JAMES GWANGWAN v. THE STATE
(2011)LCN/4250(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of January, 2011
CA/IL/C.76/2009
RATIO
DEFENCE OF ALIBI: MEANING AND IMPLICATION OF THE DEFENCE OF ALIBI
It (alibi) is defined in Black’s Law Dictionary, 7th Edition at page 72 as follows: “Alibi (al-abi) n (Latin “elsewhere”) it is a defense based on the physical impossibility of a Defendant’s guilt by placing the Defendant in a location other than the scene of the crime at the relevant time. Fed. Re. Crim. P. 12.1.2. The fact or state of having been elsewhere when an offense was committed.” Alibi, however is judicially Interpreted by our erudite Emeritus Justice of the apex court, Obaseki JSC in the case of Ozaki vs. The State (1990) NALR 94 at 105 wherein he held that: “ALIBI is a defence where an accused alleges that at the time when the offence for which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must be given. This is normally done at the first possible opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established.” See also, Adio vs. The State (1986) 3 NWLR 714; also reported in (1986) 2 NSCC P. 815. The learned noble Lord did not stop there, he further held that: “Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. Adedeji vs. The State (1971) 1 All NLR p.75. Failure by the Police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this requirement as was done in the case of Onafowakan VS. The state (1957) 7 S.C.; also reported in (1987) 3 NWLR (pt. 61) PAGE 538.” PER TIJIANI ABDULLAHI, J.C.A.
DEFENCE OF ALIBI: WHEN THE DEFENCE OF ALIBI MUST BE RAISED; DUTY IMPOSED ON AN ACCUSED SEEKING TO RELY ON THE DEFENCE OF ALIBI
It is trite that to succeed in the defence of alibi, it must be raised at the earliest opportunity that offers itself. Sunday Ndidi vs. The State (2007) 13 NWLR (pt. 1052) 633 at 642. And an accused relying on an alibi has a duty to let police know at the earliest opportunity where and with whom he was at all the material times. PER TIJIANI ABDULLAHI, J.C.A.
RETRACT: DEFINITION OF THE WORD “RETRACT”
Now, in the Oxford Advanced Learner’s Dictionary, 6th Edition, the word retract is defined thus: “To say that something you have said earlier is not true or correct or that you did not mean it.” In Black’s Law Dictionary, Seventh Edition, page 1318 the noun retraction from the verb retract is defined to wit: “1. The act of taking or drawing back; 2. The act of recanting; a statement in recantation or 3. Withdrawal of a renunciation.” PER TIJIANI ABDULLAHI, J.C.A.
INTERFERENCE WITH THE TRIAL COURT’S FINDINGS OF FACT: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL AND WILL NOT INTERFERE WITH THE TRIAL COURT’S FINDINGS OF FACT
It is now settled that an Appellate court will not interfere with the trial court’s findings of fact where the findings are borne out of the evidence before the trial court. An Appellate court will interfere with the findings of a trial court when such findings have been made on legally inadmissible evidence, or they are perverse or are not based on any evidence before the court. See the cases of Sele v. The State (1993) 1 NWLR (pt. 267) p.276 at 282 and Iyaro v. The State (1998) 1 NWLR (Pt. 69) P. 256. PER TIJIANI ABDULLAHI, J.C.A.
CORROBORATION: DEFINITION OF THE TERM “CORROBORATION”
Corroboration is defined in Black’s Law Dictionary 7th Edition, in page 348 to wit: “1. Confirmation or support by additional evidence or authority (corroboration witness’s testimony) 2. Formal confirmation or ratification (corroboration of the treaty)In a plethora of decided cases, it has been held by our courts, that for evidence to nave any corroborative effect it must be an independent piece of evidence that supports or strengthen the case of the prosecution. In the case of Okabichi v. The State (1975) NSCC P.124; it was held that: “The evidence that is required or regarded as corroboration is clearly not a repetition of the evidence to be corroborated otherwise there would be no need for the original evidence.” It was further held: “Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is which confirms in some material particular not only the evidence that crime has been committed, but also that the prisoner committed it” (underlining supplied for emphasis. PER TIJIANI ABDULLAHI, J.C.A.
CORROBORATION: WHETHER A CONFESSIONAL STATEMENT OF AN ACCUSED CAN CORROBORATE THE STATEMENT OF ANOTHER ACCUSED WITHOUT THE OTHER ADOPTING THE SAID STATEMENT
it is settled beyond peradventure that a statement or another accused cannot corroborate the statement of another accused without the other adopting the said statement. PER TIJIANI ABDULLAHI, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
JAMES GWANGWAN Appellant(s)
AND
THE STATE Respondent(s)
TIJIANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Ilorin Division Coram M. Abdul Gafar (J) delivered on the 18th day of August, 2008 in suit No. KWS/15C/2009.
The Appellant herein, along with five others were originally arraigned before the trial court on a two count charge as follows:
COUNT ONE
‘”That you Joshua John (m), Emmanuel Gabhabo (m), James Gwawan (m), Zakal Nyan (m), Kazeem Adewoye (m), Shina (m) (at large) on or about the 4th day of July, 2006 at about 2020hrs at a point along Amberi/Offa Road within the Jurisdiction of this Honourable Court conspired to commit a criminal offence, to wit; did have in your possession two life cartridges and a single barrel gun with intent to rob and you thereby committed an offence contrary to Section 97 of the Penal Code.
COUNT TWO
That you Joshua John (m) on or about the 4th day of July, 2006 at about 2020hrs at a point along Amberi/Offa Road within the Jurisdiction of this Court was found to be in illegal possession of two life cartridges and a single barrel gun and you thereby committed an offence punishable under Section 2(3) of the Robbery and Fire Arms Act.”
As can be gathered from the record of proceedings before the commencement of trial, the prosecution withdrew the charge against two of the accused persons who jumped bail and could not be found. The prosecution then proceeded with the arraignment of the Appellant and three others for the offences as contained in the counts enumerated supra.
The case proceeded to hearing with prosecution calling five witnesses and tendered one locally made gun, two life cartridges and statements of the accused persons which were admitted as exhibits before the court. This can be found on pages 44, 54, 56 and 60 of the record respectively.
Each of the accused persons including the Appellant testified for themselves. At the close of the case of the parties, written addresses were filed. However, before the adoption of the addresses, the prosecution sought to and was granted leave to amend the charge sheet following which the Appellant and the other co-accused were charged on five counts to which they all pleaded not guilty.
In a reserved judgment delivered on the 18th of July, 2008, the learned trial Judge convicted the Appellant along with others for the offence of criminal conspiracy to commit armed robbery contrary to Section 6 of the robbery and Fire Arms Special Provisions Act, 2004. He sentenced the Appellant along with others to 14 years imprisonment. Dissatisfied with the decision of the learned trial Judge, the Appellant expressed so by filing a Notice of Appeal which carries seven grounds as contained on pages 91 – 95 of the record. In compliance with the Rules of this Court, the parties duly filed and exchanged their respective briefs. The Appellant’s brief dated 17th day of March, 2010 and filed the same date was deemed properly filed and served on the 17th day of May, 2010, after an application for extension to file the said brief out of time was heard and granted. The Respondent’s brief was filed within time on the 16th of April, 2010. From the seven grounds of appeal, in a brief settled by Oluwakemi Balogun Esq., the learned counsel, distilled four issues for determination as follows:-
(i) Whether the trial Judge was right in not considering the defence of alibi raised by the Appellant which was not rebutted by the Respondent but instead convicted the Appellant of conspiracy? (Ground 4)
(ii) Whether from the circumstances of this case and totality of uncorroborated and contradictory evidence proffered by the Prosecution and affirmed by the Court; the trial Court was right in holding that the Respondent proved its case beyond reasonable doubt judging from the evidence adduced before it? (Grounds 1 and 5).
(iii) Whether or not the trial Judge was not in grave error to have relied heavily on Exhibits 3 and 4 the purported confessional statement of the Appellant which was denied and claimed to be signed under duress in convicting the accused? (Grounds 3, 6, 7 and 8).
(iv) Whether having regards to the circumstances of this case, the trial Judge was not in grave error to have convicted the Appellant based on the contradictory evidence of the Respondent’s witnesses? (Ground 2).
For their part, in a brief settled by Jimoh Adebimpe Mumuni, the Learned Director Public Prosecution, Ministry of -Justice, Kwara, adopted the issues distilled by the Appellant as the issues calling for our determination in this appeal.
On the 11th day of November, 2010, when the appeal came before us for hearing, learned counsel for the Appellant adopted his brief of argument and urged us to allow the appeal and set aside the judgment of the trial court.
Learned counsel for the Respondent, also adopted their brief of argument and urged us to dismiss the appeal for lacking in merit. Let me state at this juncture that before I examine the issues formulated by the Appellant which were adopted by the Respondent, I will treat issues 3 and 4 together for they are strikingly similar.
In arguing issue No. 1, which is whether the trial Judge was right in not considering the defence of alibi raised by the Appellant which was not rebutted by the Respondent but yet convicted the Appellant of conspiracy, learned counsel submitted that the Appellant raised the defence of alibi at the beginning of his trial when he said that:
“….. I was at night duty when I got back my child was sick and I went to get chemist (sic) medicine. I told them where I was coming from.” See page 64 of the records.
On this defence of alibi raised by the Appellant’ learned counsel submitted that apart from a portion of the judgment which will be reproduced anon, there is no where In the body of the judgment where the learned trial Judge referred or ruled on the Appellant’s defence of alibi one way or the other. The learned trial Judge in response to the much talked about defence stated on page 81 of the record thus:
“James Gwanwan the 2nd accused gave evidence DW2.
He said his child was sick and he had gone to buy medicine for his sick child but was arrested by the Police on his way back to his house from the chemist and taken to Ajesipo where he was charged with armed robbery.” See Page 81 of the record.
Learned counsel further submitted that this shows clearly that the Learned trial Judge neither referred nor analyzed the defence of alibi put forward by the Appellant. Learned counsel went on to argue that assuming without conceding that there was actually a crime of conspiracy for which the Appellant was convicted the (Appellant) was no where near the scene of crime, He was on his way to a chemist to buy drugs for his sick child when he was arrested by the Police. Learned counsel further argued that the Appellant had an alibi on the date of the incident which was never investigated or controverted. Learned counsel concluded his argument on this defence by contending that a person cannot be at two or more different places at the sametime. Learned counsel urged us to hold that the learned trial Judge was wrong to have convicted the Appellant for conspiracy in view of the defence of alibi raised by him (Appellant). In support of this argument, learned counsel referred us to the case of Garba vs. The State (1999) 11 NWLR (pt.627) 422 at 439; it is the contention of the learned counsel that the defence of alibi raised by the Appellant is backed by assertion of the Appellant that he was on night duty at Mineral Store Processing Company, Offa which the prosecution never disproved. Learned counsel then submitted that prosecution failed to discharge its evidential and legal burden of proof that the Appellant committed the alleged offence. He relied on Sections 135, 136 and 138 of the Evidence Act, Cap. E14 LFN, 2004.
It is his further contention that under the Constitution of the Federal Republic of Nigeria that the accused is presumed innocent until proved guilty, He has no burden to prove beyond reasonable doubt that he was in fact not at the scene of the crime at the material time. All that the Appellant was required by the law to do is merely to put forward the evidence accordingly. The standard of proof required to establish the defence of alibi is one based on the balance of probabilities, learned counsel further contended. In proof of this contention, learned counsel relied on the cases of Odidika vs. The State (1977) 2 SC. 21; Adeyeye and Ors vs. The State (1968) N.M.L.R. 248; Nwosisi vs. The State (1976) 6 SC. 109 and Ozaki and Anor v. The State (1990) ANLR 94 at 105.
Learned counsel took the view that the defence of alibi raised by the Appellant was not considered by the trial Judge at all. This, according to the learned counsel had caused miscarriage of justice on the part of the Appellant. In support of this view, learned counsel relied on a portion of the Judgment of the trial Court wherein the learned trial Judge held thus:
“The Judgment of this Court is valid. After all the accused is in the best position to say whether he committed the offence or not; although he may decide to hide the truth from the court. If he says he committed the offence, the prosecution need not prove the offence any longer.”
It is the contention of the learned counsel that by the decision of the learned trial Judge stated supra it is crystal clear that the trial Judge did not consider the alibi and erroneously rejected it. For this contention, Learned relied on the case of Adelgun vs. A.G. Oyo State (1987) 1 NWLR (pt. 57) p. 678 at 721.
Learned counsel submitted that to succeed in the defence of alibi, it must be raised at the earliest opportunity that offers itself. Learned counsel then referred to the evidence of the Appellant where he testified inter alia thus:
I was at night duty.
Learned counsel opined that by the testimony of the Appellant stated above, the prosecution having failed to investigate the alibi, the trial court ought to discharge and acquit the Appellant. To support this opinion, learned counsel relied on the cases of Sunday Ndidi vs. The State (2007) 13 NWLR (pt. 1052) 633 at 642 and Alguoreghian vs. The State (2004) All FWLR (pt. 195) 753, per Niki Tobi JSC.
It is the submission of the learned counsel that, the court is bound to consider the defence of an accused person howsoever stupid, bizarre or unreasonable it might be. He relied on the cases of State vs. Azeez (2008) 14 NWLR (pt. 1108) 439; 439i Ogunye vs. The State (1999) 5 NWLR (pt. 604) 548 at 570 – 571 and Musa vs. The State (2007) 11 NWLR (pt. 1045) 202.
Learned counsel is of the view that the combined effect of the provision of Section 36(1) and (5) of the 1999 Constitution and Section 138(1) of the Evidence Act Cap. E14 LFN, 2004, places the burden of proving the guilt of an accused person on the prosecution and it must be beyond reasonable doubt. Learned counsel then submitted that in the case in hand the prosecution having failed to discharge the onus, is a proper instance for the interference of this court, as the findings of the trial court was perverse. We were urged to resolve this issue in favour of the Appellant.
Learned counsel for the Respondent, on the other hand, argued per contra and submitted that the testimony of the Appellant before the court, copiously quoted in paragraph 4.12 of his brief is by no means closer to a defence of alibi in law. The Appellant’s narration, learned counsel went on, is only a description of what he was doing before he was arrested for the offence and has nothing to do with whether he was at the scene of crime or not. This can be found on page 64 of the record.
It is the submission of the learned counsel that the piece of evidence as contained in his narration is only an explanation of the place of arrest as opposed to the question of when and where the crime was committed. At any rate, the Learned Director Public Prosecution further submitted that, the Appellant made a confessional statement which was admitted before the trial Court wherein he raised no such defence. The issue of not considering a defence of alibi by the learned trial Judge did not arise at all in this case, learned counsel opined. He urged us to resolve this issue in favour of the Respondent.
Now, my first port of call is to determine what is alibi and how is it raised by an accused person. It (alibi) is defined in Black’s Law Dictionary, 7th Edition at page 72 as follows:
“Alibi (al-abi) n (Latin “elsewhere”) it is a defense based on the physical impossibility of a Defendant’s guilt by placing the Defendant in a location other than the scene of the crime at the relevant time. Fed. Re. Crim. P. 12.1.2. The fact or state of having been elsewhere when an offense was committed.”
Alibi, however is judicially Interpreted by our erudite Emeritus Justice of the apex court, Obaseki JSC in the case of Ozaki vs. The State (1990) NALR 94 at 105 wherein he held that:
“ALIBI is a defence where an accused alleges that at the time when the offence for which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must be given. This is normally done at the first possible opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established.”
See also, Adio vs. The State (1986) 3 NWLR 714; also reported in (1986) 2 NSCC P. 815. The learned noble Lord did not stop there, he further held that:
“Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. Adedeji vs. The State (1971) 1 All NLR p.75. Failure by the Police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this requirement as was done in the case of Onafowakan VS. The state (1957) 7 S.C.; also reported in (1987) 3 NWLR (pt. 61) PAGE 538.”
It is trite that to succeed in the defence of alibi, it must be raised at the earliest opportunity that offers itself. Sunday Ndidi vs. The State (2007) 13 NWLR (pt. 1052) 633 at 642. And an accused relying on an alibi has a duty to let police know at the earliest opportunity where and with whom he was at all the material times.
It is appropriate at this stage to pause and say that, having stated the law and all that pertaining to alibi, it would not be out of place if I examine what transpired in the lower court with a view to finding whether or not the defence of alibi raised by the Appellant is in tendem with the standard set out in the cases enumerated supra.
At the risk of being repetitive, let me start with the evidence of the Appellant himself, wherein he testified thus:
“…., I was at nigh duty, when I got back my child was sick and I went to got chemist (sic) medicine.
Now, a cursory look at the charge for which the Appellant and others stood trial would disclose the fact that the offence was said to have been committed on or about the 4th of July, 2006. Needless to say, the Appellant’s testimony is a narration of the circumstance of his arrest which took place on 8th of July, 2007, four clear days after the offence was committed.
That aside, the Appellant made a confessional statement to the police which was admitted in evidence but it is instructive to note that he did not put up a defence of alibi in that statement which ought to have been raised at the earliest possible opportunity.
It is settled beyond peradventure that for a defence of alibi to succeed it must be raised at the earliest possible opportunity so that it could be investigated by an investigating police officer. See Sunday Ndidi vs. The state; Akpan v. The state; Onafowokan vs. the State (supra) and Ikemson vs. The State (1989) 3 NWLR (pt.110) p.455.
In the case we have in hand, the Appellant did not even raise the defence of alibi in his statement to the police talkless of raising same at the earliest possible opportunity as he was enjoined to do. This being the case I cannot but agree with the submission of the Learned Director Public Prosecution when he submitted thus:
“I therefore submit that the issues of not considering a defence of alibi by the learned trial Judge does not arise at all in this case. This question therefore goes to no issue and does not arise before the trial court.”
This issue is therefore resolved in favour of the Respondent and against the Appellant.
The 2nd issue for determination is whether from the circumstances of this case and totality of uncorroborated and contradictory evidence proffered by the prosecution and affirmed by the court; the trial court was right in holding that the Respondent proved its case beyond reasonable doubt judging from the evidence adduced before it. Learned counsel took the view that looking at the overall evidence adduced before the trial court, particularly the confessional statement of the Appellant, the learned trial Judge erred in law and facts when he held that the statement was free and voluntary, thereby constituting a valid confessional statement to sustain a conviction.
It is the submission of the learned counsel that the onus of proof is firmly on the prosecution as our system of criminal justice presumes an accused innocent until proven guilty. In support of his submission, learned counsel referred us to the cases of Ukwunnenyi vs. The State (1989) 20 NSCC (pt. 2) 42 at 59; Ikwunne vs. The State (2000) 5 NWLR (pt. 658) 550 at 327). It is also trite, learned counsel went on, that if there is any lingering doubt; it should be resolved infavour of the accused.
For this submission, learned counsel relied on the cases of Oforlete v. The State (2000) 7 WRN 86 at 106 and Oladele v. Nigerian Army (204 6 NWLR (Pt.568) at 166.
Learned counsel referred to some portions of the judgment of the learned trial Judge and contended that in view of what transpired in the lower Court, trial within trial is necessary where the voluntariness of the maker of a confessional statement by an accused person is in issue or raised by an accused person. He relied on the cases of Ogunye vs. The state (1999) 5 NWLR (pt.604) 548 at p.570 paras. F – G and Akpa vs. The state (2008) 14 NWLR (pt.1106)72 at 98 ratio 1.
Learned counsel submitted that the procedure adopted by the trial court was defective by admitting Exhibits 3 and 4. In view of the reasoning of the courts in Ogunye v. state and Akpa v. The State (supra), learned counsel urged us to quash the conviction by the trial court, discharge and acquit the Appellant.
On the other hand, learned counsel for the Respondent held the view that the argument of the Appellant under this issue does not truly reflected the correct position of what transpired before the trial court, learned counsel referred to some findings of the trial court which will be reproduced anon in the course of writing this judgment and submitted that the learned trial Judge adequately considered the evidence on both sides before admitting the statement of the Appellant and acting on same.
Let me start considering this issue by reproducing section 27(1)of the Evidence Act, which states thus:
“A confession is an admission made at any time by a person charge with crime, stating or suggesting the inference that he committed that crime.”
It is instructive to note however, that where an accused alleges that he did not make a confessional statement, the issue is to be decided by the trial Judge in his fact finding capacity at the conclusion of the case.See R. vs. Igweh 5 FSC p.55.
The question that must be asked and answered at this stage is, can it be said from what transpired in the lower court that the Appellant denied making the statement in question. In other words did he retract his confessional statement? To answer this question, recourse had to be made to what transpired in the lower Court.
A closer look at the record of proceedings shows that there was an objection as to the tendering of the statements of the Appellant and the other co-accused on the ground they were not voluntarily made. This can be seen on page 47 of the record of proceedings. The learned trial Judge then ordered for trial within trial. In the course of the proceedings, the learned trial Judge allegedly found that the Appellant retracted his confessional statement. The learned trial Judge relied on the testimony of the appellant wherein he (Appellant) stated thus:
“I told the court that I did not make a statement but I was just asked to sign a paper it-(sic) corporal Tuned Iyadi who brought the statement for me, I never knew him in my life'” See page 65 2nd paragraph, line 3 of the record of Proceedings.”
On this aspect of the case the learned trial Judge held as follows:
“The next point to be considered is the retraction of Exhibits 3.10 by the accused. Each of the accused giving evidence as DW1 – DW4 gave copious evidence of torture in a sustained effort to retract their various confessional statements.
“The position of the law in this regard is quite clear, the court will not allow the fact that an accused person retracted his confession to whittle down the potency of an otherwise valid confession, the Supreme Court made this point in the case of Nwachkwu vs. The State (2007) 7 SC 1 at 34, where Ogbuaewu, JSC opined thus:
“It need to be stressed and this is firmly established that he retraction of the confessional statement by an accused person in his evidence on path (sic) during the trial is of no moment as it does no adversely affect the situation once the court is satisfied as to the truth and it can rely on the confessional statement to ground a conviction. There are too many decided authorities on this, but see the cases of R. v. Itule 1961, All NLR 462; Salawu v. the State (1971) NMLR 249…
In the light of the foregoing, I hold that Exhibit 3 -10 remain potent regardless of the inspirational and sustained onslaught of DW1 – DW4 who regaled the court with stories told by DW1 – DW4 on how they were tortured to sign the statements. It is clear from the personal accounts each of them gave of himself and the account of their relationship interse and their respective roles they claimed to have played, I hold that they were only trying to resile from their free and voluntary confession.”
The question that is begging of an answer is this, can it be said from what transpired in the lower court during trial within trial that the Appellant retracted his alleged confessional statement as found supra by the learned trial Judge. To answer this question, needless to say recourse had to be made to the evidence of the Appellant in the trial within trial conducted by the learned trial Judge.
The Appellant, whilst being led in evidence in chief stated inter alia as follows:
“They after torturing, I agree to co-operate. He was asking me many questions. They then brought me down and took me to the place of taking-statement. I told them I have nothing to say. He hit me with the butt of the gun on my head. They brought a paper for me to sign as my statement and I signed it. They did not read to me fore I signed. I was then taken back to the cell. I see Exhibits 1, 2a and 2b. Nothing was recorded from me.”
Whilst being cross-examined by the learned counsel for the prosecution, the Appellant stated inter-alia thus:
“I cannot remember how many times I signed the statement at Ajassepo. I was beaten and tortured to sign the statement ……. I told the court I did not make a statement but I was just asked to sign a paper. It (sic) corporal Tunde Iyanda who brought the statement for me. I never knew him in my life.”
Now, in the Oxford Advanced Learner’s Dictionary, 6th Edition, the word retract is defined thus:
“To say that something you have said earlier is not true or correct or that you did not mean it.”
In Black’s Law Dictionary, Seventh Edition, page 1318 the noun retraction from the verb retract is defined to wit:
“1. The act of taking or drawing back; 2. The act of recanting; a statement in recantation or 3. Withdrawal of a renunciation.”
It is instructive to pause at his juncture and say that a hard look at the testimony of the Appellant as reproduced above cannot amount to a retraction of the purported confessional statement he was alleged to have made to the Police whilst in custody taking into consideration the definition of retract as enumerated above.
It is now settled that an Appellate court will not interfere with the trial court’s findings of fact where the findings are borne out of the evidence before the trial court. An Appellate court will interfere with the findings of a trial court when such findings have been made on legally inadmissible evidence, or they are perverse or are not based on any evidence before the court. See the cases of Sele v. The State (1993) 1 NWLR (pt. 267) p.276 at 282 and Iyaro v. The State (1998) 1 NWLR (Pt. 69) P. 256.
It is to be stressed at this stage that in view of the testimony of the Appellant as reproduced elsewhere in this judgment and the conclusion reached by the learned trial Judge on the said statement. I am of the considered view that the finding of the learned trial Judge as enumerated supra is perverse and it cannot be sustained. The said finding must be and is hereby set aside. I am of the firm view that had the learned trial Judge carefully evaluated the evidence adduced by both sides in the trial within trial, he would not have arrived at that verdict. The question, I posed a while ago is answered in the negative. For avoidance of doubt, the Appellant did not retract the alleged confessional statement as found by the learned trial Judge.
I am of the firm view that in the light of all that has been said, the trial court was wrong to have held that the respondent has proved its case beyond reasonable doubt. This issue is resolved in favour of the Appellant and against the respondent.
The resolution of this issue is sufficient to dispose of this appeal.
However, in view of the penultimate status of this court; the remaining two issues will be considered together.
Issue No. 3 is whether or not the trial Judge was not in grave error to have relied heavily on Exhibits 3 and 4 the purported confessional statement of the Appellant which was denied and claimed to be signed under duress in convicting the accused and issue No.4 is whether having regards to the circumstances of this case, the trial Judge was not in grave error to have convicted the Appellant based on the contradictory evidence of the Respondent’s witnesses? (Ground 2).
Learned counsel extensively set out the contradictions in the evidence adduced by the prosecution in support of their case against the Appellant in paragraph 4.3.0 of his brief and drew our attention to the decision of this court per Muhammed JCA (as he then was) wherein the learned Lord held as follows:
“In the adversary system of adjudication as operated in this country, a person accused of an offence is presumed innocent until the contrary is proved. This aspect of our judicial system is not only advocated by our constitution but is also guaranteed under section 39(5) and (11) of the 1999 Constitution, at p.514. paragraphs b – H.” See Suberu v. The State (2010) 1 NWLR (Pt. 1174) P.494.
Learned counsel submitted that the prosecution has the fundamental duty of proving the guilt of an accused person beyond reasonable, otherwise the trial vitiates and the accused is entitled to be
discharged and acquitted. For this submission, learned counsel relied on section 36 (1) and (5) of the 1999Constitution and Section 138(1)of the Evidence Act, Cap. E14 LFN, 2004.
Learned counsel referred us to the holding of the learned trial Judge on page 88 of the Records where he held thus:
“I am reminded of if the prosecution prove the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the accused” it is prudent to seek corroboration outside the confession before conviction. In this regard; I find such corroboration in the evidence of PW5 who testified.
See Page 88 of the Records”.
Learned counsel took the view that assuming without conceding that the Appellant allegedly conspired to commit a crime, the learned trial Judge erred in law and facts when he found the Appellant guilty of conspiracy to commit robbery based on the confessional statement of a co-accused. To support this view, learned counsel relied on the cases of Ogunye vs. The state (1999) 5 NWLR (pt.604) 548 at 571; Mbang vs. The state (2009) 18 NWLR (pt. 1172) and Akpa vs. The state (2008) 14 NWLR (Pt.1106) 72 at 94.
Learned counsel is of the view that, having regard to the circumstances of this case it is without doubt that the decision of the lower court in admitting the statement and heavily relying on it was meant to shut the door of justice against the Appellant. We were urged to resolve this issue against the Appellant.
For his part, learned counsel for the Respondent, submitted that apart from Exhibits 3 and 4, there were other pieces of evidence as it were when juxtaposed with the confession of the other co-accused as contained in Exhibits 3, 4, 5, 6, 7, 9 and 10 establish beyond reasonable a clear case of conspiracy to commit armed robbery.
It is the contention of the learned counsel that aside Exhibits 3 and 4 the Appellant herein made exhibit B at Ajese Ipo Police Station immediately after his arrest wherein he stated thus:
“It was only one gun that we get. In the operation it was either Shina or Joshua who usually hold gun, I don’t carry any weapon.”
This piece of evidence, learned counsel went on, was not contested before the trial court by the Appellant on the ground of involuntariness, learned counsel took the view that from these Exhibits’ there was clear evidence of agreement or confederacy between the accused persons, appellant inclusive to strike their deadly act along Offa-Ajase Ipo high way, Igbonla, Fufu and Bolunde Villages in Kwara State.
Learned counsel argued that, assuming but not conceding that Exhibits 3 and 4 were wrongly admitted by the learned trial Judge, there is no difference between the admissions contained in Exhibit 8 which was not contested by the Appellant and Exhibit 3 which is now in issue before the court. Learned counsel submitted that it is now trite that, a confessional statement if direct and positive is enough to ground conviction even without corroboration, although it is always good to look for other corroborations outside it.
It is the submission of the learned counsel that the learned trial Judge did not base the conviction of the Appellant on his statement alone.
Learned counsel went on to submit that, he trial Judge) sought for corroboration of same from the evidence of PW 5. For this submission, learned counsel referred us to p. 86 of the record.
Learned counsel contended that the Appellant retracted his statement, a trial within trial was conducted and the learned trial Judge rightly believed the evidence of the prosecution witnesses. Learned counsel further contended that, the findings of the learned trial Judge were based on the evidence before him. Learned counsel made the point that the Appellant having denied making the statement makes the issue of voluntariness a non issue. For this submission, learned counsel relied on the case of Ogunye vs. The State (supra) p. 576. We were urged to resolve this issue in favour of the Respondent.
Now, let me say straight away, though at the risk of repeating myself that a confessional statement is an admission by a person charged with an offence suggesting the inference that he/she has committed that offence. See Section 27(1) of the Evidence Act.
A confessional statement, if proved positive and direct, could ground a conviction. It is trite that a confessional statement of a co-accused cannot be used to convict another accused unless such confessional statement is adopted by the co-accused. In the case of Mbang v. The State supra, the apex Court, per our erudite justice of that Court.
Onnoghen JSC at 159 paragraphs E – F held thus:
“An accused making a confessional statement as to his participation in a crime is not confessing for his accomplices. A man’s confession is only evidence against him and not against his accomplices and it is a misdirection which may lead to the quashing of the conviction to omit to warn a court of the fact.” Per Onnoghen JSC at 159 paragraphs E – F.
Again, in the case of Afolabi v. C.O.P. (1961) All NL& 682, Taiylor, F.J. delivering the judgment of the Court put it more succinctly thus.
“……the first question you ask when you are examining the confession of a man is, is there anything outside it to show it was true? Is it corroborated? Are there 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 the confession possible/is it consistent with other facts which have been, as in this case Proved before us?”
In the case of Ogunye v. The State supra, the Supreme Court per Iguh JSC held that:
“Evidence of a co-accused which incriminates another accused must be treated with caution by the court.”
The question that readily come to mind is whether the confessional statement of the Appellant, the trial Judge relied upon in convicting the Appellant has passed the litmus test set out in the case of Afolabi v. C.O.P. (supra). But before I answer this question, let me quickly state at this juncture what is corroboration and what evidence can be said to have a corroborative effect in a criminal trial.
Corroboration is defined in Black’s Law Dictionary 7th Edition, in page 348 to wit:
“1. Confirmation or support by additional evidence or authority (corroboration witness’s testimony)
2. Formal confirmation or ratification (corroboration of the treaty)In a plethora of decided cases, it has been held by our courts, that for evidence to nave any corroborative effect it must be an independent piece of evidence that supports or strengthen the case of the prosecution. In the case of Okabichi v. The State (1975) NSCC P.124; it was held that:
“The evidence that is required or regarded as corroboration is clearly not a repetition of the evidence to be corroborated otherwise there would be no need for the original evidence.”
It was further held:
“Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is which confirms in some material particular not only the evidence that crime has been committed, but also that the prisoner committed it”
(underlining supplied for emphasis.
The question to be asked again is this, can it be said that the prosecution has adduced independent evidence that supports or strengthen the alleged confessional statement of the Appellant? The learned trial Judge in his judgment in page 86 of the records took the view that the evidence of PW5 and exhibit 7 and 8, corresponding statement of the 1st and 2nd accused have the effect of corroborating the alleged confessional statement of the Appellant. With due respect to the learned
trial Judge, the evidence of PW5 cannot have any corroborative effect.
PW5 was the policeman who recorded the statements of the accused persons. The mere fact that one of the accused said that other accused persons could be found at Offa and they were found there could not have any corroborative effect taking into consideration that for evidence to have any corroborative effect, must be an independent piece of evidence which not disclose the commission of the offence but the accused/prisoner must that aside, it is settled beyond peradventure that a statement or another accused cannot corroborate the statement of another accused without the other adopting the said statement.
For the foregoing reasons, the question I posed a while ago must answered in the negative, that is to say that the prosecution, contrary to the view taken by the learned trial Judge did not adduce an independent piece of evidence which other supports or strengthens the case of prosecution and I so find. It is instructive to observe that in his fact finding mission, the learned trial judge, on page 88 of the record held thus:
“I have myself evaluated the evidence of the said prosecution witnesses and I do agree with Mr. Agaka that the evidence of PW2, PW3 and PW4 contradict the of PW5…. the prosecution failed to call the alleged victim… There is also failure to call the security guard from whom the accused were said to have collected Exhibit 1, especially in view of the fact that neither John Joshua was arrested with the gun nor the 1st – 4th accused.” See page 89 of the records.
Let me pause a little and say that I am of the view that in the light of this glaring and unresistable case warranting outright discharge and acquittal of the Appellant, the learned trial Judge held thus:
“… my conclusion is that the prosecution has proved the offences.” (See p.89 of the records).
Learned counsel for the Respondent has made heavy weather of the fact that the trial Judge did not convict the Appellant on the contradictory evidence of the prosecution witnesses but rather set the Appellant free on that count but according to the learned counsel convicted him of the offence of conspiracy upon which direct and cogent evidence was led. The view of the learned counsel as enumerated above has no legal basis and cannot be anchored on any direct and cogent evidence which the learned counsel has woefully failed to highlight.
In view of the foregoings, I am of the considered view that the trial Judge was in grave error to have relied heavily on exhibit 3 and 4 the alleged confessional statements of the Appellant in convicting him. These issues are therefore resolved in favour of the Appellant and against the Respondent.
Finally, notwithstanding my conclusion on issue No.1, this appeal is pregnant with a lot of merit and same must be and it hereby allowed. The judgment of the learned trial Judge, dished out against the Appellant is hereby set aside and the sentence of 14 years imprisonment imposed on the Appellant is equally quashed. The Appellant is discharged and acquitted forthwith.
SOTONYE DENTON-WEST, J.C.A.: I have read the entire and comprehensive judgment just delivered by my learned brother, Tijani Abdulahi JCA. I am in complete agreement with his reasonings and conclusions that this appeal is exceedingly meritorious.
The police investigation and prosecution of this case has been very unsatisfactory and confusing. The appellant raised defence of alibi during his defence in court but never raised it, in his alleged confessional statement tendered by the prosecution. It is trite that the defence of alibi must be raised at the earliest opportunity given to enable the police or prosecutor investigate the alibi. A poser here is, what will be the position of the law if an accused raised alibi at the earliest time given, but the police or prosecutor refuses to include it in the accused statement? The word alibi emanates from Latin word alivs and ibi meaning other and there or where respectively. In English usage, it means elsewhere. Alibi means that the accused person was somewhere other than where the prosecution says he was at the time of the commission of the offence making it impossible for him to have committed or participated in the commission of the offence with which he was charged see BOZIN V. STATE (1985)7 SC 480, and MANI v. STATE (1993) 7 NWLR (Pt 303) 112.
In this case the issue of alibi will be of no moment because the appellant never said he told the police or the prosecutor where he was as at the time of the commission of the offence but that it was intentionally omitted by the police.
It is trite that under Nigerian acquisitorial system, the prosecution is to prove its case beyond reasonable doubt as enshrined in section 36(5) of the 1999 constitution before the guilt of an accused can be said to be sustained. Proof beyond reasonable doubt does not mean proof of doubt. The basic necessity of proof before a verdict of guilt in a criminal case can be pronounced is if the court is satisfied at the guilt of the accused beyond reasonable doubt and the evidence must be so closed as not to leave any remote possibility of the innocence of the accused. see CHUKWU V. STATE (2007) ALL FWLR 7224 at 7246, para D-E, and Sule V. STATE (1999) 6 NWLR (pt 60) 449. An accused person is presumed absolutely innocent even where he was caught committing the act, the onus is on the prosecution to prove its case beyond reasonable doubt. This is so, so that innocent people will not be hanged by overzealous policemen and prosecutor who are hell bent to seek vendetta on innocent Nigerians.
On the appellant’s confessional statement, one of the reasons why the appellant was convicted.
It is trite that a court can grant conviction based on a confessional statement by an accused person once the court is satisfied as to its truth and can rely on it see ODIME V. STATE (2007)3 SC (pt.1)176, KAREEM v. FRN (2002)4 SC (pt.11)42 and EDMINE v. STATE (1996) 3 NWLR (pt 438)530 at 541. However, if an accused person resiles from his confessional statement, it is his function to explain to the court as part of his evidence, the reason for the inconsistency.
In the case at hand, the appellant counsel raised objection to the voluntariness of the statement obtained from the appellant, it is however very sad that the prosecution that ought to prove that the statement obtained from the accused was voluntarily made consciously abdicated from his duty and rather pushed the judge to hold that the appellant retracted his statement during the trial within trial Process.
The process of trial within trial is not whether or not the appellant retracted his statement but it is to test the voluntariness or otherwise of the statement.
An accused can only resile or retract his statement during his defence and not during that within trial see Section 28 of the Evidence Act.
It would have been a different scenario, if when the statement was about to be tendered, the accused denied being the maker; but if it is to the voluntariness and not trial must be called into test or verify the voluntariness and not the truthfulness of a statement. The content of a statement may be correct but may not be voluntarily obtained by the police. See EKPO V. FRN (1982)6 SC 10, BARMO V. STATE (2000)1 NWLR (pt 6al) 424 at 432 para B. OPUTA , JSC ( as he then was) held inter alia in OJEGELE V. STATE (1988) NWIR ( Pt 18) thus:
” In any dispute as to the voluntary nature of any given statement the onus is on the prosecutor to prove positively and affirmatively beyond reasonable doubt that the statement is voluntary. To this, the court holds a mini trial within the main trial. If satisfied that the statement was voluntarily made then it will admit same in evidence” (underline mine for emphasis).
In the case at hand the appellant objected to the voluntariness of the statement and he clearly established how same was not rebutted by the prosecution. The finding of the lower court that the appellant retracted his statement is faulty and as such will not stand. On corroboration of statement, Section 92(2) of the Evidence Act provides;
For the purpose of any rule of law or practice requiring evidence to be corroborated, evidence is to be treated as statement rendered admissible as evidence as evidenced by this Act shall not be treated as corroboration of evidence given by the maker of the statement”
Shorn of all embellishments the appellant statement cannot serve as corroborative evidence to his conviction. See UDEDIBIA V. STATE (1996)11 SC 133 at 141, BOLAKALE v. THE STATE (2006)1 NWLR (pt. 962)507 and IDOWU V. STATE (2000) 7 SCNJ, 245 at 360. Corroboration must be external and independent evidence outside of what obtains from the contested confessional statement. I also upheld the decision of my learned brother on this issue.
In doing justice, we should not be too eager to railroad innocent citizens to the gallows. The prosecution has not proved the case against the appellant beyond reasonable doubt.
I too set aside the conviction of the appellant and enter a verdict of not guilty to the charge of criminal conspiracy with intent to commit armed robbery and being in possession of fire arms. I allow this appeal for the above and fuller reasoning ably set forth in the read judgment of my learned brother.
IGNATIUS IGWE AGUBE, J.C.A.: I have read the draft of the read judgment just delivered by my Lord the Honourable P.J.
My Lord has adequately dealt with all the salient issues that have arisen from this appeal and I have nothing to add than to support his reasoning and conclusion that where the prosecution failed in its onerous duty to prove the essential ingredients of the offence against the Appellant, the lower court had no other alternative than to discharge and acquit him. See Onachukwu v. The State (1998) 4 SCNJ at 49; Almu v The State (2009) 10 NWLR (pt. 1148) 31 at 46; Ofolete v. State (2000) 12 NWLR (pt.681) 415 and Obiode & ors. v. The State (1970) 1 ALL NLR 35. The prosecution having failed to discharge the burden cast upon it, the court below also failed in its duty to do substantial justice by convicting the Appellant on the very unreliable evidence elicited by the prosecution witnesses.
Accordingly, and in line with the position taken by my learned Presiding Justice, I also allow this appeal and set aside the conviction and sentence erroneously imposed on the Appellant. He is accordingly discharged and acquitted.
Appearances
Oluwakemi Balogun Esq.For Appellant
AND
Jimoh Adebimpe MuminiFor Respondent
