SAMSON v. STATE
(2020)LCN/15393(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Friday, October 02, 2020
CA/AK/316C/2018
RATIO
DEFENCE OF ALIBI: WHETHER THE DEFENCE OF ALIBI MUST BE PRECISE AND SPECIFIC
The settled position of the law is that it is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi: BALOGUN V AG, OGUN STATE (2002) 6 NWLR, PT 763, 512 and NSOFOR V. STATE (2002) 10 NWLR PT 775, 274.
The apex Court in OCHEMAJE V THE STATE (2008) 15 NWLR, PT 1109, 57 AT 90, PARAS C & F puts it very graphically thus:
“A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time … It is not the law that the police should be involved in a wild goose chase for the whereabouts of an accused person at the time the crime was committed. The accused must give specific particulars of where he was at the material time to enable the police move straight to that place to carry out the investigation required by law.” PER PATRICIA AJUMA MAHMOUD, J.C.A.
WORDS AND PHRASES: “ALIBI”
Alibi simply means elsewhere. Raising the defence of alibi, the accused claimed that he was in a place other than the scene of crime, therefore, he was not the one who committed the offence alleged. See OLATINWO V. STATE (2013) LPELR 1997 9 (SC); UDE V. STATE (2013) LPELR 40441 (SC); AGU V. STATE (2017) LPELR 41664 (SC); IKUMONIHAN V. STATE (2018) LPELR 44362 (SC). Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. The claim of the accused that he was not present at the scene of the crime, as in the instant case, is not enough to raise the defence of alibi, he must give particulars of his whereabout at the particular time. Indeed, the onus is always on the accused person to provide the police with information, as to where he was when the crime was committed, with whom he was and what he was doing thereat. It is only when this information is supplied by the accused person that the burden shifts on the prosecution to investigate the alibi put up. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
CONFESSIONAL STATEMENT: WHETHER A TRIAL WITHIN TRIAL MAY BE CONDUCTED WHERE AN ACCUSED PERSON RETRACTS THE CONFESSIONAL STATEMENT
At the trial, the Appellant objected to the admissibility of the confessional statement to the police when the prosecution sought to tender it on the ground that it had not been made voluntarily, it is trite that where an accused person expresses his ordeal in the process of obtaining the statement accredited to him that it was obtained by force, tricks, undue influence or any other nonrecognisable way, there would be need for a trial within trial. But where an accused retracted the confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of trial within trial is not applicable. See IFARAMOYE V. THE STATE (2017) LPELR 42031 (SC), IDAGU V. STATE (2018) LPELR 44343 (SC). The purpose of trial within trial is to determine whether or not the confession was voluntary, it only tests the voluntariness of a confessional statement not what value or weight to be attached to the evidence. See IDAGU (supra). PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
KAJOPELAYE SAMSON APPELANT(S)
And
THE STATE RESPONDENT(S)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of his Lordship A. O. Odusola, J. of the High Court of Ondo State, sitting at Akure, delivered on the 16th day of May, 2018.
The Appellant and one other were arraigned before the Ondo State High Court sitting at Akure on a three count charge of conspiracy to commit kidnapping contrary to Section 516 Cap 37 Vol.1 Laws of Ondo State of Nigeria, 2006. Aiding and abetting kidnapping contrary to and punishable under Sections 5(1), 3(1) (II) (b) of the Ondo State Anti-Kidnapping and Anti-Abduction Law, 2010.
The Appellant and the other accused person pleaded not guilty to the three counts and the case proceeded to hearing. The Prosecution called two witnesses and tendered some documents. PW1 is the victim of the alleged crime, while PW2 was the Investigation Police Officer. The Appellant as 1st accused person testified for himself and called no other witness.
The case of the Prosecution was that on the 6th day of December, 2012 one Alhaji Adeyinka Yusuf A.K.A. Ade bless after closing from work at about 6.00pm and on his way home, he saw a Honda car coming behind him. That some people stopped him, came out from the Honda Car and dragged him out of his car, and started hitting him. He struggled to escape but he was overpowered and put inside the boot of their car and drove away. That at a point he observed that the car stopped and did not know what was happening as he was inside the boot. After a while the boot of the car was opened and he was moved out of the boot. That he discovered that it was the neighbourhood that blocked the street when they heard of the incident and the Honda car was intercepted and he was taken to the Hospital for treatment because he was in a pool of blood as a result of the injuries he sustained from the struggle and hitting.
That the matter was later reported at the Ore Police Station and on 11/12/2012 he went to make a report and was told that investigation will commence in earnest. That later the police in SARS Akure called him that they arrested some of the people who kidnapped him and the two accused persons in the dock (i.e. the Appellant and the 2nd accused person) are the people the police claimed were arrested in connection with the crime.
That under cross-examination, the witness said that he made statement at Ore Police Station on 7/12/2012. That he first saw the 1st defendant accused person at Ore Police Station when the Police said he was the owner of the Honda car used on the day of the incident and his statement was thereafter admitted as Exhibit A.
PW2 gave evidence that he took the statements of the accused person and that of the victim and registered the recovered Exhibits. The Appellant’s confessional statement was admitted in evidence after a trial within trial and marked as Exhibit E. That the investigation revealed that the Appellant is the owner of the Honda Accord car used in the crime which was admitted as Exhibit D.
The Appellant in his defence, denied conspiring, aiding or abetting in kidnapping anyone. He stated that on the 6th day of December 2012, he reported to Omotosho Police Station that his car was snatched away from him by armed robbers along the Benin expressway at about 6:30 p.m. and confirmed that he is the owner of the Honda Accord car used in the crime.
Following the non-guilty plea, the lower Court proceeded to a full-scale determination of the case. At the close of evidence from both sides and addresses by counsel, the learned trial Judge in a considered judgment delivered on the 16th day of May, 2018, found the Appellant guilty on Counts 2 and 3 of the charge. Convicted and sentenced him to life imprisonment.
The Appellant was dissatisfied with the judgment. Hence, on 24th May, 2018, lodged a 4 ground notice of appeal seen at pages 252 – 254 of the record.
The Appellant with the leave of this Court, filed an amendment notice of appeal on 19th September, 2019 but deemed properly filed on 29th October, 2019 containing five (5) grounds of appeal. On the 9th day of January, 2020, the Respondent filed a notice of intention to contend that the Judgment of the lower Court should be affirmed on grounds other than those relied on by the Court below. The notice of intention reads in part, thus:
TAKE NOTICE that upon the hearing of the above appeal, the Respondent’s intention to contend that the decision of the Court below dated Monday the 17 day of June, 2019, wherein His Lordship Hon. Justice A. O. Odusola sitting in Akure, Ondo State in Charge No. AK/67C/2014 convicted and sentenced the Appellant to life imprisonment respectively for the offences of aiding and abetting kidnapping and kidnapping be affirmed on grounds other than those relied on by the Court below and varied to encapsulate the order of forfeiture to the State Government through the office of the Attorney General of Ondo State. Exhibit D the Honda Accord vehicle with Registration No. FK172 AV vehicle used in the commission of the alleged act of Kidnapping and which the trial Court omitted to encapsulate in its judgment.
AND FURTHER TAKE NOTICE that the grounds on which the Respondent intends to rely are as follows:
1. By the provision of Section 299 (1) of the Administration of Criminal Justice law of Ondo State 2015, a trial Court upon the conclusion of a criminal case is mandated to make an order for the disposal or delivery to any person appearing to be entitled to the possession thereof or otherwise, of any movable property or regarding which any offence appears to have been committed or which has been used for the commission of any offence.
2. The trial Court failed to order the forfeiture to the state of Exhibit D. The Honda Accord vehicle with Registration No. FK 17 AV which was used in the commission of the crime of kidnapping and for which the Defendant/Appellant had been convicted.
3. The offence of which the Hon. Attorney General of the state has a duty to ensure that the said property is salvaged for the use of the state and public interest.
Thereafter, the parties through their respective counsel, filed and exchanged their brief of argument in line with the Rules governing the hearing of criminal appeals in this Court. The appeal was heard on the 8th July, 2020.
During the hearing of the appeal, learned counsel for the Appellant, O. O. Otayemi, Esq. adopted the Appellant’s brief of argument filed on 10th September, 2019, but deemed properly filed on 29th October, 2019 and the Appellant’s reply brief of argument filed on 8th July, 2020 and deemed filed same day representing his arguments for the appeal. He urged the Court to allow the appeal.
Similarly, learned counsel for the Respondent, B. Joel Ogundadegbe, Esq. adopted the Respondent’s brief of argument, filed on 9th January, 2020 but deemed properly filed on 8th July, 2020 and the Respondent’s brief of argument in support of the Respondent’s notice filed on 9th January, 2020 but deemed properly filed on 8th July, 2020 as his reaction against the appeal. He urged the Court to dismiss the appeal and vary the Judgment of the trial Court to encapsulate the forfeiture of Exhibit D.
In the Appellant’s brief of argument, he nominated four (4) Issues for determination to wit:
1. Whether the lower Court was not wrong to have admitted and relied on Exhibit E (confessional statement of the Appellant) in view of the evidence of the PW2 as to how it was obtained and the allegation of its backdating established before the lower Court.
2. Whether the lower Court was wrong not to have refused to uphold the alibi raised by the Appellant in view of the fact that it was not investigated by the Police.
3. Whether the Respondent established the guilt of the accused person beyond reasonable doubt.
4. Whether, in view of the evidence that there are other extra judicial statements of the Appellants in existence which the Prosecution refused to produce at the trial, it can be said that the trial of the Appellant was fair.
The Respondent in its brief of argument crafted three issues for determination viz:
- Whether or not the trial Court’s reliance on Exhibit E, the Appellant’s confessional statement, which was admitted after a successful trial within trial was proper and whether or not the admission of same following a ruling after the conduct of a trial within trial can be rightly challenged on appeal by the Appellant as captured in issue one of the Appellant’s brief without the leave of Court first sought and obtained to appeal the interlocutory ruling delivered by the trial Court on the trial within trial conducted by it.
2. Whether or not from the totality of evidence before it, the trial Court rightly held that the prosecution proved the case of Aiding and Abetting as well as Kidnapping against the Appellant beyond reasonable doubt.
3. Whether or not there are any material errors in the case of the prosecution before the trial Court sufficient enough to absolve the Appellant of criminal liability.
I will decide the appeal on the issues formulated by the Appellant.
ARGUMENT ON THE ISSUES
ISSUE ONE
Learned counsel for the Appellant submitted that the trial Court was wrong to have admitted in evidence and placed heavy reliance on Exhibit E in the light of evidence on how it was obtained. That PW2 in his examination in chief testified that he cross-examined or interrogated the Appellant with his former statement made at Ore Police Station and based on this, the Appellant confessed to him that he partook in the case of kidnapping.
Learned counsel submitted that the two methods used, cross-examination (question and answer) and interrogation adopted by PW2 in obtaining the Appellant’s Statement (Exhibit E) have been condemned to be not just improper but legally reproachable by the Supreme Court. He cited the cases of NAMSOH V. THE STATE (1993) LPELR 1937 (SC), THE STATE V. OLASHEHU SALAWU (2011) LPELR 8252 (e), ONWUKA V. OWOLEWA (2001) 7 NWLR (Pt. 713) 695, for the view.
Learned counsel submitted that although Exhibit E survived the trial within trial and was admitted as Exhibit, its admission cannot obliterate the fact that it is still inadmissible. He argued that Exhibit E was also backdated to look as if it were made before the Benin trip by the I.P.O. and that the Appellant’s statement at Ore Police Station was deliberately kept out of the way of the Court by the prosecution for their own mischief. That where a document is admitted during a trial, the trial Judge has the power, at the stage of judgment, to expunge the document where circumstances making its admissibility improper became manifest. He cited EKPO V. UKAONU (2013) LPELR 22535 (CA) for the point.
He urged the Court to hold that Exhibit E was not made voluntarily and to expunge same having been wrongly admitted in evidence and resolve this issue in favour of the Appellant.
On the other hand, learned counsel for the Respondent submitted that the trial Court’s reliance on Exhibit E, the Appellant’s confessional statement which was admitted after a trial within trial cannot be rightly and properly challenged by the Appellant without the leave of Court first sought and obtained, being an interlocutory ruling in respect of trial within trial. He conceded that a party can include an appeal against a ruling in an interlocutory when he comes to appeal against the final judgment. But in order to merge the two appeals, the party has to obtain leave to appeal out of time against the interlocutory ruling.
He cited OGIGIE V. OBIYAN (1997) 10 SCNJ, NLC V. PACIFIC MERCHANT BANK LTD (2012) ALL FWLR (PT. 640) 1211 for the view.
Counsel submitted that since the order made by the lower Court admitting Exhibit E, evinces an interlocutory decision, the Appellant is compelled by law to seek and obtain leave of Court before appealing against it. That where the leave of Court is required before doing an act and it is not obtained, the act is rendered null and void. He reasoned that the Appellant’s failure to seek and obtain leave rendered its ground one of the notice of appeal incompetent and deserves to be jettisoned out of this Court for want of competence. He cited OTU V. ACB INT’L BANK LTD (2008) 3 NWLR (PT. 1073) 173; AGIP (NIG) LTD V. AGIP PETRO INT’L (2010) NWLR (PT. 1187) 348; NWAOLISAH V. NWABUFOH (2011) 14 NWLR (PT 1268) 600 for the point.
Learned counsel submitted that Exhibit E, the extra judicial statement of the Appellant was rightly and properly admitted and relied on by the trial Court. That the non-compliance with the provision of the Judges Rules by the police in taking statements would not vitiate or affect the admissibility of the said extra judicial statement. He cited OJEGELE V. THE STATE (1988) NWLR (pt. 81) 414, IGAGO V. STATE (1999) 12 SCNJ 140 for the view.
He submitted that contrary to the contention of the Appellant, the mere fact that PW2 testified that Exhibit E was a product of cross-examination, interrogation or questions and answers does not alone and without more, make the statement inadmissible, unless it is shown that the taking of the statement in that form cast doubt on its voluntariness which is not the issue in this case. He referred to Section 31 of the Evidence Act 2011.
Learned counsel contended that it is not enough for the defendant to assert that the statement was a product of questions and answers without demolishing the possibility of the permissibility of the said question in law by virtue of the prosecution. He cited JIMOH SALAWU V THE STATE (2011) LPELR 9351 (SC) for the view. He urged the Court to resolve this issue in favour of the Respondent.
In his reply brief, learned counsel for the Appellant submitted that decision consequent upon a specially designed trial for a specific purpose as a trial within trial qualify as a final decision against which an appeal can lie without leave of Court. That to argue that the admission of Exhibit E was an interlocutory decision requiring leave to validate an appeal, means every decision of a Court during trial on admission of documents are interlocutory decisions. That by virtue of Order 4 Rule 5 of the Court of Appeal 2016, the powers of Court in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal. He cited IWEKA V. SCOA (NIG) LTD (2000) LPELR 1563 (SC), PATANI & ORS V. IBEDANGHA & ORS (2018) LPELR 44789 (CA).
He submitted that the end result of trial within trial is the decision or order to admit or reject the statement which is an interlocutory decision and appeal against same may be included in the appeal against the trial Court’s decision in the matter. He cited ASIMI V. STATE (2016) LPELR 40436 (SC), JOHN IDAGU V. THE STATE (2018) LPELR 44343 (SC) for the view.
He urged the Court to discountenance the Respondent’s position on this point and grant the relief sought by the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
RESOLUTION
Learned counsel for the Appellant picked hole on the lower Court’s decision that the trial Court was wrong to have admitted and place reliance on Exhibit E in the light of how it was obtained. He reasoned that although the Exhibit E survived the trial within trial, it is still inadmissible having been not made voluntary. The Respondent had the view that the trial Court’s reliance on Exhibit E was proper, the Exhibit was admitted after a trial within trial and the lower Court order admitting Exhibit E evinces an interlocutory decision which the Appellant must seek and obtain leave before he can appeal against it.
Let me start by saying that a trial within trial is an interlocutory decision and appeal against it may be included in the appeal against the trial Court’s decision in the matter. See ASIMI V STATE (2016) LPELR 40436 (SC). The Appellant in this regard did not need any leave in order to make the Ruling as one of the grounds of appeal. I so hold.
The Appellant’s confessional statement, Exhibit E was admitted after trial within trial was conducted. At the trial, the Appellant objected to the admissibility of the confessional statement to the police when the prosecution sought to tender it on the ground that it had not been made voluntarily, it is trite that where an accused person expresses his ordeal in the process of obtaining the statement accredited to him that it was obtained by force, tricks, undue influence or any other nonrecognisable way, there would be need for a trial within trial. But where an accused retracted the confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of trial within trial is not applicable. See IFARAMOYE V. THE STATE (2017) LPELR 42031 (SC), IDAGU V. STATE (2018) LPELR 44343 (SC). The purpose of trial within trial is to determine whether or not the confession was voluntary, it only tests the voluntariness of a confessional statement not what value or weight to be attached to the evidence. See IDAGU (supra).
Where as in the instant case, the prosecution seeks to tender the confessional statement and an accused person raises an objection on the ground that it was obtained under duress, torture and not voluntarily made, what is in issue is the admissibility in evidence of the confession and thus calls for a trial within trial.
A trial within trial was conducted and in its ruling after the trial within trial, the trial Court admitted the confessional statement as Exhibit E. The confessional statement of the Appellant is a free and voluntary confession by the Appellant in view of the fact that a trial within trial was conducted in which it was admitted as an Exhibit. I so hold. The confessional statement was properly and correctly admitted in exhibit as Exhibit E.
A Court may convict an accused person on his confessional statement alone once the Court is satisfied that it is a free and voluntary confession of guilt. See STATE V. ISAH & ORS (2012) 7 SC (PT. III) P. 93.
Learned counsel for the Appellant decried the manner the Appellant’s statement was recorded (question and answer session). An alleged confessional statement made by an accused person to the police only becomes objectionable and inadmissible in evidence if the making of the confession is proved to have been prompted by any inducement, threat or promise by the police and sufficient to make the accused believe that he will gain an advantage or avoid an evil. Judges Rules are rules of caution, the non-compliance of which is not necessarily fatal to the admissibility of the statement. See IGAGO V. STATE (1999) LPELR 1442 (SC). I resolve this issue in favour of the Respondent.
ISSUE TWO
Learned counsel for the Appellant submitted that it is clear from the facts of this case that the police did not arrest the Appellant either at the scene of the alleged offence or at any point as a result of an independent investigation. That the Appellant told both the police and the Court that he was robbed of his car around Omotosho along Benin Expressway on his way back from Benin City at about 6:30p.m on 6/12/2012. He argued that there was no evidence of investigation to confirm whether or not there was a robbery. That the police only took the Appellant to Benin to make a call but did not deem it fit to investigate the alibi raised by the Appellant.
Counsel submitted that once an alibi is raised, the police must investigate same and failure to do so should be resolved in favour of the accused. He cited NDUKWE V. THE STATE (2009) LPELR 1979 (SC). Counsel contended that the failure of the police to investigate the alibi raised by the Appellant and his allegation that he was robbed of Exhibit D on the day of the alleged incident creates doubt as to whether he participated in the alleged offence and whether he was robbed or not and makes the alleged confession, Exhibit E doubtful. That the failure of the police to investigate the alibi at the earliest opportunity has occasioned a miscarriage of justice to the Appellant and urged the Court to so hold and resolve this issue in favour of the Appellant.
Learned counsel for the Respondent submitted via issue three that alibi is a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else at a place where most probably there were people who could testify that at the time of the alleged incidence, he was not at the scene. That an accused cannot raise the defence of alibi at large, he must give adequate particulars of his whereabout at the time of the commission of the offence to assist the police to make an investigation of the alibi. He cited SOWEMIMO V. THE STATE (2004) 11 NWLR (PT. 885) 515, NSOFOR V. STATE (2002) 10 NWLR (PT. 775) 774. He submitted that the Appellant under cross examination confirmed that he never gave the names and addresses of the details of his alibi to the police. He did not give the name of person(s) he went to distribute clothes to in Benin. That the contention of the Appellant with regard to the failure of the police to investigate the alibi is bound to fail as the alibi was actually investigated and found to be false. He referred to the evidence of PW2 at page of the record. He urged the Court to resolve this issue in favour of the Respondent.
RESOLUTION
The fulcrum of the Appellant on the issue is that the failure of the police to investigate the alibi raised by the Appellant creates doubt as to whether he participated in the alleged offence and the lower Court erred in that it did not consider the defence. Alibi simply means elsewhere. Raising the defence of alibi, the accused claimed that he was in a place other than the scene of crime, therefore, he was not the one who committed the offence alleged. See OLATINWO V. STATE (2013) LPELR 1997 9 (SC); UDE V. STATE (2013) LPELR 40441 (SC); AGU V. STATE (2017) LPELR 41664 (SC); IKUMONIHAN V. STATE (2018) LPELR 44362 (SC). Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. The claim of the accused that he was not present at the scene of the crime, as in the instant case, is not enough to raise the defence of alibi, he must give particulars of his whereabout at the particular time. Indeed, the onus is always on the accused person to provide the police with information, as to where he was when the crime was committed, with whom he was and what he was doing thereat. It is only when this information is supplied by the accused person that the burden shifts on the prosecution to investigate the alibi put up.
In this matter, the Appellant did not put up and or give this information to the police to investigate the alibi, he only stated that he travelled to Benin to distribute clothes for his father’s burial.
The Appellant as DW1 under cross examination stated thus: “… in my statement to police, I did not tell them the names of my relatives in Benin. I did not give to the police, the names of the people I went to distribute clothes to. My relatives in Benin are no longer alive as the two of them died during my father’s burial in an accident …”
PW3 the investigation police officer under cross examination by the Appellant’s Counsel stated thus:
“…it was the 1st accused that took us to Benin. When we got to Benin, the 1st accused called the 2nd accused replied him that why did he not call him before that he was coming to Benin because at that time the 2nd Defendant said he was in Abuja. He put the phone on speaker so we could hear the conversation… We went to Benin to investigate the fact that 1st accused said he went to Benin to distribute Ankara for the burial of his late father and was robbed on his way back… We went to Benin to investigate and we found that it was a lie. He made another statement at the end to the effect that he participated in the crime…”
The police cannot go about searching for him (the Appellant) with whom he was and where he was at Benin. The Appellant’s voluntary statement Exhibit E and the prosecution evidence fixed the Appellant at the locus criminis. Once an accused person is pinned down to the locus delicti of an offence, as in the instant case, a defence of alibi ceases to avail such an accused person. See AFOLABI V. STATE (2010) 16 NWLR (PT. 1220) 584, SUNDAY V. STATE (2010) 18 NWLR (PT. 1221) 223.
It is my view, there is cogent evidence which nullified the plea of alibi put up by the Appellant and therefore the plea collapsed. Issue two is resolved against the Appellant.
ISSUES THREE AND FOUR
Learned counsel submitted that the Respondent failed woefully to establish the guilt of the Appellant. That apart from the so called Appellant’s confessional statement, there is nothing to link the Appellant with the offence charged. He contended that the learned trial Judge completely relied on Exhibit E to convict the Appellant without any corroborative evidence. That where a confessional statement is denied by the alleged maker, the law places a burden on both the Court and the prosecution to corroborate the content of the alleged confession by extrinsic evidence before the Court can safely convict on it.
The failure of the Respondent to lead any evidence in proof of the offence outside the confession is a violation of law. That the lower Court did not only deviate from this principles, but it went further to hold that it is not necessary for circumstantial evidence to corroborate the content of the alleged confession. He cited the case of BATURE V. THE STATE (1994) LPELR 760 (SC).
Learned counsel reasoned that where there is retraction, it is not enough for the Court to convict on a confessional statement alone, the Respondent failed to establish any evidence linking the Appellant with the offence outside his alleged confession. He contended that the failure of the prosecution to tender the other statement of the accused person and the extract from Omotosho Police Station crime diary renders the trial unfair and constitute the basis for the lower Court to insist on corroborative evidence on Exhibit E. He urged the Court to so hold and resolve this issue in favour of the Appellant.
Learned Counsel for the Respondent submitted that the charge of Aiding and Abetting Kidnapping as well as kidnapping was made out against the Appellant beyond reasonable doubt.
He defined kidnapping and submitted that from the provision of the Ondo State Anti-Kidnapping and Anti-Abduction Law, 2012, to establish the charge of kidnapping, the prosecution is required to prove beyond reasonable doubt:
(1) That the victim was seized and taken away by the accused person.
(2) The victim was taken away against his consent.
(3) That the victim was taken away without a lawful excuse.
(4) That the defendant has the intention to hold the victim for ransom, or commit felony, or as a shield or hostage, or to facilitate the commission of a felony, or to interfere with the performance of any Governmental or political function, or to interfere with the person’s business or the business of another.
He referred to the cases of THE STATE V. OGBUBUNJO (2001) ALL FWLR (PT. 37) 1097; OKASHETU V. THE STATE (2016) ALL FWLR (PT. 861) 1262; EBENEZER V. STATE (2014) LPELR 23791 (CA) for the point.
Learned counsel for the Respondent contended that the prosecution proved its case beyond reasonable doubt by virtue of the evidence of PW1, PW2 and Exhibit E which was admitted after trial within trial. That the duty of prosecution in criminal case is to prove the guilt of an accused person beyond reasonable doubt and it may be proved by either confessional statement, circumstantial evidence or direct evidence. He cited FATILEWA V. STATE (2007) ACLR 630 for the view.
He reasoned that, in proof of the first ingredient, the prosecution proved that there was a kidnap incident perpetrated on PW1 at Ore on 6th day of December, 2012 and that the said kidnap was failed by people in the neighbourhood. He referred and quoted the testimonies of PW1, PW2 and findings of the lower Court in that regard and urged the Court to so hold.
On the ingredient, counsel submitted that the evidence of the prosecution witnesses are united and firm in this regard, he also quoted the testimonies of the prosecution witnesses and submitted that the only conclusion that can be deduced therefrom is that the trial Court rightly convicted the Appellant. He argued that the fact that an accused person retracts his confession does not mean that the Court cannot act on it and convict accordingly. He cited NKWUDU EDAMINE V. THE STATE (1996) 3 NWLR (PT. 438) 530, DAPERE GIRA V. THE STATE (1996) 4 NWLR (PT. 443) 375.
He submitted that the rule governing a trial within trial operates only in cases questioning the voluntariness or otherwise of confession, but it does not apply to question of weight to be attached to admissible evidence admitted. He cited the case of STATE V. GWANGWAN (2015) EJSC (VOL. 21) 29.
That from the totality of the evidence on record, it is clear that the Appellant had facilitated, encouraged, abetted and aided the kidnap of PW1. That Exhibit E described the role of the Appellant. He urged the Court to so hold and resolve this issues in favour of the Respondent.
RESOLUTION OF ISSUE THREE AND FOUR
The Appellant castigated the lower Court’s decision on the ground that the lower Court relied on Exhibit E to convict the Appellant without corroborative evidence. He reasoned that where a confessional statement is denied by the alleged maker, the law places burden on both the prosecution and the Court to corroborate the confession by extrinsic evidence before the Court can safely convict on it. That where there is retraction, it is not enough for the Court to convict on a confessional statement alone.
I had already in treating the question of admissibility and the reliance of the lower Court on Exhibit E under issue one (1) above which I found to be proper. I adopt my resolution in resolving these issues.
Learned counsel for the Appellant’s challenge of the decision, conviction and sentence by the trial Court, that it was erroneously done, the confessional statement not having been subjected to the veracity test. This contention cannot be sustained, this is because, an accused person can be convicted on his confessional statement in which he admitted the commission of the crime charged. See DOGO V. THE STATE (2013) 3 SCNJ 144 @ 146.
In the instant case, the Appellant’s voluntary confession which is direct, positive having been admitted after trial within trial is sufficient to warrant conviction even without any corroborative evidence, so long as the Court is satisfied of the truth of the confession. See IBEME V. STATE (2013) LPELR 20138 (SC); BOUWOR V. STATE (2016) LPELR 26054 (SC); KAMILA V. STATE (2018) LPELR 43603 (SC); ESSIEN V. STATE (2018) 6 NWLR (PT. 1614) 167.
I cannot agree with the learned counsel for the Appellant that there is no evidence of a link between the Appellant and the offence alleged. The Appellant specifically acknowledged in Exhibit E, the role he played in the crime. The relevant portion of the Appellant’s statement as the first accused person is as follows:-
“… I was in my office at 3 Old Lagos Road, Obalende, Ijebu Ode. My friend one Bimbo Osiyemi, Sunday and Balogun came to me that they have one business to carry out. It was Sunday that said they knew one man whom I later knew as Alhaji Adeyinka A.K.A. Ade bless that they wanted to kidnap the man at Ore in Ondo State. They said they will use my Honda Accord car… so on the 6th December, 2012 I Kajopelaye Samson and Bimbo, Sunday with one Balogun left Ijebu Ode around 2 O’clock p.m.
Before we left Ijebu Ode, Sunday told us that two boys will come from Imo State to join us for the operation. I am the one that drove my car to Omotosho before I handed over the vehicle to Balogun who now went with Sunday to Ore for the operation. It was Sunday that told us about the Alhaji Adeyinka that we wanted to kidnap… around 6:00 – 6:30pm the said Sunday called me that the operation is failed, that all their effort to kidnap the victim proved abortive and the people in that street have barricaded all the roads so they all ran away… they adviced me to go to Omotosho Police Station and report a case of car snatching that some armed men numbering four robbed and snatched my Honda Accord car… I confessed to the police or my I.P.O how we plan and carry out the operation. I did not go to Benin, Edo State. My believe was that if we succeed, I will be able to get money for my father’s burial… I only took part from Ore Ijebu-Ode to Omotosho area but I was not at the scene at Ore…”
From the confessional statement, Exhibit E admitted after trial within trial and the evidence adduced by the prosecution, the trial Court was right to have convicted and sentenced the Appellant. Issues three and four are resolved against the Appellant.
In its brief in respect of the Respondent’s notice, the learned counsel for the Respondent identified a sole issue for determination viz:
Whether or not this Honourable Court can order the forfeiture of Exhibit D, the Honda Accord vehicle with Registration No. FK 172 AV, vehicle used in the commission of the alleged act of kidnapping and which the trial Court omitted to encapsulate in its judgment following the conviction of the Defendant/Appellant for the offence of Aiding and abetting and kidnapping respectively.
Learned counsel submitted that the omission of the trial Court to make an order for forfeiture of the vehicle used in the commission of the crime in favour of the state was an omission which the trial Court never averted its mind and it became necessary for the just determination of the case. That the office of the Attorney General of Ondo State has a constitutional duty to ensure that the said property is salvaged for the use of the state as the Chief Law of Officer of the State.
Counsel submitted that a respondent’s notice is a process filed by a Respondent who agrees with the judgment but wants the judgment varied or affirmed on other grounds. He cited EDICOMSA INT’L INC. V. C.I.E. LTD (2007) ALL FWLR (PT. 357) 990, IBE V. ONUORAH (1999) 14 NWLR (PT. 638) 3411 for the view.
That this Court is saddled with the powers to order such forfeiture with respect to property used in the commission of crime. He cited ADETOKUNBO OGUNLANA & ORS V. THE STATE (1995) LPELR 2341 (SC).
He urged the Court to vary the judgment of the trial Court to encapsulate the forfeiture of Exhibit D in favour of the State and resolve this issue in favour of the Respondent.
The word forfeiture simply means the divestiture of property without compensation. The lost of right, privilege or property because of a crime, breach of obligation or neglect of duty. See Black’s Law Dictionary. Ninth Edition page 722.
A Respondent who has issue against the judgment in his favour can raise it by way of Cross Appeal or Respondent’s notice where the Respondent supports the judgment but wants it affirmed on ground other than those relied upon by the Court, he must file a Respondent’s notice. See NSIRIM V. AMADI (2016) LPELR 26053 (SC); ZAKIRAI V. MUHAMMED & ORS (2017) LPELR 42349 (SC).
A Respondent’s notice is only available to vary and retain the judgment and not its reversal.
The Respondent herein filed the Respondent’s notice asking the Court to vary to encapsulate the order of forfeiture of Exhibit D, the vehicle used in the crime. From the totality of the evidence before the lower Court, Exhibit D was used in the commission of the crime, the learned trial Judge in his judgment ought to have made order for forfeiture of the vehicle. In the circumstances, I hereby order that the vehicle used in the crime, Exhibit D, be forfeited to the state.
The sole issue for determination in the Respondent’s notice succeeds.
In the final result and for all the reasons I have given above, and having resolved the four issues in this appeal against the Appellant and the sole issue in the Respondent’s notice in favour of the Respondent, the appeal fails and is hereby dismissed. The conviction and sentence of the Appellant is hereby affirmed.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft judgment, in this appeal as well as the Respondent’s notice, just delivered by my learned Brother, Ridwan M. Abdullahi, JCA.
I agree with His Lordship’s line of reasoning and the conclusions reached by him in the said leading judgment that while the appeal is devoid of merits, the Respondent’s notice is imbued with merits. I accordingly dismiss the appeal and abide by all the consequential orders made therein.
PATRICIA AJUMA MAHMOUD, J.C.A.: I have read the draft judgment of my learned brother, Ridwan M. Abdullahi, JCA, just delivered. I concur with his consideration, reasoning and conclusions reached in dismissing the appeal and varying the judgment of the trial Court by granting the order of forfeiture of the Honda Accord vehicle used in the commission of the crime pursuant to Section 299(1) of the Administration of Criminal Justice Law (ACJL) of Ondo State 2015.
This appeal was determined on the four issues raised for determination by the Appellant. For the purposes of my contribution which I will only reproduce issue 2:
“Whether the lower Court was wrong not to have refused to uphold the alibi raised by the appellant in view of the fact that it was not investigated by the police.”
‘Alibi’, a latin expression means “I was elsewhere.” That is that the accused was somewhere other than where the prosecution alleged that he was at the time of the commission of the offence: AIGUOREGHIAN V STATE (2004) 3 NWLR, PT 860, 367.
The contention of the appellant among others is that his defence of alibi was not investigated. The settled position of the law is that it is not enough for an accused to raise the defence of alibi at large. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi: BALOGUN V AG, OGUN STATE (2002) 6 NWLR, PT 763, 512 and NSOFOR V. STATE (2002) 10 NWLR PT 775, 274.
The apex Court in OCHEMAJE V THE STATE (2008) 15 NWLR, PT 1109, 57 AT 90, PARAS C & F puts it very graphically thus:
“A defence of alibi to be worthy of investigation should be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time … It is not the law that the police should be involved in a wild goose chase for the whereabouts of an accused person at the time the crime was committed. The accused must give specific particulars of where he was at the material time to enable the police move straight to that place to carry out the investigation required by law.”
The so called alibi raised by the appellant was that he was in Benin distributing clothes for his father’s burial.
There were no sufficient particulars give to solidify and sustain the defence of alibi. It is only after the accused has given specific details that the defence of alibi can be said to be properly pleaded to warrant investigation by the prosecution. The defence of alibi in the instant case was therefore not properly raised to invoke any investigation by the prosecution.
Be that as it may, the law is trite that where an accused person is unequivocally pinned to the locus in quo as the one committing the offence, the defence of alibi is destroyed. Exhibit E the confessional statement unequivocally identified the appellant and fixed him to the scene of crime as one of the persons who kidnapped the victim, Alhaji Adeyinka Yusuf A. K. A. Ade Bless who committed the offence as alleged. See the case of UDO V STATE (2018) LPELR – 43707 (SC) which followed and applied the case of SOWEMIMO V STATE (2004) 3 NWLR, PT 885, 515. See also ELEGALAM V THE STATE (2020) LPELR-49829 (CA).
For this reason and the fuller reasons given in the lead judgment, I too dismiss this appeal and affirm the conviction and sentence of the appellant by the trial Court.
Appearances:
O. Otayemi with him P. O Jemije Esq. For Appellant(s)
Joel Ogundadegbe For Respondent(s)
