TEMITOPE v. STATE (2022)

TEMITOPE v. STATE

(2022)LCN/16436(CA)

In The Court of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Wednesday, March 09, 2022

CA/EK/33C/2021

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

OYEWUSI TEMITOPE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE POSITION OF LAW ON A RETRACTED CONFESSIONAL STATEMENT

What is the position of the law on a retracted statement?
SANUSI J.S.C in STATE vs YAHAYA (2019) LPELR- 47611 (SC) answered thus:
“…The law is trite however, that where an accused person later retracts his confession at the trial, the Courts have evolved a practice that the trial Court must look for some evidence no matter how slight, outside the confession which would make the confession probable. See Kopa vs State (1971) 1 ALL NLR 151; Onochie vs The Republic (1966) NMLR 307. This is however a rule of practice meant to discern which of the two versions of the events is likely to be correct for the trial Court to rely on with regard to the commission of the said crime. See Peter Azabada vs. The State (2014) LPELR 23 101 7(SC). Where an accused person retracts his confessional statement, that statement still remains voluntary even though it is desirable that the Court looks for corroborative evidence outside the confession to ascertain the truth of such statement. A confessional statement does not become inadmissible or inapplicable simply because it was retracted by the maker since a trial Court can even convict the maker of it even based on it alone once it is satisfied that it was made voluntarily. As I stated earlier, it is desirable for the Court to look for corroborative evidence independent of or outside the said confessional statement. See Kareem vs FRN (No.2) (2002) 8 NWLR (Pt.770)205.” PER AWOTOYE, J.C.A.

THE PURPOSE OF A REPLY BRIEF

According to ARIWOOLA JSC in MATHEW vs STATE (2019) LPELR – 46930 (SC) “A reply brief is said not to be a repair kit to put right any lacuna in the Appellant’s brief of argument. See also Dr. AUGUSTINA MOZIE & ORS vs CHIKE MBAMALU & ORS (2006) 12 SC.M. (PT. 1) 306 at 320, OSUJI vs EKEOCHA (2009) 10S C.M. 72 at 85 (2009) 16 NWLR (PT. 1166) 81. A reply brief is not meant to afford the Appellant an opportunity for re-argument on another bite at the cherry. It is not meant to be used to repeat an argument or to extend the scope of the argument and submission in the Appellant’s brief of argument.” PER AWOTOYE, J.C.A.

THE POSITION OF LAW ON THE WEIGHT TO BE ATTACHED TO FINDINGS OF FACT

The weight to be attached to findings of fact particularly when they arose from assessment of demeanor of witnesses whom the trial Court saw and heard is very heavy. They are treated with sanctity. See OKE & ANOR vs MIMIKO (2014) INWLR PT 1388 pages 332.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading judgment): This is the judgment in respect of the appeal filed by the Defendant/Appellant against the decision of Ekiti High Court of Justice Ado Ekiti decided on 18/12/2020 in respect of Suit No HAD/39C/2018; OYEWUSI TEMITOPE VS THE STATE.

The Defendant was arraigned on a two count charge of Conspiracy Contrary Section 516 of the Criminal Code Law and stealing of Diesel Oil property of Ekiti State Government contrary to Section 390 of the Criminal Code Law.

The Defendant/Appellant was the third defendant at the lower Court. The case of the prosecution was that the Defendants on 29/3/2017 at Water Works Area Ajilosun, Ado Ekiti conspired together and stole six kegs of diesel oil belonging to Ekiti State Government.

The charge was read and explained to the defendants. Each pleaded not guilty to each of the counts of the charge. Hearing later commenced. After hearing the Learned Trial Judge entered judgment convicting the Appellant in the following terms:
“Before resort was had to the utilization of the confessional statements of the defendant the Court noted that the evidence of PW1 and PW2 and exhibits tendered by the prosecution, corroborate the fact of complicity of the defendants in the stealing of six kegs of diesel oil.
The fact that the thing stolen that is, the six kegs of diesel oil was linked, and fixed on the person of the 3rd defendant at the time of arrest, point irresistibly to the fact that no other person but the 1st defendant in concert with the 2nd and 3rd defendants orchestrated the stealing of the six kegs of diesel oil.
The content of the confessional statements are consistent with the evidence of PW1, and PW2, as well as exhibit F 1-6 series. See AFOLABI vs. C.O.P (1961) LPELR–25028 (SC).
The confessional statements were admitted without objection to their admissibility at the point of tendering them the confessional statements are found to be voluntarily made. The involuntariness was not put in issue. See ADAMU vs STATE (supra). SMART vs. STATE (2016) LPELR–40728 (SC); LASISI vs STATE (2013) LPELR–20183 (SC).
The offence of conspiracy alleged the 1st–3rd defendants are inferable from the facts and circumstances of the instant case. The 2nd and 3rd defendants according to the statement of the 1st defendant, were members of staff of the Ekiti State Water Corporation. The civil servants facilitated the actual stealing, while the 1st defendant conveyed and sold the stolen diesel oil. The various parts played by each defendant was to complete the chain of stealing diesel oil. See YAKUBU vs. STATE (2014) LPELR 22401 (SC).
The facts in evidence contain the ingredients needed to be proved. There was meeting of mind on each defendant performing his own role, as well as sharing of proceeds from the sale of diesel oil.
I find the elements of conspiracy between the 1st–3rd defendants established. On the whole, I find that the prosecution established the facts in evidence to contain the ingredients needed to be proven to establish the offences of conspiracy and stealing.
On the whole, on count 1, the 1st–3rd defendants are found guilty as charged on count 1.”

Aggrieved with the judgment, the Appellant filed a Notice of Appeal containing three grounds of appeal.

GROUNDS OF APPEAL
GROUND ONE
The Learned Trial Judge erred in law when he held that the extra-judicial statement of the Appellant’s Exhibit D amounts to a confessional statement in the following words:
“the 3rd defendant in his confessional admitting commission of the offences said… in year 2009, I was at selling fish pepper soup in front of Ekiti Water Works Off Ajilosun Road, Ado-Ekiti. This is how I know most of the staff working in that water works office. I know Mr. Suyi whom surname is unknown to me at water work. He told me that he has six kegs of diesel oil to sell being that he known I have change my business from pepper soup fish to oil business. I proceed to the man place along water works road. I met the man where he kept the diesel oil. I bought 9 kegs of diesel at the rate of N6,000 per each. I have not paid for the oil until I sell it. I am the driver person that called the driver to convey the six kegs of the oil diesel to my house. On our way going from one street beside water works that three men stop the driver that they suspected our movement from their street they called the elder of their street that we steal water works diesel”.
GROUND TWO
The Learned Trial Judge erred in law by relying in the evidence of co-defendants and that of PW1 and PW2 as corroborative facts in passing verdict of guilty on the Appellant when the alleged facts did not actually corroborate any guilty act on the 3rd accused/appellant.
GROUND THREE
The decision reached by the learned trial Judge is unreasonable, unwarranted and cannot be supported have regard to the evidence before the Court.

After transmission of record of appeal to this Court parties to this appeal filed and exchanged briefs of argument.

BRIEFS OF ARGUMENT
The Appellant’s brief of argument was filed on 25/3/2021. It was settled by his counsel OLUWASOLA FAPOHUNDA. Learned counsel for the Appellant formulated three issues for determination as follows:
a. Whether the trial Court was right in convicting and sentencing the defendant/ appellant to seven (7) years imprisonment when the prosecution has not discharged the burden placed on it to prove the guilt of the Defendant/Appellant beyond reasonable doubt as required by law in the instant case in view of the evidence placed before the Court.
b. Whether the trial Court was right in holding that Exhibit D amounts to a confessional statement when the contents of Exhibit D are not positive, direct and unequivocal as to the commission of crime alleged so as to satisfy the validity test of confessional statement.
c. Whether the trial Court was right in placing reliance on evidence of PW1 and PW2 as well as exhibits A, B, C, D, E and F1-6 to corroborate the fact that the Defendant/Appellant in conjunction with the 1st and 2nd defendants actually stole the six kegs of diesel oil, property of the Ekiti State Water Corporation.

O. F. AJUMOBI, Principal Legal Officer Ekiti State Ministry of Justice prepared the Respondent’s brief. The brief of argument was filed on 9/11/2021 but deemed filed on 18/1/2022.

Learned Respondent’s counsel identified two issues for determination to Wit:
1. “Whether the learned trial Judge was not right in his decision that the allegation of conspiracy and stealing were proved beyond reasonable doubt against the appellant by the prosecutions as required by law”. (Distilled from ground 2 and 3 of the Notice of Appeal).
2. “Whether the learned trial judge erred in law when he held that the extra-judicial statement of the appellant, exhibit D amounts to a confessional statement”. (Distilled from ground 1 of the Notice of Appeal.

On receipt of the Respondent’s brief of argument the appellant filed a Reply Brief on 19/11/2021 which was deemed filed on 18/1/2022.

SUBMISSIONS OF COUNSEL APPELLANT’S BRIEF.
Learned Counsel for Appellant submitted that the essential ingredients of the offence of conspiracy were not proved by the prosecution. He cited YAKUBU vs. STATE (2014) 8 NWLR (PT. 1408) 111, 123 AITUMA vs STATE (2007) 5 NWLR (PT. 1028) 466 at 479. He contended that it could not be reasonably referred that the Appellant and other Defendants had a meeting or mutually agreed to steal.

He further referred to the testimony of PW2 where he said the 40 liters of diesel were stolen in November 2017 when the offences were allegedly to have occurred in March, 2017.
He submitted further Olayiwola who alleged reported the even that transpired between the Appellant and other Defendants was a vital witness who ought to have been called as a prosecution witness. He cited FRN vs ODUA (2020) 12 NWLR (PT. 1737)16, 32-33.

He posited that the evidence of PW1 fell short of the required standard of proof in criminal trial. He urged the Court to resolve the doubts in the prosecution case in favour of the Appellant.

ISSUE B
Learned Appellant’s counsel submitted that the confessional statement Exhibit D did not qualify as a confessional statement in so far the defendant denied stealing the diesel oil and wrongly that the diesel was stolen. He relied on SAMINU vs STATE (2019) 11 NWLR (PT. 1683) 254-275; NIGERIAN NAVY vs LT. COMMANDANT LAMBERT (2007) 9SCNJ 1.
He finally submitted that Exhibit D was not a confessional statement.

ISSUE C
OLUSOLA FAPOHUNDA for the Appellant posited that the trial Court wrongly placed reliance on evidence of PW2 and PW2 as well as Exhibits A–E and F1–6.

He submitted that the evidence of PW2 was hearsay evidence. He submitted that there was nothing in the evidence of PW1 and PW2 as well as Exhibits that supported any purported confessional statement of the Appellant.

He therefore submitted that the trial Court came to a wrong conclusion as it failed to properly evaluate the evidence of the parties.

In a further argument, learned counsel for the Appellant contended that the defendant ought to be punished by either sentencing him to a term of imprisonment or by being given an option of fine. He submitted that the lower Court failed to exercise its discretion to give the Appellant an option of fine despite the fact that he was a first time offender. He relied on Section 316 (2) and Section 320 of the Ekiti State Administration of Criminal Justice Law 2014.

He finally urged this Court to resolve the three issues formulated in favour of the Appellant.

RESPONDENT’S BRIEF OF ARGUMENT
O. F. Ajumobi for the Respondent formulated two issues for determination as follows:-
1. “Whether the learned trial judge was not right in his decision that the allegation of conspiracy and stealing were proved beyond reasonable doubt against the appellant by the prosecutions as required by law”. (Distilled from ground 2 and 3 of the Notice of Appeal).
2. “Whether the learned trial Judge erred in law when he held that the extra-judicial statement of the appellant, exhibit D amounts to a confessional statement”. (Distilled from ground 1 of the Notice of Appeal.

ARGUMENT
ISSUE ONE
WHETHER THE LEARNED TRIAL JUDGE WAS NOT RIGHT IN THIS DECISION THAT THE ALLEGATION OF CONSPIRACY AND STEALING WERE PROVED BEYOND REASONABLE DOUBT AGAINST THE APPELLANT BY THE PROSECUTION AS REQUIRED BY LAW.
Learned Respondent’s counsel referred to the legal burden placed on the prosecution under Section 135 of the Evidence Act to prove the guilt of the Appellant beyond reasonable doubt. He referred to the five ingredients that must be contemporaneously proved by the prosecution before the prosecution’s case could succeed. The ingredients are:
1) The ownership of the thing stolen
2) The thing stolen is capable of being stolen
3) The fraudulent taking a conversion of the thing stolen
4) The existence of the thing stolen
5) That it was the accused person who stole the thing.
He cited ONAGORUWA vs THE STATE (1993) 7 NWLR (PT. 303) 49

He submitted that the said ingredients have been proved by the prosecution beyond reasonable doubt.

He contended that the Appellant and the 1st defendant knew about how the kegs of diesel were stolen from the Ekiti State Water Works Corporation.

He further posited that the prosecution was not under any duty to call all witnesses mentioned during investigation but only necessary witnesses.

In reply to the argument that there was no evidence to show that the Ekiti State Water Works diesel was stolen, Learned Respondent’s Counsel submitted that the Appellant came into possession of the kegs of diesel through Oluwasuyi Philips and Dosumu Ayodele who were at the said time workers with Ekiti State Water Works Corporation.

On conspiracy, he referred to the law on proof of conspiracy and submitted that once an agreement was shown to exist between the conspirators, evidence admissible against one conspirator was equally admissible against the others. He cited GBENGA OSHO vs STATE (2018 ALL FWLR (PT. 966) P. 233 at 250. He referred to respective statements of the defendants and submitted that there was sufficient evidence to sustain the charge of conspiracy.

ISSUE TWO
Learned Counsel for the Respondent on this issue argued that the Appellant’s statement, Exhibit D was confessional which was rightly admitted and relied on. He stated that the said statement was not challenged under cross-examination. He relied on IRENE NGUMA vs A–G IMO STATE (2014) 16 WRN page 1 at 24-25.

On Exhibit A, learned counsel submitted that Exhibit A was admitted without compliance with Section 232 of the Evidence Act and the three conditions stipulated under Section 232 were not met. The conditions are:-
(I) The attention of the witness must be specifically drawn to those the parts or portions of his previous statement in writing which are to be used for the intended contradiction.
(II) The witness must be reminded of what he had stated in the previous statement
(III) He must be given an opportunity of making explanation on the apparent contradiction. He cited KEKONG vs STATE (2018) ALL FWLR (PT. 923) pg 68 at pages (90–91).

He urged the Court not to evaluate evidence which has been evaluated by the trial Court. He cited ABEKE vs STATE (2007) ALL FWLR (PT. 366) p. 644 at page 649. He finally urged the Court to resolve the two issues in favour of the Respondent.

The Appellant in response filed REPLY BRIEF which is essentially a rehash of the Appellant’s brief. I shall therefore ignore it.
According to ARIWOOLA JSC in MATHEW vs STATE (2019) LPELR – 46930 (SC) “A reply brief is said not to be a repair kit to put right any lacuna in the Appellant’s brief of argument. See also Dr. AUGUSTINA MOZIE & ORS vs CHIKE MBAMALU & ORS (2006) 12 SC.M. (PT. 1) 306 at 320, OSUJI vs EKEOCHA (2009) 10S C.M. 72 at 85 (2009) 16 NWLR (PT. 1166) 81. A reply brief is not meant to afford the Appellant an opportunity for re-argument on another bite at the cherry. It is not meant to be used to repeat an argument or to extend the scope of the argument and submission in the Appellant’s brief of argument.”

RESOLUTION OF ISSUES
I have deeply considered the issues identified by the parties in this appeal.
The issues formulated are in my view condensable into one sole issue: to Wit:
WHETHER THE TRIAL COURT WAS RIGHT IN CONVICTING AND SENTENCING THE DEFENDANT /APPELLANT TO SEVEN YEARS IMPRISONMENT.

I shall resolve this appeal in the light of the above sole issue.

The Appellant was the 3rd Defendant at the lower Court.

The PW2, Sgt. Akinfolarin Festus gave evidence linking the Appellant as follows:
“Upon receipt of the information by my DCO, we booked at the charge Room and proceeded to the government house, upon the information by the governor. The governor handed over to us, the two (2) suspects, as well as the six (6) kegs of diesel. The names of the suspects handed over to us are: Olayiwola, the taxi driver, and Tope, who was in possession of the stolen goods.
The witness now identifies Tope in the Dock to be the one that is standing first, from his right hand side from the Dock. The (third) 3rd defendant.
The suspects and the kegs of diesel were taken to the police station for further investigation.
I obtained statement from the driver, by the name, Olayiwola. He conveyed the kegs of diesel in his car. I also obtained the statement of the second suspect, Tope. The statements were obtained after the cautionary words. In the course of taking down the driver’s statements, he confessed to me, that it was Tope who called him to render service as a cab driver. He said, they met at the NNPC, in the month of March. He is a buyer of diesel. That anytime he has diesel to convey, he would call for his services.
On the said day, he was called by Tope, that he had kegs of diesel to convey to his house. They met, and went to Water Works area, to convey diesel.
On their way, the vehicle developed fault. Tope brought the kegs of diesel, and put them in his car. It was at this point, that they were arrested. The youth in the neighbourhood formed team of people that arrested them. Having obtained their statements, the driver told me that Tope is the owner of the kegs of diesel.
Tope confessed that it was Suyi who sold kegs of diesel to him. Tope confessed that it was Suyi who sold kegs of diesel to him. (Witness now points at the defendant, who is first from the left hand side, and identified as Suyi).

Now, the statement of the Appellant, admitted as Exhibit D was admitted without objection. However, in his defence under cross-examination he said
“Policemen wrote statement for me. I was brutalized to the extent that I signed it. (Exhibit D shown to the witness). Witness identifies it as his statement.
“I was forced to sign it”

It seems to me the determination of the weight of Exhibit D in the light of the above will go a long way in resolving the above sole issue.

The Appellant did retract Exhibit D. What is the position of the law on a retracted statement?
SANUSI J.S.C in STATE vs YAHAYA (2019) LPELR- 47611 (SC) answered thus:
“…The law is trite however, that where an accused person later retracts his confession at the trial, the Courts have evolved a practice that the trial Court must look for some evidence no matter how slight, outside the confession which would make the confession probable. See Kopa vs State (1971) 1 ALL NLR 151; Onochie vs The Republic (1966) NMLR 307. This is however a rule of practice meant to discern which of the two versions of the events is likely to be correct for the trial Court to rely on with regard to the commission of the said crime. See Peter Azabada vs. The State (2014) LPELR 23 101 7(SC). Where an accused person retracts his confessional statement, that statement still remains voluntary even though it is desirable that the Court looks for corroborative evidence outside the confession to ascertain the truth of such statement. A confessional statement does not become inadmissible or inapplicable simply because it was retracted by the maker since a trial Court can even convict the maker of it even based on it alone once it is satisfied that it was made voluntarily. As I stated earlier, it is desirable for the Court to look for corroborative evidence independent of or outside the said confessional statement. See Kareem vs FRN (No.2) (2002) 8 NWLR (Pt.770)205.”
My Lords, the fact that the statement was admitted without any objection does not detract from the fact that the Appellant later in his defence retracted the statement. The statement Exhibit D remains a retracted statement in spite of it not having been earlier objected to.
However, to attach weight to it, the Court must seek out some of the other facts which confirm the truth of the contents of the statement.

In Exhibit D the appellant is quoted to have stated inter alia thus:
“After I have graduated from the School, I started in buying and selling diesel oil. In Ado-Ekiti, I used to buy my diesel oil a time in filling station and some of the trailer drivers coming from Lagos sell part of their oil diesel to me when they are in need of money, also when their lorry developed Engine fault, and when they have no money with them, they will consult their company on phone to sell me four of twenty- five litre to me and give them money to eat. In year 2009, I was selling fish pepper soup in the front of Ekiti water works off Ajilosun road Ado-Ekiti, this is how I know most of the staff working in that water work office. I know Mr. Suyi in whom is surname is unknown to me at water work. He told me that, he has six kegs of diesel oil to sell, being that, he know that, I have change my business from pepper soup fish to oil business. I proceed to this man place along water works road, I meet the man where he kept the diesel oil. I bought a keg of the diesel at the rate of N6,000 per each. I have not paid for the oil until I sell it, on main the driving person that called the driver to conveying the six kegs of the oil diesel to my house. On our way going from one street beside water work that three men stop the driver that they suspected our movement”.

The PW1, Olajide Rachael identified the Appellant as Tope Eleja, a fish seller by the gate of her office who later became a water tanker driver. It should be noted that the kegs of diesel were claimed or belonging to Ekiti State Government. Nobody else claimed them. They were recovered from the Appellant.

The PW2 Sgt. Akinfolarin Festus said the Appellant told him that the 1st Defendant sold the kegs of diesel to him. He further said the driver Olayiwola told him the Appellant employed him to convey the kegs of diesel. The learned trial judge who saw and heard the witnesses and the Defendants when they gave evidence found them to be dishonest and accepted the prosecution’s case. The weight to be attached to findings of fact particularly when they arose from assessment of demeanor of witnesses whom the trial Court saw and heard is very heavy. They are treated with sanctity. See OKE & ANOR vs MIMIKO (2014) INWLR PT 1388 pages 332.
Findings of facts of the trial Court must be approached with extreme caution and I will not disturb the findings unless I am satisfied that the trial judge made no use or improper use of the advantage of seeing, watching and hearing the witnesses who gave evidence before him. In this instance, I see no reason to disturb the findings of facts of the lower Court who accepted the evidence of the prosecution witnesses. The attempted retraction of Exhibit D by the Appellant was in vain. Much weight was rightly attached to the statement of the Appellant i.e. Exhibit D. The judgment of the lower Court is in the circumstance unimpeachable with regards to conviction.

Now, as to the sentence imposed. The Appellant in his Notice of Appeal as well as in his Appellant’s brief of argument prayed for an option of fine.
To my mind, this being a criminal appeal, stringent rules need not be applied. My take is that the Appellant has appealed against the sentence even though informally by seeking for an order granting the Appellant an option of fine.
Clearly, the Appellant has appealed against his conviction and the provision of Section 19(3) of the Court of Appeal Act (2005) as amended can be invoked in considering the sentence imposed.
I have deeply considered the judgment of the lower Court. I find the sentence of seven years imposed on the Appellant who is a first offender too harsh and excessive more so when no reason for the heavy sentence was given in the judgment and the items stolen were recovered. By the virtue of the powers conferred upon this Court under Section 19(3) of the Court of Appeal Act of 2005 (as amended), I hereby set aside the sentence imposed by the lower Court.
Section 19(3) of the said Act reads:
‶On an appeal against sentence or, subject to the provision of this Act, or on an appeal against conviction, the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as it thinks ought to have been passed, and if not of that opinion shall, in the case of an appeal against sentence, dismiss the appeal.‶

I order that the Appellant be sentenced to a term of two (2) years imprisonment with effect from the time he was convicted i.e. 18/12/2020.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

ABDUL-AZEEZ WAZIRI, J.C.A.: An advance copy of the judgment prepared by his Lordship T.O. Awotoye, JCA was made available to me before now. After a careful perusal of same, I find myself in complete agreement with the reasoning and the conclusion arrived at therein.

I however, wish to chip in few comments, particularly on the sentence passed on the Appellant by the lower Court for the offences of conspiracy and stealing of diesel oil, property of Ekiti State Government contrary to Sections 516 and 390 of the Criminal Code.

Appellant’s grouse herein is in respect of the lower Court’s failure to have given him an option of fine being a first time offender which the prosecution/Respondent conceded.

It is not in dispute that the prosecution proved its case against the Appellant herein, but for its failure to consider an option of fine being a first time offender.

Having calmly examined the provision of Section 19 (3) of the Court of Appeal Act, 2005 earlier on reproduced in the lead judgment, this Court has been accorded the powers to substitute the sentence passed, by quashing or increasing as the case may be.

Therefore, with the few remarks and for the fuller and more detailed reasons advanced in the lead judgment I too kowtow the same line. I shall dismiss the appeal, but stand by the order of variation of the sentence from seven (7) years to two years (2) made in the lead judgment.