MR. UCHENNA NWOCHA v. THE STATE
(2012)LCN/5192(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of March, 2012
CA/L/381/08
RATIO
LAW OF EVIDENCE: WHETHER A COURT CAN CONVICT ON THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON ALONE WITHOUT ANY CORROBORATION
It is settled law that a court can convict on the confessional statement of an accused person alone without any corroboration. The Supreme Court in Odeh v. FRN (2008) 13 NWLR Pt. 1103 Pg 1 at 27, Musdapher JSC (as he then was) stated thus: “The law is fairly settled that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction and generally without any need of other corroborative evidence so long as the court is satisfied with its truth.” However, section 28 of the Evidence Act provides that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporary nature. Thus, an accused person may attack the admissibility of a confessional statement on the basis of voluntariness. Where an accused person attacks the voluntariness of a confessional statement, he must take steps to object to the admission of the statement at the point where it is sought to be tendered. Where the accused raises the question of voluntariness, the trial court must conduct a trial within trial to verify the voluntariness of the statement. However the accused must properly object to the admission of the statement. It is not enough for him to retract the statement. I must emphasize that there is a distinction between a situation where a person retracts the confession under section 28 of the Evidence Act and where he merely says I did not make the statement. In this case, the Appellant said he signed the confessional statement after being induced with the promise of bail. However he did not object to its admissibility at the appropriate time which should have been when it was sought to be tendered by the prosecution. PER. MORONKEJI OGUNWUMIJU, J.C.A.
LAW OF EVIDENCE: THE POSITION OF THE LAW ON THE CONFESSIONAL STATEMENT OF AN ACCUSSED PERSON
In Odeh v. FRN supra, the court held that the appropriate time to raise the issue of voluntariness is when the document is about to be tendered. It amounts to an afterthought if it is raised thereafter. Where an accused claims that he did not make the statement at all but merely signed it or that he was not the signatory, it is still admissible. However, being retracted, the court must consider the weight to be attached to such evidence. It is settled law that the court can still convict on a retracted confessional statement as long as it is satisfied of the truth of the statement. In Bature v. State (1994) 1 NWLR Pt. 320 Pg 267 at 285-285, the Supreme Court held that: “Where an extra-judicial confession has been proved to have been voluntarily made and it is positive and unequivocal and amounts to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, since such a u-turn does not necessarily make the confession inadmissible.” PER. MORONKEJI OGUNWUMIJU, J.C.A.
THE POSITION OF THE LAW ON THE ELEMENTS THE COURT SHOULD CONSIDER IN DETERMINING THE EVIDENTIAL VALUE TO ATTACH TO A CONFESSIONAL STATEMENT
The court must consider carefully the evidential value to place on such statements. There are several judicial authorities on the elements the court should consider in determining the evidential value to attach to a confessional statement. In Diwa v. The State (1980) 8-11 SC 235, the Supreme Court in reliance on the English decision in R v Skyes (1913) 18 CR App. Reports and cited in Kanu v. R 14 WACA 30 highlighted six tests for the verification of confessional statements before any evidential weight can be attached to them. They are:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who has the opportunity of committing the murder?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
These tests have be stated and approved in several other cases. See NWAEBONYI V. STATE (1994) 5 NWLR Pt. 343 Pg. 138 at 150; IKEMSON V. THE STATE (1989) 3 NWLR Pt. 110 Pg 455 at 468-49; BATURE V. THE STATE (Supra). Also in Ikpo v. State (1995) 9 NWLR Pt 421 Pg. 540 at 554, the Supreme Court held as follows: “It is desirable to have outside the accused person’s confession, some corroborative evidence no matter how slight, of circumstances which make it probable that that the confession is true and correct as the courts are not generally disposed to act on a confession without testing the truth thereof” PER. MORONKEJI OGUNWUMIJU, J.C.A.
LAW OF EVIDENCE: ADMISSIBILITY OF HEARSAY EVIDENCE
In Kala v. Potiskum (1998) 3 NWLR Pt. 540 PE. 1, the court held that hearsay evidence does not and cannot prove the truth of matters alleged. See also IJIOFFOR V. THE STATE (2001) 9 NWLR Pt. 718 Pg.371. In fact, it was the duty of the court to reject inadmissible evidence notwithstanding the lack of objection by adverse counsel. See AZEEZ OKORO V. THE STATE (1998) 14 NWLR Pt. 584 Pg. 181.On page 16 of the record, PW1 said that after the Appellant was arrested, three sets of people them came back to Lagos, 3 Policemen, the complainant, the complainant’s junior brother, the driver and the accused person. She stated categorically that: “The complainant did not identify the accused person”. PER. MORONKEJI OGUNWUMIJU, J.C.A.
ON WHOM LIES THE BURDEN TO PROVE BEYOND REASONABLE DOUBT
In Ahmed v The State (1999) 7 NWLR Pt. 512 Pg. 641, at Pg.673 the Supreme Court held per Mohammed JSC as follows: “It is a cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the prosecution who should prove such fact beyond reasonable doubt. In criminal cases, any doubt, as to the guilt of the accused arising from the contradictions in the prosecution’s evidence of vital issues must be resolved in favour of the accused Ankwa Vs The State (1969) 1 All NLR 133.” PER. MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
MR. UCHENNA NWOCHA Appellant(s)
AND
THE STATE Respondent(s)
MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Honourable Justice D.O Oluwayemi sitting at the High court of Lagos state, Ikeja Judicial Division delivered on the 4th day of June 2007. The facts that led to this appeal are as follows:
The Appellant was on the 8th of June 2006 arraigned before the lower court upon a one count charge of armed robbery contrary to section 402(2)(a) of the Criminal Code. The Appellant was alleged to have robbed one Mr. Segun Lawson (Complainant) of his car while armed with a gun on the 12th of April 2005. At the close of trial, the lower court found the Appellant guilty of armed robbery and sentenced him to death. The Appellant being dissatisfied with the Judgment of the lower court has brought this appeal against his conviction and sentence.
The Appellant’s brief was dated and filed on the 20th of May, 2008. The Respondent’s brief dated the 3rd of March, 2009 was filed on the 4th of March 2009 and deemed fifed on the same day.
Appellant’s counsel, Uche Obiorah Esq. in his brief identified three issues for determination as follows:
1. Whether the trial court was right in attaching any weight on Exhibit A and convicting the Appellant based on the said Exhibit A
2. whether the trial court was right in denying the accused person of the benefit of section 149(d) of the Evidence Act
3. whether in the light of the totality of evidence adduced before the trial court, the prosecution proved the offence of armed robbery against the accused person beyond reasonable doubt.
counsel to the Respondent, M.O Asumah (Mrs) adopted the Appellants issues 1 & 3 for determination, but added another dimension calling on us to interpret the provisions of section 149 (a) of the Evidence Act. I will combine the issues raised by both counsel as follows in the determination of this appeal:
1. Whether the trial court was right in attaching any weight on Exhibit A and convicting the Appellant based on the said Exhibit A
2. Whether the trial court was right in denying the accused person of the benefit of section 149(d) of the Evidence Act
3. Whether the trial court was right in relying on the doctrine of recent possession and section 149 (a) of the Evidence Act in convicting the Appellant.
4. Whether in the light of the totality of evidence adduced before the trial court, the prosecution proved the offence of armed robbery against the accused person beyond reasonable doubt.
ISSUE ONE
Appellant’s counsel contended that the lower court erred in attaching any weight to Exhibit ‘A’, the so called confessional statement made by the Appellant at Idimu Police Station, Lagos and in convicting the Appellant on that basis.
Counsel pointed out that the appellant had at the point when the said Exhibit was sought to be tendered, taken steps to deny making the statement.
He referred to page 13 of the Record. Counsel argued that the Appellant also had in his testimony stated that the said exhibit was written by PWL, a police officer and given to the Appellant to sign in exchange for bail. Counsel then argued that it was wrong for the court to have acted on Exhibit ‘A’ without testing the truth thereof. He cited IKPO V. STATE (1995) 9 NWLR Pt. 421 Pg. 540 at 554.
Counsel further argued that the court failed to consider the requisite factors which it should have considered in determining the weight to be attached to a confessional statement. This includes whether the statement was corroborated, whether there is anything outside the statement to show that it is true, whether the accused had the opportunity of committing the crime and such other similar factors. Counsel argued that failure to consider these factors led the lower court to wrongfully attach undue weight to Exhibit A. He cited NWAEBONYI V. STATE (1994) 5 NWLR Pt. 343 Pg. 138 at 150 Counsel also pointed out that Exhibit ‘A’ was not consistent with other facts adduced in evidence before the court. He pointed out few inconsistencies between Exhibit ‘A’ and the extra judicial evidence of the complainant attached to the proof of evidence and the testimony of PW1 as to the way the robbery was carried out.
In reply, counsel to the Respondent submitted that Exhibit ‘A’ is a confessional statement made by the Appellant at Idimu Police Station which was tendered through PW1, the Investigating Police Officer (IPO). Counsel submitted that the said exhibit was tendered without any objection during the trial at the lower court and that the issue of voluntariness of the statement was not raised. Counsel submitted that Exhibit ‘A’ is an admission of fact and as such was relevant against the appellant in accordance with section 27(1) & (2) of the Evidence Act. Counsel cited OFORTETE VS. THE STATE (2000) 12 NWLR Pt 681 Pg. 415 at 435
Counsel further submitted that since Exhibit A is a positive and unequivocal statement by the Appellant that he committed the offence, the lower court was right in convicting the Appellant on the confession alone. Counsel cited MUSA YARO VS. THE STATE (2008) 3 NCC 250 at 264; OLALEKAN VS. STATE (2001) 18 NWLR Pt.746 P9.793 at 824
There is no doubt that a confessional statement by virtue of Section 27 of the Evidence Act is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime and is deemed relevant against the person who made it as long as it was voluntarily made.
It is settled law that a court can convict on the confessional statement of an accused person alone without any corroboration. The Supreme Court in Odeh v. FRN (2008) 13 NWLR Pt. 1103 Pg 1 at 27, Musdapher JSC (as he then was) stated thus:
“The law is fairly settled that a free and voluntary confession which is direct and positive and properly
proved is sufficient to sustain a conviction and generally without any need of other corroborative evidence so long as the court is satisfied with its truth.”
However, section 28 of the Evidence Act provides that a confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporary nature. Thus, an accused person may attack the admissibility of a confessional statement on the basis of voluntariness.
Where an accused person attacks the voluntariness of a confessional statement, he must take steps to object to the admission of the statement at the point where it is sought to be tendered. Where the accused raises the question of voluntariness, the trial court must conduct a trial within trial to verify the voluntariness of the statement.
However the accused must properly object to the admission of the statement. It is not enough for him to retract the statement. I must emphasize that there is a distinction between a situation where a person retracts the confession under section 28 of the Evidence Act and where he merely says I did not make the statement. In this case, the Appellant said he signed the confessional statement after being induced with the promise of bail. However he did not object to its admissibility at the appropriate time which should have been when it was sought to be tendered by the prosecution. In Odeh v. FRN supra, the court held that the appropriate time to raise the issue of voluntariness is when the document is about to be tendered. It amounts to an afterthought if it is raised thereafter.
Where an accused claims that he did not make the statement at all but merely signed it or that he was not the signatory, it is still admissible. However, being retracted, the court must consider the weight to be attached to such evidence. It is settled law that the court can still convict on a retracted confessional statement as long as it is satisfied of the truth of the statement.
In Bature v. State (1994) 1 NWLR Pt. 320 Pg 267 at 285-285, the Supreme Court held that:
“Where an extra-judicial confession has been proved to have been voluntarily made and it is positive and unequivocal and amounts to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, since such a u-turn does not necessarily make the confession inadmissible.”
There is thus no doubt as to the admissibility and relevance of Exhibit A and I agree with learned Respondent’s counsel that the Appellant didn’t take proper steps to object to the admission of the Exhibit. A court should however be careful in convicting an accused person based on a retracted statement. The court must consider carefully the evidential value to place on such statements. There are several judicial authorities on the elements the court should consider in determining the evidential value to attach to a confessional statement.
In Diwa v. The State (1980) 8-11 SC 235, the Supreme Court in reliance on the English decision in R v Skyes (1913) 18 CR App. Reports and cited in Kanu v. R 14 WACA 30 highlighted six tests for the verification of confessional statements before any evidential weight can be attached to them.
They are:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who has the opportunity of committing the murder?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?
These tests have be stated and approved in several other cases. See NWAEBONYI V. STATE (1994) 5 NWLR Pt. 343 Pg. 138 at 150; IKEMSON V. THE STATE (1989) 3 NWLR Pt. 110 Pg 455 at 468-49; BATURE V. THE STATE (Supra).
Also in Ikpo v. State (1995) 9 NWLR Pt 421 Pg. 540 at 554, the Supreme Court held as follows:
“It is desirable to have outside the accused person’s confession, some corroborative evidence no matter how slight, of circumstances which make it probable that that the confession is true and correct as the courts are not generally disposed to act on a confession without testing the truth thereof”From the facts of this case and an examination of the said Exhibit ‘A’, I see no reason why the trial court would attach any evidential value to Exhibit ‘A’ allegedly made by the Appellant when it is apparent that the Appellant’s alleged record of what happened on the 12th of April 2005 is quite different from that of the complainant, Segun Lawason. While the Appellant claimed in the said Exhibit A that he alone robbed the complainant of his car while it was parked and the complainant was talking to a girl, the complainant claimed that he was robbed by three men at gun point while he was trying to negotiate a pothole. We either believe the version of the complainant or the version of the Appellant. If he has confessed to an improbable scenario, then the confessional statement must be viewed with suspicion.
Also, the Appellant claimed at the trial court that before he was brought by the Police from Ozubulu to Idimu police station in Lagos, he had never set foot in Lagos. The Appellant’s claim in this regard was not contradicted in anyway by the Prosecution and in my view should have been believed. If the Appellant had indeed not set foot in Lagos before he was brought, I don’t see how he could have had the opportunity to commit the crime.
Also, the Prosecution failed to call vital witnesses such as the Policemen who arrested the Appellant in possession of the stolen car as well as the Policemen who took his initial statement at Ozubulu. This, in my humble view should have been fatal to the prosecution’s case.
I cannot therefore attach any value to Exhibit A even though it is admissible and relevant, as there is nothing outside Exhibit A to show that it is a true and the facts stated therein are consistent with facts already ascertained and proved. This issue is therefore resolved in favour of the Appellant.
ISSUE TWO
Appellant’s counsel submitted that the lower court erred by not applying the provisions of section 149 (d) of the Evidence Act in favour of the Appellant Counsel pointed out that when the accused was arrested at Anambra State, he was taken to a police station at Ozubulu in Anambra State where he made a statement and this fact was confirmed by PW1 under cross-examination. He argued that failure to tender the statement made by the Appellant at Ozubulu police station raises the presumption that the statement if produced will be unfavorable to the prosecution.
Counsel argued that even though the prosecution is not bound to use all available evidence to prove its case in a criminal trial, he is bound to call a witness whose evidence will settle a vital point in issue. He argued that the police officer in Anambra State that arrested the accused was a vital witness who ought to have been called by the prosecution. He cited EDOHO V STATE (2004) 5 NWLR Pt 865 Pg. 17 at 51; GEORGE KUREE V. R 7 WACA 175; AMUSA &. ORS V. THE STATE (1986) 3 NWLR Pt. 30 Pg. 535; NNOLIM V. THE STATE (1993) 3 NWLR Pt. 283 Pg. 559
Counsel to the Respondent on the other hand submitted that no evidence was withheld from the lower court. Counsel argued that assuming without conceding that this was so, the appellant should have invoked the provisions of section 98 of the Evidence Act and given the Respondent a notice to produce the statement referred to.
Section 149 (d) of the Evidence Act provides as follows:
“The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, and in particular the court may presume –
(d) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
Ordinarily, the court has to be careful in holding this presumption. The failure of the Prosecution to tender in evidence the statement made by the Appellant in Ozubulu police station begs the question why. That was the statement made by the Appellant contemporaneous with his arrest. PW1 agreed that he made a statement at Ozubulu police station. If it was the same as Exhibit A, why was it not tendered by the prosecution? The production of the statement might have thrown light into some of the issues raised in this appeal. The prosecution is obliged to place before the court all available relevant evidence. If there is a vital point in issue and there is a document or vital witness whose evidence could settle the point one way or another, the evidence ought to be adduced. See STATE V. FATAI AZEEZ & ORS (2008) 14 NWLR Pt. 1108 Pg.439.
I have no doubt in my mind that there was a deliberate suppression of the original statement made by the Appellant and section 149 (d) should be invoked against the prosecution. I resolve this issue in favour of the Appellant.
ISSUE THREE
This is the Respondent’s second issue. Counsel to the Appellant did not proffer any argument in respect of this issue. Respondent’s counsel submitted that the Court by virtue of section 149 (a) of the Evidence Act and the doctrine of recent possession may presume that a man who is in possession of stolen goods soon after a theft is either the thief or has received the goods knowing them to be stolen unless he can account for it being in his possession. Counsel cited ISIBOR VS. THE STATE (2002) 4 NWLR Pt. 758 Pg.741 Counsel pointed out that the evidence before the lower court was that the Appellant was arrested with a stolen Mitsubishi vehicle with registration number GS 426 AAA at a check point in Ozubulu Anambra State and documents and photographs belonging to the complainant. Counsel then argued that the appellant, having being found with the stolen vehicle can be presumed to be the robber and it was for the appellant at the lower court to explain how the vehicle got to be in his possession. Counsel submitted that the appellant failed to give a satisfactory or reasonable explanation. I agree with the learned Respondent’s counsel that indeed the law may presume that a man who is in possession of stolen goods soon after a theft is either the thief or has received the goods knowing them to be stolen unless he can account for the goods being in his possession.
However, apart from the evidence of PW1 to the effect that the Appellant was arrested in possession of the stolen car, there is no other evidence linking the Appellant to the stolen car. I do not believe that PW1, the IPO at Idimu police station is in a position to give evidence to this effect as she was not there when the Appellant was arrested. It seems to me that the testimony of one of the policemen who arrested the Appellant would have gone a long way in helping the court to ascertain that the Appellant was indeed arrested while in possession of the car and could not give a reasonable explanation why. The Appellant’s story was that he was arrested by the Police at a check point when he was coming out of the bush where he went to ease himself. The evidence was not challenged by the prosecution. See OFORTETE V. THE STATE (2000) 12 NWLR Pt, 681 Pg. 415.ln this case, vital witnesses were not called and as such there is nothing to show that the Appellant was indeed arrested in possession of the stolen car.
There is nothing, therefore, on which the presumption in section 149 (a) of the Evidence can be premised. This issue is resolved in favour of the Appellant.
ISSUE FOUR
On this issue, counsel to the Appellant submitted that the prosecution failed in proving all the ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt. Counsel referred this court to the case of BONZIN V. STATE (1935) 2 NWLR Pt. 8 Pg. 455 at 459 where the Supreme Court listed the ingredients of the offence of armed robbery that must be proved by the Prosecution as follows:
1. That there was a robbery or a series of robbery
2. That each robbery was an armed robbery
3. That the appellant was one of those who took part in the armed robbery
Counsel argued that none of the ingredients stated above was proved by the Prosecution. He pointed out that apart from the evidence of PW1, there was no credible evidence adduced at the lower court to show that the car was stolen, that the robber or robbers used or threatened actual violence against any person or that the Appellant was the one who robbed the complainant.
Counsel argued that the evidence given by PW1 is hearsay evidence because she only testified to what she was told by the complainant and that this was contrary to section 7 of the Evidence Act and should be discountenanced.
Counsel also pointed out that PW1 under cross-examination had testified that the complainant did not identify the Appellant and as such there was no direct evidence linking the Appellant to the robbery or any robbery. He cited EDOHO V. STATE (Supra); ONUCHUKWU V. STATE (1998) 4 NWLR pt 547 pg. 576; IJIOFOR v. STATE (2001) 8 NWLR Pt.718 Pg.371 at 382.
Counsel urged this court to hold also that the evidence given by PW1 regarding what the Police at Anambra State told her was worthless, being hearsay evidence and to expunge the said evidence He cited FASINA v. OGUNKAYODE (2005) 12 NWLR Pt 938 Pg. 147 at 164; SHANU V. AFRIBANK (NIG) PLC (2002) 17 NWLR pt 785 pg. 185 at 221.
In response, Respondent’s counsel submitted that the prosecution was able to prove its case beyond reasonable doubt as required by section 138(1) of the Evidence Act and that the elements listed in BOZIN vs. THE STATE (2003) NWLR Pt. 834 at 321 were proven.
Counsel argued that from the uncontroverted and unchallenged evidence of PW1 and the confessional statement of the appellant – Exhibit A, there is no doubt that it was indeed the appellant who robbed the complainant of his car at gun point. Counsel argued that all that is required is proof of the crime beyond reasonable doubt and not proof beyond a shadow of doubt.
Counsel cited JOSEPH LORI VS. STATE (1980) 8-11 SC 81; BASILAKALEZI VS. STATE (1993) 2 NWLR Pt.273 Pg. 1
Counsel further argued that the evidence of PW1 is not hearsay evidence as it was evidence in regard to the investigation carried out by her. Counsel averred that it is settled law that the guilt of an accused person can be proved by confessional statement of the accused, circumstantial evidence or evidence of an eye witness to the crime. Counsel argued that it is not a condition or legal imperative that there must be an eye witness or that the victim/complainant must be present before a charge of armed robbery can be proved and that the confessional statement of the accused and circumstantial evidence leads to no other conclusion than that the appellant was the robber.
Counsel cited UGWU VS. STATE (1998) 7 NWLR Pt. 558 Pg.397
Counsel further averred that the Prosecution need not call a host of witnesses to prove its case and that it is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt. Counsel submitted that this was done in the instant case and urged this court to so hold. It is well settled that for the prosecution to succeed in a charge of armed robbery against an accused person, it must prove 3 essential elements as listed in BONZIN V STATE (1985) 2 NWIR Pt. 8 Pg. 465 at 459 as follows:
1. That there was a robbery or a series of robberies
2. That each robbery was an armed robbery
3. That the appellant was one of those who took part in the armed robbery
It is also not enough for the Prosecution to prove all these elements alone, it must prove them beyond all reasonable doubt.
I have to agree with learned Appellant’s counsel that the Prosecution in this instant case has failed to establish these three key elements beyond reasonable doubt. Apart from the testimony of PW1, the IPO at Idimu Police Station and Exhibit A, which I have already discountenanced, there is no other evidence to show that the Appellant was one of those who robbed the complainant of his car at gun point.
The Appellant was not identified by the complainant or any other person and the prosecution failed to show that the Appellant was in Lagos at the time the robbery took place. Also, PW1 in her testimony at the trial court stated that the she was told by the IPO at Ozubulu Police Station in Anambra State that the Appellant was arrested in possession of the stolen car while the Appellant claimed that he went to ease himself inside the bush near the police checkpoint and he was arrested. None of the Policemen who arrested him were called to give evidence in this regard to enable the court ascertain the truth of the Appellant’s defence. The complainant was not called to give evidence to support the charge. In fact the Appellant was convicted on hearsay evidence.
The case of the prosecution was riddled with hearsay evidence. The statement of the complainant to the police was not tendered in evidence by the prosecution. This statement by the complainant which was made extra judicially was not part of the legally admitted evidence at the trial court. The IPO did not say that the statement was obtained by her from the complainant to create a nexus between her and the statement. Therefore the story of how the armed robbery occurred as told by PW1 was mere hearsay. Hearsay evidence is inadmissible. See OSAGIEDE OJO V. DR. GHARORO (2006) 10 NWLR Pt. 987 Pg. 173; BUHARI V. INEC (2008) 18 NWLR Pt. 1120 Pg.246.
In Kala v. Potiskum (1998) 3 NWLR Pt. 540 PE. 1, the court held that hearsay evidence does not and cannot prove the truth of matters alleged. See also IJIOFFOR V. THE STATE (2001) 9 NWLR Pt. 718 Pg.371. In fact, it was the duty of the court to reject inadmissible evidence notwithstanding the lack of objection by adverse counsel. See AZEEZ OKORO V. THE STATE (1998) 14 NWLR Pt. 584 Pg. 181.On page 16 of the record, PW1 said that after the Appellant was arrested, three sets of people them came back to Lagos, 3 Policemen, the complainant, the complainant’s junior brother, the driver and the accused person. She stated categorically that: “The complainant did not identify the accused person”.
Taking all these into consideration, I cannot hold that the prosecution did indeed prove the case of armed robbery against the Appellant beyond reasonable doubt as so many questions were left unanswered by the prosecution. These questions continue to agitate: Was the Appellant the one driving the stolen car at the time of the arrest? What happened to the statement the Appellant made at Ozubulu police station? How many men robbed the Complainant? The law is that any doubt must be resolved in favour of the accused person. In Ahmed v The State (1999) 7 NWLR Pt. 512 Pg. 641, at Pg.673 the Supreme Court held per Mohammed JSC as follows:
“It is a cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the prosecution who should prove such fact beyond reasonable doubt. In criminal cases, any doubt, as to the guilt of the accused arising from the contradictions in the prosecution’s evidence of vital issues must be resolved in favour of the accused Ankwa Vs The State (1969) 1 All NLR 133.”This issue is also resolved n favour of the Appellant.
I am of the strong view that Justice has not been served in this case. In fact, the shoddy prosecution of a capital offence leaves a lot to be desired. It was nothing short of a flagrant miscarriage of justice. I was flabbergasted as to why the learned trial court could have convicted the Appellant on such flimsy and inadmissible evidence.
In consequence, the appeal is allowed. The conviction and sentence of the Appellant is hereby set aside. He is hereby discharged and acquitted of the offence of armed robbery.
SIDI DAUDA BAGE, J.C.A.: I have had the opportunity to read in advance the very detailed lead judgment written by my learned brother OGUNWUMIJU, JCA. I agree completely with both the reasoning and conclusions and have nothing useful to add. The appeal is allowed by me. I also set aside the conviction and sentence of the Appellant.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the prosecution did not at the trial prove beyond reasonable doubt, the guilt of the accused herein. Firstly, Exhibit ‘A”, which is apparently confessional in nature, is not supported by other facts outside it which gives it credence or strengthens it, Rather, I find the content thereof in contradiction to the complainant’s narration of the incident of the robbery alleged. A court of law should be suspicious of such purported confessional statements.
The yawning gap in the evidence of PW1 and the non-calling of prosecution witnesses’ who would have testified as to the chain of events linking the Accused/Appellant to the offence charged calls in aid the operation of section 149 (1) (d) of the Evidence Act that those evidence if called would have been unfavourable to the prosecution who bears the burden of proving the guilt of the Appellant/Accused beyond reasonable doubt under section 138 of the Evidence Act.
Appeal allowed. conviction and sentence set aside. A verdict of discharge and acquittal of the Appellant is substituted, thereof.
Appearances
Ikenna Okoli with him E. Ekumeku (Miss)For Appellant
AND
L. A. Sanusi (Chief State Counsel)For Respondent
