HALIM v. STATE
(2022)LCN/16773(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/AS/126CA/2017
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
CHELYNOR HALIM APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE PROPER TIME TO OBJECT TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT
In the case of Mbang v. State (2013) 7 NWLR (Pt. 1352) 48, 70–71, the Supreme Court held that the proper time to object to the admissibility of a confessional statement on the basis of involuntariness is at the time the prosecution seeks to tender it and that it is too late to raise the issue at the defence stage. This position has been the consistent position of the Courts of this clime over the years. See Queen v. Itule (1961) ALL NLR 462, 484, Eke v. State (2011) LPELR–1133 (SC), Shande v. State (2005) 12 NWLR (Pt. 939) 301, 315 State v. Salawu (2011) 18 NWLR (Pt. 1279,) 883, 905, Nsofor v. State (2004) 18 NWLR (Pt. 905) 292, 307–309, Abdullahi v. State (2013) 11 NWLR (Pt. 1366) 435, 451, Nwachukwu v. State ((2004) 17 NWLR (Pt. 902) 262, 273, State v. Ibrahim (2019) 8 NWLR (Pt. 1674) 294, 301, Usman v. State (2019) 15 NWLR (Pt. 1696) 411, 420 and Afuape v. State (2020) 17 NWLR (Pt. 1754) 301, 412. PER EKANEM, J.C.A.
THE POSITION OF LAW ON CONDUCTING A TRIAL-WITHIN-TRIAL IN RESPECT OF A CONFESSIONAL STATEMENT
A trial-within-trial in respect of a confessional statement can only be held if the accused person objects to the admission of the statement at the time it is to be tendered in evidence on the ground that it was involuntarily made. See FRN v. Iweka (2013) 3 NWLR (Pt. 1322) 313. The Evidence Act, 2011 has not altered this position of the law. PER EKANEM, J.C.A.
WAYS OF RETRACTING A CONFESSIONAL STATEMENT
It seems to me that appellant’s counsel failed to draw a distinction between two ways of retracting a confessional statement, to wit;
a. By the accused person stating that he did not make the statement, or:
b. By the accused stating that he made or signed the statement but not voluntarily.
See Ishaya v. State (2019) 4 NWLR (Pt. 1661) 76, 92.
In respect of the first mode, the trial Court would admit the statement and the question whether the accused person made it or not is to be determined at the conclusion of the trial. See Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501, 521 and Akeem v. State (2017) 18 NWLR (Pt. 1597) 311, 339 – 340.
The second mode calls for a trial-within-trial and includes a statement obtained by oppression of the person who made the statement or if it was made in consequence of anything said or done which was likely, in the circumstances existing at that time, to render unreliable any confession which might be made by him in such consequence. See Section 29 (2) (a) and (b) of the Evidence Act, 2011. The accused person or, his counsel, if he is represented by counsel, is to object to the admission of such statement at the time the prosecution seeks to put it in evidence and not thereafter. The Court may suo motu require the prosecution as a condition for admitting the statement to prove that the statement was not obtained in the manner mentioned in sub-sections (a) and (b). This is to be done at the stage that the statement is to be tendered in evidence. See Section 29 (3) of the Evidence Act, 2011. The Court will not exercise this power arbitrarily but only when it appears to it to be necessary. In other words, the power is not to be exercised by the Court whimsically but judicially and judiciously. There was no reason for the trial Court to exercise that power given to it by sub-section (3) in this instance. PER EKANEM, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
The burden of proof that the appellant committed the offences charged was on the prosecution and the standard of proof is proof beyond reasonable doubt. The phrase “proof beyond reasonable doubt” means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond the shadow of a doubt. It implies a degree of compulsion that is consistent with a high degree of probability. If the evidence against the accused person is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, “of course it is possible but not in the least probable”, the case would have been proved beyond reasonable doubt. See Miller v. Minister of Pensions supra, Jua v. State (2010) LPELR–1637 (SC), Afuape v. State, supra, and Philip v. State (2019) 13 NWLR (Pt. 1690) 509, 534. PER EKANEM, J.C.A.
INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY
To establish the offence of armed robbery, the prosecution must prove beyond reasonable doubt that:
1. There was a robbery or series of robberies.
2. Each robbery was an armed robbery.
3. The appellant was the robber or one of those who took part in the robberies.
See Bozin v. State (1985)7 SC 450, 477. PER EKANEM, J.C.A.
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): The appellant was the 1st accused person in charge No. A/55C/2014 upon which he stood trial before the High Court of Delta State holden at Ogwashi-Uku (the trial Court) for the offences of:
1. Conspiracy to commit armed robbery punishable under Section 1 (2) (a) of the Robbery And Firearms (Special Provisions) Act Cap R 11 Vol 14 Laws of the Federation of Nigeria, 2004.
2. Armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R 11 Vol 14 of the Laws of the Federation of Nigeria, 2004.
3. Assault punishable under Section 351 of the Criminal Code Law Cap 21 Vol. 1 of the Laws of Delta State, 2006.
4. Kidnapping punishable under Section 3 (1) (a) of the Delta State Anti-Kidnapping and Anti-Terrorism Law, 2013.
The appellant and the co-accused person pleaded not guilty to the charge and the prosecution, to prove its case, called two witnesses, PW1 (who works with the State Security Service) and PW2 (who testified as the victim of the offences). The prosecution tendered four exhibits. The appellant testified for himself and did not call any other witness.
After taking the addresses of counsel on both sides, the trial Court found that the prosecution had proved the four-count charge against the appellant and his co-accused person beyond reasonable doubt and accordingly sentenced them to death for the offences of conspiracy, armed robbery, and kidnapping. For the offence of assault, it sentenced them to one year imprisonment.
Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal which was subsequently amended by the leave of this Court. The amended notice of appeal incorporates ten grounds of appeal.
The facts of the case leading to this appeal, as presented by the prosecution, are that on the 9th day of February, 2014, the PW2, Osemene Nonso Joan, at about 9 am, was on her way to a bank, First Bank at Ogwashi-Uku, when she was approached by a woman who was crying bitterly. She gave her attention to her. In the course of their discussion, the appellant approached them, riding a motor-cycle. The weeping woman told the PW2 that she had goods from the Cameroons and requested her to help her to market the goods. She reluctantly followed the woman and the appellant volunteered and carried them on his motor-cycle. When she (appellant) noticed that they were taking her too far into the bush, she requested the appellant to stop but he refused and shouted at her. He then stopped and immediately she came down from the motor-cycle, the appellant pointed a gun at her and threatened to kill her if she shouted. The other woman slapped her and used a cloth that had a strong stench to cover her nose. She immediately became weak and they continued through the bush path. They got to an uncompleted building where they met a man whom she presumed to be the leader of the group and who ordered that she be blindfolded. He held her hand and took her into an inner room in the uncompleted building. When she tried to shout, he held her throat, threatening to kill her and he hit her with a metal object.
They thereafter collected her First Bank ATM card and the PIN number forcefully. Her Techno MS telephone and the sum of N10,000.00 were collected from her. They withdrew the sum of N55,000.00 with her ATM card from her account. Her ATM card was given back to her and she was left alone in the building. After about an hour, she noticed that the place was quiet and she struggled to untie herself and removed the blindfold, and escaped. She found herself in a bush close to the Ibusa Express Way by Oando petrol station. When she got to the Express Way, she saw a motor-cycle moving towards her and on getting closer, she saw that it was the appellant. On seeing her, he wanted to run away but she raised an alarm and passers-by helped in arresting him and he was handed over to the SSS at Asaba. The appellant made a statement that was confessional.
Appellant denied involvement in the crimes and testified that on 1st February, 2014, he was unlawfully arrested by the police and detained in prison for over two years.
In the appellant’s brief of argument settled by Jim O. Okadaso, Esq. three issues are distilled for the determination of the appeal, namely:
“1. Whether in the peculiar circumstance of this case, was exhibit A admissible in evidence? And if answered in the negative, was the trial Court not wrong in relying on it in reaching a verdict of guilty against the appellant on all counts charged? Grounds 5 & 6.
2. Whether having regards to the evidence proffered by the prosecution, was the trial Court right in holding that the prosecution proved its case against the appellant beyond reasonable doubt on all the counts charged? Counts 1, 2, 3, 4, 7 & 9.
3. Whether trial Court considered or properly considered the appellant’s defence before sentencing him to death? If answered in the negative, has this not occasioned a miscarriage of justice? Ground 8.
In the respondent’s brief of argument settled by Isaiah Bozimo, Esq. the Hon. Attorney-General and Commissioner for Justice, Delta State, a single issue has been formulated for the determination of the appeal, to wit:
“On an objective evaluation of the evidence, was the learned trial Court’s conviction and sentencing of the appellant correct? (Grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9)
I have examined the grounds of appeal and it seems to me that the grounds of appeal can be distilled into two issues for the determination of the appeal, that is:
1. Was Exhibit A rightly admitted by the trial Court?
2. Was the trial Court right in convicting and sentencing the appellant?
Issue 1…Was Exhibit A rightly admitted by the trial Court?
Appellant’s counsel straightaway gave a negative answer to the issue. Referring to the evidence of PW1, he submitted that from the evidence of the said witness, it could not be said that the statement of the appellant was voluntarily made. He gave an outline of the evidence of PW1 and noted that the phrase “interrogate” used by the said witness to describe his interface with the appellant indicates aggression, and, on that score, the statement could not be said to be voluntarily made. He referred to Section 29 of the Evidence Act, 2011 and submitted that it has caused a paradigm shift in the admissibility of confessional statements, namely; that a confession recorded as a result of “oppression of the maker” is involuntary and inadmissible. He stated that the trial Court erred in holding that the voluntariness of the statement was not in issue and that it sailed through without objection. He stated that there was indeed an objection to the admissibility of the statement as the trial Court’s attention was drawn to the fact that the appellant denied making the statement.
It was posited by him that the trial Court’s position may have been tenable under the Evidence Act of 2004 but not under the Evidence Act of 2011. He contended that trial Court failed in scrutinizing the confessional statement with the eyes of an eagle in determining its truth and admissibility, and that if it had done so, it would have rejected it given the testimony of PW 1. He argued that given the death of a person who was killed by the SSS in the course of looking for members of appellant’s alleged gang, he was told in a veiled language that the treatment meted out to the deceased awaited him if he failed to adopt Exhibit A. He argued that his position was underscored by the fact that though he was arrested on 9th February, 2014, he was not interrogated until 13th February, 2014 after the deceased was killed.
Counsel posited that the answer given by the appellant during interrogation by the PW1 cannot be the same as the one in Exhibit A and that it explains what he termed as “reported speech” in Exhibit A. He contended that the handwriting in the document gives out the writer of the statement as the person who signed in the place of the appellant. He further posited that a trial-within-trial should have been conducted to test the voluntariness of the statement.
Still arguing, counsel contended that the statement was inadmissible as it was tendered by the PW1 who was not its maker or the officer who obtained it.
For the respondent, it was the submission of the Honourable Attorney-General that it is improper for counsel to attempt to establish, not by proof but by his assertions, material facts concerning which the record is silent as the appellant did not offer any evidence at the trial to question the voluntariness of Exhibit A. He noted that appellant’s counsel did not object to the admissibility of the statement on the ground that it was made under duress; rather his contention was that the appellant did not make it. This he said did not require a trial–within–trial. He placed reliance on Eke v. State (2011) LPELR -1133 (SC).
At page 50 of the record of appeal is the following record of proceedings:
“Yes, I recorded the statements of the accused persons. If I see the statements and attestation forms, I will be able to recognize them. The documents shown to me are the statement and the attestation form of the 1st accused…
NWANNE: My Lord, we seek to tender the statements and attestation forms of the 1st and 2nd accused as exhibits.
OFIAELI: My Lord, the 1st accused said he did not write or sign anything, any statement. The statement shown to him is not his statement…
NWANNE: My Lord, the objection does not call for trial-within-trial. It is the weight to be attached to it. We urge my lord to admit the statements and attestation forms in evidence as exhibits.
OFIAELI: My Lord, I am not objecting.
COURT
The voluntariness or otherwise of the alleged statements of the 1st accused is not in issue therefore the alleged statement of the 1st accused together with the attestation form dated 13/2/2014 are hereby admitted in evidence and marked as Exhibit ‘A’ and “A1” respectively.”
As can be seen above, the objection to the admissibility of Exhibit A was not on the basis that the statement was involuntary but that the appellant did not “write or sign anything, any statement.” In other words, the objection was that the appellant was not the maker of the statement. It is at this stage of appeal that the appellant is raising the issue of involuntariness of the statement. It is rather too late for him to do so. In the case of Mbang v. State (2013) 7 NWLR (Pt. 1352) 48, 70–71, the Supreme Court held that the proper time to object to the admissibility of a confessional statement on the basis of involuntariness is at the time the prosecution seeks to tender it and that it is too late to raise the issue at the defence stage. This position has been the consistent position of the Courts of this clime over the years. See Queen v. Itule (1961) ALL NLR 462, 484, Eke v. State (2011) LPELR–1133 (SC), Shande v. State (2005) 12 NWLR (Pt. 939) 301, 315 State v. Salawu (2011) 18 NWLR (Pt. 1279,) 883, 905, Nsofor v. State (2004) 18 NWLR (Pt. 905) 292, 307–309, Abdullahi v. State (2013) 11 NWLR (Pt. 1366) 435, 451, Nwachukwu v. State ((2004) 17 NWLR (Pt. 902) 262, 273, State v. Ibrahim (2019) 8 NWLR (Pt. 1674) 294, 301, Usman v. State (2019) 15 NWLR (Pt. 1696) 411, 420 and Afuape v. State (2020) 17 NWLR (Pt. 1754) 301, 412.
Appellant was represented by counsel in Court when Exhibit A was tendered and he did not object on the basis that the statement was not made voluntarily.
A trial-within-trial in respect of a confessional statement can only be held if the accused person objects to the admission of the statement at the time it is to be tendered in evidence on the ground that it was involuntarily made. See FRN v. Iweka (2013) 3 NWLR (Pt. 1322) 313. The Evidence Act, 2011 has not altered this position of the law.
It seems to me that appellant’s counsel failed to draw a distinction between two ways of retracting a confessional statement, to wit;
a. By the accused person stating that he did not make the statement, or:
b. By the accused stating that he made or signed the statement but not voluntarily.
See Ishaya v. State (2019) 4 NWLR (Pt. 1661) 76, 92.
In respect of the first mode, the trial Court would admit the statement and the question whether the accused person made it or not is to be determined at the conclusion of the trial. See Ikpo v. State (2016) 10 NWLR (Pt. 1521) 501, 521 and Akeem v. State (2017) 18 NWLR (Pt. 1597) 311, 339 – 340.
The second mode calls for a trial-within-trial and includes a statement obtained by oppression of the person who made the statement or if it was made in consequence of anything said or done which was likely, in the circumstances existing at that time, to render unreliable any confession which might be made by him in such consequence. See Section 29 (2) (a) and (b) of the Evidence Act, 2011. The accused person or, his counsel, if he is represented by counsel, is to object to the admission of such statement at the time the prosecution seeks to put it in evidence and not thereafter. The Court may suo motu require the prosecution as a condition for admitting the statement to prove that the statement was not obtained in the manner mentioned in sub-sections (a) and (b). This is to be done at the stage that the statement is to be tendered in evidence. See Section 29 (3) of the Evidence Act, 2011. The Court will not exercise this power arbitrarily but only when it appears to it to be necessary. In other words, the power is not to be exercised by the Court whimsically but judicially and judiciously. There was no reason for the trial Court to exercise that power given to it by sub-section (3) in this instance.
Charging the learned trial Judge with being overwhelmed with sentiment for not rejecting Exhibit A as appellant’s counsel did is, with all due respect, most uncharitable and completely unfounded. Appellant’s counsel’s suggestion as to why appellant’s statement was not taken on 9th February, 2014 was a mere flight in fanciful imagination which has no place in the Court. No one can dictate to the security agencies how to investigate a matter including when to take the statement of a suspect. In Ajayi v. State (2013) 9 NWLR (Pt. 1360) 9 NWLR (1360) 589, 605 Aka’ahs, JSC, stated that he was not aware of any law which stipulates the order in which investigations are to be carried out and this, in my view, includes when the statement of a suspect is to be taken.
Appellant’s counsel contended that Exhibit A was inadmissible because its maker was not called. No such objection was raised at the trial Court when the statement was to be tendered. The trial Court was not at any stage called upon to decide such a point and there is no ground of appeal which has raised that point. Counsel’s argument is a bolt from the blue and I shall therefore discountenance the same. In any event, the PW1 through whom it was tendered was the leader of the investigating team and so it could be tendered through him since the SSS officer who recorded it was not available. See Olude v. State (2014) 7 NWLR (Pt. 1405) 89,113-114.
Appellant’s counsel turned himself into an expert witness in arguing that the handwriting in Exhibit A gave out the writer of the statement as the person who signed the space meant for the appellant to sign. Counsel is an expert in law and he did not testify to show that he is an expert in handwriting as required by Section 68 of the Evidence Act nor did he testify under Section 72 of the same Act as one acquainted with the handwriting of the person who recorded the statement of the appellant. All through the cross-examination of PW1, no suggestion was put to him as to who signed the statement. I think appellant’s counsel should hold his peace in respect of this allegation.
The trial Court was eminently right in admitting Exhibit A in evidence and so I enter an affirmative answer to issue 1 and resolve against the appellant.
Issue 2-
Was the trial Court right in convicting and sentencing the appellant?
Appellant’s counsel stated the trite position of the law that in criminal cases, the burden of proof is on the prosecution and the standard of proof is proof beyond reasonable doubt. He contended that Exhibits A and B were wrongly relied upon and were improperly evaluated. He further contended that contrary to the statement of the trial Court, the statements were not subjected to a test in search of the truth as was laid down in R v. Sykes (1913) 8 CAC (sic) 233 and that the learned trial Judge did not warn himself of the need for caution before according full weight to the documents. He argued that it was not enough to state, as the learned trial Judge did, that he had subjected the statements to test. He raised a query as to where and how the test was done.
Counsel repeated his complaint that the recorder of the statement signed all the signature spaces in Exhibit A. I have already treated this point in my resolution of issue 1 and I shall not dwell on it or weary myself again with it.
Appellant’s counsel referred to the finding of the trial Court in respect of conspiracy and argued that the conviction of the appellant was wrongly based on Exhibit A as, according to him, the statement is a reported speech obtained from the interrogation of the appellant. He submitted that the state of the confession shows that the appellant was not admitting or confessing to the commission of a crime but rather reporting what he allegedly said previously under interrogation. This, he argued, could not be regarded as a confession must be positive, direct and unequivocal. He again contended that it is of no moment that Exhibits A and B provided a similar content which the trial Court considered positively raised the inference that appellant conspired with others in the absence of either of them adopting the other person’s confession. He posited that there was no credible evidence to establish conspiracy.
In respect of armed robbery, counsel submitted that there was serious doubt if there was an incident of robbery and kidnapping on 9th February, 2014. He stated that the PW2 was confused about the date of the incident, if at all there was an incident. He noted that the witness was emphatic that she made her statement to the police on 9th February, 2014 when the incident occurred yet her statement bears the date of 10th February 2014. It was his position that this resulted in a doubt as to the occurrence of the incident. He argued further that the doubt was significant when juxtaposed with the evidence of the appellant that he was arrested on 1st February, 2014 and the fact that Exhibit A shows that it was obtained on 13th February, 2014 though he was said to have been re-arrested, documented and interrogated on 9/2/2014. He posited that the trial Court erred in holding that the contradiction was not a major one. He emphasized that armed robbery could not be proved beyond reasonable doubt in the absence of the date and time that it occurred.
He submitted that there was an inexplicable void between the place of the incident and the place that appellant was handed over to the authorities. He asserted that there are several police stations between the two places and yet those stations were jumped over. He wondered if it was not possible that the appellant was arrested on 1st February, 2014. Furthermore, counsel posited that the statement of account in relation to the account from which the sum of N50,000.00 was said to have been withdrawn and the testimony of those who helped the PW2 to arrest the appellant were vital pieces of evidence to prove such withdrawal and arrest.
As regards the offence of kidnapping, it was the submission of counsel that the evidence of PW2 did not lend credence to the fact that she was seized and taken away and that it was her evidence that she followed the people willingly. He raised a jeremiad that the prosecution failed to tender in evidence the cloth and ropes with which she said she was blindfolded and tied as well as the gun and motor-cycle that were used. It was therefore his contention that the picture painted by the prosecution was fabricated.
With regard to the offence of assault, he submitted that if a metal object was used to hit the PW2, a swelling or discoloration of the skin would have occurred. He noted there was no such evidence on the record and that there was no medical report to show that any strange chemical substance was introduced into her body as alleged by her. It was his contention that the said witness did not identify the appellant in Exhibit C, her extra-judicial statement, as the person who conveyed her on the motor-cycle on the day of the incident.
Counsel finally argued that the trial Court did not consider the defence of the appellant that he was arrested on 1st February, 2014 and therefore was in the custody of the SSS when the incident occurred. He raised several questions and stated that failure to provide answers to them amounts to failure of investigation.
The Honourable Attorney-General referred to the case of Miller v. Minister of Pensions (1947) 2 ALL ER 372 on the meaning of proof beyond reasonable doubt and set out in numbered points the evidence of the PW2. He submitted that the confession of the appellant corroborates her account. It was his further submission that the Court could convict on the confession where there is independent evidence, however slight, which makes the confession probable. He referred to the trial Court’s evaluation of evidence in respect of each of the counts of offences which he said negates appellant’s contention that there was absence of evaluation of evidence. He emphasized that PW2’s evidence not only implicates the appellant but also satisfies the test in R v Sykes supra.
Continuing, the Hon. Attorney-General argued that the date of PW2’s statement to the law enforcement agency is not a material element of any of the offences with which the appellant was charged and that both the PW2 and the appellant are ad idem as to the material facts of the case. He set out what he considered as those material facts. Again, he stated that the appellant failed to discredit the PW2 or the content of Exhibit A and urged that the proper inference is that the appellant accepted both. He placed reliance on Oforlete v. State (2000) LPELR–2270 (SC). It was his position that appellant’s counsel’s assertions on several police stations between the places of the offence and appellant being handed over to law enforcement agency, and failure to tender statement of account of PW2 did not emerge from the evidence on record. He noted that appellant’s counsel did not serve the prosecution with notice to produce the statement of account and that, in any event, there was enough evidence on record to dispense with the need to tender a statement of account.
The Hounarable Attorney-General argued that the defence of alibi was raised in Court and so it was not timeously raised and that even if it is found to have been raised properly, the same is not credible given the cumulative effect of evidence led by the prosecution.
The burden of proof that the appellant committed the offences charged was on the prosecution and the standard of proof is proof beyond reasonable doubt. The phrase “proof beyond reasonable doubt” means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond the shadow of a doubt. It implies a degree of compulsion that is consistent with a high degree of probability. If the evidence against the accused person is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, “of course it is possible but not in the least probable”, the case would have been proved beyond reasonable doubt. See Miller v. Minister of Pensions supra, Jua v. State (2010) LPELR–1637 (SC), Afuape v. State, supra, and Philip v. State (2019) 13 NWLR (Pt. 1690) 509, 534.
In an indictment containing both substantive offence and conspiracy, the proper approach is to first consider the substantive offence and thereafter consider the count on conspiracy to see if it has been made out. See Okanlawon v. State (2015) 17 NWLR (Pt. 1489) 445, 477. I shall adopt this approach in determining if the trial Court rightly convicted the appellant.
To establish the offence of armed robbery, the prosecution must prove beyond reasonable doubt that:
1. There was a robbery or series of robberies.
2. Each robbery was an armed robbery.
3. The appellant was the robber or one of those who took part in the robberies.
See Bozin v. State (1985)7 SC 450, 477.
In respect of kidnapping, the ingredients are that:
1. The victim was seized, taken or carried away by the accused person.
2. The victim was taken away against her consent
3. The victim was taken away without any lawful excuse.
4. The victim was unlawfully detained or imprisoned.
The elements of assault are as follows:
1. There was a strike, touch or application of any kind of force on another person.
2. Harm was caused to that person thereby.
3. The strike, touch or application of the force was not authorized, justified or excused by the law.
See Eneji v. State (2013) LPER – 20393 (CA)
I have already stated the facts of the case as presented by the prosecution through PW1 and PW2. The PW2 who was the victim of the offences testified as to what happened on the 9th of February, 2014. The PW1 tendered in evidence the confessional statement of the appellant, Exhibit A and the confirmation form, Exhibit A1. The confessional statement confirms in all material particulars the evidence of the PW2. The trial Court found the evidence of the prosecution to be true and disbelieved the defence of the appellant. Evaluation of evidence and ascription of probative value to it are primarily the responsibility of a trial Court. This is because it is the Court of trial which has the opportunity of observing the witnesses give oral evidence and determining their credibility from their behaviour and demeanour before that Court. The appellate Court will not interfere in that exercise except there has been a miscarriage of justice. So long as there is evidence on record from which the learned trial Judge came to the conclusion which it did, the verdict will not be disturbed, but where the record discloses that the finding of the trial Court cannot be supported on the evidence, such a finding will be disregarded and the appellate Court can interfere by setting aside the finding. See Ikem v. State (1985) 4 SC (Pt. 2) 30, 35 and State v. Oray (2020) 7 NWLR (Pt. 1722) 130, 151.
In regard to the confessional statement, contrary to the submission of appellant’s counsel, it is not the law that a trial Court must warn itself of the need for caution before according full weight to a confessional statement. Appellant’s counsel did not refer the Court to any authority where such a requirement is established and I am not aware of any. It must be stated that in his evidence in Court, the appellant repudiated the content of the confessional statement. In the case of Queen v. Obiasa (1962) 1 ALL NLR 651, 655 Bairaman, FJ, quoted with approval the postulation of Ridley, J. in R v. Walter Sykes, 8 CR. App. R. 233 which is as follows;
“I think the Commissioner put it correctly; he said; “A man may be convicted on his own confession alone; there is no law against it. The law is that if a man makes a free and voluntary confession which is direct and positive, and properly proved, a jury may, if they think fit, convict him of any crime upon it. But seldom, if ever, the necessity arises, because the confession can always be tested and examined, first by the Police, and then by you and us in Court, and the first question you ask when examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are the statements made in it of fact so far as we can test them true? Was the prisoner a man who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case proved before us?”
The above test was approved in Kanu v. King (1952) 14 WACA 223 and has been followed in a myriad of cases including Obosi v. State (1965) NMLR 129, Yesufu v. State (1976) 6 SC 167 and Dawa v. State (1980) 8–11 SC 236.
The current trend of the law is that where an accused person retracts his confession, to properly convict him, the trial Court should evaluate the confession and testimony of the accused person as well as all the available evidence. This will enable the Court to determine if there is any evidence outside the confession no matter how slight which makes it probable that the confession is true. This entails the trial Court examining the new version of events presented by the accused person which is different from his retracted confession in the light of the test propounded in R v. Walter Sykes supra. See Galadima v. State (2013) 3 NWLR Pt. 1333) 310, Nalado v. State (2019) 13 NWLR) Pt. 1688) 1, 14 and Samaila v. State (2021) 4 NWLR (Pt. 1767) 528, 554. The mere fact that a trial Court did not test a confessional statement will not lead to the reversal of its verdict so long as there is evidence on record to ground the conviction.
Contrary to the submission of appellant’s counsel, a trial Judge need not pedantically set out each of the components of the test and analyze it one by one. In Jimoh v. State (2012) 3 NWLR (Pt. 1286) 144, 168 Alagoa, JCA, as he then was, stated as follows:
“It should perhaps be stated for the avoidance of doubt that these six tests need not be itemized by the learned trial Judge in coming to a conclusion one way or the other. It is only necessary that he bears them in mind in evaluating the evidence given.”
The learned trial Judge assessed the evidence that was available including the evidence of PW2 and Exhibit A. Pw2, the victim of the offences gave a clear account of her encounter with the appellant. She encountered the appellant at 9 am, that is, in broad daylight first under normal circumstances. She testified that he pointed a gun at her when she sought to leave the bush that he and his co-traveller had taken her into. After she escaped from where she had been taken to and detained, she made her way to the Ibusa Expressway and saw the appellant whom she spontaneously recognized and raised an alarm. Passers-by and sympathizers helped in arresting him. I have read the cross-examination of the PW2 and I must state that her evidence was not dented under cross-examination.
In considering the identification of an accused person who was not arrested at the scene of the crime and who the victim did not know prior to the incident, a Court will take into consideration the following factors:
1. The circumstances in which the eye witness saw the accused person.
2. The length of time the witness saw the accused person.
3. The lighting condition at the crime scene.
4. The opportunity of close observation of the accused person by the witness.
5. The description of the accused person given to the police soon after the incident.
See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455, Ndidi v. State (2007) 13 NWLR (Pt. 1052) 633 and Lawali v. State (2019) 4 NWLR (Pt. 1663) 457. The PW2 had enough time to observe the appellant in broad daylight under both normal and difficult circumstances. Her spontaneous recognition of the appellant strengthened her identification evidence. See Ibrahim v. State (1991) LPELR–1404 (SC) and Ukpabi v. State (2004) LPELR–3346 (SC). The fifth factor cannot come into consideration as she recognized him even before reporting him to the SSS. It is in this light that the trial Court after finding that the charge had been proved based on the evidence of PW2, proceeded to hold that it had subjected the confessional statement of the appellant to the test as recommended by the Courts of the land. It found that:
“On pain of repetition, the statements of the 1st and 2nd Accused persons are positive, direct and properly proved. The Court is entitled to convict on the statements.”
In the light of the state of the law, I see no reason to interfere with the conclusion of the trial Court.
Appellant’s counsel submitted that Exhibit A contained reported speech and so it was not direct and positive. The submission of counsel is an adventure in semantics. The appellant simply repeated what he had earlier told the SSS officer who interrogated him before his statement was taken down in writing. In other words, the appellant confessed both orally and in writing his culpability. The PW2 also testified to this fact. An oral confession is as potent as a written confession. See Ismail v. State (2008) 15 NWLR (Pt. 1111) 593, 621 and FRN v. Iweka supra 336.
Section 28 of the Evidence Act defines confession as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime. Whether or not it is a reported speech, the appellant stated unequivocally his involvement in the crimes that he was charged with. The trial Court convicted him not only on the basis of his confessional statement but also on the basis of other evidence led by the prosecution.
Let me quickly say that the confessional statement of the appellant contains all the ingredients of the offences with which he was charged except that he did not say that he pointed a gun at PW2 in the course of their journey to their den. The evidence of the PW2, which the Court believed, was sufficient to show that the appellant used a gun to compel the PW2 to continue in the journey with them to their den and that money was stolen from her by use of force or threat of use of force. The moment the appellant compelled the PW2 to continue to follow them by pointing a gun at her and threatened to shoot her if she shouted, kidnapping was committed by him as that amounted to taking her away against her consent and without a lawful excuse, and also unlawfully detaining her. Detention need not be in an enclosed place before it is classified as unlawful detention.
Appellant’s counsel contended that there was serious doubt as to the occurrence of the incident because, according to him, there was contradiction in the evidence of the prosecution as to the date of the occurrence of the event. Specifically, it was counsel’s contention that while PW2 stated that the incident occurred on 9th February, 2014 and that she made a statement to the SSS on that date, her extra-judicial statement bears the date of 10th February, 2014. The trial Court held that the contradiction was a minor one and that there was indeed no dispute on the date of the incident as the appellant admitted the same in his extra-judicial statement. I agree with the trial Court. The law does not consider contradiction as to the date of an offence to be a major contradiction as it does not materially affect the charge. See Akpa v. State (2008) 14 NWLR (Pt. 1106) 72, 93 and Afolalu v. State (2009) 3 NWLR (Pt. 1127) 160, 183–184. In Musa v. State (2009) 5 NWLR (Pt. 1165) 467,488 it was held that for contradiction to be fatal to the case of the prosecution it must be substantial and must relate to the substance and vital ingredients of the offence. The date of the occurrence of the event is not a vital ingredient of the offences of conspiracy, armed robbery, kidnapping and assault. Furthermore, the appellant in his confessional statement agreed that the incident occurred on 9th February, 2014. Whatever contradiction there may be in the evidence of the prosecution pales into insignificance in the light of the confessional statement of the appellant.
In the case of Lalapu v. State (2019) 16 NWLR (Pt. 1699) 476, 496 Galumje, JSC, opined that:
“…where there is contradiction, and the man accused of the crime steps in and admits the commission of the offence, the contradiction in the prosecution’s case is rendered irrelevant.”
The contention of appellant’s counsel as to there being several police stations between the scene of the crime and the arresting authority is baffling to me. Pray thee my lords, how do I know the number of police stations between Ogwashi-Uku and Asaba since no evidence was led or elicited on it? It is also not something that I can take judicial notice of under Section 122 (1) of the Evidence Act. Again, I fail to see the need for the tendering of the statement of account of the PW2 to prove the withdrawal of the sum of N55,000.00 from her account by the use of her ATM card. Her evidence on the withdrawal of the sum and the return of the card to her after the withdrawal was not discredited, and I see no basis for the call by appellant’s counsel for the invocation of Section 167 (d) of the Evidence Act for the non-tendering of the statement of account. As rightly argued by the Honourable Attorney-General, the appellant’s counsel ought to have issued a subpoena for the statement of account to be brought to Court if he felt that it was important to him.
Again, I see no need to call any of the persons who helped to arrest the appellant. This is because the evidence of PW2 and the confessional statement of the appellant established his culpability and the fact of his arrest by people. The prosecution is not bound to call all the witnesses in the world to testify in order discharge the burden of proof on it. All that it is required to do is to call necessary and vital witnesses to establish its case beyond reasonable doubt. See Ishaya v. State supra.
Appellant’s counsel seems, with all due respect, to have embarked on another flight of fanciful imagination in stating that if PW2 was hit with an object on the head, a swelling or discoloration of the skin would have occurred and that there was no medical evidence to show that a strange chemical substance was introduced into her body. The PW2 was not cross-examined in respect of her evidence on this point. In the case of Igwe v. The People of Lagos State (2021) 7 NWLR (Pt. 1776) 425, 451-452, it was held by the Supreme Court that in criminal trials, the defence must challenge the evidence it wishes to dispute by cross-examination. Where the evidence of the witness is not seriously challenged while he is in the witness box, it is an exercise in futility to seek to negative the testimony at the close of the case or to seek to demolish it on appeal. The Supreme Court likened such an effort to building a castle in the air. This is the situation in this instance. See also Oforlete v. State (2000) LPELR–2270 (SC), Agbo v. State (2006) 135 LRCN 808, 831 and Ishaya v. State supra 95.
The mere fact that the prosecution did not tender the weapons of the offences is of no moment as it does not detract from the evidence of the PW2 and the confessional statement of the appellant. In Jato v. State (2019) 8 NWLR (Pt. 1674) 317, 327 – 328 Eekere-ekun, JSC, stated that:
“This Court has held in numerous decisions that it is not in every case that failure to tender the weapon used in committing an offence or the recovered stolen items would be fatal to the prosecution’s case. The facts and circumstances of the case would determine the materiality of that aspect of the evidence…In a case such as this where the evidence points so clearly to the guilt of the appellant, the failure of the prosecution to tender the jack knife used in the robbery or the recovered motor-cycle is of no moment whatsoever.”
See also Iregu v. State (2013) 12 NWLR (Pt. 1367) 92, 127 and Attah v. State (2009) 15 NWLR (Pt. 1164) 284, 303.
In the light of the evidence led by the prosecution which I have already highlighted in this judgment which points unassailably to the guilt of the appellant, the failure of the prosecution to tender the items that appellant’s counsel said should have been tendered is of no moment.
There was evidence before the trial Court to justify its conviction of the appellant for the offences of armed robbery, kidnapping and assault.
In regard to the offence of conspiracy, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. As was held in Njovens v. State (1973) LPELR–2042 (SC) the gist of conspiracy is the meeting of the minds of the conspirators and this is hardly capable of direct proof. It is almost always proved by inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common with them.
The trial Court found that conspiracy can be inferred from Exhibits A and B. It is no doubt the law that when accused persons are shown to have engaged in conspiracy, the confessional statement of each accused person can be used against the other. See Jimoh v State supra, 180. I see nothing in Exhibit B that can be used against the appellant. I shall say no more on this since I am not determining the appeal of the 2nd accused person in this appeal. But there is enough evidence from the PW2 and Exhibit A from which the inference of conspiracy can be drawn against the appellant. In Exhibit A, the appellant gave a detailed account of his actions in cahoots with other persons who were not charged with him including their gang leader who was killed in a shoot-out with the SSS, and a female member of their gang. The evidence of PW2 corroborates the confessional statement of the appellant. The trial Court was therefore right in inferring conspiracy between him and those other persons though they were not charged along with him. I shall avoid making any finding in this regard touching on the 2nd accused person.
In the case of Osho v. State (2018) 13 NWLR (Pt. 1637) 474, two accused persons were charged for conspiracy with others. The charge against the second accused person was withdrawn and the remaining accused person was eventually found guilty of conspiracy and armed robbery though he continued in the trial alone. The Supreme Court affirmed the conviction and stated as follows, as per I. T. MUHAMMAD, JSC, as he then was:
“Further although it is the law 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 the other person has conspired with the accused, it is the practice of the Courts to insist that for a confessional statement to be made the only basis for the conviction of an accused, there should be other evidence which shows that the confession is true and consistent with other ascertained facts which has been proved.”
See also Martins v. State (2020) 5 NWLR (Pt. 1716) 58.
Apart from the confessional statement of the appellant, there was enough evidence from the PW2 to infer conspiracy between him and others one of whom had died and others who were at large. In any event, it is the law that where ingredients of a substantive offence have been established, criminal conspiracy may be properly inferred. See Sale v. State (2016) 3 NWLR (Pt. 1499) 392, 411.
Appellant set up a defence of alibi in his testimony in Court. I agree with the Hon. Attorney-General that the defence was a non-starter as it was not set up at the earliest opportunity. The law requires that a defence of alibi be set up at the earliest opportunity, namely; in the appellant’s statement to the Police so as to afford the Police an opportunity to investigate the same. See Ukwunnenyi v. State (1989) 7 SCNJ 34, 47 and Dawai v. State (2017) LPELR–43835 (SC). Furthermore, the appellant in his confession fixed himself at the scenes of the crimes at the relevant time as a culprit which is corroborated by the evidence of the PW2, and so his alibi, if there was any such defence, came to nothing.
It appears to me that appellant’s counsel, with all due respect to him, set out to scrounge for every available straw for the appellant to clutch at to escape from the consequence of his actions. But the law will offer him no assistance in this regard. In Miller v. Minister of Pensions supra, it was stated that:
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.”
In the light of what I have said thus far, I enter an affirmative answer to issue 2 and resolve it against the appellant.
On the whole, I find no merit in this appeal. It therefore fails and I accordingly dismiss it and affirm the judgment of the trial Court.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the judgment of my learned brother, JOSEPH EYO EKANEM, JCA. I agree entirely with his lucid reasoning and conclusion that this appeal has no merit. I too dismiss the appeal.
ABIMBOLA OSARUGUE OBASEKI ADEJUMO, J.C.A.: I have read the draft copy of the judgment before now of my lord JOSEPH EYO EKANEM, JCA and I find that the reasoning and conclusion were apt and will only add that:
It is now a settled principle of law that for contradictions to be fatal to the case of the prosecution, it must be substantial and must relate to the vital ingredients of the offence. See the cases of ALAO v STATE (2015) LPELR-24686 (SC); OGUNBAYO v STATE (2007) LPELR-2323 (SC).
For this and the elucidate reasons in the lead judgment. I too agree that this appeal has no merit and is accordingly dismissed. The judgment of the lower Court is hereby affirmed.
Appearances:
JIM OKODASO, ESQ, with him, A. ADEDEJI, ESQ. For Appellant(s)
ISAIAH BOZIMO, ESQ, (Hon. Attorney-General and Commissioner for Justice, Delta State) with him, MESSRS A. P. Popo, – Assistant Director, U. A. Ibomor, – Principal State Counsel and O. B. Okonye, -Senior State Counsel) for the State. For Respondent(s)
