DEMO OSENI V. THE STATE
(2010)LCN/4033(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of November, 2010
CA/IL/C.1/2010
RATIO
PROOF BEYOND REASONABLE DOUBT: MEANING OF THE EXPRESSION “PROOF BEYOND REASONABLE DOUBT” IN CRIMINAL TRIAL
Let me also say from the on set that the expression “proof beyond reasonable doubt” does not mean “proof beyond all shadows of doubt”. In a criminal trial what the prosecution is expected to prove in order to succeed is to prove its case beyond reasonable doubt and no more. It is also the law that the prosecution is expected to prove the commission of an offence with the certainty of the law, that is, that an offence has been committed and that no other person other than the accused committed the offence, then it has established its case beyond reasonable doubt. The law requires that the guilt of an accused person must be proved beyond reasonable doubt and that where there is any doubt, the accused must be given the benefit of that doubt. The onus of proof remains always on the prosecution except in a few limited circumstances such as insanity where the law presumes an accused sane and casts the burden of establishing the contrary on him, See the cases of Emine and other vs. The State (1992) 7 NWLR (part 256) P.650 at p.660, Onafowokan vs. The State (1987) 3 NWLR (Part 61) p. 538 at p. 541 and Mufutau Bakare vs. The State (1987) 3 SC 1 at p. 5. PER TIJJANI ABDULLAHI, J.C.A
CONFESSIONAL STATEMENT: WHETHER QUESTION OF VOLUNTARINESS OF CONFESSIONAL STATEMENT CAN BE RAISED WHEN THE PROSECUTION HAD CLOSED ITS CASE AND THE ACCUSED IS TESTIFYING IN HIS OWN DEFENCE IN THE WITNESS BOX
In the case of Alarape vs. The State (supra) the apex Court held thus: “The question of voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statements were denied without any objection from the defence. None of the prosecution witnesses were cross-examined as to their involuntariness. It was not until the prosecution had closed its case and the appellant were testifying in their own defence in the witness box that the issue was belatedly raised. The trial Judge was right to dismiss this aspect of the defence case as an after thought having regard to the qualitative evidence tendered by the prosecution and accepted by the trial court on the subject.” It is instructive to note that apart from the confessional statement of the appellant, there are pieces of evidence which would be analyzed anon which the trial judge relied on in convicting the appellant. Suffice it to say at this stage that the question posed a while ago must be answered in the negative. For the avoidance of doubt, the appellant cannot raise the defence of involuntariness of the confessional statement (exhibit 5) at this stage. The defence raised by the appellant at the risk of being repetitive was very much an after thought. PER TIJJANI ABDULLAHI, J.C.A
HEARSAY EVIDENCE: WHEN WILL THE EVIDENCE OF A STATEMENT MADE TO A WITNESS BY A PERSON WHO IS NOT HIMSELF CALLED AS A WITNESS BECOME HEARSAY
“77. Oral evidence must, in all cases be direct – B. If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact.” All the witnesses, particularly pW3 copiously referred to by the appellant’s Counsel, said he was at the police station, Kusubosu and heard all what the appellant told the police. In the case of Utteh vs. The State (1992) 12 NWLR (pt. 223) at, page 273, the Supreme Court per Nnaemeka Agu, JSC had this to say on hearsay evidence.” “The evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made to him. See also UBN PLC vs. ISHOLA (2001) 12 NWLR pt.735 pg 47 at 75BC.” PER TIJJANI ABDULLAHI, J.C.A
CONFESSIONAL STATEMENT: CIRCUMSTANCE WHEN A CONFESSIONAL STATEMENT WILL BE ENOUGH TO GROUND A CONVICTION
It is now settled law that a confessional statement so long as it is free and voluntary and it is direct, positive and properly proved, is enough to ground a conviction. See the cases of Kopu vs. The State (1971) 1 All NLR, 150; Yesuf vs. The State (1965) NMLR 119 and R vs. Omokaro (1941) 7 WACA P. 146. PER TIJJANI ABDULLAHI, J.C.A
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
DEMO OSENI Appellant(s)
AND
THE STATE Respondent(s)
TIJJANI ABDULLAHI, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Kwara State High Court of Justice, sitting at Ilorin, Coram H.O. Ajayi (J) delivered on the 8th day of April, 2009 wherein the present Appellant who was initially charged with one other person was convicted and sentenced to death by hanging for the offence of Armed Robbery Under Section 1(2)(a) and (b) of the Robbery and fire Arms (special provision) Act Cap R II, Laws of the Federation of Nigeria, 2004,
Count two of the charge under which the appellant was found guilty and convicted reads thus:
“That you Abubakar Sadiq, Demo Oseni on or about 26th May, 2005 along Chikanda Road in Baruten Local Government Area of Kwara State within the jurisdiction of this Court killed one Umoru Sabi Sika with a cutlass and Robbed him of his Zinoki Supra motorcycle and attempted to sell same at Guru Market in Baruten Local Government Area and you thereby Committed an offence contrary to section 1(2) (a) and (b) of Robbery and fire Arms (special Provision) Act Cap R II Laws of Federation of Nigeria, 2004”.
The facts of the case as can be gleaned from the record of proceedings briefly are that: The appellant herein was originally arraigned along with one Abubakar Umaru Sadiq (1st accused) on a two count charge of criminal conspiracy and Armed Robbery contrary to sections 97(1)(2) of the penal Code and the Armed Robbery and fire arms (special provisions) Act Cap II Laws of the Federation of Nigeria, 2004.
The case for the prosecution was that on or about the 26th day of May, 2005 along Chikanda Road in Baruten Local Government Area of Kwara State the appellant and the said Abubakar Umar Sadiq conspired and killed one Umoru Sabi Sika and robbed him of his motorcycle.
That on the 28th day of May 2006, the son of the late Umoru Sabi Sika saw his father’s motorcycle being sold at Guru market and he went home to inform his uncle, Abubakar Sabi Sika. That the said uncle later went to Guru market on 30th May 2005 with one Danhadu Adamu and confirmed the information.
Danhadu Adamu, PW3 pretended to be interested in the purchase of the motorcycle and that he drove it to a police station where he made report and the 1st accused was arrested. Subsequently the 2nd accused person was also arrested.
In the course of trial, the first accused person was released on bail by the State Criminal Justice Committee on ground of ill health. Later he was rumored to have died.
The case proceeded to hearing and at the end of trial; the learned trial judge discharged and acquitted the appellant of the offence of conspiracy, convicted him of the offence of Armed Robbery and sentenced him to death by hanging. On page 71 of the printed record, the learned trial Judge held as follows:
“I therefore hold the view that the prosecution has proved the case of Robbery against the accused person Demo Oseni beyond every reasonable doubt and he is hereby convicted accordingly on the said charge.”
Dissatisfied with the judgment of the learned trial judge, the appellant approached this Court and filed a notice of appeal which carries four grounds. Devoid of their particulars, the four grounds read thus:
“Ground One: The learned trial judge erred in law when he held that the prosecution proved the offence of Armed Robbery against the appellant beyond reasonable doubt.
Ground Two: The learned trial judge erred in law when he relied on the alleged confessional statement (exhibit 5) of the appellant to convict him after the appellant gave evidence of threat with gun that if he failed to thumbprint the statement he would be killed and further evidence of torture with broom stick in his private part in a bid to secure the statement.
Ground three: The trial Judge erred in law when he convicted the appellant without giving him fair hearing
Ground four: The learned trial judge misdirected himself in admitting Exhibit P4, referred to as the 1st accused person (sic) confessional statement to the police.”
Distilled from the said four grounds of appeal and set out in the appellant’s brief are four issues for determination to wit:
“3.1 .Whether the learned trial judge was right in holding that the prosecution proved the offence of armed robbery beyond reasonable doubt against the appellant.
OR
How did the trial judge establish a link between the appellant and the 1st accused person who was allegedly found with the stolen motorcycle at Gure market, considering the fact that the same judge found that there was no conspiracy between the 1st accused person and the appellant and discharged and acquitted the latter on the count of conspiracy (Related to ground 1).
3.2 Whether the trial judge made a proper evaluation of the appellant’s confessional statement. (Related to ground 2)
3.3 Whether the due process of the law was followed, within particular reference to the fair hearing rights of the appellant before convicting him on the count of armed robbery. (Related to Ground 3).
3.4 Whether the trial judge was right in not expunging from the records of the court the purported confessional statement of a co-accused person who did not stand his trial (Related to ground 4)
For their part, the respondent did not formulate any issue for determination but rather adopted the issues formulated by the appellant as the issues calling for determination in this appeal.
On 28th September 2010 when the appeal came before us for hearing, learned counsel, in accordance with the rules of this Court, adopted their briefs of argument. They did not proffer any oral argument in amplification of the said briefs. The appellant’s brief is dated and filed on 14th January, 2010. He abandoned the alternative issue formulated for determination. The respondent’s brief dated 15th February’ 2010 was filed the same date.
The first issue formulated by the appellant as earlier stated is whether the learned trial judge was right in holding that the prosecution proved the offence of Armed Robbery beyond reasonable doubt. In a brief settled by Olalekan Yusuf Esq, learned counsel submitted that in a criminal trial, whenever the commission of a crime by a person is directly in issue it must be proved beyond reasonable doubt. The standard of proof is such that if there is any element of doubt in relation to any of the ingredients, the doubt is to be resolved in favour of the accused person For this submission, learned Counsel relied on the cases of Tanko vs. The State (2008) 16 NWLR (pt. 114) p. 597 at 632, paras D – F, Hassan vs. The State (2001) 6 NWLR (pt. 709) p. 286 and Adetolo vs. The State (1992) 4 NWLR (pt. 235) P.267,
It is the contention of the learned counsel that to prove a case of Armed Robbery against an accused person, the law requires the prosecution to prove three essential ingredients of the offence which he listed thus:
“(A) That there was armed robbery
(B) That the robbery was an armed robbery.
(C) That the accused was one of those who robbed.”
Learned Counsel further contended that by virtue of section 1(2) of the Robbery and Firearms (special provisions) Act, Cap II, Laws of the Federation of Nigeria, the prosecution is required to prove, in addition to the three ingredients above, that the accused at, or immediately after the time of the robbery wounds or causes any personal violence on any person. Learned Counsel relied on the case of Bello vs. The State (2007) 10 NWLR (pt. 1043) p. 564 at p. 566 – 567 to buttress his submission.
It is the submission of the learned Counsel that in the case in hand, the prosecution failed in its duty to discharge the burden of proving the charge against the appellant beyond reasonable doubt by failing to establish all the ingredients of the offence of armed robbery against the appellant. All that the prosecution was able to offer as evidence, learned Counsel went on, were the appellant alleged confessional statement; an array of hearsay evidence and a cutlass said to have been recovered from the appellant’s room.
On the confessional statement of the appellant, learned Counsel submitted that although a confession is admissible against its maker, it is however the duty of the trial judge to consider the circumstance under which it was given and to decide what weight to be attached to it. He relied on the cases of Akpa vs. The State (2008) 14 NWLR (pt. 1106) p.72 at 99 paras D-E and Nwachukwu vs. State (2002) 2 NWLR (Part 751) P.366.
In the instant case, learned Counsel argued that the appellant, an illiterate cattle rearer who speaks only Hausa language, testified as to the inhuman condition to which he was subjected which compelled him to involuntarily thumbprint Exhibit 5. Learned Counsel then posed this question that how often does a criminal, without threat or inducement, confess to committing a crime? Except of course, the learned Counsel went on, an accused person received God’s visitation or was indeed caught red-handed in the commission of the act. The matter in hand, learned Counsel opined does not fall into any of these exceptions.
It is the submission of the learned Counsel that the trial judge ought to have subjected these underlying circumstances to serious consideration. Learned Counsel further submitted that though the defence Counsel failed to properly object to the admission in evidence of exhibit 5 and therefore failed to ask for a trial within a trial by reason of involuntariness of Exhibit 5 however, learned Counsel urged the Court not to visit the sin of the Counsel, on the client, especially in a crime that carries capital punishment.
Learned Counsel contended that the question that the trial Judge ought to have addressed her mind is whether there is any independent testimony which affects the accused by confirming the evidence given and tending to connect the appellant with the offence. The prosecution, learned Counsel, went on, attempted to do so by adducing evidence which it termed as circumstantial evidence. However learned Counsel argued that the evidence is inadmissible by virtue of section 77 of the Evidence Act. He relied on the case of Jolayemi vs. Alaoye (2004) 12 NWLR (Part 887) P. 322 at p. 341. He further contended that the evidence of the witnesses called by the prosecution are nothing but hearsay because they repeated what they admitted they heard the appellant said at the police station. This, was particularly apparent in the testimonies of PW3 and PW4, learned Counsel further opined.
It is the contention of the learned Counsel that the prosecution tried hard to vest these pieces of hearsay evidence with the garment of circumstantial evidence. However, even assuming without in any way conceding that they were, the prosecution would still fail. For circumstantial evidence to ground conviction, the evidence must lead to one conclusion, that the robbery had been committed and that it was committed by the appellant, learned Counsel further contended. He relied on the case of Akpa vs. The State (2008) 14 NWLR (Part 1106) p.72.
Learned Counsel submitted that circumstantial evidence to ground conviction, must be positive, direct, unequivocal and irresistibly lead to the inference that the accused person committed the crime. And unless and until, such an inference ought not be drawn.
It is the submission of the learned Counsel that the culpability of the appellant in the offence could only have been established by associating or by linking him with the 1st accused person who was allegedly caught with the stolen motorcycle. The only way to establish this association is by conspiracy but no evidence was led by the prosecution on the said count, learned Counsel further submitted.
On exhibit P1, the cutlass recovered under the appellant’s bed, learned Counsel submitted that even if the cutlass was recovered from there it was not established with any reasonable certainty that the cutlass was the actual weapon used in the commission of the offence. It is his further submission that owning and having a cutlass at home is common practice in this part of the world and even more so among cattle rearers. Cutlass he further submitted is kept for various purposes, the practice should not by any stretch of imagination be solely construed as being only consistent with commission of crime. Having not established the commission of the offence beyond reasonable doubt against the appellant, learned Counsel urged us to resolve the doubt in his favour. He relied on the cases of Orji vs. State (2008) 10 NWLR (Part 1094) p.3l and p.50, paras. A – B and State vs. Azeez (2008) 14 NWLR (Part 1108) p. 483 paras B – E, P. 501 paras D – E.
For his part, in a brief settled by J. A. Mumini Esq. Director public prosecutions, Ministry of Justice, Kwara State, learned Counsel, submitted that the prosecution had proved the offence of Armed Robbery beyond reasonable doubt against the appellant. Learned counsel further submitted that proof beyond reasonable doubt as an expression in criminal law is not and should not be mistaken for prove beyond every shadow of doubt. What is required of prosecution is proof beyond reasonable doubt learned counsel, further opined. He relied on the case of Mufutau Bakare vs, The State (1987) 3 SC. 1 at page 5.
It is the submission of the learned counsel that the three ingredients of the offence of Armed Robbery i.e. that there was robbery, that the robbery was an armed robbery and the appellant was one of those who robbed the deceased had been proved beyond reasonable doubt. Learned counsel referred to the evidence of PW 2, PW 3 and PW4 and Exhibit P.5, confessional statement of the appellant to buttress his submission on this point.
Learned counsel contended that though, there was no eye witness to the commission of the offence, there is strong circumstantial evidence which is cogent, compelling and reasonable enough to warrant the conviction of the appellant. He relied on the case of Amusa Opoola Adio and Anor vs. The State (1986) 4 SC p.197 at p.219 -222.
It is the contention of the learned Counsel that the appellant made a confessional statement, exhibit 5 which was admitted in evidence without objection from the defence on ground of its involuntariness. It was after the exhibit had been admitted, in the course of the defence that the appellant for the first time raised the issue of involuntariness of the statement. This, learned counsel further contended cannot make the confessional statement inadmissible in evidence. He cited and relied on the case of Alarape vs. The State (2001) FWLR (Pt. 41) p. 1872 at 1875.
The contention of the learned Counsel for the appellant that the evidence of prosecution witnesses amounted to hearsay evidence is a misconception of the law on hearsay evidence, learned Counsel for the respondent argued. He referred to section 77B of the Evidence Act and the case of Utteh vs. The State (1992) 2 NWLR (pt.223) at p. 271 – 272, paras A – C and submitted that a piece of evidence is admissible if the witness hears the fact(s) he is testifying to. It is the contention of the learned Counsel that the evidence of PW3 copiously referred to by the appellant in paragraph 4.13 of his brief is not and cannot be regarded as hearsay evidence. This is because the witness on page 38 of the Record said the appellant said all these, in his presence to the police in Kosubosu. Learned Counsel for the respondent urged us to hold that the prosecution had proved its case beyond reasonable doubt and that this issue be resolved in favour of the respondent.
Now, the first port of call in determining the issue in contention is whether based on the evidence adduced by the prosecution, it can be said to have discharged the burden of proof or put differently whether they had established the ingredients of the offence against the appellant beyond reasonable doubt.
Let me also say from the on set that the expression “proof beyond reasonable doubt” does not mean “proof beyond all shadows of doubt”. In a criminal trial what the prosecution is expected to prove in order to succeed is to prove its case beyond reasonable doubt and no more. It is also the law that the prosecution is expected to prove the commission of an offence with the certainty of the law, that is, that an offence has been committed and that no other person other than the accused committed the offence, then it has established its case beyond reasonable doubt. The law requires that the guilt of an accused person must be proved beyond reasonable doubt and that where there is any doubt, the accused must be given the benefit of that doubt. The onus of proof remains always on the prosecution except in a few limited circumstances such as insanity where the law presumes an accused sane and casts the burden of establishing the contrary on him, See the cases of Emine and other vs. The State (1992) 7 NWLR (part 256) P.650 at p.660, Onafowokan vs. The State (1987) 3 NWLR (Part 61) p. 538 at p. 541 and Mufutau Bakare vs. The State (1987) 3 SC 1 at p. 5.
It is instructive to state at this juncture that having stated the law and all that, the question to be asked is whether based on the evidence adduced by the prosecution, the burden of proving the guilt of the appellant has been discharged. Though there were no eye witnesses to the commission of the offence, the prosecution tendered in evidence the confessional statement of the appellant and the cutlass the appellant confessed to have used in killing the deceased. The prosecution also called witnesses who were at the police station when the appellant told the police that it was himself and one other person who killed the deceased.
Learned Counsel for the appellant, submitted Quite copiously that the confessional statement of the appellant was obtained as a result of torture from the police. That though they did not object to the admissibility of the statement on that ground that was their fault which should not be visited on the appellant. The appellant being an illiterate cattle rearer who speaks only Hausa language gave evidence as to the inhuman condition to which he was subjected before thumb printing Exhibit 5. Having denied making the statement voluntarily in the witness box, the trial judge ought to have taken that into consideration before acting on the statement.
It is pertinent at this stage to pause and say that when exhibit 5 was sought to be tendered by the prosecution, there was no objection to its admissibility on the ground of inhuman treatment or that being an illiterate he did not understand what was being tendered before the Court. In fact as can be gleaned from the record, the appellant and the statement were taken before a superior police officer and same was read to him and he confirmed that he is the maker of the statement and that he made it without duress or promise of favour. (See the endorsement on exhibit P5).
It is noteworthy to observe that it was after exhibit 5 had been admitted in the course of his defence that the appellant for the first time raised the issue of involuntariness of the statement. The question that must be asked and answered is this, can the appellant successfully raise the involuntariness of the confessional statement at the stage of defence? In the case of Alarape vs. The State (supra) the apex Court held thus:
“The question of voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statements were denied without any objection from the defence. None of the prosecution witnesses were cross-examined as to their involuntariness. It was not until the prosecution had closed its case and the appellant were testifying in their own defence in the witness box that the issue was belatedly raised. The trial Judge was right to dismiss this aspect of the defence case as an after thought having regard to the qualitative evidence tendered by the prosecution and accepted by the trial court on the subject.”
It is instructive to note that apart from the confessional statement of the appellant, there are pieces of evidence which would be analyzed anon which the trial judge relied on in convicting the appellant. Suffice it to say at this stage that the question posed a while ago must be answered in the negative. For the avoidance of doubt, the appellant cannot raise the defence of involuntariness of the confessional statement (exhibit 5) at this stage. The defence raised by the appellant at the risk of being repetitive was very much an after thought. It is pertinent to observe that the learned trial judge did not only rely on the confessional statement of the appellant herein the trial Court was confronted with other independent evidence outside the confession which makes the confession probable and which corroborates it in substance. The evidence of P2, PW3 and PW4 together with the search warrant on the house and premises of the appellant admitted as exhibit P8 strengthen the prosecution’s case.
In exhibit 5, the appellant inter alia stated thus:
“The cutlass I used in killing the deceased is in my house. I am ready to produce the said cutlass to the police at any time my house is visited.”
On the 12th of July, 2005 when the house of the appellant was searched, one cutlass was recovered in the hurt of appellant which he claimed to have used in the killing of the deceased. I am of the considered opinion that this piece of evidence has no doubt strengthens the case of the prosecution against the appellant.
Learned Counsel for the appellant has evidence of pw2, pw3 and pw4 which he dubbed as hearsay evidence. With respect due to the learned Counsel, the evidence of the said witnesses is not and cannot be hearsay in view of the provision of section 77(B) of the Evidence Act which provides as follows:
“77. Oral evidence must, in all cases be direct –
B. If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard that fact.”
All the witnesses, particularly pW3 copiously referred to by the appellant’s Counsel, said he was at the police station, Kusubosu and heard all what the appellant told the police. In the case of Utteh vs. The State (1992) 12 NWLR (pt. 223) at, page 273, the Supreme Court per Nnaemeka Agu, JSC had this to say on hearsay evidence.”
“The evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement, but the fact that it was made to him. See also UBN PLC vs. ISHOLA (2001) 12 NWLR pt.735 pg 47 at 75BC.”
In another case of Ehikinya vs. C.O.P. (1992) 4 NWLR (pt. 223) p.55 at pp. 68 – 69, this Court held that:
“The evidence of two of the plaintiff witnesses which was to the effect that they heard the deceased scream that the first accused person had killed him and which made them run to his rescue was not hearsay.”
The same attitude was taken by the same court in OJO v. GHARORO (1999) 8 NWLR (pt.615) 374 @387 D-F; with respect to the evidence of the first respondent as he testified to what he said he heard during the incident.
In the light of the avalanche of authorities reproduced supra, I am of the firm view that the evidence of the prosecution witnesses is not and cannot be hearsay. Far from it, the learned trial Judge was right in relying on the said evidence inter alia in convicting the appellant.
Learned Counsel for the appellant strenuously argued that since the witnesses cannot be said to speak the same language with the appellant, there was no way that the appellant could have communicated with the witnesses. This argument cannot avail the appellant in view of the fact that the witnesses were not cross-examined on how they heard the confession of the appellant by the appellant’s counsel for further elucidation of the means of communication. More importantly, the appellant himself did not raise any objection to exhibit 5 which in content summarizes the evidence of p.w3 and p.w4 in the witness box.
Learned Counsel for the appellant in paragraph 4.17 of his brief contended that the prosecution must necessarily sustain the charge of conspiracy before sustaining the armed robbery charge. I am of the considered view that the contention of the learned counsel is completely devoid of any merit. The offence of conspiracy is a distinct offence on its own and the learned trial Judge was right in convicting the appellant of the offence of armed robbery and discharging him on offence of conspiracy.
In view of the foregoing, this issue is resolved in favour of the respondent and against the appellant. The offence of armed robbery as charged was sufficiently proved by the prosecution beyond reasonable doubt.
The 2nd issue for determination is whether the trial judge made proper evaluation of the confessional statement of the appellant contained in Exhibit p5 before relying on it to convict the appellant. Learned counsel submitted that a trial Judge has a duty to evaluate a confessional statement before acting on it. He relied on the case of Akpa vs. The State (2007) 2 NWLR (pt. 1019) p. 500 and Uwagboe vs. The State 6 NWLR (pt. 1031) 606 at 623
It is the submission of the learned counsel that there is nothing outside Exhibits p4 and p5 that shows that the appellant committed any crime or intended same or that he conspired with the accused person or any other person(s) to do so. Learned counsel further contended that the facts stated in Exhibit p5 and the testimonies of the prosecution witnesses who said they saw the appellant with the 1st accused are not true as far as can be tested. The appellant, the learned counsel went on, was not arrested the same day with the 1st accused nor was he seen with him either before or after the commission of the offence.
Learned Counsel contended that though the prosecution tendered in evidence alleged confessional statements of the appellant and the 1st accused which were admitted in evidence, the appellant did not at any time during trial adopt that statement as his own, instead he gave evidence in his trial that the confessional statement was not his and that he was forced to adopt it. The testimony of the appellant raises the following issues:
(a) The appellant did not make the statement.
(b) He did not know the content of the statement he was asked to thumbprint.
(c) The police secured his thumbprint through intimidation, force, coercion, harassment, duress, dehumanization and threat to his life.
The above, learned Counsel went on, were the things the trial judge ought to have put into consideration before determining what weight could be attached to the alleged confessional statement.
Learned Counsel submitted that since the appellant gave evidence in Court which is inconsistent with his alleged confessional statement, the oral evidence will not only be regarded as unreliable, the previous statement too cannot constitute evidence upon which the Court can act. It is his further submission that the trial Court was wrong to have convicted the appellant after rejecting his oral evidence which was in conflict with his alleged statement and having declared same unreliable, to rely on the alleged confessional statement to convict him of the offence of armed robbery as charged. He relied on the case of Omini vs. The State (1999) 12 NWLR (pt.630) p. 168 at 180 and Queen vs. Ukpong (1961) 1 SCNLR 53, also reported in 1961 NLR p. 25.
Learned Counsel urged us to resolve this issue in favour of the appellant contending that the trial judge failed completely to evaluate the evidence before him in arriving at the verdict appealed against.
Learned Counsel for the respondent on the other hand submitted that the trial judge has a duty to evaluate a confessional statement particularly where the Court is relying on such confession alone to convict an accused person. In the case in hand, learned Counsel further submitted, the learned trial judge did not convict the appellant solely on his confessional statement but based his conviction on other cogent and compelling circumstantial evidence which makes the confession true.
It is the contention of the learned Counsel that the inconsistency rule heavily relied by the appellant’s Counsel as enunciated in the case of Ojo vs. FRN (2008) 11 NWLR (pt. 1099) 467 at 524 para F – H cannot be called in aid of the appellant in the light of the decisions in the cases of Adeoti vs. The State (2009) All FWLR (Pt. 454) 1450, 1509 – 1511, Saidu vs. The State (2009) 29 WRN 86 and Aignoreghian vs. The State (2004) 1 KLR (Pt. 170) 12. Learned counsel urged us to resolve this issue in their favour.
A good starting point on this issue, is whether it can be said that there are other facts outside the confessional statement of the appellant which make the said confessional statement true, cogent, direct and positive which the learned trial judge relied upon to convict the appellant.
In Exhibit 5, the confessional statement of the appellant, he (appellant) stated inter-alia thus:
“The cutlass I used in killing the decease is in my house.
I am ready to produce the said cutlass to the police any time my house is visited.”
It is instructive to state at this stage that as a result of the information supplied by the appellant, a search warrant was executed in the residence of the appellant where the cutlass used in the commission of the crime was recovered. See the evidence of pw1 on pages 25 – 29 of the record. The search warrant, Exhibit p8 was duly signed by the appellant himself and members of his family who were there as witnesses.
In exhibit 5, the confessional statement of the appellant which was admitted without any objection as to its voluntariness, the appellant stated as follows:
“Actually it was myself and Abubakar Umar Sidiq that killed and carted away his motorcycle. I am not an armed robber. I only decided to kill him because of his evil (sic) doers.”
I am of the considered view that the confessional statement of the appellant reproduced supra is direct, positive and unequivocal and even the motive for the killing had been expressly stated by the appellant himself.
It is now settled law that a confessional statement so long as it is free and voluntary and it is direct, positive and properly proved, is enough to ground a conviction. See the cases of Kopu vs. The State (1971) 1 All NLR, 150; Yesuf vs. The State (1965) NMLR 119 and R vs. Omokaro (1941) 7 WACA P. 146.
Though the appellant’s conviction could be sustained based on his confessional statement alone, the said statement was further corroborated by the testimonies of pw2, pw3 and pw4 and of course the cutlass that was found in his residence which he said could be found there in the confessional statement.
In view of all that has been said, the submission of the learned Counsel for the appellant that the trial Court did not evaluate the evidence adduced by the prosecution before arriving at its verdict is of no moment and same cannot be upheld.
Learned Counsel has made heavy weather with regard to the evidence of the appellant in the witness box where he retroacted his confessional statement. Learned Counsel relied on the case of Ojo vs. FRN (supra) where this Court held thus:
“Where a witness, including an accused is shown to have made a previous statement which is inconsistent with his oral testimony given later during trial such oral testimony will not only be regarded as unreliable, the previous statement cannot constitute an evidence upon which the court can act. In the instant case, the trial court was wrong to have acted upon the written statement of the 2nd Appellant, exhibit P5 convert the Appellants, having declared that the statement was inconsistent with his oral testimony at the trial and having declared that the oral testimony was unreliable.”
Learned Counsel then submitted that the decision in the case cited supra is the current position of the law and that the circumstances of that case are in pari materia with that of the case in hand.
It is pertinent to pause at this juncture and say with respect due to the learned Counsel, the inconsistency rule as stated in Ojo vs. FRN by this Court, Abuja Division is not the position of law in Nigeria. The Supreme Court in Egboghonome vs. The State (1993) 9 SCNJ P.1 at 21 – 22 has had course to re-appraise the inconsistency rule in the following terms:
“A witness may have a good explanation for the inconsistency between his previous unsworn statement and his evidence in court or the inconsistency may fail to discredit his entire testimony.”
Let me also say that it is only where a witness is unable to explain the inconsistency satisfactorily that the rule is applied. The rule is limited to the statement of a witness and his inconsistent testimony. In post Egboghonme’s decision like Adeoti vs. The State (2009) All FWLR (pt. 454) 1450, 1509 – 15111; Saidu vs. The State (2009) 29 WRN 86 and Aignoreghain vs. The State (2004) 1 KLR (pt. 170) p. 129, the Courts have held the position that the inconsistency rules does not apply to the previous confessions of an accused person and his evidence in Court.
Again, in a more recent case of Femi Oladotun vs. The State unreported decision of this court No. CA/IL/C.35/2009 delivered on 11th December, 2009 Ilorin Division, Chima Centus Nweze, JCA commenting on the unsuitability of a Court relying on the inconsistency rule as enunciated in Ojo vs. FRN (supra) had this to say:
“In strict fidelity to the doctrine of stare decisis, post Egboghonome decisions for example. AKPAN V. THE STATE (2001) 15 NWLR (PT, 737) 745; NSOFOR V THE STATE; (2004) 18 NWLR (PT. 905) 929; DIBIE AND ORS v THE STATE (2007) ALL FWLR (PT.363) 83; AMOSHINA V. STATE (2009) 32 NRN 47, SAIDU V. STATE (2009) 29 WRN ALL FWLR (PT.454) 1450, 1509 – 1511 etc have reverted to the position in UDO V. THE QUEEN (supra) namely that the inconsistency rule does not apply to the previous confessions of an accused person and his evidence in court”. (Underlining supplied for emphasis).
In the light of all that has been said, this issue like the previous one is resolved in favour of the respondent and against the appellant.
Issue No. 3 is whether the due process of the law was followed with particular reference to the fair hearing rights of the Appellant before convicting him on the count of armed robbery. Learned Counsel reproduced the provisions of section 36(6) (a) and (b) which provide that:
“Every person charged with a criminal offence shall be entitled to:
(a) be informed promptly in the language he understands and in details the nature of the offence:
(b) be given adequate time and facilities for the preparation of his offence.
Learned Counsel also reproduced the evidence of the appellant wherein he stated inter-alia thus:
“I don’t know why I was arrested. I was taken to Kusubosu police station on my arrest. I was asked of my name only and I told them …”
Learned Counsel then submitted that in the light of the foregoing, the appellant was denied of his right to fair hearing in that he was not properly told the reason of his arrest but was merely asked of his name. Learned Counsel went on to submit that he was not told of the robbery of the motorcycle in question nor did he see any motorcycle during the period of his trial.
It is his further submission that since the appellant did not even know the nature of the offence he allegedly committed, how then would it be said he had adequate time to prepare for his defence. This, learned counsel went on, had violated the right to fair hearing of the appellant. It is the contention of the learned Counsel that though the records of appeal show that there was an interpreter in the court, the court should have taken cognizance of the fact that the appellant is an illiterate. The appellant made his statement and it was translated into English. Yet the Hausa version of the statement was not tendered in court for the purpose of comparism with the English version, learned counsel further contended. He relied on the case of Olalekan vs. The State (2001) 2 NWLR (Pt.746) 793 where the Supreme Court held inter-alia thus:
“Statements should wherever practicable be made in the language in which they are made ….. lt is not an invariable practice but one to ensure the correctness and the accuracy of the statements made by the accused person .”
Learned Counsel then posed this question; how then did the trial Court ensure the correctness and accuracy of the alleged confessional statement of the appellant?
For his part, learned counsel for the respondent contended that the appellant herein volunteered his confessional statement, Exhibit p5 to pw3, Dada Segun who by the evidence adduced before the Court understands Hausa, the language in which the appellant chose to make his statement. He referred us to page 27 of the records of proceedings to buttress his contention.
Learned Counsel submitted that the learned trial judge did not in any way violate the sacred provisions of section 36(6)(a) and (b) of the 1999 Constitution. Fair hearing as envisaged under the Constitution is not a wholesome vague and abstract theory devoid of direct and comprehensive meaning, learned Counsel further submitted. He relied on the cases of Isiyaku Mohammed vs. Kano N.A. (1968) 1 All NLR p.42.
We were urged to resolve this issue in favour of the respondent.
A cursory look at page 27 of the record of proceedings of the lower Court reveals the fact that the statement of the appellant was recorded by pw2, Dada Segun with Force No. 171748 who testified inter alia thus:
“I was directed to record the statement of the accused persons because I understand Hausa language; …….. The 2nd accused person, I cautioned him in Hausa language and reduced it in writing in English while he thumb-printed that he was duly cautioned. …… I translated it to him in Hausa language and he said that the statement is correct and thumb printed. I counter signed as the recorder” (Underlining supplied for emphasis.)
In the case of Abayomi Oyekan vs. The State (supra) the apex Court in a situation akin to what we have in hand held thus:
“Statement should be whenever practicable recorded in the language which they are made. This is practical wisdom directed to avoid technical arguments which could be raised. It is not an invariable practice but to ensure correctness and accuracy of the statements made by an accused person. And though it is desirable that a statement should be made in the language that it was made. It is not ipso facto inadmissible merely because this practice was not followed.” (Underlining supplied for emphasis).
It is instructive to note from the decision of the apex court reproduced above that the fact that the recording of the statement in English language by the witness who understands Hausa did not make the said statement in admissible. The guiding principle in a situation such as the one we have in hand is to ensure the correctness and accuracy of the statement. It is on record in the instant case that the said statement was read to the appellant in Hausa wherein he confirmed the correctness of the statement.
Again, in the case of Olalekan vs. The State (supra) the apex Court reiterated the position of the law herein, it held thus:
“Statements should whenever practicable be made in the language in which they are made ………. It is not an invariable practice but one to ensure correctness and the accuracy of the statements made by the accused person…” (Underlining supplied for emphasis).
Let me also say that hearing as envisaged under the constitution is not a wholesome vague and abstract theory devoid of direct and comprehensive meaning. In the case of Isiyaku Mohammed vs. Kano N.A (supra) Ademola CJN (as he then was) emphatically held thus:
It has been suggested that a fair hearing does not mean fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation; Justice has been done to the case.”
In the light of all this, I am of the firm view that the trial Judge did not in any way violate the sacred provision of the Constitution with regard to the appellant’s right to fair hearing. I am of the further view that the learned trial judge conducted trial in the best of tradition expected of an unbiased arbiter. This issue is also resolved in favour of the respondent.
Last but not the least issue for determination is issue No.4 which is whether the learned trial judge was right in not expunging from the records of the Court, exhibit p4, the purported confessional statement of a co-accused who did not stand his trial. Learned counsel referred to section 27(2) of the Evidence Act and submitted that confessions if voluntary are deemed to be relevant fact as against the persons who make them only. He relied on the case of Igago vs. The State (1994) 14 NWLR (part 637) page 1 at 16 – 17, para H.
It is his further submission that since the 1st accused did not stand his trial to finality, his confessional statement should have been expunged from the records. Learned Counsel went on to submit that the 1st accused was not present to testify as to the circumstances under which the said confession was made, whether it was voluntarily made or otherwise or whether indeed he actually made the confession. The prosecution also did not establish that the statement was voluntarily made. Neither was the statement adopted by the appellant. For these reasons, the learned Counsel urged us to hold that the trial Judge was wrong not have expunged the said statement which could have constituted a huge bias in the mind of the trial judge against the appellant. He placed reliance for his submission on the case of Fadilewa v. The State (2008) 12 NWLR (Part 1101) P. 518, at pages 528, paras. C – D; 530, para. F. Learned Counsel urged us to resolve this issue in their favour.
Learned Counsel for the respondent, on the other hand submitted that the trial judge conscious of the provision of section 27 (2) of the Evidence Act refused to either make any reference to or use exhibit 4, the confessional statement of the 1st accused person against the appellant.
Learned Counsel further submitted that it will amount to a very serious misjudgment to allege as done by the appellant herein, that the learned trial judge was influenced in any way by the confessional statement of the 1st accused person who did not complete his trial.
A closer look at the judgment of the trial Court would reveal the fact that the learned trial judge did not and could not be said to have referred to the confessional statement of the 1st accused person in convicting the appellant. On this score, I am in complete agreement with submission of the learned counsel for the respondent that no reference was made to the said Exhibit 4 in convicting the appellant.
I am also of the considered view that before an issue can be properly be made out on appeal it must have been an error emanating from the subject matter of the Appeal. In the instant case since the learned trial Judge did not make any pronouncement on Exhibit p4, it will be wrong to conclude that the exhibit influenced his decision in any way. This issue is resolved in favour of the respondent.
All the issues having been resolved in favour of the respondent, the appeal fails and same is dismissed for lacking in merit.
IGNATIUS IGWE AGUBE, J.C.A: I have had the privilege of reading in draft the lead judgment just delivered by my Lord, the Presiding Justice and I am in total agreement with his reasoning and conclusion that this appeal is unmeritorious and should be accordingly dismissed.
The prosecution has not only proved the commission of the offence of armed robbery beyond reasonable doubt as laid down in Section 138(1) of the Evidence Act by credible evidence, but the Appellant proffered no defence that would have warranted the Court blow to discharge and acquit him.
I also agree that the confessional statement of the Accused/Appellant which in any case was not retracted during trial, was corroborated by the evidence of the PW2, PW3 and PW4. Again, the fact that Exhibit P8 which was the lethal weapon used in killing Umaru Sabi Sika before robbing the deceased of his motorcycle was recovered from the Appellant’s house as confessed by him, strengthened the case of the prosecution.
Armed robbery is a heinous crime which carries the Supreme price of death sentence. The Appellant aggravated the situation of this case by depriving an innocent citizen of this country of his life in the course of his nefarious escapade. Appellant therefore deserves no pity from the court below nay this Honourable for his dastardly acts.
For the above reasons and the fuller and well articulated reasons advanced by my learned Lord, Abdulahi P.J. after considering the supervisions of the learned counsel on both sides together with the authorities cited, I shall also dismiss the Appellant’s appeal in its entirety and affirm the judgment of the Lower Court per H. O. Ajayi, J. convicting and sentencing the Appellant to death by hanging.
CHIMA CENTUS NWEZE, J.C.A: I had privilege of reading the draft of the leading judgment which my learned brother, Abdullahi, JCA, just delivered now. I agree with His Lordship’s reasoning and conclusion.
I find it necessary to make some comments in this contribution because of what evidently, is the obduracy of the learned counsel for the appellant. It is, actually, intriguing that even in this attitude of the judicial hierarchy; counsel could muster the impertinence and impudence of misdirecting the court on questions of law that have been settled. How else do we rationalizes his reliance on such decisions like Ojo v. FRN (2008) 11 NWLR (Pt. 1099) 467, 524 which, unfortunately typify a misconception of the contemporary jurisprudence of the inconsistency rule?
I am in complete agreement with J.A. Mumini, the indefatigable and eminently erudite DPP Kwara State, that the inconsistency rule as considered (and here I must resist the temptation of employing the strong word “misconstrued” in the case of Ojo v. FRN (supra) is unavailing to the appellant. Let me explain.
Queen v. Ukpong (1961) All NLR 25, 26 was the first Nigerian case to adopt the inconsistency rule which Lord Parker CJ, eloquently, expounded in the English case of R. v. Golder (1960) 1 WLR 1169. When it was adopted in Queen v. Ukpong (supra) as part of Nigerian law, the posture of the courts was that the rule was, properly, applicable to the evidence of an ordinary prosecution witness. In effect, subsequent decisions confirmed this posture, see, for example, Joshua v. The Queen (1964) 1 All NLR 1, 3 – 4; Agwu v. The State (1965) NMLR 18, 20; The State v. Okoro (1974) 2 SC 73, 80 – 81; Onubogu v. The State (1974) 9 SC 1; Williams v. The State (1975) 9 – 11 SC 139; Boy Muka v. The State (1976) 9-10 SC 305. Indeed, in Udo v. The Queen (1964) All NLR 21, 24, Brett JSC resisted an attempt to extend the application of the rule to the previous confession of an accused person and his evidence.
It was in 1985 that the decision in Owie v. The State (1985) 1 NWLR (Pt.3) 470, for the first time, extended the statement and evidence of the accused person. Subsequent decisions such as Omogodo v. The State (1987) 5 – 7 SC 5; Stephen v. The State (1986) 5 NWLR (Pt. 46) 98; Saka Oladejo v. The State (1987) 3 NWLR (Pt.61) 419; Umani v. The State (1988) 19 NSCC (Pt.1) 137; Mbenu v. The State (1988) 3 NWLR (Pt.84) 615 perpetuated this trend. All these decisions now belong to the past.
In 1993, the Supreme Court streamlined the application of the rule in Egboghonome v. The State (1993) 9 SCNJ 1. Delivering the leading judgment of the court, Bello CJN (Karibi-Whyte JSC dissenting) described the decisions in Saka Oladejo (supra) and Asanya v. The State (1991) 3 NWLR (Pt.180) 422 as “a departure from the long established principle laid down in Udo v. The Queen (1964) All NLR 21, 24 (Per Brett JSC) and the several decisions of this court thereafter that (the) inconsistency (rule) does not apply to retracted extra-judicial confession of an accused.”
Interestingly, Karibi-Whyte JSC who dissented in the Egboghonome case, subsequently, embraced the wholesome logic of that robust decision. That was in his leading judgment in Akpan v. The State (2001) 15 NWLR (Pt.737) 745, 762 G-H. See also, such other subsequent cases like: Nsofor v. The State; (2004) 18 NWLR (Pt.905) 292; Dibia and Ors. v. State (2007) All FWLR (Pt.363) 83; Amoshina v. State (2009) 32 WRN 47; Saidu v. State (2009) 29 WRN 86; Aiguoreghian v. State (2004) 1 KLR (Pt.170) 129, 152; Adeoti v. State (2009) All FWLR (Pt.454) 1450, 1509 0 1511 etc which have reverted to the position in Udo v. The Queen (supra), namely, that the inconsistency rule does not apply to the previous confessions of an accused person and his evidence in court.
It is for these, and the more detailed reasons contained in the leading judgment of my learned brother, Abdullahi JCA, that I, too, shall dismiss this appeal for being unmeritorious.
Appearances
Olalekan Yusuf;
Adeyemi OgunluwaiyeFor Appellant
AND
J.A. Mumini (DPP);
A. A. Daibu (SSC)For Respondent
