OBINAH JOHN v. THE STATE
(2013)LCN/6482(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2013
CA/I/99C/2007
JUSTICES
M. B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
OBINAH JOHN Appellant(s)
AND
THE STATE Respondent(s)
RATIO
CONDITION UNDER WHICH A TRIAL WITHIN TRIAL SHOULD BE CONDUCTED
The Apex court of Nigeria in the case of Basil Akpa v. The State (2008) 14 NWLR (Pt. 1106) p.72 @ 98 stated the condition under which a trial within trial should be conducted as follows:-
“A trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person. In other words, where an accused person admits making, the statement but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial will be conducted in other to determine whether the statement was voluntary or made under duress or otherwise. When the trial court is satisfied that the statement was voluntary, it then admits it as an exhibit in the evidence before the court. In the instant case, a trial within trial should not have been conducted since the Appellant only denied making the statement and not that he was forced to make it under duress. (Auta v. State (1975) 4 SC 125; Gbadamosi v. State (1992) 9 NWLR (Pt.266) 465; Effiong v. State (1998) 8 NWLR (Pt.562) 362)” PER DONGBAN-MENSEM, J.C.A.
THE FUNCTION OF A COURT IN A TRIAL WITHIN TRIAL
In the case of Augustine Ibeme v. State (2013) 10 NWLR (Pt.1362) page 333@360 the Apex Court per Chukwuma-Eneh JSC stated the scope and purpose of a trial within trial. My lord held that:-
“The function of a court in a trial-within-trial is narrowed down to determining solely the question of voluntariness of the statement in issue and not whether or not the statement is that of the accused person or improperly recorded. It boils down to the proposition that there is no way an accused person who has not acknowledged his alleged confessional statement sought to be tendered by the prosecution can come round in a trial-within-trial to object to its voluntariness. The absence of his locus to otherwise so contend is indisputable.” PER DONGBAN-MENSEM, J.C.A.
WHEN THE CHALLENGE AS TO THE VOLUNTARINESS OF A STATEMENT SHOULD BE RAISED
Further, the challenge as to the voluntariness of the statement must be raised at the tendering of the said statement not after it has been admitted and forms part of the evidence before the court. At that stage, the issue for determination becomes that of adduction of probative value to the evidence. (See Nwachukwu v. The State (2007) 12 SCM (Pt.2) page 447 & 455) PER DONGBAN-MENSEM, J.C.A.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.:(Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Oyo State, Ibadan Judicial division delivered by Hon. Justice E. Esan on the 9th day of November, 2006
The Appellant was charged with six other accused persons; the first five including the Appellant were charged on a seven count charge of conspiracy to commit armed robbery, armed robbery and sheltering armed robbers contrary to section 5(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990.
The 1st and 3rd accused persons are said to have died before the trial commenced while one of the accused persons was at large, leaving four accused persons. At the close of the prosecution’s case, a submission of no case was made on behalf of the Appellant and the remaining three accused persons. The no case submission was upheld only in respect of the 4th accused (Ngozi Okafor) while the Appellant and other accused persons proceeded with their defence.
The learned trial Judge in a considered judgment convicted the ‘Appellant and two other accused persons on counts 1-6 of the charges against them and therefore sentenced them each to death by hanging.
Distraught by the trial Court’s decision, the Appellant made out a Notice of Appeal dated and filed 29th March, 2011; which Notice of Appeal was by the Order of this court amended dated the 15th June, 2011, filed on the 16th June, 2011 but deemed duly filed and served on the 12th November, 2011.
At the hearing of the appeal on the 8th day of October, 2013, the learned Counsel for the Appellant Ahmed Akanbi Esq. adopted and relied on the brief of argument of the Appellant dated 26th and filed 27th November, 2011. The said brief which was deemed duly filed and served on the 9th April, 2013 had two issues formulated for determination.
Appellant’s issues are thus:-
1. Whether the statement of the Appellant could amount to a confessional statement as provided for under section 28 of the Evidence Act 2011 and even if it is admitted as a confessional statement, was it voluntarily made?
2. Whether the prosecution proved beyond reasonable doubt, the charges against the Appellant?
Counsel for the Respondent Kofo Oguntoyinbo (Deputy Director of Public Prosecution, Ministry of Justice, Oyo State) also adopted and relied on the two issues for determination in his Respondent’s brief of Argument dated 9th April, 2013 and filed 6th June, 2013 but deemed duly filed and served on the 13th of June, 2013. The Respondent’s issues are very similar to those of the Appellant’s and are:-
1. Whether the statement of the Appellant is a confessional statement as provided under section 28 of the Evidence Act 2011?
2. Whether the prosecution has proved its case beyond reasonable doubt.
This appeal shall be determined on the two issues formulated by the Respondent whose issues are more explicit.
ISSUE ONE
The learned counsel for the Appellant submits that the statements as contained in Exhibits B and B1 (also refer to Exhibits B8 & B9(A) do not qualify in law to be considered as confessional statements upon which the Appellant can be convicted for the offence of armed robbery. That the Appellant did not in any way confess to have participated in the robbery of G.U.O. Bus on 7th May, 2003 though he admitted selling drugged pure water to passengers of a luxurious bus so that the other accused persons could dispossess the passengers of their valuables while they slept. The learned Counsel hinged his argument on the definition of confession made in Section 28(1) Evidence Act 2011 which states that:-
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
Counsel submits that there was no mention of the Appellant committing the crime with arms and that the trial court ought to have expunged the alleged confessional statement as it was not corroborated by any of the witnesses called by the prosecution. Counsel cited the case of Mufutau Balogun vs. The State (1994) 5 NWLR (Pt.345) 442 @ 460 and the evidence of PW5 on pages 50 of the records.
Counsel further submits that the Appellant retracted the confessional statement under cross-examination, when said he was forced to sign it with ,a gun shot on his leg and which piece of evidence was never contradicted. Submits that when a confessional statement is inconsistent with the evidence at the trial, it must be treated as unreliable and cannot be acted upon by the court without the conduct of a trial within trial to determine the weight to be attached to such confessional statement. Counsel refers to page 70 of the records and relies on the cases of Ubani v. The State (2003) 12 SC (Pt.11) 1 @ 15-16, Barmo v. The State (2000) 7 NWLR (Pt.611) 424 @ 434, Moshood v. State (2004) 14 NWLR (Pt.893) 422 @ 437-438.
Further submission is that the prosecution did not prove the voluntariness of the alleged confessional statement in order to secure a conviction. That the confession was not in regard to armed robbery but drugging of pure water. Counsel however concedes that the trial court could admit such evidence but is expected to be weary of a conviction solely on a confessional statement without corroboration. (Refers Ikpo v. State (1995) 9 NWLR (Pt.905) 540 @ 554)
On the allegation that the Appellant used the proceeds of the robbery to buy motorcycles, Counsel submits that the Respondent did not prove in any way that the purchase of two motorcycles by the Appellant amount to ingredients of armed robbery. That the Appellant gave evidence to the fact that he collected money he used in purchasing those motorcycles from the Ibo meeting which was not in any way contradicted. (Refers to page 60 – 70 of the records). The learned Counsel therefore urges the Court to allow the appeal on this issue.
The Respondent submits that the statement as contained in exhibits B8 & B8(A) (also referred to Exhibits B & B1) in the record of Appeal is a positive and direct confessional statement which points towards the Appellant’s participation in the armed robbery of G, U, O Luxurious bus which occurred on the 7th May, 2003. The said statements clearly state the offenders, the victims and the aiding factor i.e selling of drugged pure water to the victims. The learned DDPP of Oyo State Ministry of Justice also cites the definition of confession in section 28(1) of the Evidence Act as squarely engulfing the case of the Appellant. (Refers to page 33 of the record)
On the claim by the Appellant that they robbed Ifechma-chi as opposed to G.U.O. Bus, Counsel submits that it is a false claim as nothing of such occurred because the detectives who visited the Ifechma-chu bus office confirmed that the passengers of the said bus experienced no such ordeal at the hands of the Appellant. (See page 23 of the record.)
Counsel also submits that all the pieces of evidence adduced by the Appellant’s statement irresistibly point to the fact that the Appellant participated in the robbery of G.U.O Luxurious bus on 7th May, 2003. (See Moses v. The State (2010) 43 WRN 1 SC per Tobi JSC)
The question is was there a confessional statement and if so, was there any issue raised as its voluntariness?
The Appellant’s learned Counsel raises the issue of the voluntariness of the confessional statement and wonders if the said statement can be admitted under the provision of section 28 of the Evidence Act, 2011. The learned Counsel also derides the learned trial Judge for failing to conduct a trial within trial to determine the voluntariness of the confessional statement. (See also the case of Augustine Ibeme v. The State (2013) 10 NWLR (Pt. 1362) p.333).
The Apex court of Nigeria in the case of Basil Akpa v. The State (2008) 14 NWLR (Pt. 1106) p.72 @ 98 stated the condition under which a trial within trial should be conducted as follows:-
“A trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person. In other words, where an accused person admits making, the statement but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial will be conducted in other to determine whether the statement was voluntary or made under duress or otherwise. When the trial court is satisfied that the statement was voluntary, it then admits it as an exhibit in the evidence before the court. In the instant case, a trial within trial should not have been conducted since the Appellant only denied making the statement and not that he was forced to make it under duress. (Auta v. State (1975) 4 SC 125; Gbadamosi v. State (1992) 9 NWLR (Pt.266) 465; Effiong v. State (1998) 8 NWLR (Pt.562) 362)”
‘The law and practice over the years have always held that if evidence of a confession is objected to on the ground that the confession is not voluntarily, the judge sitting alone should hear evidence on the point which may be tendered and then rule on its admissibility before receiving the confession in evidence. (Obidiozo v. State (1987) 4 NWLR (Pt.67) p.748 @ 751; R v. Onabanjo 3 WACA 43; R v. Kassi 5 WACA 154 applied)
The retraction of the confessional statement of the Appellant under cross-examination is not one that should lead to the conduct of a trial within trial. A court of law is not an entertainment theatre where everything and every denial of an accused person is taken hook, line and sinker. It would derail the solemn nature of judicial proceedings if a trial court is required to interrupt/suspend a trial in order to conduct a special procedure to determine the veracity of an obviously lame accusation of an induced confessional statement. The said denial which the Appellant made under Cross-examination as recorded on page 70 of the record of Appeal transmitted to this court on 14th May, 2007 is hereby reproduced for the ease of reference:-
“We usually have the Ibo meeting at queen Cinema. I attended meeting on the 1st of April, 2003.
The Police did not mention anything about robbery before I was taken to court on 26/5/03. Thereafter I was taken to Agodi Prison.
I made a statement to the Police in which I said that I usually do drug pure water which I give to passengers in order to rob them.
I forgot that I made this statement. I told the Police in my statement that I borrow the money I used in bringing machine from Ibo meeting.
I was shot in the leg before I signed the statement Exhibit B.
The statement was shown to me by my lawyer before it was tendered. I agreed that it is my statement because I signed it”
One wonders which aspect of the statement was made after the foot gun shot? Why would an accused who had been suspected to such pains wait until under cross-examination to challenge the voluntariness of a confessional statement? Could it be that the confession was indeed made out of volition?
In the case of Augustine Ibeme v. State (2013) 10 NWLR (Pt.1362) page 333@360 the Apex Court per Chukwuma-Eneh JSC stated the scope and purpose of a trial within trial. My lord held that:-
“The function of a court in a trial-within-trial is narrowed down to determining solely the question of voluntariness of the statement in issue and not whether or not the statement is that of the accused person or improperly recorded. It boils down to the proposition that there is no way an accused person who has not acknowledged his alleged confessional statement sought to be tendered by the prosecution can come round in a trial-within-trial to object to its voluntariness. The absence of his locus to otherwise so contend is indisputable.”
Further, the challenge as to the voluntariness of the statement must be raised at the tendering of the said statement not after it has been admitted and forms part of the evidence before the court. At that stage, the issue for determination becomes that of adduction of probative value to the evidence. (See Nwachukwu v. The State (2007) 12 SCM (Pt.2) page 447 & 455)
A half-hearted and non-pungent denial as in this appeal must not move a court to conduct a trial within trial. Raising the issue of voluntariness of the confessional statement of the accused at the time it was made was rather a desperate search for an escape route which was actually unavailable. The learned trial Judge fell into no error by not conducting a trial within trial in the circumstance. There was really nothing to be achieved by that procedure. His lordship observed at the tendering of the said confessional statement that no objection had been raised. In the case of Maikudi Aliyu v. The State (2013) 12 NWLR (Pt. 1368) page 403 @ 426, my lord Ngwuta JSC stated the consequence of non-objection in these terms:-
“…In any case, appellant’s counsel did not cross-examine the witness who tendered the evidence of the identification parade. He is deemed to have accepted same as correct. See also Alhaji Abdullahi Baba v. Nigerian College of Civil Aviation Training Centre, Zaria (1991) 5 SCNJ 78 @ 184, reported as Baba v. Nigerian Civil Aviation Training Centre, Zaria (1991) 5 SCNJ (Pt.192) 388.”
Similarly, the learned Counsel having raised no objection to the tendering of the confessional statements is deemed to have admitted the said statements. A blanket denial that the accused made no statement to the Police is not good enough and does not raise a challenge as to the voluntariness of the statement.
I hold that Exhibits B and B1 being the statement and additional statement of the Appellant were voluntarily made and were correctly admitted in evidence by the learned trial Judge.
ISSUE TWO
The learned counsel for the Appellant submits that the Respondent has failed in his duty to prove the alleged offence against the Appellant beyond reasonable doubt as an accused is presumed innocent until the contrary is proved. That the onus is on the Respondent (Prosecution) to proof all the ingredients of the offence charged and any doubt raised must be construed in favour of the Appellant (accused). That apart from exhibits B & B1 there is nothing linking the Appellant with the alleged robbery. (Refers section 139 (1) of the Evidence Act, 2011, section 36(5) of the Constitution of FRN, 1999, & the cases of Chukwu v. State (2007) 13 NWLR (Pt. 1052) 430 @ 456-457. Karim v. Nigerian Army (2001) 4 NWLR (Pt.758) 716 @ 737).
Counsel cites the case of Godwin Okeke v. The State (1995) 4 NWLR (Pt.392) 676 @ 707 as stating the ingredients of armed robbery as follows:-
i. There was a robbery
ii. That it was armed robbery
iii. That the accused person took part in the armed robbery
It is the submission of the learned Counsel that from the evidence of the various witnesses the first ingredient was proved but the remaining two ingredients were not proved to warrant a conviction as the three ingredients must co-exist.
Counsel also maintains that there was no proper identification of the Appellant by any of the victims as one of the person who robbed them despite the fact that they said they know some of the robbers who sat with them in the bus. That no offensive weapon was found with the Appellant despite the search conducted in his house, he was also not caught at the scene of the crime. That the Appellant out rightly denied knowing anything about the robbery and that the confessional statement was not verified which create doubt that must be resolved in favour of the accused person. Further that assuming without conceding that the Appellant robbed the victims with drugged pure water it is different from the offence of armed robbery and has a lesser punishment. (Refers section 1(2) of the Armed Robbery and Firearms (Special Provisions) Act Cap C LFN, 2004)
Counsel also submits that doubts trailed the prosecution’s case from the ‘scenario starting with when a fight ensued in the process of sharing of money to the empty bag tendered by the Police. That for a court to convict on circumstantial evidence, the evidence must be cogent, unequivocal and direct which must lead to an irresistible conclusion that the offender and no one else committed the act.(Refers Onuoha v. State (2002) 1 NWLR (Pt.748) 406 @ 424, Ele v. State (2006) 42 WRN 88 @ 106).
The learned Counsel for the Respondent submits that the Appellant was charged and convicted after being found guilty of armed robbery. He reproduced Section 1 of Robbery and Firearms (Special Provisions) Act, while on the ingredients of armed robbery he cites the case of Bozin v. State (1985) 2 NWLR (Pt.8) page 465.
on the first ingredient counsel refers this court to pages 6-36 & 50 of the record to the fact that the first ingredient has been satisfactorily proved.
On the second ingredient, Counsel places emphasis on the testimonies of PW1, PW4 and PW5 as contained at pages 45, 49 & 50 all of the record for this appeal. That though neither the confessional statement nor the testimonies of the prosecution witnesses placed the Appellant at the robbed bus with a firearm in his hand, the confessional statement placed the Appellant in the company of others who eventually used firearms. (Refers section 1 of the Robbery and Firearms (supra), Osuna v. State (2012) All FWLR (Pt.650) page 1226).
On the third and last ingredient, Counsel submits that it has been established that the Appellant sold drugged pure water to the occupants of G.U.O. Luxurious bus on 7th May, 2003 in furtherance of the intention of robbing the occupants of the said bus. That the Appellant is a principal offender as he aids, abets and conspires to the commission of offence. (Refers page 33 of the record and Section 7(b) & (c ) of the Criminal Code Law, Cap, 38, Laws of Oyo State, Section 6(a)(b) of the Robbery and Firearms (Special Provisions) Act.)
Counsel further submits that the Respondent (Prosecution) has proved its case beyond reasonable doubt having established the three ingredients of armed robbery, particularly that of 7th May, 2003 linking the Appellant with the said robbery. That it has discharged the burden placed on the Respondent to proof beyond reasonable doubt. (Relied on the case of Ukana v. C.O.P. (1995) 8 NWLR (Pt.416) 705 CA.)
On the issue raised by the Appellant in paragraphs 2.8 & 2.9 in the Appellant’s Brief of Argument on inconsistency rule as laid down in the cases of Asanya v. The State (1991) 3 NWLR (Pt. 180) 422, Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419 @ 429 which was to the effect that when a confessional statement is inconsistent with evidence on oath, the confessional statement ought to be treated as unreliable and the court must not act on same is no longer good precedent.
That the Supreme Court has overruled its previous decisions in the case of Egbohonome v. The State (1993) 7 NWLR (Pt. 306) 383 where Bello, CJN held
“having regard to plethora of authorities on the matter, I am now convince that the decision of the court in . Oladejo’s case was made per incuriam and the court erred in law in adopting Asanya’s case”
On the reliance placed by the Appellant in Ubani’s case (Supra), Counsel to the Respondent submits that Ubani’s case is not on all fours with this case and in no way overruled Egbohonome’s case. That in Ubani’s case, the issue was on inconsistency between the extra-judicial statement of a witness and a viva voce statement on oath, while in Egbohonome’s case and this case, the inconsistency was between the confessional statement of an accused person and his testimony on oath. That inconsistency rule does not apply in this matter.
On the issue in paragraph 2.11 of the Appellant Brief of Argument that the Police shot him on his leg to compel him to sign the confessional statement, Counsel submits that the Appellant’s allegation is baseless and not supported by facts as nothing was placed before the court either medically or otherwise to prove the allegation that the Police shot the Appellant on his leg to compel him to sign the confessional statement. That the Appellant was represented by Counsel at the trial court who did not raise the issue of involuntariness when the statement was sought to be tendered but was only raised during the defence and the trial court was not obliged to order for a trial within trial at that stage. (Refers Emeka v. The State (2001) 14 NWLR (Pt.734) 666 SC, Dawa & Anor. v. The State (1980) 2 NCR p.38 @ 52-53).
On the argument of the Appellant in paragraphs 2.21-2.22 of the Appellant’s brief, Counsel submits that although the dissipation of the proceeds of the offence of Armed robbery is not one of the ingredients of armed robbery that the-two motorcycles were bought a day after the robbery took place and the trial court is at liberty to infer from the circumstances to presume that they were bought from the proceeds of ‘the robbery of G.U.O Bus on 7th May, 2003. That there is considerable link between the robbery incident and purchase of the motorcycles and the burden is on the Appellant to prove that it is indeed the money he collected from the Ibo meeting that he used in purchasing the motorcycles as it is peculiarly within his knowledge. (Refers Amala v. The State (2004) 12 NWLR (Pt.888) 520 S.C. Igabele v. The State (2004) 15 NWLR (Pt.896) 314 CA.)
Has the prosecution proved the case against the Appellant? The duty is always on the prosecution to prove its case beyond reasonable doubt in all criminal matters. The provision of section 138 of the Evidence Act sets a heavy duty on the prosecution in this regard. AND SO IS THE STANDARD ( See Bello v. State (2007) 10 NWLR (Pt. 1043) 564 Igabele v. State (2006) 6 NWLR (Pt. 975) 100, Baruwa v. State (1996) 7 NWLR (Pt. 460) 302, Onuoha v. State (1998) 5 NWLR (Pt. 548) 118).
In discharging its duty, the prosecution tendered the confessional statement of the Appellant which was admitted and marked Exhibit B and B1(A) an additional statement was also tendered. As earlier stated, at no point up to the admission in evidence of the said statements did the accused person who was dully represented by Counsel raised an objection to the admission of the statements for reason of involuntariness. Also tendered in support of the case of the prosecution is the receipt of the purchase of the brand new motorcycles by the Appellant on the day after the robbery. The receipt of purchase dated the 8th May, 2003 issued to Mr. Obi John was admitted as Exhibit ‘F’.
In his additional statement of the Appellant, as an accused person, the Appellant gave details of how he bought two motorcycles in the presence of his two brothers whom he had invited to ride the motorcycles away from the shop after the purchase. The prosecution found it suspicious that barely one day after a robbery in which the Appellant was heavily implicated; he was able to cash out to buy two brand new motorcycles at once! The brand new motor-cycles certainly add certainty to the suspicion of the prosecution.
Confessional statement is an admission made at any time by the accused stating or suggesting by inference that he committed the crime with which he is charged. (See per Niki Tobi JSC in Adebayo v. Attorney-General of Ogun State (2008) 33 NSCQR (Pt. 1) 1.
The learned trial Judge found in addition to the direct, free and positive confessional statement of the Appellant, that there were cogent circumstances and facts which smeared the Appellant with guilt. The sudden fortune of the Appellant which enabled him to purchase the two brand new motorcycles by cash at once was shrouded in a nebulous explanation. The circumstance of the arrest of the Appellant raises a number of questions principal among which is the fact that he was fighting over the sharing of money shortly after a robbery at which passengers were dispossessed of their hard earned money. Why would the Appellant collect money from the Ibo community and then be caught sharing it out with others? What was the purpose of the “gift” to him by the Ibo community? Any evidence from the Ibo community These are facts within the exclusive knowledge of the Appellant. The Appellant elected to keep mute on the details. The learned trial Judge was in the circumstances of the silence of the Appellant entitled to draw whatever inference his lordship deemed appropriate. The learned trial Judge cannot be faulted on that. It was the case of the State v. Nafiu Rabiu (1980) NSCC 291 which gave the authority that a trial court is at liberty to draw an inference from the circumstances of a case where an accused person elects to exercise his Constitutional right of silence.(Section 36 of the 1999 Constitution of the FRN as amended).
The accused person and his cohorts carefully planned the illegal activities, took steps towards the actualization of the scheme and effectively executed same thus, providing the essential twin elements of mens rea and actus reus required in the commission of every crime. The co-existences of these two provide the distinction between an accident/coincidence and a deliberate act rooted in a criminal act.
The Appellant in Exhibits B8 & B8A (Exh, B & B1) has given the details of their intent in very gory details. Having formed the intention to rob the innocent passengers of the G.U.O luxurious bus, he also schemed to and indeed poisoned the unsuspecting passengers by purporting to sell pure water to them. This was a well contemplated act of crime aimed at rendering the passengers helpless to defend themselves while they were being robbed. The Appellant was surely not similarly drugged with poisoned pure water when he made his confessional statement? Exhibit B was made at the time the Appellant was arrested. He recounted the details of the plan made to rob the passengers while the facts were still fresh in his mind. The feeble denial of the Appellant was exposed at the belated allegation of his having been shot with a gun on the leg to induce him to make the confessional statement. (See page 52 of the records) This allegation was not made at the earliest opportunity- e.g when the statement was being tendered. It rather came at the stage of defence when the Appellant had perhaps been tutored on how to riggle out of his damning confessional statement. In support of its argument, the Appellant cited the cases of Mufutau Balogun v. The State (1994) 5 NWLR (Pt.345) p.442 @ 460, Moshood v. The State (2004) 14 NWLR (Pt.893) 422 @ 434.
Mufutau’s and Moshoodi’s cases are distinguishable in that the details of torture was palpable and consistent. In this appeal, the alleged torture by gun shot on the leg was obviously an afterthought which was not frontally stated nor used to challenge the admission of the statement in evidence. No medical detail of the alleged injury was placed before the court (see Gbadamosi v. State (1992) 9 NWLR (Pt.266) p.465, Eke v. State (2011) 3 NWLR (Pt. 1235) p. 589).
The learned trial Judge was therefore right to discountenance the allegation of involuntariness by holding at page 52 of the records that:-
“Court:- The statement of the 1st accused are admitted and marked Exhibit B and B1 respectively.
It is pertinent to note that where an accused said he never made a statement. It is to be admitted as exhibit. But where an accused said he was forced, a trial within trial would be conducted in this case the latter is not the case.”
A trial within trial is not conducted upon every challenge of a confessional statement (See Obidiozo v. The State (1987) 4 NWLR (Pt. 67) p.748) the principle is employed only when there exist cogent reasons to doubt the voluntariness of a statement.
‘The law and precedent have made it clear that a retracted or challenged confessional statement does not really necessarily exonerate an accused person from the commission of an offence. A denial and an allegation of an induced or implanted confessional statement is one that should engage a judicial concern. However, such denial and allegation must be taken with a pinch of salt. A careful consideration of the circumstances of the alleged compelled confessional statement always reveals some character of voluntariness in the spillage. Some personal details which should be known to the Appellant alone often expose the falsity of the allegation of compulsion.
The story of the Appellant and the two brand new motorcycles is akin to a person found in possession of recently stolen property. In law, such a person is deemed to be the thief or to have received the property knowing them to be stolen (See Lateef Sadiku v. The State (2013) 11 NWLR (Pt. 1364) p.191 @ 214).
What is the relevance of this analogy? The Appellant had in his confessional statement confessed to participating in a robbery and the proceeds of which he used in purchasing two brand new motorcycles. He failed to unequivocally state the source of the money with which he bought the said motorcycles in one day.
When the confessional statement made by the accused person was tendered, he raised no objection beyond an outright denial of making a statement, no cross-examination. The said statement is therefore deemed admitted.
My lord Ngwuta JSC in the case of Aliyu v. State (2013) 12 NWLR (Pt. 1368) p.403 @ 426, cite Baba v. N.C.A.T.C Zaria (1991) 5 NWLR (Pt. 192) 388, held that:-
“Where an accused person’s counsel failed to cross-examine a prosecution witness, he is deemed to have accepted the witness’ evidence as correct. In this case, the appellant’s counsel failed to cross-examine the witness who tendered the evidence of identification parade.”
Contrary to the submission of the learned Counsel for the Appellant, the ratio decidendi of the decision of the trial court was well founded in the facts made out before the court, The evaluation of evidence adduction of value and the conclusion arrived at by the learned trial Judge is worthy of reproduction. From the judgment of the trial court at page 90 through to page 93 of the records, His lordship found and held as follows:-
“The evidence adduced by the prosecution clearly consisted of the confessional statements of the accused persons and circumstantial evidence. These constitute two of the three ways or methods of proving the guilt of an accused person. I will now examine the confessional and the circumstantial evidence relied upon by the prosecution to sustain the charge against the accused persons.
First, in the confessional statement of the 1st accused, Obinah John, tendered without any objection and marked Exhibit ‘B’, the 1st accused categorically stated inter alia as follows:
“myself, Onyekachi, Onyeye and one Okechukwu joint (sic) went to Oremeji area Mokola where luxurious bus normally load passengers to Onitsha at about 7p.m with the intention to sell drug water for passengers in the vehicle. After buying one bag of pure water, all of us conspired together to drug the pure water and later sold it to the passenger (sic). The purpose of selling drug water to the passengers is to enable them get drug (sic) and sleep when the luxurious bus is moving. Having successfully sold the pure water to the passenger (sic) then, I and three other (sic) then paid for attachment seat among the passengers with the aim of robbing them of their money after they might have slept. On that particular day, the vehicle moved to Onitsha, but along the road we jointly robbed…..”
Again, in exhibit ‘B’, which was tendered without any objection, the 1st accused also confessed as follows:
The time I got the robbery money was the time it came to my mind to buy motorcycles. My two brothers named above did not followed (sic) me to rob. I did not inform my brothers the source of the money used in purchasing the motorcycles.”
Although there was an attempted retraction of his statement during the trial, my settled view is that the confessions of the 1st accused are not only voluntary but also positive, unequivocal and amount to an admission of guilt.’ See: Egbogonome v. The State (1993) 7 NWLR (Part 306) 383……….”
“In the instant case, the confessional statements of the accused persons are corroborated by the testimony of witnesses for the prosecution which confirmed that a luxury bus was robbed on 7/5/2003. That the 1st accused bought two motorcycles as shown by the receipt Exhibit ‘F’ for the sum of N160, 000.00 out of his own share of the robbery proceeds….. ”
“Although, the accused persons claimed to have robbed the luxury bus belonging to Ifesinachi on 7/5/2003 and not G.U.O luxury bus as claimed by the prosecution, PW3, one Emmamuel Alli testified on oath that no luxury bus belonging to Ifesinachi was robbed on 7/5/2003 rather it was G.U.O. bus that was robbed on the said date….”
“I am therefore of the firm view that apart from the confessional statements of the accused persons which could without more be relied upon in convicting them, other pieces of evidence as stated above corroborate their confessional statements and irresistible point to the guilt of the three accused persons. See: Achabua v, The State (1976) 12 S.C 63 at 68, Ogwa Nweke Onah v. The State (1985) 3 NWLR (part 12) 236.”
I find no perversity what so ever in the evaluation of the learned trial judge who has competently addressed the case of the Appellant and come to a correct decision.
The learned Counsel for the Appellant raised the issue of “drug water” not being the same thing as arms as provided for by Section 5(b) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990.
The point is whether the victims felt threatened and paralysed with fear at the hands of their assailants? There is evidence that such fear and use of guns were the means by which the Appellant divested the travellers in the luxurious bus of their possessions. Indeed, the used of drug water is a new dimension to the crime which makes it even more lethal.
No good reason exists for the reversal of the decision of the learned trial judge which I hereby affirm and uphold the conviction and sentence of the APPELLANT as ordered by the learned trial Judge Hon. Justice E. Esan.
This appeal is dismissed.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance, the judgment just delivered by my learned brother. M. B. Dongban-Mensem, JCA.
My learned brother had admirably and comprehensively summed up and adequately resolved the pertinent issues that arose in this appeal. I agree with his reasoning and conclusions on those issues. I however wish to add a little bit of mine on the issues raised on the extra-judicial statement made by the Appellant which was admitted in evidence as Exhibits B and B1 respectively.
Learned counsel for the Appellant had contended that the prosecution did not prove that the statement which was found to be confessional, was voluntarily made. Specifically, he submits that the statement is inconsistent with the Appellant’s testimony at the trial and therefore could not have been treated as reliable so as to convict on it, without the trial court testing its voluntariness through a trial within trial.
Certainly, it is the law that in a criminal trial, no statement by an accused person can be admitted against him unless it is shown to have been voluntarily made. That being so, where the admissibility of a confessional statement is challenged on-the ground that it was not voluntarily made, the judge has a duty to determine whether or not it was voluntarily made. In practice, that is done by way of a trial within trial, were evidence is led about the circumstances under which such a statement was made. It is therefore only when the accused has raised the issue that he did not make the statement voluntarily, that the need for a trial within trial will arise. It therefore means that objection to the admissibility of the confessional statement must be raised timeously and at the time the statement is tendered by the prosecution. See Olanipekun v. State (2011) 18 W.R.N. P.77 at 94; Okaroh v. State (1990) 1 NWLR (pt.125) p.136; Dawa v. The State (1980) 8 – 11 S.C. p.236 and Gbadamosi v. State (1992) NWLR (Pt.266) P.465.
It follows therefore that, it is not in all cases where an accused person objects to the admissibility of his confessional statement that a trial within trial will be conducted. It is only when the objection is raised on the ground of involuntariness that a trial within trial will be conducted. Accordingly, where the accused person merely disputes the correctness of the contents of the statement or that he did not make any statement to the police at all, it will not be necessary in law for the trial court to embark on a trial within trial. In such a circumstance, the statement will be admitted without more. The weight to be given to such statement will be determined at the time of judgment where the statement will be appraised and evaluated. See Madjemu v. State (2001) 9 NWLR (Pt.718) p.349; Owie v. The State (1985) NWLR (Pt.3) P.470 and R v. Nwigboke & Ors. (1959) 4 F.S.C. P.101 at 102.
In the instant case, it is recorded at page 52 lines 4 – 9 of the record of appeal that, when the statement of the Appellant (John Obina) was tendered by the prosecution, learned counsel for the Appellant merely stated that,the lst accused said he did not make any statement.” The learned trial judge dutifully and correctly too, admitted the said statement in evidence, as he found that the accused person did not contend that the statement was involuntarily made. The issue of involuntariness of the statement was belatedly raised when the Appellant testified. Specifically, he had contended at page 70 lines 11 and 12 that “I was shot in the leg before I signed the statement Exhibit B.” That was after he had stated in line 8 that he forgot that he made the statement. What agitates my mind is, whether he had forgotten that he had been shot in the leg at the time his statement was being tendered. I think even the most forgetful person cannot forget such a serious incident as being shot in the leg. The only logical and reasonable conclusion is that the Appellant voluntarily made the statement and merely acted like a drowning man clutching at straw. Even if I am to accord his testimony some dignity, it would not help him.
This is so because, in law, the fact that an accused person retracted from his confessional statement at the trial, would not affect its potency and probative value, so long as it has been found to have been fairly and voluntarily made and the court is satisfied with it. See Obiadiozor v. The State (1987) 4 NWLR (Pt.67) p.748; Obisi v. Chief of Naval Staff (2002) 2 NWLR (Pt.751) p.400 and Iweka v. F.R.N. (2011) 14 W.R.N. p.73 at p.90.
It is therefore my view that the retraction by the Appellant, of his voluntary confessional statement was at afterthought. That being so, the trial court was right when he relied on same to convict him. The trial court, apart from the confessional statement, considered other ‘evidence which satisfied him that the confessional was true and proved beyond reasonable doubt that the Appellant was one of the robbers that robbed the passengers in the G.U.O. Bus on the 7th May, 2003. I find nothing on the printed record to disturb the findings of the court below.
It is for the above reasons and the detailed reasons adumbrated in the lead judgment that I agreed that this appeal has no merit and should be dismissed. Accordingly, I too dismiss this appeal. I hereby affirm the conviction and sentence passed on the Appellant by Ogun State High Court, per E. Esan, J on the 9th day of November, 2006.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned brother Monica Bolna’an Dongban-Mensem J.C.A. and I entirely agree with the reasoning and conclusion reached.
The trial Judge was right in relying on the confessional statement of the Appellant. A trial within a trial was not called for because at the time the confessional statement was admitted in evidence no objection was made to the effect that the statement was not made voluntarily.
It is where the admissibility of the statement is challenged on the ground that it was not made voluntarily that it will be incumbent on the trial court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within a trial. See Ogunye vs. State (1999) 5 NWLR Part 604 p. 518.
Here is a case where the appellant confessed to selling drugged sachet water with soporific effect to passengers in a passenger bus with the aim of robbing them while in their drug induced sleep. Shortly after the robbery, the appellant was in a position to buy and did buy two brand new motorcycles. The purchase of those motorcycles at that time in my view, constitutes a relevant fact under Section 6 of the Evidence Act 2011. That the appellant was given the money to purchase the motorcycles by the Ibo Community should not be in the realm of a mere claim by him but ought to be proved. Evidence of culpability in my humble view, points unerring at the appellant, given his sudden purchasing power after the robbery incident.
For the above reasons and the fuller reasons given in the lead judgment, I agree that the appeal ought to be dismissed.
It is accordingly dismissed.
Appearances
Ahmed Akanbi Esq.For Appellant
AND
Kofo Oguntoyinbo (DDPP) Oyo State Ministry of JusticeFor Respondent
