OKOCHUKWU IFALACHO v. THE STATE (2019)

OKOCHUKWU IFALACHO v. THE STATE

(2019)LCN/13040(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of April, 2019

CA/YL/136C/2017

RATIO

CONFESSION: A VOLUNTARY CONFESSIONAL STATEMENT CAN LEAD TO A CONVICTION

It is the settled law that a Confessional Statement which has been proved to have been voluntarily made by an accused person is a relevant fact against him at the trial. A confession therefore is the strongest evidence that can be led against an accused person. If such statement has been duly proved and admitted, it may alone, in some cases, be sufficient to warrant convicting an accused person on it.PER ABDULLAHI MAHMUD BAYERO, J.C.A.

BEST EVIDENCE IN CRIMINAL LITIGATION

A confessional statement made by an accused person and properly admitted in evidence is in law the best guide to the truth of the involvement of the accused in the offence charged. In ADEBAYO V. STATE (2014) LPELR 22988 (SC), Ariwoola JSC held that:-
On the confession of the accused person this Court held that evidential value of a confession of truth is very great indeed. It is very sought after by the police investigators and prosecutors. It lightens the burden of prosecution by dispensing with the need to call a host of witnesses. A confession can support a conviction if proved to be made and true. The law is trite on the point that a man may be convicted on his own confession alone and there is no law against it. See AKEEM AGBOOLA V. THE STATE (2013) LPELR 20652 (SC)PER ABDULLAHI MAHMUD BAYERO, J.C.A.

JUSTICES

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria

ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria

Between

OKOCHUKWU IFALACHO Appellant(s)

AND

THE STATE Respondent(s)

ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of Taraba State High Court, sitting in Jalingo delivered on the 8th day of October, 2015 by Ali I. Andenyangtso J, wherein the Appellant was convicted for the offences of Criminal Conspiracy contrary to Section 6 (b) of the Robbery and Fire Arms (Special Provisions) Act 2004; and Armed Robbery punishable under Section 1(2) (A) and (B) of the same Act. In proof of its case, the prosecution called 15 witnesses and tendered 16 exhibits. The Appellant testified for his defence and did not call any witness. The Appellant dissatisfied with the Judgment of the lower Court by a Notice of Appeal filed on the 2nd day of February, 2017 containing three grounds appealed to this Court.
GROUND ONE
The learned trial judge erred in law which occasioned miscarriage of justice when he convicted the Appellant on the manifestly unreliable evidence/testimony of PW15.
PARTICULARS
a) That PW15 had earlier told the Court that they recovered a Berretta Pistol with an expended ammunition in its chamber in the bush where the Appellant purportedly

ran into, and at the same time recognized the Appellant as the person whom he and his team arrested and recovered another Berretta Pistol.
b) That only one Berretta Pistol was tendered in Court.
c) That the Court was not informed of the where about of the other Berretta Pistol.
GROUND TWO
That the learned trial judge erred in law when he found and held that Exhibit Okochukwu 1 was an admission by the Appellant and that the said exhibit was an admission by the Appellant and that the said exhibit has established the guilt of the Appellant.
PARTICULARS
a) There was no evidence outside the purported confession which made the said purported confession probably true
b) The Appellant in his evidence denied making the purported confessional statement contained in Exhibit Okochukwu 1.
GROUND THREE
That the learned trial judge erred in law which occasioned a miscarriage of justice when he placed reliance on the evidence of PW1 to PW15 who throughout the whole gamut of their evidence never positively identified the Appellant at the scene of crime.

PARTICULARS
a) That none of the prosecution witnesses positively identified the Appellant at the scene of crime.
b) That the evidence of all the Prosecution/Respondents witnesses was not corroborated.

The Appellant?s brief of argument was filed on 25th June 2018 but was deemed filed and served on the 27th day of June, 2018. In it the learned Appellant?s Counsel formulated two issues for determination:-
1) Whether the confessional statement of the Appellant satisfies the test under which confessional statements are subjected to; and whether the lower Court was right in relying on same.
2) Whether it was proper for the lower Court to have relied on the unreliable evidence of PW1 to PW15 as credible in convicting the Appellant.

On the first issue Counsel submitted that proof in criminal cases is beyond reasonable doubt; that the confessional statement of the Appellant (Exhibit Okochukwu 1) was tendered through PW13 as shown at pages 68 and 69 of the Record of Appeal. That the Appellant?s counsel objected to its admissibility but was overruled by the lower Court. According to counsel, the test under which confessional statements are subjected to are: –

1) Is the statement corroborated?
2) Are the relevant statements made in it of the facts as can be tested?
3) Was the accused one who had the opportunity of committing the crime?
4) Is the confession possible?
5) Is the confession consistent with other facts which have been ascertained and have been proved?

Counsel submitted that the crimes for which the Appellant stood trial was committed on the 9th and 12th days of June 2012 respectively; while the Appellant who testified as DW1 stated that he is an indigene of Enugu and not Abia State as contained in Exhibit Okochukwu 1 who arrived Wukari from Enugu on 11th June, 2012 and did not know when he was arrested. Counsel queried if the Appellant arrived Jalingo on 10th June, 2012 how could he have committed the offences allegedly committed by him on 9th June, 2012? Whether day time as stated by PW13 (the IPO) and 11:10 pm (or 23:10) as written at the foot of Exhibit Okochukwu 1 are one and the same. He referred to page 72 of the Record of Appeal and urged the court to resolve these material contradictions in favour of the Appellant. Counsel submitted that even though a Court can convict an accused person based

on his confessional statement so long as it is free and voluntary, direct and positive; the prosecution has been unable to bring anything outside the confessional statement to show that it is true. Counsel referred to OGEDU V. THE STATE (2012) AFWLR Page 1111 at 1117 Ratio 6 and urge the Court to resolve the first issue in favour of the Appellant.

On the second issue for determination, counsel submitted that for the prosecution to succeed in proof of the offence of Armed Robbery, it must be proved beyond reasonable doubt that: –
a) That there was robbery or series of robberies
b) That the robbery or series of robberies was an armed robbery, and
c) That the accused was one of those who took part in the armed robbery.

According to counsel, none of the prosecution witnesses was able to link the Appellant with the alleged armed robbery. That looking at the testimonies of PW8, 9, 10 and 11 none of them identified the Appellant as one of the robbers that attacked and robbed them. That not even PW6 who claimed that he ran and hid somewhere and was looking at the robbers could identify the Appellant as one of the robbers.

He referred to Pages 45 ? 54 of the Record of Appeal. Counsel referred to the material contradictions in the testimonies of PW14 and 15 that while PW14 said a Honda car with registration number AR 468 BEN was used for the robbery which was recovered, PW15 stated that the car that was used by the robbers was a blue boxer bus. He referred to Page 82 of the Record of Appeal and argued that this material contradiction ought to have been resolved by the lower Court in favour of the Appellant.

Counsel cited OSENI V. THE STATE (2012) AFWLR (Part 619) Page 1010 at 1037 ? 8, urged this honourable Court to resolve the second issue in favour of the Appellant, allow the Appeal and set aside the conviction and sentence of the lower Court. In his response, learned counsel to the Respondent submitted that Exhibit Okochukwu 1 the confessional statement of the Appellant is a clear admission by the Appellant that he committed the alleged offence. That when the prosecution sought to tender the statement into evidence, counsel to the Appellant objected on the ground that the Appellant did not make it as shown at Pages 26 to 29 of the Record of Appeal.

According to counsel, confessional statement does not become inadmissible merely because the maker denies making it. He referred to JEREMIAH V. THE STATE (2012) 14 NWLR (Part 132) 248.

He further submitted that, the Appellant in the said exhibit gave a graphic account of how they carried out the robbery operation at Zing on 12th June, 2012 and the circumstances that led to their arrest at Apawa Junction Numan Road as shown at Pages 26 to 28 of the Record. According to counsel it is trite that an accused person can solely be convicted on his confessional statement if the statement satisfies all the requirements of a confessional statement as provided for in Sections 27, 28 and 29 of the Evidence Act. He also refers to FATAI V. THE STATE (2013) 2-3 MJSC (Part 1) Page 145 at 148 Ratio 2.
Counsel submitted that the trial Court was right in making its findings that: –
?I am satisfied that the confession made by the two accused persons in exhibit Ezekiel 1 and Okachukwu 1 are free and voluntary, direct and positive and has been properly proved before this Court. I am also satisfied with the truth therein contained.?

That the lower Court had evaluated the testimony of the prosecution witnesses and the defence, the confessional statement and other evidence before convicting and sentencing the Appellant and referred to Pages 125 to 167 of the Record of Appeal. That Exhibit Ezekiel 1 corroborated the evidence of PW15 particularly on the issue of exchange of fire and the arrest of the robbers at Apawa junction. That other facts outside the confession are Exhibits A, B, C and D 1-7, the Berretta pistol, empty magazine, empty shell and purse containing the passport photographs of the Appellant which were tendered through PW14 without any objection. He referred to Pages 74 ? 75 of the Record of Appeal. Counsel urged the Court to hold that with all the above, the confession of the Appellant is possible.

On the proof of Criminal Conspiracy, Counsel submitted that it is not necessary that the conspirators should know each other so long as they knew of the existence and the intention or purpose of the conspiracy. That what has to be ascertained is that the act of the accused persons were done in pursuance of a criminal purpose held in common between them. He referred to STATE V. OKONKWO (1998) 1 LRCNCC Page 33

at 37 Ratio 4. According to Counsel, the criminal purpose held in common between the Appellant and the co-accused persons was clearly explained by the Appellant in Exhibit Okochukwu 1 especially at Pages 26 to 27 of the Record of Appeal. Counsel further submitted that from the said exhibit, there was an express agreement between the Appellant and the co – accused to do an unlawful act of robbery. He referred to NGUMA V. AG IMO STATE (2014) 233 LRCN Page 41 at 50 Ratio 8.

As to the commission of the offence of Armed Robbery by the Appellant and the other co accused persons, Counsel submitted that PW15 the Divisional Police Officer of Zing Police Divisional Command who led a team of policemen that pursued the Appellant and others, explained vividly the role he played in arresting the Appellant. He urged the Court to dismiss the Appeal and uphold the conviction and the sentence of the lower Court. It was the argument of the Appellant?s Counsel that in Exhibit Okochukwu 1 (the confessional statement of the Appellant) it was alleged that the Appellant arrived Jalingo on 10th June, 2012; according to Counsel if the Appellant arrived Jalingo on 10th June,

2012, how could he have committed the offences allegedly committed by him on 9th June, 2012?

For clarity purposes Exhibit Okochukwu 1 (the confessional statement of the Appellant) as contained at Pages 30 -31 of the Record of Appeal and it reads:-
That I was born and brought up at Omohowa village of Ohoho LGA of Abia State. I left Onitsha on 10/06/2012 and arrived Jalingo at about 2000hrs to buy condemned motor batteries. I lodged at one hotel which I don?t know the name. That hotel I lodged there is one Beer parlor so I went to the Beer Parlor to take a drink. There I met about five persons Igbo by tribe whom I know in Onitsha taking drinks but I dont know their names. When I asked them their mission coming to Jalingo, they told me that they came for one business. The first Igbo man said I should follow them?.. that one woman withdrew the sum of N 60 Million to be conveyed to Zing which she did not carry escort. So I quickly came out and met one Onyebo, Ikechukwu Nwachukwu and the man called Honourable with a SRV jeep ash color no inscription on the jeep?.so the four of us entered the SRV jeep and drop to a

place later known as Zing. One Chimax carried another three people inside his Honda Prelude and headed for same Zing. When we got to Zing, six of us entered the Mitsubishi bus dark green driven by one of our gang at the education office at Zing myself and two others entered the office and carried some unspecified amount of money meant for teachers? salaries. At Apawa junction the police who were pursuing us opened fire on us, and our men who were with guns also fired on the police?myself, Ikechukwu Nwachukwu and Ezekiel Ukachi were also arrested by some youths around the bush area and inflicted injuries on us..I have never gone on any robbery operation except the one I was arrested

(Part 443) 375. I am satisfied that the confessions made by the two accused persons in Exhibits Ezekiel 1 and Okochukwu 1 are free and voluntary direct and positive and have been proved before this CourtI find no difficulty in rejecting the defence of Alibi raised by the accused in this case because both of them failed to raise this defence at the earliest possible opportunity they had?.?

From the judgment of the lower Court as reproduced above it is crystal clear that the confessional statement of the Appellant Exhibit Okochukwu 1 was made voluntarily and was positive and direct. Furthermore, the lower Court has evaluated very well the evidence led before it and ascribed the probative value to it. It is trite that in such scenario the Appellate Court cannot interfere with such findings and conclusions of a trial Court. This Appeal lacks merit and is accordingly dismissed. I therefore affirm the Judgment of the Taraba State High Court of Justice delivered by Ali I. Andenyangtso J., on 8th October, 2015.

CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother, Abdullahi M. Bayero, JCA, just delivered. I agree with his reasoning and conclusion arrived at and adopt same as mine in holding that the appeal is lacking in merit and the order dismissing it. I also dismiss it for the same reasons.

JAMES SHEHU ABIRIYI, J.C.A.: I had the privilege of reading in advance in draft the lead judgment just delivered by my learned brother ABDULLAHI MAHMUD BAYERO JCA.

?For the reasons contained in the lead judgment, I too find no merit in the appeal. The appeal is dismissed.
The conviction and sentence of the Appellant by the Court below are affirmed by me.

Appearances:

I. C. Osuji, Esq.For Appellant(s)

Hamidu Audu, Esq.
For Respondent(s)

Appearances

I. C. Osuji, Esq.For Appellant

AND

Hamidu Audu, Esq.For Respondent