LUCKY COLEMAN MUTUMUTU v. THE STATE
(2019)LCN/12742(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of February, 2019
CA/PH/17CR/2018
RATIO
EVIDENCE: TO PROVE BEYOND REASONABLE DOUBT
“Proof beyond reasonable doubt however, does not tantamount to proof beyond every shadow or iota of doubt. Failure on the part of the prosecution to discharge this burden will result in a discharge and acquittal of the accused. See John Agbo vs. The State (2006) 2 SCM 1, 29; Adebayo vs. State (2008) 6 ACLR 372 at 395; and Alonge vs. I.G.P. (1959) 4 FSC 203, 700 paras. A-D, per Ogbuagu, JSC.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
EVIDENCE: WHETHER AN ACCUSED CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT
“I place reliance on the pronouncement of our respected Rhodes-Vivour, JSC., in the case of Asimi vs. State (2016) 12 NWLR Pt. 1527, pg. 414, 434, paras. B-F (also reported in (2016) All FWLR Pt. 857, pg. 468, had this to say:
It is long settled that the Court may convict an accused person on his confessional statement alone once the Court is satisfied that it is free and voluntary confession of his guilt.” PER CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
LUCKY COLEMAN MUTUMUTU Appellant(s)
AND
THE STATE Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment):
This is a criminal appeal against the decision of the High Court of Bayelsa State (hereinafter to be referred to as the trial/lower Court), presided over by Hon. Justice M. A. Ayemieye, J. in charge No. OHC/5C/2014, delivered 21st September, 2016, wherein His lordship convicted the accused/appellant and sentenced him to a concurrent term of 10 (ten) years imprisonment.
BRIEF STATEMENT OF FACTS
By an information filed on 21st March, 2014, the appellant was arraigned alongside his co-accused before the lower Court on a 2 count charge of conspiracy and kidnapping contrary to Sections 444(a) and 291 (b) respectively of the Criminal Code Law, Cap. C14, Laws of Bayelsa State, 2006, of one Mrs. Betinah Friday Benson at Korokorosei town of Bayelsa State. The accused/appellant pleaded not guilty to the 2-count charge.
Trial commenced in the course of which the prosecution/respondent called 2 (two) witnesses to wit: the PW1 (Investigation Police Officer) and PW2 (the purported victim) of the offences charged. The prosecution tendered 2 (two) exhibits in evidence which are Exhibit PR1 (alleged confessional statement of the appellant, and Exhibit PR3 (extra-judicial statement of the victim).
At the close of the prosecution?s case, the learned counsel for the prosecution made a no case submission, which said submission was subsequently over ruled and the accused person was directed by the trial Court to enter his defence. The accused thus testified for himself as the DW1 while his co-accused testified as DW2.
At the close of trial both the defence and the prosecution filed and adopted their respective written addresses. In his considered judgment, the learned trial Judge returned a verdict of guilty on each of the 2 counts, consequent upon which the accused was sentenced to a term of 7 years imprisonment on count 1 (one) and 10 years imprisonment on count 2 (two), with both terms running concurrently. (See pages 120 – 150 of the record of appeal).
Aggrieved by the judgment, the accused/appellant filed a Notice of Appeal out of time and which said Notice of Appeal was, pursuant to the leave of this Court sought for and obtained 18th January, 2018 deemed properly filed and served. (See pages 151 – 155 of the record of appeal).
In keeping with the rules and practice of this Court the parties filed and exchanged their respective briefs of argument. Appellant’s brief of argument dated and filed 19th April, 2018 and the appellant’s reply brief of argument dated and filed 14th June, 2018 were both settled by P. J. Fawei, Esq. The respondent’s brief of argument dated and filed 22nd May, 2018 was settled by Arthur, Andrew Seweniowor, Esq.
From the 7 (seven) grounds of the Notice of Appeal, the appellant donated the following 3 (three) issues for determination:
1. Whether the trial Court wrongly convicted the accused/appellant on the offences charged solely on Exhibit PR1 without extraneous evidence and proper identification evidence? (Distilled from grounds 2, 3 and 6 of the Notice of Appeal).
2. Whether the trial Court was wrong to have allowed the regularization of an adopted final address (without seal/stamp of a Legal Practitioner) through an affidavit only and without serving same on the accused/appellant; and whether same amounts to a breach of fair hearing? (Distilled from grounds 1 and 4 of the Notice of Appeal).
3. Whether the trial Court was wrong in the evaluation of the pieces of evidence led before it? (Distilled from grounds 5 and 7 of the Notice of Appeal).
The respondent saw the following 3 (three) issues as germane for the determination of the appeal:
i. Whether the learned trial Judge was wrong to have convicted the appellant on his retracted confessional statement (Exhibit PR1) found to be direct, positive and unequivocal. (Grounds 2, 3 and 6).
ii. Whether the learned trial Judge did not properly evaluate the evidence adduced at the lower Court, including the extra-judicial statement of the appellant (Exhibit PR1) and came to the right decision that the respondent had proved its case against the appellant beyond reasonable doubt in convicting the appellant for the offences for which he was charged. (Grounds 5 and 7).
iii. Whether the learned trial Judge acted wrongfully to have allowed the final written address of the respondent. (Ground (sic) 1 and 4).
Though I consider the issues donated above by both parties to be similar in every material particular, albeit I find those of the respondent, particularly numbers 1 (one) and 2(two) thereof to be better couched. Again I feel that issue number 1 of the respondent is well subsumed under its issue 2. I shall in this regard adopt the number 2 issue as formulated by each of the parties for purposes of determining this appeal and they are so adopted. Nevertheless, the first or number 1 (one) issue for determination shall be the appellant’s number 2(two) issue, while the respondent?s number 2 (two) issue remains the number 2 (two) issue for determination.
ISSUE (ONE) therefore is to read ?
Whether the trial Court was wrong to have allowed the regularization of an adopted final address (without seal/stamp of a Legal Practitioner) through an affidavit only and without serving same on the accused/appellant; and whether same amounts to a breach of fair hearing? (Distilled from grounds 1 and 4 of the Notice of Appeal).
In their submission on this issue, the learned counsel for the appellant contended that the learned trial Judge was wrong in allowing the prosecution to regularize its final address, after adoption of same with an affidavit only, without a motion to regularize the said final address.
Counsel further contended that the non-service of same on the defendant/appellant to enable him respond appropriately infringed on the right to fair hearing and trial of the defendant/appellant. Relying on the provisions of Rule 12 sub-rules (1), (2) and (3) of the Legal Practitioners Rules of Professional Conduct, 2007, made sequel to the Legal Practitioners Act; and the case of Sen. Bello Sarkin Yaki & Anor. vs. Sen. Atiku Abubakar Bagudu & Ors. (2015) LPELR 25721 (SC) per Ariwoola, JSC., the appellant canvassed that the motion on notice for extension of time filed on 17th March, 2016 as well as the processes exhibited thereto do not have on them the seal and stamp of the legal practitioner who prepared, signed and filed same. Learned counsel urged that the prosecution’s final address filed without seal or stamp at the lower Court is deemed unsigned and as such is worthless and of no value and must therefore be discountenanced. Appellant relied heavily on Adewale vs. Adeola (2015) LPELR-25972(CA); Texaco Nig. Plc. vs. Iloka (2013) LPELR-21187(CA); and Afribank (Nig.) Plc. vs. Akwara (2006) All FWLR (Pt. 304) 401 at 416, in urging on us to hold that the final address of the prosecution after adoption cannot be regularized by affixing seal/stamp or a receipt evidencing such payment.
Learned counsel further argued that the only procedure by which a process filed without the approved seal/stamp of a legal practitioner can be regularized before the said process is adopted is through a motion on notice and not by only an affidavit only. See again Nyesom vs. Peterside (2016) LPELR-40036(SC) per Kekere-Ekun, JSC, at p. 35, paras. B-D; and Order 39 Rule 1(1) of the Bayelsa State High Court Rules, 2010.
Appellant also submitted that the affidavit together with the document exhibited therewith that was filed was not served on the defendant to enable him decide whether or not to respond. This act, according to the appellant is a grave infringement by the lower Court on the right to fair hearing and fair trial of the defendant as guaranteed in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. He urged on us to so hold.
On the converse, the learned counsel for the respondent submitted in the affirmative to issue 1 (one) by stating that the learned trial Judge acted rightly in discountenancing the objection of the appellant and holding that the respondent had paid for the NBA seal and that the same was valid. Learned counsel for the respondent while referring to pages 58 – 74 and 118 of the record of appeal, gave a brief synopsis of what transpired before the lower Court as it touches on their application to regularize the final address in question. He further submitted that a process is not invalid for non-sealing with the NBA stamp/seal if there is proof of payment for the stamp/seal though the legal practitioner was yet to receive the said stamp. He referred to the case of Today’s Car Ltd. vs. Lasaco Assurance Plc. (2016) LPELR-41260(CA), In Re: Alhaja Sufurat Olufunke Yakubu & Anor. (2018) LPELR-43678(CA).
Respondent submitted on the other hand that grounds 1 and 4 are incompetent not being a challenge against the rationem decidendi of the decision of the trial Court in reaching the verdict that the respondent had proved the offences of conspiracy and kidnap against the appellant. Respondent contended that the address of counsel which is only intended to assist the Court in arriving at a just decision cannot constitute part of the rationes of a decision of a Court. She went on to state that the fact that the trial Court held that the address of the respondent is valid, is not the ground for coming to the decision that the respondent had proved its case against the appellant. See Daramola vs. A.G., Ondo (2000) 14 WRN 120, 137, paras. 25 ? 40.
RESOLUTION OF ISSUE (ONE)
I deem it pertinent to first of all address the issue surrounding the mode adopted by the prosecution/respondent in presenting its application for regularization of their final address at the lower Court. It is the contention of the appellant that it was wrong of the learned trial Judge to have allowed the prosecution (respondent) to regularize its final written address (after adoption) with an affidavit only without a motion to regularize and that same was not served on him to enable him respond appropriately.
It is on record that at the close of defence case on 11th February, 2016, the learned trial Judge adjourned the matter to 8th April, 2016 for adoption of final written addresses of the parties. (See page 117 of the record of appeal).
Nevertheless, subsequent to the proceedings of the said 11th February, 2016, the prosecution (respondent herein) on 30th March, 2016 to be precise, filed a motion on notice seeking extension of time for it to file its final address as well as a deeming order thereto. Copy of the motion on notice duly supported by an affidavit of 6 (six) paragraphs is cocooned at pages 58 – 63 of the printed record. Annexed to the affidavit as Exhibit ‘A’ is a copy of the said Final Written Address. It was at the resumed sitting of the trial Court on 21st April, 2016, that the motion on notice was moved by the prosecution/applicant with the learned counsel for the accused present and participating. The said counsel for the accused did not oppose the application which was thus granted as prayed thereby extending time for filing of the prosecution’s final written address and deeming same as properly filed and served. Following thereafter in the course of same proceedings was the vive voce application for and the adoption of the respective party’s final written addresses. (See page 118 of the record of appeal). Though the matter was thenceforth adjourned to 30th May, 2016 for judgment, the Court however resumed proceedings on 27th July, 2016 on which date the respective final written addresses were re-adopted and judgment was further adjourned to 19th September, 2016 for delivery. Judgment was thereafter delivered on 21st September, 2016. (See page 119 of the printed record).
I have found nothing in all of the foregoing narration, to suggest or lead one to the conclusion that the adoption of the prosecution’s final written address preceded its regularization, as wrongly submitted by the learned counsel for the appellant. On the contrary and as clearly shown on record, it was after the granting of the application to regularize their final written address, that same was adopted alongside with the accused’s own final written address. For the learned counsel for the appellant to hold otherwise is therefore misleading and smacks of mischief.
Regarding the sealing or non-sealing of the respondent’s final written address, I deem it pertinent to reproduce the provisions of Section 10 sub-rules 1, 2 and 3 of the Legal Practitioners Rules of Professional Conduct, 2007 which Rules are made pursuant to the Legal Practitioners Act, Cap L II Laws of the Federation, 2004 and they read:
1. A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any governmental department of Ministry or any Corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
2. For the purpose of this Rule ?legal documents? shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.
3. If without complying with the requirements of this Rule a lawyer signs or files any legal documents as defined in Sub-Rule 2 of this Rule and in any of the capacities mentioned to Sub-Rule (2), the document so signed or filed shall be deemed not to have been properly signed or filed. [Underlining mine].
The purport of the foregoing provisions is that failure to affix stamp and or seal approved by the Nigerian Bar Association to a legal process such as the prosecution/respondent?s final written address, would only render the said process improperly signed or filed before the Court. This trite position of the law was clearly brought out in the case of Sen. Bello Sarkin Yaki vs. Sen. Atiku Abubakar Bagudu (2015) LPELR-25721(SC) per Ariwoola, JSC., where he stated thus:
It should be noted that the above rules presupposes that before any lawyer acting in the specified capacity appends his signature on any legal document or presents any such document or process of Court for filing, there must be his seal and stamp on such document. I am of the opinion that ordinarily, any responsible member of the noble profession of lawyers will not sign or present any legal document which does not have his seal and stamp on it. This is to show authentication and responsibility. Therefore where a document is filed without the seal and stamp of the lawyer who prepared same, such document will be deemed not to have been properly signed and filed, and shall remain voidable until the necessary steps are taken to regularize same. Otherwise, if not regularized, the court may not countenance an improperly filed document?.[Emphasis mine].
To all intents and purposes, the prosecution/respondent’s final written address, duly adopted by the lower Court though bereft of the seal/stamp of the legal practitioner, was thus improperly signed and filed and so remained voidable and not void until regularized with the leave of the lower Court. This is to say that the failure of the learned counsel for the prosecution to affix his stamp/seal thereon merely rendered their said final written address improperly signed and filed and thus voidable before the lower Court. The failure to affix the stamp/seal of the legal practitioner being a procedural irregularity or error, can thus be remedied or made regular with the leave of the Court. See once again the authority of Yaki vs. Bagudu (2015) Vol. 249 LRCN. 1, particularly at 35JJ – 36P, per Ngwuta, JSC., who had this to say in the leading judgment:
What is the consequence of a legal document signed and filed in contravention of Rule 10(1) in the Rules? The answer is as provided in Rule 10(3) to the effect that . The document so signed or filed shall be deemed not to have been properly signed or filed”. It is my humble view that the legal document so signed and/or filed is not null and void or incompetent?..
It has been signed and filed but not properly so signed and filed for the reason that the condition precedent to its proper signing and filing had not been met.
‘… the process filed in breach of Rule 10(1) can be saved and its signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the affixing of seal and stamp would make the filing proper in law.
Guided by the foregoing, I dare say that in seeking to regularize such a process devoid of stamp/seal of counsel, an application to that effect could even be made viva voce or by way of motion on notice as was done in the instant case. It is also pertinent to note that in the course of moving the application to regularize the process, the learned counsel for the accused/appellant (Fawei, Esq.) was part and parcel of the proceedings and when asked by the Court, he replied thus: ‘We are not opposed to the application’. (See again page 118 of the record of appeal). Therefore, for the accused/appellant to claim that the regularization and adoption of the prosecution’s final written address without seal/stamp of counsel was done through an affidavit only and without serving same on the accused/appellant and so infringed on the right of the accused to fair hearing, is fallacious and most uncharitable.
Regarding the question of use of receipt as evidence of payment for the NBA stamp/seal, it is my considered view that production of such evidence is as good as payment for the said NBA stamp/seal. My learned brother Ogakwu, JCA., spoke my mind when he held as follows in the lead ruling in Re: Alhaja Sufurat Olufunke Yakubu & Anor. (2018) LPELR-43678(CA):
‘… having paid for the stamp and seal, all that remained was the domestic affairs of the Nigerian Bar Association Secretariat and where like in this situation, the Nigerian Bar Association Secretariat is tardy, such tardiness cannot be visited on the appellant as all required to be done on the part of the appellant’s counsel has been done.
Incidentally the learned counsel for the accused/appellant at paragraph 4.3, page 15 of their appellant’s brief of argument, referred to a purported motion on notice for extension of time filed on the ’17th March, 2016’ as well as documents exhibited thereto as constituting the processes that were filed without the seal/stamp of the prosecution.
I am at a loss trying to find such a motion on notice in the record of appeal more so as the counsel failed to refer to the specific page(s) of the record of appeal where copies of the said motion and or the affidavit are contained. My conclusion in the circumstance is that no such motion and or affidavit is in existence. The only motion on notice upon which the prosecution sought for and was granted extension of time as well as deeming order in respect of its final written address as noted earlier in this judgment, was the motion dated and filed 30th March, 2016. This was the same motion that was moved and granted with the acquiescence of the accused/appellant on 21st April, 2016 for the regularization of the process. (See again pages 58 – 63 and 118 of the record of appeal).
The learned trial Judge was at the end of the day right in allowing the regularization and adoption of the prosecution/respondent’s final written address vide the said prosecution’s motion on notice dated and filed 30th March, 2016 and which motion on notice was not only served on the accused/appellant, but was heard and granted with his consent. The learned trial Judge did not therefore misdirect himself when he held that the written address filed by the prosecution is valid and thus went on to rely on arguments therein in reaching the judgment now under appeal. To this end there was no infringement whatsoever on the said accused/appellant?s right to fair hearing. Issue 1 (one) is accordingly resolved in favour of the prosecution/respondent and against the accused/appellant.
ISSUE (TWO)
Whether the learned trial Judge did not properly evaluate the evidence adduced at the lower Court, including the extra-judicial statement of the appellant (Exhibit PR1) and came to the right decision that the respondent had proved its case against the appellant beyond reasonable doubt in convicting the appellant for the offences for which he was charged. (Grounds 5 and 7 of the Notice and Grounds of Appeal).
In arguing this issue, the accused/appellant submitted that the learned trial Court was wrong to have convicted and sentenced the appellant only with Exhibit PR1 without any other relevant pieces of evidence. Having stated the position and demand of the law regarding proof in criminal charges, the learned counsel went on to proffer that the prosecution failed to establish a nexus between the appellant and the offences he was charged with. Relying on the provisions of Sections 135 and 139(1) of the Evidence Act, 2011, counsel submitted that the prosecution shoulders the burden of proving beyond reasonable doubt the identity of the accused as the one that committed the alleged offences. Learned counsel argued that the prosecution was not able to prove the identity of the appellant as the perpetrator of the alleged act of kidnap of the victim.
Furthermore, the learned counsel canvassed that the alleged confessional statement (Exhibit PR1) was admittedly written by the PW1 (Inspector Clement Akpo), who happened to be the IPO in another kidnap case involving the appellant and for which he had earlier on arrested him on 15th March, 2013. He contended that notwithstanding the denial by the appellant of making Exhibit PR1, yet the same was admitted in evidence by the trial Court. He submitted that in our criminal jurisprudence, proof of the relevant elements of an offence cannot ground conviction, where the prosecution fails to prove the identity of the accused as the perpetrator of the alleged offence. Learned counsel submitted that the rational in the cases of Adebayo vs. State (2014) LPELR-22988(SC); Attah vs. State (2010) Vol. 30 WRN 1; Rasheed vs. State (2014) LPELR-22456; and Eyonaowa vs. COP (2014) LPELR-22339, applies mutatis mutandis to the instant case on appeal. He urged that once there is doubt as to the identity of the accused/appellant and his complicity to the alleged offence, the Court should resolve it in favour of the accused/appellant and acquit him.
Also in contention is the learned trial Court’s acceptance and reliance on Exhibit PR1 as the sole basis for the conviction of the appellant. Counsel submitted that despite the denial of making the said Exhibit PR1 by the appellant, the prosecution did nothing further to prove that it was made by the said appellant. Learned counsel argued that the appellant gave evidence to show that he was arrested in respect of an allegation of the kidnap of one Mrs. Akpe (a matter that is pending determination before the Bayelsa State High Court) for which he was tortured and forced to sign the said statement in that other allegation.
He argued that the appellant was able to debunk the allegation of making Exhibit PR1 on the balance of probability and as contemplated by Section 137 of the Evidence Act, 2011. Counsel contended that the law is in favour of this Court accepting and relying on the unshaken testimony and denial of making of Exhibit PR1 at the earliest opportunity, which was when it was being tendered and reach the finding that the statement was not made by the accused/appellant. See Olomo vs. State (2014) LPELR-22517(CA); Ahmadu Garba vs. The State (2016) 7 C.A.R. 1, 11-12, paras. C – A; Alarape vs. The State (2001) 2 SCNJ 162; The State vs. Azeez (2008) All FWLR Pt. 424, pg. 1423; Okashetu vs. State (2016) LPELR-40611 (SC); Akinrinlola vs. State (2016) LPELR-40641(SC); and Ojeabuo vs. FRN (2014) LPELR-22555(CA) and follow the decisions therein. He canvassed that where the tests laid therein are not applied by the trial Court to arrive at conviction, such conviction will be quashed and upturned.
It was also the contention of the learned counsel for the accused/appellant that the trial Court wrongly evaluated the pieces of evidence led before it, particularly in the areas of non-evaluation of the evidence of the accused/appellant. Learned counsel for the accused/appellant canvassed that when the prosecution sought to tender the statement i.e. Exhibit PR1, the said accused/appellant objected to making any statement.
He submitted that the allegation of the kidnap of Mrs. Betinah Friday Benson was first brought to the notice of the accused/appellant while he was in prison custody pending trial of the allegation of the kidnap of Mrs. Akpe. Learned counsel argued that the learned trial Judge did not take into consideration the fact that the appellant’s denial of ever making any extra-judicial statement to the police in this matter requires the prosecution to prove beyond reasonable doubt that the accused made the statement. Counsel canvassed that the trial Court placed the burden of proving that the extra-judicial statement (Exhibit PR1) was not made by the accused/appellant on the accused/appellant without the prosecution first proving beyond reasonable doubt that the statement was made by the accused/appellant. On the principles governing the evaluation of evidence by the Court, the learned counsel referred to the authorities of Lagga vs. Sarhuna (2008) 16 NWLR Pt. 1114, pg. 427; and Bassil vs. Fajebe (2001) 11 NWLR Pt. 725, pg. 592, 608-609. Counsel urged on us to resolve the issue in favour of the accused/appellant and hold that the trial Court wrongly evaluated the evidence led before it; and on the basis of the above re-evaluate the pieces of evidence led at the trial Court and hold that the accused/appellant did not make Exhibit PR1.
Counsel finally urged on us to resolve this issue in favour of the appellant, set aside the conviction of the accused/appellant and discharge and acquit him.
In their re-action on the issue, the learned counsel for the respondent began by submitting that the lower Court was right to have convicted the appellant on his extra-judicial statement Exhibit PR1, despite his retraction from same in the course of his defence. He submitted that in view of Exhibit PR1, validly and rightly admitted in evidence and by which the appellant detailed his role and involvement in the crimes for which he was charged, the appellant had identified himself as one of the perpetrators of the said offences charged. See Akinrinlola vs. State (supra); Okashetu vs. State (supra); Afolabi vs. State (2015) All FWLR Pt. 798, pg. 874, 906, para. B; and Ikemson vs. The State (1989) 3 NWLR Pt. 110, pg. 455, 479, paras. C – F. Counsel went on to submit that the appellant having confessed his involvement in the kidnap of the PW2 and given the circumstances of the said kidnap, a formal identification parade is not a prerequisite for proper identification of the appellant as one of the perpetrators of the offence charged. Learned counsel submitted that the testimony of the PW2 was not to the effect that she visually saw or recognized even faintly any of the persons that kidnapped her, therefore there was no basis for putting to test her power of recognition based upon physical features and/or other peculiarities of any person. See Balogun, Segun vs. Att-Gen., Ogun State (2002) 19 WRN 1, 18.
As per the question of denial of making the statement Exhibit PR1, the respondent submitted that what the appellant did was a retraction from the said confessional statement. See Madjemu vs. The State (2001) 25 WRN 1, 12 – 13. Lines13 – 18; and FRN vs. Babalola (2015) All FWLR Pt. 785, pg. 227, 247, paras. D-E. The learned counsel for the respondent opined that Exhibit PR1 having been said by the PW1 to be the confessional statement of the appellant, it is only logical that the objection to the denial of the making of the Exhibit PR1 ought to emanate from the appellant in the first place and then thereafter submitted to the lower Court as a point that would be canvassed by the defence at the defence stage by counsel to the appellant.
Having cited some other authorities, the respondent concluded that the appellant had failed to demonstrate that the decision of the lower Court is perverse or had occasioned a miscarriage of justice. He also submitted that the learned trial Judge contrary to the contention of the appellant, evaluated the respective cases of the parties and rightly convicted the appellant in respect of the offences he was charged with.
RESOLUTION OF ISSUE (TWO)
The stance of the law is that in criminal trial the standard of proof which rests on the prosecution is proof beyond reasonable doubt. See particularly the provisions of Sections 135 and 139 of the Evidence Act, 2011. Proof beyond reasonable doubt however, does not tantamount to proof beyond every shadow or iota of doubt. Failure on the part of the prosecution to discharge this burden will result in a discharge and acquittal of the accused. See John Agbo vs. The State (2006) 2 SCM 1, 29; Adebayo vs. State (2008) 6 ACLR 372 at 395; and Alonge vs. I.G.P. (1959) 4 FSC 203, 700 paras. A-D, per Ogbuagu, JSC., (of blessed memory): ‘… it is long settled that it is the duty of the prosecution to prove its case by evidence of such a quality and quantity as to leave the Court in no reasonable doubt as to the guilt of the accused person. Thus, where the prosecution fails to prove an essential element in a criminal charge, an appellant convicted in such a trial, is entitled to have his appeal allowed and the conviction quashed. In other words the burden in criminal case is throughout on the prosecution to prove its case beyond reasonable doubt. This is why, if there is inconsistency in the prosecution’s case such as to cast doubt on the guilt of the accused person, the accused is entitled to be given the benefit of doubt and he should be discharged and acquitted.
Whilst the PW1 being the Investigating Police Officer ((IPO) Inspector Clement Akpo), was testifying in this case on 9th December, 2014, the learned counsel for the respondent sought to tender through him the statement purportedly made by the appellant. The learned counsel for the appellant objected to its admissibility in evidence submitting that it is not the statement of the appellant and that the document being extra-judicial statement, is a public document copy of which for that reason should be certified pursuant to the provision of Section 104 of the Evidence Act. After taking arguments from both sides, the learned trial Judge rightly dismissed the objection and admitted same in evidence as Exhibit PR1. (See pages 92-95 of the record of appeal). There was an outright denial by counsel for the appellant that Exhibit PR1 was not made by the appellant, even without first showing the document to the appellant for him to confirm or deny the signature thereon as his or not. Such a failure to first show the document to the appellant for confirmation or denial of the signature thereon to my mind, leaves more to be desired on the part of the appellant. It is not for the appellant to deny authorship or otherwise of a document he had not at least glanced through. Being a relevant document, the lower Court rightly admitted it in evidence as the extra-judicial statement the appellant made to the police on his arrest. Not allowing the appellant identify or disclaim the signature on the document has whittled down the sincerity of purpose on the side of the appellant and thereby goes on to reinforce the holding of the lower Court that Exhibit PR1 is the voluntary statement of the said appellant.
Undoubtedly, neither the PW1 nor the PW2 had a visual contact of the appellant either in the course of the commission of the alleged crime or while escaping from the locus criminis as the case may be, as to put to test their power of recognition of the appellant based on physical features. It is common ground that the PW2 being the victim of the kidnap, as at the time of the incident, was an elderly woman of about 78 years of age and that the incident took place at around 2 am in the dead of the night. Upon being captured, she was blindfolded before she was whisked off her house and ferried across the river to a destination unknown to her. PW2 in her evidence in Court had painted the incident in the following words:
As they threw me into the boat, they tied my face with a cloth and they drove the boat out.
Upon being asked if she saw any of these people she replied thus:
I did not see anybody. I did not see the people that took me away but after four days a woman came and gave me food As they took me to a room where I was staying the second day a man came to me and said my son wants to speak with me. I cannot recognize the man because of the period my eyes was (sic) covered. (See page 103 of the record of appeal).
The PW1 on his part came in contact with the appellant about 10 (ten) weeks after the incident when on information received, he went in company of some other policemen to Agborhor in Delta State where the appellant was arrested. (See page 90 of the record of appeal). Given the circumstances of the PW1 and PW2 as evolved above, they had no visual contact and appreciation of the appellant at the material time and so not in a position to be called upon to carry out an identification of the appellant. It is certain in all of these that none of the two witnesses for the prosecution is in a position to nail the appellant to the scene of crime by means of identification parade. In the absence of eye witness’ identification of the appellant, the Court is left with Exhibit PR1 which is the extra-judicial statement of the appellant. Thus, the confessional statement of an accused becomes a veritable tool in the hands of the Court to ground a conviction, once it is satisfied that it has been made voluntarily and is positive and direct to the guilt of the said accused.
I place reliance on the pronouncement of our respected Rhodes-Vivour, JSC., in the case of Asimi vs. State (2016) 12 NWLR Pt. 1527, pg. 414, 434, paras. B-F (also reported in (2016) All FWLR Pt. 857, pg. 468, had this to say:
It is long settled that the Court may convict an accused person on his confessional statement alone once the Court is satisfied that it is free and voluntary confession of his guilt.
He went further to hold at page 490, paras. C – E, that:
Once an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal, amounting to an admission of guilt, a Court can convict on it if the accused person retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible. It is desireable but not mandatory that there is general corroboration of the important incidents and not that a retracted confessional statement should be corroborated in each material particular. In the instant case, the trial Court rightly relied on the confessional statement of the accused though he resiled from same on trial.
I have no cause to doubt the voluntariness of the said Exhibit PR1. Appellant?s claim that he was tortured and forced to sign same is not apparent on the face of the document, neither is there any extraneous proof to that effect. This is to say that the appellant?s sweeping claim of torture does not in any way impugn the integrity and or weight attachable to Exhibit PR1. It is pertinent to note that learned counsel for the appellant?s disposition towards Exhibit PR1, is that they did not make the statement as opposed to saying that it was a statement made under duress or involuntarily by the appellant. His retraction therefore from that extra-judicial statement is neither here nor there. In the case of Madjemu vs. The State (2001) 25 WRN 1, 12-13, the Supreme Court per Wali, JSC., whilst delivering the leading judgment had this to say:
The only objection raised by appellant?s counsel against Exhibit C before it was admitted in evidence was that the appellant did not write the statement. The learned trial Judge after listening to counsel’s arguments for and against its admission, ruled that the statement was admissible and was admitted as Exhibit C. What happened therefore in this case was a mere denial of making Exhibit C or simply a retraction. In the Queen vs. Igwe (1960) NSCC 38, particularly at page 39, this Court opined that mere denial of making a confessional statement by an accused person is not sufficient ground on which to reject its admissibility in evidence when properly tendered. See also The Queen vs. Itule (1961) 1 All NLR Pt. 3, pg. 462; Obosi vs. State (1965) NMLR 119; The Queen vs. Eguabor (1962) 1 All NLR 287; and Igago vs. The State (1999) 14 NWLR Pt. 637, pg. 1, in which the Court restated and reaffirmed the principle that:-
Where an accused is merely disputing the correctness of contents of the written statement or that he made no statement at all it is not necessary to have a trial within a trial.
The foregoing authority justifies the admissibility of the extrajudicial statement (Exhibit PR1), notwithstanding the appellant’s retraction of same at the lower Court.
In Osetola vs. State (2012) All FWLR Pt. 649, pg. 1020, the Supreme Court spelt out the manner by which a retracted confessional statement ought to be impeached and thus held that:
Where an accused person during trial retracts, denies or resiles from the extrajudicial statement he had earlier made to the police, immediately after the event giving rise to the charge or arraignment against him, he owes it a duty to impeach his said earlier statement. During trial, an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true or correct by showing any of the following:
a) that he did not in fact make any such statement as presented; or
b) that he was not correctly recorded; or
c) that he was unsettled of mind at the time he made the statement; or
d) that he was induced to make the statement.
Given that the contention of the counsel to the appellant borders on retraction from the statement, the appellant ought to have been shown the document and then be allowed to confirm or deny the making of same. Rather than take due steps as enunciated above, the learned counsel on his own and without showing the statement to the appellant, denied same to have been made by the said appellant. As I noted earlier on in this judgment, I view the procedure as leaving much to be desired. While faced with a similar situation in the case of FRN. vs. Babalola (2015) All FWLR Pt. 785, pg. 227, 247, paras. D ? E, the apex Court per Aka?ahs, JSC., observed as follows:
What I find rather curious in this case is that the learned counsel to the respondent would take objection to the statement which was made by another person. I am of the opinion that only a person who made the statement can raise objection to its voluntariness.
It is on the premise of the foregoing that I hold that it is only a person who has viewed a document that can confirm or deny authorship of same. Impliedly, the statement Exhibit PR1 which was not in any way impeached, remained voluntarily made and as such binding on the appellant. The learned trial Judge was therefore right in finding that Exhibit PR1 was voluntarily made by the accused/appellant and that whatever he said on the contrary in Court, was an afterthought to enable him escape justice. The appellant in his own words, clearly provided in his confessional statement (Exhibit PR1), the nexus and or his link to the offences charged by stating thus:
In addition to other kidnapping cases I was involved in, I have today the 3rd day of April, 2013, voluntarily made another confessional statement to the Police about the kidnapping of the mother of the speaker of the Bayelsa State House of Assembly which took place on the 28th of December, 2012, and I fully participated in the operation. It was my friend one Ajawo M? who informed me that there was a kidnapping job and I should follow him to go execute the job. He further told me it was already time to carry out the job so I followed him. We were seven in number?. (Emphasis mine).
On the premises of the foregoing, I need no power of clairvoyance to see and hold that the appellant in his confession has identified himself as one of the perpetrators of the offences charged. There could not have been a better identification in the circumstances than that of the self-confessed participant. This accords with the decision in Olabode vs. The State (2009) 7 SCM, 96, wherein the Supreme Court stated that:
‘…a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict.
See also Ogoala vs. State (1991) 2 NWLR Pt. 175, pg. 509 at 534; Demo Oseni vs. The State (2012) 2 MSCJ 1, 16; Mohammed J. Yahaya vs. The State (1986) 12 SC., 282 at 290; R. vs. Ainu Kano (1941) WACA 146; and Isaac Stephen vs. The State (1986) 12 SC., 45 at 47.
Guided by the foregoing authorities, it is our considered view that the learned trial Judge could convict and indeed rightly convicted the appellant on Exhibit PR1 being his voluntary and confessional extra-judicial statement, notwithstanding the fact that circumstances did not permit the 2 (two) prosecution witnesses (PW1 and PW2) to gain a facial confrontation with the said appellant.
Issue 2 (two) is in this vein resolved in favour of the respondent and against the appellant.
I hold in sum that this appeal lacks merit and is hereby dismissed. This is to say that the judgment, conviction and sentence of the accused/appellant by the Bayelsa State High Court, Oporoma Division, per Hon. Justice M. A. Ayemieye J., in OHC/5C/2014 delivered 21st September, 2016 are hereby affirmed.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading before now, the lead Judgment just delivered by My Learned brother CORDELI IFEOM JOMBO-OFO, JCA
The appeal lacks merit and it is hereby dismissed. I also abide by all consequential orders in this appeal.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the lead Judgment just delivered by my learned brother C.I. Jombo-Ofo, JCA. I entirely agree with the reasoning and conclusions reached therein. I too dismiss the appeal and affirm the conviction and sentence on the Appellant by the trial Court.
Appearances:
P. J. Fawei, Esq.For Appellant(s)
A. S. Arthur, Esq.For Respondent(s)
