ODJEGBA v. STATE
(2020)LCN/15313(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Thursday, June 18, 2020
CA/E/71C/2017
Before Our Lordships
Ignatius Igwe Agube Justice of the Court of Appeal
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Ibrahim Ali Andenyangtso Justice of the Court of Appeal
Between
AFOKE ODJEGBA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
ELEMENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY
The law is trite that for the prosecution to secure a conviction for an offence of armed robbery, the following elements of the offence must be proved beyond reasonable doubt:
(1) That there was a robbery or series of robberies.
(2) That the robbery was an armed robbery.
(3) That the accused was the robber or one of the robbers.
See OPEYEMI V. STATE (2019) 17 NWLR (PT.1702) 403 AT 427 (E-F), PHILIP V. STATE (2019) 13 NWLR (PT.1690) 509 AT 542 (B-D).
It is settled that in discharging the burden of proof beyond reasonable doubt, the prosecution may rely on direct evidence of an eye witness, circumstantial evidence and /or confessional statement of the accused person. See TOPE V. STATE (2019) 15 NWLR (PT.1695) 289 AT 300-301 (G-A). PER BOLAJI-YUSUFF, J.C.A.
THE ESSENCE OF AN IDENTIFICATION PARADE
An identification parade is essential whenever there is a dispute on the identity of the robber or there is a doubt about the possibility of a witness recognising an accused person during the commission of the crime. See OGOALA V. STATE (1991) LPELR-2307 (SC) AT 13 (A-B), SADIKU V. STATE (2013) LPELR-20588 (SC) AT 15 (A-E). In ALABI VS STATE (1993) LPELR-397 (SC) AT 11-12 (B-D). In OGU V. C.O.P (2017) LPELR-43832 (SC) AT 29-30 (A-E), the Supreme Court Per KEKERE-EKUN, J.S.C stated when it is necessary to conduct an identification parade as follows:
“In a charge for armed robbery, the identity of the accused person as the robber or one of those who participated in the offence is always in issue. It is one of the ingredients of the offence that must be proved beyond reasonable doubt. An identification parade is only one of several ways of identifying the perpetrator of a crime. Where an accused person is arrested at the scene of crime or spontaneously identified shortly after its commission by one of the victims, an identification parade is not required. Similarly where the accused person was well known to one or more of the victims before the commission of the offence, an identification parade would not be required. However, where the victim only saw the accused person for a short time, where the accused person was not arrested at the scene or shortly thereafter, or where the circumstances of the commission of the crime were such that the victims might not have been in the correct frame of mind to take note of any distinguishing features that could aid in identifying the accused, it would be necessary for the Police to conduct an identification parade. See: Eyisi Vs The State (2000) 15 NWLR (Pt.691) 555: R v. Turnbull (1976) 3 Ch. App. R. 132; Peter Adewunmi Vs The State (2016) LPELR-40106 (SC); Fatai Vs The State (2013) LPELR-20182 (SC); Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455. An identification parade usually consists of a group of persons of the same sex, similar size and physical features as the person suspected of having committed the offence, assembled by the Police from among whom the witness is asked to identify the culprit unaided and untutored. See: Alabi Vs The State (1993) 7 NWLR (Pt.307) 511. In the instant case, PW3 was able to pick out the appellant from a line-up of 12 men. Moreover, he stated under cross examination that he was able to identify him because during the commission of the offence the deceased shone torchlight in his face.” PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT A CONFESSION IS THE BEST EVIDENCE THAT THE CONFESSOR COMMITED THE ALLEGED OFFENCE
Though the law is settled that a confession is the best evidence that the confessor committed the alleged offence and a trial Court can rely on the confessional statement of an accused person alone to convict him, the confessional statement must be direct, positive and unequivocal. Section 28 and 29 of Evidence Act provides that:
28. 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.
29. (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained-
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Subsection (2)(a) or (b) of this section.
(4) Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless be adopted the said statement by words or conduct.
(5) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.”
See PHILIP V. STATE (SUPRA) AT 535 (A-G). PER BOLAJI-YUSUFF, J.C.A.
THE RULE OF THE EVIDENCE ACT WHERE THERE IS DOUBT AS TO WHETHER ORAL CONFESSION BY AN ACCUSED PERSON IS NOT ADMISSIBLE
If there is any doubt as to whether oral confession by an accused person is not admissible under Sections 28 and 29 of the Evidence Act, the ADMINISTRATION OF CRIMINAL JUSTICE LAW OF ENUGU STATE, 2015 clears the doubt. Section 17 of that law provides that:
17. 1. “Any person who is arrested, whether with or without a warrant, shall be taken with all reasonable dispatch to a police station or other place for the reception of arrested persons, and shall without delay be informed of the charge against him. Any such person while in custody shall be given reasonable facilities for obtaining legal advice, taking steps to furnish bail, and otherwise making arrangements for his defence or release.
2. Where any person who is arrested with or without a warrant volunteers to make a confessional statement, the police shall ensure that the making and taking of such statement is recorded on video or other retrievable electronic device, and the said recording and copies thereof may be produced at the trial; provided that in the absence of video facility, the said statement shall be in writing in the presence of a private legal practitioner or any other person of his choice.
3. The legal practitioner or any other person referred to in Subsection (2) shall also endorse with his full particulars and indication of having witnessed the recording thereof.
4. The statement or its endorsement as in Subsection (2) shall be made in the presence of the officer in charge of the Human Rights Desk where available or a superior police officer in the absence of a Human Rights Desks officer.
5. Where a suspect does not understand or speak or write in the English Language, an interpreter of his own choice shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him, and the interpreter shall attest to the making of the statement.
6. The interpreter shall endorse his name, address, occupation, designation or other particulars on the statement.” PER BOLAJI-YUSUFF, J.C.A.
TEST TO ASCERTAIN THE VERACITY AND TRUTHFULNESS OF AN ORAL CONFESSION
The alleged confession being oral and not written reinforces the need for corroboration. The Court for whatever it was worth ought to have subjected the alleged oral confession to the test laid down by the law to ascertain its veracity and truthfulness. In AKINRINLOLA V. STATE(2016) LPELR-40641 AT 47-48, the Supreme Court stated the law as follows:
“This Court had in many cases spanning a long time handed down the conditions to examine the truth of a confessional statement and in the example of Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt.138) 150, the Supreme Court stated:- That to test the veracity of a confessional statement, the following should be evident:- 1. Is there anything outside the confession which shows that it may be true 2. Is it corroborated in anyway 3. Are the relevant statement of facts made in it most likely true as far as they can be tested 4. Did the accused have the opportunity of committing the offence 5. Is the confession possible 6. Is the alleged confession consistent with other facts which have been ascertained and established Along the same line of thought, this Court stated inAlarape v. The State (2001) 5 NWLR (pt. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.”
See also STATE V. YAHAYA (2019) 13 NWLR (PT.1690) 13 NWLR (PT.1690) 387 AT 427-428 (D-G). PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Enugu State delivered in charged no. E/98C/2013 where in the appellant was convicted for armed robbery and sentenced to death. The prosecution’s case was that there was an armed robbery in a residential building at upper Meniru Awkunanaw, Enugu on 13th October, 2012. The chairman of the vigilante group in the neighbourhood was informed about the incident. One of the victims said he knew one of the robbers though the robber wore a face cap. He described the robber as someone from delta and that he used to live with the said person in Ikiriki area before he, the victim moved to the present house where the incident occurred. Upon this information, the chairman of the vigilante group claimed to know who could have committed the crime. The chairman and the other members of the vigilante group went to the appellant’s house and arrested him. They took him to their office where the appellant was alleged to have made an oral confession of the commission of the crime to the chairman. The vigilante group went to the appellant’s house the second time and claimed to have recovered a number of cell phones and cash. It was claimed that the appellant was taken to the scene of the crime where the owners identified the cell phones. The next day, the appellant was handed over to the police. Upon the conclusion of investigation by the police, the appellant was charged to Court on a one count charge of robbery which reads:
STATEMENT OF OFFENCE
“Armed Robbery contrary to Section 1(2) (a) Robbery and Fire Arms (Special Provision) Act CAP RII LAWS of Federation of Nigeria 2004.
PARTICULARS OF OFFENCE
Afoke Odjegba on or about the 13th day of October, 2012, at upper Meniru Street Awkunana Enugu, armed yourself with gun and robbed Godwin Ani and others of their valuable including money and Handsets.”
At the trial, the prosecution called 3 witnesses and closed their case. The appellant testified in his own defence and called no other witness. In a reserved judgment delivered on 8/5/2017, the learned trial judge convicted and sentenced the appellant to death by hanging.
Dissatisfied with the judgment, the appellant filed a notice of appeal to this Court on 29/6/2017. An amended notice of appeal filed on 26/9/2019 was deemed as properly filed and served on 4/12/19. The three grounds of appeal therein without their particulars are as follows:
GROUND 1: ERROR IN LAW
“The learned trial judge erred in law, when after holding that the evidence of PW2 and PW3, as to the identity of the appellant, was doubtful, went on to hold as follows:
“I however find the evidence of PW1’s interaction with the defendant very credible, his confessions, the recovery of the cell phones and money; the defendant’s naming of his colleague Jango (sic); the inmates’ scramble for their phones. I find these pieces of evidence credible and relevant, and that these implicated the defendant in the armed attack…”
And relying on the case of NWACHUKWU V. THE STATE (2002) 12 SCM 162, the learned trial judge went on to hold that extra judicial confession made orally, carry no less weight than those made in writing; and ultimately convicted the appellant for armed robbery, and sentenced him to death, by hanging.
GROUND 2: ERROR IN LAW
The learned trial judge erred in law, when she found that the prosecution proved its case against the appellant beyond reasonable doubt; and consequently convicted the appellant.
GROUND 3: ERROR IN LAW
The learned trial judge erred in law, when she failed to consider the defence of appellant, and went to convict him.”‘
The appellant’s brief was filed on 26/9/2019. It was deemed properly filed and served on 4/12/2019. Respondent’s brief was filed on 23/3/2020. It was deemed as properly filed and served on 27/4/2020. Appellant’s reply brief was filed on 24/4/2020. It was deemed as properly filed on 27/4/20. Counsel for both parties adopted their respective briefs on 27/4/20.
The Appellant’s counsel distilled the following issues for determination:
a. “Whether in the circumstances of this case (and inspite of the learned trial judge’s doubting of PW2 and PW3’s evidence as to the identity of the appellant as the one involved in the crime) the learned trial judge was right, in proceeding to convict and sentence the appellant, on the basis of PW1’s evidence that the appellant made an oral confession of the crime to him (PW1) and that stolen cell phones and cash were recvered from the appellant him (appellant), and scrambled for, by their owners, and that the appellant mentioned one Jango (sic) as his accomplice in the crime. (distilled from Ground one)
b. Whether the learned trial judge was right to have held that the prosecution proved its case against the appellant, beyond reasonable doubt, and consequently convicted the appellant as charged. (distilled from Ground two)
c. Whether there was not a failure by the trial judge to consider the defence of the appellant, and if so, whether same was not a denial of fair hearing. (distilled from ground three)”
The Respondent’s counsel distilled the following issues for determination:
a. “Whether the prosecution proved a case of armed robbery against the appellant?
b. Whether the appellant was identified as the person who committed the crime with which he was charged.”
The issues distilled by both parties are similar though couched differently. All the issues would be considered together. The Appellant’s main contention in this appeal is that the Court below ought not to have relied on the alleged oral confession made by the appellant to the vigilante chairman, PW1 not being a police officer or any other law enforcement/investigatory agency. It is submitted that the law recognises only a confession of crime to a law enforcement agency not one made orally to a private citizen or nongovernmental organisation such as vigilante group and such confession must be in consonance with the provisions of Sections 28 and 29 of the Evidence Act. It is further submitted that there was a burden on the prosecution to prove beyond reasonable doubt that stolen items were recovered from the appellant but that burden was not discharged because none of the owners of the alleged recovered stolen items was called to testify. It is finally submitted that failure to call those persons whose phones were allegedly stolen and the investigating police officer to whom the recovered phones were said to have been handed over was enough to create doubt in the mind of the Court as to whether such items were indeed recovered from the appellant and the doubt should have been resolved in favour of the appellant. He referred to ARCHIBONG V. STATE (2006) 14 NWLR (PT.1000) 349, AL-HASSANI V. STATE (2010) LPELR-8674 (CA).
In response, the respondent’s counsel submitted that the unchallenged evidence of PW1 and PW2 show that the appellant was one of the robbers who robbed the inmate of a house at Ikiriki, Awkunanaw at gun point on 13/10/2012 and the evidence satisfied the provisions of Section 131 of the Evidence Act, 2011. He referred to KOLAWOLE V. THE STATE (2015) 8 NWLR (PT.1460) 134. He further submitted that the Court below did not base its decision on the appellant’s confession to PW1 but also on the doctrine of recent possession as the phones collected from the occupants of the house were recovered from the appellant and no explanation was given by him as to how those phones came into his possession soon after robbery. He urged the Court to affirm the judgment of the Court below as the appellant was fully identified by the prosecution witnesses.
In reply, the appellant’s counsel submitted that the prosecution cannot validly invoke the doctrine of recent possession when the alleged recovery of phones or other items were not proved. He urged the Court to allow the appeal.
RESOLUTION
The law is trite that for the prosecution to secure a conviction for an offence of armed robbery, the following elements of the offence must be proved beyond reasonable doubt:
(1) That there was a robbery or series of robberies.
(2) That the robbery was an armed robbery.
(3) That the accused was the robber or one of the robbers.
See OPEYEMI V. STATE (2019) 17 NWLR (PT.1702) 403 AT 427 (E-F), PHILIP V. STATE (2019) 13 NWLR (PT.1690) 509 AT 542 (B-D).
It is settled that in discharging the burden of proof beyond reasonable doubt, the prosecution may rely on direct evidence of an eye witness, circumstantial evidence and /or confessional statement of the accused person. See TOPE V. STATE (2019) 15 NWLR (PT.1695) 289 AT 300-301 (G-A). In the instant case, the prosecution relied on direct eye witness account and the alleged oral confession of the appellant. The evidence of PW2 was clear, positive and unequivocal that he was robbed at gun point around 9pm on 13/10/2012 and a sum of N6,200:00 was collected from him. Thus it was established that there was an armed robbery in PW2’s house on the day in question. The main issue in contention is the identity of the armed robbers. The appellant was not arrested at the scene of the crime. The law is settled that where an accused is not arrested at the scene of the crime or shortly thereafter and was not well known to one or more of the victims, an identification parade is necessary. An identification parade is essential whenever there is a dispute on the identity of the robber or there is a doubt about the possibility of a witness recognising an accused person during the commission of the crime. See OGOALA V. STATE (1991) LPELR-2307 (SC) AT 13 (A-B), SADIKU V. STATE (2013) LPELR-20588 (SC) AT 15 (A-E). In ALABI VS STATE (1993) LPELR-397 (SC) AT 11-12 (B-D). In OGU V. C.O.P (2017) LPELR-43832 (SC) AT 29-30 (A-E), the Supreme Court Per KEKERE-EKUN, J.S.C stated when it is necessary to conduct an identification parade as follows:
“In a charge for armed robbery, the identity of the accused person as the robber or one of those who participated in the offence is always in issue. It is one of the ingredients of the offence that must be proved beyond reasonable doubt. An identification parade is only one of several ways of identifying the perpetrator of a crime. Where an accused person is arrested at the scene of crime or spontaneously identified shortly after its commission by one of the victims, an identification parade is not required. Similarly where the accused person was well known to one or more of the victims before the commission of the offence, an identification parade would not be required. However, where the victim only saw the accused person for a short time, where the accused person was not arrested at the scene or shortly thereafter, or where the circumstances of the commission of the crime were such that the victims might not have been in the correct frame of mind to take note of any distinguishing features that could aid in identifying the accused, it would be necessary for the Police to conduct an identification parade. See: Eyisi Vs The State (2000) 15 NWLR (Pt.691) 555: R v. Turnbull (1976) 3 Ch. App. R. 132; Peter Adewunmi Vs The State (2016) LPELR-40106 (SC); Fatai Vs The State (2013) LPELR-20182 (SC); Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455. An identification parade usually consists of a group of persons of the same sex, similar size and physical features as the person suspected of having committed the offence, assembled by the Police from among whom the witness is asked to identify the culprit unaided and untutored. See: Alabi Vs The State (1993) 7 NWLR (Pt.307) 511. In the instant case, PW3 was able to pick out the appellant from a line-up of 12 men. Moreover, he stated under cross examination that he was able to identify him because during the commission of the offence the deceased shone torchlight in his face.”
In the instant case, PW2 who was an eye witness and the only victim of the robbery that testified stated that the robbers approached him from behind and commanded him to enter the room. One of them, tall in height followed him to the room and demanded for money. The robber threatened to shoot him when he said he had no money. He was terrified and he gave them the money he had. According to PW2, he recognised the appellant because his assailant was tall and there was light. Under cross examination, he said he recognized the appellant at the police station when he was brought out. Apparently, only the appellant was brought out. Apart from the description of one of the robbers being tall, no other feature was mentioned by PW2. There is no evidence on record to show that the appellant has an unusual height that stands him out in a crowd so as to make his recognition so easy. In the circumstances mentioned by PW2, it is doubtful whether he could summon the courage to look at the robber so closely as to be able to recognise him instantaneously at the police station. No other witness or victim of the robbery not even the person that allegedly told PW1 that one of the robbers is from delta testified to confirm the identity of the robber or to prove beyond reasonable doubt that the appellant was one of the robbers that robbed them that night. The Court below evaluated the entire evidence led on the identification of the appellant and made the following finding at page 73 of the record of appeal:
“The finding of the Court is that PW3’S identification of the defendant to the crime alleged given in evidence is suspect. The Court could not have accepted it. In conclusion, the PW1 arrested the defendant based on what description he was given generally by the victims of the attack and what he was told by the person who said he knew the defendant before and about where he lived. Though this identification was very shaky, PW1 proceeded to act on it. He acted on his hunches and asked his men to go to the defendant’s place. There the defendant was arrested. PW1 gave evidence of how he urged the defendant’s to tell the truth, of defendant confession and plea for leniency. How defendant told him of his co-conspirator Jango and how they shared the loot and how defendant’s share was recovered when they went back to his premises, how the inmates of the premises rushed their phones when they were shown to them and said the defendant was the one that robbed them.
This Court doubt very much whether the victims could have identified the defendant as the tall robber who attacked them.”
The finding of the Court below is to the effect that the appellant was not properly identified as one of the robbers who carried out the robbery. The Court however convicted the appellant based on his alleged confession to PW1 and alleged recovery of the items stolen during the robbery. This is what the Court said at pages 73-74 of the record of appeal:
“I however find the evidence of the PW1’s interaction with the defendant very credible; his confession; the recovery of the cell phones and money, the defendant’s naming of his colleague Jango, the inmates scramble for their phones. I find these pieces of evidence credible and relevant and that these implicated the defendant in the armed attack. Extra judicial confession made orally carry no less weight than those made in writing. See UCHENNA NWANCHUKWU V. THE STATE (2002) 12 SCM 162. Though the exhibits recovered were not tendered, I entirely accept the evidence of the PW1 in these respects. His evidence was quite clear, lucid and credible. These pieces of evidence were also entirely unrebutted by the defence in any way. I do not believe the defendant when he stated he did not know of the charge or never seen the PW1 before. There was no doubt cast as to prosecution’s evidence. These pieces of evidence were also supported by the evidence of the PW2 and PW3 in those respects. In this respect I find it very material that PW3 was cross-examined as to her earlier statement to the police and was uncontradicted in those respects. While this Court concedes the very unusual manner of the prosecution’s case in this Court including the somewhat meddling role of the vigilante in investigation of this case, all that is required of the prosecution is to prove its case of armed robbery against the defendant in this Court beyond reasonable doubt. This Court has no doubt that the evidence of the PW1 particularly the recovery of the items stolen and their identification linked the defendant with the commission of the offence. With the satisfactory nature of the PW1 (sic) in those respects which this Court accepts it is immaterial that the police did not produce those objects to this Court. Consequently this Court finds the defendant guilty as charged of armed robbery pursuant to Section 1(2)(a) of the Robbery and Firearms Special Provision Act, Laws of the Federation 2004.”
Though the law is settled that a confession is the best evidence that the confessor committed the alleged offence and a trial Court can rely on the confessional statement of an accused person alone to convict him, the confessional statement must be direct, positive and unequivocal. Section 28 and 29 of Evidence Act provides that:
28. 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.
29. (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained-
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Subsection (2)(a) or (b) of this section.
(4) Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless be adopted the said statement by words or conduct.
(5) In this section “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.”
See PHILIP V. STATE (SUPRA) AT 535 (A-G). If there is any doubt as to whether oral confession by an accused person is not admissible under Sections 28 and 29 of the Evidence Act, the ADMINISTRATION OF CRIMINAL JUSTICE LAW OF ENUGU STATE, 2015 clears the doubt. Section 17 of that law provides that:
17. 1. “Any person who is arrested, whether with or without a warrant, shall be taken with all reasonable dispatch to a police station or other place for the reception of arrested persons, and shall without delay be informed of the charge against him. Any such person while in custody shall be given reasonable facilities for obtaining legal advice, taking steps to furnish bail, and otherwise making arrangements for his defence or release.
2. Where any person who is arrested with or without a warrant volunteers to make a confessional statement, the police shall ensure that the making and taking of such statement is recorded on video or other retrievable electronic device, and the said recording and copies thereof may be produced at the trial; provided that in the absence of video facility, the said statement shall be in writing in the presence of a private legal practitioner or any other person of his choice.
3. The legal practitioner or any other person referred to in Subsection (2) shall also endorse with his full particulars and indication of having witnessed the recording thereof.
4. The statement or its endorsement as in Subsection (2) shall be made in the presence of the officer in charge of the Human Rights Desk where available or a superior police officer in the absence of a Human Rights Desks officer.
5. Where a suspect does not understand or speak or write in the English Language, an interpreter of his own choice shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him, and the interpreter shall attest to the making of the statement.
6. The interpreter shall endorse his name, address, occupation, designation or other particulars on the statement.”
Oral confession made to a private security organization does not qualify as an extra judicial statement on which the Court can rely to convict an accused for a criminal offence. Also, an oral confession made to a police officer and not recorded on video or any other retrievable electronic device corroborating or in writing in the absence of video facility confirming the confession cannot be the basis of a conviction by the Court. It is unlawful and dangerous to convict an accused based on alleged oral confession made to a private security organization or vigilante group and not recorded in a video or any form of retrievable electronic device and not confirmed in writing before a police officer. As rightly observed by the appellant’s counsel, the confession made to the investigating police officer in NWACHUKWU V. THE STATE (2002) 12 SCM 162 was later confirmed in writing by the accused person and the written statements were tendered and admitted as exhibits before the Court. Even if the alleged oral confession to PW1 is admissible under Section 28 of the Evidence Act but I am of the firm view that it is not, can it be said to have been made voluntarily, my answer is a resounding No. This is because PW1 had already concluded that the appellant was the armed robber even before he was arrested and according to him, he made the appellant to confess to the crime in the presence of his workers. None of PW1’s workers was called as a witness. Considering the entire circumstances and the scenario described by PW1, the alleged confession was not shown to have been voluntarily made by the appellant. The only inference that can be drawn from the entire scenario described by PW1 is that the appellant was intimidated into making the confession if at all he did.
The Court below was in grave error to have convicted the appellant on the alleged confession to PW1. Apart from the fact the oral confession was obtained by intimidation, there was nothing outside the alleged confession to prove that it was true. The alleged confession being oral and not written reinforces the need for corroboration. The Court for whatever it was worth ought to have subjected the alleged oral confession to the test laid down by the law to ascertain its veracity and truthfulness. In AKINRINLOLA V. STATE(2016) LPELR-40641 AT 47-48, the Supreme Court stated the law as follows:
“This Court had in many cases spanning a long time handed down the conditions to examine the truth of a confessional statement and in the example of Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt.138) 150, the Supreme Court stated:- That to test the veracity of a confessional statement, the following should be evident:- 1. Is there anything outside the confession which shows that it may be true 2. Is it corroborated in anyway 3. Are the relevant statement of facts made in it most likely true as far as they can be tested 4. Did the accused have the opportunity of committing the offence 5. Is the confession possible 6. Is the alleged confession consistent with other facts which have been ascertained and established Along the same line of thought, this Court stated inAlarape v. The State (2001) 5 NWLR (pt. 705) 79, that the test in determining the veracity of a confessional statement is to seek any other evidence even if slight, of circumstances which make it probable that the confession is true.”
See also STATE V. YAHAYA (2019) 13 NWLR (PT.1690) 13 NWLR (PT.1690) 387 AT 427-428 (D-G).
In the instant case, the recovery of stolen items from the appellant was not proved beyond reasonable doubt. PW1’s evidence is that the phones which were recovered were identified by their owners. His evidence shows that the phones were not returned to the owners. He said he handed over the matter to the police. There is no scintilla of evidence to show that the owners collected their phones at the police station. The investigating police officer was not called to confirm that any recovered item was handed over to the police. PW2 who was the only eye witness of the incident said the robbers did not go away with his phone and he did not say that money taken from him was recovered from the appellant and returned to him. In essence, there is no credible evidence on record to support the conclusion of the Court below that the evidence of PW1 on the recovery of the items alleged to have been stolen during the robbery linked the appellant with the commission of the offence. I agree with the Court below that failure to tender stolen or recovered items is not fatal to the prosecution’s case. However, there must be credible and cogent evidence from the police or the victim of the robbery that the items stolen were recovered at all. The result is that there is no evidence outside the alleged and inadmissible oral confession to warrant the conviction of the appellant for the offence of armed robbery.
It is clear from the entire evidence of PW1 that the appellant was arrested based on suspicion fuelled by the allegation that he had once been arrested by PW1 for stealing a phone. The law is settled that suspicion no matter how strong does not take the place of a legal proof. See STATE V. AJAYI (2016) LPELR-40663(SC) AT 48 (A-C), UDOR V. STATE (2014) LPELR-23064 AT 14 (D-F).
In conclusion, this appeal succeeds. It is hereby allowed. The judgment of the High Court of Enugu State delivered in charge no. E/98C/2013 on 8/5/2017 is hereby set aside. The conviction and sentence passed on the appellant are set aside. The appellant is discharged and acquitted.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the Lead Judgment of my Learned brother M. O. BOLAJI-YUSUF JCA and I am in total agreement with his reasoning and conclusion that the prosecution did not prove its case beyond reasonable doubt since from the evidence of the witnesses, the Appellant’s conviction was predicated on mere suspicion and as was rightly held on the authorities of State v. Ajayi (2016) LPELR-40663 (SC) Page 48, Paras A-C; Sunday Udor v. The State (2014) LPELR- 23064 (SC) at P.14, paras D – F; and Orji v. The State (2008) LPELR- 2767 (SC); Suspicion no matter how strong cannot take the place of legal proof.
Accordingly, I also allow the Appeal, set aside the Judgment of the Lower Court and discharge and acquit the Appellant.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have read in draft the judgment just delivered by my learned noble Lord, M.O.
BOLAJI-YUSUFF JCA and I agree with his reasoning and conclusion that this appeal is meritorious and same succeeds. I also hereby allow same and set aside the decision of the lower Court in Charge No. E/98/2013.
The conviction and sentence of the Appellant are hereby quashed and I order that the Appellant be acquitted and discharged forthwith.
Appearances:
M. B. Onyia with him, Jahwins Ugbokwe and Kate Ejim Karaonye For Appellant(s)
Chief M. E. Eze, Attorney General of Enugu State with him, T. A. Ngene, Deputy Director and Dr. Anayo Ede, Chief Legal Officer of the Ministry of Justice, Enugu State For Respondent(s)
