SIMEON LALAPU v. COMMISSIONER OF POLICE (2019)

SIMEON LALAPU v. COMMISSIONER OF POLICE

(2019) LCN/4842(SC)

In The Supreme Court of Nigeria

On Thursday, the 21st day of February, 2019

SC.815/2015

RATIO

WHAT A PRELIMINARY OBJECTION UNDER ORDER 2 RULE 9 OF THE SUPREME COURT RULES ENTAILS

WHETHER A PRELIMINARY CAN BE FILED AGAINST THE COMPETENCE OF SOME GROUNDS OF APPEA

In S.P.D.C.N Ltd vs Amadi (2011) 14 NWLR (Pt. 1266) 158 at 183 paras D – E, this Court, per Rhodes-Vivour, JSC held:- “Preliminary objection are filed against the hearing of appeals and so once it succeeds, the appeal no longer exists. All too often, we see preliminary objections filed against one or more grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a notice of motion seeking to strike out the defective grounds of appeal should be filed.” In the instant preliminary objection, learned counsel for the 1st Respondent argued extensively that the 1st and 2nd grounds in the proposed amended notice of appeal and issues i – iii in the Appellant’s/Applicant’s brief of argument are entirely new grounds on issues which were not raised at the Court below as such the Appellant cannot invoke the provisions of Section 26 of the Supreme Court Act to aid his application. I am surprised at the nature of this preliminary objection and what it intends to achieve. The proposed notice of appeal remains a proposal which is in no way a process in this appeal. Even if the Respondent’s preliminary objection succeeds, it will not affect the hearing of this appeal as there are other grounds that can sustain the appeal. It is therefore not an appropriate process to be issued against the competence of some grounds of appeal. See NEPA vs Ango (2001) 15 NWLR (Pt. 737) 627; Cont Res (Nig) Ltd vs UBA Plc (2011) 16 NWLR (Pt. 1274) 592; Garba vs Mohammed (2016) 16 NWLR (Pt. 1537) 114 at 145 paras. E F; Abdulsamad vs Abdulahi (2015) ALL FWLR (Pt. 798) 916 at 943 paras C G. PER PAUL ADAMU GALUMJE, J.S.C.

IMPORTANCE OF THE ISSUES FOR DETERMINATION ARISING FROM THE GROUNDS OR ANY OF THE GROUNDS OF APPEAL

Now appeals before this Court are heard on the basis of the issues formulated by parties. These issues must be formulated from grounds of appeal. Where those issues do not arise from the grounds or any of the grounds of appeal, they will be ignored. See Obiekwe vs Obi (2005) 10 NWLR (Pt. 932) 66; Sanusi vs Ayoola (1992) 9 NWLR (Pt. 265) 275. PER PAUL ADAMU GALUMJE, J.S.C.

EFFECT OF A GROUND OF APPEAL FROM WHICH NO ISSUES HAVE BEEN DISTILLED FROM

The 1st and 2nd grounds of appeal are abandoned, since no issues have been formulated from them. They are hereby struck out in line with the decision of this Court in Adelekan vs Ecu-Line NV (2006) ALL FWLR (Pt. 321) 1213, where Onnoghen JSC (as he then was) held:-
“It is settled law that where no issue is formulated from any ground of appeal, the said ground is deemed abandoned. The same principle of law applies to a situation where it is found that issues formulated by an appellant do not relate to the grounds of appeal. The said grounds must be deemed abandoned since no issues have been distilled from them and are therefore liable to be struck out.” PER PAUL ADAMU GALUMJE, J.S.C.

ATTITUDE OF THE COURTS WHEN FACED WITH THE ISSUE OF CONTRADICTION IN THE EVIDENCE OF A WITNESS WITH HIS EARLIER EXTRA-JUDICIAL STATEMENT

The law on the issue of contradiction in the evidence of a witness with his earlier extra-judicial statement is quite clear, and that is, where a witness’s real statement in Court contradicts or is inconsistent with his previous extra-judicial statement, the Court should not only regard the sworn oral testimony as being unreliable, but also the previous statement, whether sworn or unsworn as not constituting evidence upon which it can act. Consequently, neither of the two versions of the story is worthy of any credit and therefore incapable of establishing the truth. See R vs Ukpong (1961) ALL NLR 25, Asanya vs The State (1991) 3 NWLR (Pt. 180) 422; Oladejo vs The State (1987) 3 NWLR (Pt. 61) 419; Umani vs The State (1988) 1 NWLR (Pt. 70) 274; Esangbedo vs The State (1989) 4 NWLR (Pt. 113) 57. PER PAUL ADAMU GALUMJE, J.S.C.

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

EJEMBI EKO Justice of The Supreme Court of Nigeria

PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

SIMEON LALAPU Appellant(s)

AND

COMMISSIONER OF POLICE Respondent(s)

PAUL ADAMU GALUMJE, J.S.C. (Delivering the Leading Judgment): The Appellant herein was arraigned before the High Court of Bayelsa State on a two counts charge of conspiracy to kidnap and kidnapping under Section 444(a) and 291(b) of the Criminal Code Law Cap C14, Laws of Bayelsa State 2006. When the charge was read and explained to the Appellant, he pleaded not guilty. In order to prove its case, the prosecution called three witnesses and tendered in evidence, 1. Call log from airtel, 2. Attestation form, 3. Extra-judicial statement of PW2, the victim of the alleged offence, 4. Extra-judicial statement of the Appellant. They were admitted in evidence and marked Exhibits A, B, C and D respectively. The wife of the Appellant testified as DW1 and the Appellant testified as DW2. Learned counsel for the respective parties addressed the Court. In a reserved and considered judgment delivered on the 9th May, 2014, Aganaba J. found the Appellant guilty as charged and sentenced him to five years imprisonment for the 1st count of the charge, and five years imprisonment for the second count. The sentences were ordered to

run concurrently.

Appellant’s appeal to the lower Court against the decision of the trial Court was dismissed on the 9th July, 2015. The instant appeal is against the decision of the Court of Appeal. The Appellant’s amended notice of appeal, filed on the 29th December, 2015 contains seven grounds of appeal. These grounds without their particulars read as follows:-
1. The Court below erred in upholding my conviction and sentencing when the police had no reasonable ground or reason to arrest me.
2. The Court below and the trial Court erred in law in acting on Exhibit C as a confessional statement as same was obtain under duress.
3. The lower Court erred in law when it stated that “the contradiction between the oral evidence in Court of PW2 and his extra-judicial statement Exhibit C was explained by PW2 who insisted that he never told the police he could not identify the police who kidnapped him
4. The lower Court erred in law when it stated that “the contradiction or inconsistency in the evidence of PW2 and his extra-Judicial statement Exhibit C has not casted any reasonable doubt upon the guilt of the Appellant.
5. The lower Court erred in law when it stated that “the contradiction or inconsistency in the evidence of PW2 and his extra judicial statement Exhibit C has not casted any reasonable doubt upon the guilt of the Appellant. The Court below erred in upholding the conviction and sentence of the Appellant based on his purported

confessional statement and the evidence of PW2 as the Respondent did not prove its case beyond reasonable doubt.
6. The trial Court was wrong in disregarding the need for the police to have carried out an identification parade before the Appellant was identified by PW2.
7. The decision of the lower Court is unreasonable, unwarranted and cannot be supported having regard to the evidence before the Court.

Parties filed and exchanged briefs of argument. At pages 2 – 3 of the Appellant’s amended brief of argument filed on the 26th October, 2017, five issues are formulated for the determination of this appeal. They are reproduced hereunder as follows:-
1. Whether from the investigation by the police of the case of the kidnapping of PW2 there was any evidence linking the Appellant to have warranted his being arrested in the first place.
2. If the answer to the above question is no; whether the purported confessional statement extracted from the Appellant after his being shot was given voluntarily.
3. Whether the contradiction between the oral evidence of PW2 and his extra judicial statement as contained in Exhibit C

was a material contradiction and whether same was explained by PW2.
4. Whether the prosecution proved its case beyond reasonable doubt to have warranted the Court below upholding the conviction and sentencing of the Appellant by the trial Court.
5. Whether based on the extra judicial statement of PW2 that he cannot identify his kidnappers there was the need for the police to have carried out an identification parade.

Mr Lawrence S. Okoko-Jaja, learned counsel for the Respondent argued a preliminary objection he issued against the Appellant’s application for leave to raise and argue fresh issues which were not canvassed at the lower Court, at pages 2 – 6 of the Respondent’s brief of argument filed on 30th August, 2016. Thereafter learned counsel formulated one issue only for the determination of this appeal as follows:-
“Whether the prosecution proved its case against the Appellant beyond reasonable doubt; taking into consideration the fact that the police did not deem it necessary to conduct an identification parade.”

Mr. U. Saiyou, learned counsel for the Appellant filed a reply brief on the 20th February, 2017.

A preliminary objection under Order 2 Rule 9 of the Supreme Court Rules is an objection which is initiated at the earliest opportunity against the hearing of an appeal. If it is successful, it brings the appeal to an end. For avoidance of unnecessary dissipation of energy, such preliminary objection is always considered before taking any steps in the appeal. Learned counsel formulated one issue for determination of the preliminary objection and it reads thus:-
“Whether leave to raise fresh grounds and argue new issues for determination by the Appellant should be granted by this Court as a matter of cause (sic, Course). If the answer is in the negative, have (sic) the Appellant met the condition for the grant of the leave sought.”
From the sole issue formulated for determination of this preliminary objection, it is so clear that the objection is not against the hearing of this appeal as provided for under Order 2 Rule 9(1) of the Supreme Court Rules which provides as follows:-
“A respondent intending to rely upon a

preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the Registrar within the same time.” (underling is mine).
In S.P.D.C.N Ltd vs Amadi (2011) 14 NWLR (Pt. 1266) 158 at 183 paras D – E, this Court, per Rhodes-Vivour, JSC held:-
“Preliminary objection are filed against the hearing of appeals and so once it succeeds, the appeal no longer exists. All too often, we see preliminary objections filed against one or more grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a notice of motion seeking to strike out the defective grounds of appeal should be filed.”
In the instant preliminary objection, learned counsel for the 1st Respondent argued extensively that the 1st and 2nd grounds in the proposed amended notice of appeal and issues i – iii in the Appellant’s/Applicant’s brief of argument are entirely new grounds on issues which were not raised at the Court below as such the Appellant cannot invoke the provisions of Section 26 of the Supreme Court Act

to aid his application. I am surprised at the nature of this preliminary objection and what it intends to achieve. The proposed notice of appeal remains a proposal which is in no way a process in this appeal. Even if the Respondent’s preliminary objection succeeds, it will not affect the hearing of this appeal as there are other grounds that can sustain the appeal. It is therefore not an appropriate process to be issued against the competence of some grounds of appeal. See NEPA vs Ango (2001) 15 NWLR (Pt. 737) 627; Cont Res (Nig) Ltd vs UBA Plc (2011) 16 NWLR (Pt. 1274) 592; Garba vs Mohammed (2016) 16 NWLR (Pt. 1537) 114 at 145 paras. E F; Abdulsamad vs Abdulahi (2015) ALL FWLR (Pt. 798) 916 at 943 paras C G. I am therefore in total agreement with learned counsel for the Appellant that the preliminary objection herein is a wasted effort and therefore inappropriate in the circumstance of this appeal. It is incompetent and same is struck out.

For the main appeal, I have deliberately set out the grounds of appeal and the issues distilled therefrom by the Appellant

to show that certain grounds of appeal have attacked the decision of the trial Court only and some issues have not arisen from the grounds of appeal. I will proceed to demonstrate that anon. The 6th ground of appeal is not directed at the decision of the Court of Appeal. Even at the risk of repetition, I reproduce the said ground of appeal as follows:-
“The trial Court was wrong in disregarding the need for the police to have carried out an identification parade before the Appellant was identified by PW2.”
Section 233 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that the Supreme Court shall have jurisdiction to the exclusion of any other Court of Law in Nigeria to hear and determine appeals from the Court of Appeal. Section 240 of the same Constitution provides that the Court of Appeal shall have jurisdiction to the exclusion of any other Court of Law in Nigeria to hear and determine appeals from the Federal and States High Courts. In appeals to this Court, the grounds of appeal must be directed not at the decision of the trial Court from which the appeals were lodged at

the Court of Appeal, but against the decision of the Court of Appeal. A ground of appeal before this Court that attacks the decision of the High Court is unconstitutional and it is incompetent.
The 6th ground of appeal is therefore incompetent as it is not directed at the decision of the Court of Appeal. Where a ground of appeal is incompetent, this Court has inherent power to strike it out on the ground that it is defective and cannot support the appeal. See Okeke Anadi vs Okeke Okoli (1977) 11 NSCC 117; Okorie & Ors vs Udom & Ors (1960) 1 NSCC 108 at 110. The 6th ground of appeal is accordingly struck out. Having struck out the 6th ground of appeal, the 5th issue formulated therefrom as well as the argument canvassed in support are hereby struck out.
The 7th ground of appeal is also not directed at the decision of the Court of Appeal, even though the Appellant mentioned that the ground is against the decision of the lower Court. The contents of the 7th ground of appeal do not show that it is against the decision of the Court of Appeal. None of the parties adduced evidence before the lower Court. Omnibus ground of appeal is normally

directed at the decision of the trial Court that assessed the evidence adduced before it. A valid ground of appeal in respect of assessment of evidence should be an attack on how the Court of Appeal considered the performance of the trial Court generally. I am of the firm view that the 7th ground of appeal is incompetent as well. It is struck out. The 4th issue is distilled from the incompetent ground 7 and competent ground 5. There is no way I can sift argument from the competent ground and the incompetent ground of appeal. The virus that inflicted the 7th ground of appeal has by extension adulterated the argument from the 5th ground as well. Accordingly the 4th issue as well as the argument canvassed in support are hereby struck out.

Appellant are neither directed against the decision of the lower Court nor are they directed against the decision of the trial Court. For avoidance of doubt and even at the risk of repetition. I reproduce the two issues as follows:-
1. “Whether from the investigation by the police of the case of the kidnapping of PW2 there was any evidence linking the Appellant to have warranted his being arrested in the first place.
2. If the answer to the above question is no; whether the purported confessional statement extracted from the Appellant after his being shot was given voluntarily.”
The question posed in these two issues would have been better put before the trial Court and the answer of that Court would have become subject of appeal before the lower Court. The issues are directed at the investigative activities of the police and not what the Courts did. The two issues are said to have arisen from the 1st and 2nd grounds of appeal. These grounds of appeal are directed against the decision of the Court of Appeal.
The 1st and 2nd issues cannot be said to have been formulated from the 1st and 2nd grounds of appeal. They are incompetent

and are hereby discountenanced.

So far, the only grounds that are spared for determination of this appeal are the 3rd and 4th grounds of appeal. The 3rd issue for determination of this appeal is distilled from these surviving grounds of appeal. This appeal will be decided on the basis of the 3rd issue.

On the 23rd September, 2012, when PW2, king Richard Seiba was released by those who kidnapped him, he

made a statement to the police where he emphatically stated that he could not identify his abductors. This extra-judicial statement of PW2 is Exhibit C. However the same witness in his evidence in court said:-
“When they came to my house to take me away there was light all through. They were not wearing any mask. Their faces were clear. In the bush we were all like human beings.”

Under cross examination, PW2 stated that he never told the police that he could not identify those who kidnapped him. Clearly there were contradictions between the extra-judicial statement of PW2 and his evidence in Court which touched on the identity of the kidnappers. The learned trial judge, in dealing with this issue of contradiction had this to say:-
“It is clear that at the time the kidnappers kidnapped PW2 they were unknown to him and therefore he could not identify them by name. That does not mean that he could not identify them if he saw them. PW2 was with the kidnappers at close quarters for close to ten days and it will be quite preposterous to suggest that he could not identify them facially if he saw them. Furthermore the witness

denied under cross examination that he could not identify those who kidnapped him. Given the manner of the cross examination, it can be easily deduced that in that instance what the witness meant was that he never told the police that he could not identify his kidnappers if he saw them.”

The learned trial judge in the extract which I have reproduced herein above arrogated to himself the role of a witness for the prosecution. He speculated and ascribed meanings to what PW2 said. This is wrong. The learned justices of the Court of Appeal fell into the same error when they held in their judgment at page 176 of the record of appeal as follows:-
“The contradiction or inconsistency in the evidence of PW2 and his extra judicial statement Exhibit C has not casted any reasonable doubt upon the guilt of the Appellant.. learned counsel for the Appellant’s submission on the contradiction in Exhibit C i.e. the extra judicial statement of PW2 and his evidence in Court is of no moment. The identification of the Appellant by PW2 is positive enough to associate him with the kidnap of PW2.”

The trial Court and the Court of Appeal

did not take the contradiction in the evidence of identification of the Appellant by the prosecution seriously. PW2 made Exhibit C after he had been released by the kidnappers. His stay at close quarters as the learned trial judge stated in his judgment did not give him insight into the identity of the kidnappers, and he said so after his release. For the trial judge to state that it was preposterous for anyone to suggest that the kidnappers were not known to PW2, amounted to speculation. The law on the issue of contradiction in the evidence of a witness with his earlier extra-judicial statement is quite clear, and that is, where a witness’s real statement in Court contradicts or is inconsistent with his previous extra-judicial statement, the Court should not only regard the sworn oral testimony as being unreliable, but also the previous statement, whether sworn or unsworn as not constituting evidence upon which it can act. Consequently, neither of the two versions of the story is worthy of any credit and therefore incapable of establishing the truth. See R vs Ukpong (1961) ALL NLR 25, Asanya vs The State (1991) 3 NWLR

(Pt. 180) 422; Oladejo vs The State (1987) 3 NWLR (Pt. 61) 419; Umani vs The State (1988) 1 NWLR (Pt. 70) 274; Esangbedo vs The State (1989) 4 NWLR (Pt. 113) 57.
In the instant case, the trial Court as well as the Court of Appeal were wrong when they relied on the evidence of PW2 when that evidence was clearly inconsistent with Exhibit C, the extra-judicial statement of PW2.

The 1st, 2nd, 4th and 5th issues having been struck out for being incompetent. The decision of the trial Court, as affirmed by the lower Court that the confessional statement of the Appellant, Exhibit D, is sufficient to sustain the conviction and the sentence passed on the Appellant remains unchallenged. For where there is contradiction, and the man accused of the crime steps in and admits the commission of the offence, the contradiction in the prosecution’s case is rendered irrelevant. The contradictions in the evidence of PW2 has not affected the concurrent findings of facts by the trial Court and the lower Court. I therefore find no merit in this appeal.
Accordingly same shall be and it is hereby dismissed. The decision of the lower Court which affirmed the judgment of the

trial Court, is hereby affirmed.

WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have read before now the lead judgment delivered by my learned brother, GALUMJE, JSC and entirely agree with the reasons leading to the conclusion that the appeal is bereft of merit and should be dismissed.

Perhaps it should be made known to the learned counsel for appellant that grounds of appeal have no place in a brief, safe to indicate from what ground(s) of appeal an issue is framed. Argument is based on the issues framed from the grounds of appeal and at the end of the day the appeal is allowed or dismissed on the ground(s) from which the issue is framed. It is therefore unnecessary to reproduce the grounds of appeal in the brief except in cases where it is called for.

In his issue two (2), learned counsel for appellant referred to the extra-judicial statement of the appellant Exhibit ‘D’ as “the purported confessional statement extracted from appellant after he was shot.” There was a trial within trial to determine the

voluntariness vel non of the statement. The trial Court found that contrary to the claim of the appellant the statement was voluntarily made and admitted and marked same as Exhibit ‘D’. If appellant was aggrieved, he should have appealed against the finding that the statement was voluntarily made. He cannot be heard to challenge the admission of the statement in an appeal coming out of the main trial. See Bouwor vs. State (2016) LPELR (26054) SC.

In his own brief, learned Counsel for respondent presented copious argument on what he tagged “Preliminary Objection”. Counsel cannot be heard in his preliminary objection without compliance with the rules. See A-G Federation vs. BI-Courtney Ltd (2012) 14 NWLR (pt. 1321) 467. Learned Counsel has no basis to assume that the Court will necessarily sustain his preliminary objection and refuse to offer argument in respect of the issues he objected to. He ought to have offered alternative argument on all issues in case he is overruled in his preliminary objection.

It is for the above and fuller reasons assigned

in the lead judgment, that I too dismiss the appeal for lack of merit.
Appeal dismissed

KUMAI BAYANG AKA’AHS. J.S.C.: I had the privilege of reading in draft the judgement of my learned brother, Galumje JSC in which he dismissed the appellant’s appeal and affirmed his conviction based on Exhibit D.

I agree with my learned brother, Galumje JSC that there was material contradiction between the extra judicial statement of PW2 which was tendered as Exhibit “C” and his oral testimony in Court which would have led to the success of the appeal but this was obviated by the confessional statement of the appellant, Exhibit D. Consequently the appeal lacks merit and it is accordingly dismissed.

EJEMBI EKO, J.S.C.: The Appellant was convicted for conspiracy to kidnap, and kidnapping, of the PW.2 contrary to Sections 444(a) and 291(b) of the Criminal Code Law CAP C14 of the Laws of Bayelsa State, 2006. Three witnesses, including the victim (PW.2), testified for the prosecution.

Several documents, including the extra-judicial statement of the Appellant (which was confessional), were put in evidence by the prosecution.

The most contentious of the prosecution’s evidence was the PW.2’s evidence, whose extra-judicial statement was Exhibit C. The PW.2’s testimony in open Court sharply contradicts his previous statement in writing, Exhibit C, as to whether he (the PW.2, the victim) could recognize his kidnappers. No other piece of evidence was attacked in the appeal by Appellant.
The PW.2, in Exhibit C, averred emphatically that he could not identify his abductors. He made Exhibit C on 23rd September, 2012 shortly after he was released by his abductors. However, in his testimony in open Court he recanted and posited that he could identify his abductors. He purportedly recognized the Appellant as one of his abductors. In justifying this latter posture; the PW.2 testified, emphatically, that his abductors, who allegedly came in broad daylight, were not

wearing any masks and that their faces were visibly clear to him to see. He further testified that in the bush he had close contact with them. The purport of the PW.2’s viva voce evidence in Court was to positively identify his abductors. In the process, he embellished the facts. The evidence was however sharply contradicted and discredited by his previous statement in writing, Exhibit C.
The PW.2 offered no explanation for the contradiction between his viva voce evidence on oath and his previous statement in writing, Exhibit C. The rule is that without explanation or satisfactory explanation for the contradiction, between the PW.2s testimony and his previous statement in writing, the learned trial Judge cannot pick and choose which of the versions to believe or disbelieve:BOY MUKA v. THE STATE (1976) 10 SC 305. The PW.2 had been seriously discredited by the cross-examination and Exhibit C.
The learned trial Judge however took it upon himself to offer explanations, ex gratia, as to why or how PW.2’s testimony and Exhibit C were not mutually contradictory or in conflict. He had thereby put himself in the stead of a witness or the PW.2. He

cannot do that without the risk of becoming partial or biased against the clear injunction in Sections 17(2)(C) and 36(1) of the Constitution that he must throughout maintain the independence, impartiality and integrity of his Court. One of the two pillars of fair trial is nemo judex in causa sua, which no one can be a Judge in his own cause. It is generally accepted, in the administration of justice, that where the judge is also a party to the lis he violates the sacred maxim of nemo judex in causa sua: FAWEHINMI v. LPDC (1985) 2 NWLR (pt. 7) 300.
The law is settled that when the testimony in Court of a witness is contradicted by his previous statement in writing both are rendered unreliable, and neither of them can be relied upon by the Court: R. v. UKPONG (1961) ALL NLR 25; OLADEJO v. THE STATE (1987) 3 NWLR (pt. 61) 419; UMANI v. THE STATE (1988) 1 NWLR (pt. 70) 274; ESANGBEDO v. THE STATE (1989) 4 NWLR (pt. 113) 57; ASANYA v. THE STATE (1991) 3 NWLR (pt. 180) 422. The lower Court was clearly wrong in affirming the trial Court’s stance on the evidence of the PW.2 in view of the manifest contradiction between it and Exhibit C.

Exhibit D is confessional. It was not impugned or discredited. No effort was infact made to impugn or discredit it.
A confession proves the fact that constitutes one or all the elements of the offence. It also identifies the maker, the accused person, as the person who committed the offence. It is the best evidence proving that the accused person and no other person committed the offence he is being tried for; IGBINOVIA v. THE STATE(1981) 2 SC 5 at 17 – 18; (1981) 12 NSCC 62 at 69. That is why the accused person can be convicted for the offence he is being tried for on his confession alone, once the confession is direct and positive and the Court is satisfied that the accused person made the confession voluntarily: YESUFU v. THE STATE (1976) 6 SC 167; & IGBINOVIA v. THE STATE (supra). Once all the elements of reasonable doubts as to the fact that it is the accused person, and no other, who committed the alleged offence are eliminated from the positive nature of the confession, are eliminated, then a conviction predicated on the confession remains unassailable. <br< p=””

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I agree with the lower Court that without the evidence of PW.2 and Exhibit C there was sufficient evidence to sustain the conviction and sentence of the Appellant upon the proof beyond reasonable doubt of his guilt for the offences of conspiracy to kidnap and the kidnap of the PW.2. Exhibit D is the Appellant’s confession, wherein he admitted the offences.
It is trite that on his own confession alone an accused person can be convicted of the offence alleged: YESUFU v. THE STATE (supra). The evidence or testimony of the PW.2, for purposes of the identity of the Appellant as one of those who abducted him, had become superfluous. I do not think the Appellant has been able to show that he suffered any miscarriage of justice by his trial, conviction and sentence for conspiracy to kidnap and the kidnapping of the PW.2. Not every error committed by the trial and intermediate Courts ipso facto results in this Court intervening and consequently setting aside the conviction and sentence complained of. Once the error pointed out or complained of does no substantial miscarriage of justice, the conviction and sentence

remain inviolate and would be sustained.

I find no merit in this appeal and it is hereby dismissed. I am in complete agreement with my learned brother, PAUL ADAMU GALUMJE, JSC, on all the issues decided or resolved in his judgment just delivered in this appeal. The conviction and sentence imposed on the Appellant by the trial Court, which conviction and sentence were affirmed by the lower Court, are further affirmed. Appeal dismissed.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Paul Adamu Galumje, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. There is no merit in the appeal. Accordingly, it is hereby dismissed.

Appearances:

Saiyou, Esq. For Appellant(s)

Lawrence Oko-Jaja, Esq. For Respondent(s)

Appearances

Saiyou, Esq. For Appellant

AND

Lawrence Oko-Jaja, Esq. For Respondent

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SIMEON LALAPU v. COMMISSIONER OF POLICE (2019)

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