DONDOS v. STATE (2021)

DONDOS v. STATE

(2021) LCN/4967(SC)

In The Supreme Court

On Friday, January 29, 2021

SC.905/2014

Before Our Lordships:

Mary Ukaego Peter-Odili Justice of the Supreme Court of Nigeria

Olukayode Ariwoola Justice of the Supreme Court of Nigeria

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Ejembi Eko Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Between

SIRAJO MUHAMMED DONDOS APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

ESTABLISHING THE OFFENCE OF ARMED ROBBERY

In a case of armed robbery such as the one under discourse, it is incumbent on the prosecution to prove the essential elements of the offence which are as follows: –
1. That there was a robbery or series of robberies;
2. That each robbery was an armed robbery i.e., stealing plus violence with a weapon or arms
3. That the accused/appellant was one of those who took part in the armed robbery
I refer to Eke v State (2011) 1-2 SC (part II) 219; Ugboji v State (2018) 10 NWLR (pt. 1627) 346; Orisa v State (2018) 11 NWLR (pt. 1631) 453 (SC); The State v Odunayo Ajayi (2016) 14 NWLR (pt. 1532) 216.
In proving or establishing the necessary ingredients above stated in a charge or armed robbery just as in any other criminal matter, the prosecution can achieve the same by the deployment of any of the following methods, viz:

a. Direct and credible evidence; or
b. Circumstantial evidence, or
c. The confessional statement of the accused person.
See Babatunde v State (2014) 2 NWLR (Pt. 1391) P.341. PER PETER-ODILI, J.S.C.

WHETHER OR NOT THE SUPREME COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

Clearly, what is evident is that the exceptional circumstances that would make the Supreme Court disregard its policy of not intervening in concurrent findings have made themselves available here, leaving the Court no option than to resolve the doubts that are present in favour of the appellant in line with the decision in Yav v State (2005) 2 NWLR (pt. 917) 1 at 25; Shekete v The Nigerian Airforce (2000) 15 NWLR (pt. 692) 868 at 880-881. PER PETER-ODILI, J.S.C.

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division or lower Court or Court below; Coram: Abdu Aboki J.C.A. (as he then was), Theresa Ngolika Orji Abadua, Ita G. Mbaba J.J.C.A. delivered on the 30th day of May, 2014, wherein the lower Court confirmed the decision of the Katsina State High Court which convicted the appellant for the offence of armed robbery and sentenced him to death with two other accused persons.

FACTS
The appellant herein was the 2nd accused person at the trial Court along with two other accused persons who were charged and arraigned on two count charge of armed robbery committed on the 30th day of January, 2002 and in April, 2002.

In proof of his case at the trial Court, the prosecution called a number of witnesses in the main trial and during the trial within trial, amongst whom was PW1 who testified as it affected the Appellant herein, at pages 22-23 of the printed records thus:
“Thereafter, we continued our investigation. In August, 2002, we were able to arrest the 2nd accused person and he was brought to CID office.

I used thesame process as before and I recorded his statement and then took him before Mr. Chibok who also endorsed the statement like those of the others.”

The recorded statement of the Appellant which is referred to as Exhibit ‘B’ was confirmed by the Appellant as the statement he made to the Police when he was cross examined as DWB as seen at Page 38 of the printed records thus: “I made the statement when I was better.”

Though the Appellant later denied the said confessional statement, after a comprehensive trial within trial to determine the admissibility of the said confessional statement, the trial Court said it found no evidence to contradict the prosecution’s testimony that the confessional statement was obtained voluntarily, consequently, same was admitted in evidence. See the ruling of the trial Court at page 50 of the printed records.

The accused/appellant was convicted for the offence of Armed Robbery under Section 1 (2) (a) (b) of the Robbery and Fire arms (Special Provision) Act Cap 398 LFN 1990, by the trial Court.

The Appellant being dissatisfied with the judgment of the trial Court, appealed against the decision

via a notice of Appeal dated 17th April, 2012 containing only the ground of Appeal thus: – “That the decision of the High Court is unreasonable, unwarranted and cannot be supported having regards to the evidence adduced at the trial.”

The appellant further contended at the Court below that the two-count charge of armed robbery were not proved beyond reasonable doubt.

The Court below found no merit in the appeal and dismissed same, affirming the conviction and sentence. The appellant has now come before the Supreme Court to ventilate his grievance.

On the 5/11/2020 date of hearing, learned counsel, Dr. Adekunle Oladapo Otitoju for the appellant adopted the brief of argument filed on 14/8/2019 and deemed filed on 5/11/2020. He raised three issues for determination which are thus: –
a. Whether the judgment of the lower Court affirming/upholding the decision of the trial Court is justified, without considering the adduced evidence at the trial within trial (the issue is distilled from ground 1, 5 of the ground of Appeal).
b. Whether the lower Court was wrong to rely on Exhibit B the alleged confessional statement in also affirming the

decision of the lower Court that is not reliable (This issue is distilled from ground 2 and 4 of the grounds of appeal)
c. Whether having regards to the available evidence and the entire circumstance surrounding the matter, the lower Court was right to affirm the decision of the trial Court. (Distilled from ground 3 of the grounds of appeal).

Learned counsel for the respondent, Emeka Obegolu Esq.., adopted the amended brief of argument filed on 27/2/2020 in which learned counsel adopted the issues raised by the appellant.

I see the Issue 3 as sufficient in the determination of this appeal and I shall utilise it as a sole issue.

SINGLE ISSUE
Whether having regards to the available evidence and the entire circumstance surrounding the matter, the lower Court was right to affirm the decision of the trial Court in this matter.

Canvassing the position of the appellant, learned counsel submitted that the situation presented in this case shows an exception in an appeal on concurrent finding of facts of two lower Courts when it is necessary for the Supreme Court to interfere as there was a miscarriage of justice propelling those findings.

He cited Mohammed Ibrahim v State (2015) All FWLR (pt. 779) 1149 at 1175 etc.

That in the instant case, the prosecution failed woefully to prove all the ingredients of the offence of armed robbery punishable with death and so no justification for the conviction and sentence by the trial Court nor the affirmation by the Court below. That the burden of proof in a criminal matter such as the present is beyond reasonable doubt and that burden does not shift. He relied on Inusa Saidu v State (1982) 4 SC 26 at 42 etc.

For the appellant, it was contended that there was no evidence showing that the appellant participated in the alleged robbery on which the appellant was convicted and sentenced. That there was no link with the alleged robbery. He cited Udosen v State (2007) 4 NWLR (pt. 1023) 125 at 162 etc.

That it was wrong for the trial Court to act on the statements of 1st and 3rd accused person to convict the appellant and the lower Court ought not to have upheld the judgment of the trial Court.

Learned counsel for the appellant went on to submit that the reliance of the trial Court on the confessional statement of the appellant, Exhibit B was

misplaced as the statement was not voluntarily made. He cited Inusa Saidu v State (1982) 4 SC (Reprint).

That the confessional statement, Exhibit B had no corroborative evidence outside of itself as it was even retracted. He said the Exhibit B ought to have been expunged from the record in the circumstances prevailing.

For the appellant, it was stated that the trial Court failed to seek any other evidence of circumstances which make it probable whether the confession is true and the failure of the two Courts below to follow the above principle negated the use of that confessional statement. He cited Shurumo v State (2010) 5 NWLR (pt. 1218) 65; Oseni v State (2012) 5 NWLR (pt. 415)513 at 537.

Learned Senior Counsel for the respondent submitted that this is an instance where the Apex Court should not interfere with concurrent findings of two lower Courts below as there is no manifest error apparent on the record occasioning a miscarriage of justice or a violation of some principle of law or procedure. He citedBoniface Adonike v The State (2015) All FWLR (pt.772) 1631; Arum v Nwobodo (2013) LPELR 20390.

That the retraction of the confessional

statement by the appellant did not make the statement inadmissible as the law allows for an accused to be convicted on his confessional statement alone as in this case where the statement is positive, direct and made voluntarily. He relied on The State v Salawu (2011) LPELR – 8252; Igba v State (2018) 6 NWLR (pt. 1614) 44 at 58 etc.

He stated on that from the records, all the ingredients of the offence of armed robbery were clearly proved and established against the appellant beyond reasonable doubt. He referred to Eke v State (2011) 1-2 SC (pt. II) 219; The State v Odunayo Ajayi (2016) 14 NWLR (pt. 1532) 216.

In a nutshell, the appellant posits that he had no link with the charge; was not found with any form of weapon; was not arrested at the scene of crime and the available evidence is just the alleged confessional statement of a doubtful origin since he was tortured and shot on the leg before he signed the said statement, Exhibit B. That the appeal should be allowed.

On the part of the respondent, it is that a careful consideration of all the facts made available, that the totality of the evidence placed by the prosecution before the trial

Court was enough to secure the conviction of the appellant for the offence of armed robbery. That the concurrent findings of the two Courts below were well grounded for which this Court should not interfere to disturb the findings and conclusions thereof.

a. Direct and credible evidence; or
b. Circumstantial evidence, or
c. The confessional statement of the accused person.
See Babatunde v State (2014) 2 NWLR (Pt. 1391) P.341.

The Court of Appeal in affirming the decision of the learned trial judge which had relied in the main on the Exhibit B, the purported confessional statement of the appellant in convicting him, held thus: –
“In the instant case, the evidence against the appellant as contained in Exhibit B is adequate in implicating him. A reasonable doubt which will justify an acquittal is a doubt which reasonable man might entertain not fanciful or imaginary doubt.
The evidence explains in details how Exhibit B (the purported confessional statement of the Appellant) was obtained by the police the relevant aspect of his evidence as DwB is as follows “My name are (sic) Sijaro Muhammed Dandos … I was arrested on the 17th July, 2002 at babban alyi kurna in Kano. I was arrested as I stopped to buy oranges. I was arrested by a policeman … I was not armed… I found myself in a cell at Dalla police station … I was shot on my leg by Muntari Alhassan, Aminu and five others will surround me and say I should accept what Aminu said.

I did as I was asked. I was not in full sense because I was shot. I signed the Hausa version as directed by Aminu. I do not know what the contents of the statement are …. I can read and write Hausa. I was not asked to write my statement in Hausa. I was not allowed to read the statement but Aminu said if I did not sign, I will be shot, he said I was already shot twice some policemen brought out clubs and hit me on my legs. They read my statement and they asked me to sign, I signed, the policemen was in Court and testified as O.C. robbery (PWC) he asked whether I was beaten and I said I was only shot, he asked whether I gave the statement voluntarily, I told him that I did not make any statement, he asked how come the statement and I said it was Alhaji Aminu who recorded the statement. He directed them to stop beating me, I signed the statement because I did not want a repeat of what I experienced”.
“Clearly what transpired at the trial within trial was ignored by the trial Court as there was need for corroborative evidence outside Exhibit B. The trial Court had held thus: – “in fact in some of the statement i.e., of the 2nd accused statement he

volunteered in the statement a brief history of how he started the life of a crime as a pick pocket before graduating into robbery, the Supreme Court in a number of cases have ruled that where a confessional statement is positive, unequivocal it amounts to admission and that will be adequate to ground a conviction …… it is also my candid opinion that based on the confessional statements of the accused persons as contained in Exhibit “A”, “B”, and “C”, the Court is left in no doubt that the accused persons committed the robberies of the 29th January, 2002 and the one in April of the same year, I have therefore found the Accused guilty as charged and have accordingly sentenced them to death,”

The decision of the trial Court which was anchored on Exhibit B, the confessional statement was affirmed by the Court below in circumstances which left some questions unanswered. This is because there arose the issue of the statement having been obtained by torture including a gun shot on the leg and threats on the appellant which induced him to sign the Exhibit B as his. Those facts were elicited during the proceedings at the trial within trial.

The situation therefore brings to mind the fact that a confession is irrelevant in a criminal proceedings if the making of the confessional has been caused by inducement, threat, promise or torture having reference to the charge against the accused person proceeding from a person in authority as the case in hand thereby raising the issue if the admission of the said confessional statement was not improper and having been admitted ought to be expunged. See Inusa Saidu v State (1982) 2 SC 26 at 36.
Again, to be said is that the truth of Exhibit B was not examined by both the trial Court and the lower Court and the evidence elicited during the mini trial was enough to render the said exhibit unreliable and the situation in this case become more dire with the sole reliance on the said doubtful confession to support the conviction of the appellant. The point is all the more crucial as there is corroborative evidence from DW5 and appellant that the appellant had wounds and blood all over him while with the police at the time Exhibit B was obtained from him and this critical piece of evidence was not challenged or controverted by the police at the

trial thus providing a curious scenario as to why the Court of trial believed and relied on it. This runs counter to the principle that evidence not challenged is taken as admitted by the opposing party. See Akinmoju v State (2000) 4 SC (pt. I) 64; Alarape v State (2001) 5 NWLR (pt. 205) 79; Okoebor v Police Council (2003) 12 NELR (pt. 834) 444 at 472; Dawa v State (1980) 8-11 SC 147.
It needs be reiterated that the law still remains as it is to the effect that in ascertaining the truthfulness or otherwise of a confessional statement, the Court is enjoined to seek any other evidence of circumstances which make it possible if the confession is true and in this instance that principle was not applied by either of the two Courts below and so leaves me without option than to hold Exhibit B, an unreliable piece of evidence that cannot on its own sustain a conviction. See Shurumo v State (2010) 5 NWLR (pt.1218) 65; Oseni v State (2012) 5 NWLR (pt.415) 513 at 537; Balogun v A.G. Federation (1994) 5 NWLR (pt. 345)442.

The respondent’s persuasive arguments are for this Court to stay its hand and not interfere with the concurrent findings of the two Courts below

in line with the policy stance of this Court, which stands solid. However, the circumstances prevailing in this case present the exception to that general rule which propels this Court to upset those findings which special circumstances are that the findings are perverse and have led to a miscarriage of justice. See Mohammed Ibrahim v State (2015) All FWLR (pt. 779) 1149 at 1175; Boniface Adonike v State (2015) All FWLR (pt. 772) 1631 at 1678 – 1679; Okunade Kolawole v State (2015) 2-3 SC P. 1 at 36; Bukar Madu Aji v Chad Basin Development Authority & anor (2015) 3 – 4 SC (pt. III) 1 at 16 – 17; Abegunde v Ondo State house of Assembly & 11 Ors (2015) 4 – 5 SC (pt. l) 1 at 21 – 22 & 25 – 26; Ogbu v State (1992) 8 NWLR (pt.259) 255; Adeyeye v State (2013) All FWLR (pt.704) 108; Akpabio v State (1994) 7 NWLR (pt. 359) 635; Ejikene v Okonkwo (1994) 8 NWLR (pt. 632)266.
In the insistence of sustaining the concurrent findings of the two Courts below, the question that belies its sustenance are the fact that the findings stemmed from perversity and occasioned a miscarriage of justice. In this case, the basic principle of substantive law and procedure

were not followed in those findings. Of note is that the ingredients of the offence must co-exist and proved by the prosecution beyond reasonable doubt in order to secure a conviction. In the case at hand, the prosecution failed woefully to dislodge the doubt the defence implanted both at the trial within trial as to the involuntariness of the Exhibit B, the confessional statement and during the defence when the defence witnesses testified avowing that the extra-judicial confessional statement was obtained involuntarily through blood shed when appellant was shot in the leg and through oppression, inducement and threats. Those assertions were not debunked by any cross-examination. In fact, they were left unchallenged.
I shall for effect show some excerpts of what transpired at the trial Court. I agree with learned counsel for the appellant that putting the involuntariness of the confessional statement in perspective, all the accused persons had access to information about how all the confessional statements were taken and most importantly aware of the death of Mannir who was also a robbery suspect and a co-accused, but the psychological impact the information of

the death of the co-accused had on them particularly the appellant who was the last person to be arrested and or whose statement was taken last, who saw the extent of threat and torture wounds meted on the other accused and himself and which ultimately led to the death of one of the accused persons was taken into cognisance. The statement made by PWA is thus: –
“the 1st accused statement was the first to be taken then the 3rd and then 2nd accused. Mannir’s statement was made on the same day the statement of the 3rd accused was recorded.” The above statement was made at the trial within trial by both the prosecution witnesses and the defences witnesses that support the fact of the psychological and physical threat and that it had a psychological effect or some impact, no matter how remotely put on the statement.
Pages 26-27 of the records under cross-examination, the PWA stated there was one Mannir who is not facing trial. Mannir is dead…, he died in the hospital. We took him to the hospital… at the time he died he was under arrest… Mannir made a statement before he died. It was verbal statement… the 1st accused statement was the first to

be taken and then 3rd and then the 2nd accused. Mannir’s statement was made on the same day the statement of the 3rd accused was recorded, it was an investigation office… yes when I was taking the statement of the accused.
Pages 28 of the records of appeal cross examination of the PwB “Series of arrests were made including that of the accused person. I know that some of the arrested people died, they died in the course of the investigation one Mannir was among those that died… it was when Mannir Hamisu who is now dead was arrested he revealed that he was together with the accused persons during the robbery … yes the accused were aware of the death of some suspect, I cannot say whether they saw the corpse or not…”
Corroborating PWA and PWB above, the DWA/appellant in evidence had the following to say at pages 34 of the records of appeal: “I met some people arrested already in connection with this case… yes, I can remember one Mannir also in connection with this case. I met him arrested at the police station. He is dead now. I know what led to his death. I met Mannir already arrested at Dala police station… he was shot on the right

knee in my presence. He was being interrogated before he was shot… I was hanged. I was beaten and eventually shot … They threatened to shoot me as they did to Mannir and if I didn’t admit conveying Mannir with my taxi.. I do not want what happened to Mannir to happen to me.”
Pages 36-38 of the records DWB had this to say “I was shot on my leg and I became unconscious…. Mannir was shot… he was not shot in my presence. I came to know when l was in the ceil and I was shown a photograph. I was also told by the 3rd accused person… I lost my sense because I was shot…. he said I was already shot twice some policemen brought out clubs and hit me on my legs…. he directed them to stop beaten me. I signed the statement because I did not want a repeat of what I experience (cross examination) O.C.C.I.D said they should stop slapping me, it was after that, that I signed the statement.”
Pages 38 of the record, DwC had this to say “a corpse was shown to me and I was asked if I know who it was … I was also shown the 3rd accused and asked me whether I know the 3rd accused and the corpse, a paper was brought and I was forced to

thumbprint same .. I was taken before one huge man.”
It can be seen clearly that the statement of the accused persons where obtained by force through threat, under duress by inflicting bodily harm on them which resulted in death of one Mannir.
The alleged confessional statement cannot stand the test of admissibility for being unreliable under this circumstance. The accused signed the statement given to them so that the torture and beating would stop; human instinct would always find a way to preserve its existence in the glaring face of death and acceptance and signing a statement made by another would mean preservation of life at least they will not die like their co-accused who died and was buried and nothing came out of it.
Clearly, what is evident is that the exceptional circumstances that would make the Supreme Court disregard its policy of not intervening in concurrent findings have made themselves available here, leaving the Court no option than to resolve the doubts that are present in favour of the appellant in line with the decision in Yav v State (2005) 2 NWLR (pt. 917) 1 at 25; Shekete v The Nigerian Airforce (2000) 15 NWLR (pt. 692) 868 at 880-881.

In conclusion and from the foregoing, there is merit in this appeal and I allow it. I set aside the judgment of the Court of Appeal which affirmed the decision, conviction and sentence of the trial Court.

I hereby order the acquittal and discharge of the appellant.
Appeal allowed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother, MARY UKAEGO PETER-ODILI, J.S.C. just delivered. I am in agreement with the reasoning therein and conclusion arrived thereat, that there is merit in the appeal and should be allowed. I too will allow it.
Appeal allowed.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, MARY UKAEGO PETER-ODILI, JSC obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that, being meritorious, this appeal should be allowed.

Learned counsel for the appellant canvassed the view that the facts of this case present an exception to the rule against non-interference with concurrent findings of facts by lower Courts. From my reading of these findings, I take the view that there is considerable force in this view.

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True, it has long been established that this Court, generally speaking, should not interfere with findings of facts by lower Courts. The reason is simple. In the first place, the trial Courts had the unique opportunity of seeing and hearing the witnesses give evidence. They not only see the witnesses, they equally observe all their habits and mannerisms. These include their demeanour and idiosyncrasies.
As a corollary to these peculiar advantages, the Law anticipates that they should utilize all their judicial competence; competence or skill rooted or anchored on law and commonsense to evaluate the evidence by eliminating the chaff from the grain of probative evidence. Proper conclusions which a reasonable Court ought to arrive at, expectedly or ideally, should eventuate from that rigorous exercise. The lower Court, upon being persuaded by such findings, would endorse them as concurrent.
That is why the law takes the view that a failure in this regard would warrant the interference of this Court. See Adeye and Ors v. Adesanya and Ors [2001] 6 NWLR (pt. 708) 1; Olatunde v. Abidogun [2001] 18 NWLR (pt. 746) 712; Adeleke v. Iyanda [2001] 12 NWLR

(pt. 729) 1; Udo v. CRSNC [2001] 14 NWLR (pt. 732) 116; Enilolobo v. Adegbesan [2001] 2 NWLR (pt. 698) 611.
This, then, is the foundation for the number of exceptions to this general rule against non-interference. For example, one major exception to the said general rule is that, where such findings are in fact inferences from findings properly made, this Court is in as good a position as the lower Courts to come to a decision. See Ebba v. Ogodo [1984] 1 SCNLR 372; [1984] 4 SC 84, 98-100; Fabunmi v. Agbe [1985] 1 NWLR (pt. 2) 299, 314; Fatoyinbo v. Williams [1956] SCNLR 274; (1955) 1 FSC 87; Ukatta v. Ndinaeze [1997] 4 NWLR (pt. 499) 251, 263.
This explains the prescription that this Court will also interfere with findings of facts where such findings are perverse, that is, persistent in error, different from what is reasonable or required, against weight of evidence; put differently, where the trial Judge took into account, matters which he ought not to have taken into account or where he shut his eyes to the obvious. See Atolagbe v Shorun (1985) LPELR-592 (SC) 31; C-D.
Such a perverse finding is a finding of facts which is, merely, speculative and is

not based on any evidence before the Court. It is an unreasonable and unacceptable finding because it is wrong and completely outside the evidence before the trial judge. See Iwuoha and Anor v. NIPOST and Anor (2003) LPELR -1569 (SC) 39-40; Overseas Construction Company Nig. Ltd. v. Creek Enterprises (Nig.) Ltd. [1985] 3 NWLR (pt. 13) 407.
In all then, a decision is said to be perverse: (a) When it runs counter to the evidence; or (b) Where it has been shown that the trial Court took into account matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) When it has occasioned a miscarriage of justice. See Missr v. Ibrahim [1975] 5 SC 55; Incar Ltd. v. Adegboye [1985] 2 NWLR (pt. 8) 453; Atolagbe v. Shorun [1985] 4 SC (pt. 1) 250, 282.
That is the fate of the concurrent findings in the instant appeal. As the leading judgment has demonstrated, the concurrent findings of the lower Courts are perverse. They have, in fact, occasioned a miscarriage of justice, hence, the need for the interference of this Court. See Akpabio v State [1994] 7 NWLR (pt. 359) 635; Ejikeme v Okonkwo [1994] 8 NWLR (pt. 632) 266; Kolawole v State [2015] 2

-3 SC 1, 36, Adonike v State [2015] All FWLR (pt. 772) 1631, 1678; Ogbu v State [1992] 8 NWLR (pt. 259) 255.

It is for these, and the more detailed reasons in the leading judgment that I too shall enter an order allowing this appeal. I abide by the consequential orders in the leading judgment. Appeal allowed.

EJEMBI EKO, J.S.C.: The evidence on which the two Courts below sustained the conviction and sentence of the appellant for armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 LFN 1990 was the alleged confession of the appellant contained in Exhibit B. At the trial, the appellant stridently protested and disputed the voluntariness of the making of the said Exhibit B. He led credible and undisputed evidence that the said confession was extracted in the most brutally dehumanizing and oppressive manner. The particulars of the brutality include the facts that he was shot on the hand and leg by the Investigating Police Officer (IPO) in order to break him down to confessing the alleged armed robbery offence. He became unconscious as a result. Thereafter the IPO forcibly prevailed on him to

append his signature to the document containing the confession – Exhibit B.

At the mini trial, to determine the voluntariness of the confession, he maintained the posture. But his evidence remained the only lone voice in the wilderness. He testified in his defence. At page 79 of the Record, he gave graphic details of the police brutality to his person and to others. The DW.5, Babangida Bagide, who was a fellow in-mate in the detention cell at the material time corroborated the appellant as DW.3, in every materia particular on the Police brutality. While the appellant as the DW.3 was not at all cross-examined on the adverse evidence; the DW.5 was not discredited by the cross-examination.

Apart from Exhibit B, no evidence linked the appellant to the alleged armed robbery. No eye witness identified and linked the appellant to the said armed robbery. The situation prompted the trial Court to ask pertinently: whether considering the evidence before the Court, the Accused could be linked to any or all the robberies? On this retortion, it found that based on the confessional statement, Exhibit B, the Court was left with no doubt that the appellant, the

Accused person, committed the robberies of 29th January, 2002 and one other in April of the same year. The appellant, ex facie the record, was not charged with any robbery that took place on 29th January, 2002. Count 1 alleged robberies of 30th January, 2002. Count 2 alleged that in April, 2002, one Hassana Bishir Babba was robbed of N250,000.00 and gold necklace.

Per contra of count 1, the PW.2 testified to robbery of 29th January, 2002. The doubt created thereby should have ordinarily been resolved in favour of the accused person. However, notwithstanding this reasonable doubt the two Courts below persisted in their concurrent perversity to convict the appellant on count 1.

On count 2, the PW.3 and PW.4 do not seem to be ad idem on the ownership of either the N250,000.00 or the gold necklace. The PW.4, Hassana Bishir Babba (at pages 68 – 69) did not say that the money and the gold necklace belonged to her, as count 2 loudly asserted. The PW.3 testified (pages 67) that the N250,000.00 and the gold necklace were “in a bag belonging to my sister”. There was no specificity of who the “my sister” was.

The Court of law enjoined by the Evidence

Act to sustain conviction of an accused person of an alleged offence only upon proof beyond reasonable doubt must by law, to sustain conviction of an accused person for a criminal offence act only on empirical evidence and not on mere intuition or hunches. I agree with Georgewill, J.C.A., that there can be no conviction for a criminal offence on Court’s perception of morality alone without legal evidence. See UGOCHUKWU v. FRN (2016) LPELR – 40785 (CA).

Now coming to the appellant’s conviction based on Exhibit B – the confession. The law is trite that the accused person can be convicted on his confession alone: OFORDIKE v. THE STATE (2019) LPELR – 46411 (SC). However, since R. v. SKYES (1918) 8 C.A.R where the accused person disputes the alleged confession and/or retracts it, the Courts insist on the need to test the confession by considering other evidence outside the confession that attest to the truth of the making of the confession. One test, among others, is whether the confession is consistent with other facts that have been proved and ascertained. See ALARAPE v. THE STATE (2001) 5 NWLR (pt. 705) 79.

The two Courts below concurrently found that the

Exhibit B was confessional and that the appellant made it. But they however, shut their eyes to other undisputed facts suggesting that the confession was not only a sham but also that it was extracted oppressively. English Courts define oppression, particularly as regards the mode of extracting a confession, as improper and detestable wickedness. See R. v. PRIESTLEY (1965) 51 Cr. App. Rep. 1; R. v. PRAGER (1972) 1 ALL E.R. 1114; R. v. FULLING (1987) 2 ALL E.R. 65 at 69.
Evidence abound attest to the oppressive manner the alleged confession in Exhibit B was extracted from the appellant by the PW.1. At pages 36, 79 and 81, he testified that he was shot on the leg by the PW. 1 which made him unconscious. Thereafter he was surrounded by six (6) Policemen (including the PW. 1) who severally shot and killed one other suspect in the cell – one Mannir, to demonstrate to the appellant that they meant business. They asked him to sign the statement, Exhibit B. The appellant succumbed and appended his signature to Exhibit B. The signing of Exhibit B, which made the appellant the author of Exhibit B, cannot in the circumstance be said to be voluntary. Not at all.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The DW.5 heard the PW. 1 threaten the appellant – putting it to the appellant that he (appellant) would tell the truth if they took him upstairs. The PW.1 took the appellant upstairs. Shortly, the DW.5 heard gun shot and the PW. 1 brought the appellant back with wound on the hand. The leg was bleeding profusely and blood was all over appellant’s gown and trousers. That the PW.1 executed his threats is therefore “res ipsa loquitur”. The DW.5 attended to the appellant to stop the bleeding. The PW.1 callously denied the appellant.
In the perverse judgment of the trial Court, affirmed by the Court of Appeal (the lower Court), the trial Judge did not, albeit properly evaluate the material evidence of the appellant (the DW.3) corroborated by the DW.5. On these material pieces of evidence that the prosecution failed to cross-examine the DW.3 and DW.5 and/or discredit them, there were ample evidence that Exhibit B was obtained in a manner consistent with very “improper and detestable wickedness”. Like Pontius Pilate, the two Courts below decided to look the other way and unfortunately endorsed the most detestable and reprehensible Police brutality. While

the said Courts concerned themselves only with Exhibit B being relevant to the facts in issue (Section 29(1) of the Evidence Act), they clearly compromised Subsections Sections (2) & (3) of the same Section 29 of the Evidence Act. The provisions of Section 29(1), (2) & (3) of the Evidence Act, 2011 are herein reproduced, to wit –
29.(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, if is represented to the Court that the confession was or may have been obtained –
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable

doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to so prove that the confession was not obtained as mentioned in either Subsection (2)(a) or (b) of this Section.
The evidence of the DW.3 and DW.5 neither challenged nor discredited had seriously indicted the PW. 1 in the manner he had oppressively and callously extracted the confession in Exhibit B from the appellant. That made Exhibit B inadmissible having been made involuntarily. Section 29(2) of the Evidence Act.
Yes, the lower Court at page 173 re-stated the law correctly when they held –
A free and voluntary confession of guilt, direct and positive, and if duly made and satisfactorily proved, is sufficient without any corroborative evidence so long as the Court is satisfied as to the truth of the confession (can sustain conviction).
However, in view of the un-discredited and unchallenged

evidence of DW.3 and DW.5, which the trial Court failed to properly evaluate, the lower Court failed woefully to be satisfied that the trial Court did exercise its discretion judicially and judiciously in holding that the confession in Exhibit B was free and voluntary. It was not enough to hold that the confession was positive and direct. What makes a positive and direct confession an admissible legal evidence against the accused person is the fact that it was made freely and voluntarily. No doubt the evidence of DW.3 and DW.5, neither challenged nor discredited, had cast reasonable doubt on the prosecution’s case that the appellant voluntarily confessed to the offences alleged against him. The appellant was in the circumstance entitled to the benefit of the doubt.
The summary of all I have been labouring to establish is that the concurrent findings of facts on which the appellant was convicted were perverse, resulting in substantial miscarriage of justice to the appellant. I therefore support, endorse and adopt the lead judgment just delivered by my brother, MARY UKAEGO PETER-ODILI, J.S.C. There is substance in the appeal.

The appeal is hereby allowed. The concurrent decisions of the two Courts below on which the conviction of the appellant of the offences he was prosecuted and/or tried are hereby set aside. The appellant shall be and is hereby acquitted and discharged, and that shall be the order of the trial Court.

This decision is not complete unless an order is made directing the relevant prosecutorial authorities to immediately investigate and prosecute if necessary, the circumstances of the brutality to the appellant by the PW.1. All the Police Officers responsible for the alleged shooting and killing of one Mannir in the Police Cell shall also be brought to book. The counsel for the respondent, Emeka Obegolu, Esq., is hereby directed to convey the duly certified copies of this judgment to the Inspector-General of Police and the relevant State authorities including the Attorney-General and Commissioner of Police of the State. The Appellant’s Counsel, Dr. Adekunle Oladapo Otitoju shall collaborate with the respondent’s Counsel to ensure that the order is effectively carried out.

UWANI MUSA ABBA AJI, J.S.C.: I have read in draft the lead judgment of my learned brother, MARY

UKAEGO PETER-ODILI, J.S.C., just delivered and I unreservedly agree that this appeal be allowed on the reasons and conclusion reached by him.

The Appellant with other 2 accused persons was charged with armed robbery committed on 30/1/2002 and in April, 2002 respectively. The voluntariness of the Appellant’s confessional statement was tested by a trial within trial and same was admitted as being made voluntarily. After the trial, the Appellant was convicted as charged and on his appeal to the lower Court, he lost same. Appealing to this Honourable Court, he formulated these issues for determination, adopted by the Respondent:
1. Whether the judgment of the lower Court affirming/upholding the decision of the trial Court is justified, without considering the adduced evidence at the trial within trial.
2. Whether the lower Court was wrong to rely on Exhibit B, alleged confessional statement in also affirming the decision of the lower Court that is not reliable.
3. Whether having regards to the available evidence and the entire circumstance surrounding the matter, the lower Court was right to affirm the decision of the trial Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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I shall sum up the three issues into one thus:
Whether by the entire evidence and circumstances of this case, the lower Court was right in affirming the decision of the trial Court.

The grouse of the Appellant in this appeal is that the prosecution could not prove one of the ingredients of armed robbery, to wit; that the Appellant participated in the said armed robbery. Thus, this calls for the overturn of the concurrent findings of the 2 Courts below.

For the prosecution to succeed in this case, there ought to be proof beyond reasonable doubt: (i) That there was a robbery or a series of robberies, (ii) That each robbery was an armed robbery, (iii) That the appellant was one of those who took part in the armed robberies. See Per CHUKWUDIFU AKUNNE OPUTA, JSC in SAMUEL BOZIN V. THE STATE (1985) LPELR-799(SC) (P. 6, PARAS. B-D).

To prove that the Appellant participated in the armed robbery and since there was no any other evidence available, the prosecution relied on the induced confessional statement of the Appellant. Therein, the Appellant alleged he was tortured and shot on the leg before he was induced to sign Exhibit B. The trial

within trial also brought out these facts, yet it was ignored and glossed over by the lower Court.

It is settled law that for an inducement, threat or promise to make a confessional statement irrelevant and therefore inadmissible, two conditions must be present (i) it must have reference to the charge against the defendant; and (ii) the defendant should believe that by making the statement, he would gain advantage and avoid evil even if temporarily. A confessional statement becomes involuntary, if the statement could not normally have been made but for the “inducement, threat or promise” emanating from a person in authority. This was revealed by the statement of the Appellant that he was induced and threatened by the Police into signing Exhibit B. A statement of inducement by a person in authority was held inadmissible in HASKE V. QUEEN (1961) LPELR-25081(SC).

It is glaring that the Appellant was threatened, shot at the leg and induced into making and signing Exhibit B, hence it was wrong for the lower Court to rely on that statement to convict the Appellant without circumspection. Based on the foregoing therefore, the Appellant is hereby discharged

and acquitted. I abide by the decision and conclusion reached by my learned brother that the appeal is allowed.

Appearances:

Dr. Adekunle Oladapo Otitojo, with him, Abimbola Daniel, J. O. Olabode and O. A. Adetutu For Appellant(s)

Emeka Obegolu For Respondent(s)

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