DONALD KENU v. THE STATE
(2019)LCN/13431(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of June, 2019
CA/B/254C/2016
RATIO
CRIMINAL LAW: PROOF BEYOND REASONABLE DOUBT: WHAT IT ENTAILS
As rightly pointed out by the Respondent, proof beyond reasonable doubt does not require any mathematical exactitude; what is required of the prosecution is merely to prove the ingredients of the offence. In ABIODUN V. FRN (2016) NWLR (PT.1542) 462 @ 515 PARAS A-D it was held inter alia A reasonable doubt does not mean some light or any insubstantial doubt that may flip through the minds of any one about almost anything at some time or other. It does not mean a doubt begotten by sympathy out of reluctance to convict. It means a real doubt, a doubt founded upon reason. PER PHILOMENA MBUA EKPE, J.C.A.
FOR A CONTRADICTION TO BE MATERIAL, IT MUST GO TO THE ROOT OF THE CHARGE BEFORE THE COURT
The law is settled and as was held in DIBIE V. STATE (2007) ALL FWLR (PT.363) 83 @ 110 PARA B-D that for a contradiction to be regarded as material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case. Contradictions that are outside the aforementioned class are usually expected in unconnected evidence given from human memory. PER PHILOMENA MBUA EKPE, J.C.A.
A COURT CAN CONVICT ON THE CONFESSIONAL STATEMENT OF AN ACCUSED
It is imperative to stress the point that the Court can convict on the confessional statement of an accused, NWACHUKWU V. STATE (2007) ALL FWLR (PT. 390) 1380 @ 1387.PER PHILOMENA MBUA EKPE, J.C.A.
A COURT CAN CONVICT ON A RETRACTED CONFESSIONAL STATEMENT
It is also worthy of note that the mere fact that an accused retracted or resiled from his confessional statement, does not make such statement inadmissible, UBIERHO V. STATE (2004) ALL FWLR (PT.219) 1028 @ 1049 PARAS F-H.PER PHILOMENA MBUA EKPE, J.C.A.
ROBBERY: INGREDIENTS TO PROVE BEYOND REASONABLE DOUBT
In conclusion, there is no doubt in my mind that the Respondent was able to prove the following: a. that there was robbery; b. that the robber was armed (in this case with a broken bottle; and c. that the Appellant was the robber. InMUSA V. STATE (2009) ALL FWLR (PT.492) 1020 @ 1040-1041 it was held inter alia where all the essential ingredients of the offence charged have been satisfactorily proved by the prosecution, the charge is proved beyond reasonable doubt.PER PHILOMENA MBUA EKPE, J.C.A.
JUSTICE
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
Text
DONALD KENU Appellant(s)
AND
THE STATE Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice C.E. Achilefu of the High Court of Delta State sitting at Otor-Udu, delivered on the 25th day of January, 2016, wherein the learned trial judge convicted and sentenced the Appellant to death by hanging for the offence of armed robbery.
SUMMARY OF RELEVANT FACTS:
By an information filed by the Respondent, the Appellant was charged on a one count charge of armed robbery punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11, Vol. 14 LFN, 2004. The Appellant upon arraignment pleaded not guilty to the one count charge and the matter proceeded to trial.
In proof of its case, the Respondent called two witnesses and tendered some exhibits, including the confessional statement of the Appellant which was admitted and marked exhibit C. The Appellant on his part testified in his own defence and called no other witness.
The case of the Respondent essentially was that on or about the 11th day of March, 2014 at Odion Road, Warri, Delta State, the Appellant while armed with a
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broken bottle robbed one Roseline Obaruewa (PW1) of her bag containing money. While the robbery was on going, the son of PW1 confronted the Appellant, and with the help of some persons the accused was arrested and handed over to the police. At the police station, the Appellant made a confessional statement and after investigation the matter was charged to Court.
The Appellant in his defence denied involvement in the alleged armed robbery. He stated that on the day in question he went to the shop of PW1 to buy fuel, but when he was told that there was no fuel he said is it every time that you people will not have fuel. Upon saying this, the son of the PW1 came out and started fighting him. In the course of the fight the boy started shouting thief thief. People gathered and started beating him and he became unconscious. He was taken to the police station where he was given a document to sign. The Appellant denied making any statement to the police.
The learned trial judge after evaluating the evidence of both parties, and after considering the final addresses of counsel on both sides, convicted the Appellant on the one count of armed
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robbery and sentenced him to death by hanging.
NOTICE AND GROUNDS OF APPEAL:
Being dissatisfied with his conviction, the Appellant via a Notice of Appeal dated and filed on the 15th day of April, 2016 appealed to this Court. The notice of appeal was however amended following an amended notice of appeal dated 11th April, 2019 but filed on 16th day of April 2019.
The Amended Notice of Appeal shorn of its particulars is reproduced herein:
Ground One:
The learned trial judge erred in law in convicting the accused person now appellant on his confessional statement denied by the Appellant without subjecting the confession to the six tests laid down in the locus clasicus of R. V. SYKES (1913) 8, CAR 233 and adopted by our apex Courts such as Adeleke V. The State (2013) 16 NWLR (PT. 1381) S.C. and many other decisions.
Ground Two:
The learned trial judge erred in law in failing to consider the defence of the Appellant that he was attacked by the complainants son resulting in a fight between the accused person and the complainants son.
Ground Three:
The learned trial judge erred in law when she held the view
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that in criminal cases, the crucial issue is not ordinarily whether or not the offence was committed but on identification of the person who committed the crime.
Ground Four:
The judgment of the trial Court is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced at the trial.
ISSUES FOR DETERMINATION:
In its brief of Argument dated 27th November, 2017, filed on the 28th day of December, 2017, but deemed as properly filed on 7/5/2018, the Appellant distilled the following issues for determination:
a. Was the learned trial judge right to convict the appellant on the purported confessional statement without subjecting the purported confessional statement to the tests set out in the binding authorities? (Based on ground 1 of the Notice of Appeal)
b. Was the learned trial judge right in law in failing to consider or consider properly the defence of the appellant in his oral testimony? (Based on ground 2 of the Notice of Appeal).
c. Whether the burden of proving the guilt of the appellant beyond reasonable doubt imposed on the prosecution was successfully discharged by the prosecution in
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this case. (Based on ground 3 of the Notice of Appeal.)
d. Was the learned trial judge right in her view that in criminal cases, the crucial issue is not ordinarily whether or not the offence was committed but on identification of the person who committed the crime? (Based on ground 4 of the Notice of Appeal.
On its part, the Respondent in a brief dated 25th August, 2018, filed on 10th October 2018, but deemed as properly filed on 25th February 2019, settled by O.F. Enenmo, Esq. Director, Department of Appeals, Ministry of Justice, Delta State, the Respondent formulated a sole issue for the determination of the appeal, to wit: whether the learned trial judge was right in holding that the prosecution proved the charge of armed robbery against the Appellant beyond reasonable doubt.
Having gone through the Notice of Appeal, the issues distilled there from by both parties, I am of the view that the lone issue as formulated by the Respondent can effectively be used to determine this appeal.
ARGUMENT:
In arguing this issue, the Appellant cited STATE V. ISAH (2012) 16 NWLR (PT. 1327) 633-634 and JIMOH V. THE STATE (2014) 10 NWLR (PT.1414) 130
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and stated that two scenarios play out when a confessional statement is put forward in a trial. In the first instance if the voluntariness of the statement is in issue a trial within trial is conducted; but where the accused merely disputes the correctness of the statement or denies making the statement, same is admitted in evidence but the Court considers the circumstance of the whole case in ascertaining the weight to be attached to the statement.
The learned senior counsel for the Appellant contended that the trial judge was in error in not considering or considering adequately the confessional statement before relying on it to convict the Appellant. The learned senior counsel quoted excerpts from the judgment as contained at pages 54, 59 and 60 of the records. He submitted that the basis of the verdict of guilt is flawed in law as the Appellant retracted the confessional statement. The learned senior counsel for the Appellant stated that for a Court to rely on a retracted confessional statement, the Court must take into consideration all the evidence in the case; the case of STATE V. GWANGWAN (2015) ALL FWLR (PT.801) 1494 PARA A-E was cited to
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buttress this assertion.
Arguing further, the learned senior counsel conceded that the Court can convict on a retracted confessional statement, but added that in doing so, the Court must evaluate the alleged confession and all the evidence available in the case. Learned senior counsel contended that it is not enough for the judge to merely believe the prosecution and disbelief the defence, the case of BOZIN V. THE STATE (1985) 2 NWLR (PT.8) 481 was called in aid. Learned senior counsel cited OGUDO V. STATE (2011) 8 NWLR (PT.1278) 26 PARAS C-G; 32 PARAS E-F; 45-47 PARAS G-A and opined that before convicting on a retracted statement, the Court should apply the six way test as laid down in R. V. SYKES (1913) 8 CAR 233. The learned senior counsel submitted that in the instant case there is nothing outside the confessional statement to show that it is true. Counsel contended that the trial judge did not avert her mind to and did not consider any of the tests in preferring the testimony of the Appellant and believing that of the Respondent. Learned senior counsel stated that without passing the mandatory tests the confessional statement cannot be relied upon
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to convict the Appellant.
In a further argument, the learned senior counsel x-rayed the testimony of the Appellant as contained at page 44 of the records and stated that having denied the evidence of the prosecution, and retracted the confessional statement, the trial judge ought to have subjected the confessional statement to the necessary judicial test which she is bound to do if she intended to rely on it in convicting the Appellant. Learned senior counsel cited BASSEY V. THE STATE (1993) 7 NWLR (PT.306) 478-479 and submitted that there was nothing before the trial judge to test the truth of the purported confession and the trial judge did not say she tested the purported confession, hence she was wrong in returning a verdict of guilty.
Further on this, learned senior counsel stated that the finding of the trial judge that the Appellant lied is not borne out of the evidence before the Court. Learned senior counsel cited STATE V. SALAWU (2011) 8 NWLR (PT.1279) 625 on the point that even if the Appellant lied, it did not obviate the burden placed on the prosecution of proving the guilt of the Appellant beyond reasonable doubt. On the point made by
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the judge that the Appellant could not produce any eye witness to support his incredible story, the learned senior counsel citedBOZIN V. THE STATE (1985) 2 NWLR (PT.8) 473 on the principle that there is no onus on the defence to establish the innocence of an accused. Learned senior counsel rounded off argument on these issues by citing STATE V. ISAH (2012) 16 NWLR (PT.1327) 630 on who are vital witnesses in a charge of armed robbery. Learned senior counsel submitted that the prosecution failed to call Kingsley and any of the community youths who are vital witnesses.
Arguing further, learned senior counsel submitted that on the totality of the evidence of the prosecution, they were not able to prove the guilt of the appellant beyond reasonable doubt. Learned senior counsel quoted excerpts from the testimony of PW1 contained at page 41 of the records, and stated that there is inconsistency in the evidence of PW1 as to whether Kingsley was her daughter or son. Learned senior counsel stated that the trial judge failed to apply the inconsistency rule, as no explanation was furnished to explain the contradiction. The cases of RIGO V. THE STATE (2013) and
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CHRISTOPHER ONUBOGU V. THE STATE (1974) 9 SC 1 @ 8 were cited to buttress the point. The case of EGBOGHONOME V. STATE (1993) 7 NWLR (PT.306) 424 PARAS B-C was called in aid on the point that the trial judge ought to have rejected the evidence of PW1 as unreliable in view of the contradiction.
Learned senior counsel argued further that there is contradiction as to the scene of the crime. According to learned senior counsel, while on the particulars of offence, the crime was alleged to have occurred at Odion Road, Warri, whereas in her evidence PW1 stated that the offence happened at Micaven roundabout by stadium Street, by the junction. Counsel stated that there was no basis for the Court to accept one of the versions.
Arguing the fourth and final issue, the learned senior counsel quoted excerpts from the evidence of PW1 as contained at page 40 of the records and submitted that the evidence of PW1 is one of make belief, totally lacking in probative value and the trial judge was wrong to regard same as true and cogent. Learned senior counsel quoted excerpts of the judgment contained at pages 58-59 of the records and cited PEOPLE OF LAGOS STATE V. UMARU
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(2014) ALL FWLR (PT.737) 676-677 PARAGRAPHS F-B as to the ingredients to be proved to sustain conviction in a charge of armed robbery. Learned senior counsel submitted that the conviction of the Appellant was based on unreliable evidence.
CitingALABI V. STATE (1993) 7 NWLR (PT.307) 531 PARAS A-B and Section 35(5) of the 1999 Constitution, the learned senior counsel stated that the burden of proving the guilt of the accused rests with the prosecution, and submitted that the trial judge was in error when she placed it on the Appellant. Counsel added that it is the duty of the prosecution to call vital witnesses and failure to do so is fatal to the case of the prosecution; OMOTAYO V. STATE (2013) 14 NWLR (PT. 1383) 350 was called in aid on this point.
Finally, learned senior counsel harped on the point that the Court is bound to consider any defence available to an accused, no matter how stupid or unreasonable it may be; OLOWOYO V. STATE (2012) 17 NWLR (PT.1329) 377 PARAS B-G.
On its part, the Respondent argued the appeal on the sole issue, which has been reproduced herein.
Learned counsel for the Respondent submitted that the lower Court
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was right in holding that the prosecution has proved the guilt of the accused beyond reasonable doubt. Counsel reproduced Section 135(1) of the Evidence Act on the standard of proof in criminal cases. Counsel cited DIBIE V. THE STATE (2004) 14 NWLR (PT.893) 257 @ 284-285 PARAS H-A on the point that proof beyond reasonable doubt does not require mathematical exactitude or proof beyond any shadow of doubt, but proof of the ingredients of a particular offence. Counsel conceded that the prosecution has a duty to prove the ingredients of the offence charged, and cited ATTAH V. THE STATE (2010) 10 NWLR (PT.1201) 190 @ 224 PARAS B-F on the elements of the offence of armed robbery. Counsel reproduced excerpts from the evidence of PW1, confessional statement of the Appellant and evidence of PW2 as contained at pages 40-41, 18-19 and 42-43 respectively of the records. Counsel submitted that from the evidence of PW1 and the confessional statement, it is clear that there was threat of violence when the Appellant collected the bag of PW1 containing money while armed with a broken bottle.
Arguing further, learned counsel for the Respondent reproduced
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Section 1 of the Robbery and Firearms Act, Cap R11 LFN,2004, and referred to Section 11 of the said Act to contend that a bottle is an offensive weapon within the meaning of the Act. The case ofABIODUN V. STATE (2012) 7 NWLR (PT. 1299) 394 @ 414 PARA E was called in aid on this point.
Learned counsel stated that the trial judge tested the veracity of the confessional statement by comparing it with other facts and circumstances before admitting and relying on same. Counsel quoted excerpts of the judgment contained at pages 59 and 60 of the records to buttress this point. Learned counsel argued strenuously that although the trial judge applied the veracity test, the Court can even convict the accused upon his confessional statement without more. Many cases including FATAI V. THE STATE (2013) 10 NWLR (PT. 1361) 1 @ 20 PARAS A-C; STEPHEN V. THE STATE (2013) 8 NWLR (PT. 1355) 153 @ 167 PARAS D-F were called in aid on this point. Counsel contended that it is not the law that confessional statements must in all cases be corroborated to entitle conviction. Counsel citedFAMUYIWA V. THE STATE (2018) 5 NWLR (PT.1613) 515 @ 533 PARAS E-F where it was held inter alia that
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corroborative evidence is only desirable and not necessary or mandatory to ground conviction based on confessional statement. Counsel added that armed robbery is not one of such offences that requires corroboration, TANKO V. STATE (2008) 16 NWLR (PT.1114) 596 640 PARA D. Counsel cited SOLOLA V. STATE (2005) 2 NWLR (PT.937) 460 @ 497-498 PARAS H-B to stress the point that confessional statement obviates the need to prove the guilt of the accused beyond reasonable doubt.
On the point that the trial judge did not consider the defence of the Appellant, the learned counsel cited LAOYE V. STATE (1985) 2NWLR (PT.10) 832 and conceded that it is the duty of the Court to fully consider defences available to an accused person. Learned counsel however quoted excerpts from page 59 of the records and contended that the trial judge adequately considered the defence of the Appellant.
On the point of tainted witness, counsel stated that blood relationship between a witness and the victim of a crime does not automatically make the witness a tainted one. Counsel cited EGWUMI V. STATE (2013) 13 NWLR (PT.1372) 525 @ 560 in support of the contention.
On the issue of
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placing the burden of prove on the Appellant, learned counsel for the Respondent stated that the trial judge made the statement quoted by the Appellant in the course of considering the defence put up by the Appellant. Counsel referred to page 57 of the records where the trial judge restated the position of the law, to the effect that in criminal cases the burden of proof rests with the prosecution.
On the point of failure to call vital witnesses, learned counsel cited OGUDO V. THE STATE (2012) ALL FWLR (PT.629) 1111 @1131 PARAS A-B on who is a vital witness. Counsel contended that the duty of the prosecution is to adduce sufficient evidence in proof of the charge and not to call all witnesses. Counsel stated that failure to call the chairman of Civil Defence and the complainants son as witness is not fatal to the case of the prosecution. Counsel cited UMAR V. STATE (2014) 13 NWLR (PT.1425) 497 @ 530 PARAS D-D on the point that it is not for the accused to dictate the person or numbers of persons that must be called as witness or witnesses. Counsel contended that the evidence of PW1 and the confessional statement was sufficient to ground the
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conviction of the Appellant, hence calling the chairman of Civil Defence or any other witness would have been surplusage. Counsel posited that the Appellant should have called those witnesses if he felt their evidence was necessary; the case of VICTOR V. STATE (2013) 12 NWLR (PT.1369) 456 @ 485 PARAS E-F was called in aid.
On the point of the inconsistency in the evidence of PW1, learned counsel referred to pages 4 and 44 of the record, and stated that PW1 explained and furnished satisfactory explanation for the discrepancy, that is, that her son Kingsley is a boy not a girl.
On the point of where the crime took place, the learned counsel for the Respondent opined that in the particulars of offence, evidence of PW1, her statement to the police and confessional statement of the Appellant, it is obvious that the offence took place at Odion Road, Warri.
On the issue of taking the Appellant before a superior officer, counsel contended that the rule is merely for convenience and its non-observance is not necessarily fatal to the confessional statement; OGUNO V. THE STATE (2011) 7 NWLR (PT.1246) 314 @ 330 PARAS A-C.
Counsel concluded argument by
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urging that the appeal be dismissed, as the Respondent had proved the guilt of the Appellant beyond reasonable doubt.
The learned senior counsel for the Appellant filed a reply brief dated 11th April 2019, but filed and deemed as properly filed on 16th April 2019. I have gone through the reply but to my mind it is a regurgitation of the arguments already canvassed in the Appellants brief. It is trite that the essence of a reply brief is not for parties to have a second bite at the cherry but to respond to issues of law raised in the Respondents brief.
OPINION:
I have painstakingly gone through the evidence of the prosecution witnesses, the evidence of the Appellant and exhibit C and I have no doubt in my mind that the trial judge properly evaluated the evidence before convicting the Appellant of the offence of armed robbery.
As rightly pointed out by the Respondent, proof beyond reasonable doubt does not require any mathematical exactitude; what is required of the prosecution is merely to prove the ingredients of the offence. In ABIODUN V. FRN (2016) NWLR (PT.1542) 462 @ 515 PARAS A-D it was held inter alia A
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reasonable doubt does not mean some light or any insubstantial doubt that may flip through the minds of any one about almost anything at some time or other. It does not mean a doubt begotten by sympathy out of reluctance to convict. It means a real doubt, a doubt founded upon reason. Also in ABOKOKU YANRO V. STATE (2011) ALL FWLR (PT.597) 700 @ 723 PARAS E-G, it was held if the evidence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence; of course it is possible, but not in the least probable the case is proved beyond reasonable doubt. Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. I daresay that in this case the prosecution proved all the ingredients of the offence of armed robbery, hence it is my humble but firm view that the prosecution proved the guilt of the Appellant beyond reasonable doubt. The learned senior counsel for the Appellant has made heavy weather of what he termed contradiction in the evidence of the PW1 which
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according to him rendered the evidence unreliable. However, I must confess that to my mind there is no contradiction in the evidence of the PW1 or any of the prosecution witnesses for that matter. The law is settled and as was held in DIBIE V. STATE (2007) ALL FWLR (PT.363) 83 @ 110 PARA B-D that for a contradiction to be regarded as material, it must go to the root of the charge before the Court. It must be one that touches an important element of what the prosecution needs to prove in the case. Contradictions that are outside the aforementioned class are usually expected in unconnected evidence given from human memory. There is no gainsaying the fact that whether KINGSLEY is a son or daughter of the PW1 is not material to the charge before the Court. Thus, whether or not there is contradiction on that point does not materially affect the case.
The Learned senior counsel has also made strenuous efforts to impeach Exhibit C, alleging that there is no evidence outside it upon which to base the conviction of the Appellant and that the trial judge did not apply the veracity test. In my candid view, the argument cannot be supported from the
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records. It is imperative to stress the point that the Court can convict on the confessional statement of an accused, NWACHUKWU V. STATE (2007) ALL FWLR (PT. 390) 1380 @ 1387. It is also worthy of note that the mere fact that an accused retracted or resiled from his confessional statement, does not make such statement inadmissible, UBIERHO V. STATE (2004) ALL FWLR (PT.219) 1028 @ 1049 PARAS F-H. In the instant case, there is no iota of doubt that Exhibit C is direct, positive and properly established the guilt of the Appellant. There is no basis upon which to impeach Exhibit C. Besides, the other evidence before the Court, especially the evidence of PW1 corroborates the contents of Exhibit C. In other words, the trial judge in my view, was on solid grounds in relying on Exhibit C and other pieces of evidence in convicting the Appellant.
In conclusion, there is no doubt in my mind that the Respondent was able to prove the following: a. that there was robbery; b. that the robber was armed (in this case with a broken bottle; and c. that the Appellant was the robber. InMUSA V. STATE (2009) ALL FWLR (PT.492) 1020 @ 1040-1041 it was held inter alia
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where all the essential ingredients of the offence charged have been satisfactorily proved by the prosecution, the charge is proved beyond reasonable doubt. In the final analysis, I am of the humble but firm view that the trial judge was right in convicting and sentencing the Appellant to death by hanging. This appeal to my mind has no merit and ought to be dismissed.
Accordingly, this appeal is adjudged unmeritorious; it fails and is hereby dismissed. The judgment of the lower Court delivered on the 25th day of January, 2016 in Suit No. W/288C/2014 is affirmed.
Appeal dismissed.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, Philomena Mbua Ekpe, (JCA);
I agree that this appeal be dismissed for being devoid of merit. I also dismiss the appeal, accordingly.
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Appearances:
O.J. IrerhimeFor Appellant(s)
O.F. Enenmo, C.O. Agbagun with E.E. Erebe and P.A. OkohFor Respondent(s)
Appearances
O.J. IrerhimeFor Appellant
AND
O.F. Enenmo, C.O. Agbagun with E.E. Erebe and P.A. OkohFor Respondent
