MOSES v. STATE
(2022)LCN/17137(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/K/246/C/2021
Before Our Lordships:
Amina Audi Wambai Justice of the Court of Appeal
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
RICHARD MOSES APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE MEANING OF PROOF BEYOND REASONABLE DOUBTS
Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. If the evidence is strong against a person as to leave only a remote probability in the mind of a reasonable man, the case is proved beyond reasonable doubt.
The principle of natural justice, equity and good conscience, nemo judex in causa sua, restrains the Court from usurping the function of the prosecution under the Nigerian adversarial jurisprudence. That is, the Court must be an unbiased umpire and must not descend into the arena of conflict. PER IDRIS, J.C.A.
WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON
In the case of OJO VS. STATE (2018) 15 NWLR (PT. 1643) PAGE 527 AT 546 PARAS A – D, the Supreme Court held that the three ways of proving the guilt of an accused are:
“(a) through a voluntary confessional statement of the accused person; and/or
(b) through direct credible and reliable eyewitnesses or victims of the offence account depending on the circumstance of the offence or offences; and/or
(c) through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.” PER IDRIS, J.C.A.
THE ESSENTIAL ELEMENTS OF THE OFFENCE OF ARMED ROBBERY
In the case of JATO VS. THE STATE (2019) 8 NWLR (PT. 1674) PAGE 326 PARAS E – F, it was held by the Supreme Court per Kekere-Ekun, JSC that in a charge of armed robbery, the prosecution must prove the following essential ingredients:
(a) That there was a robbery or series of robberies.
(b) That each robbery was an armed robbery; and
(c) That the accused person was the robber or one of those who participated in the armed robbery.
In the case of MARTIN EGBUFOR VS. THE STATE (2019) 5 NWLR (PT. 1665) 260 AT 277 PARA D, it was held by the Supreme Court that where the prosecution leads credible, compelling and unequivocal evidence fixing the accused person at the scene of crime as a participant, it would have discharged the onus of proving the Appellant’s guilt beyond reasonable doubt. PER IDRIS, J.C.A.
THE DEFINITION OF CONFESSION
In the case of SULE VS. STATE (2018) 10 NWLR (PT. 1628) PAGE 564 PARAS D – G, it was held that:
“Section 28 of the Evidence Act 2011 provides that a confession is an admission made at anytime by a person, charged with a crime tending to show or suggest the inference that he committed the crime. Confessional statement is tenable and admissible. Confessional statement is the best evidence to ground conviction and it can be relied upon solely where voluntary. The criminal guilt of an accused person can be established by confessional statement, circumstantial evidence and evidence of an eyewitness. A confessional statement of the accused person that is free and voluntary regardless of the fact that he subsequently resiled from his voluntary confession at trial is good evidence to ground conviction. A confessional statement does not become inadmissible simply because the accused person denied having made it.”
When a sane right-thinking person freely and voluntarily confesses that indeed he was the one responsible for the crime for which he is being accused of, it is a gold mine for the prosecution as the Accused has willing offered himself to be slaughtered. A direct, voluntary and unequivocal confessional statement is solid evidence that can be used to convict an accused person.
In the instant case, the Appellant was convicted solely and only on the strength of the confessional statement. The question that must be answered is: was the confessional statement strong, direct, positive, unequivocal and free from doubt, capable of securing a conviction against the Appellant?
In the case of SULE VS. STATE (SUPRA), it was held that:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts, which have been proved. Confession in criminal procedure is the strongest evidence of guilt on the act of an accused person. It is stronger than evidence of an eyewitness because the evidence comes from the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eyewitness to the crime, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In otherwords, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.” PER IDRIS, J.C.A.
THE DEFINITION OF A VITAL WITNESS
In the case of UZIM VS. STATE (2019) 14 NWLR (PT. 1693) PAGE 419 AT 441 PARA D – E, the Supreme Court per Augie, JSC described who a vital witness is:
“A vital witness is a witness whose evidence may determine the case one way or the other and it is settled that the failure to call such a witness is fatal to the prosecution’s case. ONAH V STATE (1985) 3 NWLR PART 12 PAGE 236 SC. It is well settled that the prosecution is entitled to call only the witnesses that it considers relevant to its case. In effect, it is for the prosecution to determine the direction of its case and which witness to call to prove its case and once it discharges that burden on it to prove its case beyond reasonable doubt it does not matter.”
Furthermore, it was held in the case of UZIM VS. STATE (SUPRA), that:
“The prosecution has a duty to prosecute the accused within the ambit of the law. To that end, the law grants it the discretion to call any number of witnesses or adduce any particular evidence to prove its case beyond reasonable doubt.”
Simply put, no one can dictate the specific witnesses the prosecution must call in proof of its case. It is totally within their discretion. However, where the prosecution claims to have gathered information from a source or a person and they lazily dump the information before the Court without trying to prove same at all, then it can be safe to say that they have failed to call a vital witness. PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court of Justice, Kaduna on a charge dated the 7th day of December, 2012. The Appellant was arraigned along with two others at large on a two count charge reproduced hereunder:
COUNT ONE
That you RICHARD MOSES (Alias Abacha), CHECHET (Alias Celestine) (at large) and Kenneth (Alias Bayo) (at large) on or about the 10th day of March, 2018 at Manchok in Kaura Local Government Area of Kaduna State agreed and armed yourselves with guns to go and rob residents of Ungwan Hausawa Manchok and in the process you shot and killed one Abubakar Garba Dankera which act you did in pursuance of the said agreement and thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special provisions) Act Cap R11, Laws of Federation of Nigeria.
COUNT TWO
That you RICHARD MOSES (Alias Abacha), CHECHET (Alias Celestine) (at large) and KENNETH (Alias Bayo) (at large) on or about the 10th day of March, 2018 did an illegal act to wit: you armed yourselves with gun and robbed the residents of Ungwan Hausawa and carted away the sum of N1,943,000 (One Million Nine hundred and forty-three thousand naira only) and properties worth N700,000 (Seven hundred Thousand Naira) only belonging to Danjuma Ibrahim Balarabe and you also killed one Abubakar Garba Dankera. You thereby committed the offence of Armed Robbery punishable under Section 1(2)(a) & (b) of the Robbery and Firearms (Special provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.
The Appellant pleaded not guilty to the charge. The Prosecution opened its case, calling PW1, the IPO to testify as to the circumstances that gave rise to the case. PW1 testified that he was on duty on the 22nd day of September, 2018 and that the Appellant was arrested by the Civilian J.T.F. (vigilante group) and brought to his station. PW1 testified that he was informed that on the 19th day of September, 2018, the Appellant was arrested and made a confessional statement that he was among those that attacked one Balarabe Ibrahim Danjuma of Hausawa Manchok. That on the 10th day March, 2018, there was an attack and the Appellant and his friends all conspired and entered into Balarabe’s neighbour house and one Abubakar Garba Dankira came out to ascertain the situation and was shot dead. It was said that the Appellant informed them that he was ready to change, thus, the reason for the confession. The statement was recorded after the Appellant was cautioned and he signed.
Even though the Appellant denied making the statement, the statement was admitted in evidence and marked as Exhibit A. The Prosecution also sought to tender the photograph of the man alleged to have been shot by the Appellant and the two co-accused said to be at large. It was admitted and marked as Exhibit B.
The Prosecution called PW2, a petty trader who testified that he saw the Appellant in front of the Chief of Moro’a palace when he was brought there by the Civilian J.T.F. (vigilante group). PW2 testified that on the 10th day of March, 2018 at about 1 pm, he heard gunshots and was informed that one Abubakar Dan Kira had been shot in the stomach. PW2 identified the said Abubakar as the person contained in Exhibit B. He further testified that he was told that on the 22nd day of September, 2018, he was informed that one of those arrested by the local vigilante group confessed to the killing of Abubakar. The Prosecution witnesses were cross-examined by the Appellant’s counsel and they closed their case.
The Defence opened its case and called the Appellant as their sole witness. The witness testified on his behalf that on the 10th day of March, 2018, he went to his farm as he was a farmer. The witness testified that some people came to meet him on the farm and arrested him. That he was put in a vehicle and taken to Mariri and kept in a private room. Then he was asked if he knew Chechet Celestine and another person and he said he knew them as they all lived in the same neighbourhood. He was asked where he got the guns from and he denied ever having a gun.
The Appellant further testified that he was beaten seriously and forced to repeat that he and his friends killed Abubakar and he was recorded. He said he was then taken to the Kaura Police Station and was detained for three weeks. He said he was later given a document to sign and he refused to sign. He claimed to have been beaten seriously. He said he still refused and maintained that he never wrote or thumb printed Exhibit A. Appellant was cross-examined and the matter was adjourned for adoption of final written addresses and then judgment.
While delivering its judgment on the 28th day of August 2019, the trial Court held that by the contents of Exhibit A, it was clear that it was the Appellant that made the said confessional statement and it was made voluntarily and that mere denial of ever making it is of no moment. The learned trial judge held that the evidence placed before the Court was so clear and unambiguous and that the Appellant can be safely convicted on it. The Appellant was convicted on the two count charge and was accordingly sentenced to death by hanging.
Unhappy and appalled with the judgment of the trial Court, the Appellant filed a Notice of Appeal dated the 25th day of November, 2021, with four grounds of appeal.
The Appellant filed his brief of argument which was deemed properly filed and served on the 20th day of January, 2022 and settled by Nnaemeka Otagburuagu Esq. In the said brief a sole issue for determination was distilled as follows:
Whether the lower Court was right to have convicted the Appellant for the offence of conspiracy and armed robbery? (Formulated from Grounds 1, 2, 3 and 4 of the Amended Notice of Appeal)
The Appellant has argued that the trial Court failed woefully in establishing the guilt of the Appellant beyond reasonable doubt before going ahead to convict him. It was further argued that it is settled law that the onus in criminal cases is beyond reasonable doubt and it lies on the prosecution and not the accused to prove his innocence. Reference was made to the cases of HARUNA JATO VS. STATE (2019) 8 NWLR (PT. 1674) and AKPAN BASSEY VS. THE STATE (2019) LPELR – 46910.
The Appellant further submitted that the three ingredients to establish the offence of armed robbery must be proved beyond reasonable doubt before the Appellant could have been convicted. Reference was made to the case of OJO VS. FRN (2008) 11 NWLR (PT. 1099) PAGE 467 @ PAGES 511 – 512.
It is the argument of the Appellant’s counsel that the evidence of the prosecution witnesses and the confessional statement marked as Exhibit A fell short of the established ingredients and as such cannot sustain a conviction against the Appellant. It was further stated that the testimonies of PW1 and PW2 were mere hearsay evidence as there was no evidence to corroborate same. It was further argued that the testimony of PW2 had no relationship to the charge as he did not testify as an eye witness.
The Appellant’s counsel also submitted that the testimony of PW1 was fraught with a lot of inconsistencies which made it incapable for being the basis for the Appellant’s conviction as the trial Court cannot pick and choose what to rely on. Reference was made to the case of OSADIM VS. TAIWO (2009) LPELR – 8209 (CA) and NWORU VS. STATE (2018) LPELR – 44640 CA.
The Appellant’s counsel submitted that the trial Court failed to evaluate the evidence before coming to a conclusion and thus the failure occasioned a miscarriage of justice. The case of OKEKE VS. OKEKE (2019) 17 NWLR (PT 1701 PAGE 267 AT 292 PARAS A – B was cited in support.
Also, the Appellant’s counsel raised the issue that there was no evidence on record debunking the Appellant’s evidence that he never participated in the armed robbery incident as his evidence was not even considered at all or evaluated by the trial Court. The Appellant further submitted that the trial Court relied on the retracted confessional statement and failed to evaluate the voluntariness of the confessional statement. It was argued that the Court was bound to evaluate all evidence available to the Appellant for his defence. Reliance was placed on the case of MAFA VS. STATE (2013) 3 NWLR (PT. 1342) PAGE 607 AT PAGE 623.
The Appellant’s counsel also stated that the judgment of the trial Court was not based on logical thinking, deducible from facts or admissible evidence before it. The case of STATE VS. ISIAKA (2013) 11 NWLR (PT. 1364) PAGE 162 AT PAGES 188 – 189 was cited in support.
The Appellant’s counsel submitted that with regard to the offence of conspiracy, the Respondent failed to prove the ingredients of the offence of conspiracy and armed robbery against the Appellant. Counsel referred to the cases of ODOGWU VS. STATE (2013) 14 NWLR (PT. 1373) PAGE 74 AT PAGE 127 and OFORDIKE VS. STATE (2019) LPELR – 46411. It was argued that there was nothing from the testimonies of PW1 and PW2 showing any meeting of minds between the Appellant and the other co-accused that were at large. It was then submitted that the Court cannot base its decision on speculations. The case of ONUOHA VS. STATE (2002) 1 NWLR (PT. 748) PAGE 406 was cited in support.
It was further submitted that the decision of the trial Court is against the weight of evidence adduced at the trial as far as the Appellant is concerned, as the evidence is not overwhelming to have led to the trial Court convicting the Appellant.
The learned Appellant’s counsel drew the attention of this Court to the fact that before the robbery incident and until he was arrested, PW1 and PW2 had never seen the Appellant and so, there ought to have been an identification parade so as to properly identify the Appellant since he was arrested several months after the crime was committed. Reference was placed on the case of KEKONG VS. THE STATE (2017) LPELR – 42343 SC.
Finally, the Appellant’s counsel submitted that the Respondent failed to call the vital witness which is the victim in proof of its case as it was fatal to its case. The case of OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) 663.
This Court was urged to allow this appeal and acquit the Appellant.
The Respondent on their own part filed their brief of argument which was deemed on the 31st day of May, 2022 and settled by Dr. M. T. Adekilekun Esq. In the said brief a lone issue for determination was distilled as follows:
Whether having regard to the facts and circumstances of this case and the evidence adduced at the trial, the prosecution/respondent has not proved the guilt of the Appellant beyond reasonable doubt to have justified the verdict of guilt made against the Appellant. (Distilled from Grounds 1 – 4 of the Notice of appeal)
The learned Respondent’s counsel submitted that the guilt of an accused person can be proved by the confessional statement of an accused person, evidence of an eye witness and circumstantial evidence. Counsel cited the case of AGBOOLA VS. STATE (2013) 11 NWLR (PT. 1366) PAGE 619 AT 645 PARAS F – G in support.
The Respondent’s counsel submitted that the Appellant was convicted of armed robbery and conspiracy and that the trial Court relied on Exhibit A and B. It was argued that the Appellant was convicted of conspiracy based on his confessional statement as conspiracy is usually a matter of inference from surrounding facts and circumstances. The case of IKECHUKWU OKOH VS. THE STATE (2014) LPELR – 225 PAGE 89 was cited in support.
It was also submitted that the Appellant had admitted under cross-examination that he knew the two co-accused persons who were at large. The learned Respondent’s counsel went ahead to submit that the fact that the other two suspects are on the run strongly suggested that a crime was committed by them.
On the offence of armed robbery, the Respondent’s counsel argued that the Appellant was convicted of this offence based on Exhibit A, the confessional statement which was recorded in line with the provisions of Section 28 and 29 of the Evidence Act. It was further submitted that an accused person can be convicted solely on a confessional statement without corroboration. The case of CHIOKWE VS. STATE (2013) 5 NWLR (PT. 1347) 205 AT 232 – 233 was cited in support.
The Respondent’s counsel further submitted that the evidence of PW2 corroborated the confessional statement and that there were no inconsistencies therein at all, and that the trial Court evaluated the evidence adduced before the trial Court before convicting the accused person.
This Court was urged to affirm the decision of the trial Court and hold that the Respondent proved the case against the Appellant beyond reasonable doubt.
RESOLUTION OF ISSUES
Having read and digested the respective briefs filed by learned counsel for the parties herein, I shall now proceed to determine the appeal and in doing so I shall adopt the issue for determination formulated by the Appellant so as to thoroughly dispose of any point raised in this appeal. The said issue is again reproduced hereunder as follows:
Whether the lower Court was right to have convicted the Appellant for the offence of conspiracy and armed robbery?
The trial Court convicted the Appellant of the offence of conspiracy and armed robbery. This instant appeal is based on the Appellant’s dissatisfaction with his conviction at the Court below. Did the prosecution prove the ingredients of conspiracy and armed robbery to secure a conviction against the Appellant?
In any criminal proceeding, the prosecution has the burden of establishing the guilt of the accused person beyond reasonable doubt. See Section 135 of the Evidence Act 2011. The burden remains on the prosecution and does not shift.
Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. Proof beyond reasonable doubt does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. If the evidence is strong against a person as to leave only a remote probability in the mind of a reasonable man, the case is proved beyond reasonable doubt.
The principle of natural justice, equity and good conscience, nemo judex in causa sua, restrains the Court from usurping the function of the prosecution under the Nigerian adversarial jurisprudence. That is, the Court must be an unbiased umpire and must not descend into the arena of conflict.
In the case of OJO VS. STATE (2018) 15 NWLR (PT. 1643) PAGE 527 AT 546 PARAS A – D, the Supreme Court held that the three ways of proving the guilt of an accused are:
“(a) through a voluntary confessional statement of the accused person; and/or
(b) through direct credible and reliable eyewitnesses or victims of the offence account depending on the circumstance of the offence or offences; and/or
(c) through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.”
In the case of JATO VS. THE STATE (2019) 8 NWLR (PT. 1674) PAGE 326 PARAS E – F, it was held by the Supreme Court per Kekere-Ekun, JSC that in a charge of armed robbery, the prosecution must prove the following essential ingredients:
(a) That there was a robbery or series of robberies.
(b) That each robbery was an armed robbery; and
(c) That the accused person was the robber or one of those who participated in the armed robbery.
In the case of MARTIN EGBUFOR VS. THE STATE (2019) 5 NWLR (PT. 1665) 260 AT 277 PARA D, it was held by the Supreme Court that where the prosecution leads credible, compelling and unequivocal evidence fixing the accused person at the scene of crime as a participant, it would have discharged the onus of proving the Appellant’s guilt beyond reasonable doubt.
The prosecution in this case tendered the confessional statement of the accused person and it was admitted in evidence and marked as Exhibit A. I have read through the judgment of the trial Court and I shall quote a part of it as contained on page 38 of the Record of Appeal:
“Consequently, I hold and do so very firmly that Exhibit A was a voluntary statement freely obliged by the defendant himself. Let me quickly remind myself that this defendant was charged with two others, Chechet and Kenneth. They are still at large. This is called conspiracy in law. By the said abscondiment (sic) by those two others named by the Defendant himself, it further fortifies the case that indeed the offence(s) were committed and those two are still on the run. The long arm of the law will visit them someday, somewhere, somehow and I so hold.”
From the judgment quoted hereinabove, it is clear that the Appellant was convicted solely on the contents of the Exhibit A, his confessional statement.
In the case of SULE VS. STATE (2018) 10 NWLR (PT. 1628) PAGE 564 PARAS D – G, it was held that:
“Section 28 of the Evidence Act 2011 provides that a confession is an admission made at anytime by a person, charged with a crime tending to show or suggest the inference that he committed the crime. Confessional statement is tenable and admissible. Confessional statement is the best evidence to ground conviction and it can be relied upon solely where voluntary. The criminal guilt of an accused person can be established by confessional statement, circumstantial evidence and evidence of an eyewitness. A confessional statement of the accused person that is free and voluntary regardless of the fact that he subsequently resiled from his voluntary confession at trial is good evidence to ground conviction. A confessional statement does not become inadmissible simply because the accused person denied having made it.”
When a sane right-thinking person freely and voluntarily confesses that indeed he was the one responsible for the crime for which he is being accused of, it is a gold mine for the prosecution as the Accused has willing offered himself to be slaughtered. A direct, voluntary and unequivocal confessional statement is solid evidence that can be used to convict an accused person.
In the instant case, the Appellant was convicted solely and only on the strength of the confessional statement. The question that must be answered is: was the confessional statement strong, direct, positive, unequivocal and free from doubt, capable of securing a conviction against the Appellant?
In the case of SULE VS. STATE (SUPRA), it was held that:
“The confessional statement of an accused, where it is direct, positive and unequivocal as to the commission of the crime charged, is the best evidence and can be relied upon solely for conviction of the accused person. An accused person can be convicted on his confessional statement alone, where the confession is consistent with other ascertained facts, which have been proved. Confession in criminal procedure is the strongest evidence of guilt on the act of an accused person. It is stronger than evidence of an eyewitness because the evidence comes from the accused person. There is no better evidence and there is no further proof. Therefore, where an accused person confesses to a crime in the absence of an eyewitness to the crime, he can be convicted on his confession alone once the confession is positive, direct and properly proved. In otherwords, a free and voluntary confession of guilt, direct and positive and if duly made and satisfactorily proved is sufficient without corroborative evidence so long as the Court is satisfied as to the truth of the confession.”
I have read the confessional statement which is Exhibit A and it is stated here by the Appellant or at least let us assume it is the Appellant that he alongside three other men carried out a robbery operation at Durumi, Abuja. Also, it was stated that they stole the sum of N50,000 and killed three persons there. He further stated that he alongside Chechet alias Celestine and Kenneth alias Bayo went for another robbery operation and the sum of #80,000 was stolen from a shop of which he was given the sum of N25,000 as his share. He stated that no provisions were stolen from the shop.
I have read the charge upon which the Appellant was brought before the trial Court and count two states:
“That you RICHARD MOSES (Alias Abacha), CHECHET (Alias Celestine) (at large) and KENNETH (Alias Bayo) (at large) on or about the 10th day of March, 2018 did an illegal act to wit: you armed yourselves with gun and robbed the residents of Ungwan Hausawa and carted away the sum of N1,943,000 (One Million Nine hundred and forty three thousand naira only) and properties worth N700,000 (Seven hundred Thousand Naira) only belonging to Danjuma Ibrahim Balarabe and you also killed one Abubakar Garba Dankera. You thereby committed the offence of Armed Robbery punishable under Section 1(2)(a)&(b) of the Robbery and Firearms (Special provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.”
First and foremost, how did the Respondent arrive at these figures? Assuming the confessional statement is true, the Appellant here confessed to stealing a total sum of N130,000 from two separate robberies i.e. N80,000 in the first robbery and N50,000 in the second one. How then did the Respondent come about the total figure of N1,943,000 as the sum of money stolen and N700,000 as value of goods stolen? Who gave the Respondent the figures? Who is the shop owner? Where is the shop owner? What kind of goods were stolen? What is the specific number of goods stolen that amounted to the value of N700,000?
I am taken aback at how the Respondent exaggerated the figures contained in the charge and lazily failed to prove it. What do they take the Courts for? A place where you can just hike prices and value of goods without any evidence to prove same so as to tighten a heavier stone around the neck of the accused so that he can drown? Why did the prosecution not call the shop owner or whoever gave them the figures of the money stolen and value of goods stolen as he or she would have been a vital witness in proof of the crime?
In the case of UZIM VS. STATE (2019) 14 NWLR (PT. 1693) PAGE 419 AT 441 PARA D – E, the Supreme Court per Augie, JSC described who a vital witness is:
“A vital witness is a witness whose evidence may determine the case one way or the other and it is settled that the failure to call such a witness is fatal to the prosecution’s case. ONAH V STATE (1985) 3 NWLR PART 12 PAGE 236 SC. It is well settled that the prosecution is entitled to call only the witnesses that it considers relevant to its case. In effect, it is for the prosecution to determine the direction of its case and which witness to call to prove its case and once it discharges that burden on it to prove its case beyond reasonable doubt it does not matter.”
Furthermore, it was held in the case of UZIM VS. STATE (SUPRA), that:
“The prosecution has a duty to prosecute the accused within the ambit of the law. To that end, the law grants it the discretion to call any number of witnesses or adduce any particular evidence to prove its case beyond reasonable doubt.”
Simply put, no one can dictate the specific witnesses the prosecution must call in proof of its case. It is totally within their discretion. However, where the prosecution claims to have gathered information from a source or a person and they lazily dump the information before the Court without trying to prove same at all, then it can be safe to say that they have failed to call a vital witness.
The shop owner or whoever is in a position to state the goods stolen or the money stolen would have been a vital witness for the prosecution to nail the coffin over the Appellant.
The learned Appellant’s counsel has argued in his brief of argument that the testimony of PW1 and PW2 were hearsay evidence. I have read through the testimony of PW1 and he testified clearly that:
“On 22-09-18, I was on duty at about 1pm the civilian J.T.F. (alias Yam Bula) attached to Mariri, Lere L.G.C. arrested and brought to our police station the defendant. That via information on 19-09-18 at about 4pm, they arrested the defendant who made a confessional statement before them that he was one among those that attacked one…”
The Appellant’s counsel has argued that the testimonies of PW1 and PW2 amount to hearsay and thus they should be disregarded.
PW1 is the Investigating Police officer and he clearly testified about all he discovered during the course of his investigation of the case. He recorded statements from PW2 and the Appellant.
In the case of OBOT VS. STATE (2014) LPELR – 23130 (CA), it was held per Ndukwe-Anyanwu, JCA that:
“… it appears the learned Appellant’s counsel does not appreciate fully the job description of an investigating Police officer. He just investigates crimes. Invariably an Investigating police officer is hardly ever at the crime scene. His investigation comes after the crime had been committed. An Investigating Police officer obtains statements from accused persons and witnesses alike. He thereafter testifies in Court giving a synopsis of what he did during the investigation. He tenders the statements of both accused and in some cases that of witnesses. He also tenders some documents and exhibits obtained during investigation. The Investigating Police Officer therefore gives direct evidence as to what he has done during the investigation of the crime. The evidence of the Investigating Police officer is not by any standard hearsay. He gives an account of what he has done in the process of his investigations.”
The testimony of PW1 cannot be said to be hearsay evidence since his job as the Investigating Police Officer is to give direct evidence of his findings even if he garnered such information from another person.
However, I cannot help but wonder why the person referred to as J.T.F. Civilian (alias Yam Bula) was not called as a witness by the prosecution.
PW2 had also stated in his testimony contained on page 29 of the Record of Appeal that:
“I am a petty trader. I saw defendant once in front of the Chief of Moroa’s palace when he was brought there by the Civilian J.T.F (Vigilante group). I do not know why the vigilante group brought the defendant there If the J.T.F. Civilian (aka Yam Bula) is so well known by PW1 and PW2, why was he not called as a material and vital witness to help the prosecution’s case against the Appellant? Apparently, he was the one that arrested the Appellant and he would have been able to shed more light as to the circumstances that led to the arrest of the Appellant and possibly help in establishing the guilt of the Appellant.
In the Court of Appeal case of AJOKITI VS. STATE (2018) LPELR – 45234 (CA) (PP. 21 – 24, PARAS. C – B) it was held thus:
“The law is well settled that the prosecution has an uphill task of proving the guilt of the Appellant beyond reasonable doubt. The failure of the prosecution to call Cpl Ojo, the only eye witness who saw and arrested the Appellant with the stolen vehicle was certainly vital to the case for the prosecution as it was tantamount to withholding evidence, which provokes the presumption of law that such evidence that could be but not produced, would if produced have been unfavourable to the prosecution. It is pertinent that the only witness that could have given direct and admissible evidence in respect of the allegation levied against the Appellant was, for reasons best known to the Respondent, not called to testify and tender the controversial confessional statement in Court. One wonders why the prosecution fails to call such critical eye witness like Sgt Ojo who arrested the Appellant and also recorded the alleged confessional statement of the Appellant before transferring him to Benin City and who later came to Benin to investigate the case by visiting the scene of crime and the home of the Appellant. However, the prosecution decided to call PW1 and 2 who were merely informed about the incidence by Sgt Ojo, his critical stance notwithstanding. It is pertinent that the evidence of P.W1 and 2 who were merely told that the Appellant was arrested in possession of jeep and some ammunition was hearsay in so far as it seeks to prove the truth of that information. Sgt Ojo should have testified and his testimony be subjected to the rigours of cross-examination as an eye witness and also being the person who not only arrested the Appellant in possession of the recently stolen jeep but also recorded the alleged controversial confessional statement made by the Appellant that led to his conviction and sentence, the subject of the instant appeal. The absence of the evidence of this critical witness renders the evidence adduced on behalf of the prosecution fall short of proof beyond reasonable doubt as required by law. See ADEREMI OMOTAYO v. THE STATE (2012) LPELR – 9358 (CA).
The presumption of law arising from such failure to call this important witness is that his evidence would have been unfavourable to the prosecution’s case. The point that needs be emphasised is that the presumption under Section 149(d) of the Evidence Act applies against the prosecution because it amounted to withholding of critical evidence. The principle operates where a party has in fact withheld any particular piece of evidence and failed call any direct evidence on the point. It only applies when the party does not call any evidence on the issue in controversy and not because he fails to call a particular witness. See Bello v. Kassim (1969) NSCC 228 at 233.
The fact that the Respondent called PW1 and 2 whose evidence was based on what Sgt Ojo told them instead of calling Sgt Ojo himself, which clearly amounted to withholding evidence and thereby provokes the presumption of the law against the Respondent that if called such evidence would have been unfavourable to the Respondent. It further renders the evidence against the Appellant fall short of the standard of proof in criminal cases, which is beyond reasonable doubt.”
The case giving rise to this appeal is almost on all fours with this case cited hereinabove. Why was the Appellant arrested? What led to his arrest? What made J.T.F. Civilian (aka Yam Bula) and his vigilante group to arrest the Appellant? Where is the recorded confessional statement? Is it the same statement as with the content of Exhibit A? I believe that all these grey areas of ambiguity would have been settled if the prosecution had called J.T.F. Civilian (aka Yam Bula) as a witness.
I still do not know the importance of Exhibit B in this instant case. Why did the prosecution tender the picture of a deceased person who they claim is one Abubakar when the Appellant is not standing trial for murder? Even if they argue they tendered Exhibit B to prove that the said Abubakar died during the robbery attack carried out by the Appellant and his co-accused, I do not see how they successfully established it.
I do not know what the prosecution was trying to establish by calling PW2 to testify as a witness. From the testimony of PW2, he only identified Exhibit B as the picture of the Abubakar alleged to have been killed during the robbery attack. PW2 did not know the Appellant. He was not at the scene of the robbery. He was informed about everything he knows about the case. If this was a murder case against the Appellant, I will know that the reason PW2 was called as a witness was to establish the first ingredient in proving murder which is that there is a deceased person. But in this instant case, the testimony of PW2 and Exhibit B did not establish any of the ingredients of armed robbery and conspiracy.
Looking at the judgment of the learned trial judge, I do not know and I cannot see the evidence he relied on in convicting the Appellant of count 2 of the charge. The learned trial judge clearly stated at page 39 of the Record of Appeal that he relied on the exhibits in reaching this finding. The two exhibits before the Court were the confessional statement and the picture of a deceased person called Abubakar. Which of the ingredients of the offence of armed robbery did the prosecution prove? Did they prove that there was a robbery or series of robberies? Did they prove that each robbery was an armed robbery and that the accused person was the robber or one of those who participated in the armed robbery?
The prosecution had relied on the confessional statement wherein it was alleged to have been stated by the Appellant that he took part in a robbery operation at Durumi, Abuja where three people were killed. Is there any evidence before this Court to prove that indeed a robbery operation took place at Durumi, Abuja? Did the prosecution ascertain that indeed there was a robbery at Durumi, Abuja and the Appellant participated in it? Was the trial Court right in convicting the Appellant solely on the confessional statement?
In the case of MUSA VS. STATE (2018) 13 NWLR (PT. 1636) PAGE 316 PARAS D – F; 318 PARAS F – G, it was held per Eko, JSC that:
“Courts in Nigeria apply the rule in R v Sykes 8 CAR 233 at 236 to test the veracity of the making of the confession as well as the correctness of the contents of the confessional statement. The six way test is run on the following pertinent questions. That is:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statement of fact made in it true as far as can be tested?
(d) Is the confession possible?
(e) Is it consistent with other facts which have been proved?”
In the case of ONYENYE VS. THE STATE (2012) 15 NWLR (PT. 1324) PAGE 586 AT 619 PARAS A – C, the Apex Court set out the circumstances and effect of confessional statements obtained under duress and those merely retracted as follows:
(1) “Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks and undue influence or any non- recognizable legal ways, there would be need for a trial within trial.
(2) Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable.”
Reading through page 30 of the Record of Appeal where the defence of the Appellant is contained, which I reproduce hereunder as follows:
“My hands were then tied behind me and my body hung on a plank above my head. I was then beaten with sticks and machetes till I became unconscious before I was released. Water was poured on me and I regained consciousness. They threatened to kill me that whatever they said I should say it. While the knife was still placed on my neck, they asked me to say that it was myself, Celestine and Kenneth that killed Abubakar. As I repeated what they said, they brought their phone and recorded what I said. That is all I know here. I do not know those people that came and arrested me. I was then brought to Kuara Police Station and handed over to the Police. At Kaura the police asked whether the allegation was true and I denied it. I was then sent to police cell. For 2 to 3 weeks nobody said anything to me. After that I was released with a directive that I should sign a certain document, but I refused. The police then took a stick and started hitting me at my joints, both hands and legs. I still refused and I was brought to Kafanchan Police headquarter, I was taken to Court. I did not write Exhibit A and neither thumbprinted same… I am not the marker of Exhibit A.”
From the above statement made by the Appellant, it is clear that he did not retract the confessional statement by merely denying ever making same. The Appellant stated that he did not voluntarily thumbprint the said confessional statement as he was detained and severely beaten.
The trial judge had stated that he was “fully convinced that it is a voluntary confession here” (page 38 of the Record of Appeal). How did the trial Court reach such a decision without conducting the trial within trial which is a duty and obligation placed on him by the law when the issue of involuntariness in making a confessional statement is raised?
In the case of OFORDIKE VS. STATE (2019) 5 NWLR (PT. 1666) PAGE 395 AT PAGE 424 PARAS H – C, it was held per Nweze, JSC that:
“in this sort of situation, the trial Court is under obligation to conduct a trial within trial (also known as voire diew or mini trial) to determine the veracity or otherwise of the claim… the raison d’etre of the evolution of the mini trial or voire dire procedure is to arm the trial Court with a procedural mechanism for sifting the chaff of involuntary, and, hence, inadmissible evidence from the wheat of admissible evidence whose cogency and probative value are indubitable. The cases on this point are legion; they are countless. OGUDO V THE STATE (2011) 12 SC PART 1 PAGE 71, THE STATE V RABIU (2013) 8 NWLR PART 1357 PAGE 585.”
The law placed a duty on the trial Court to conduct a trial within trial when the issue of involuntariness is raised with regard to confessional statements. In this case, this is not a matter of resiling, denying or retracting the confessional statement as held by the learned trial judge and as argued by the Respondent in their brief of argument. The Appellant had stated clearly that he was beaten, never made the statement and neither did he thumbprint same. I therefore hold that the learned trial judge failed to discharge the responsibility and obligation placed on him by the law to order a trial within trial to eliminate the issue of involuntariness.
Also, the learned trial judge failed to test the veracity of the confessional statement as stated in the case of MUSA VS. STATE (SUPRA). The said robbery that took place in Durumi Abuja was never verified and no weapon was ever recovered from the Appellant.
The learned Appellant’s counsel has raised the point that there ought to be an identification parade since there is an issue regarding the identity of the Appellant since he was not arrested at the scene of the crime but was arrested several months after the crime was committed.
In the case of OKOSI VS. STATE (1989) 1 NWLR (PT. 100) PAGE 642 AT PAGE 657 PARAS F – G, the Supreme Court held that:
“The object of an identification parade is to make sure that a witness can identify the criminal he saw and such identity shall be tested fairly and adequately during the trial. Such identification should be fair and be seen to be fair, so that it will not be seen that the attention is directed to the suspected person instead of equally to all person paraded.”
In the case of SEUN VS. STATE (2019) NWLR (PT. 1673) 144 AT PAGE 156 PARA D – F, Supreme Court held that identification parade is not necessary where the victim or witness recognizes the offender or accused person as one of those who robbed him as the matter was still fresh in his mind.
In the case giving rise to this appeal, there is no single witness that could ascertain that they were at the scene of the robberies neither did any eye witness place the Appellant or someone that could possibly be him at the scene of the crime. I do not think that the issue of identification parade is relevant and necessary in the instant case since nobody saw anybody at the said robbery/robberies.
In the case of OLADEJO VS. STATE (2018) 11 NWLR PART 1630 PAGE 238 @ 246 PARAS F-G, it was held per Galinje, JSC that:
“Conspiracy is defined as an agreement between two or more persons to do an act. Where the agreement is to do an unlawful act, then such agreement becomes an offence. A conspiracy consists not merely in the intention of two or more but in the agreement of two or more persons to do an unlawful act by unlawful means…
To constitute an offence of conspiracy, the prosecution must prove:
(1) That there was agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
(2) Where the agreement is other than an agreement to commit an offence, it must be proved that some act beside the agreement was done by one or more of the parties in furtherance of the agreement.
(3) That each of the accused individually participated in the conspiracy.”
Did the prosecution prove the ingredients of conspiracy against the Appellant? I have read through the records of appeal. The Supreme Court gave an apt description of the offence of conspiracy in the case of ADESINA KAYODE VS. THE STATE (2016) LPELR – 40028 (SC) P. 47, PARAS. A – F, where Ariwoola, JSC held:
“Generally, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means. It is ordinarily a matter of inference, deduced from certain criminal acts of an apparent criminal purpose common between them. See Folorunsho Alufohai Vs. The State (2015) 3 NWLR (Pt.1445) 172; (2015) All FWLR (Pt. 765) 198.
In order to secure conviction on a count of conspiracy, the prosecution must establish the elements of agreement to do something which is unlawful or to do something which is lawful but by unlawful means. Conspiracy has been held to be an offence which is difficult to prove by direct evidence as it is often hatched in secrecy. However, circumstantial evidence and inference from certain proved facts are enough to ground conviction for the offense. See generally, the cases of OMOTOLA & ORS VS. THE STATE (2009) 78 NWLR (PT. 1139) 148; (2009) 2 – 3 SC 7 and OBIAKOR VS. STATE (2002) 10 NWLR (PT. 774 – 776) 612 AT 625.
In AMACHREE VS. NIGERIAN NAVY (2003) 3 NWLR (PT. 807) 256, the Court held the view that it was improper for the prosecution to rely on the evidence in proof of the commission of the substantive offence by an accused person and others to infer conspiracy. At any rate, an offence of conspiracy can be committed where persons have acted either by agreement or in concert. Therefore, bare agreement to commit an offence is sufficient and the actual commission of the offence is not necessary.
In this case, I cannot see any iota of evidence led by the prosecution to show that there was a conspiracy to commit the offence of conspiracy to commit robbery between the Appellant and the two people alleged to be at large. There is no witness and no testimony on record that even show that the Appellant and the two persons at large even committed a robbery together or had a special relationship together prior to the robbery. In the testimony of the Appellant during his defence, he said that:
“they asked me what connected me with those two people. I said I knew them because I had been seeing them in our area.”
Did the prosecution establish that a relationship exist between the Appellant and the two at large? I cannot see anything in proof of that. It is totally wrong of the prosecution to rely on the evidence they led to prove the substantive offence of armed robbery to also prove the offence of conspiracy.
I could not help but consider the portion of the trial Court’s judgment contained on page 38 of the Record of Appeal where the learned trial judge held that:
“Consequently, I hold and do so very firmly that Exhibit A was a voluntary statement freely obliged by the defendant himself. Let me quickly remind myself that this defendant was charged with two others, Chechet and Kenneth. They are still at large. This is called conspiracy in law. By the said abscondment by those two others named by the Defendant himself, it further fortifies the case that indeed the offence(s) were committed and those two are still on the run. The long arm of the law will visit them someday, somewhere somehow and I so hold.”
This is sheer speculation and this is an act that is forbidden in our Courts. There is no evidence linking the Appellant and these two persons at large. There is no evidence to show that efforts were even made to apprehend these two persons claimed to be at large because at least, it was J.T.F. Civilian (aka Yam Bula) that arrested the Appellant and the IPO, PW1 never made mention of trying to track down this two persons claimed to be at large. Since there is no evidence led to prove the offence of conspiracy, the learned trial judge has no power in law to fill the lacuna in the prosecution’s case with speculations and suspicions.
In the case of ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187, it was held that:
“it is not part of the assignment of any Court to speculate. It must avoid it.”
In the recent case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR – 44840, it was held that:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”
See also the cases of IKENTA BEST (NIG.) LTD VS. A.G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612 and ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65.
Even if the learned trial judge arrived at this conclusion based on circumstantial evidence, it still had to meet up with the requirement of the law. The law is trite that where the evidence on ground is mainly circumstantial, the surrounding circumstances have to be examined together for the inference to be arrived at that the Accused/Appellant committed the offences charged. Where such evidence is found to be positive compelling and with mathematical precision and point to the guilt of an accused person, the prosecution had discharge the onus of proof on it. See generally, the cases of SUNDAY UDOR VS. STATE (2014) LPELR – 23064 (SC); (2014) LCER – 27897 (SC), OGIDI & ORS VS. STATE (2005) LPELR – 2303 (SC) Pp. 10 – 11, PARAS. F – B.
The proper role of the Court in a criminal trial is to evaluate all the evidence before it and be sure that the prosecution has proven its case beyond reasonable doubt, but if there is doubt whether based on material contradictions or lack of sufficient evidence, the benefit of that doubt must be given to the accused person. See the cases of IBEH VS. STATE 1997 LPELR – 1389 (SC) and ABBEY VS. STATE (2013) LPELR – 20732 (CA).
In the circumstance, I am of the firm belief and opinion that the Prosecution failed woefully in proving the offences for which the Appellant was charged before the trial Court beyond reasonable doubt. This appeal is therefore allowed and the conviction of the trial Court is hereby quashed. The Appellant is hereby discharged and acquitted and he shall be released from prison custody forthwith.
AMINA AUDI WAMBAI, J.C.A.: I agree.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.
Appearances:
N. Otagburuagu Esq For Appellant(s)
M. P. Danjuma Esq For Respondent(s)