 and on the cases ofAjiboye vs. FRN (2018) LPELR 44486 (SC) and David vs. FRN (2018) LPELR-43677 (CA), Counsel submitted that the lower Court has powers and was right in making order for restitution. He finally urged the Court to dismiss the appeal. The Appellant?s counsel filed a reply brief stating the same argument again but in different ways. There is therefore really no need to review the submission all over again.
I had mentioned above that the issues for determination raised in the briefs of the parties are similar but for easy of reference, I will adopt the issues raised by the Appellant as in my view they appropriately address the real issues covering the grounds of appeal. It is also clear that to a large extent the success or failure of this appeal is depended mainly on the finding of this Court on Exhibit P1 which is an agreement in principle as to the Resolution of all Dispute and Court Matters involving Chief Jonathan Obijiaku.? The real question therefore is whether Exhibit P1 is a confession and if it is, whether it has passed the veracity test? This will now take me to issue 1. This issue is on Exhibit P1. Exhibit P1 is an agreement which in principle is to resolve all disputes and Court matters between the Appellant and PW1. This document was made on 3rd day of April 2010 and was alleged to have been signed by both parties, their counsel and one Prophet Whyte Ekpemandu. To know whether this document amounts to a confession by the Appellant, it will not be out of place to look at what will amount to a confession in law.
Section 28 of the Evidence Act, 2011 answers this question. The section provides thus:
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the offence.
This definition has received a lot of judicial pronouncement. I will look at a few of them. InAkpan vs. State (2001) 7 SC (Pt. II) 29, the apex Court per Karibi-Whyte, JSC held:
Section 27(1) of the Evidence Act has defined “confession”, as “an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime”. This definition is wide enough to cover both extra-judicial and judicial confessions. Extrajudicial confessions are those made otherwise than in the course of judicial proceedings.
Similarly, in Nguma vs. AG Imo State (2014) 7 NWLR (pt 1405) 119; LPELR-22252 (SC), Okoro, JSC at pages 61-62 held:
Section 27 (1) & (2) of the Evidence Act state as follows:-
“(1) Confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that offence.
(2) Confessions if voluntary are deemed to be relevant facts as against the person who made them only.”
Thus, a confessional statement, if it is true, positive and direct becomes proof of an act. Also, where it is voluntarily made stating or suggesting the inference that an accused committed an offence for which he is charged, it is relevant and admissible against him provided the statement was not made as a result of any threat, promise or inducement from a person in authority. It has to be noted that any voluntary information given by the accused at any time during investigation which leads to the discovery of any fact material to the charge against him is equally admissible. See PETER vs. STATE (1997) 12 NWLR (Pt. 531) 1 at 22, FATILEWA vs. THE STATE (2008) 12 NWLR (Pt. 1101) 518, (2008) 4 – 5 SC (Pt. 1) 191.
See also Onyenye vs. State (2012) 15 NWLR (PT.1324) 586; Lasisi vs. State (2013) 9 NWLR (Pt. 1358) 745.
To amount to a confession the maker must have been charged with a crime and knowing the offence for which he is charged, he makes an admission or some inferences that he committed the offence. A person cannot admit to an offence he does not know about. The implication of this, is that, the confession which a Court will accept and treat as one must be a confession made after the maker has knowledge of the charges against him. The admission must be of the specific offence for which he is charged. It will not amount to a confession if the maker does not know about the offence or if he confesses to another offence different from the one for which he is charged. Usually, it is called a confessional statement. It is usually made before the police after the police have charged the suspect with a crime. In State vs. Isah & Ors (2012) 16 NWLR (Pt. 1327) 613, the apex Court held:
Confession under Section 27(1) of the Evidence Act (supra) is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. To sustain conviction, the confession must be free, voluntary, direct and positive, whether judicial or extra judicial, provided the Court believes it is the truth. Therefore, once an accused person makes a statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged, the statement becomes confessional. See: Patrick Ikemson & 2 Ors vs. The State (1989) 3 NWLR (Pt.110) 455 at 476. However, any confession made or extracted through violence, threat, Promise or any extraneous circumstances suggesting lack of free will is irrelevant and cannot be acted or relied upon at the trial of the accused person. The tests of determining the veracity or otherwise of a confessional statement are:
(i) Whether there is any evidence outside the confession to show that it is true;
(ii) Whether it is corroborated no matter how slightly;
(iii) Whether the facts contained therein so far as can be tested are true;
(iv) Whether the accused had an opportunity to commit an offence;
(v) Whether the confession of the accused person was possible and,
(vi) Whether the confession was consistent with other facts which have been ascertained and proved. See: Ubierho vs. State (2005) 2 SC (Pt. 1) 18 at 21-22, Nsofor & Anor vs. State (2005) All FWLR (Pt. 242) 397 at 411-412.
In other words, confession must be voluntary and not obtained by fear of prejudice or hope of advantage exercised or held out by a person in authority.
In the same vein, confession must be direct, clear and unambiguous and positive. See; Niyi Akinmoju vs. The State (2000) 4 SC (Pt. l) 64 at 77. In Joseph Idowu vs. The State (2000) 7 SC (Pt.11) 50 at 62, it was held that a free and voluntary confession of guilt made by an accused person, if direct and positive is sufficient to warrant conviction. And the fact that a voluntary, positive and unequivocal confession has been retracted does not necessarily make it inadmissible but before conviction can be found on such retracted alleges that his confessional statement was not made voluntarily. See: Ojegele vs. State (1988) 1 NWLR (Pt.71) 414 (1988) 5 SCNJ (Pt.2)231?.
In the instant case, the Court below found as follows:
“There is no page on the record where the trial Court subjected the said confessional statements to any test so as to ascertain their veracity. The Court, simply, relied on them without ascertaining any corresponding or corroborative evidence.”
Exhibit P1 is not a statement made to the police after the Appellant has been charged with the offence. It is rather an agreement to resolve issues between him and PW1. This so called confession if it is, is induced by the notion of settlement. This is clear from the heading of the agreement. It is headed thus, Agreement in principle as to the resolution of all dispute and Court matters involving Chief Jonathan Obijiaku, Middle Point Nig. Ltd and Mr. Chigozie Okeke.
This is not a confessional statement as anticipated by the law. The confessional statement as anticipated by law is such that the Appellant is confronted with the charge against him and he freely and willingly admit to commission of the offence. To amount to confessional statement, the statement must be made under caution, freely and voluntarily without any form of inducement or threat. See:Kasa vs. State (1994) 5 NWLR (Pt. 344) 269. It is usually made to the police. In Adesina & Anor vs. State (2012) 6 SC (Pt. III) 114, the Supreme Court per Adekeye, JSC held:
By virtue of Section 27 (1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is an extra-judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of offence for which he stands accused. Once admitting the charge or creating the impression that he committed the offence charged; the statement becomes confessional.
When confessional statement has been proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, it is enough to sustain or base the conviction of an accused. It does not matter whether the maker retracted the statement in the course of the trial. Such a retraction does not necessarily make the confession inadmissible. Egboghonome vs. State (1993) 7 NWLR (Pt. 306) pg. 383. Bature vs. State (1994) 1 NWLR (Pt. 320) pg. 267. Solola vs. State (2005) 11 NWLR (Pt. 937) pg.460. Edhigere vs. State (1996) 8 NWLR (Pt. 464) pg.1. Uluebeka vs. The State (2000) 4 SC (Pt. 1) pg. 303. Idowu vs. State (2000) 7 SC (Pt. 11) pg.50. Alarape vs. State (2001) 14 WRN 1.
The circumstance Exhibit P1 was made does not qualify for it to be called a confessional statement in law. It is not made after the Appellant was charged and placed under caution. It was not made to the police with the charge expressly stated before him. The main agenda was not to make a statement about the crime but rather it was to make an agreement to resolve all the issue pending between the parties. This obviously induced the Appellant to make Exhibit P1. On this premise alone, Exhibit P1 is not a confessional statement as it was an agreement made with the purpose of settling issues between the parties. It is an agreement out of an inducement for settlement and not a conscious and willing confession.
That apart, is Exhibit P1 really a confession in the sense of the word, in other words, did the Appellant in Exhibit P1 admit or made inference to the fact that he stole the sum of N37,000,000 as in count 2, N39,000,000 as in count 3 and N34,000,000 as in count 4. This is a total of N110, 000,000. In trying to find out whether Exhibit P1 amounts to a confession, the whole document will be read together. See Igori vs. Igori & Ors (2013) LPELR-21027 (CA); NJC vs. Agumagu & Ors (2015) LPELR-24503 (CA); Nigeria Army vs. Brig. Gen. Maude Aminun-Kano NSCQR Vol. 41 2010 page 76.
I have read through Exhibit P1 and I cannot seem to see my way clear to agree with the lower Court that it amounts to a confession. The whole document is more of a narrative than a confession. It states story surrounding the matter and in the spirit of the peace accord sought, the Appellant apologized. It is my opinion that paragraph A4 and B1 does not amount to admission of the crime but rather part of the general narrative. Even if I am wrong, in the light of paragraph A6 of Exhibit P1, can the said Exhibit be a confession? I do not think so, I reproduce Paragraph A6 for ease of reference:
That Mr. Chigozie Okeke allegedly denied all the criminal allegation leveled against him by Chief Jonathan Obijiaku and further alleged as follow –
(a) That Chief Jonathan Obijiaku is prosecuting him because he (Chigozie) has left the shop given to him by Chief Jonathan Obijiaku and veered into another line of business thus, lending credence that both the sum of N1 million and the equipped the shop are tainted with cultism and Obijiaku is a ritualist.
(b) That another grouse of Chief Obijiaku against Mr Chigozie Okeke was because Chigozie took settlement money of N1 million to church for prayers and which action infuriated Chief Obijiaku.
Reading this paragraph along with paragraphs A4 and B1 of Exhibit P1, it is clear that this cannot be a confession. The whole document is written in a third person pronoun. A confession is usually and naturally written in the personal pronoun. By this I mean, the maker writes the confession by himself. This is not the case here. It is like someone is narrating an incident and the Appellant signed the narrative. That does not amount to a confession whichever way it is looked at. In the circumstance, I do not agree with the finding of the lower Court in page 43 of the judgment which is found in page 548 of the records that Exhibit P1 is a confessional statement. Exhibit P1 is far from been a confessional statement. While it is the law that an appellate Court cannot ordinarily interfere with the finding of facts of the lower Court, but this principle has an exception which is, when the finding does not correspond with the evidence before the Court. In such a situation the appellate Court can interfere with the finding to ensure that justice is done. See: Petgas Resources Ltd vs. Mbanefo (2006) 6 NWLR (Pt. 1031) 545; Omotayo vs. Cooperative supply Association (2010) 4 FWLR (Pt. 550) 9173. Exhibit P1 does not qualify as a confessional statement whichever way we look at it. The finding of a lower Court does not correspond with the evidence before the Court and therefore this Court can and I hereby interfere with the finding of the lower Court for emphasis sake, the finding of fact by the lower Court that Exhibit P1 is a confession is not correct. It is not a confession whichever way it is looked it. As a confession, it is entirely worthless.
The only document that could have qualified as a confessional statement is the extra judicial statement made by the Appellant to the police which was tendered as Exhibits P2 and P3. There is no confession in those Exhibits. In the circumstance, I resolve this first issue in favour of the Appellant. Since, I have held that Exhibit P1 is not a confessional statement; the issue of the veracity test does not arise. Even if I were wrong on that, I can also safely say that Exhibit P1 has not passed the veracity test as the evidence of PW1-PW4 did not corroborate the said exhibit. All the evidence of the prosecution witnesses never showed how the Appellant allegedly stole the money. There is really nothing about the evidence of the prosecution that corroborate Exhibit P1.
I will take issues 2 and 3 together. The second issue is on whether the lower Court properly evaluated the evidence before it arrived at the decision; and the third issue is whether the prosecution proved its case beyond reasonable doubt. It is trite law that the duty of the Court is to evaluate the evidence of the parties and their witnesses before it. After the evaluation, the Court is to make findings based on the evaluation made. Where the finding corresponds with the evidence an appellate Court would not interfere with the finding. However if the finding is not in line with the evidence, it will be termed perverse and the appellate Court can make another finding on the subject. In Atuyeye & Ors vs. Ashamu (1987) 1 SC 333, the apex Court per Oputa, JSC (of blessed memory) held:
The trial Court has a legal duty to properly evaluate the evidence led on both sides before coming to a decision, which decision must inevitably be based on the totality of the evidence thus properly appraised or evaluated. If it fails in this duty it commits an error of law. The party aggrieved can then appeal on the ground of error in law giving as his particulars of error the failure to properly assess or evaluate or appraise the evidence led by and on his behalf.?
Similarly, Arije vs. Arije & Ors (2018) LPELR-44193 (SC), per Kekere-Ekun, JSC at pages 21-22 held:
?It is well settled that the evaluation of evidence is primarily the exclusive preserve of the trial Court, which has the unique opportunity of seeing and hearing the witnesses testify and of observing their demeanour. However both the trial Judge and the appellate Courts have equal right to evaluate documentary evidence. Where the trial Court failed to evaluate the evidence, or failed to evaluate it properly or where such evaluation results in a perverse conclusion, the appellate Court, has a duty to re-assess and evaluate the evidence in order to reach a just Conclusion. See: Gonzee Nig. Ltd. vs. Nigerian Educational Research and Devt. Council & Ors. (2005) 13 NWLR (Pt. 943) 634; Ogunleye vs. Oni (1990) 2 NWLR (Pt. 135) 745; Iwuoha vs. NIPOST Ltd (2003) 8 NWLR (Pt. 822) 308; Rev. King vs. The State (2016) LPELR-40046 (SC) 1 @ 49 A D.
The lower Court had held that the reason why the 2nd Defendant was discharged was because the evidence before the Court did not indict the 2nd Defendant. The evidence of the PW1-PW4 as it relates to both Defendants is similar. The only reason why the Appellant is held liable is because of the finding of the lower Court on Exhibit P1. Apparently on the evidence before the lower Court, there seem to be no cogent and compelling evidence to tie the Appellant or the discharged 2nd Defendant to the offence. To show why the discharged Defendant was discharged, the lower Court at page 44-46 of the judgment in page 549-561 of the record held:
On the other hand, it is very clear from the totality of the evidence before the Court that the 2nd Defendant was not a party to Exhibit P1.In evaluating the above statement, it is very clear that this Honourable Court cannot use Exhibit P1 against the 2nd Defendant..In evaluating the totality of the evidence against the 2nd Defendant, it is the view of this Honourable Court that the prosecution failed to support its case against the 2nd defendant with concrete evidence. I came to this conclusion because the evidence of the prosecution was based on circumstantial evidence and suspicion; however it is trite that suspicion however strong cannot take the place of legal proof. See: Shehu vs. State (2010) 8 NWLR (Pt. 1195). Going further, before any Defendant can be convicted based on circumstantial evidence, such circumstantial evidence must be cogent, complete and unequivocal. Indeed, it must be compelling and must be such that leads to only one irresistible conclusion that it is the Defendant and no one else who committed the crime..in applying the above principle to the facts of this case, it is the opinion of this Court that the mere fact that the 2nd Defendant was living a flamboyant life after he left PW1?s company does not necessarily proof the offence of stealing and conspiracy against him because it is trite that the prosecution has a duty to prove its case against the 2nd Defendant beyond reasonable doubt by calling vital witnesses to support its case against the 2nd Defendant.
The lapse in the prosecution case against the 2nd Defendant has created serious doubt in the mind of the Court, after all the prosecution is expected to proof its case beyond reasonable doubt and this means the prosecution is expected to establish the guilt of the Defendant with compelling and conclusive evidenceSince there are lapses in the prosecution?s case against the 2nd Defendant, the Court will have no other choice than to resolve the doubt in favour of the 2nd Defendant based on the footing that it is better to allow ten persons to escape conviction than to convict one innocent person. See: Ukorah vs. State (1977) 4 SC 167. Therefore from the totality of the evidence before this Court, I hereby hold that the prosecution has failed to lead credible evidence before the Court that the 2nd Defendant conspired and stole PW1?s company and I so hold.
The prosecution’s case against both the Appellant and the discharged Defendant is based on circumstantial evidence. The law on this point is settled. For circumstantial evidence to be the bases of the conviction, the evidence before the Court must be cogent, compelling, direct, and unequivocal leading to one irresistible conclusion that the Defendant committed the offence. In Adepetu vs. State (1998) 7 SC (Pt. 1) 117; LPELR-135 (SC) at page 37-40, the apex Court per Onu, JSC held:
A long line of cases beginning with R vs. Sala Sati (1938) 4 WACA 10 has laid it down that to support a conviction based on circumstantial evidence, it must not only be cogent, complete and unequivocal but compelling and lead to the irresistible conclusion that the accused and no one else is the murderer it must leave no ground for reasonable doubt. See this Court?s decisions in Joseph Lori & Anor vs. The State (1980) 8-11 SC 81; Uwe Esai & Ors vs. The State (1976)11 SC 133@138-139. Thus, the evidence must be cogent and compelling to convince a jury of the guilt of the accused and must also lead irresistibly to the guilt of the accused and inconsistent with any other rational conclusion, to wit: there must be no other co-existing circumstances which can weaken such inference. See Philip Omogodo vs. The State (1981) 5 SC 5 @ 24; Igboji Abieke & Anor vs. The State (1975) 9- 11 SC 97 @ 104 and Edobor vs. The State (1975) 9-11 SC 69 @ 75. On circumstantial evidence as one of the modes to prove a case beyond reasonable doubt, this Court (per Oputa, J.S.C.) has had the occasion to state in Adio vs. The State (1986) 2 NWLR (Pt.24) 581 at 593: “It is often said that witnesses can lie. So in that sense, circumstantial evidence affords better proof beyond reasonable doubt.”
See: also Ikomi vs. The State (1986) 3 NWLR (Pt.28) 340; Buje vs. The State (1991) 4 NWLR (Pt.185) 287; Kim vs. The State (1991) 2 NWLR (Pt.175) 622; Yongo vs. COP (1992) 8 NWLR (Pt.257) 36 and Lori vs. The State (supra) Thus in Fatoyinbo v. A.G. of Western Nigeria (1966) WNLR 4, it was held that although there was no evidence that the appellant was seen striking the deceased with a matchet, some circumstances clearly emerged from the evidence given by the prosecution, which resulted in the conviction of the appellant. The appellant was seen sitting astride the prostrate body of the deceased soon after the murder. On the need to keep out suspicion and draw the proper inference of the accused’s guilt from circumstantial evidence, this Court has stated in such cases as Okoro Mariagbe vs. The State (1977) 3 SC 47; and Edet Obosi vs. The State (1965) NMLR 119, the latter cited with approval in the dictum of Lord Normand in Teper vs. Queen to the effect that-
“Circumstantial evidence may sometimes be conclusive but it must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another? It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no co-existing circumstances which would weaken or destroy the inference.” This is why Obaseki, JSC applying the same test in Onah vs. The State (1985) 3 NWLR (Part 12) 236 at 244 observed as follows:
“The High Court and all Courts of law are in duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. They should act on evidence and not on hunches, rumour or suspicion so as to ensure that justice in its purest form is administered in the Courts to all and sundry.”
In the light of the principles enunciated by this Court therefore, where direct testimony of eye witnesses is not available as to the commission of the crime, the Court is permitted to infer from the facts proved the existence of other facts that may be logically inferred. In drawing inference of the guilt of an accused person from circumstantial evidence, however, great care must be taken not to fall into serious error based on fallibility of inference. See: Udedibia vs. The State (supra); Hyacinth Ibina vs. The State (1989) 5 NWLR (Pt. 120) 238 at 250. Thus, absence of credible explanation from the appellant in whose company the deceased was last seen before her body was found with extreme violence done to it as a result of which she died, leaves no other inference than that the appellant killed the deceased. See: Peter Igho vs. The State (1978)3 SC 87 and Patrick Efe vs. The State (1976)11 SC 75 at 79.?
Similarly in Ajaegbo vs. State (2018) LPELR 44531 (SC), Kekere- Ekun, JSC at page 12-13, the Supreme Court held:
In the instant case, there was no eye witness to the crime. The prosecution relied on circumstantial evidence to secure the conviction of the appellant and his co-accused. Where the prosecution relies on circumstantial evidence, the evidence must be strong, cogent and compelling. It must point to the irresistible conclusion that the accused person committed the offence. The evidence must leave no degree of possibility or chance that another person or other persons could have been responsible for the commission of the offence. See: Ijioffor vs. The State (2001) 9 NWLR (Pt. 718) 371 @ 386 F-G. At page 387 A-B of the report, His Lordship, Ejiwunmi JSC cautioned thus:
“Circumstantial evidence must always be narrowly examined. On the other hand, it has been said that circumstantial evidence is often the best evidence. It is evidence of surrounding circumstances, which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. It may also be noted that there is no yardstick by which circumstantial evidence can be measured before a conviction can be entered against an accused person charged with the offence for which the circumstantial evidence is the only one available. Each case depends on its own face but the one test that the evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree of possibility or chance that other persons could have been responsible for the commission of the offence.”
See also Ijioffor vs. State (2001) 9 NWLR (Pt. 718) 371; Shehu vs. State (2010) 8 NWLR (Pt. 1195) 112.
The circumstances of this case does not meet the requirement for conviction on circumstantial evidence. The evidence of the missing money, if money is missing at all, does not point to the Appellant and the discharged Defendant as the persons who committed the offence. Infact, the evidence does not produce any irresistible conclusion that the Appellant committed the offence. The fact that the Appellant is alleged to have had properties above his income is not conclusive that he stole the PW1’s company money. This is the same evidence against the Discharged Defendant which the lower Court held was not sufficient or meet the requirement of proof beyond reasonable doubt.
I cannot see any justification to hold otherwise in relation to the Appellant. If not for Exhibit P1, the lower Court would have come to the same conclusion. The game changer therefore is Exhibit P1 which the lower Court held was a confessional statement. The point, I am laboring to make is that from the judgment of the lower Court, the confession of the Appellant was the bases of the conviction. In other words, remove the confession, that is Exhibit P1, the conclusion of the Court will be the same with the decision on the discharged Defendant. In this regard, the law is trite that where two people are charged for the same offence and the same evidence, the discharging of one will automatically lead to the discharging of the other. The Supreme Court made this point in Ebri vs. State (2004) 10 FWLR (Pt. 230) 214 in these words:
The position of the law is that where two or more persons are charged with the commission of an offence and the evidence against all the accused persons is the same or similar, to the extent that the evidence is inextricably woven around all the accused persons, the discharge of one must as a matter law, affect the discharge of the others. This is because if one or more of the accused persons is discharged for want of convicting evidence that must automatically affect all the others in the light of the fact that the evidence against all the accused fact that the evidence against all the accused persons is tied together, like Siamese twins at the umbilical cord with their mother.
In view of my finding and decision on Exhibit P1, I cannot see my way clear to uphold the conviction of the Appellant on the same circumstantial evidence upon which the lower Court could not convict the 2nd Defendant. On this ground alone the decision of the lower Court will be set aside.
Let me take this issue further to even consider the evidence before the lower Court in determining whether the lower Court properly evaluated the evidence before it. I am not of the opinion that the lower Court did. In doing so, I will not bother my head with the issue of contradictions in the evidence of the prosecution witnesses. I agree with the submission of Respondent?s counsel that the contradictions are not material enough to affect its case. See Musa vs. State (2009) 6-7 SC 34; Wankey vs. State (1993) LPELR 3470 (SC); Princent & Anor vs. State (2002) 18 NWLR (Pt. 798) 49.
I will look at the evidence before the lower Court. In doing this I will look at the oral and documentary evidence. There is nothing in the evidence of PW1-PW4 that shows the bases for the conclusion that the Appellant stole the money. They all, in their evidence, came to the conclusion that the Appellant stole all that money. The only ground for that is that he has acquired more things than he could afford with his earning at that time. This is circumstantial and of course based on suspicion. The law as ably stated by the lower Court is that suspicion no matter how grave cannot be proof enough for conviction. See: Sule Ahmed vs. State NSCQLR Vol. 8 (2001) 273; Zubairu vs. State (2015) LPELR-40835 (SC); Obiakor & Anor vs. State (2002) 6 SC (Pt. 11) 33. No oral evidence could suffice.
It is the submission of the Appellant’s counsel that the Prosecution has not proved beyond reasonable doubt that money was missing talk less of the fact that it was the Appellant who took it. I agree with this. The prosecution relied on the audit report for this assertion and Exhibit P6A, P6B & P6C. Let us now evaluate these documents. The document that ignited the whole inquiry was the audit report. This is the case of the prosecution. Apparently, it is the audit report that gave the PW1 the inclination that something was wrong in his company. We do not know the extent of the report as to how it indicted the Appellant. The document is supposed to state how the Appellant stole the money he is alleged to have stolen. The prosecution made reference to the document but did not tender same.
A Court cannot act on a document which is not in evidence before it as Exhibit. The legal implication is even worse and it is that the Court will invoke the provision of Section 167 (d) of the Evidence Act, 2011 to the effect that the Court will presume that the prosecution withheld the document because if produced, it will work against the prosecution. See: Smart vs. State (2016) LPELR-40827 (SC); Onwujuba & Ors vs. Obienu & Ors (1991) 5 SC 45; Akindipe vs. State (2012) 16 NWLR (Pt. 1325) 94.
The refusal of the prosecution to produce the audit report definitely works against the prosecution’s case in the lower Court. This is fatal to the prosecution’s duty to prove its case beyond reasonable doubt. Exhibits P6A-P6C are documents which are prepared by PW3 which brings out the shortages and discrepancies in the company daily cash from January 2000- December 2002. The lower Court should not have attached any weight to those Exhibits. This is because no evidence of the prosecution witnesses was tied to them. The Exhibits were dumped on the Court and therefore this Court will not attach any weight to it. See Ladoja vs. Ajumobi (2016) LPELR- 40658 (SC); CPC vs. INEC (2012) 2-3 SC 188.
As if that is not enough, Exhibits P6A-P6C are worthless as they are not signed by anyone. They are alleged to have been made by the PW3 Company but they are not signed by any one. The documents are worthless as this is the legal effect of an unsigned document. See:Omega Bank (Nig.) Plc vs. O.B.C. Ltd (2005) 1 SC (Pt. 1) 49; Ogudo vs. State (2011) 18 NWLR (Pt. 1778) 1.
There is therefore no evidence that can justify the finding reached by the lower Court that there was money missing in PW1 company and much more that the Appellant stole the money. There is no slightest evidence of missing money and indeed none that the Appellant stole money from the PW1’s company. If the lower Court had considered the evidence of DW3 who was the 2nd Defendant in the lower Court, the Court should have come to a different conclusion from the conclusion reached on the Appellant. The DW3 stated the reason why the PW1 brought the complaint against the Appellant. He said the PW1 wanted him to incriminate the Appellant because after settling him he did not continue in the line of business set up for him and that the N1,000,000 PW1 settled him with, he took to church because the money was allegedly from rituals practice. The lower Court did not consider or evaluate that evidence. If the lower Court had properly evaluated all the evidence before the Court, the decision would have been different. I resolve issues 2 & 3 in favour of the Appellant.
Consequent upon the above findings and decisions on issues 1, 2 & 3 in favour of the Appellant, it stands to reason that the fourth issue will be resolved in favour of the Appellant. Restitution will be required when a Court finds that the Defendant actually stole the money. In this instance, this Court will only uphold the order for restitution if this Court upholds the conviction of the Appellant. Since I could not make that finding in the light of all the evidence before me as shown in the record of appeal, it will be out of place to resolve issue 4 in favour of the Respondent. I resolve issue four (4) in favour of the Appellant.
The lower Court in my view should not have made the findings it did on Exhibit P1 and used it as the bases of convicting the Appellant. In the light of my finding on Exhibit P1 and my resolution of issues 1, 2 & 3 in favour of the Appellant, I cannot uphold the conviction of the Appellant. I resolved all the issues raised in this appeal for determination in favour of the Appellant.
This appeal is allowed and the judgment of the lower Court delivered by Hon. Justice O. A. Akinlade (Mrs.) of the Lagos State High Court delivered on 3/5/18 is hereby set aside. In the circumstance, I replace the guilty verdict of the High Court on counts 2-4 with the verdict of not guilty.
The Appellant is hereby discharged and acquitted.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the elaborate judgment prepared by my learned brother, Ebiowei Tobi, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The main plank on which the lower Court convicted the Appellant is based on its reliance on Exhibit P1 as a confessional statement. This is clear from page 544 of the Records where the lower Court stated that “the only tangible evidence against the 1st Defendant (Appellant) was Exhibit P1”. Furthermore, from pages 549-561 of the Records where the lower Court stated that Exhibit P1 cannot be used against the 2nd Defendant. who was discharged and acquitted by the lower Court, as he was not a party to the said Exhibit P1.
Apart from Exhibit P1, the evidence adduced by the Prosecution in proof of the offences against the Appellant and the 2nd Defendant was similar. It is the law that where two persons are charged for the same offence and the evidence against them is the same Or similar, the discharge of one of them will perforce lead to the discharge of the other: KALU vs. THE STATE (1988) 4 NWLR (PT. 90) 503, KASA vs. THE STATE (1994) LPELR (1671) 1 at 26, EBRI VS. THE STATE (2004) LPELR (996) 1 at 12-16 and OKORO vs. THE STATE (2012) LPELR (7846) 36.
Concomitantly, if Exhibit P1 is not a confessional statement in law, then the Appellant will be entitled to be discharged and acquitted, since the other evidence is the same or similar evidence on the basis of which the 2nd Defendant was discharged and acquitted. The pristine question is whether Exhibit P1 is a confessional statement. In DAVID vs. FRN (2018) LPELR (43677) 1 at 29-30 this Court (per Ogakwu, JCA) stated:
“Now, a confessional statement in criminal law is a statement which admits of the crime. It must admit of the crime both in fact and in law. It must admit of the doing of an act or the making of an omission which constitutes an offence in law. The confession must admit of all the ingredients of the crime or offence confessed: NWOBE vs. THE STATE (2000) 15 WRN 133 at 141.”
Exhibit P1 is an agreement. It is titled “Agreement in Principle as to the Resolution of all Disputes and Court Matters involving Chief Jonathan Obijiaku, Middle Point Nigeria Limited and Mr. Chigozie Okeke.” From an integral construction of Exhibit P1, there is nothing therein which admits the offences charged, whether in fact or in law. Exhibit P1 does not admit the ingredients of the offences charged. This is accentuated by Paragraph A6 where it is, inter alia, stated as follows:
“That Mr. Chigozie Okeke (Appellant herein) allegedly denied all the criminal allegations levelled against him by Chief Jonathan Obijiaku…”
The lower Court was definitely wrong to have treated Exhibit P1 as a confessional statement and convicting the Appellant based on it. It was not a confessional statement; and based on the other evidence adduced, the Prosecution did not prove its case against the Appellant beyond reasonable doubt, just as it failed, as rightly found by the lower Court, to prove its case against the 2nd Defendant. The Appellant is therefore equally entitled to a discharge and acquittal.
It is based on the foregoing and the more elaborate reasoning and conclusion in the leading judgment of my learned brother, Ebiowei Tobi, JCA, which I was privileged to have read in draft, that I agree that the appeal is immensely meritorious. I equally allow the same.
The decision of the High Court of Lagos State in CHARGE NO. ID/06C/2010: THE PEOPLE LAGOS STATE vs CHIGOZIE OKEKE & ANOR. delivered on May 2018, embodying the conviction and sentence imposed on the Appellant is hereby set aside. The Appellant is
discharged and acquitted.
Appearances:
U. C. Ikegbule, Esq.For Appellant(s)
Samuel Ogueri with him, Oyedele Akintola, Esq.For Respondent(s)
