LEKAN v. IGP
(2020)LCN/14833(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, December 30, 2020
CA/A/977C/2019
RATIO
CONFESSIONAL STATEMENT: THE LAW AS IT RELATES TO THE PROPER TIME WITHIN WHICH TO RAISE AN OBJECTION TO A CONFESSIONAL STATEMENT
Now the law as it relates to the proper time within which to raise an objection to a confessional statement has been set down in a plethora of case law including FRN VS. SANI (2014) 16 NWLR (PT. 1433) 299; JOHN VS. STATE (2011) 18 NWLR (PT. 1278) 353 and IGRI VS. STATE (2012) 16 NWLR (PT. 1327) 522. The law has been established by the cases mentioned and many more that an accused person who seeks to challenge his confessional statement must do so timeously upon the point of tendering said statement. The accused person must also be consistent in objection throughout the trial.
In the case of SMART VS. STATE (2016) LPELR-40728 (SC) the Supreme Court held that:
“When a confessional statement is admitted without objection from the maker or his counsel, the law implies that the maker of the statement agrees with everything in the statement. It also means that the maker made the statement voluntary and it is the truth on his role in the crime.”
See also AJIBADE VS. STATE (2012) LPELR – 15531 (SC) and MUSA VS. STATE (2018) LPELR – 43846 (SC).
The law as reiterated in STEPHEN VS. STATE (2013) LPELR – 20178 is therefore that a confessional statement is proved to have been made voluntarily when at the stage of tendering the confessional statement and there is no objection from the accused person or his counsel as to the voluntariness of the statement. Hence it means that when an objection is raised at any time after the confessional statement has been tendered and admitted, it is regarded as too late to avail the accused person except where the evidence is totally inadmissible in law. PER BABA IDRIS, J.C.A.
CONFESSIONAL STATEMENT: REQUIREMENT FOR A CONFESSION TO SUPPORT A CONVICTION
It must be mentioned that a confession must be voluntary, direct, positive, true and unequivocal. This is because as decided by the Supreme Court in plethora of authorities that it is only a free and voluntary confession alone, properly taken, tendered, admitted and proved to be true that is sufficient to support a conviction. The confessional statement in this case has all the elements mentioned above. PER BABA IDRIS, J.C.A.
CRIMINAL LAW: BURDEN OF PROOF ON THE PROSECUTION
It is indeed the law that the prosecution must establish the guilt of the accused beyond reasonable doubt. See BASSEY VS. STATE (2012) LPELR – 7813 (SC). PER BABA IDRIS, J.C.A.
CRIMINAL LAW: WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON
The law is also trite and settled by a plethora of cases including NWABUEZE VS. PEOPLE OF LAGOS (2018) LPELR – 44113 (SC); IGBIKIS VS. STATE (2017) LPELR – 41667 and OSENI VS. STATE (2012) LPELR – 7833 (SC) that there are three ways of proving the guilt of an accused person which are:
i. Through a confessional statement of the accused; or
i. Through circumstantial evidence; or
ii. Through the testimony of an eye witness.
This means that the prosecution can use one or a combination of the methods listed above to establish the guilt of an accused person. In essence, it is proof beyond reasonable doubt of each element of the offence charged that is seen as discharging a burden of proof by the prosecution. PER BABA IDRIS, J.C.A.
CRIMINAL LAW: INGREDIENTS IN THE COUNT FOR CRIMINAL CONSPIRACY
In the count for criminal conspiracy which ingredients consists of:
i. An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
ii. Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement and
iii. That each of the accused persons individually participated in the conspiracy. PER BABA IDRIS, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
TIMOTHY ABIDENI LEKAN APPELANT(S)
And
INSPECTOR GENERAL OF POLICE RESPONDENT(S)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal appealed against the decision/judgment of the High Court of the Federal Capital Territory, Abuja in Charge No. FCT/HC/CR/281/2013 delivered on the 4th day of October, 2018 by Honourable Justice O. A. Musa wherein the Court convicted the Appellant and his co-accused of conspiracy and culpable homicide punishable with death. The trial judge sentenced the Appellant to life imprisonment.
The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the Appellant was a commercial driver flying between Kwali and Abuja City Road and on the 23rd of September, 2012 in the night around 8:30pm the deceased (Mr. Sylvester Emefiele) who was coming from Lagos was picked up by the 1st Defendant as a passenger to be dropped off at Wuye. On their way the 1st Defendant tricked the deceased and picked up the Appellant, the two later kidnapped, robbed and killed the deceased.
The Appellant and 4 other Defendants were consequentially, arraigned before the High Court of
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the Federal Capital Territory, Abuja on the charge of conspiracy contrary to Section 97(1), culpable homicide punishable with death contrary to Section 221(a) and (b), Section 274 of the Penal Code and Section 1(2)(a) and (b) of the Robbery and Fire Arms (Special Provision) Act, Law of the Federation of Nigeria (LFN) 2014. The Appellant pleaded not guilty to all counts. The prosecution called two witnesses PW1 and PW2 who tendered Exhibits marked PP1 – PP15 while the Defence called the two accused persons and tendered Exhibits DW2 1 – 30.
At the close of the prosecution’s case, following a no-case submission made by accused persons, the trial Court discharged the 3rd, 4th and 5th accused persons while the Appellant and 1st Defendant were asked to enter their defence. The Appellant entered his defence and testified for himself but on the 4th of October, 2018, Honourable Justice O. A. Musa convicted and sentenced the Appellant to life imprisonment. The Appellant being dissatisfied with the decision of the trial Court appealed to this Court with a Notice of Appeal filed 28th December, 2019.
The parties in the appeal before this
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Court filed and exchanged their respective briefs of argument. In the Appellant’s brief of argument as settled by his counsel Achinike G. William-Wobodo Esq. dated 4th May, 2020 and filed 9th June, 2020, the following issues for determination were distilled from the grounds of appeal thus:
i. Was the Trial Court right when it decided that the alleged extra-judicial confessional statement of the Appellant (Exhibit PP4) were made voluntarily without first ascertaining their voluntariness or otherwise through a trial-within-trial as required by law? (grounds 2, 3, 4 and 5 of the Notice of Appeal)
ii. Was the Trial Court right when it held that the Prosecution established the offence of culpable homicide, armed robbery, kidnapping and conspiracy against the Appellant? (Grounds 1, 9, 10 and 12 of Notice of Appeal)
iii. Whether the Trial Court properly evaluated available evidence before it relied on same to convict the Appellant? (Grounds 6, 7, 8 and 11 of the Notice of Appeal)
On issue one, counsel for the Appellant argued that before an extra-judicial statement qualifies as a confessional statement pursuant to
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Section 28 of the Evidence Act, 2011 the accused person who was alleged to have made the statement must admit directly, positively and unequivocally that he committed the offence, he was charged with. They relied on MUSA UMARU KASA VS. THE STATE (1994) LPELR – 1671 (SC).
Counsel for the Appellant also argued that where an accused person attacks the voluntariness of a confessional statement, he must object to the admission of the statement at the point when the statement was sought to be tendered. That at that point the Court is expected to conduct an inquiry so as to ascertain if the statement was made voluntarily by conducting a trial-within trial.
Counsel for the Appellant then submitted that in the instant case, the Appellant at the point of tendering the extra-judicial statement made an objection to the admission of the statement on account of involuntariness which was overruled by the trial Court. The Appellant’s Counsel submitted that the trial Court failed or neglected to record down the objection of the Appellant made through its Counsel but that material facts from the record of appeal show that the Appellant indeed promptly objected. To this
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end Counsel submitted that during the proceedings of 24th February, 2016 particularly at page 227 of the record of appeal the trial Court even though it failed to record the objection, recorded the judge’s ruling thus:
The Statement of the 1st and 2nd Accused person made at the Police station during the cause of investigation are tendered in Court through the I.P.O PW2 it’s hereby accepted in evidence and marked Exhibit PP3 and PP4 respectively.
Counsel for the Appellant then reproduced page 254 of the Record of Appeal thus:
Prosecution: You are in Court on the 24th of February, 2016 when the I.P.O came to Court to testify?
Answer (1st Defd): Yes
Prosecution: You agree with me that that was the day he tendered your statement in Court
Answer: Not my statement
Prosecution: You agreed with me that you never raised an objection when the statement was tendered in Court?
Deft Counsel: Objection. I objected not the Defendant.
Court: Objection sustained
Prosecution: You told the Court at last adjourned date that you signed the statement?
Answer: I told the Court what I passed through before signing it.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The Appellant’s counsel also referenced the trial Court’s judgment contained in page 286 of the records of appeal with regard to the admission of Exhibit PP4 which was stated thus:
“…however even though the Learned Counsel to the Defendants opposed the tendering of Exhibit PP3 & PP4 as not being voluntarily made by the Defendant, I find no substance in the attack.”
Counsel then urged the Court to hold that the Appellant promptly and timeously objected to the admission of Exhibit PP4 as not being voluntary statement. Counsel then submitted that the trial Court was in grave error when it failed to conduct a trial-within-trial to ascertain the voluntariness of the alleged confessional statements of the Appellant before admitting them in evidence as Exhibit PP4. Counsel relied on GIKI VS. STATE (2018) LPELR – 43604 (SC) and OGU VS. COP (2017) LPELR – 43832 (SC).
The Appellant’s Counsel submitted that the said extra-judicial statement was inadmissible in law contrary to Section 29 of the Evidence Act and amounted to violation of the Appellant’s right to fair hearing guaranteed by
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Section 36(11) of the Constitution. Counsel then explained that PW2 tendered three statements dated 8th June 2013, 11th June 2013 and 23rd June 2013; he claimed that the Appellant wrote the statement of 8th and 23rd June 2013 but one ASP Benedit Oben Olisary wrote the statement of 11th June 2013 with no explanation given as to why the Appellant did not write the statement of 11th June 2013. Counsel stated that the Appellant had testified that on 11th June 2013, he was shot on his left leg in order to force him to sign the said statement.
Finally, counsel submitted that the trial Court relied wholly and entirely on Exhibit PP4 to convict the Appellant when there was no legal admissible or credible evidence upon which the trial Court would have relied to convict the Appellant of the offences charged. That once Exhibit PP4 is expunged, there would be no evidence for this Court to consider.
In arguing issue two, Counsel for the Appellant argued that in criminal proceedings, the standard of proof required of the Prosecution is proof “beyond reasonable doubt”. Counsel then argued that in order to discharge the legal burden of proof, the prosecution
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must establish, through credible and admissible evidence, the ingredients for the offence of conspiracy, culpable homicide punishable with death, kidnapping and abduction and armed robbery.
For culpable homicide punishable with death, counsel for the Appellant argued that the prosecution must establish the following offences:
i. That the death of a human being has actually taken place;
ii. That such death was caused by the Appellant;
iii. The act or omission of the Appellant that caused the death was intentional, with the knowledge that death was the probable or likely consequence of the act.
Counsel for the Appellant argued that the prosecution called two witnesses who did not give eye witness testimony of the alleged crimes. Additionally, that the medical doctor or forsenic analysis report of the cause of death was deliberately withheld and no proper identification of the deceased as the medical doctor who conducted the autopsy was excluded from trial. It was also argued that outside Exhibit PP4 there was no single iota of credible piece of evidence to convict the Appellant.
On whether a death of a human being had actually
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occurred, Counsel for the Appellant argued that the prosecution failed to prove that a death had occurred. It was argued that PW1, brother of the deceased made hearsay comments, while PW2 an investigating police officer relied on the extra-judicial statement of the accused. Counsel alleged that the Pathologist one DSP Dr. Amenshe was not called neither was his report or an autopsy report or a death certificate tendered to established that the skeleton was that of a human being. Counsel relied on UKWA EGBE ENEWOH VS. STATE (1990) LPELR – 1141 (SC); JEMINABO PRINCEWILL VS. STATE (1994) LPELR – 2926 (SC).
Counsel for the Appellant concluded that PW2 testified that he does not know the deceased but only saw him in a photograph which was not tendered as such the identity of the deceased or that the bones and skeletons were not proved to be those of Sylvester Emefiele. That the evidence before the trial Court created substantial and reasonable doubts as to the identity of any human being that died. Counsel for the Appellant argued that it is trite that in a criminal proceeding, such as this, where there is any doubt as to the existence or
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non-existence of any fact, such doubt must be resolved in favour of the accused person.
Counsel as it relates to the cause of death argued that the prosecution must prove the cause of death and that it was caused by the act of the Appellant. The Appellant’s counsel submitted that in this case the prosecution failed to lead material evidence to prove cause of death, either through credible, oral or circumstantial evidence. That the trial Court ought to have resolved which evidence before it caused the death; the withdrawal of the money from the deceased’s account through his ATM, making the deceased to weep as his money was being withdrawn from him or hitting the chest of the deceased with “chain finger ring” that actually caused the death of the deceased. Counsel relied on AIGUOREGHIAN & ANOR VS. STATE (2004) LPELR – 270 (SC); GODWIN IGABELE VS. STATE (2006) LPELR – 1441 (SC); IDOWU VS. STATE (1998) LPELR – 1427 (SC).
Counsel then argued that from the totality of evidence before the trial Court, neither PW1 nor PW2 gave evidence that the deceased was hit “with hammer on his head” either
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“with the intention to cause him death” or for any other intent. That the trial Court speculated when he held that the Appellant “caused the death of deceased…by hitting with hammer on his head with the intention to cause him death” and “the defendants killed”. Counsel submitted that the prosecution could not establish the cause of death it was therefore futile and illogical for the trial Court to speculate on the cause of death.
Finally, counsel argued that the decision of the trial Court in the circumstance was a perverse decision which ought to be set aside. That the trial Court ignored relevant facts and evidence before it; it misconceived the thrust of the case presented by the prosecution; or took irrelevant and speculative matters into account which substantially formed the basis of its decision and committed various errors that faulted the case beyond redemption.
On the third ingredient of culpable homicide punishable by death, counsel argued that PW2 in his testimony was very clear that the intention of the Appellant was to keep the deceased till the following day to enable them withdraw more money
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from the deceased’s account through his ATM as such there was no intention to cause death of the deceased. Counsel urged the Court to hold that the prosecution failed to prove the ingredients of the offence of culpable homicide punishable by death by importing Section 135 of the Evidence Act and FELIX NWOSU VS. THE STATE (1986) LPELR – 2134.
As it relates to kidnapping defined in Section 271 of the Penal Code, Counsel submitted that the ingredients of the offence of kidnapping are:
i. The victim must be taken or enticed out of the keeping of his or her lawful guardian.
ii. The victim must be under fourteen years of age if he is a male or below sixteen years if she is a female or a person of unsound mind – Section 271 of the Penal Code
Counsel submitted the prosecution also failed to prove any of the ingredients of the offence of kidnap under Section 271 of the Penal Code as PW1 made extra-judicial statements to the Police, in Exhibits AA1 and AA2 where he stated he is 32 years and the younger brother of the deceased which shows that the deceased was a male more than (14 years) and there was no evidence that the Appellants enticed
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the deceased out of the keeping of his lawful guardian. That the trial Court was therefore in grave error when it held that the offense of kidnap under Section 271 and 274 has been proved against the Appellant beyond reasonable doubt.
Now, as it relates to Section 1(2)(a) and (b) of the Robbery and Firearms Act, counsel submitted that three ingredients must be proved:
i. That there was a robbery
ii. That it was an armed robbery
iii. The accused participated in it
Counsel then argued that in proof of armed robbery, except where there is a valid confession, there must be evidence of positive and cogent identification of the accused (the Appellant) and also linking him to the commission of the offence. Counsel then argued that the Appellant was not arrested at the crime scene, no eye witness evidence of the Appellant committing any armed robbery. Counsel also argued that there was nothing linking the Appellant to this offence as such the prosecution failed again to prove the element of this offence.
In a nutshell, the Appellant argued that the prosecution did not meet the basic legal requirement and standard of proof for any of
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the offences alleged against the Appellant and the involuntarily extra-judicial confession statements or hearsay from the prosecution are inadmissible. That the prosecution withheld relevant and vital autopsy reports and urged Court to hold that the prosecution had failed to prove any offences against the Appellant resolving this issue in favour of the Appellant.
In arguing issue three, Counsel for the Appellant argued that the trial Court failed to properly evaluate the available evidence before it and this led to its very perverse conclusions. He argued that the trial Court in its entire judgment totally and willfully ignored and failed to consider the Appellant’s evidence and defence. Counsel narrated how the Appellant testified that he had nothing to do with the crime but went to the station with the 1st Defendant’s (his mechanic’s) wife in an attempt to retrieve his car but was arrested by the Police, shot on his leg and made to sign the statement dated 11th June, 2013 by the Police who went to his house and shop but found nothing. Counsel relied on OLAYINKA VS. THE STATE (2007) LPELR – 2580 (SC); SAHEED VS. STATE (2018) LPELR
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– 46675.
Counsel for the Appellant then submitted that the failure of the trial Court to examine and consider the evidence and defence of the Appellant not only raised reasonable doubt to the case but amounted to failure to perform a vital judicial duty which led to miscarriage of justice. Counsel also submitted that the evidence the Court relied on was inadmissible, hearsay, incredible and inconclusive which raised more doubt. It was argued that the trial Court therefore erred in its final conclusion and its assumption that it could determine the voluntariness or otherwise of the alleged extra-judicial confessional statement without conducting a trial-within-trial.
Counsel for the Appellant then argued that another improper evaluation of evidence was done because the trial Court based its findings on non-existent evidence. Counsel alleged that nowhere either under cross-examination or evidence-in-chief that the 1st Defendant admitted that he or the Appellant were involved in the alleged robbery. This according to counsel meant that there was no evidence before the trial Court to support its conclusion and the cases of GODWIN IGABELE VS. THE STATE
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and JEMINABO A. PRINCEWILL VS. THE STATE (1994) LPELR – 2929 were relied on.
Counsel then alleged that from the evidence given by PW1 and PW2 the prosecution did prove that the HP Laptop bag belong to the deceased. The trial Court was therefore wrong to have adopted the doctrine of presumption of recent possession of robbed items to presume the Appellant robbed the items. They relied on PEOPLE OF LAGOS STATE VS. UMARU (2014) LPELR – 22466 (SC); OMOPUPA VS. STATE (2007) LPELR – 8571.
Counsel argued that another serious error of non-direction and improper evaluation of evidence was in respect of the evidence relating to the alleged bones and skeletons. It was argued that the prosecution failed to produce and tender the forensic analysis and report. That the prosecution also failed to call the Medical Doctor to testify to his forensic examination and these failures was fatal to the prosecution’s case.
Counsel also argued that the trial Court misapplied the doctrine of last seen in this case and as such it wrongfully shifted the onus on the Appellant to prove his innocence and the death of the deceased. As to the
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evidence of pictures taken at the crime scene, counsel argued that the pictures were not taken of the Appellant doing any criminal act and that the trial Court’s failure to evaluate the Appellant’s account of how and when the pictures were taken, it was unsafe for the trial Court to have relied on the said picture to hold that the Appellant was guilty of the offences. In conclusion, Counsel submitted that the trial Court failed to properly evaluate the available evidence before it and this led to a serious miscarriage of justice.
The Respondent in their Respondent’s brief settled by I. L. Ogor Esq adopted the issues of determination formulated by the Appellant. The issues are reproduced under for ease of reference thus:
i. Was the Trial Court right when it decided that the alleged extra-judicial confessional statement of the Appellant (Exhibit PP4) were made voluntarily without first ascertaining their voluntariness or otherwise through a trial-within-trial as required by law? (grounds 2, 3, 4 and 5 of the Notice of Appeal)
ii. Was the Trial Court right when it held that the Prosecution established the offence of culpable homicide,
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armed robbery, kidnapping and conspiracy against the Appellant? (Grounds 1,9,10 and 12 of Notice of Appeal)
iii. Whether the Trial Court properly evaluated available evidence before it relied on same to convict the Appellant? (Grounds 6, 7, 8 and 11 of the Notice of Appeal)
Under issue one, Counsel for the Respondent argued that the proper way to object the admissibility of a confessional statement by any Defendant who disagreed with the content of a written statement the prosecution attributes to him at the time it is being tendered in open Court. Counsel submitted that from what transpired on the 24th February, 2016 there was nowhere on record where the Counsel for the defendant stated reasons for the objection to invoke a trial-within-trial. Counsel then relied on the case of OSUNG VS. STATE (2012) 18 NWLR (PT. 1332).
Counsel also relied on ADELANI VS. STATE (2018) 5 NWLR (PT. 1611) to state the list of grounds of objection by the defence when they are apprehensive of the contents of the statement. These grounds according to the Respondent’s counsel are:
i. The statement was not voluntary in that it was beaten out of him. That is to say
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he was forced or induced to make it.
ii. The accused person did not make the statement
iii. The accused person made his statement in vernacular, and neither is the statement produced or the interpreter in Court.
Counsel then submitted that from the record, the Defence Counsel said “I am not objecting for tendering of statement of the 4th and 5th defendants, I want to clarify something. I withdraw it.” Counsel then stated that the above statement does not amount to a valid objection with which the Court can conduct a trial-within-trial.
The Respondent’s Counsel also argued that the Appellant’s present counsel was not the counsel at the trial Court so outside the records of the Court where did counsel extract his information from? Counsel for the Respondent then submitted that the Court must be moved by way of objections and reasons before it can conduct a trial-within-trial and where the confessional statement is tendered in evidence without any objection from the accused then the Court is relieved from conducting an enquiry.
Counsel for the Respondent argued that since the Appellant had a counsel to represent
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him throughout his trial as such he cannot complain of lack of fair hearing. Counsel relied on SALEH VS. STATE (2019) 8 NWLR (PT. 1675); NNAKWE VS. STATE (2013) 18 NWLR (PT. 1385).
Additionally, Counsel for the Respondent argued that entire publication contained in page 257 – 262 shows that the evidence of duress and torture before the Appellant’s signing of the confessional statement was not done at the point of admission of the evidence. That the entire struggle of the 16th January, 2018 was an afterthought to object to the already admitted document.
Counsel further submitted that the Appellant did not deny the commission of the crime. Counsel then urged the Court to resolve this issue in favour of the Respondent.
Regarding issue two, counsel submitted that the prosecution was diligent in proving all the ingredients of the offence charged beyond reasonable doubt. As it relates to the crime of criminal conspiracy Counsel to the Appellant argued that by the case of YAKUBU VS. STATE (2014) 8 NWLR (Pt. 1408) to prove the offence of conspiracy, the prosecution must:
i. An agreement between two or more persons to do or cause to be
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done some illegal act or some act which is not illegal by illegal means
ii. Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of, the parties in furtherance of the agreement, and,
iii. That each of the accused persons individually participated in the conspiracy.
Counsel stated that the elements above where established before the trial Court. This Counsel said was shown by their confessional statement admitted in evidence and that the same acts where done by the two defendants besides the agreement. Additionally, counsel submitted that the trial judge’s findings on page 278 – 280 of the records were not challenged in open Court and the confessional statement made by the accused person was properly admitted.
In relation to culpable homicide, Counsel argued that by Section 221 of Penal Code the ingredients of the offence of culpable homicide which are:
i. Death of a human being actually took place
ii. That such death was caused by the accused; with intention of causing death; or that the accused knew that death would be probable consequences
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of his action.
Counsel then submitted that by Exhibits PP3, BB3 the death of the deceased was instantaneous and that Exhibit PP8, PP12 and PP17 were tendered before the trial Court acknowledged by the Appellant. That the Appellant also demonstrated how he used the hammer as gun in open Court and it was the Appellant’s confessional statement that led the Police investigation team to the bush where the deceased was kept and killed. Additionally, that the individual statements gave vivid description of the victims the jean trousers, wrist watch and sanders were all recovered at the same location.
Counsel for the Respondent also argued that the Appellant admitted hitting the deceased with the charm and that they knew the deceased very well such that no one was misled as to the identity of the deceased and the place of death. Counsel also submitted that the law is trite, that the guilt of an accused can be proved through:
i. Confessional statement of the accused, or
ii. Circumstantial evidence
iii. The testimony of the eye witness
Counsel then argued that DNA Report was unnecessary where the Appellant has identified the deceased,
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the place of death by way of their confessional statement. That there was enough circumstantial evidence before the Court i.e. pictures in the bush taken during investigation, a silver chain wrist watch, one leg slander, decomposed skeleton including the ribs bone and a rope tied to his wrist bone. Additionally, that it is common parlance that photographs don’t lie and on the contrary the Appellant did not serve the prosecution a Notice to produce, no demand to invoke Section 167(d) Evidence Act.
In finality, counsel submitted that when evidence incriminating an accused person comes from a co-accused person, the Court is at liberty to rely on it as long as the co-accused was tried along with the accused.
Now as it relates to kidnapping, counsel argued that the prosecution established the ingredients of kidnapping. Counsel submitted that the Appellant’s statements contained in Exhibits PP3 and PP4 was admitted without objection and under cross-examination he demonstrated in open Court the trick practiced on the deceased to make him surrender. It was submitted that if a person is detained unlawfully, the offence of kidnapping is established.
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As it relates to robbery, the Respondent’s Counsel submitted that the ingredients of robbery are:
i. That there was a robbery
ii. That the robbery was an armed robbery
iii. That the accused was one of those who robbed or took part in the robbery.
Counsel then submitted that the confessional statement by the defendant shows there was robbery and pursuant to the robbery Exhibit PP6 (Mini Sony Camera, Laptop, three ATM cards and the Sum of N183,000) were recovered. Additionally, that the presumptions of stolen items found with the defendants shortly after a robbery took place was rightly held by the judge and the Appellant could not tender cogent and sufficient explanation as to how he came about them.
In arguing issue three, Counsel for the Respondent submitted that the assessment of the evidence done by the trial Court cannot be faulted in view of the materials on available records. Counsel then argued that the Appellant who is challenging the judgment on basis of findings of facts has the burden to show that the decision complained against is not borne out by the evidence adduced before the Court. Additionally, the Appellate
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Court would only interfere with the finding of fact where the trial Court did not properly evaluate the evidence or make proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted evidence or where the finding of the trial Court is shown to be wrong or perverse.
Counsel then submitted that in the face of Exhibits PP3, PP4, documentary evidence the trial Court properly evaluated all evidence.
Finally, that a medical report is not a sine qua non once the cause of death can easily be established from other pieces of evidence before the Court. That a Court is entitled in law, to accept and rely on the evidence of witnesses where a person was attacked or beaten and sustained injuries from which he died immediately without need for medical report. Counsel ended the argument arguing that Dr. Emenshe is not a vital witnesses and the prosecution is at liberty to call any witnesses in proof of their case. Counsel urged the Court to resolve this issue in favour of the Respondent.
The Appellant filed a reply brief dated 27th July 2020 and argued that the account of the objection with
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its timing and the subsequent finding of fact made by the trial Court were borne out of the records of the Court. Counsel reproduced the trial Court’s finding on page 286 of the records of appeal where it was held that:
“…however even though the learned Counsel to the Defendants opposed the tendering of Exhibits PP3 & PP4 as not being voluntarily made by the Defendants, I find no substance in the attack.”
Counsel then submitted that this Court cannot be invited to disturb or substitute the finding of fact made by the trial Court without a valid cross-appeal to that effect. It was then argued that the Respondent having failed to file a cross-appeal is deemed to have conceded to the finding of fact made by the trial Court. That the Respondent’s counsel argument that the objection was made up is therefore deceptive, insidious and intended to incite this Court against the Appellant.
Counsel also argued that the Respondent did not answer to the submissions of the Appellant regarding the point that the trial Court ought to have conducted a trial-within-trial the moment it found that the Appellant objected to the
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admission of Exhibit PP4 during tendering. Counsel relied on OKONGWU VS. NNPC (1989) 4 NWLR (PT. 115); NWANKWO VS. YAR’ADUA (2010) 12 NWLR (PT. 1209) 518; INTERNATIONAL TOBACCO COMPANY PLC VS. BRITISH AMERICAN TOBACCO NIGERIA LIMITED & ANOR (2013) LPELR – 20494.
Counsel for the Appellant argued that the in response to paragraph 3.3, 3.4, 3.5 and 3.6 that the Defendants counsel was different from counsel of the 4th and 5th defendant who withdrew his objection in the trial Court. Counsel explained that the 1st and 2nd Defendant (Appellant) were represented by Olaniyi Oyeloye Esq on the date the documents were tendered in evidence as seen on the proceedings of 24th February 2016 on page 215 of the records of appeal.
Counsel then submitted that paragraph 4.2 of the brief did not emanate from the Appellant’s brief while in paragraph 5.5, 5.6, 6.1, 6.2 and 6.3 the Respondent deliberately interchanged the evidence and testimonies of the Defendants, twisted nomenclature just to mislead the Court. Counsel for the Respondent also submitted that the Appellant held that the deceased died instantaneously and that dispensed with the use of
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medical report and the burden of establishing the cause of death but that nothing supports this claim as the evidence of PW2 was that the deceased cried all night. Secondly, that the proof of cause of death was not dispensed with.
On the issue of last seen, counsel submitted that the principal was not established against the Appellant at the lower Court. Counsel then argued that there is nothing in the photographs tendered that shows the Appellant committing the crime on the date of the incident. As to the production of the medical report, counsel submitted that the Respondent did not respond to the submissions that the trial Court neglected to avert its mind to the failure of the Respondent to produce the medical report which amounts to an error of non-direction on the part of the Court.
Counsel for the Appellant urged the Court to hold that the appeal is meritorious and succeeds.
RESOLUTION OF THE ISSUES
ISSUE ONE
Under this issue, the simple question to answer is whether the Appellant attacked or objected to the voluntariness of his confessional statement Exhibit PP4 at the time it sought to be tendered by the prosecution?<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Counsel for the Appellant submitted that an objection was raised at the time of tendering the exhibits, however the trial Court failed to record same. Counsel submitted that material facts from the records shows that the Appellant timeously objected to the admissibility of the confessional statement as the trial Court should have conducted a trial-in-trial to determine the voluntariness of the statement. That failure to do so by the trial Court rendered the said extra-judicial statements as inadmissible by virtue of Section 29 of the Evidence Act and a violation of the Appellant’s right to fair hearing under Section 36(11) of the Constitution of the Federal Republic of Nigeria 1999. While the Respondent’s Counsel maintained that the proper time to object to the admissibility of a confessional statement is at the time it is being tendered which was not done by the Appellant or his Counsel as shown by the record. Additionally, that the Appellant’s present Counsel was not involved in this case at the trial Court and outside the record of Appeal where did Counsel extract his information from.
Now the law as it relates to the proper time
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within which to raise an objection to a confessional statement has been set down in a plethora of case law including FRN VS. SANI (2014) 16 NWLR (PT. 1433) 299; JOHN VS. STATE (2011) 18 NWLR (PT. 1278) 353 and IGRI VS. STATE (2012) 16 NWLR (PT. 1327) 522. The law has been established by the cases mentioned and many more that an accused person who seeks to challenge his confessional statement must do so timeously upon the point of tendering said statement. The accused person must also be consistent in objection throughout the trial.
In the case of SMART VS. STATE (2016) LPELR-40728 (SC) the Supreme Court held that:
“When a confessional statement is admitted without objection from the maker or his counsel, the law implies that the maker of the statement agrees with everything in the statement. It also means that the maker made the statement voluntary and it is the truth on his role in the crime.”
See also AJIBADE VS. STATE (2012) LPELR – 15531 (SC) and MUSA VS. STATE (2018) LPELR – 43846 (SC).
The law as reiterated in STEPHEN VS. STATE (2013) LPELR – 20178 is therefore that a confessional statement is proved to
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have been made voluntarily when at the stage of tendering the confessional statement and there is no objection from the accused person or his counsel as to the voluntariness of the statement. Hence it means that when an objection is raised at any time after the confessional statement has been tendered and admitted, it is regarded as too late to avail the accused person except where the evidence is totally inadmissible in law.
Flowing from the above principal of law in order to determine this issue, we must look at the records of proceedings on the day the confessional statements were tendered and admitted into evidence. The record of proceedings on that day which was the 24th of February, 2016 precisely at page 227 of the said record is reproduced hereunder:
Prosecution: In your testimony you told the Court that the Accused Persons voluntary make their statements, if you see them can you identify them now?
Answer: Through (1) by names of each of the Accused Persons (2) my writing, rank and name and that of ASP Ben Olesey including CPL Tami Tokpe Ola Onye. (3) Number of the Statement used.
Prosecution: My Lord the witness PW2 having identifies
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the statement of all the Defendants 1-5 which were also frontloaded we wish to tender them in evidence.
Court: Show the Defendant counsel any objection?
Defendant Counsel: I am not objecting to tendering of the statement of the 4th and 5th Defendant, I want to clarify something. I withdraw it.
Court: Statement of the 4th and 5th Defendant are hereby accepted in evidence and marked as Exhibits PP1 and PP2 respectively.
Court: The statement of the 1st and 2nd Accused Person made at the Police Station during the cause of investigation are tendered in Court through I.P.O PW2, it is hereby accepted in evidence and marked as Exhibit PP3 and PP4 respectively.
Defence Counsel: To the 5th Accused Person we are objecting to the admissibility of the statement under Section 49(a) of the Evidence Act.
Court: Having understood the objection raised by the learned defence counsel based on the cited section that is Section 49(a) of the Evidence Act. I however overrule the objection given by Section 49(b) of the Evidence Act. In the circumstance, the said statement of the 3rd Accused Person is very relevant and in line with the procedure in admitting
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the Defendants statement in evidence. It’s hereby admitted in evidence and marked as Exhibit PP5.
From page 222 of the record of appeal, it can be gleaned that the Appellant (2nd Defendant) was represented by one Olawoye SS Esq on the said 24th of February, 2016. It is the duty of counsel to guard the interest of his/her client because it is the reason for his engagement as such counsel has the duty to timeously object to a statement purportedly not made voluntarily. Where this is not done, it is seen as counsel not having a problem with the statement and sees no reason why he would challenge its admission.
From the foregoing and having looked at the records of proceedings, I see nowhere the Appellant’s counsel objected to the admissibility of the confessional statement. The Court recorded the objections by the counsel representing the 4th and 5th Defendants and that of counsel representing the 3rd Defendant. The Court even gave a ruling admitting the 3rd Defendant’s confessional statement after it was objected to.
This leads me to ask one question: of what benefit is it to the Court to not record or omit the objection of the
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Appellant given by either him or his counsel? A Court that recorded all the objections made by other counsel and even gave a ruling surely will not refuse to record that of the Appellant. I find no merit in the argument that the Court intentionally decided to omit the objection. I therefore pronounce that the trial Court was right to have found that the statement was voluntarily made since no objection was raised at the time of admitting the Exhibit in evidence.
Even the trial judge’s words in his judgment do not deter my findings above. The trial judge on page 286 of the record of appeal held thus:
“Although it is the requirement if the law that the Prosecution should prove his case beyond reasonable doubt, however even though the learned Counsel of the Defendant opposed the tendering of Exhibit PP3 and PP4 as not being voluntarily made by the Defendants, I find no substance in the attack. The voluntariness of Exhibit PP3 and PP4 were tested during cross-examination and I am satisfied that it was made by the Defendants voluntarily under word of caution.”
I will state here that I found no ruling by the trial judge to the
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effect that Counsel for the Appellant objected to the tendering of these Exhibits and was overruled by the Court. Counsel for the Appellant was also not the same as counsel in the lower Court so I find the argument of the Respondent asking how and where the Appellant’s counsel got his information from very right. From which part of the record of appeal? If you are not present for a hearing it is the record of appeal that one would look at to find out what happened on that day.
I therefore agree that the confessional statement was tendered without objection. At best what the trial judge was referring in his judgment reproduced by the Appellant is the retraction made by the Appellant that he did not write the statement at the time of his testimony on page 259 of the record of appeal and that of the 1st Defendant on page 254. I find that this is too late in the day to retract the confessional statement tendered and admitted. This was an afterthought on the part of the Appellant as the objection was not raised timeously.
It must be mentioned that a confession must be voluntary, direct, positive, true and unequivocal. This is because as decided by
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the Supreme Court in plethora of authorities that it is only a free and voluntary confession alone, properly taken, tendered, admitted and proved to be true that is sufficient to support a conviction. The confessional statement in this case has all the elements mentioned above.
In a nutshell, the trial Court was indeed right to have decided that confessional statement of the Appellant was voluntary and not to conduct a trial-within-trial or inquiry given that no objection was raised at the appropriate time when the confession was tendered.
I resolve this issue in favour of the Respondent against the Appellant.
ISSUE TWO
This issue relates to whether the prosecution discharged the burden of proof by proving beyond reasonable doubt that the Appellant committed all the crimes he was charged with. The Appellant maintained that outside Exhibit PP4, the confessional Statement of the Appellant, there is no iota of credible evidence upon which the Court can convict the Appellant.
It is indeed the law that the prosecution must establish the guilt of the accused beyond reasonable doubt. See BASSEY VS. STATE (2012) LPELR – 7813 (SC). The
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law is also trite and settled by a plethora of cases including NWABUEZE VS. PEOPLE OF LAGOS (2018) LPELR – 44113 (SC); IGBIKIS VS. STATE (2017) LPELR – 41667 and OSENI VS. STATE (2012) LPELR – 7833 (SC) that there are three ways of proving the guilt of an accused person which are:
i. Through a confessional statement of the accused; or
i. Through circumstantial evidence; or
ii. Through the testimony of an eye witness.
This means that the prosecution can use one or a combination of the methods listed above to establish the guilt of an accused person. In essence, it is proof beyond reasonable doubt of each element of the offence charged that is seen as discharging a burden of proof by the prosecution.
After reading the brief of the Respondent as it relates to this issue it is clear that the Respondent relied heavily on the confessional statement of the Appellant and his co-accused in addition to the testimony of PW1, PW2 and circumstantial evidence to prove its case and establish the guilt of the accused.
I have reviewed the evidence given by the prosecution in establishing proof of all four offences including;
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Criminal Conspiracy, Culpable Homicide Punishable with death, Kidnapping and Abduction and Armed Robbery. In order to answer this issue, I must reproduce and analyze the evidence of the prosecution.
In the count for criminal conspiracy which ingredients consists of:
i. An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
ii. Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement and
iii. That each of the accused persons individually participated in the conspiracy.
The prosecution relied on the confessional statement of the accused which was corroborated by the co-accused. In Exhibit PP4 found on page 175 of the record of proceedings the Appellant stated that:
“…I met Akinlade Taiwo and told him we should also be doing what happened to me both of us agree that we should be driving the car to carry passenger while I joined him to be robbing the passenger for us to get money and we agreed.”
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The co-accused in his statement Exhibit PP3 on page 163 of the record of appeal said:
“…I asked him? He said I will only serve as a driver when it is time. Same day at about 18:30-19:00hrs, Timothy called that I should be ready.”
The prosecution also showed that the Appellant confirmed the similarities in the independent statement in his cross-examination contained on page 265 of the records of appeal. It must be stated here that to prove conspiracy it is from act/omission, the evidence of complicity in the offence charged that conspiracy is inferred by the Court. Now, I have already stated that the confessional statements were voluntary as such the prosecution in my eyes have proved the count on conspiracy.
As it relates to Culpable Homicide Punishable with death which ingredients are:
i. That the death of a human being has actually taken place;
ii. That such death was caused by the Appellant;
iii. The act or omission of the Appellant that caused the death was intentional, with the knowledge that death was the probable or likely consequence of the act.
Prosecution relied on Exhibit PP3 where the co-accused on
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page 165 of the records of appeal said that:
“Timothy opened the bag man’s bag brought one of tshirts and used it to cover the man’s face. I brought out the ring hit the man’s chest on time. Immediately, the man fell down and lay on the ground.”
The Appellant in his own confessional statement on page 176 of the records of appeal said:
“…Akinlade Taiwo came with his said car with a man who wore Tshirt and jeans trouser with sandal though I cannot remember their respective color. As soon as Taiwo marched brake and parked I rushed inside the front seat in front of where man was sitting in the car, immediately I entered the car I carried the iron hammer I earlier mentioned from the safe of the car dashboard where we kept it for use anytime held the head of the hammer pointed to him, covered it with my hand while I pointed the small part of the end of the handle which if you will think it is the mouth of a gun I faced the man pointed the part of the hammer at his chest I ordered him to give us money but he said he only had N3,000….”
On page 177 of the record of appeal, the Appellant also
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stated that:
“…I cannot remember the amount we withdraw, the recovered blackberry from Banjo and shown to me is the man’s Blackberry before I sold it to Banjo.”
In addition, there was evidence including Exhibits PP8 and PP12 which was corroborated by PW2 on page 226 of the record of appeal, the Appellant also demonstrated how he held the hammer in Court, there was also circumstantial evidence in form of the pictures taken at the site of the crime of a silver chain, wrist watch and decomposed skeleton. Also the presumption that the person last seen with the defendant is responsible for his death and where a deceased died immediately the medical report can be dispensed with. PP3 and PP4 were independent confessional statements of two accused persons which was corroborated and admitted.
On the issue of culpable homicide punishable with death I find the prosecution has in fact proved its case. The PW2’s evidence was that of an investigating officer on what he discovered during the course of investigation. From the confessional statements tendered which are voluntary, the accused persons lead the police to the bush where
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they found the skeleton, rope and wristwatch. This I agree with the trial judge is enough circumstantial evidence, photographs of the above mentioned items, including the deceased camera and blackberry phone. Additionally, given that the accused person were the last people that saw him alive, the presumption that they caused his death is correct. It is also not always the case that a medical report needs to be tendered when death occurred on the spot which applies to this case. Finally, the Appellant did not quash the evidence established by the prosecution during cross-examination as to the identity of the deceased.
In proof of kidnapping and abduction the Prosecution relied on Exhibits PP3 and PP4 which were admitted without objection and the Appellant himself demonstrated in Court how they tricked the deceased to surrender to them. I find that the offence of kidnapping was also established as the Appellant who clearly stated that the deceased entered their taxi to Wuye but they took him to the bush.
To prove armed robbery which ingredients are:
i. That there was a robbery;
ii. That the robbery was an armed robbery; and
iii. That the
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accused was one of those who robbed or took part in robbery.
Counsel again relied on PP3 and PP4 and stated that under cross-examination in the proceedings of 23rd April, 2018 where the Appellant admitted participation in the robbery. Additionally, that after the robbery items belonging to the deceased Exhibit PP6 were recovered and the Appellant could not tender cogent explanation as to how he came about them as such the law allows for presumption that he was one of the robbers.
In a case such at the instant case where the accused admits the commission of an offense through a voluntary statement, the prosecution is relieved of any further duty of proof. See FRN VS IWEKA (2011) LPELR-9350 (SC) where the Apex Court held that:
“In my view, the duty of the prosecution is to establish the available evidence sufficient to prove the guilt of the accused person beyond reasonable doubt. It follows therefore, that where an accused person admits the commission of an offence through his voluntarily confessional statement the prosecution is relieved of any further duty of proof.”
As I have already established in issue one above the
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Appellant did not object to the admissibility of the said confessional statement at the point of tendering it which makes it a voluntary statement. As such the prosecution was free to rely on it to establish the elements of all the offences.
In the end, I am of the firm belief that the Prosecution by the confessional statements and other evidence including the evidence of PW2, photographs and other items tendered (Blackberry handset, Ash mini Sony camera, iron hammer, one wrist watch, one sandal, pair of jeans, twine rope, one charm ring, Hp Latop bag and Tshirt) established all the ingredients of the offences charged.
I resolve this issue in favour of the Respondent against the Appellant.
ISSUE THREE
This issue relates to whether the trial Court evaluated evidence before it relied on same to convict the Appellant. The Appellant maintained that the trial Court in its entire judgment totally, willfully ignored and failed to consider the Appellant’s evidence and defence. This according to the Appellant amounted to failure of the Court to perform a vital judicial duty and that led to miscarriage of justice on the Appellant.
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I have already established that Counsel for the Appellant at the trial Court did not object to the admissibility of the confessional statement at the time it was being tendered which means that the confessional statement was voluntarily made. However, the Appellant made a retraction and stated that he signed the statement but he did not write it during his testimony.
However, the question that must be answered in this case is whether the trial Court has a duty to evaluate all evidence before it. Did it do so? In order to answer this question, we must look at all the evidence and exhibits tendered and the judgment of the trial Court as it relates to all the counts in this case.
First and foremost, counsel for the Appellant raised the issue of their objecting to the voluntariness of Exhibit PP4 but that the trial Court determined its voluntariness without complying with the due process of law. I have already answered this question in issue one where I held that Exhibit PP4 was not objected to timeously as such it was voluntary. Even if one takes into consideration the retraction made by the Appellant during his testimony looking at the
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cross-examination, the trial judge is right that the retraction was attacked by the prosecution.
The Appellant maintained that he signed the confessional statement but did so after he received a gunshot wound however on cross-examination when asked for a medical report he said he did not have one neither did he instruct his counsel to get one. Additionally, the Appellant confirmed the similarities in his confessional statement and that of the co-accused. So also, the Appellant held the hammer and demonstrated how it looks like a gun as he had stated in his confessional statement. All these show that the alleged retraction made the Appellant was challenged during cross-examination and the result was that it showed that the statement was in fact voluntarily made by the Appellant.
The counsel for the Appellant made a fuss about the alleged forensic report and autopsy report that were not tendered by the prosecution. I must state that failure to tender an autopsy report is not fatal to the case of the prosecution. Especially, in a case such as this where a confessional statement exists and the Appellant lead the police to the scene of the crime where
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not only the skeleton but more evidence was discovered.
All things considered, counsel for the Appellant is alleging that the trial judge did not consider their evidence and what is their evidence. Their evidence was in form of a retraction which was done late in the day and not timeously. As such the trial Court was at liberty to find that the confessional statement was voluntary and rely on same to convict the Appellant. This is in line with the plethora of case which state that where a confessional statement is voluntary made, the Court may rely on it to convict an accused. I therefore find that the trial Court evaluated all the evidence before it and reached the right conclusion in this case.
I resolve this issue in favour of the Respondent against the Appellant.
The appeal is accordingly hereby dismissed. No order as to cost.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered in Court by my learned brother, Mohammed Baba Idris, JCA.
I am in complete agreement with the reasoning and conclusion that the appeal lacks merit. The appeal is dismissed. The judgment
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of the trial Court is hereby affirmed.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I agree.
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Appearances:
G. Williams-Wobodo, Esq, with him, L. E. Nwonye Esq and B. E. Anyanwu, Esq. For Appellant(s)
N. Ogar, Esq. with him, A. I. Sidi, Esq. and A. Abubakar, Esq. For Respondent(s)
