MATTHEW v. STATE (2020)

MATTHEW v. STATE

(2020)LCN/14422(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, July 02, 2020

CA/A/751C/2018

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Between

OJONUGWA MATTHEW APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

DEFINITION OF A “CONFESSIONAL STATEMENT’

By virtue of Section 28 of the Evidence Act, a confessional statement is an admission against interest by an Accused person stating or suggesting the inference that he committed the crime.
Also, a confessional statement is admissible in evidence once it is voluntary and its voluntariness is unchallenged when it is sought to be tendered and put in evidence. It is only when its voluntariness at the point of it being tendered is challenged that a trial within trial is held to determine the voluntariness of the judicial statement and to ensure that it complies with the provision of Section 29 of the Evidence Act, 2011. The test by Ridley J. in R. v Sykes, as to confessional statement was necessary in the instant case and that the trial Court ran that credibility test before relying on it. PER ADAH, J.C.A.

A PLEA OF ALIBI

The law as related to plea of alibi is very simple. Alibi simply means elsewhere. This means that the appellant was saying he was not at the scene of crime. See Eke v. State (2011) LPELR – SC, Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112, Okolo Ochemaje v. The State (2008) LPELR – 2198 (SC) and Idemudia v. State (2015) 17 NWLR (Pt. 1488) 375. PER ADAH, J.C.A.

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): The Appellant, Ojonugwa Matthew, was arraigned, tried, convicted and sentenced for the offences of conspiracy, rape and armed robbery under Sections 97(1), 283 and 298(c) of the Penal Code in Charge No: AHC/10C/2015 on 08/11/2016 by the Kogi State High Court sitting at Ankpa Coram: Awulu, J.

Dissatisfied with the judgment, the Appellant appealed to this Court vide the notice of appeal filed on 07/12/2016.

The record of appeal was transmitted on 02/08/2018. The Appellant’s brief was filed on 08/01/2019 but deemed on 06/04/2020. The Respondent’s brief was filed on 15/07/2019 but deemed properly filed and served on 06/04/2020 to be properly filed and served.

The Appellant distilled a sole issue for determination. This issue was also adopted by the Respondent in her brief of argument. This issue is couched as follows:
“Whether the Prosecution (Respondent) proved beyond all reasonable doubt the offences of conspiracy, rape and armed robbery against the Appellant based on the evidence led at the trial Court.”

The learned counsel for the Appellant in his brief of

argument contended that the Prosecution did not prove beyond reasonable doubt that the Appellant conspired with one Ugbede John to rape and rob Florence Adebayo. He contended that the onus is on the Prosecution to prove the case against the Appellant beyond reasonable doubt. He relied on Section 135 of the Evidence Act and the cases of Idemudia v. State (1999) 7 NWLR (Pt. 610) 202, 215, Esangbedo v. State (1989) 4 NWLR (Pt. 113) 57; Usman v. State (2014) All FWLR (Pt. 713) 1917 SC, Galadima v. State (2013) All FWLR (Pt. 667) 630 SC. He submitted that the burden of proof beyond all reasonable doubt is static and does not shift. That though the prosecution is not bound to produce a host of witnesses it must produce all material witnesses to prove its case beyond reasonable doubt. That failure to call vital and material witnesses will raise the presumption under Section 167(d) of the Evidence Act, 2011. The learned counsel was of the opinion that a vital witness is a witness whose evidence is material and fundamental in that it determines the case one way of the other. That the Prosecution’s failure to call a vital witness is fatal to the

Prosecution’s case. He relied on State v. Nnolim (1994) 5 NWLR (Pt. 345) P. 394. Furthermore, failure to call vital witness raises the presumption under Section 167 (d) of the Evidence Act, 2011 that had the witness(es) been called their evidence would have been unfavourable to the Prosecution. Florence claimed that she was with Esther Adejoh, Blessing John and John when the Appellant and other chased her and took her on a motorcycle to the bush where she was raped. She also narrated that when the Appellant was caught, he led his brothers, the same Esther Adejoh, Blessing John, Glory John and Sumaila to the place in the bush where she was raped and her handset and N1000 taken from her.

The Appellant claimed that when he was taken to the police station, Esther Adejoh denied that the Appellant raped the Prosecutrix which earned her a hot slap. None of these vital witnesses were called to give evidence at the trial. Members of the vigilant group who allegedly arrested the Appellant were not called. There was no evidence of how the vigilante group purportedly arrested the Appellant came to know that he had taken PW2 to the bush to be raped by his

alleged conspirators and himself. That there is no evidence of what happened to his motor- cycle with which he was alleged to have conveyed the girl to the bush. Esther Adejoh, Blessing John and Glory, who allegedly witnessed PW2 being taken away were not called to give evidence at the trial. That the failure to bring these vital and material witnesses raised the presumption that if they had been called, their evidence would have been unfavourable to the case of the prosecution and this call in the provision of Section 167(d) of the Evidence Act, 2011. That this failure to call these vital witnesses and tender the telephone handset and N1000 which was allegedly robbed from Florence is fatal to the case of the prosecution. He relied on the case of Ogudo v. The State (2011 ) LPELR-860 (SC).

He submitted that the failure of the Prosecution to call any of Blessing John, Glory John, Esther Adejoh and Sumaila, who were alleged to be present when PW2 was taken away on a motor- cycle by the appellant, John Ugbede and another as well as PW2’s brothers who allegedly arrested the Appellant and took him back to the place in the bush where PW2 was alleged to

have been raped is fatal to the case of the Prosecution as it connotes that if these witnesses had been called their evidence would have been unfavourable to the case of the prosecution. Section 167(d) of the Evidence Act, 2011; Muhammed Massiga (Tsolo); Ogudo (supra).

To this, I must say without hesitation that the Prosecution in any criminal trial is the master of its own case. He cannot be dictated to or stampeded into calling a world chub witnesses he does not intend to call. He knows the adequate number of witnesses to call. He also may decide not to call any witnesses but call for documentary exhibits in support of his case. His case is solely his responsibility and that responsibility is to be carried out in line with the dictates of justice. Failure to call further witnesses in the instant case is of no consequence to the case of the prosecution. The presumption in Section 167(d) of the Evidence Act, deals with withholding of evidence in a case. This does not entail subjecting the prosecution to calling witnesses he does not need in proof of his case beyond reasonable doubt. If the witnesses left out by the Prosecution are material, the Defence can

summon these witnesses for the defence of the Appellant.

On the confessional statement of the Appellant, the learned counsel canvassed that Court of law can convict on a confessional statement of an accused person, if it is direct positive and unequivocal and leads to the irresistible conclusion that the accused person committed the offence even without corroboration. Stephen v. The State(2013) All FWLR (Pt. 705) 29 SC, Aremu v. State (1984) (1991) 6 NWLR (Pt. 200) P. 62. A confessional statement is an admission against interest by an accused person stating or suggesting the inference that he committed the crime. See Section 28 Evidence Act. Also, a confessional statement is admissible in evidence once it is voluntary and its voluntariness is unchallenged when it is sought to be tendered and put in evidence. Ikemson v The State, See Yesufu v. State(1976) 6 SC 167, Obasi v. State (1965) NMLR 129.

The law as specified by the Appellant in his brief is a settled one. It is closely correct that a retraction from a confessional statement does not affect its admissibility but goes to the weight to be attached to the confessional statement considering

other evidence led at the trial. See Galadima v. The State (2013) All FWLR (Pt. 667) 630 SC. However, it is desirable and prudent to employ the test by Ridley J. inR. vs. Sykes, which has been approved by the Supreme Court in several cases. See Ogudo v. State, Kanu & Anor. v. King (1952) 14 WACA P. 30 Mbenu v. State (1988) NWLR (Pt. 84) P. 615, Stephen v. State(1986) 5 NWLR (Pt. 46) P. 978, that the Court should run the confessional statement through the following tests;
1. Is there anything outside the confession to shown that it is true.
2. is it corroborated.
3. are there relevant statements of facts made in it of facts true as can be tested.
4. was the prisoner one who has the opportunity of committing the crime.
5. is this confession probable
6. is it consistent with other facts which have been ascertained and have been proved.
The Prosecution tendered two extra judicial confessional statements Exhibits A and B against the Appellant. In Exhibit A, the Appellant denied the allegation in counts 1,2 and 3 of the charge before the trial Court, even though a Court of law can convict solely on a confessional statement

which is positive, direct, unequivocal and voluntary. See Stephen v. The State (supra). The admonition is to be circumspect in relying on the confessional statement when the maker has retracted from it. That even though the appellant did not object to the admissibility of the confessional statement when it was tendered his retraction called for the test prescribed in R. v. Sykes (supra).

The learned counsel pointed out that the Prosecution failed woefully to sustain the charge against the Appellant. This was as a result to what he summed up to be that the Prosecution withheld vital witnesses and evidence in this case against the Appellant. He indexed the instances as follows:
a. Esther, Blessing and Glory were said to have witnessed the taking away of PW2 and who were with the Appellant when he led PW2’s brothers to where she was allegedly raped were not called as witnesses. Ogudo (supra).
b. The brothers of PW2/vigilante who allegedly arrested the Appellant and took him to the police station were not called as witnesses.
c. The telephone handset and N1000 which was alleged to have been robbed from PW2 and recovered from John Ugbede

were not tendered as exhibits at the trial Court.
d. The motorcycle with which it was alleged PW2 was taken away was not tendered, and no explanation was given as the whereabouts of the motorcycle as an instrument of crime.
e. PW1 confirmed that the Appellant attended the burial ceremony. DW4 said he left the burial ceremony and it was not up to 15 minutes before the Appellant was alleged to have abducted and raped PW2. This time frame was not enough for the Appellant and alleged conspirator to have serially raped and robbed PW2.
f. The alleged confessional statement of the Appellant failed the test enumerated in R vs. Sykes by Ridley J. approved by the Supreme Court in several cases: See Ogudo and Masiga (supra).
g. The medical report did not establish that PW2 was raped but at best that PW2 had sexual intercourse, the doctor was not an eye witness and there was no linkage between the doctor’s testimony, the medical report and other witnesses and evidence to exhibit rape.
h. While PW2 stated that she was taken to the hospital at Ogbadebe, the doctor and medical report was from General Hospital Okpo. (An unexplained discrepancy).

The Respondent in its own argument canvassed that the Prosecution proved their case beyond reasonable doubt that Ojonugwa conspired with John Ugbede, to rape and rob Florence Adebayo of her handset and N1000. He contended that the onus is on the Prosecution to prove the case against the Accused person (Appellant) beyond reasonable doubt, does not imply that such should be proven beyond all iota or shadow of doubt. He relied on the cases of Jimoh v. State (2014) 10 NWLR Pg. 113, Amaremor v. State (2014) 10 NWLR Pg. 13 and Obidike v. State (2014) 10 NWLR pg. 59. He submitted also that evaluation of evidence and ascription of probative value, thereto remain within the probative value of the trial Court which see, hears and observe the demeanor of the witnesses. He cited the case of Usman v. State (2014) 12 NWLR Pg. 215. The learned counsel contended further that the Appellant has not pin-pointed the wrong approach adopted by the trial Court in such a manner as to constitute a special circumstance to which an appellate Court should intervene to void the decision of the trial Judge. He in addition submitted that it is only when it is evident that

the evaluation of evidence by the trial Court was defective, that the appellate Court should intervene and examine the grounds on which the conclusions and inferences of the trial Court were based. See Usman v. State (supra). That in the instant case, the Court upon close study of the evidence of the Prosecution witnesses, rightly held that the Prosecution proved the case of rape, conspiracy and armed robbery against the appellant beyond reasonable doubt. That in the instant case, the Prosecution adduced credible evidence via witnesses and confessional statements which persuaded the trial Court in convicting the appellant. He contended that the burden of proof beyond reasonable doubt placed on the Prosecution cannot be said to be in its entirety static as âproof beyond reasonable doubt is not proof to the hilt.â That the burden of proof of beyond reasonable doubt was satisfied when the Prosecution on the strength of the evidence led proved all the ingredients of rape, conspiracy and armed robbery. That the Prosecution is not bound to produce a list of witnesses as the law does not impose such obligation on the Prosecution.

The learned counsel for the Respondent submitted further that it is trite that a Court of law can convict on a confessional statement of an accused person, if it is direct, positive and unequivocal and leads to the irresistible conclusion that the accused person committed the offence even without corroboration. He cited Okoye v. Federal Republic of Nigeria (2018) LPELR-46843 (CA), Jimoh Yesufu v. State (1976) 9 SC 167, Edet Obasi v. State (1965) NWLR 119, James Chiokwe v. State (2012) LPELR – 19716 (SC). He contended that a confessional statement is the best evidence in our criminal procedure. That it is a statement of admission of guilt by a Defendant and that the Court must admit it in evidence unless it is contested at the trial. Once a confessional statement is admitted, the Prosecution need not prove the case against the Defendant beyond reasonable doubt as the confessional statement which is accepted and relied upon ends the need to prove the guilt of the Defendant. See Solola v. State (2005) All FWLR (Pt. 269) 1751. However, the confessional statement must be unequivocal in the sense that it leads to the guilt of the maker. See Awosika v. State (2009) 4 NCC 348 per Idris, JCA,

(Pp. 12-13, para E). In the instant case, the confessional statements made was corroborated.

before he passed the right judgment by convicting the Accused accordingly. It is indeed true and I confirm it from the record that the trial Court relied on the credible evidence to convict the Appellant. That the trial Court was right to convict the Appellant based on the evidence adduced by the Prosecution. The learned counsel for the Respondent canvassed that the Court took into cognizance the requirements of the law in his judgment against the Appellant (page 73 of the record) before convicting the Appellant. He urged the Court to give merit to their argument and uphold the conviction of the Appellant by the trial Court. That it was the reasoning of the Court that a Court of law can convict solely on a confessional statement which is positive, direct, unequivocal and voluntary. In the instant case, it can be deemed unequivocal as the said confessional statements were corroborated. The admonition is to be circumspect in relying on the confessional statement when the maker has retracted from it. The trial Court was right in verifying its truth as the retraction could not hold water, the confessional statement of the accused had other facts and evidence

outside the confessional statements that corroborated it.

He urged the Court to hold that the trial Court properly evaluated the evidence and properly convicted and sentenced the Appellant.

This appeal is straightforward and not complex. The PW2 was the victim of the rape and robbery. Her evidence is at pages 38, 39 and 40 of the record of appeal. She testified in the main as follows:
My name is Florence Adebayo. I live at Igah Ikeje. I am a student of Igah Community College. I am currently in SS1. I am fifteen years old. I know the accused persons. Ojonugwa’ mother hails from our village. The second accused is cousin to my brother. I know him at Emonyokwu. On 22nd May 2015, we were going for prayers at Eti-Aja. I was with Esther, Sumaila, Glory and Blessing. This was around 9:00pm. Close to the market square, they came out and broke a bottle. The Accused persons and one other person I did not know before were the ones who came out and broke the bottle. They were hiding in a mechanic place and broke the bottle in front of us. We began to run. They came to where I was hiding and took me away. They tied my hands behind. They carried me on a

motorcycle. The 1st accused was the rider. The second sat in my front while the third person was at my back. They took me to a bush to beat me. They said my mother had not allowed anybody to come near me but on this day, I would see what was going to happen. They tied a cloth over my eyes. They collected my phone and one thousand naira. They took me to a bush and raped me one after the other. The second accused was the first followed by the 1st accused person. They raped me one after the other. The accused persons removed my cloth and my under wears and then raped me thereafter inserted their penis into my vagina. They all did that one after the other. Thereafter, Ojonugwa went out. He met my siblings when he was coming out of the bush. My brothers asked him to take them to me. There was disagreement as he refused. He leads them where I was in the bush. Those who were lead to me are Ester, Sumaila, Gloria and Blessing. I was taken to Police Station. Okpo. I made a statement. Thereafter, I was taken to General Hospital, Ogbagebe.

From the evidence of the PW2, the Appellant was well known to the victim who is the PW2. There was no crisis of identification

in this case. There is clear and certain evidence from the confession of the Appellant and the testimony of the Medical Doctor, that the PW2 was raped. The testimonies of the Prosecutionâs witnesses were not destroyed under cross- examination. The account of the PW2 as to however she was conveyed on a motorcycle into the bush and raped was not controverted. In this situation where the prosecution has put forward key evidence to prove the ingredients of the offences charged calling extra witnesses was unnecessary. The Appellant alleged that the failure of the Prosecution to call the other girls was fatal. From the testimony of the PW2 who was the victim of the offence and the admission of the Appellant in his statement to the Police that he committed the offences charged, there is enough evidence to convict the Appellant. The Appellant’s defence was that he went for a burial and he left the burial place when he was tired. The Prosecution followed the lead and they countered the half-hearted alibi. The learned counsel for the Respondent canvassed that if the Appellant was relying on the defence of alibi, he would have raised it at the Court of first

instance and prove it by adducing credible evidence of his whereabouts at the material time. That the Appellant cannot take advantage of this defence on appeal to quash his conviction.
The law as related to plea of alibi is very simple. Alibi simply means elsewhere. This means that the appellant was saying he was not at the scene of crime. See Eke v. State (2011) LPELR – SC, Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112, Okolo Ochemaje v. The State (2008) LPELR – 2198 (SC) and Idemudia v. State (2015) 17 NWLR (Pt. 1488) 375.
In the instant case, apart from the allegation that he left the burial place, he did not give particulars of where he was at the material time of the crime. Moreover, he was well located at the scene of crime at the material time by the PW2. The defence of alibi therefore is not established. The lower Court was right to discountenance it. The Posecution from the witnesses before the trial Court clearly proved that the Appellant was at the scene of crime and that he took the prominent role as the rider of the motorcycle used to convey the victim into the bush. There is therefore, no doubt about the guilt of the Appellant as

found by the trial Court.

From the foregoing therefore, it is my conclusion that this issue is resolved in favour of the Respondent. The appeal of the appellant is completely lacking in merit. It is hereby dismissed. The judgment of the trial Court in Suit No: AHC/10C/2015, delivered on 8/11/2016, inclusive of the conviction and sentence of the Appellant is hereby affirmed.

PETER OLABISI IGE, J.C.A.: I agree.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Stephen Jonah Adah, JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

ELI UWAIFOH ESQ., with him, KENECHUKWU MADUKA ESQ. For Appellant(s)

JAMES AGBONHESE ESQ., with him, MISS UDO LIBERTY and MISS CHIOMA UZOKWE For Respondent(s)