JOSEPH v. STATE
(2022)LCN/16967CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Monday, November 21, 2022
CA/K/194D/2021
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
MACAULEY JOSEPH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT A STATUTE IS CONSTRUED TO HAVE RETROSPECTIVE OPERATIONS
In the Supreme Court case of GUSAU VS. A.P.C. (2019) 7 NWLR (PT. 1670) PAGE 194 PARA C – E, it was held per Augie JSC that:
“It is a cardinal principle of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the parties.”
In ELIAS VS. FRN (2016) LPELR – 40797 (CA), the Court of Appeal held per Sankey, JCA held at 127 – 128, paras F – E that:
“It is a fundamental principle of law that no statute shall be construed so as to have retrospective operation, unless it pertains to matters of procedure.”
The Supreme Court affirmed its decision in the cases of ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD VS. GARBA (2002) 7 SC (PT. II) 138 and ARE VS. AG WESTERN REGION (1960) SCNLR 224 that:
“Unless it affects purely procedural matters, a statute cannot apply retrospectively except when it is made to do so by clear and express terms.” PER IDRIS, J.C.A.
WHETHER OR NOT TRIAL WITHIN TRIAL IS A FORM OF PROCEDURAL LAW
Is trial within trial a form of procedural law? The Supreme Court in the case of IBEME VS. STATE (2013) 10 NWLR (PT. 1362) PAGE 333 AT 357 PARA E – G, held per Chukwuma-Eneh, JSC as follows:
“The principle of trial within trial is one aspect of dispensing equal justice and fairness under the Rule of Law. By this simple procedure, it is assured that statements of a person charged with a criminal offence obtained by a police officer or anyone in authority otherwise afflicted by any inducement, threats or promises being illegal at law are expunged from the mainstream of the prosecution case at the trial of his cause or matter; and the Court is precluded from acting upon it in dealing with the case. The procedure of trial within trial is so much used to exclude involuntary statements of an accused person that is contrary to the law and it has stuck on for good reason. It is in the light of the above dictum that the reliance on the procedure of trial within trial in our Criminal Justice System has to be judged… I must emphasize that the function of a Court in trial within trial is narrowed down to determining solely the question of voluntariness of the statement in issue and not on whether or not the statement is that of the accused person or improperly recorded.”? A different consideration, however arises, where, subsequent to the complaint by the accused of the involuntariness of his statement, he denies that he made the statement, as in this instant case. PER IDRIS, J.C.A.
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
In the case of OKPAKO VS. STATE (2018) LPELR – 43875 (SC), it was held per Aka’ahs, JSC thus:
“The law is now settled that an accused can be convicted solely on his confessional statement. It is however desirable to have outside a confession, some evidence of circumstances which make it probable that the confession was true.”
Also, the Supreme Court, in the case of PETER ILIYA AZABADA VS. THE STATE (2014) ALL FWLR (PT. 751) PAGE 1620 PARA B held per Onnoghen, JSC that:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved.”
In the case of ISAH VS. STATE (2017) LPELR 43472 (SC), it was held per Bage, JSC that:
“Confession in criminal procedure is the strongest evidence of guilt on the art of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eye witness to the killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In other words, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.” PER IDRIS, J.C.A.
THE POSITION OF LAW ON THE FUNCTION OF AN APPELLATE COURT
It is trite law that the function of an appellate Court in an appeal on question of facts is to ascertain whether the trial Court properly evaluated the evidence before it and whether it correctly approached the assessment of the evidence and whether the admitted evidence was sufficient to support the decision arrived at. See generally, the cases of GAJI VS. PAYE (2003) LPELR (1300) 1 AT 15 – 16; VAB PETROLEUM INC VS. MOMAH (2013) LPELR (19770) 1 AT 30; AGBONIFO VS. AIWEREOBA (1988) 1 NWLR (PT. 70) 325 and ANYAOKE VS. ADI (1986) 3 NWLR (PT. 31) 731 AT 742.
In this wise, the appellate Court will be concerned with whether the decision of the trial Court appealed against is correct and not whether the reasons or modalities leading to the decision reached were right. An appellate Court will therefore not interfere if the judgment of the trial Court is right, since a misdirection which does not occasion injustice will be immaterial and would not affect an otherwise unimpeachable decision. See the cases of AYENI VS. SOWEMIMO (1982) 5 SC 60 AT 73; OJENGBEDE VS. ESAN (2001) LPELR (2372) 1 AT 31 and NDAYAKO VS. DANTORO (2004) LPELR (1968) 1 AT 32.
However, the appellate Court will have the right to interfere with the findings of fact made by the trial Court if the decision has occasioned a miscarriage of justice. In the case of TSKJ (NIG.) LTD VS. OTOCHEM (NIG) LTD (2018) 11 NWLR (PT. 1630) PAGE 330 AT 344 PARAS E – F, PAGE 352 PARA G, it was held per I. T. Muhammad, JSC that:
“Permit me, my Lords, to draw attention from the outset in this issue that it is not the business of the Court below (unless in exceptional circumstances) to evaluate and thus, ascribe probative value to evidence. That is the whole mark of the trial Court that heard, saw, observed and ascribed probative value to evidence through witnesses. The only assignment expected of an appeal Court (in the appeal) is to review, among other things, the evidence and the whole proceedings of the trial Court.
… assessment of evidence and ascription of probative value to such evidence is the primary duty of a tribunal of trial and Court of Appeal can only interfere if the trial tribunal has performed badly in that area.” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): Upon the grant of an application seeking for leave to prefer a charge, the Appellant was arraigned before the High Court of Justice of Kaduna on a three-count charge dated the 17th day of November, 2016. The charge is reproduced hereunder as follows:
COUNT ONE
That you, 1. Stephen Adeola Femi 2. Emmanuel Onyeabuchi 3. Amaechi Kingsley and 4. Macaulay Joseph on or about the 18th day of February, 2016 did agree among yourselves under common intention to commit the offence of Armed Robbery by robbing Mr. and Mrs. Ifeanyi Chukwu of their cars- Toyota Camry with registration number Abuja CF 781 RBC and Toyota S with registration number Kaduna KAF 156 AA along with their mobile phones, electronics and jewellery, while armed with guns. By such agreement, you committed the offence of Conspiracy under Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, 2004.
COUNT TWO
That you 1. Stephen Adeola Femi, 2. Emmanuel Onyebuchi and 3. Amaechi Kingsley on or about 18th day of 2016 at 35 Sarki road, Bayan Dutse, Narayi, Kaduna at about 7.3am did rob Mr. and Mrs. Ifeanyi Chukwu of their cars Toyota Camry with registration number Abuja CF 781 RBC and Toyota S with registration number Kaduna KAF 156 AA along with their mobile phones, electronics and jewellery, while armed with guns. You thereby committed the offence of Armed Robbery under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria 2004.
COUNT THREE
That you Macaulay Joseph on or about the 18th day of February, 2016 did receive a “Toyota S” car from Stephen Adeola Femi, Emmanuel Onyeabuchi and Amaechi Kingsley with Registration number Kaduna KAF 156 AA which was obtained from Mr. and Mrs. Ifeanyi Chukwu while armed with guns. You thereby committed the offence of receiving of a Robbery property punishable under Section 5 of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria 2004.
At the trial Court, the charge was brought against (1) Stephen Adeola Femi (1st Defendant), (2) Emmanuel Onyeabuchi (2nd Defendant), (3) Amaechi Kingsley (3rd Defendant) and (4) Macaulay Joseph (4th Defendant/Appellant) and upon their arraignment, they all entered a plea of not guilty.
The Prosecution opened its case and called 4 witnesses who testified as PW1 – PW4 and tendered 21 exhibits in all.
The Appellant and his co-accused persons testified in their own defence as DW1 – DW4. There was a trial within trial in respect of the statement of the 2nd defendant during which three witnesses testified.
The learned trial Judge went ahead to evaluate the evidence before him and then concluded that the prosecution failed to proffer any single direct and cogent evidence linking the 4th defendant who is the Appellant herein, to count one and two of the charge. The learned trial Judge further stated that the only evidence the Prosecution had against the 4th Defendant/Appellant was his confessional statement which has been retracted on the ground of involuntariness. The trial Judge further stated that the other co-defendants gave evidence exonerating the Appellant of being involved in the robbery.
Consequently, the learned trial Judge then went ahead to convict the 1st – 3rd defendants of conspiracy to commit armed robbery against PW1 and his wife as PW1 had even identified them as the three people that robbed them. PW1 was described as a credible witness and the Court below held that the prosecution had proved the case against the 1st – 3rd defendants and convicted them of count one and two, and they were sentenced to death accordingly.
The Appellant was however convicted of count three of the charge and he was sentenced to life imprisonment.
Dissatisfied with the judgment of the trial Court below, the Appellant filed a Notice of Appeal dated the 20th day of January, 2021, raising 6 (six) Grounds of Appeal.
The Appellant also filed his brief of argument dated the 25th day of January, 2022 and deemed properly filed on the 26th day of January, 2022 and settled by Emmanuel Ekhasemomhe, Esq. In the said Appellant Brief of Argument, the following 3 (three) issues for determination were distilled:
(1) Whether the learned trial Judge was right in relying in the provisions of the Administration of criminal justice law of Kaduna 2017, a law which came into force after the filing of the Charge and subsequent arraignment of the Appellant in admitting Exhibit 7 (the Appellant’s purported confessional statement) and subsequently convicting the Appellant on the basis of same. (Distilled from Grounds 1 and 2 of the Appellant’s Notice of Appeal)
(2) Whether having regard to the totality of the evidence led by the prosecution and the contents of the documentary evidence tendered, it can be said that the Prosecution has been able to prove beyond reasonable doubt, the offence of receiving of a robbed property against the Appellant as contained in Count 3 of the charge sheet. (Distilled from the Grounds 3 and 6 the Appellant’s Notice of Appeal)
(3) Whether the learned trial Judge was right in convicting the Appellant for the offence of receiving of a robbed property as contained in Count 3 of the charge sheet solely on the uncorroborated and retracted confessional statement of the Appellant. (Distilled from Grounds 4 and 5 of the Appellant’s Notice of Appeal)
On issue one, the learned counsel for the Appellant cited the provision of Section 4(9) of the 1999 Constitution of the Federal Republic of Nigeria which provides that the National Assembly or House of Assembly shall not in relation to any criminal offence whatsoever, have the power to make any law which shall have retrospective effect. Section 2 of the Administration of Criminal Justice Law of Kaduna State which provides that it shall have no retrospective effect was also cited.
It is the Appellant’s counsel’s argument that the armed robbery leading to the charge took place in 2016 and that the Appellant and the other defendants were all arraigned before the coming into force of the said law. It was further argued that it is the Criminal Procedure Code that is applicable since it had been in force at the commencement of the case which equally leaves room for the application of the Evidence Act 2011 as it bothers on admission of a confessional statement. Reference was made to the case of SELE VS. STATE (1993) 1 NWLR (PT. 269) PAGE 276 AT 293 PARAS F – G.
It was further submitted that it is the law which was in force as at the date of the arraignment of the Appellant that ought to have been applied by the trial Court. Reference was made to the case of ABDU VS. STATE (2021) LPELR – 55097. That the learned trial Judge was wrong when he applied the provisions of Section 37(7) of the Administration of Criminal Justice Law of Kaduna State 2017. It was then submitted that the learned trial Judge acted in contravention of Section 29(2)(a) and (b) of the Evidence Act, 2011 and Section 4 of the 1999 Constitution of the Federal Republic of Nigeria by placing reliance on Section 37(7) of Administration of Criminal Justice Law of Kaduna State, 2017, in admitting Exhibit 7 (Appellant’s purported confessional statement) instead of conducting a trial within trial to ascertain its voluntariness when the Appellant’s counsel objected to the admissibility of the said statement on the ground of brute force used in obtaining same.
On issue two, it was submitted that it is trite law that the Prosecution is required by law to prove the allegation of the offence against the Appellant beyond reasonable doubt. The case of STEPHEN VS. STATE (2009) ALL FWLR (PT. 491) PAGE 962 AT 975 was cited in support.
It was argued that the Appellant was convicted and sentenced for the offence in count 3 of the charge sheet which relates to the offence of receiving a robbed property punishable with life imprisonment under Section 5 of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004.
It was further submitted that the Prosecution is required to prove that:
(a) Something or property has been received by the Defendant.
(b) The property he received was obtained by any act constituting an offence under the Act.
It was further argued that none of the witnesses called by the Prosecution were able to establish the ingredients of this offence against the Appellant and thus the Prosecution failed to prove this crime.
It was then submitted that the Appellant’s evidence was not contradicted, discredited or controverted by the Respondent, and that the evidence of the Respondent never linked the Appellant to the purported sales of the PW1’s Toyota Corolla to Alhaji Dauda and to the commission of the offence alleged and that the major part of their evidence was heavy reliance on the alleged confessional statement of the Appellant which was retracted and never corroborated by any independent and corroborative evidence. The case of ADAMU VS. STATE (2013) LPELR – 20770 was cited in support.
On issue three, the Appellant’s counsel argued that the learned trial Judge was wrong in convicting and sentencing the Appellant for the offence of receiving a robbed property solely on the uncorroborated and retracted confessional statement of the Appellant. It was also submitted that the learned trial Judge without adequately taking into consideration the uncontroverted and uncontradicted evidence of the Appellant, solely relied on the purported confessional statement of the Appellant in convicting him of Count 3 of the charge sheet.
It was then stated that instead of conducting a trial within trial to ascertain the voluntariness of Exhibit 7 when the objection was raised, the learned trial Judge wrongly applied the provisions of Section 37(7) of the Administration of Criminal Justice Law of Kaduna State 2017.
It was argued that a trial within trial is conducted to test the voluntariness or otherwise of a statement and not the truthfulness of the contents therein. Reference was made to the case of MOHAMMED VS. STATE (2016) LPELR – 42907 and submitted the learned trial Judge was wrong when he held that he had read through Exhibit 7 and it was freely and voluntarily made. It was further argued that even though a Court can convict solely on the defendant’s confessional statement, the Court has held that where it is a capital offence as it is in this case, there should be some corroborative factors as held in the case of R V. SYKES (13) 18 CR APP 233.
It was further submitted that the Appellant has already discharged the duty placed on him by the Court on the issues surrounding the retraction of his confessional statement. The case of ILIYASU VS. STATE (2015) 11 NWLR (PT. 1469) PAGE 26 AT PAGE 81 PARAS A – C was cited in support.
It was finally submitted by the Appellant’s counsel that the evidence of the parties was misappropriated as a result of failure of the lower Court to adequately evaluate the evidence of the parties and finding the Appellant guilty on the basis of such evaluation of evidence occasioned a miscarriage of justice on the Appellant.
The Court was urged to allow the appeal.
The Respondent on the other hand, filed its brief of argument dated the 26th day of September, 2022 and settled by Christopher Okeke, Esq. in the said Respondent Brief of Argument, the following 2 (two) issues were distilled for determination thus:
(a) Whether having regard to the totality of the evidence led by the Respondent before the lower Court and the contents of the documentary evidence tendered, it can be said that the Respondent discharged the burden of proof beyond reasonable doubt, with respect to the offence of receiving of a robbed property against the Appellant as contained in Count 3 of the charge sheet to warrant his conviction and sentencing. (Distilled from grounds 3, 4, 5 and 6 the Notice of Appeal)
(b) Whether the admissibility of Exhibit 7 (Appellant’s confessional statement) in the face of the objection by the defence occasioned a miscarriage of justice despite the uncontradicted evidence of PW3 and PW4. (Distilled from Ground 1 and 2 of the Notice of Appeal)
On issue one, learned counsel for the Respondent argued that even though it is trite law that the burden of proof lies on the Prosecution to prove the guilt of the Defendant beyond reasonable doubt, it does not mean it should be proved beyond all shadow of doubts.
It was then submitted that after a careful evaluation of the case of each party and the compelling evidence led against the Appellant, the Court below had found that the Respondent proved beyond reasonable doubt the guilt of the Appellant.
It was further argued that the offence of receiving a robbed property in respect of which the Appellant was convicted and sentenced by the trial Court is as provided for under Section 5 of the Robbery and Firearms (Special Provisions) Act Cap R 11 LFN 2004. It was submitted further that the Respondent had proved at the lower Court that a property was received by the Appellant and that the property he received was obtained by an act of robbery.
It was further submitted that the Respondent elicited evidence from PW3, the Investigating Police Officer through 8 exhibits including the confessional statement of the Appellant to prove his guilt and that PW3 and PW4 also confirmed that the Appellant received stolen goods and that this evidence was not controverted by the Appellant at the trial Court.
This Court was urged to hold that the Respondent successfully discharged the burden of proving the ingredients of the offence of receiving a robbed property against the Appellant.
On issue two, the learned counsel for the Respondent submitted that the admissibility of Exhibit 7 in the face of objection by Appellant’s counsel did not occasion any miscarriage of justice in the face of the uncontradicted evidence of PW3 and PW4.
It was argued that the law is trite that a Court can convict upon the evidence of one credible witness if he is not an accomplice and his evidence has sufficient probative value regarding the ingredients of the offence charged. Reference was made to the case of OFOKE NWAMBE VS. THE STATE (1995) 3 NWLR (PT. 384) PAGE 385 AT 447.
It was argued further that the failure to conduct a trial within trial did not occasion a miscarriage of justice as the evidence of PW3 and PW4 already outlined which was neither contradicted nor controverted by the Appellant, was sufficient to ground a conviction against the Appellant for the offence charged. This Court was urged to so hold.
RESOLUTION OF THE ISSUES
Having read and summarized the arguments of the respective counsels for the parties, I shall now proceed to determine the appeal and in so doing I shall adopt the issues for determination formulated by the Appellant herein because in my opinion, they reflect all the issues that have arisen for the determination of this appeal. The issues are again reproduced hereunder as follows:
(1) Whether the learned trial Judge was right in relying on the provisions of the Administration of Criminal Justice Law of Kaduna 2017, a law which came into force after the filing of the Charge and subsequent arraignment of the Appellant in admitting Exhibit 7 (the Appellant’s purported confessional statement) and subsequently convicting the Appellant on the basis of same.
(2) Whether having regard to the totality of the evidence led by the prosecution and the contents of the documentary evidence tendered, it can be said that the Prosecution has been able to prove beyond reasonable doubt, the offence of receiving a robbed property against the Appellant as contained in Count 3 of the charge sheet.
(3) Whether the learned trial Judge was right in convicting the Appellant for the offence of receiving a robbed property as contained in Count 3 of the charge sheet solely on the uncorroborated and retracted confessional statement of the Appellant.
ISSUE ONE
Whether the learned trial Judge was right in relying on the provisions of the Administration of Criminal Justice Law of Kaduna 2017, a law which came into force after the filing of the Charge and subsequent arraignment of the Appellant in admitting Exhibit 7 (the Appellant’s purported confessional statement) and subsequently convicting the Appellant on the basis of same.
In the Supreme Court case of GUSAU VS. A.P.C. (2019) 7 NWLR (PT. 1670) PAGE 194 PARA C – E, it was held per Augie JSC that:
“It is a cardinal principle of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the parties.”
In ELIAS VS. FRN (2016) LPELR – 40797 (CA), the Court of Appeal held per Sankey, JCA held at 127 – 128, paras F – E that:
“It is a fundamental principle of law that no statute shall be construed so as to have retrospective operation, unless it pertains to matters of procedure.”
The Supreme Court affirmed its decision in the cases of ORTHOPAEDIC HOSPITALS MANAGEMENT BOARD VS. GARBA (2002) 7 SC (PT. II) 138 and ARE VS. AG WESTERN REGION (1960) SCNLR 224 that:
“Unless it affects purely procedural matters, a statute cannot apply retrospectively except when it is made to do so by clear and express terms.” From these decisions, it is fairly apparent that while substantive laws cannot be interpreted by Courts of law to have retrospective operation, when it comes to rules of procedure, it is permissible. Thus, the ACJ Act being rules guiding the procedure of criminal trials in Federal High Courts and FCT High Courts, are capable of retrospective effect.”
I must say that contrary to the erroneous contention of the Appellant’s counsel, the ACJA being a statute containing provisions on practice and procedure, is capable of being applied retrospectively. But it must be noted that any retrospective application of the ACJA, being a procedure law, can only affect procedures pending before the Court.
From the above cited cases, it is clear that whenever an Act or Statute is enacted, it does not have retrospective effect unless it bothers on only procedural law. Its effect cannot be backdated so as to be applied to substantive law issues that were in existence before its enactment.
The Appellant’s counsel has argued that the learned trial Judge was wrong to have applied the provisions of Section 37(7) of the Administration of Criminal Justice Law of Kaduna State in admitting Exhibit 7 which is the Appellant’s extra-judicial statement. The Appellant’s counsel has further argued that as at the time the alleged offence was committed and even as at the time of arraignment, the Administration of Criminal Justice Law of Kaduna State was not in existence and thus, it could not be applicable in the instant case. Reference has been made to the provision of Section 2 under Part 1 of the Administration of Criminal Justice Law of Kaduna State 2017 which is reproduced hereunder as follows:
“This law shall come into operation on the 29th day of May, 2017. There is nothing therein to show it has a retrospective effect. Section 492 of the aforementioned law made savings as to other forms and procedures. This Section saves the Criminal Procedure Code which has been the procedural law in use before the enactment of the Kaduna State Administration of Criminal Justice Law.”
By the literal interpretation of the above provision, it is clear that the Administration of Criminal Justice Law of Kaduna State would have retrospective effect as long as it is in respect of other forms and procedural law. I have read through the Record of Proceedings and I can clearly see on page 58 of the Record of Proceedings where the learned trial Judge held that:
“The voluntariness or otherwise of the statements of 1st and 4th defendants and whether or not the 3rd Defendant made the statement credited to him shall be determined by the Court during judgment as provided in Section 37(7) of the Administration of Criminal Justice Law 2017.”
I have read the judgment of the trial Court and I do not see anywhere the Court cited the provision of Section 37(7) of the Administration of Criminal Justice Law of Kaduna State 2017. However, still going by the record, it is clear that the learned trial Judge relied on the said provisions in admitting Exhibit 7.
The learned counsel for the Appellant has also argued that the learned trial Judge acted in contravention of Section 29(2)(a) and (b) of the Evidence Act 2011 and Section 4 of the Constitution of Federal Republic of Nigeria 1999 (as amended) when he placed reliance on Section 37(7) of the Administration of Criminal Justice Law of Kaduna State 2017 in admitting Exhibit 7 instead of conducting a trial within trial to ascertain the voluntariness of the said exhibit when the Appellant’s counsel objected to the admissibility of same on the ground of brute force used in obtaining the said exhibit.
I have read the Record of Proceedings and on pages 83 – 87 of the said record, the testimony of the Appellant is contained therein. On page 85, it is stated thus:
“… I was handcuffed. My legs were tied and I was forced to put my hands in between my knees and the iron pipe was passed between my hands and my knees. Two of them, Stephen Bot and Inspector Zaro then raised me up and hanged me in between two tables and used a baton to beat my knees, elbows, shoulders. Bot brought a lighter from his pocket and lit fire on my near and used slaps to quench the fire. The pains were too much for me to bear. So I decided to tell them to drop me and whatever they wanted, I would do.
I fell down and hit my face on the floor as they were trying to bring me down. That was when I sustained the deep cut between my nose and my upper lip. I was dropped and they brought the document and I signed. Blood was gushing out so after the signing they took me to their police clinic and iodine was applied and I was given panadol.”
Also on page 86 of the Record of Appeal, it was further stated by the Appellant that:
“I see Exhibit 7. I was not the one that narrated what is in the Exhibit… After throwing the statement I was forced to sign, Mogaji did not ask me to write any statement.”
From the above quoted portions, it is clear that the Appellant was asserting involuntariness while making the statement. The person who signs a document is presumed by law to be the maker and thus, it is inconsequential that he did not write the said statement as claimed by him. As long as he involuntarily signed the said document, he has raised the involuntariness of making the confessional statement.
Is trial within trial a form of procedural law? The Supreme Court in the case of IBEME VS. STATE (2013) 10 NWLR (PT. 1362) PAGE 333 AT 357 PARA E – G, held per Chukwuma-Eneh, JSC as follows:
“The principle of trial within trial is one aspect of dispensing equal justice and fairness under the Rule of Law. By this simple procedure, it is assured that statements of a person charged with a criminal offence obtained by a police officer or anyone in authority otherwise afflicted by any inducement, threats or promises being illegal at law are expunged from the mainstream of the prosecution case at the trial of his cause or matter; and the Court is precluded from acting upon it in dealing with the case. The procedure of trial within trial is so much used to exclude involuntary statements of an accused person that is contrary to the law and it has stuck on for good reason. It is in the light of the above dictum that the reliance on the procedure of trial within trial in our Criminal Justice System has to be judged… I must emphasize that the function of a Court in trial within trial is narrowed down to determining solely the question of voluntariness of the statement in issue and not on whether or not the statement is that of the accused person or improperly recorded.”? A different consideration, however arises, where, subsequent to the complaint by the accused of the involuntariness of his statement, he denies that he made the statement, as in this instant case.
Having held that a trial within trial falls under procedural law, the provisions of the Administration of Criminal Justice Law of Kaduna State has retrospective effect in this regard and thus, the trial Court was right when it relied on it during the trial of the Appellant.
Issue one is therefore resolved against the Appellant.
ISSUES TWO AND THREE
Whether having regard to the totality of the evidence led by the prosecution and the contents of the documentary evidence tendered, it can be said that the Prosecution has been able to prove beyond reasonable doubt, the offence of receiving a robbed property against the Appellant as contained in Count 3 of the charge sheet.
AND
Whether the learned trial Judge was right in convicting the Appellant for the offence of receiving a robbed property as contained in Count 3 of the charge sheet solely on the uncorroborated and retracted confessional statement of the Appellant.
Section 135 of the Evidence Act (2011) provides as follows:
“If the commission of a crime by a party to a proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable.”
In our criminal law, the burden of proof is on the Prosecution and it must be proved beyond reasonable doubt as mandated by the provision of Section 135 (1) of the Evidence Act, 2011. Proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt. See generally, the cases of BANJO VS. STATE (2013) 16 NWLR (PT. 1331) 455; UMAR VS. STATE (2014) 13 NWLR (PT. 1425) 497; DIBIA VS. STATE (2017) 12 NWLR (PT. 1579) 196; AGU VS. STATE (2017) 10 NWLR (PT. 1573) 171 and THOMAS VS. STATE (2017) 9 NWLR (PT. 1570) 230.
In legal parlance, proof beyond reasonable doubt is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable.” See MAIGARI VS. STATE (2013) 17 NWLR (PT. 1384) 425.
Did the Prosecution prove the charge against the Appellant beyond reasonable doubt? Did the Prosecution prove the ingredients of receiving stolen goods beyond reasonable doubt to secure a conviction against the Appellant?
I have read through the judgment of the learned trial Judge contained on pages 161 – 163 of the Record of Appeal and it is clear that the Appellant was convicted based on Exhibit 7, his confessional statement. I have painstakingly read through the said Exhibit 7, the confessional statement.
This brings me to the question: can the Court convict the Appellant in this case solely on the confessional statement? Is the confessional statement of the Appellant direct and unequivocal?
In the case of OKPAKO VS. STATE (2018) LPELR – 43875 (SC), it was held per Aka’ahs, JSC thus:
“The law is now settled that an accused can be convicted solely on his confessional statement. It is however desirable to have outside a confession, some evidence of circumstances which make it probable that the confession was true.”
Also, the Supreme Court, in the case of PETER ILIYA AZABADA VS. THE STATE (2014) ALL FWLR (PT. 751) PAGE 1620 PARA B held per Onnoghen, JSC that:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved.”
In the case of ISAH VS. STATE (2017) LPELR 43472 (SC), it was held per Bage, JSC that:
“Confession in criminal procedure is the strongest evidence of guilt on the art of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eye witness to the killing, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In other words, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.”
Before the Appellant can be said to be convicted based on his confessional statement, the Prosecution must have proved the ingredients of the offence for which he was charged.
In the case of AYEFIGBO VS. STATE (2018) LPELR – 45140, it was held per Abdullahi, JCA that the essential ingredients of receiving stolen property are:
“The Appellant was charged for receiving stolen property under Section 5 of the Robbery and Firearms (Special Provision) Act. To prove the offence of receiving stolen property, two facts must be established, viz;
(1) That the property in question was actually stolen and
(2) That the accused knew that the property was stolen.
Once these two ingredients are established with credible evidence, the offence of receiving stolen property is proved.”
Did the Prosecution prove that the property in question was actually stolen and the Appellant knew for sure that the property was stolen?
I have read through the Record of Appeal contained on page 160 and I quote:
“The confession in Exhibit 7 is corroborated by the statements of the 1st, 2nd and 3rd Defendants (Exhibits 5, 6, 8, 9 and 10) and the evidence of PW1, PW2 and PW4 that the Toyota Corolla S that was stolen along with Toyota Camry was not recovered as the receiver had already taken delivery of it. It also corroborates the statements of the 1st, 2nd and 3rd Defendants that the Camry had not yet been received by the receiver as they were waiting for the person he sent to collect the car before they were arrested at Turaki hotel where he received the Corolla S. There is a correlation between the confessional statement of the 4th Defendant and those of the 1st, 2nd and 3rd Defendants.
The statements of the 1st, 2nd and 3rd Defendants (Exhibits 5, 6, 8, 9 and 10) offer corroborative materials to the confession of the 4th Defendant… I am satisfied with the truth of the confession in Exhibit 7. It has been corroborated and it is possible. The statements of facts made in it are true as far as they can be tested and it is consistent with other facts that have been proved and ascertained.”
I have read Count 3 of the charge again and I can see that the Appellant was charged with receiving a “Toyota S” car with Registration Number Kaduna KAF 156 AA from the three co-accused persons he stood trial with at the trial Court.
Without any doubt, the said “Toyota S” was stolen by the three co-accused persons as held by the trial Court. However, when and how was the said “Toyota S” received by the Appellant? Which day? Was it found in his possession? Is there any hard evidence to show that he was ever in possession of it? Is there any evidence on record to prove that he received it and then transferred it as alleged by the prosecution witnesses?
PW1 during his testimony on page 36 of the record of proceedings had said that “they said they gave the second car to the 4th accused but the car has not been recovered.”
PW3 stated during his testimony on page 61 of the record of proceedings that:
“There was no Exhibit recovered from the 4th Defendant. He was arrested by SIIB. I took his statement. I did not take him to a S.P.O. His statement was not endorsed because he was in custody of SIIB as I have explained. The 4th defendant is the Macauley linked to the case because he said so in his statement. He was mentioned as Macauley and he confirmed. It is not true that the 4th Defendant was not known to 1st – 3rd Defendants before their arrest. He was known to them. He was not tortured by SIIB before I went to take his statement because he was hale and hearty. His statement is confessional. Endorsement is only an administrative procedure.”
There is nothing from the above testimony connecting the Appellant to the said “Toyota S.”
PW4 clearly stated during his cross-examination on page 70 of the Record of Appeal that “I have never met the 4th Defendant.”
All I can see here are speculations and hearsay evidence that is not creating a strong link between the Appellant and the said “Toyota S”. It is a car we are talking about here and not a pack of toys that we can assume could have “vanish” without no trace. If indeed the co-accused persons mentioned Macauley as their regular receiver, did he receive this particular “Toyota S”? If yes, When? Did he receive it personally or through a proxy? Where is the said “Toyota S?” Where was the “Toyota S” car last seen and in whose possession? Is there anyone that saw the said car with the Appellant or is there any evidence that undoubtedly connects him to the car? All these questions have been left unanswered by the Prosecution and thus, I make bold to say that the Prosecution has failed woefully in proving the ingredients of receiving stolen property against the Appellant. Even with the admitted confessional statements of the co-accused persons at the trial, I cannot see a direct and strong link between the Appellant and his ever receiving the said stolen car.
The learned trial Judge had on page 57 of the Record of Appeal held that:
“The allegation is a cock and bull story. I reject his defence. I have no doubt whatsoever in my mind that the 4th Defendant received the Toyota Corolla S with registration number KAF 156 AA that the 1st, 2nd and 3rd Defendants stole from the PW1 and he knew that it was a robbed car. I hold that the prosecution has proved the two ingredients of count three against the 4th Defendant beyond reasonable doubt.”
It is trite law that the function of an appellate Court in an appeal on question of facts is to ascertain whether the trial Court properly evaluated the evidence before it and whether it correctly approached the assessment of the evidence and whether the admitted evidence was sufficient to support the decision arrived at. See generally, the cases of GAJI VS. PAYE (2003) LPELR (1300) 1 AT 15 – 16; VAB PETROLEUM INC VS. MOMAH (2013) LPELR (19770) 1 AT 30; AGBONIFO VS. AIWEREOBA (1988) 1 NWLR (PT. 70) 325 and ANYAOKE VS. ADI (1986) 3 NWLR (PT. 31) 731 AT 742.
In this wise, the appellate Court will be concerned with whether the decision of the trial Court appealed against is correct and not whether the reasons or modalities leading to the decision reached were right. An appellate Court will therefore not interfere if the judgment of the trial Court is right, since a misdirection which does not occasion injustice will be immaterial and would not affect an otherwise unimpeachable decision. See the cases of AYENI VS. SOWEMIMO (1982) 5 SC 60 AT 73; OJENGBEDE VS. ESAN (2001) LPELR (2372) 1 AT 31 and NDAYAKO VS. DANTORO (2004) LPELR (1968) 1 AT 32.
However, the appellate Court will have the right to interfere with the findings of fact made by the trial Court if the decision has occasioned a miscarriage of justice. In the case of TSKJ (NIG.) LTD VS. OTOCHEM (NIG) LTD (2018) 11 NWLR (PT. 1630) PAGE 330 @ 344 PARAS E – F, PAGE 352 PARA G, it was held per I. T. Muhammad, JSC that:
“Permit me, my Lords, to draw attention from the outset in this issue that it is not the business of the Court below (unless in exceptional circumstances) to evaluate and thus, ascribe probative value to evidence. That is the whole mark of the trial Court that heard, saw, observed and ascribed probative value to evidence through witnesses. The only assignment expected of an appeal Court (in the appeal) is to review, among other things, the evidence and the whole proceedings of the trial Court.
… assessment of evidence and ascription of probative value to such evidence is the primary duty of a tribunal of trial and Court of Appeal can only interfere if the trial tribunal has performed badly in that area.”
In the case of F. R. N. VS. IWEKA (2013) 3 NWLR (PT. 1341) P. 285 AT 336, it was held:
“A Court can convict on a confessional statement alone without corroboration once it is satisfied with the truth of the confession.”
In the case of PETER ILIYA AZABADA VS. THE STATE (2014) ALL FWLR (PT. 751) 1620, PARA B, the Court, per the Onnoghen, JSC (as he then was) declared that:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is constant with other ascertained facts which have been proved… Confession in criminal procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than evidence of an eye witness because the evidence comes from the horse’s mouth who is the accused person. There is no better evidence and there is no further proof.”
An accused person can be convicted on the uncorroborated confessional statement, however, the Court must be absolutely satisfied that undoubtedly it is true and unequivocal.
I have read through the said Exhibit 7, i.e. the confessional statement of the Appellant and I make bold to say that it is not satisfactory enough to secure the conviction of the Appellant. In the Supreme Court case of C & C. B. DEV. CO. LTD VS. HON. MINISTER OF ENVIRONMENT HOUSING & URBAN DEVELOPMENT & ANOR (2019) LPELR – 46548, it was held per Eko, JSC that:
“Generally, the attitude of appellate Courts to the exercise of discretion by lower Court is that, unless the exercise of discretion by the lower Court is manifestly wrong, arbitrary, reckless or injudicious, or where it does occasion miscarriage of justice to the Respondent, the Appellate Court would not interfere merely because, faced with similar circumstances, it would have reacted differently.”
Issues two and three are accordingly hereby resolved in favour of the Appellant.
In the circumstances, I find merit in this appeal and the same is accordingly allowed. The Appellant is hereby discharged and acquitted. An order is made for the immediate release of the Appellant from prison custody forthwith.
AMINA AUDI WAMBAI, J.C.A.: I agree.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA, and I agree with the reasoning and conclusion.
Appearances:
J. C. Anieh, Esq. For Appellant(s)
C. E. Okeke, Esq. For Respondent(s)
