ISAIAH SUNDAY v. THE PEOPLE OF LAGOS STATE
(2019)LCN/13106(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of April, 2019
CA/L/912C/2015
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
ISAIAH SUNDAY Appellant(s)
AND
THE PEOPLE OF LAGOS STATE Respondent(s)
RATIO
DEFINITION OF A CONFESSIONAL STATEMENT
A confessional statement in the case of YUSUF v FEDERAL REPUBLIC OF NIGERIA (2010) LPELR – 5118 (CA), per LOKULO – SODIPE, JCA (P. 16, PARAS. E-G) was held to be;
?an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. A confessional statement on all fours is binding on the person who made it. However, when an alleged confessional statement is argued to have some inconsistency or an Appellant retracts his confessional statement, it does not diminish its value. See GBENGA OSHO v THE STATE (2011) LPELR – 4804 (CA), where it was held that:
“The principle guiding the assessment of a confessional statement for the purpose of ascribing appropriate value to it in a given ease, 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 GARBA, JCA (P. 40 – 41, PARAS G-C). PER OBASEKI-ADEJUMO, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from the judgment of the High Court of Justice of Lagos State (the Court below) whereby it convicted and sentenced the appellant to death by hanging for the offences of conspiracy to commit armed robbery and armed robbery contrary to Sections 403 (a) and 402 (2) (a), respectively, of the Criminal Code Law of Lagos State, 2003.
?In summary, the evidence for the respondent was that on 11.02.13 the PW1 was driving his honda acura jeep on the bridge by Alaka, Surulere, where his vehicle was suddenly hit from behind by a Sienna car with four occupants whom he was able to see from the mirror of his vehicle; the PW1 suspected the occupants of the vehicle to be robbers and sped on until he thought he had displaced them before he stopped to examine the damage done on his vehicle; as soon as he dropped down to examine his vehicle, the sienna car re-emerged and parked by his side, whereupon three of its occupants including the appellant came down and surrounded him at gun point and ordered him into his vehicle, which one of them drove, while the other two wedged him
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between themselves in his vehicle and sped in the direction of Anthony village followed by the sienna car.
It was part of respondent?s case that while in motion, the appellant and the two others robbed him inside his vehicle of his two mobile phones, a ring, N10,000 cash and other valuables including his shirt which they forced him to pull off and drove away with his vehicle after forcing him to exit it, abandoning the sienna car which had been demobilised by flat tyre; that a cab driver assisted the PW1 to Anthony police station where he was directed to report the incidence at Ojuelegba police station which he did; that he later got information that the Military Police at Ojo Army barracks arrested some persons with his vehicle, therefore he proceeded there where he was shown his vehicle and two of the robbers, one of which he instantly identified as the appellant; the case was then referred to the Panti C.I.D., Yaba office where his statement was taken, as well as the appellant?s statement voluntarily confessing the alleged offences upon which the appellant was arraigned at the Court below and the PW1?s vehicle released to him on bond
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during the trial.
The appellant?s case was that one Dudu gave him the honda acura jeep to drive it for car-wash in the course of which he was arrested and taken to Army barracks Ojo where he was detained for one week before he was handed over to the police at C.I.D. Panti Yaba, where he was tortured to confess the offences charged and was eventually arraigned at the Court below where he denied committing the offences charged.
The Court below believed and accepted the respondent?s case and disbelieved the appellant upon which the Court below convicted the appellant as charged and sentenced him to death by hanging.
Dissatisfied with the decision, the appellant filed a notice of appeal with several grounds of appeal challenging the said decision. The appellant argued in the brief that the evidence of PW1 and Exhibit E and the application of the doctrine of recent possession of stolen items which formed the basis of the judgment of the Court below were materially contradictory in that the appellant had ?supposedly? stated in Exhibit E that he drove the jeep vehicle on the day in question, while PW1 testified that the vehicle
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was driven by another person after it was robbed from him and the appellant sat at the back of the vehicle with him arguing with the gang leader to let him go, which developed into a quarrel which did not add up to the alleged confessional statement.
It was therefore argued that the material inconsistency created thereby raised doubt in the case of the respondent showing the case against the appellant was not proved beyond reasonable doubt entitling the appellant to the benefit of the doubt which should result in his discharge and acquittal citing in support Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the cases of Ali v. State (2012) 7 NWLR (pt. 1299) 209 at 236, Bakare v. State (1987) 1 NWLR (pt. 52) 579, Posu v. State (2011) 12 NWLR (pt. 1234) 393 at 410 ? 411, Shummo v. State (2010) 16 NWLR (pt. 1218) 65, Akpa v. State (2008) 14 NWLR (pt. 1106) 72, Yusufu v. State (2007) 1 NWLR (pt. 1020) 94, Udosen v. State (2007) 4 NWLR (pt. 1023) 125, Ofuani v. Nigerian Navy (2007) 8 NWLR (pt. 1037) 470, Dibie v. State (2007) 9 NWLR (pt. 1038) 30, Omonga v. State (2006) 14 NWLR (pt. 1000) 532, Apugo v. State
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(2006) 15 NWLR (pt. 1002) 227, Opara v. State (2006) 9 NWLR (pt. 986) 508; upon which the appellant urged that the appeal should be allowed and the decision of the Court below set aside and the appellant be discharged and acquitted of the offences of conspiracy to commit armed robbery and armed robbery upon which he was charged, tried and convicted.
The respondent?s brief of argument was filed on 08.02.18. It opened with the statement of the law that the onus of prove of the guilt of an accused is placed squarely on the prosecution and that the standard of proof is beyond reasonable doubt, not proof to the hilt citing in support John v. State (2017) 16 NWLR (pt. 1591) 304 at 331; and that the guilt of a person alleged to have committed crime could be proved by confession made by the accused; by evidence of eye witness; or by circumstantial evidence citing in support the case of Abudu v. State (2017) 7 NWLR (pt. 1564) 171 at 186.
?The respondent proceeded to contend that the confessional statement of the appellant in Exhibit E stated unequivocally, not only that the appellant was one of the robbers that robbed PW1 of his honda acura jeep and
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other chattel, but that the appellant was the person that drove the other robbers in a sienna car to the scene of the robbery and again drove the robbed jeep vehicle after the robbery up to LASU before another person took over from him and drove it to Army Barracks Ojo.
It was also argued that even though the appellant retracted the confessional statement at the trial which was later admitted in evidence after a trial-within-trial, the retraction did not make the confessional statement inadmissible as the confessional statement, Exhibit E, contained in pages 15 ? 18 of the record of appeal (the record) was reliable and corroborated by the recent possession of the robbed jeep vehicle by the appellant.
Consequently, the respondent argued that the Court below having satisfied itself that the confessional statement was true, corroborated, tested to be true, that the appellant had the opportunity of committing the offences charged, that the confession was possible and consistent with other facts which had been ascertained and proved at the trial, the Court below was right in convicting the appellant of the offences charged on the doctrine of recent
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possession and his confessional statement coupled with the evidence of the PW1, the victim of the crime, citing in support the cases ofBusari v. State (2015) 5 NWLR (pt. 1452) 343 at 348, Azabada v. State (2014) 12 NWLR (pt. 1420) 40 at 52 ? 53, Banjo v. State (2013) 16 NWLR (pt. 1381) 455 at 466 ? 467, State v. Ekanem (2017) 4 (2016) 15 NWLR (pt. 1536) 470 at 474 ? 475, Akinrinlola v. State (2016) 11 NWLR (pt. 1537) 73 at 92 ? 93, Godsgift v. State (2016) 13 NWLR (pt. 1530) 444 at 477 ? 478, Afolabi v. State (2016) 11 NWLR (pt. 1524) 497 at 526 ? 527, Egharevba v. State (2016) 8 NWLR (pt. 1515) 433 at 455 ? 456, Famakinwa v. State (2016) 11 NWLR (pt. 1524) 538 at 560, Zubairu v. State (2015) 16 NWLR (pt. 1486) 504 at 525, Hassan v. State (2017) 5 NWLR (pt. 1557) 1 at 29, Okeke v. State (2016) 7 NWLR (pt. 1512) 437 at 449 ? 450, Asimi v. State (2016) 12 NWLR (pt. 1527) 414 at 436 ? 437, Abdu v. State (2017) 7 NWLR (pt. 1564) 71 at 191 read with Section 167 (a) of the Evidence Act, 2011 (Evidence Act).
The respondent also argued that by Section 30 of the Evidence Act read with the case of Duru v. State
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(2017) 4 NWLR (pt. 1554) 1 at 25 ? 27 the statement of the co-accused, one Mr. Ighalo Kelvin, to the effect that himself and others, including the appellant, took off together from under the bridge at Ojota and the appellant drove the toyota sienna car that conveyed them to the scene of the robbery and also, that the same appellant drove the honda acura jeep immediately they robbed the PW1 of it to the destination where the vehicle was on the verge of being sold before their eventual arrest amounted to acceptable circumstantial evidence that implicated the appellant in the recent possession of the robbed vehicle as contained in the confessional statement of the appellant, Exhibit E, thus strengthening the respondent?s case on the issue citing in additional support the cases of Fatoyinbo v. A. ? G., Western Nigeria (1966) W.N.L.R. 4, Adie v. The State (1980) 1 ? 2 SC 116, Ukorah v. The State (1977) 4 SC 167, Aigbadion v. The State (2000) 1 NWLR (pt. 666) 686.
The respondent also argued that whether or not the appellant was the one that drove the honda acura jeep from the scene of the robbery did not alter the fact that the
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appellant was in the said vehicle, right at the scene of the robbery, regardless where exactly he sat or the space he occupied or the role he played, therefore the slight variation in the manner the PW1 and the appellant rendered of the latter (whether the appellant drove the vehicle or sat in it) did not amount to material contradiction citing in support the cases of Galadima v. State (2017) 12 NWLR (pt. 1580) 339 at 359, Asuquo v. State (2016) 14 NWLR (pt. 1532) 309 at 328 ? 329.
The respondent finally urged that the appeal should be dismissed and the conviction and sentence of the appellant be affirmed.
I am slow to accept the submission of the respondent that the incriminating statement of another suspect who was not arraigned with the appellant is credible evidence against the appellant; more so the appellant had no opportunity of seeing the alleged incriminating statement vide Enitan and Ors. v. State (1986) 3 NWLR (pt.30) 604, Yongo v. C.O.P. (1992) 8 NWLR (pt.257) 36.
The statement of the appellant to the police is contained in pages 15 ? 18 of the record of appeal (the record) unedited thus ?
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?I, Isaiah Sunday, (m) having been duly cautioned in English language that I am not obliged to say anything unless I wish to do so but whatever I say shall be taken down in writing and may be given in evidence voluntary elect to state as follows:
I, Isaiah Sunday (m) I was born into Oluwa family in Oju Local Government Area, Ito Barrack in Benue State. I did not attend any primary or secondary school. I?m not married but one woman gave birth a baby boy for me at Ibadan in 2006. I was one a conductor and also a driver. I know one Ighalo Kelvin through one Abayomi at Ojota under bridge. I know Abayomi at Ketu Division when I was raided by the police officers at Ketu and detained and I met him inside the cell. After two days in the cell, I asked Abayomi that what was his offence that brought him inside the cell, he told me that he fought somebody and injured that person that was the things that lead him into cell and he told me that until that person is being treated before he will be released and he asked me that do I have phone then I told him no then he gave me his own number for me to call him when I?m out of the cell. After I told him that I have a gun
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he told me that were did I come across the gun then I told him were I went to disificate inside the bush at Bola in Ojota Area, then I told him that the gun is not in good shape but (you) I have repair it, then he asked me again were is the position of the gun, I told him that the place I found it, I keep it there, then Abayomi asked me, do I have mind to operate with the gun, then I told him no problem, that I can do it, to enable me to gather money to rent a house for myself (after I left). Abayomi left the cell before me. After I left the cell too, then I called the number he gave to me, then he pick the phone then I discussed with him that do I bring the gun he said yes, then I told him that I will be waiting at Ojota under bridge, for them to use the gun for operation together with me. After that he met me there together with Ighalo Kelvin, that was the first time I met him, then I asked Abayomi that who is that man, then he told me that we are going to operation together. We start our operation at 9.30pm on the 19th of May, 2009 in which we collected a Toyota ceina car from one man, then I told the owner of the car that his car will be used for
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operation, then we cross to marina beach were we bought fuel for the car. After that we left Ojuelegba then we saited a jeep Honda Acura Jeep with reg. no. NW599AAA, then Abayomi told me to hit the jeep at the back for the man to stop then I comply with that instruction and the man stop, we both stop and we collected the jeep from the owner through the use of the locally made revotuer pistol then I myself took over the jeep and rive it and Ighalo Kelvin took over the second car and the followed me at the back. After Anthony bridge, the Toyota ceiena car that is following me at the back have flat tyre, then he packed it, we are ahead of him, then Kelvin called Abayomi that the car have flat tyre because myself and Abayomi is inside the jeep. This Kelvin Ighalo told me and Abayomi that the person that will buy the car is available through Alhaji Mohammed Alkali, then both of us abandoned the Toyota ceina car there, then we turn back to Anthony that night in which Abayomi left me there and I slept inside the jeep near Anthony. Then early in the morning I start the jeep, then Kelvin was waiting for me there and he entered the jeep. He told me that Alhaji Mohammed
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Alkali is waiting for him along Iyanaiba LASU, then at the LASU fenci, we pack the jeep there Kelvin called Alhaji and he meet us there, then Alhaji ask Kelvin who is me, there he told him that I?m the driver, then Alhaji said we should both go to Ojo barrack where he took over the jeep from us, then we enter the barrack together, when he pack the car then Alhaji told me that he want to go to toilet but we did not see him again, then Kelvin met with the soldiers wife and they told him that Alhaji want to play another game with us without knowing that Alhaji went ahead to inform one woman in the barrack that we are robbers, that we want to collect his jeep from him, then Alhaji came with soldiers, two in number, then they ask us are we soldiers, Kelvin told them that he was once a police officer, then the soldiers search us and then met pistol with me and also they recover two cartridges from Kelvin. After that we were arrested and detained in Ojo barrack. I did not know anybody called Indubisi, this is all I know about this, truly they met pistol with me and the pistol was found in the bush by me, I did not buy it from anybody.?
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It is indeed a confessional statement. The fact that the appellant retracted the confessional statement in his evidence in Court did not diminish its value nor affected its admissibility in evidence. It stands as his true confessional statement vide Egboghonome v. State (1993) 7 NWLR (pt. 306) 383, R. V. Itule (1962) ALL NLR 462, Idowu v. State (2000) 12 NWLR (pt. 680) 48, Silas v. State (1996) 1 NWLR 59.
The Court below evaluated the efficacy of the confessional statement (supra) in its judgment in page 130 ? 132 of the record and found that there was something outside the confession which shows that it is true, that the statements contained therein are likely to be true, that the appellant had the opportunity of committing the offence, and that there are ascertained and established facts from the evidence of the victim of the crime, and the findings of the police investigator who testified in the case especially on the recent possession of the robbed jeep vehicle by the appellant which are consistent with the confessional statement as stated by the appellant in the said confessional statement. In other words, the Court below properly tested the
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confessional statement on ascertained and established facts and found it to be true.
The appellant could be convicted on his confessional statement which was voluntary/free, cogent, unequivocal, and direct admission of the offences charged as in this case vide Bright v. State (2012) 1 S.C. (pt. 11) 47 at 51, Oseni v. State (2012) 5 NWLR (pt. 1293) 351, State v. Salawu (2012) 22 W.R.N. 1 at 25, Kamila v. State (2018) 8 NWLR (pt.1621) 253 at 269 ? 269, Okeke v. State (2003) 15 NWLR (pt.842) 25, Yahaya v. State (1986) 12 S.C. 282, Akinfe v. State (1988) 3 NWLR (pt.85) 729, Alabi v. State (1993) 7 NWLR (pt.307) 511, Fabiyi v. State (2015) 18 NWLR (pt.1490) 80, Osetola v. State (2012) 17 NWLR (pt.1329) 251, Nwachukwu v. State (2002) 2 NWLR (pt.751) 336, Dogo v. State (2013) 10 NWLR (pt.1361) 160.
The appellant?s confessional statement (supra) identified him as one of the culprits, therefore there was no need for formal identification parade vide Kamila v. State (supra) at 271 where the Supreme Court held inter alia that ?
?Also, the appellant had identified himself when in his confessional statement exhibit ?D?, he
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had fixed himself at the scene and time of crime on the date of the incidence?.
See further Archibong v. State (2004) 1 NWLR (pt.855) 488 at 509 where the Supreme Court held inter alia that where an accused by his confession identified himself there would be no need for any further identification parade.
In addition, the PW1 stated in his evidence in page 61 of the record that ?
?I had already raised up my head by the time the Defendant and the others n came into my car, I saw him and I was made to sit in their middle. I confirm that the incidence happened around 10 – 11pm. The Defendant was wearing Tee-shirt that night, I can recognize him. There was light in my car, they were not wearing masks so I was able to see them clearly before they asked me to bend my head down?.
The PW1 therefore had sufficient time to see and observe the appellant whom he was able to identify the next day, within a period of a day, showing the identification was reliable.
?Based on the confessional statement of the appellant (supra) and the evidence for the respondent, the respondent proved beyond reasonable doubt that the crime
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was committed in the night of 19.05.09 and the appellant was found in possession of the robbed jeep vehicle in the morning of the next day ? 20.05.09. It was from there that the appellant found himself at Ojo army barracks and the matter eventually went to the police leading to his formal arrest, arraignment, conviction and sentence. The appellant merely stated that he was given the robbed vehicle to take for a wash. The person that allegedly gave the appellant the jeep vehicle did not give evidence in the case.
The explanation given by the appellant for recent possession of the robbed jeep vehicle did not amount to reasonable or probable account of his possession of the robbed vehicle, therefore the Court below was right by invoking the presumption of recent possession of the robbed vehicle by the appellant to convict him of the offences charged under Section 167(a) of the Evidence Act read with the cases of Eze v. State (1985) 3 NWLR (pt.13) 49, Madagwa v. State (1988) 5 NWLR (pt.92) 60, Salami v. State (1988) 3 NWLR (pt.85) 670, State v. Nnolim (1994) 5 NWLR (pt.345) 394, Adesina v. State (2012) 14 NWLR (pt.1321) 429 at 450, Ogogovie v. State
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(2016) 12 NWLR (pt.1527) 468, Banjo v. State (2013) 16 NWLR (pt.1381) 455.
The Court below was accordingly right in rejecting the defence of the appellant and accepting the evidence for respondent which proved the offences charged beyond reasonable doubt in convicting the appellant as charged.
In the result, I find no substance in the appeal and hereby dismiss it and affirm the decision of the Court below.
TIJJANI ABUBAKAR, J.C.A.: I agree with the leading Judgment prepared and rendered in this appeal by my learned brother Joseph Shagbaor Ikyegh JCA. I have nothing extra to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have been afforded the opportunity of reading in draft the judgment of my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA and I am in agreement with the reasoning and conclusion therein.
A confessional statement in the case of YUSUF v FEDERAL REPUBLIC OF NIGERIA (2010) LPELR – 5118 (CA), per LOKULO – SODIPE, JCA (P. 16, PARAS. E-G) was held to be;
?an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime.?
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A confessional statement on all fours is binding on the person who made it. However, when an alleged confessional statement is argued to have some inconsistency or an Appellant retracts his confessional statement, it does not diminish its value. See GBENGA OSHO v THE STATE (2011) LPELR – 4804 (CA), where it was held that:
“The principle guiding the assessment of a confessional statement for the purpose of ascribing appropriate value to it in a given ease, 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 GARBA, JCA (P. 40 – 41, PARAS G-C)
In this Appeal, the Appellant’s confessional statement identified him as being one of the culprits, and the Respondent in his evidence stated that he recognized the Appellant.
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The Respondent’s evidence given during trial and the confessional statement of the Appellant also proved the time the crime was committed, the time span between the occurrence of the crime and when the Appellant was eventually arrested is not in doubt. The facts supports the assertion of the Appellant’s retracted confessional statement that he was one of the culprits.
?In light of the above, I too reject the defence of the Appellant and hereby dismiss the appeal.
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Appearances:
F.B.A. Alabi, Esq. with him, Mr. C.H. NkamukeFor Appellant(s)
The Respondent was served hearing notice but was unrepresented at the hearing of the appealFor Respondent(s)
Appearances
F.B.A. Alabi, Esq. with him, Mr. C.H. NkamukeFor Appellant
AND
The Respondent was served hearing notice but was unrepresented at the hearing of the appealFor Respondent
