STEPHEN JOHN & ANOR V. THE STATE
(2010)LCN/3899(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of June, 2010
CA/J/50C/2006
RATIO
GROUND OF APPEAL: EFFECT OF A GROUND OF APPEAL FROM WHICH ISSUE IS FORMULATED FROM
It is trite that where no issue is formulated from a ground of appeal it is deemed abandoned and liable to be struck out. Mamudere Vs. Okafor 1996 4 SCNJ 73. PER ZAINAB A. BULKACHUWA, J.C.A.
WHEN CAN INCONSISTENCE OR CONTRADICTION IN THE EVIDENCE OF A WITNESS OR WITNESSES BE SAID TO BE MATERIAL
Inconsistence or contradiction in the evidence of a witness or witnesses may be said to be material if they relate to an issue of fact which has to be determined before a proper verdict can be returned or where in the circumstances in which they occurred they may cast doubt on the credibility of the witness or witnesses. Onubogu Vs. State 1974 9 NSCC 358. However the determination of such contradiction and inconsistence is primarily the duty of the trial court having regard to the evidence adduced and take them into account in the evaluation of the credit of the witnesses. PER ZAINAB A. BULKACHUWA, J.C.A.
WHETHER AN ACCUSED PERSON CAN BE CONVICTED ON THE CONFESSIONAL STATEMENT MADE BY HIM
By virtue of the provisions of Section 27 of the Evidence Act, an accused person can be convicted on the confessional statement made by him once it is properly proved and admitted in evidence. Ogoala Vs. State 1991 2 NWLR (Part 175) 509; Egboghonome Vs. State 1993 7 NWLR (Part 306) 383. Where such a confessional statement was voluntarily made and it is positive and unequivocal and amounts to an admission of guilt regardless of the fact, that the maker resiled from it or retracted it altogether at the trial, it becomes admissible and an accused may be convicted on it. Akirife Vs. State 1988 3 NWLR (Part 85) 279; Onwumere Vs. State 1991 4 NWLR (Part 186) 428; Egboghonome Vs. State (supra). PER ZAINAB A. BULKACHUWA, J.C.A.
CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT CANNOT INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY A TRIAL COURT
It is trite, that where a trial court properly evaluates the evidence led before it and comes to the right conclusion such that no miscarriage of justice is occasioned, an appellate court cannot interfere. ADEYE VS ADESANYA (2007) 6 NWLR (Pt 708) 1; IGAGO VS THE STATE (1999) 14 NWLR (Pt 637) 1 and ABISI & ORS VS EKWEALOR & ANR (1993) 6 NWLR (Pt 302) 643. PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ZAINAB A. BULKACHUWA Justice of The Court of Appeal of Nigeria
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
Between
1. STEPHEN JOHN
2 MAXWELL IDI Appellant(s)
AND
THE STATE Respondent(s)
ZAINAB A. BULKACHUWA, J.C.A. (Delivering the Leading Judgment): The appellants as accused persons were arraigned before the High Court of Plateau State coram Dusu J. (of blessed memory) with 7 other accused persons on an eight count charge. By a motion on notice dated 17th April, 2001 the prosecution sought and was granted the leave of the court to amend the charges as a consequence of which the names of the 4th – 9th accused persons and counts 3 – 8 of the charges were struck out.
The plea of the three accused persons on the amended charge was taken by the court on the 10/4/2002,- wherein they all pleaded not guilty. The amended charge reads;
“That you, Stephen John, Henry Lawrence and Maxwell Idis in company of Samson Madaki and Freedom (surname unknown and now at large) on or about the 21st day of February, 1999 at Jenta Mangoro, Jos, Jos North Local Government Area, in the Plateau Judicial Division while armed with guns, knives and sticks robbed one Elizabeth Musa of one video cassette recorder, one world receiver radio, one car stereo, six set of gold necklaces valued at N216,000, two wrist watches, six sets of gold jewelries valued at N30,000 three cameras, seven cupion laces, assorted wrappers and one dictionary and thereby committed an offence punishable under Section 1(2)(b)of the Robbery and Firearms Act 1984 (as amended).
The matter thereafter proceeded to trial and three witnesses testified for the prosecution, the accused persons testified for themselves as DW1 and DW2, thereafter learned respective counsels addressed the court and in a considered judgment delivered on the 7th April, 2004 the lower court found the accused persons guilty of the charge and sentenced them to death.
The 1st and 2nd accused persons dissatisfied with their conviction and sentences filed two separate notices of appeal on the 3rd May 2004 consisting each of two grounds of appeal and consequently with leave of this court each filed 8 additional grounds of appeal.
Parties filed and exchanged briefs of argument and in a joint brief by the two appellants deemed filed by leave of this court granted on the 29/3/2010 the following issues were identified;
(1) Whether the prosecution proved its case beyond reasonable doubt against the appellants of the offence of armed robbery punishable under Section (1)(2)(b) of the Robbery and Firearms Act 1984 (as amended), (this issue is distilled from grounds 1, 2, 3, 5, 6 and 9).
(2) Whether the learned trial judge was right in law in admitting Exhibits 3 and 5 the 1st and 2nd appellants” confessional statements, and using same principally to find the appellants guilty of the offence of armed robbery punishable under Section 1(2)(b)of the Robbery and Firearms Act 1984 (as amended), (this issue if distilled from grounds 4, 7 and 8).
From the above it would appear that the appellants have not distilled any issue from their ground 10. It is trite that where no issue is formulated from a ground of appeal it is deemed abandoned and liable to be struck out. Mamudere Vs. Okafor 1996 4 SCNJ 73. In the circumstances there being no issue formulated from ground 10 of the Grounds of Appeal of the two appellants. I deem them abandoned and hereby strike them out.
The respondent in a brief of argument also deemed filed on 29/3/2010 distilled the under listed issues for the determination of the appeal;
(1) Whether the learned Maijudge was right in convicting the appellants on their retracted confessional statements.
(2) Whether from the facts and circumstances of this case, the prosecution proved its case
The two sets of issues as formulated by the parties are similar.
I will in the circumstances adopt the issues raised by the appellants in determining the appeal.
It will be apt at this stage to give a brief statement of the facts giving rise to this appeal. On the night of 22/2/1999 the house of the complainant one Miss Elizabeth Musa at Jenta Mangoro Jos was forced open by a big stone by six masked men and three of them gained entry into the house by breaking the glass windows while the others remained outside the compound. She was beating up and forced to lie down, while blood was gushing down from her face and nose, and a knife thrust at her. While she was lying down and crying, the intruders ransacked her house and removed valuables from the house including jewelries, lace wrappers, cameras, money, stereo, video machine and garments. A neighbour who came out was stabbed with a knife and another who attempted to come out was threatened with death and so remained inside. When the robbers left with the properties, neighbors came out and helped the victim. In the morning, she reported to the police.
On the same day three accused persons were arrested and some of the items stolen were recovered from them and they led the police to some other persons where some other stolen items were said to have been disposed of, i.e. the gold jewelry which were never recovered.
The accused persons made confessional statements to the police which were admitted before the court as Exhibits 3 and 5. It is of note that three accused persons were originally arraigned before the trial court but in the course of trial one died and the trial proceeded against the remaining two.
In presenting their defence the two accused persons denied having any knowledge of, or participating in the robbery and resiled from the confessional statements tendered before the court. At the conclusion of the trial, the learned trial judge found them guilty as charged, convicted them for the offence of armed robbery and sentenced them to death.
The appellants submit on their issue one, after an analysis of the evidence as adduced before the trial court, that there was no direct evidence on the identification of the robbers who allegedly robbed the PW2, that the evidence of the prosecution witnesses was materially contradictory and ought not to have been relied upon by the trial court to convict the appellants. That this raises doubt on the prosecution’s evidence, and where such doubt arises the prosecution has not discharged the burden of proof reposed on it by law, and the doubt ought to have been determined in favour of the appellants, we were asked to allow the appeal on this issue as the evidence relied upon by the lower court to base the conviction and sentence fell short of the standard required to establish the guilt of the appellants.
This issue was replied to by the respondent in their issue two. They contend therein that the lower court in convicting the appellants carefully outlined the ingredients of the offence and reviewed the entire evidence adduced by the prosecution and the defence before reaching a decision on the appellants’ guilt. That the confessional statements of the appellants corroborates substantially the testimonies of the PW1 and PW2 the victims of the armed robbery on all material aspects. That the trial court was therefore right in holding that the prosecution has proved its case beyond reasonable doubt.
It was the appellants’ contention on their issue two that the two appellants were convicted principally based on Exhibits 3 and 5, their two confessional statements. That apart from the fact that the said exhibits were wrongly admitted being that Exhibit 3 was tendered through the PW3 who was not the person who recorded the statement and Exhibit 5 having been obtained by the police through a question and answer session in hausa, the original hausa version not having been tendered, the alleged confession in Exhibits 3 and 5 are not in conformity with facts outside the statement to make it probable that their contents are true. As such there was no corroboration of the statements in Exhibits 3 and 5. That for a confession to be used as the only basis to ground a common, corroboration is desirable. See Emeka Vs. State 2001 FWLR (Part 66) 682; Nsofor Vs. State 2003 FWLR (Part 153) 271; Yahaya Vs. The State 2001 FWLR (Part 81) 1899.
That the learned trial judge was wrong to have relied on the testimonies of the prosecution witnesses as corroboration of the statements in Exhibits 3 and 5, the said evidence being contradictory. We were urged to resolve this issue in favour of the appellants.
The respondent relying on the cases of Olalekan Vs. State 2002 FWLR (Part 91) 1605; Nwachukwu Vs. State 2002 All FWLR (Part 390) 1380; Ogugu Vs. State 1990 2 NWLR (Part 134) 539 submits that where a confessional statement is direct, positive and unequivocal as to the admission of guilt of an accused person the statement is enough to ground the conviction of an accused. That a voluntarily made confessional statement which complies with the rules governing the rules of taking a statement and which is tendered without objection at the trial and is admitted in evidence is good evidence and no amount of subsequent arguments against it or its retraction will vitiate its admissibility as a voluntary statement and its mere denial by the accused will not be a reason for rejecting it and having been admitted without objection there will be no judicial basis for expunging it from the record on appeal. We were also urged to resolve this issue in favour of the appellants.
Here the gravement of the appellants’ complaint in this appeal are two fold; (1) that the prosecution had not made out a case against the prosecution beyond reasonable doubt; (2) that the lower court was wrong to have relied on the supposed confessional statements to ground a conviction of the appellants.
For the prosecution to obtain a conviction of the offence of armed robbery as charged the following ingredients of the offence must be proved;
(1) That there was a robbery-
(2) That the accused persons committed the
(3) That at or immediately before or immediately after the time of the robbery the accused persons wounded or used personal violence to any person.
The appellants contend that the following contradiction in the prosecution case renders their testimony inconsistent and contradictory and should have cast a doubt in the mind of the trial court which should have been resolved in favour of the appellants;
(1) That none of the prosecution witnesses identified any of the appellants as the persons who committed the robbery, most especially the PW1 and PW2.
(2) That the testimony of the PW2 is inconsistent with her statement to the police (Exhibit 1), form the former she rifled that she heard gun shots and was attacked with knives, while in the later she said she was attacked with a knife by one of the robbers.
(3) That the PW3 made two inconsistent statements in his testimony before the court, one, to the effect that the stolen items were recovered from the residences of the accused persons when the police executed a search warrant and two that the 1st accused person fed them to receivers of the stolen items where some of them were recovered.
I have closely examined the statement of the prosecution witnesses particularly that of the PW1 and PW3 and there is no inconsistency or contradiction on the identity of the robbers at the time of the robbery.
PW1 at page 54 of the records stated;
“On the night of the robbery I could not say whether the robbers were the accused persons whom I had previously known. Throughout the operation I could not see them and I cannot say whether they were armed with weapons. I only saw the movement of people, that is the robber carting away goods”.
PW2 at page 64 stated;
“From the time the robbers came into my compound up to the time they left, they were all masked so I was not able to recognize them”.
As regards the gun shots the PW2 stated in her testimony that she heard at the time of the robbery, this to my mind is not an inconsistency taking into account her state of mind at the time of the robbery She did state both in her testimony in court and in her statement that she heard those inside telling those outside to give them the pistol, but said she did not know whether the pistol was given to them or not.
The lower court in its judgment made a finding that the said inconsistency is not fundamental as there was sufficient evidence on the records to show that the PW2 was physically assaulted with a knife which is an offensive weapon.
From what I understood from the PW3’s testimony is that some of the stolen items were recovered from the residences of the accused persons while some items which were not recovered were traced to the houses of receivers. See extract of his testimony at page 67 of record;
“In the course of investigation, the car stereo, video machine and some wrappers were recovered. (Underlining mine for emphasis). The items were recovered from the residences of the accused persons when the police executed a search warrant………..
The first accuse led us to where the stolen items were disposed where some of the items were recovered, There were the persons who had bought the gold stolen from the complainant. Our investigation revealed that the gold had been melted and sent to Saudi Arabia. As a result, noting was recoyered from the receivers”. (Emphasis mine).
In effect there was no inconsistency or contradiction in the above testimony as it was making reference to two sets of the stolen items. One set was recovered from the houses of the accused persons and the other set was not recovered.
Inconsistence or contradiction in the evidence of a witness or witnesses may be said to be material if they relate to an issue of fact which has to be determined before a proper verdict can be returned or where in the circumstances in which they occurred they may cast doubt on the credibility of the witness or witnesses. Onubogu Vs. State 1974 9 NSCC 358. However the determination of such contradiction and inconsistence is primarily the duty of the trial court having regard to the evidence adduced and take them into account in the evaluation of the credit of the witnesses.
In the instant case the lower court had rightly considered the above issues and came to the conclusion that the contradictions if any were not fatal to the prosecution case.
I see no need to disturb that finding. Issue one is accordingly resolved against the appellants.
By virtue of the provisions of Section 27 of the Evidence Act, an accused person can be convicted on the confessional statement made by him once it is properly proved and admitted in evidence. Ogoala Vs. State 1991 2 NWLR (Part 175) 509; Egboghonome Vs. State 1993 7 NWLR (Part 306) 383.
Where such a confessional statement was voluntarily made and it is positive and unequivocal and amounts to an admission of guilt regardless of the fact, that the maker resiled from it or retracted it altogether at the trial, it becomes admissible and an accused may be convicted on it. Akirife Vs. State 1988 3 NWLR (Part 85) 279; Onwumere Vs. State 1991 4 NWLR (Part 186) 428; Egboghonome Vs. State (supra).
Exhibits 3 and 5 are the confessional statements of the two appellants, which were admitted without objection from the appellants who were represented by counsels, it was only when the two appellants were testifying in their defence that they denied the statements, the 1st appellant maintained that it was not voluntarily made while the 2nd appellant maintained that it was obtained as a result of a question and answer session between him and the PW3, the police officer who recorded the statement.
The lower court made findings on the said allegation, see pages 110 and 113 of the record where the court stated after an exhaustive analysis of the defences’ evidence, address of counsels and the two statements vis-a-vis the evidence adduced by the prosecution;
“From the testimonies of PW1, PW2 and PW3 I find corroborative evidence that exhibit 3 is the statement of the 1st accused. The assertion by the 1st accused that he did not sign exhibit 3 or that he was beaten is a mere after thought”.
“The pieces of evidence highlighted above are compatible with the facts stated in Exhibit 5. I am firmly convinced that Exhibit 5 is the confessional statement of the 2nd accused”,
The finding of the lower court that Exhibits 3 and 5 were confessional statements is unassailable. The testimonies of the prosecution witnesses corroborate the contents of the statements which are graphic and detailed on the way and manner the robbery was planned and executed.
There is a linkage between the statements and the evidence as adduced by the prosecution that one is left with no doubt that the two statements were made by the appellants who executed the robbery and are corroborated in all material particulars with the evidence of PW1 and PW2 who did not even see the faces of the robbers when the offence was committed. Another factor which completely corroborates the prosecution case is the recovery of some of the stolen items in the residences of the appellants.
The lower court was in the circumstances right in basing its conviction of the appellants on Exhibits 3 and 5 and on the evidence before it.
This is not a situation where this court can interfere. I also resolve the 2nd issue against the appellants.
On the whole I find no merit in this appeal. It is dismissed. The conviction and sentence of the appellants by the lower court in its judgment of 7/4/2004 is hereby affirmed.
ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the privilege of reading in advance, the judgment of my learned brother BULKACHUWA, J.C.A, just delivered, and I agree entirely with the reasoning and conclusions therein. It is trite, that where a trial court properly evaluates the evidence led before it and comes to the right conclusion such that no miscarriage of justice is occasioned, an appellate court cannot interfere. ADEYE VS ADESANYA (2007) 6 NWLR (Pt 708) 1; IGAGO VS THE STATE (1999) 14 NWLR (Pt 637) 1 and ABISI & ORS VS EKWEALOR & ANR (1993) 6 NWLR (Pt 302) 643.
In the instant case, the trial court properly evaluated the evidence led. The conclusions reached, did not run counter to the evidence led and no extraneous matters were taken into account. No errors of substantive law or procedure were committed. In short, the decision of the trial court was not perverse. There is therefore no justification whatever, in interfering with it. For this, and the fuller reasons in the lead judgment, I also dismiss the appeal as it is unmeritorious. I affirm the conviction and sentences of the appellants meted out by the trial court.
BODE RHODES-VIVOUR, J.C.A: I read in advance the judgment just delivered by my learned brother Bulkachuwa JCA. I agree with the reasoning and conclusions. I too find no merit in this appeal. The conviction and sentence of the appellants by the trial court is affirmed.
Appearances
E.Y. Kurah EsqFor Appellant
AND
Isaac Aderoaba Esq., with Joshua John Esq., A.M. Umar (Mrs.) and D.P. Dusu Esq.,For Respondent
