DAVID EFFIONG EDUENOH v. THE STATE (2019)

DAVID EFFIONG EDUENOH v. THE STATE

(2019)LCN/13935(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of July, 2019

CA/C/378C/2017

RATIO

EVIDENCE: CONFESSIONAL STATEMENT: WHETHER A CONFESSIONAL STATEMENT MUST BE TAKEN TO A SUPERIOR OFFICER FOR CONFIRMATION
The appellants other grouch was that the confessional statement was not taken, alongside the appellant, to a superior police officer for confirmation. It is settled that the procedure of taking a confessional statement for confirmation by a superior police officer in the presence of an accused is for administrative convenience and not a mandatory requirement of the law, see Isong v. State (2016) 14 NWLR (Pt. 1531) 96; Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126; Ehimiyein v. State (2016) 16 NWLR (Pt. 1538) 173; Ajiboye v. FRN (2018) 13 NWLR (Pt. 1637) 430.  It flows, that the failure to abide by this procedure does erode on the validity and viability of a confessional statement. This current position of the law, with due respect, exposes the poverty of the learned appellant?s counsel?s elegant argument on the point. It cannot fly in the appellant?s favour. PER OBANDE FESTUS OGBUINYA, J.C.A.

EVIDENCE: WHEN A CONFESSIONAL STATEMENT IS RETRACTED

Again, the appellant accused the lower Court of not testing the retracted confessional statement, exhibit 1, with other evidence before it. In the first place, the appellant?s somersault/volt face during trial, vis–vis the ownership of exhibit 1, amounted, in eyes of the law, to retraction of it.  Interestingly, denial of authorship of a confessional statement does not make it inadmissible, see FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177.
A Court of law has the unbridled latitude to act and convict on rescinded confession. However, the law directs that a Court should find evidence, no matter how slight, outside the province of the confession, that corroborates it. In this wise, the Court has invented six questions, as beacon, to guide the Court, to wit: 1. Is there anything outside the confession that shows that it may be true?  2. Is it corroborated?  3. Are the relevant statements of facts made in it true as they can be tested? 4. Was the accused one who had the opportunity of committing the offence? 5. Is the confession possible?  6. Is the alleged confession consistent with other facts which have been ascertained and established?, see Okeke v. State (2016) 7 NWLR (Pt. 152) 47; Egharevba v. State (supra); Smart v. State (supra); Olaniepekun v. State (2016) 13 NWLR (Pt. 1528) 100; Godsgift v. State (supra); Akinrinlola v. State (supra), Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Opara v. A.-G., Imo State (supra); FRN v. Barminas (supra); Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Agugua v. State (2017) 10 NWLR (Pt. 1573) 254. PER OBANDE FESTUS OGBUINYA, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT: WHAT HAPPENS WHEN A CONFESSIONAL STATEMENT WAS NOT GIVEN WITH CONSENT OR VOLUNTARILY

Once a confession is relevant, it is admissible against an accused who made it save it is excluded in the manner stipulated by the provision of the Section 29(2) of the Evidence Act, 2011. Unarguably, it is within the province of the law for a Court to base conviction on free, cogent and positive confession, see Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Omoju v. FRN (2008) 9 NWLR (Pt. 1085) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State (2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16 NWLR (Pt. 1537) 73; Akwuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v. COP (2017) 9 NWLR (Pt. 1569) 118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; John v. State (2017) 16 NWLR (Pt. 1591) 304; Agugua v. State (2017) 10 NWLR (Pt. 1573) 254.
 PER OBANDE FESTUS OGBUINYA, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT: THE IMPORTANCE OF CONFESSIONAL STATEMENTS
Indeed, the kingly position of confession in criminal jurisprudence cannot be over-emphasised. Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye witness, see Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v.State (2017) 12 NWLR (Pt. 1579) 196; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72. By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556. The appellant?s confessional statement, exhibit 1, drowns his right to presumption of innocence, which is enshrined in Section 36(5) of the 1999 Constitution, as amended, as well as make him the undoubted owner of the requisite mens rea and actus reus in relation to offence of armed robbery preferred against him. PER OBANDE FESTUS OGBUINYA, J.C.A.

CRIMINAL LAW AND PROCEDURE: ARMED ROBBERY: HOW TO PROVE ARMED ROBBERY

By way of prefatory remarks, it is important to appreciate the import and features of the substantive offence, armed robbery, which was levelled against the appellant. By virtue of the provision of Section 11, the interpretation clause, of the Robbery and Firearms (Special Provisions) Act, Cap. R II LFN, 2004 (hereunder abridged to ?the Act?), ?robbery? means ?stealing anything and, at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the things stolen or to prevent or overcome resistance to its being stolen or retained?. Where the robbery is accompanied by the use of firearm or offensive weapon which causes or attempts to cause any person?s death or hurt or unlawful restraint or fear, it mutates into an armed robbery, see The State v. Yamusissilka (1974) 6 SC 53 at 62; Ebeinwe v. State (2011) 7 NWLR (Pt. 1246) 402; Ikaria v. State (2014) 1 NWLR (Pt. 1389) 639; Bassey v. State (2012) 12 NWLR (Pt. 1314) 209. To secure a conviction for the offence of armed robbery, the prosecution, the respondent herein, is required, by law, to prove beyond reasonable doubt, that: there was robbery or series of robberies; each robbery was an armed robbery and the accused person was one of those who took part in the armed robbery, see Afolabi v. State (2010) 16 NWLR (Pt. 1220) 584; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Nwaturuocha v. State(2011) 6 NWLR (Pt. 1242) 170; Abdullahi v. State (2008) 17 NWLR (Pt. 115) 203; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Okiemute v. State (2016) 15 NWLR (Pt. 1535) 297; Sale v. State (2016) 3 NWLR (Pt. 14499) 392; Ayo v. State (2016) 7 NWLR (Pt. 1510) 183; Kayode v. State (2016) 7 NWLR (Pt. 1511) 199; Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501; Ogogovie v. State (2016) 12 NWLR (Pt. 1527) 468; State v. Ajayi (2016) 14 NWLR (Pt. 1532) 196; Osuagwu v. State (2016) 16 NWLR (Pt. 1537) 31; Akwuobi v. State (2017) NWLR (2017) 2 NWLR (Pt.1550) 421; State v. Ekanem (2017) 4 NWLR (Pt. 1554) 85; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Agugua v. State (2017) 10 NWLR (Pt. 1573) 254; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Amadi v. A.-G., Imo State (2017) 11 NWLR (1575) 92. PER OBANDE FESTUS OGBUINYA, J.C.A.

CRIMINAL LAW AND PROCEDURE: HOW TO PROVE CRIME UNDER CASE LAW

The case-law has sanctioned three ways of proving commission of a crime viz: (a)  Eye witnesses evidence; (b)  Confessional evidence or (c)  Circumstantial evidence, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425; State v. Isah (2012) 16 NWLR (Pt. 1372) 613; Abirifon v. State (2013) 13 NWLR (Pt. 1372) 587; Okiemute v. State (supra); FRN v. Barminas (supra), Eze v. FRN (supra); Igbikis v. State (supra) (2017) 11 NWLR (Pt. 1575) 126. PER OBANDE FESTUS OGBUINYA, J.C.A.

CRIMINAL LAW AND PROCEDURE: WHEN EVIDENCE IS CONTRADICTORY IN NATURE

One of the appellant?s grouses, indeed one of his trump cards on the issue, is that the respondents evidence were infested with contradictions so that the lower Court should not have acted on them. Etymologically, contradiction, like most legal terminologies, traces its paternity to the Latin word, contradictum, an amalgam of ?contra and dictum, which denotes ?to say the opposite?. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other.  Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a party?s case, see Ebeinwe v. State (2011) 7 NWLR (Pt, 1246) 402; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Babarinde v. State (2011) 3 NWLR (Pt. 1235) 568; Olatinwo v. State (2013) 8 NWLR (Pt. 1355) 126; Mohammed v. State (2014) 12 NWLR (Pt. 1421) 387; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614; Bello v. C.O.P (2018) 2 NWLR (Pt. 1603) 267; Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183; Ogu v. C.O.P (supra); Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107; Idagu v. State (2018) 15 NWLR (Pt. 1641) 127.
 PER OBANDE FESTUS OGBUINYA, J.C.A.

EVIDENCE: WHETHER THE COURT IS BOUND TO CONSIDER ALL EVIDENCE PRESENTED TO IT BY A PARTY

It is trite law that a Court must consider the defence of an accused person disclosed in the evidence no matter how weighty or frivolous it is, see Ayaba v. State (2018) 14 NWLR (Pt. 1638) 180. PER OBANDE FESTUS OGBUINYA, J.C.A.

JUDGMENT: PERVERSE JUDGMENT: WHEN WILL A VERDICT OR JUDGMENT BE CONSIDERED PERVERSE

The appellant branded the lower Court?s evaluation of the evidence as perverse. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see FRN V. Barminas  (2017) 15 NWLR (Pt. 1588) 177; Igbikis v. State (2017) 11 NWLR (Pt. 1575) 126; Ukanacho v. A.-G., Imo State (2018) 14 NWLR (Pt. 1638) 106. PER OBANDE FESTUS OGBUINYA, J.C.A.

CRIMINAL LAW AND PROCEDURE:  MEANING OF STANDARD OF PROOF IN CRIMINAL CASES ON THE PART OF THE PROSECUTION

In the legal parlance, proof beyond reasonable doubt is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence ?of course it is possible but not in the least probable?, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425; Galadima v. State (2018) 13 NWLR (Pt. 1636) 357. It implies that the solemn finding of the lower Court,