GBENGA OSHO v. THE STATE
(2011)LCN/4380(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of March, 2011
CA/A/280/C/2009
RATIO
GROUNDS OF APPEAL: WHAT IS THE VERY ESSENCE OF GROUNDS OF APPEAL
In recent years this Court and the Supreme Court have held the view that the very essence of grounds of appeal is to give reasonable and adequate notice of what the grouse, attack or complaints are against the decision appealed from. Once the grounds give or provide sufficient information to enable the Respondent know what he is to meet at the appeal and would therefore not be taken by surprised on the issues or points raised therein, such grounds are valid and competent grounds of appeal. See: THOR LTD. v. FIRST CITY BANK (1997) 1 NWLR (479) 35. ADEROUNMU v. OLOWU (2000) 4 NWLR (652) 253. IWUOHA v. NIPOST (2003) 8 NWLR (822) 308. OSASANYA v. AJAYI (2004) 5 SC (1) 88 at 96. PER MOHAMMED LAWAL GARBA, J.C.A.
PARTICULARS OF GROUNDS OF APPEAL: WHETHER THE ABSENCE OF PARTICULARS CAN RENDER THE GROUNDS INCOMPETENT
The law is that once the grounds of appeal are clear and contain details of points complained of the absence of particulars is not fatal and does not render the grounds incompetent. See: UBA v. ACHORU (1990) 6 NWLR (156) 254 at 283. KOYA v. UBA (1997) 1 NWLR (481) 251 at 265-6. D. STEPHENS INDUSTIUES LTD. v. B.C.C.I. (NIG.) LTD. (1999) 7 SC (Pt.III) 27 at 29-30.
OSASANYA v. AJAYI (2004) 5 SC. (Pt.I) 88 at 96. PER MOHAMMED LAWAL GARBA, J.C.A.
OFFENCE OF CRIMINAL CONSPIRACY: DEFINITION OF THE “OFFENCE OF CRIMINAL CONSPIRACY”
The offence of criminal conspiracy was defined in Section 96(1) of the Penal Code thus:- “96(1) When two or more persons agree to do or cause to be done – (a) an illegal act; or (b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy. PER MOHAMMED LAWAL GARBA, J.C.A.
OFFENCE OF CRIMINAL CONSPIRACY: WHAT THE PROSECUTION MUST ADDUCE TO PROVE THE OFFENCE OF CRIMINAL CONSPIRACY BEYOND REASONABLE DOUBT
…for the offence of criminal conspiracy to be proved beyond reasonable doubt as required by law, the prosecution must adduce evidence to establish the following:- (i) that two or more persons have entered into an agreement freely to do or commit an illegal act, or (ii) the two or more persons have agreed to cause to be done, an illegal act, or (iii) the two or more persons have agreed freely to do or cause to (iv) be done an act which is not illegal but by illegal means. PER MOHAMMED LAWAL GARBA, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF SECTION 11(1) OF THE EVIDENCE ACT AS IT RELATES TO WHETHER EVIDENCE ADMISSIBLE AGAINST ONE CONSPIRATOR, IS ADMISSIBLE AGAINST THE OTHER OR OTHERS
In addition, by the provisions of Section 11(1) of the Evidence Act, once the agreement between conspirators is shown to exist, evidence admissible against one conspirator, is also admissible against the other or others. The provisions are as follows:- “11(1) Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong, anything said, done or written by any one of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by any of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it; but statements made by individual conspirators as to measures taken in the execution or furtherance of any such common intention are not deemed to be relevant as such as against any conspirators, except those by whom or in whose presence such statements are made.” See QUEEN v. ENAHORO (1965) NWLR 265. PER MOHAMMED LAWAL GARBA, J.C.A.
OFFENCE OF CONSPIRACY: WHETHER A SINGLE PERSON IS CAPABLE OF BEING CONVICTED FOR THE OFFENCE OF CONSPIRACY
It is therefore a restatement of the requirements of Section 97(1) of the Penal Code by Ogbuagu, JSC in the case of SULE v. STATE (supra) when he said:- “It takes two to conspire.”
Since it takes two or more people to conspire, it follows therefore that a single person is in law incapable of agreeing alone and so cannot properly be charged with let alone be convicted of the offence of conspiracy. PER MOHAMMED LAWAL GARBA, J.C.A.
CONFESSIONAL STATEMENT: THE PRINCIPLES GUIDING THE ASSESSMENT OF A CONFESSIONAL STATEMENT BEFORE THE COURT CAN ASCRIBE APPROPRIATE VALUE TO IT
The principles guiding the assessment of a confessional statement for the purpose of ascribing appropriate value to it in a given case, include:- (a) whether there is anything outside it to show that it is true. (b) Whether the statement is in line or consistent with other facts in the case which are not disputed. (c) Whether the accused had an opportunity which he used in committing the offence. (d) Whether there is other evidence which support the confession. See: AKPAN v. state (1992) 6 NWLR (248) at 460, IKPASA v. A.G. BENDEL STATE (1981) 9 SC. 7. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
GBENGA OSHO Appellant(s)
AND
THE STATE Respondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Applicant, one Sunday Awe and other person at large were arraigned, charged and tried for offences of conspiracy and armed robbery punishable under Sections 97(1) and 298(c) of the Penal code respectively before the High court of Kogi state. At the close of the case by both the prosecution and the defence, the Attorney General of Kogi State withdrew the charges against Sunday Awe, through the prosecuting counsel who informed the High court of the directive to do so. The learned counsel who appeared for the two accused persons at the trial did not object to the withdrawal of the charges and so the High court terminated the case against Sunday Awe and struck out his name from the case.
The High Court in its judgment delivered on the 2/7/09 found the Appellant guilty of the offences charged and convicted him accordingly.
He was sentenced to a term of three (3) years imprisonment without the option of fine for the offence of conspiracy and 4 years for armed robbery, the sentences to run concurrently.
Being dissatisfied with the conviction, the Appellant caused a notice of appeal dated the 29th August, 2009 to be filed on the 1/9/09 against the judgment. Because there is a preliminary objection on all the four (4) grounds of appeal contained on the said notice of appeal, it is expedient to set them as they appeal thereon. They are as follows:-
“GROUND 1
The learned trial Judge erred in law by convicting the Appellant for the offence of conspiracy when he had earlier discharged the co-accused of the same offence.
GROUND 2
The learned trial Judge erred in law by convicting the Appellant of the offence of armed robbery on the uncorroborated confessional statement of the Appellant.
GROUND 3
The learned trial fudge erred in law by convicting the Appellant of the offence of armed robbery on the hearsay evidence of the only prosecution witness who is the investigating police officer.
GROUND 4
The judgment of the trial court is unreasonable and unwarranted having regards to the weight of evidence.”
In line with the requirements of the rules of practice in the Court, briefs of argument were filed by the learned Counsel representing the parties to the appeal. The Appellant’s brief settled by Rotimi Ojo, Esq. was filed on the 22/3/10 but deemed properly filed and served on the 17/6/10 when time was extended for the Appellant to file it. Mr. Ayodele Akintunde Esq. prepared the Respondent’s brief of argument which was filed on the 16/7/10 and in which the notice of preliminary objection filed on the same date, was argued.
A Reply to the preliminary objection was filed on the 13/9/10 by the learned Counsel for the Appellant.
The aforementioned briefs were adopted by the learned Counsel at the oral hearing of the appeal on the 1/2/11 as their submissions in support of their respective positions in the appeal which we were urged to uphold.
Before then however, the learned Counsel for the Respondent had moved his preliminary objection urging us to strike out all the four (4) grounds of appeal contained on the Appellant’s notice of appeal for reasons which were advanced in the brief. Since the law requires that the preliminary objection be determined first, it would be my starting point.
The grounds of the Respondent’s objection as contained on the face of the notice thereof are thus:-
“1. The particulars and nature of the error in law in grounds 1, 2 and 3 of the Appellant’s Notice of Appeal are not clearly stated as required by Order 6 Rule 2 of the Court of Appeal Rules 2007, and
2. Ground 4 of the Appellant’s Notice of Appeal which complains that the judgment of the High Court of Kogi State (Coram: A.O. Salihu J.) delivered on the 2nd of July, 2009 is unreasonable and unwarranted having regards to the weight of evidence is not a valid and proper ground of appeal in criminal cases where the required onus of proof is beyond reasonable doubt.”
In his arguments on ground 1, after setting out Order 6, Rule 2(2) of the Court of Appeal Rules , 2007, are that this Court and Supreme Court had held that a ground of appeal should be precise, unequivocal and direct statement of the decision being attacked; giving exact particulars of the mistake, error or misdirection alleged. He cited the cases of: NWAOGWUGWU V. PRESIDENT, FEDERAL REPUBLIC OF NIGERIA (2007) WRN (12) 24 at 43.
KALU v. UZOR (2006) 8 NWLLR (981) 66 at 85. OGBULI v. OGBULI (2008) 1 NWLR (1068) 258 at 271-5. and submitted that the Appellant has breached the provisions of the above Order and so grounds 1,2 and 3 are incompetent relying on the case of SOSANYA v. ONADEKO (2005) 8 NWLR (926) 185 at 215-6.
In addition, it was his submission that since the said grounds 1, 2 and 3 are incompetent, the issues formulated from them do not relate to any ground of appeal and so should be struck out.
On the second ground of the objection, it was the submission of learned Counsel that ground 4 of the notice of appeal is not a competent ground since the law is trite that in criminal trials, the burden of proof is beyond reasonable doubt and not on the weight of evidence. He relied on a number of cases including EBENEHI v. STATE (2009) 2-3 SC (109), (2009) 6 NWLR. 431, BARIDAM v. STATE (1994) 1 NWLR (320) 250 at 258 for his submissions and urged us to hold that ground 4 on the notice of appeal and issue 4 raised in the Appellant’s brief are both incompetent and to strike them out.
On his part, the learned Counsel for the Appellant, also after setting out the provisions of Order 6, Rule 2(2) of the Court of Appeal Rules, 2007 in the Reply to the objection, argued that the objection was totally misconceived as the Order relates to civil appeals and not criminal appeals. He said all the judicial authorities cited in support of the objection have no relevance to criminal appeals. Reference was made to the case of LAGGA v. SARHUNA (2008) 16 NWLR (1114) 427 at 456 and it was submitted that reliance on the Order 6, Rule 2(2) is inappropriate and that the notice of appeal contained adequate and sufficient information as to the nature or content of the error of law the Appellant complained of. We were urged to discountenance the ground of objection.
On ground 2 of the objection, the learned Counsel for the Appellant placed reliance on the case of SHEHU v. STATE (2010) NWLR (1195) 112 at 129 and submitted that the mistake in couching ground 4 was pardonable. He urged us to so hold.
I should say straight away that the learned Counsel for the Appellant is right when he said that the provisions of Order 6 generally, apply to appeals from decisions of any court tribunal in civil cases and matters related thereto. The Order itself, leaves no doubt whatsoever about that position when manifestly it says:-
“PART 2 CIVIL APPEALS ORDER 6 NOTICE AND GROUNDS OF CIVIL APPEALS.”
Then in Order 6, Rule 1, it is provided that:-
“Part 2 of this Rule shall apply to appeals to the Court from any court or tribunal acting either in its original or appellate jurisdiction in civil cases, and to matters related thereto.”
The requirement of Order 6 Rule 2(2) therefore clearly relates to the notice of appeal filed in respect of or against decisions of a trial court or tribunal in civil cases, a proforma of which was provided as FORM 3 of the First Schedule to the
Court of Appeal Rules , 2007. In the said FORM 3, which was made under Order 6, Rule 2 as indicated thereon, the grounds of appeal are required to be set out on the notice of appeal and so where misdirection or error in law was alleged therein, the particulars and nature of the misdirection or error shall be clearly stated.
There are no corresponding provisions in the Court of Appeal Rules, 2007 in respect of the notice of appeal against decisions of trial court or tribunals in criminal cases.
Order 16 is the Order that provides for criminal appeals. Rule I of the Order provides thus:-
“1. This Order shall apply to appeals to the Court from any Court or tribunal acting either in its original or in its appellate jurisdiction in criminal cases, other than a court-martial, and to matters related thereto.”
Rule 3(1) of Order 16 deals specifically with the notice of appeal in criminal cases and a proforma of the said notice of appeal was provided in the Second Schedule as “CRIMINAL FORM 1” made under 16, Rule 3.
There is no specific requirement in the said form for setting out particulars of any misdirection or error in the grounds of appeal as was the case under Order 6, Rule 2(2) in respect of civil appeals. Even though it has become the usual practice by learned Counsel to set out grounds of appeal and particulars thereof in criminal cases on the notice of appeal in order to give clear notice of what the grievance or complaints are against the decision appealed from, diligent and expedient as it is, the practice is not and cannot be equated with the requirement of the Rules of the Court when the Rules do not provide for it.
But that apart, even in the interpretation and application of the Rules as they relate to civil appeals, the attitude of the court has always been one of liberal view on the issue, devoid of arid legalism and technicality. In recent years this Court and the Supreme Court have held the view that the very essence of grounds of appeal is to give reasonable and adequate notice of what the grouse, attack or complaints are against the decision appealed from. Once the grounds give or provide sufficient information to enable the Respondent know what he is to meet at the appeal and would therefore not be taken by surprised on the issues or points raised therein, such grounds are valid and competent grounds of appeal. See: THOR LTD. v. FIRST CITY BANK (1997) 1 NWLR (479) 35. ADEROUNMU v. OLOWU (2000) 4 NWLR (652) 253. IWUOHA v. NIPOST (2003) 8 NWLR (822) 308. OSASANYA v. AJAYI (2004) 5 SC (1) 88 at 96.
In criminal appeals, a more liberal view and approach on the issue would be required since the constitutionally guaranteed liberty of the Appellant is at stake and so the need to decide the complaints he makes against his conviction on the merit would override whatever defects there may be in the form or manner such complaints were put in the notice of appeal. After all a ground of appeal is a statement by which an Appellant complains that the court from which the appeal is brought had made a mistake in ascertaining the applicable law or in applying the law to the facts or that the said court had misdirected itself or made an error in the application of the law on the disputed facts and therefore came to a wrong conclusion. Once a ground contains such information as to give notice of what the complaints are against a decision in a criminal case, an appellate court should be less concerned with the form in which the complaints are put. In the case of ADEROUNMU v. OLOWU (2000) 2 SCNJ. 180 at 191. (2000) 4 NWLR (652) 253 at 265 the position was enunciated by the Supreme Court, when it stated thus:-
“The rules of our appellate procedure relating to formulation of grounds of appeal are primarily designed to ensure fairness to the other side. The application of such rules should not be reduced to, a matter of mere technicality, whereby the court would look at the form rather than the substance. The prime purpose of the rules of appellate procedure, both in this court and in the Court of Appeal is that the Appellant shall file a notice of appeal setting forth grounds which give sufficient notice and information to the other side, of the precise nature of the complaint of the Appellant and consequently, of the issues that are likely to arise in the appeal. Any ground that satisfies that purpose should not be struck out, notwithstanding that it did not conform to a particular form.”
See also: THOR LTD. v. FIRST CITY BANK (1991 1 NWLR (479) 35, IWUOHA v. NIPOST (2003) 8 NWLR (822) 309.
Looking at the Appellant’s grounds 1, 2 and 3 above, it cannot seriously be argued by the learned Counsel for the Respondent that he is in any doubt whatsoever about the real complaints contained therein and what are the issues likely to arise in the appeal from them. The grounds have concisely given clear and adequate notice and information on the precise nature of the complaints the Appellant makes against his conviction by the trial court. The Respondent therefore knows from the grounds, what it is to meet at the hearing of the appeal and so would not be taken by surprise.
That the grounds are not followed individually with or by particulars of the specific error of law did not subtract any substance from the complaint of the errors of law set out in them. The law is that once the grounds of appeal are clear and contain details of points complained of the absence of particulars is not fatal and does not render the grounds incompetent. See: UBA v. ACHORU (1990) 6 NWLR (156) 254 at 283. KOYA v. UBA (1997) 1 NWLR (481) 251 at 265-6. D. STEPHENS INDUSTIUES LTD. v. B.C.C.I. (NIG.) LTD. (1999) 7 SC (Pt.III) 27 at 29-30.
OSASANYA v. AJAYI (2004) 5 SC. (Pt.I) 88 at 96. For these reasons, I find the objection to grounds I,2 and 3 devoid of merit and overrule it. The said grounds are competent grounds of appeal in law for the purposes of the Appellant’ s appeal.
The objection to ground 4 of the grounds of appeal would appear to find support in the decisions cited by the learned Counsel for the Respondent. For instance in the case of BARIDAM v. STATE (supra) at page 258, the Supreme Court had restated the position when it held:-
“It is a laid down principle of law that a ground of appeal which complains that the decision of the lower Court is “altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence” is not a valid or proper ground of appeal in criminal cases where the required onus of proof on the prosecution is beyond reasonable doubt’
Again in his concurring decision in the case of EBENECHI v. THE STATE (supra) at page 448. Ogbuagu, JSC had held that:-
“Such a ground of appeal it is said to be defective and incompetent. See NDIKE v. STATE 0990 9 SCNJ, 46, (1994t) 8 NWLR (360) 33.”
See also ENITAN v. STATE (1986) 3 NWLR (30) 604 at 608, WANKEY v. STATE (1993) 5 NWLR (295) 542 at 551, OKEZIE v. QUEEN (1963) 1 SCNLR 24.
By the decisions in the above cases and even more, the position of the law is clearly that a ground of appeal which complains that a decision by a trial court is unreasonable and unwarranted having regard to the weight of evidence is a defective, improper and an incompetent ground of appeal in criminal cases. However, recently the courts have demonstrated their resolve to move away from that position in their consideration of the effect of using the words “weight of in framing an omnibus or general ground of appeal in criminal cases. The current attitude of the courts has its roots in the case of IBOKO v. POLICE (1965) NWLR 384 referred to by Ogbuagu, JSC, in EBENECHI v. STATE (supra) where it was held, per in curiam, that the mistake in framing the ground is pardonable and that High Court Judges might delete the words “weight of’ and then deal with the ground as one complaining against the decision of the Lower Court having regard to the evidence.
Even though the statement that the mistake was a pardonable one was made per in curium, it has attracted to itself over the years some measure of binding force by its adoption and approval by the apex Court in later cases. It was adopted and used in the EBENECHI v. STATE (supra) by Ogbuagu, JSC who ignored and pardoned the said mistake in that appeal and the recent case of SHEHU v. STATE (supra) where he again held that:-
“Where the wrong phrase is used in couching the omnibus ground of appeal in a criminal case it is a pardonable mistake and the word “weight” should be deleted und counsel allowed to argue the appeal In other words, although such ground may be incompetent, the court in an effort to do substantial justice may allow amendment in additional grounds or perhaps ignore it and proceed on the merits of the appeal The court may regard it as a pardonable mistake.”
His lordship referred to IBOKO v. STATE and QUEEN v. OMISADE (1964) NMLR 67 as authorities for his position.
It does appeal clearly that in all the latter cases that the attitude of the court has been actuated by the primary duty of the courts to do substantial justice by dealing with the merit of a criminal appeal which involves the constitutional liberty of an appellant rather than allow what is generally considered as a technicality to clog the wheel of such justice. From the tenor of the above pronouncements by the apex Court, no binding principle of law has been laid down on the issue or point that the mistake is pardonable in all cases where it occurs. Rather the statements tend to show that the court depending on the circumstances before it, may over look, ignore and so pardon the mistake in appropriate and proper cases for the appeal of an appellant to be considered on the merit.
I am inclined and indeed disposed to adopt the same attitude particularly because the Respondent has not alleged that they are in any doubt about the real complaint of the Appellant as presented in the said ground 4 of the notice of appeal or that the consideration of the said ground without the words “weight of’ would cause any prejudice in their defence of the appeal. For that reason, the objection on ground of appeal No. 4 is overruled but I order that the words “weight of in the said grounds be deleted therefrom so that said ground would now read:-
“The judgment of the trial court is unreasonable and unwarranted having regards to the evidence.”
The same words are to be deleted in the Appellant’s issue 4 which was formulated from the said ground 4 at page 6 of the Appellant’s brief. Done with the preliminary objection, I now turn to the issues raised in the briefs of argument and submitted for determination in the appeal.
Four (4) issues were distilled by the learned Counsel for the Appellant from the four (4) grounds of appeal contained on the notice of appeal.
They are thus:-
“1. whether the trial Judge was right in convicting the Appellant for the offence of criminal conspiracy having acquitted the co-accused.
2. Whether the trial judge was right in convicting the Appellant based on the uncorroborated confessional statement of the Appellant
3. Whether the learned trial fudge was right in relying on the hearsay evidence of PW1 who was never at any time an eye witness to the alleged crime in convicting the Appellant.
4. Whether the learned trial fudge was right to have convicted the Appellant having regards to the weight of evidence adduced at the trial.”
Even though at paragraph 4.02 of the Appellant’s brief it was stated that “similarly Ground Five is premised on the sole Additional Ground of Appeal”. I cannot find any record of an additional ground of appeal in the file. In addition, the Appellant’s brief did not contain any issue formulated from the said additional ground and so even if filed, it is deemed abandoned since no issue was distilled from it for decision in the appeal.
On his part, the learned Counsel for the Respondent had submitted two (2) issues to the court which he said require determination in the appeal as follows:-
“1. Whether the learned trial Judge rightly convicted the Appellant for the offences of criminal conspiracy and armed robbery on the confessional statement of the Appellant (Exhibit A) und the evidence of PW1; and
2. Whether on the totality of the evidence the learned trial fudge rightly convicted the Appellant for the offence of conspiracy even though his co-accused had earlier been discharged.”
There is no difference of substance between the sets of issues raised by the learned Counsel and so I would use the ones submitted by the Appellant in the determination of the appeal.
Issue 1
“Whether the trial judge was right in convicting the Appellant for the offence of criminal conspiracy and armed robbery having acquitted the co-accused.”
The learned Counsel for the Appellant had submitted on the issue that the offence as provided for under the Penal Code Act provides that when two or more persons agree to do or cause to be done:
(a) An illegal act, or
(b) An act which is not illegal by illegal means, such an agreement is criminal conspiracy.
He then cited the case of USUFU v. STATE (2007) 1 NWLR (1020) 94 where he said it was held that for the prosecution to succeed in the charge of conspiracy to commit robbery and armed robbery, it must prove beyond reasonable doubt the following:-
(l) That there was an agreement between the accused and others to commit the offence of robbery,
(2) That in furtherance of the agreement or confederacy, the
(3) accused took part in the commission of the offence of robbery or series of robberies,
(4) That the robbery or each of the robberies was an armed robbery.
It was the further submission of learned Counsel that from the definition of the offence of criminal conspiracy, it is clear that it takes two or more people to commit the offence. He pointed out that in the instant case, two persons were accused for the offence but one of them was discharged and acquitted while the Appellant was convicted alone for the offence in the judgment of the High Court at pages 56-57 of the record of appeal.
Relying on the case of GARBA v. COP (2007) 16 NWLR (1060) 378 at 403 and SULE v. STATE (2009) 17 NWLR (1169) 33 at 63, it was argued by learned Counsel that it was wrong for the High Court to have convicted the Appellant alone when the person with whom he was accused of the offence of conspiracy was discharged and acquitted since one person cannot conspire alone. We were urged to so hold and resolve the issue in favour of the Appellant.
The learned Counsel for the Respondent had argued the Issue as Issue No. 2 in the Respondent’s brief. The submission for the Respondent are that the other person with whom the Appellant was accused of conspiracy was not discharged and acquitted but only discharged when the Attorney-General of Kogi State entered a nolle prosequi in respect of the charge against him and so the charge was struck out. Page 28 of the printed record of appeal, Section 73(I) and (3) of the Criminal Procedure Act as well as the case of FEDERAL REPUBLIC OF NIGERIA v. OSAHON (2000 5 NWLR (973) 361 on the powers of the Attorney General to enter nolle prosequi were referred to. It was the contention of the learned Counsel for the Respondent that the case of SULE v. STATE cited by his learned friend for the Appellant is not applicable because the facts and circumstances are different and that each case has to be considered on its own facts. According to Counsel, the question here is whether the evidence before the High Court had proved the offence against the Appellant. He said the High Court did not in its judgment consider the evidence against the person who was discharged but only against the Appellant as borne out at pages 52 to 55 of the record of appeal which were set out in the brief. Furthermore, it was argued by Counsel that conspiracy by its nature is seldom proved by direct evidence but circumstantial evidence and inference from proved facts citing the statement of Kalgo, JSC in the case of OBLAKOR v. STATE (2002) 10 NWLR (776) 612 at 628-9 as authority for the position. He then submitted that there is a confession of conspiracy by the Appellant in this case and so urged us to hold that on the totality of the evidence before the High Court, the conviction of the Appellant for conspiracy was right.
I would determine this issue before going to the next.
As stated at the beginning of this judgment, the Appellant was charged before the High Court along with others, for the offences of criminal conspiracy and armed robbery contrary to Sections 97(1) and 298(c) of the Penal Code respectively.
The offence of criminal conspiracy was defined in Section 96(1) of the Penal Code thus:-
“96(1) When two or more persons agree to do or cause to be done –
(a) an illegal act; or
(b) an act which is not illegal by illegal means,
such an agreement is called a criminal conspiracy.
From the definition, for the offence of criminal conspiracy to be proved beyond reasonable doubt as required by law, the prosecution must adduce evidence to establish the following:-
(i) that two or more persons have entered into an agreement freely to do or commit an illegal act, or
(ii) the two or more persons have agreed to cause to be done, an illegal act, or
(iii) the two or more persons have agreed freely to do or cause to
(iv) be done an act which is not illegal but by illegal means.
The above requirements clearly show that it is the agreement itself and nothing more that constitutes the offence of criminal conspiracy and once the existence of such an agreement between two or more persons in any of the above situations is established, the offence of criminal conspiracy would have been committed under the provisions of Section 96(1).
It is also clear that by the provisions, a person cannot alone commit the offence of conspiracy because he is not capable of conspiring with himself and an agreement to commit a civil wrong does not give rise to the offence as it is defined as criminal conspiracy by the provisions. See KAZA v. STATE (2008) 1-2 SC, 151.
Section 97(1) under which the Appellant was charged, punishes the offence of criminal conspiracy to commit an offence punishable with death or imprisonment such as the offence of armed robbery with which the Appellant was also charged.
What is undoubtedly clear in the definition of the offence of criminal conspiracy is that the agreement constituting the offence has to be between two or more persons. Consequently, because a person alone cannot agree to do or cause to be done an illegal act, one person is incapable of committing the offence of criminal ‘conspiracy. By the provisions of the definition Section of the Penal Code even if one person is capable of agreeing with himself to commit or cause to be committed or done, an illegal act, such agreement itself, does not amount to and cannot be called criminal conspiracy which is an agreement between two or more persons.
One person can only resolve, decide or promise himself to do or cause to be done an illegal act, but cannot so agree alone. Let me however point out that for the purpose of proof, it is not necessary in order to prove or establish the offence of conspiracy that the conspirators should know each other so long as they knew of the existence of the intention or purpose of the agreement between themselves. See OYEDIRAN v. REPUBLIC (1967) NWLR 122. In addition, by the provisions of Section 11(1) of the Evidence Act, once the agreement between conspirators is shown to exist, evidence admissible against one conspirator, is also admissible against the other or others. The provisions are as follows:-
“11(1) Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong, anything said, done or written by any one of such persons in execution or furtherance of their common intention, after the time when such intention was first entertained by any of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it; but statements made by individual conspirators as to measures taken in the execution or furtherance of any such common intention are not deemed to be relevant as such as against any conspirators, except those by whom or in whose presence such statements are made.”
See QUEEN v. ENAHORO (1965) NWLR 265.
The Appellant, one Sunday Awe and other person at large were alleged to have agreed to do the illegal act of robbing Simon Ugwu and members of his household of their money and valuables thereby committing the offence of criminal conspiracy punishable under Section 97(1) of the Penal Code. So the Appellant was not alleged to have committed the offence alone but in concert with Awe and the other person at large. The charge is therefore that two or more persons had agreed to do the illegal act of committing robbery.
In the Appellant’s submission on the issue it is not even suggested that there was no evidence to prove the requirements of the offence of conspiracy listed out earlier, beyond reasonable doubt as required by law.
The only point canvassed on the issue by the learned Counsel for the Appellant is whether it is right to convict the Appellant for the offence after one of the persons with whom he was charged was discharged when the charge was discontinued against him by the Attorney General of Kogi State. As far as the issue is concerned, learned Counsel is not challenging the admissibility, cogency, probative value or sufficiency of the evidence adduced by the prosecution against the Appellant on the charge of conspiracy. Put another way, learned Counsel is not complaining that the charge of conspiracy has not been proved beyond reasonable doubt by the prosecution, but whether the conviction of the Appellant was right in view of the fact that he was convicted alone. As seen earlier, learned Counsel had primarily relied on the decisions by the Supreme Court and this Court that a person cannot conspire alone and so when co-accused were discharged and acquitted for the offence, an accused person cannot be convicted alone of the same offence.
Let me point out that by the definition of the offence of conspiracy, it is beyond viable argument that it takes two or more persons to agree for the offence to be committed. It is therefore a restatement of the requirements of Section 97(1) of the Penal Code by Ogbuagu, JSC in the case of SULE v. STATE (supra) when he said:-
“It takes two to conspire.”
Since it takes two or more people to conspire, it follows therefore that a single person is in law incapable of agreeing alone and so cannot properly be charged with let alone be convicted of the offence of conspiracy. It should be noted that the principle of law laid down in the cases cited by the learned Counsel for the Appellant on the issue is that where a trial court had on proper evaluation of the evidence against two people charged with the offence, it comes to the conclusion that the offence has not been proved beyond reasonable doubt against one and so consequently discharges and acquit him, it cannot convict the other of the offence based on the same evidence. The principle in the cases clearly envisages a trial in which there was a full assessment of the quality and credibility of the evidence adduced by the prosecution in proof of the offence against the two people charged. The principle is not a blanket one to be applied to all cases irrespective of the peculiar facts and circumstances that may present themselves in an individual case.
This was recognized in the case of SULE v. STATE when Ogbuagu JSC said at page 63 paragraphs E-F that:-
“However each must be considered on its own facts.”
The peculiar facts and circumstances of the Appellant’s case include
(a) that Appellant was charged for the offence of conspiracy along with Sunday Awe and others at large.
(b) that Appellant had made a confessional statement to the police admitting the offence and giving specific material details of the agreement.
(c) that the charge against Awe was withdrawn by the Attorney General of Kogi State and so terminated by the High Court.
(d) that the said Sunday Awe was not discharged and acquitted of the offence by the High Court after evaluation of the evidence adduced by the prosecution.
These facts in my respectful view make the Appellant’s case different from those in the cases cited by the learned Counsel on the principle of law that a person cannot be convicted of the offence of conspiracy alone.
As seen above the Appellant was charged along with Sunday Awe and other person at large and even though the charge was withdrawn against Awe, the law is that conspiracy may be committed with persons known and named as well as persons unknown. See: QUEEN v. OSEGE (1962) 1 ALL NLR 110; ADEBAYO v. STATE (1987) 2 NWLR (57) 468 at 482. So the fact that the charge was against other person at large in addition to Sunday Awe against whom it was withdrawn, shows that the Appellant was not alone but had agreed with that other person to commit the illegal act of robbery, with which they were charged. But though the Appellant was not alone in the charge, what was the evidence used and relied on by the High Court to convict him of the offence of conspiracy?
This is what the High Court had said in its judgment, particularly at page 53 of the record of appeal:-
“This case is mainly based on the confessional statement of the accused person and the evidence of PW1 who is the investigating police officer in this case,”
and then concluded at page 55 of the record that:-
“I therefore agree with the submission of learned Counsel for prosecution that the court can convict on the confessional statement of the accused person Alone. I hereby resolve issue 2 against the accused person and hold that the prosecution has proved its case beyond reasonable doubt against the accused person.”
Put in brief, the High Court used and relied on the confessional statement of the Appellant and the evidence of PW1 to convict him for the offence of conspiracy.
I am aware of the decision of this Court in the case of ADEBAYO v. STATE (supra) where relying on the case of FAYEMI v. ATTORNEY GENERAL, WESTERN NIGERIA (1966) ALL NLR 186 at 188 paras. C-D it had held at page 480 paras. D-E that an accused person cannot be convicted of conspiracy to commit an offence on the strength of his own confession alone unless there is an independent evidence that at least one other person has conspired with him. The import of that position is that a trial court cannot properly convict an accused person of the offence of conspiracy on the basis of his own confession alone without independent evidence of his agreement with at least one other person.
We are however aware of the established principle of law that a confession which satisfied the requirements of Section 27(1) and (2) of the Evidence Act is sufficient without more to ground the conviction of the maker of the offence charged in a trial.
But as a matter of practice, the courts have over the years insisted that for the confessional statement to be made the only basis for the conviction of an accused person, there should be other evidence which shows that it is true and consistent with other ascertained facts which had been proved.
See:- NJOKU v. STATE (1972) 2 SC, 53.
NTAHA v. STATE (1972) 4 SC, 1.
IDOWU v. STATE (1998) 13 NWLR (582) 391, AKPAN v. STATE (2000) 4 NWLR (654) 559, AKINMOJU v. STATE (2000) 6 NWLR (662) 608, KAZA v. STATE (2008) 7 NWLR (1085) 125, UWAGBOE V. STATE (2007) 6 NWRL (1031) 606.
The principles guiding the assessment of a confessional statement for the purpose of ascribing appropriate value to it in a given case, include:-
(a) whether there is anything outside it to show that it is true.
(b) Whether the statement is in line or consistent with other facts in the case which are not disputed.
(c) Whether the accused had an opportunity which he used in committing the offence.
(d) Whether there is other evidence which support the confession.
See: AKPAN v. state (1992) 6 NWLR (248) at 460, IKPASA v. A.G. BENDEL STATE (1981) 9 SC. 7.
In the Appellant’s case, the High Court had in addition to the confessional statement of the Appellant in which he gave the essential details of the agreement between him and the other conspirators named therein, also considered the evidence of PW1 which showed that it was based on the information from the Appellant, that Sunday Awe was arrested in connection with the offence with which the two of them were eventually charged before the High Court. The evidence of PW1 which was not effectively controverted also revealed that the car used by the Appellant and the other conspirators used in furtherance of the agreement to commit robbery was recovered at his in-law’s house.
The evidence of the witness has shown facts which leave no doubt that the Appellant had indeed agreed or conspired with the other people to commit the illegal act of robbery. By the provisions of Section 29 of the Evidence Act, where information is received from an accused person and as a result of such information any fact is discovered, the discovery of that fact together with the evidence of the discovery in consequence of the information received from the accused Person is admissible evidence.
The provisions of the Section are as follows:-
“Where information is received from a person who is accused of un offence, whether such person is in custody or not, and as a consequence of such information any fact is discovered, the discovery of that fact, together with evidence that such discovery was made in consequence of the information received from the accused, may be given in evidence where such information itself would not be admissible in evidence.”
So evidence on the discovery of facts based on the information given by an accused person is admissible independent of the confession of an accused person from which the discovery of the fact was made. The evidence of PW1 falls squarely within the purview of the above provisions and so in the circumstance provided the independent support that the confession of the Appellant was true in all probabilities that he along with the other people named therein had conspired to commit the offence of robbery. See: KAREEM V. STATE (2002) 8 NWLR (770) 664 at 683, FATILEWA V. STATE (2007) ALL FWLR (347) 695 at 711.
The facts disclosed are consistent with and made the Appellant’s confessional statement true to warrant or ground the conviction of the Appellant for the offence of conspiracy.
For that reason, my finding on the issue is that the High Court was right to have convicted the Appellant for the offence of conspiracy even though the charge against Sunday Awe was withdrawn and terminated.
The said Sunday Awe was not discharged and acquitted by the High Court after an evaluation of the evidence adduced by the prosecution as erroneously stated in the Appellant’s brief of argument. The issue is resolved against the Appellant.
The next issue for determination is Appellant’s Issue 2, which is whether the High Court was right in convicting the Appellant on the uncorroborated confessional statement of the Appellant. The learned Counsel for Appellant had conceded in his submissions on the issue that an accused person can be convicted solely on his confessional statement admitted in court, but said that the superior courts have always warned that trial courts should look for corroborating circumstances before convicting on such confession. Learned Counsel then set out a portion of the evidence of PW1 which appears at page 19 of the record of appeal and raised or posed questions which he did not answer on whether the Appellant’s statement was a confession and voluntary.
In order to avoid the waste of precious time and verbiage, I wish to point out that there is no ground of appeal on the Appellant’s notice of appeal which challenges or complain/s of the nature and voluntariliness of the Appellant’ s statement.
The High Court had in its judgment particularly at pages 49 and 50 of the record of appeal respectively held thus:-
“In this case, the sole witness for the prosecution is the Investigating Police Officer in this case and it is through him that the cautional statement of the accused person to the police was tendered and admitted which is Exhibit “A” before this Court I find and hold that Exhibit “A” is confessional in nature” and page 50:-
“I therefore hold and find that the issue of the voluntariliness of the cautional statement of the accused person to the police was raised belatedly in this case.
I therefore resolve the first issue as formulated by the Court against the accused person.”
The apparent import of the above findings by the High Court is that the Appellant’s statement admitted in evidence at the trial as Exhibit ‘A’ was a confessional statement and that it was voluntary.
These are specific findings by the High Court on the confessional nature of the statement made by the Appellant in respect of the offences with which he was charged and its being voluntary which have not been attacked or challenged by the Appellant in the grounds contained in the notice of appeal filed against the judgment of the High Court. Put simply, the Appellant did not appeal against those specific findings made by the High Court in the judgment appealed against. Can the Appellant through the learned Counsel then be heard in the brief of argument to raise and argue against the said findings? The known position of the law is that a party or appellant who has not appealed against specific findings by a trial court cannot be heard at the hearing of an appeal to attack or even attempt to fault such findings which bind him. See STATE v. EDO (1991) 7 NWLR (201) 98.
The Supreme Court in the case of OKOTIE-EBOH v. MANAGER (2004) 11-12 SC 17 4 did not mince words on the position of the law when it held at page 193 that:-
“It is trite law that a finding against which there is no appeal remains binding and conclusive.”
Similarly, the apex Court had reaffirmed the position in the case of N.B.C.I. v. INTEGRATED GAS LTD. (2005) 1 SC (Pt. 1) 133 at 140 when it said that:-
“Where a party has not appealed against a finding of the trial court or the Court of Appeal, he cannot be heard to question that finding on appeal.”
See in addition, DABUP v. KOLO (1993) 9 NWLR (317) 254 at 269, UKOH TRADING CO. v. ABERE (2001) 5 SC (Pt.II) 64. DABO v. ABBULLAHI (2005) 2 SC (Pt. 1) 75 at 91.
IDIOK v. STATE (2006) ALL FWLR (333) 1788 at 1801.
In the premises of these authorities, learned Counsel cannot be heard now on the questions whether the Appellant’s statement was a confession or whether it was a voluntary confessional statement. Furthermore, the record of the appeal shows at page 21 that when the statement of the Appellant was tendered in evidence by the prosecution at the trial, the learned Counsel for the Appellant did not object to it admission in evidence at all.
Because litigation is not a game of tricks and a game of vain rhetoric but rather should or better still, is a straightforward legal matter in judicial adjudication parties are expected and have a duty to place their cards openly and sincerely before the court to enable it to fairly exercise its jurisdiction in deciding a case one way or the other.
A situation where one party admits a particular position at the trial court on which findings were made by that court about which again, the party did not complain in an appeal, only for the party to now clandestinely on appeal attempt to spring a surprise by raising the same position, is not one of reciprocal sincerity but one meant manifestly to spring a surprise. The purpose of such an attitude is to attempt to regain at the swing, what was lost by admission, at the roundabout. This is not acceptable in law and would not be permitted by the courts.
Be that as it may, it was further submitted by the learned Counsel on the issue that though PW1 had testified that a locally made pistol was recovered at the scene of the alleged crime and a car used in the commission of the offence recovered, none of them was tendered in evidence. He said that from the surrounding circumstances, the High Court should not have relied on the Appellant’s confessional statement even though admitted without objection “since there was no scintilla of evidence to corroborate it”. The case of YUSUF v. STATE (1976) 6 SC, 167 at 173 was cited as authority and it was submitted that there was no strand of independent evidence that could have made the confessional statement of the Appellant true. We were urged to resolve the issue in favour of the Appellant.
For the Respondent it was submitted on the issue that the law is that a confession alone and without the need for other corroborative evidence is sufficient to sustain a conviction so long as the court is satisfied with its truth. The cases of:
YUSUF v. STATE (supra) at 173; OKEAGBU v. STATE (1984) 8 SC. 65; OGUGU v. STATE (1990) 2 NWLR (134) 539. KEM v. STATE (1992) 4 NWLR (233) 17.
ODEH v. FRN (2008) 13 NWLR (1103) 1 at 27 and NWACHUKWU v. STATE (2007) 17 NWLR (1062) 31 at 69 were relied on for the submission. We were urged to hold that the Appellant’s statement alone without any need for corroboration, is enough for the conviction by the High Court. Further, relying on the case of TANKO v. STATE (2008) 16 NWLR (1114) 597 at 628, it was argued that the corroboration even when required is of some evidence of circumstances no matter how slight which make it probable that the confession was true. It was further submission by learned Counsel that the evidence of PW1 had provided the required corroboration which the High Court found sufficient to make it probable that the Appellant’s statement was true.
Now, like I have stated earlier on whilst dealing with Issue I that the position of the law on the authority of the cases cited is that a confessional statement which was unequivocally made voluntarily by an accused person and which is direct, positive and cogent is alone without more sufficient to ground a conviction of the offence which was admitted therein. This is the law stated by the Supreme court in the case of ACHABUA v. STATE (1976) 12 SC 63 at 68 when it held that:-
“It is settled law that confession alone is sufficient to support conviction without corroboration so long as the court is satisfied of the truth of the confession.”
See also: R v. NWIGBOKE (1959) SCNLR, 248; AKPAN v. STATE (1987) 5 SCNJ 112; EGBOGHONOME v. STATE (1993) 7 NWLR (306) 383, in addition to the other cases already cited on the point before now. It must be realized that in criminal trials, there cannot be better evidence in respect of the person responsible for the commission of an alleged crime or offence in a charge than a statement by an accused person made and given freely to police officers during the course of investigation of the crime or offence, which openly and expressly say and not only suggest that the maker had committed the crime or had actively participated in the commission of the offence or crime. MOHAMMED v. STATE (2007) ALL FWLR (383) 46060.
Once such a statement which under Section 27(1) of the Evidence Act is called confession, is found to have been voluntarily made and that it is unequivocal and directly relate to the crime or offence with which the maker was charged or accused, all or every reasonable doubt would clearly be eliminated and would not exist as to who was responsible for the commission of such a crime or offence. Such a statement would show with certainty which is an essential element of proof in criminal liability, that it was the maker either alone or along with others that in fact committed the crime or offence with which he was accused. Because in law such statement binds him alone, having expressly and freely owned up responsibility for the commission of the crime or offence, it would leave room for any real reasonable doubt in the case as to the proof of the crime or offence as far as he was concerned. The requirement of the law on the standard of proof in criminal cases as prescribed in the provisions of Section 138(1) of the Evidence Act would have been completely and fully satisfied by such a confession as to warrant a conviction of the maker based on it alone. It may need be remembered that the requirement of proof is not beyond all shadow of doubt but beyond doubt that is reasonable in the circumstances of a given case. The requirement that a confessional statement needs corroboration or support by independent evidence was evolved by the courts in their efforts to ensure that the standard of proof beyond reasonable doubt was met by the prosecution. But in situations where a voluntary confession leaves no avenue for the existence of such doubt that is reasonable in the peculiar circumstances of a case, the requirement of some outside or independent evidence as corroboration in my respectful and firm view would be beyond the requirement of Section 138(1) of the Evidence Act and therefore unnecessary.
Since the law supports conviction on a confession alone in appropriate and proper cases, my finding is that the unequivocal, express and direct admission by the Appellant that he committed the offences with which he was charged before the High Court, in his statement which was admitted at the trial as Exhibit ‘A’ , that court was right to have so convicted him on the statement alone. Corroboration is not sine quanon in the Appellant’s case and was/is unnecessary in law. Perhaps it should be pointed out that throughout the trial and even in the notice of appeal, there was no challenge whatsoever as to the truth of the Appellant’s statement that would warrant the requirement of an independent evidence to support or make it probable that it was true before a conviction can be founded on it. The truth of the Appellant’s confessional statement was never challenged at all throughout the trial as the only futile attempt made belatedly by the Appellant was to disclaim, disown or retract the statement.
But the above apart, even if such corroboration was needed, the uncontroverted evidence of PW1, who personally investigated or took part in the investigation of the offence with which the Appellant was charged, provided enough support to make it probable that the Appellant’s statement was true.
The witness had testified that it was the Appellant in his statement which the witness personally recorded, that gave graphic details of the conspiracy and the actual commission of the offence of robbery. That it was the Appellant that physically led the witness to the houses of the people named by the Appellant and from where Sunday Awe was arrested and charged along with him and later through Awe the Toyota vehicle used in the commission of the crime was recovered at the house of the Appellant’s father in-law at Agaliga-Imane in Olamaboro Local Government.
These vital and crucial facts were not challenged during cross examination of the witness by the Counsel for the Appellant at the trial.
Would these cogent facts and evidence of them given by PW1 not make it definitely probable that the statement of the Appellant in Exhibit ‘A’ was undoubtedly true? I do not hesitate to say and hold that the evidence of the facts given by PWI had given a complete and direct picture of what actually happened or took place about the offences which he personally investigated and which amply ossified the statement of the Appellant. The evidence of the PWI consequently had provided independent evidence outside the Appellant’s confessional statement which renders its truth extremely or highly probable under the provisions of Section 29 of the Evidence Act set out earlier.
The High Court was therefore right to have used it as providing the corroboration needed to ground the conviction of the Appellant.
In the result, I resolve the Issue 2 against the Appellant.
Issue 3 of the Appellant is whether the trial Judge was right in relying on the hearsay evidence of PW1 who was never an eye witness to the alleged crime. The submissions by the learned Counsel for the Appellant on this issue are that the evidence of PW1 was hearsay since he did not arrest the Appellant at the scene of the crime and the police officer who arrested the Appellant was not called as a witness at the trial. He relied on the statement in the case of EKPO v. STATE (2001) 7 NWLR (712) 304 that:-
“Evidence of an investigating police officer called to testify as to the admission by another witness who is not called to give evidence is no more than hearsay evidence and is distinguishable from the evidence of a police witness about what he saw and observed which is not hearsay,” as authority for the submission. He urged us to resolved the issue in Appellant’s favour.
For the Respondent it was submitted that the evidence of PW1 was/is not hearsay and that the case of EKPO v. STATE (supra) was not applicable and so irrelevant because PW1 did not testify as to the truth of a statement by a person who was not called as a witness in the case. In further argument, learned Counsel for the Respondent said the evidence given by PWI was what was within his personal knowledge acquired in the course of his cuties as the investigating police officer, relying on: AROGUNDADE v. STATE (2006) 6 NWLR (1136) 165, KATE ENTERPRISES LTD. v. DAEWOO NIG. LTD. (1985) 2 NWLR (5) 116.
He contended that by the authority of TANKO v. STATE (supra) a court can convict on the evidence of a single witness in a charge of armed robbery which is not one of the offences that require corroboration. In addition, that since the High Court believed the evidence of PW1 after assessing it, it was right to have acted on it in convicting the Appellant and we were urged by learned Counsel to so hold.
The term “hearsay” has not been used in the Evidence Act which is the Statute that governs and regulates admissibility of evidence in all a judicial proceedings in the courts of record in Nigeria. As a result, one cannot find the definition of the term in the Act because it is not there.
However the rule in respect of what has become known in judicial parlance as “hearsay evidence” like most of our other principles of law, has its roots in the common law principle that where a witness in his own testimony in court repeats a statement oral or written made by another person in order to prove the truth of the facts stated therein, such testimony is treated as hearsay and not permitted or allowed to be used in judicial proceedings. It is therefore a fundamental rule of evidence at common law that hearsay evidence is not admissible. In criminal trials in particular, to prove that an accused person had committed an offence, evidence of a witness that he heard or read that someone else had said that the accused person had committed the offence would clearly be hearsay and so inadmissible in evidence in proof of the offence against the accused person. For a statement to be hearsays evidence, its source, origin or author must be a person other than the witness saying or repeating it in court and the purpose of tendering it must be to prove that the facts asserted in the earlier statement, are true. That was the principle enunciated in the case of SUBRAMANIAM v. PUBLIC PROSECUTOR (1956) 1 WLR 965 when the Privy Council stated thus:-
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not he 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 admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
From the above principle it would appear clearly that hearsay evidence imports the purpose for which it is intended to be given and not the quality of the evidence itself.
Even though the term hearsay has not been employed in the enactment of the Evidence Act, the principle as obtains at common law and set out in the above case has been incorporated in the Act vide the provisions in Section 77.
The Section Provides thus:-
“77. Oral evidence must, in all cases whatever, be direct –
(a) If it refers to a fact which could be seen, it must be the evidence of a witness who say he saw that fact;
(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;
(c) If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that –
(i) the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or can not be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable;
(ii) If oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks -fit, require the production of such material thing for its inspection, or may inspect or may order or permit a jury to inspect any movable or immovable property, the inspection of which may be material to the proper determination of the question in dispute and in the case of such inspection being ordered or permitted, the court shall either be adjourned to the place where the subject matter of the said inspection may be and the proceedings shall continue at that place until the court further adjourns back to its original place of sitting or to some other place of sitting, or the court shall attend and make an inspection of the subject-matter only, evidence, if any, of what transpired there being given in court afterwards; in either case the accused, if any shall be present.”
In the interpretation and application of the principle of hearsay evidence as embodied in the above Section, Tobi, JSC in the case of OJO v. GHARORO (2006) ALL FWLR (316) 177 at 218-219 in his usual erudition had said that:-
“Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests, also, in part, on the veracity and competence of some other person. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify.”
See also: OJIAKO v. STATE (1991) 2 NWLR (175) 578; UTTEH v. STATE (1992) 2 NWLR (223) at 273; BUHARI v. OBASANJO (2005) SC (Pt. 1) 1; AROGUNDARE v. STATE (2009) 2 MJSC (Pt. 1) 1.
With a now clear view of what hearsay evidence is in law, the question I ask now is whether the evidence given by the PW1 at the trial of the Appellant before the High Court is hearsay?
I should point out that the record of the appeal show clearly and so it is beyond dispute that the said PW`, one Inspector Godwin Aaron of the Nigeria Police State CID, Lokoja, Kogi State was called to give and in fact gave evidence as the police officer who investigated or participated in the investigation of the offences the Appellant was charged with. His evidence which appears at pages 18-22 of the record of the appeal was throughout in the first person; that is from his personal knowledge of what he himself did in the course of his investigation of the offences the Appellant was accused of. The evidence he gave was first hand, from the information he recorded from the Appellant himself in his own hand writing and what he saw in the course of his investigation at the places physically visited by him. His testimony is the direct account of what he heard, saw and did personally and not through someone else, in the course of his investigation. Such evidence cannot seriously be said to be hearsay under the provisions of Section 77 of the Evidence Act or within the purview of the principle as enunciated in the cases cited above. The evidence did not attempt to prove the truth of a statement by a person who was not called to testify but stated precisely what PW1 himself heard, perceived and saw on the commission of the offences by Appellant during his investigations. It is for that reason that the submission by the learned Counsel for the Appellant that the evidence of PW1 was hearsay is clearly misconceived and erroneous in law. I have no difficulty whatsoever in finding that no merit exists in such submission and resolving the issue against the Appellant.
The last of the Appellant’s issue is Issue 4 as amended by the Court.
For ease of reference it is – whether the learned trial Judge was right to have convicted the accused having regard to the evidence adduced at the trial.
The submissions for the Appellant are that suspicion cannot take the place of legal proof and a court should therefore act on evidence so as to ensure that justice in its purest form is administered. According to him, relying on MILLAR v. STATE (2008) 8 NWLR (927) 236 and EMINE v. STATE (1991) 7 NWLR (204) 408. courts are enjoined especially in criminal cases to be sensitive enough in attaching weight to evidence adduced before them. He argued that the prosecution in the Appellant’s case had not called any of the handful of witnesses to prove the offences charged and a great vacuum is left considering the watery and unacceptable evidence on which the High Court convicted the Appellant.
It was then argued that the evidence adduced by the prosecution is not enough to prove the offences against the Appellant beyond reasonable doubt and we were urged to resolve the issue in favour of the Appellant.
The learned Counsel for the Respondent on his part said that the evidence of PW1 and the confessional statement of the Appellant which the trial High Court believed had proved the offences beyond reasonable doubt against the Appellant. He then adopted all the previous submissions made in respect of his Issue No. I as contained in paragraphs 5.1 to 5.20 of the Respondent’s brief and urged us to hold that the High Court was right to have convicted the Appellant on the evidence before it.
Learned Counsel for the Appellant is right when he said that suspicion, no matter how strong, cannot ground a conviction and so a court of law is expected to base its decision to convict an accused person only when it was satisfied that the evidence adduced by the prosecution has proved the offence against an accused beyond reasonable doubt as required by law. See:
OHUKA v. STATE (1988) 7 SC. (Pt.II) 25 at 37.
EMINE v. STATE (supra), OMANGA v. STATE (2006) ALL FWLR (306) 930.
ADIO v. STATE (1986) 2 NWLR (24) 581. In OKAFOR v. STATE (2000 ALL FWLR (318) 719, this Court had this to say on whether suspicion amounts to proof in criminal trials at page 728:-
“Suspicion however great is not legal evidence, and will not amount to proof,”
However the question that arises is whether the High Court used or relied on mere suspicion to convict the Appellant of the offences charged?
Judicially, the word suspicion has been defined to mean a mere feeling or thought that someone is guilty of something. In criminal trials, suspicion is the feeling or thought without factual proof that someone is guilty of an offence or crime. The absence of an actual factual basis for the feeling or thought in a person in respect of another is what amounts to suspicion.
Was the confessional statement by the Appellant and the evidence of PW1 as the totality of the evidence adduced before the High Court against the Appellant by the prosecution in the class of a mere feeling or thought by anybody without any factual basis that the Appellant had committed the offences he was charged with? To start with, the voluntary confessional statement which was found by the High Court to be true has gone beyond the realm of a feeling or thought by another person against the Appellant. The statement is from the horse’s mouth, so to say, giving details that can only come from a person who factually had participated in the commission of the offences charged so as to be in a position to narrate them with such precision and exactitude as reflected in the Appellant’s statement. It was based on the factual basis of the Appellant’s statement that PW1 was able to conduct investigations which led to the arrest of Sunday Awe and recovery of the vehicle used by the Appellant and his comrades in crime at his in-law’s house as demonstrated in the evidence of PW1. Coming from the Appellant himself, the statement which I have found elsewhere in this judgment to be direct, positive and cogent, is proof that is beyond reasonable doubt the Appellant had committed the offences he was charged with. So rather than being mere suspicion, that statement alone is of strong and sufficient quality to amount to proof as required by law against the Appellant and therefore ground his conviction by the High Court for the offences he was charged with.
In fact I have observed that the learned Counsel for the Appellant had not even attempted to impugn the potency and force of the evidence against the Appellant but lamely made general submissions of law on suspicion without any specific reference to the confessional statement of the Appellant. Let me remind learned Counsel that the prosecution was not required by law to call any particular witness or a host of witnesses in a criminal trial. The law is also common knowledge now that the evidence of single witness which is sufficiently probative of the offence and with which the trial court is satisfied can validly ground the conviction of an accused person even where he had denied the commission of the offence charged let alone in a situation such as that of the Appellant who had without any equivocation freely admitted taking part in the commission of the offences he was charged with. See: UDOFIA v. STATE (1981) 11-12 SC. 49 at 63; SAIDU v. STATE (1982) 13 NSCC. 70 at 82; BABUGA v. STATE (1990 7 M.A.C. 165 at 181; OLADIMEJI v. STATE (1998) 11 NWLR (513) 189; ODUNEYE v. STATE (2001) 2 NWLR (69) 311; NWANBE v. STATE (1995) 3 SCNJ, 77 at 95.
So although the burden on the prosecution is to prove its case against the Appellant beyond reasonable doubt, the prosecution has discretion to call only those witnesses required to fold its case and satisfy the trial High Court that the evidence adduced had met the required standard of the proof.
The law does not impose a duty on the prosecution to call all available witnesses, a host or number of witnesses or indeed any particular witness in the discharge of the burden of proof placed on it by the law.
(See: ADAJE v. STATE (1979) 6-9 SC. 18 at 28; OKONOFUA v. STATE (1981) 6-7 SC. 1 at 18).
In OGBODU v. STATE (1980 5 NWLR 294 this Court had held thus:-
“There is no requirement of the law for the prosecution to cull all eye-witnesses to the incident All that the prosecution need do is to call enough material witnesses in order to prove its case.”
See also ADAJE v. STATE (1979) 6-9 SC. 18 at 28; OKONOFUA v. STATE (1981) 6-7 SC. 1 at 18; KIM v. STATE (1992) 4 NWLR (233) 17; AKPAN v. STATE (supra).
In the above circumstances the totality of the evidence produced before the High Court by the prosecution against the Appellant was direct, positive, unequivocal, cogent and compelling such that it irresistibly leave no doubt that is reasonable in the circumstances of the case that the Appellant was guilty of the offences with which he was charged. The prosecution had therefore proved its case against the Appellant as required by law; beyond reasonable doubt and so the High Court was right to have convicted him of the offences charged.
I find no merit in the submissions by learned Counsel for the Appellant on the issue which as a consequence, is resolved against the Appellant.
In the final result, with the resolution of all the four (4) issues submitted by the learned Counsel for the Appellant against the Appellant, the appeal is left devoid of merit. All the grounds of the appeal fail and the appeal is accordingly dismissed by me.
The conviction of the Appellant by the Kogi State High Court in its judgment delivered on 2/7/09 in case No. OHC/1C/2009 is hereby affirmed.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the lead Judgment of my learned brother MOHAMMED LAWAL GARBA, JCA, just delivered and I agree entirely with the reasons given therein and the conclusions reached. I am also of the view that there is no merit in the appeal and it is dismissed by me.
REGINA OBIAGELI NWODO, J.C.A.: I have had the opportunity to read before now, the judgment of my learned brother MOHAMMED LAWAL GARBA, JCA, just delivered.
For the reasons set out therein, I am in full agreement with him that the appeal is devoid of merit. His lordship has dealt extensively on the issues raised and just for emphasis I wish to restate the settled law that once a confession is voluntarily made by an accused and the voluntariness is direct and unequivocally related to the offence for which he is charged, the confession is sufficient to support conviction without corroboration. Once the court is satisfied with its truth. The duty on the court is to satisfy herself of the truthfulness of a confession by examining it in the light of the other credible evidence before the court.
See R. Nwieboke (1959) SCNLR, 248.
Akinmoju v. the State (2000) 4 SC (Pt.64).
Solola v. State (2005) II NWLR (Pt.937) 460 SC
I adopt the full reasoning in the leading judgment as mine and dismiss this appeal. I abide by the consequential order.
Appearances
Rotimi Ojo and Isaac FolorunsoFor Appellant
AND
Ayodele AkintundeFor Respondent
