MOHAMMED SANI v. THE STATE
(2019)LCN/12905(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of March, 2019
CA/YL/75C/2018
RATIO
CONFESSIONAL STATEMENT: WHETHER AN ACCUSED CAN BE CONVICTED ON A CONFESSIONAL STATEMENT
“It is trite that an accused person could be convicted on his Confessional Statement alone. In IBRAHIM KAMILA V. THE STATE (2018) LPELR ? 43603 (SC) P. 14, Paragraph A-E. His Lordship Sanusi, JSC clearly stated the position of the law thus: A Confessional Statement can simply be defined as an admission by a person charged (or an accused person accused) of committing a crime ay anywhere or anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act 2011 as amended. It is well settled law that free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and was duly made voluntarily, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. See: ALABI V. STATE (1993) 7 NWLR (PT. 307) 5; FABIYI V. STATE (2015) 6 ? 7 SC (PT. 1) 83. OSETOLA AND ANOR. VS. STATE (2012) 6 SCNJ 321; NWACHUKWU VS. THE STATE (2002) SCNJ 230; DOGO V. THE STATE (2013)2-3 SC (PT. III) 75 at 92 – 94. See, also Hassan V. State (2001) LPELR-1358(SC) P.16, PARAGRAPHS C – F.” PER CHIDI NWAOMA UWA, J.C.A.
CRIMINAL LAW: WHETHER A ACCUSED CAN BE CONVICTED OF AN OFFENCE HE WAS NOT CHARGED WITH
“…it is true that generally an accused person could only be convicted for an offence to which he has been charged and pleaded to. But, there are expectations, where statute have made specific provisions where an accused person may be convicted for an offence which he was not charged and pleaded to…” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
MOHAMMED SANI Appellant(s)
AND
THE STATE Respondent(s)
CHIDI NWAOMA UWA, J.C.A.(Delivering the Leading Judgment):
The appeal is against the judgment of the Taraba State High Court delivered on the 25th day of January, 2018 presided over by Josephine Y. Tuktur, C. J. wherein the Appellant was convicted and sentenced for fifteen (15) years imprisonment for the offence of aiding and abetting the commission of Armed Robbery.
The Appellant was unhappy with the conviction and sentence, thus this appeal.
The background facts are that on the 21st day of August, 2013 the Attorney General of Taraba State commenced Criminal Proceedings against the Appellant for the alleged offences of Armed Robbery contrary to Section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provision) Act, 1990 and unlawful possession of firearms punishable under Section (3) (1) of the Act.
It was made out by the Respondent at the trial Court that on the 21st day of October, 2011 the Appellant while armed with a one barrel pistol robbed one Danladi Jatau of his Toyota Corolla car with registration number TRS ? 618 ? ARD, black in colour valued at N2,200.00.00 (Two Million, Two Hundred Naira) and the sum of N184,000.00 (One Hundred and Eighty Four Thousand Naira).
At the close of the trial, the trial Court convicted the Appellant for the offence of Aiding and Abetting the commission of Armed Robbery on the basis of Exhibit ?A?, the extra judicial statement of the Appellant.
Relying on exhibit ?A? the trial Court found the Appellant guilty of the offence of aiding and abetting Armed Robbery and was convicted and sentenced to fifteen (15) years imprisonment.
Two issues were distilled for the determination of the appeal thus:
1.WHETHER the Appellant was rightly convicted for the offence of Aiding and Abetting the commission of Armed Robbery under Section 5 (a) of the Robbery and Firearm (Special Provisions) Act?. (Distilled from Ground one of the Appellant?s Grounds of Appeal).
2.WHETHER the conviction and sentence of the Appellant for the offence of Aiding and Abetting the commission of the offence Armed Robbery under Section 5 (a) of the Robbery and Firearm (Special Provisions) Act, is justifiable.? (Distilled from Ground 2 of the Appellant?s Grounds of Appeal).
The Respondent on her part distilled a sole issue for determination thus:
Whether a person can be convicted for an offence with which he was not charged and consequently not pleaded?. Distilled from grounds 1 and 2 of the Appellant?s Ground of Appeal.
The Learned Counsel to the Appellant, U. B. Adie Esq. in arguing the appeal, adopted and relied on is Brief of Argument filed on 3/8/2018 as his argument in this appeal in urging us to allow same. In arguing this issue one, it was submitted that it is settled law that where an offence is charged and the facts are proved which reduce it to a lesser offence, an accused person may be convicted of a lesser offence although he was not charged with it. See: ODE VS. F. R. N. (2008) 6 SCM 152 at 166. It was argued that it must be shown that the particulars, facts and circumstances of the original offence, charged are the same or similar to the lesser offence. See: NAF VS. KAMALDEEN (2007) 7 NWLR (PT. 1032) 164 at 190 D ? F. Also, that where a Court has course to convict for a lesser offence proved by evidence adduced at the trial other than that which the accused is charged, the elements of the lesser offence must be submitted under the offence already charged, otherwise the conviction would not stand. See: BABANGIDA VS. STATE (2017) LPELR ? 4199 (CA) at P. 13, PARAGRAPH B ? D, ADEYEMI VS. STATE (1991) SCNJ 131, BABANGIDA SALE VS. THE STATE (2017) LPELR 4 1 992 (CA) PAGE 14, PARAGRAPHS A ? E and NWACHUKWU VS. STATE (1986) 2 NWLR (PT. 25) 765. Further that the lesser offence must arise from the facts and evidence led in support of the more serious offence. See: OKOBI VS. STATE (1984) 7 SC 47, OLUMIDE SEGUN VS. STATE (2018) LPELR ? 44693 (SC) and NWACHUKWU VS. STATE (SUPRA).
It was argued that nowhere in the record was it shown that the evidence adduced by the prosecution in respect of the original charge against the Appellant was insufficient to sustain the main charge but, the trial Court held that the evidence of the prosecution did not establish the offences the Appellant was charged with and he was discharged and acquitted on that ground which is against the principle of law in the case of OLUMIDE SEGUN VS. STATE (SUPRA) to the effect that the evidence led and facts found, though in sufficient for conviction of the aggravated offence of Armed Robbery and Illegal possession of firearms, must support the conviction for the lesser offence. It was the contention of the Learned Counsel to the Appellant that there is nothing indicating insufficiency of evidence to sustain the original charge from the evidence adduces by the prosecution. It was argued that the lesser offence never arose from the facts and evidence led in support of the original charge. Also, that there were no proved facts which reduces the original charge to a lesser one to warrant the conviction of the Appellant for the lesser offence. See: ODE VS. F. R. N. (SUPRA). It was concluded that for the Appellant to be fairly convicted for the lesser offence, the lesser offence must be proved by evidence adduced at the trial and the elements of the lesser offence must be submitted under the original offence. See: BABANGIDA VS. STATE (SUPRA). The elements of the lesser offence for which the Appellant was convicted by the trial Court are not the same as the elements for the original offences.
In arguing the second issue, it was submitted that although Exhibit ?A? was submitted in evidence without objection, the Appellant denied making Exhibit ?A? at the trial where the Appellant was convicted for a lesser offence and discharged for the offences of Armed Robbery and Illegal possession of firearms. Further, that for a confession to amount to an admission of guilt, it must be positive, direct, true and unequivocal as to the commission of the offence for which the accused person is charged and also unequivocal of facts that satisfy the ingredients of the offence. See: STATE VS. YUSUF BAKO & ANOR (2007) VOL.II WRN P.143 at 146. It was submitted that before a confessional statement could be relied upon by the Court to convict an accused person, the confession must be consistent with other ascertained facts which had been proved. Also, to have outside the confessional statement ?some credible corroborative evidence? making it probable that the confession is true and correct. See: OGUDO VS. STATE (2011) VOL. 202 LRCN PG. 1 at 10, GAMBO VS. THE STATE (2011) ALL FWLR (PT. 602) P. 1609 at 1615. It was argued that there is no credible evidence outside the confessional statement of the accused adduces by the prosecution to support the Appellant?s conviction and sentence for the offence of abetment. It was submitted that the evidence of the PW1 and PW2 supported that of the Appellant that he did not participated in the alleged offence. It was the contention of the Learned Counsel to the Appellant that where an accused person denies making a statement adjudged to be confessional, the veracity of such statement be tested by comparing it with other facts and circumstances outside the statement in order to see whether they support, confirm or correspond with the said statement which would then be regarded as correct and true. See: HASSAN VS. THE STATE (2011) 15 NWLR (2008) ALL FWLR (PT. 411) P. 1616 at 1673, ISONG VS. STATE (2012) ALL FWLR (PT. 628) P. 999 at 1001, ADEKOYA VS. STATE (2012) ALL FWLR (PT. 662) P. 1632 at 1652 and R. VS. SKYES (1913) 8 CR APP. P. 223.
It was submitted that, there is nothing credible outside the confessional statement, Exhibit ?A? which corroborated the confessional statement said to have been made by the Appellant. It was contended that the evidence of the Appellant as DW1 remained uncontroverted and that the ingredients of the offence of abetment were not proved against the Appellant. The offence of abetment was defined to include instigation, intentionally aiding or engaging in a conspiracy, knowledge or intention on the part of the abettor and knowledge or intention which must relate to the crime. It was concluded that no evidence was led or found anywhere in course of trial relating to the offence of abetment.
On the part of the Respondent, the Learned Director of the Public Prosecution (DPP) Taraba State, Hamidu Audu Esq. adopted and relied on his Brief of Argument filed on 12/11/2018 deemed properly filed and served the same day as his argument in this appeal in urging us to dismiss the appeal and affirm the judgment of the trial Court. In arguing his sole issue it was submitted that even though as a general rule, an accused person could only be tried and convicted for an offence to which he has pleaded and cannot be convicted for an offence for which he was not expressly charged with exception to where an accused person may be convicted for an offence with which he was not charged and not plead to as provided for instance, Sections 217 and 218 of the Criminal Procedure Code, Laws of Taraba State which made provision for punishment for a lesser offence where proved, even though not charged. See: BABALOLA VS. THE STATE (1989) 4 NWLR (PT. 115) 264, where Section 179 of the Criminal Procedure Act (which is in pari materia with Section 218) was applied. The evidence adduced must support the lesser offence. See: ADEYEMI VS. THE STATE (1991) SCNJ 131. It was submitted that the Appellant was rightly convicted for the lesser offence of abetting then offences of Armed Robbery and unlawful possession of firearms. See: MUSA VS. THE STATE (2012) 13 NWLR P. 59 at 63. Also, ODEH VS. F.R.N. (2008) INCC PAGE 303, AJOSE VS. F.R.N (2011) 6 NWLR (PT. 1244) PAGE 465, TUNDE ADAVA VS. THE STATE (2007) 2 NCC PAGE 191 and NWACHUKWU VS. THE STATE (1989) 4 SC 378. It was argued that the Appellant at the trial understood the charges against him, of Armed Robbery and unlawful possession of firearms, therefore the offence of aiding and abetting were not strange to him in view of Exhibit ?A? which was tendered without objection. Exhibit ?A? was said to have revealed details of how the Appellant aided the main offence and the trial Court was right to have relied on same to convict the Appellant. See: F.R.N. VS. IWEKA (2013) 3 NWLR (PT 285) SC and OJEGELE VS. STATE (1988) 1 NWLR (PT. 71) 414.
In response to the appellant?s issue two, it was submitted that even though it is desirable to have some evidence outside the confession in further proof of the offence, the absence of such additional evidence will not necessarily prevent the Court from convicting on the confessional statement alone provided that the statement satisfies the test of being positive, direct and unequivocal.
Therefore, an accused person could be convicted or his confessional statement alone while relying on the case of OSETOLA VS. STATE (2011) 15 NWLR (PT. 735) P. 184, where the Supreme Court outlined what an accused person who desires to impeach his confessional statement as untrue, has to establish, as follows:
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 in mind at the time he made the statement, or
d. That he was induced to make the statement. See: ALARAPE VS. STATE (2015) 5 NWLR (PT. 705) P. 79 and OSUNG VS. STATE (2012) 18 NWLR (PT. 1332) P. 256. It was concluded that the trial Court reliance on Exhibit A to convict the appellant for the lesser offence is correct and in line with the law.
I have examined the issues raised by the parties and would recouch same into a single issue thus:
Was the trial Court right to have convicted and sentenced the Appellant for the offence of Aiding and Abetting the commission of the offence of Armed Robbery with which he was not charged and pleaded to?
In line with the submissions of the Learned Counsel to the Respondent, it is true that generally an accused person could only be convicted for an offence to which he has been charged and pleaded to. But, there are expectations, where statute have made specific provisions where an accused person may be convicted for an offence which he was not charged and pleaded to. The Appellant was charged with Armed Robbery and unlawful possession of firearms but, the trial Court convicted and sentenced him for a lesser offence of Aiding and Abetting Armed Robbery. The Learned Counsel to the Appellant has argued that this ought not be since the
Appellant was neither charged with Aiding and Abetting Armed Robbery nor pleaded to it. Sections 217 and 218 of the Criminal Procedure Code, Laws of Taraba State provides as follows:
217 ? ?if in the case mentioned in Section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have charged under the provisions of that Section, he may be convicted of the offence which he is shown to have committed although not charge with it?.
218 (1) ?When a person is charged with an offence consisting of several particulars, a combination of same only of which constitutes a complete lesser offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it?.
(2) ?When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he is not charged with it?.
The above provisions enable the Court to convict for a lesser offence if the facts are in its support where the lesser offence is shown to have been proved rather than the offence to which the appellant was charged. The important element is that the facts of the lesser offence must be subsumed in the main offence charged which has not proved. The Learned trial chief Judge relied on Exhibit ?A? the extra judicial statement of the Appellant made to the police, which was admitted in evidence without any objection. Its voluntariness is not in issue, as it was not raised at the trial. The issue being argued by the Learned Counsel to the Appellant did not make Exhibit A does not arise because, whether the Appellant made the statement or not should have been raised, argued and decided upon at the time it was tendered.
See: EGUABOR VS. QUEEN (1962) LPELR 25096 (SC), EKPO VS. STATE (2018) LPELR 43843 (SC) and OKON DAN OSUNG VS. THE STATE (2012) LPELR 9720 (SC) PP. 30 ? 31, Paragraphs E D, (2012) 18 NWLR (PT. 1322) P. 256. In AKPAN VS. STATE (2001) LPELR 383 (SC) at P. 21, Paragraphs B C (also reported in 2001 (15) NWLR (PT. 737) P. 745) his Lordship, Karibi Whyte, JSC gave the effect of a confessional statement admitted without objection simply thus:
The present statement of the law is that once a confessional statement is admitted in evidence it becomes part of the case for the prosecution which the Judge is bound to consider for its probative value. See EGBOGHONOME V. THE STATE (1993) 7 NWLR (PT. 306) 383; EDET OFFIONG EKPE V. THE STATE (1994) 9 NLR (PT. 368) 273; NWANGBOMU V. THE STATE (1994) 2 NWLR (PT. 327) 380.
Exhibit A is the Appellant?s Confessional Statement which was admitted in evidence without objection from the appellant or his counsel. The effect is that the statement was voluntarily made and a Court can rightly convict on the basis of the admission contained therein. See: MUSA V STATE (2018) LPELR – 43846 (SC) (P. 13) Paragraphs B-C; AJIBADE V. STATE (2012) LPELR ? 15531 (SC) PP 23-24, Paragraphs G-A. Further, the law is that where a Confessional Statement has been tendered and admitted in evidence without objection, its later retraction cannot initiate the proceeding. See: NWACHUKWU V. STATE (2004)17 NWLR (PT. 902) P. 262. It is late at this stage for the Appellant to deny having made Exhibit ?A? on appeal.
It is trite that an accused person could be convicted on his Confessional Statement alone. In IBRAHIM KAMILA V. THE STATE (2018) LPELR ? 43603 (SC) P. 14, Paragraph A-E. His Lordship Sanusi, JSC clearly stated the position of the law thus:
A Confessional Statement can simply be defined as an admission by a person charged (or an accused person accused) of committing a crime ay anywhere or anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act 2011 as amended. It is well settled law that free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and was duly made voluntarily, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. See: ALABI V. STATE (1993) 7 NWLR (PT. 307) 5; FABIYI V. STATE (2015) 6 ? 7 SC (PT. 1) 83. OSETOLA AND ANOR. VS. STATE (2012) 6 SCNJ 321; NWACHUKWU VS. THE STATE (2002) SCNJ 230; DOGO V. THE STATE (2013)2-3 SC (PT. III) 75 at 92 – 94.?
See, also Hassan V. State (2001) LPELR-1358(SC) P.16, PARAGRAPHS C – F.
I will hereunder reproduce part of Exhibit ?A?, the Confessional Statement of the Appellant. It reads thus:
I can recall that yesterday 21-10-2011 at about 1500 hrs I was called by one Alhaji, Alhaji Mai Scooter and over their popularly called names which I know and that I should take them to Nassarawo round about via Nyabunkaka and I obliged and I took the 3 of them on my bike on reaching their destination they paid me One Hundred and Fifty Naira (N150) and I left but later come back and still met them standing though they cross over to the other side after sometime one of them drove out of the house with one black car and they left with it, the arrangement was that if it is successful they will take it to Gombe though usually if we succeeded it is Alhaji that normally took it to either Kaduna or Gombe. I actually know them and their house here in Jalingo at Nassarawo ward Jalingo and I promise I will take police to their house, the three of them that I know one of them is indigene of Taraba while 2 of them are from Bauchi State, while I am from Yobe. I am wrong for taking part in this mission and I promise to quit this Job from now, they promised that if they come back they will give me something which they did not disclosed to me how much that is all.
The trial Court after considering the ingredients to be proved for the offence of Armed Robbery and unlawful possession of firearms for which the appellant was charged alongside Exhibit ?A? at pages 72-73 of the printed Record of Appeal held thus:
Having considered the Confessional Statement as voluntarily made by the accused person, along with the decided cases so referred to, it is the duty of this Court to draw inference from the evidence placed before Court as to whether Exhibit ?A? though Confessional Statement of the accused person does not disclosed evidence of armed robbery against the maker? There is nowhere in the statement that states that accused person was at the scene of the crime of armed robbery though committed by three persons. Pw1 said accused person was brought to the station and a black barrel pistol under whose possession and from whom it was recovered no evidence adduced…
Relying on the foregoing cases so far considered by this Court vis–vis the evidence before the Court and the law creating the offence, I only find it safe and just to hold that the prosecution evidence before this Court has not satisfactorily established the guilt of the accused person as charged before this Court beyond reasonable doubt on both counts. He is therefore discharged and acquitted on both counts.
However in the case before this Court I find Exhibit ?A? that evidence disclosed on offence under Section 5(a) of the Robbery and Firearms (Special Provision) Act, 1990 where it provides thus:-
Any person who:
(a)Aids, concedes, abets or procures any person to commit an offence under Sections 1,2,3 or 4 of this Act or
(b)Conspires with any person to commit such an offence, whether or not he is present when the offence is committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.?
Further, at page 74 of the record, the trial Court in respect of the contents of Exhibit ?A? held thus:
These facts taken from the Confessional Statement of the accused person Exhibit A is considered to be the best form of evidence which can be relied upon. See the case of Musa V. STATE (2013) 9 NWLR (Pt.1359) Page 214 at 240 para D.
I agree with the analysis and the view of the learned trial Chief Judge that even though from the contents of Exhibit A the offences for which the Appellant stood trial were not proved but, that the contents of Exhibit ?A? disclosed the offence of aiding and abetting armed Robbery. Exhibit ?A? disclosed the offence of Aiding and Abetting Armed Robbery. Exhibit ?A? disclosed the role the Appellant played in respect of the Armed Robbery incident. He was not directly part of the commission of the main offence and was not proved to have been armed and at the scene when the Toyota Corolla was taken was taken away from the Pw2, the victim but, he knew the three persons that he conveyed to the house of the pw2, he knew their mission when he took them to the scene. The appellant knew where the vehicle would be disposed off, if the operation is successful and he clearly stated that the gang promised to give him something when they return, having also seen the people he dropped off driving away the car when he returned to the scene. There cannot be stronger and better evidence than the Confessional Statement of an accused person directly and positively confesses to have committed the offence, which is enough for a conviction. The learned trial Chief Judge at page 75 of the record of appeal, rightly, held thus:
There is no doubt that the portion of the statement of the accused person referred clearly disclosed the extent of the participation of the accused person aiding the commission of the offence of armed robbery.
The Statement also shows that the accused after dropping the three men left but later come back and he said in the Statement that he saw the black car being driven away by one of the men.
I wish to infer from the Statement of the accused person that all that happened was within his knowledge
I cannot fault the above view, it is unassailable.
The learned counsel to the Appellant argued that the prosecution having failed to prove the offences for which the appellant stood trial, the trial Court ought not to have convicted and sentenced the appellant for a lesser offence for which he was neither charged nor pleaded to.
The law is clear that where there is enough evidence before a trial Court establishing a different offence from that which the accused person stood trial. The trial Court can convict the accused person of the different offence established from the facts without a charge being framed in respect of the different offence, provided that the accused has notice of the offence and was not misled in his defence. In the present case, the Appellant was very much aware of the offence of Armed Robbery and unlawful possession of firearms for which he was charged, his defence is that he did not participate in the main offence but, in his Confessional Statement he stated clear the role he played in the commission of the Armed Robbery. The law is that an accused person can be convicted for a lesser offence even though not charged for that offence, contrary to the argument of the learned counsel to the Appellant that he cannot be convicted. The Appellant was rightly convicted for a lesser offence by virtue of the provisions of Section 218 of the Criminal Procedure Code. In substance, the lesser offence is carved out of the particulars of the graver offence charged. See: OKWUWA V. STATE (1964) LPELR-25195(SC) P.5, Paragraph A-D; ADEBAYO ADEYEMI V. STATE (1991) LPELR -172 (SC) PP.53-54, Paragraph E-D; (1991) 6 NWLR (PT. 195) P. 1; (1991) 7 SC (PT. II) P.1; MATI MUSA V. THE STATE (2014) LPELR-24026 (CA) PP. 55-56. G-C; AHMED SALIU V. THE STATE (2018) LPELR -44064 (SC) PP18-30, Paragraph D-B; MBACHU V. STATE (2018) LPELR ? 45163(SC) PP. 16-19, Paragraph A-D AND JOHN NWACHUKWU V. THE STATE (1986) LPELR-2085 (SC) PP 14-15 Paragraph G-C).
In sum, the learned trial Chief Judge was right to have convicted the Appellant for the lesser offence of Aiding and Abetting of the offence of Armed Robbery. I hold that the appeal is unmeritorious, I dismiss it.
The Judgment of the trial Court is hereby affirmed.
JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance the draft of the lead judgment just delivered by my learned brother CHIDI NWAOMA UWA JCA.
He has dealt exhaustively with the issue for determination. I have nothing more useful to add.
For the reasons contained in the lead judgment which I adopt as mine, I too dismiss the appeal.
The conviction and sentence of the Appellant by the Court below are affirmed by me.
ABDULLAHI MAHMUD BAYERO J.C.A.: I read in draft the lead judgment rendered by my learned Brother Uwa JCA. I also agree that the Appeal is unmeritorious and is accordingly dismissed. I equally affirm the judgment of the trial Court.
Appearances:
U. B. Adie, Esq. For Appellant(s)
Hamidu Audu, Esq. (Director of Public Prosecution, Taraba State) with him, A. Shittu (Principal State Counsel Taraba State, Ministry of Justice)For Respondent(s)
