TERHILE EMBARGA v. THE STATE
(2018)LCN/12402(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 20th day of March, 2018
CA/YL/43C/2016
RATIO
COURT AND PROCEDURE: WHERE THE DECISION OF A COURT IS PERVERSE
“A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence; or that it misconceived the thrust of the case presented; or took irrelevant matters into account which substantially formed the basis of its decision; or went outside the issues canvassed by the parties to the extent of jeopardising the merit of the case; or committed various errors that faulted the case beyond redemption. The hallmark is invariably, in all this, a miscarriage of justice, and the decision must be set aside on appeal: See Atolagbe v. Shorun (1985) 1NWLR (Pt.2) 356; Adimora v. Ajufo (1988) 3NWLR (Pt.80) 1; Agbomeji v. Bakare (1998) 7 S.C. (Pt.1) 10; (1998) 9NWLR (Pt.564)1; Odiba v. Azege (1998) 7 S.C. (Pt.1) 79; (1998) 9NWLR (Pt.566) 370. (The underlining is supplied by me for emphasis).” PER OYEBISI FOLAYEMI OMOLEYE
EVIDENCE:WHERE AND UNCORROBORATED EVIDENCE IS RELIED ON
“It was equally a travesty of justice to rely on the uncorroborated purported statement of the Appellant to convict him of a purported offence for which he was not charged. The constitutional rights of the Appellant under Section 36(5) and (6) of the 1999 Constitution were thereby violated.” PER OYEBISI FOLAYEMI OMOLEYE
FUNDAMENTAL RIGHT: DOCTRINE OF FAIR HEARING
“Fair hearing connotes several things. It depends on the circumstances of each case. It includes fair trial. Failure or want of hearing is a constitutional issue that goes to the root of adjudication so far as it offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. Where an accused person (as in this case on appeal) was not put on notice and his plea properly taken thereto of the offence for which he was convicted, there is failure of hearing.” PER SAIDU TANKO HUSSAINI, J.C.A.
Before Their Lordships
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYIJustice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINIJustice of The Court of Appeal of Nigeria
Between
TERHILE EMBARGAAppellant(s)
AND
THE STATERespondent(s)
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Judgment of the Taraba State High Court delivered in Jalingo on the 7th July, 2015 wherein the trial Judge convicted and sentenced the appellant to a term of imprisonment of 2years and 15 years respectively for Criminal Conspiracy and Armed Robbery punishable under Section 97(1) and 298(b) of the Penal Code of Taraba State.
At the commencement of trial the appellant entered a plea of ‘not guilty’ to each and every count when the two-count charge was read to him (appellant).
The only witness who testified for the prosecution was Pw1, the IPO attached to the State CID office, Jalingo and through him Exhibit A and B were tendered and admitted in evidence amid objection.
Exhibit ‘A’ is the Statement tendered and admitted as the Confessional Statement of one BITO SEMAKA.
Exhibit ‘B’ is the Statement tendered and admitted as the Confessional Statement of Terhile Embargo, the appellant in this case.
At the close of prosecution’s case, the appellant opened his defence and testified as Dw1.
He denied knowledge of the offence(s) with which he was charged. He narrated those circumstances that led to his arrest and detention at the Police Station at Afoba in Donga Local Government. Thereafter his case was transferred to the State CID office in Jalingo. He distanced himself from Exhibit ‘B’ saying that Exhibit ‘B’ was not his Statement. He closed his case thereafter.
His counsel presented a final address on his behalf and on behalf of one other person but the trial Court in the Judgment delivered on the 7th July, 2015 returned a verdict of guilt and sentenced the appellant accordingly on the two count charge. At page 65 of the record of appeal, the Court held as follows:-
From Exhibits A and B I infer the offence of Criminal Conspiracy. The 1st accused has confessed committing the offence of armed robbery. The fact that 2nd accused was present at the two scenes of the robbery presumed he consented to the robbery.
I am satisfied that the two accused person with two other(sic) who now at large committed the offence with which they have been charged. I accordingly find them guilty on all (sic) the two counts of Criminal Conspiracy and armed robbery.
Against this Judgment and Order the appellant lodged his appeal to this Court vide the Notice of Appeal filed on the 5th October, 2015. By the amended Notice dated 4th January, 2017 and deemed properly filed 2nd March, 2017, the appellant has appealed to this Court on 3(three) grounds namely:
GROUND ONE
The learned trial Judge erred in law and occasioned a miscarriage of justice when he held that:
“From Exhibit A and B I infer the offence of Criminal Conspiracy. The 1st accused has confessed to committing the offence of armed robbery. The fact that the 2nd accused was present at the two scenes of the robbery I presumed he consented to the robbery.”
PARTICULARS OF ERROR
1. The accused person was said to speak Hausa and Tiv languages throughout the proceedings during trial.
2. The Statement of the accused person was purportedly volunteered in English and translated to English language.
3. The purported interpreter of the accused person?s Statement never testified in Court as to how he put the questions in Tiv to the appellant.
4. The trial Court relied on Exhibit A, which is the purported Confessional Statement of the 1st accused to hold and find that the appellant is guilty of the offence of conspiracy.
5. Exhibit A an B are inadmissible documents
6. The appellant never made Exhibit B
GROUND TWO
The learned trial Judge erred in law and occasioned a miscarriage of justice when he held that:-
“I am satisfied that the two accused persons and two others who now at large committed the offence for which they have been charged.”
PARTICULAR OF ERROR
1. The prosecution did not prove the guilt of the accused beyond reasonable doubt.
2. The prosecution did not prove the ingredients of Criminal Conspiracy and Armed Robbery against the accused person.
GROUND THREE
The trial and conviction of the accused is unreasonable, unwarranted and vexatious having regard to the evidence placed before the trial Court.
Upon the transmission of the record of appeal to this Court, counsel in the case filed and exchanged their respective brief of argument.
In the brief of argument filed on behalf of the appellant on 11th May, 2017, is the lone issue formulated at page 2 for determination, to wit:-
“Whether the learned trial Judge was right to have relied on Exhibit A and B in convicting and sentencing the appellant for the offences of Conspiracy and Armed robbery?” (Distilled from grounds 1, 2 and 3 of the Amended
Notice of Appeal.
The Respondent in the same vein, formulated just one (1) issue for determination at page 4 of the Respondent?s brief of argument deemed filed on the 30th October, 2017. Issue for determination is:-
“Whether having regard to the evidence on record, the learned trial Judge was right to have convicted the Appellant for the offence of Criminal Conspiracy (distilled from grounds 1, 2 and 3 of the amended Notice of Appeal).”
Parties through their counsel adopted their respective briefs of argument at the sitting of Court on the 18th January, 2018.
Arguing the sole issue formulated in the appellant?s brief of argument, his counsel submitted that the appellant was convicted solely on the Statement that is, Exhibit ?B? said to be the appellant?s Confessional Statement. While conceding to the Statement of law that an accused person can be convicted on his own Confessional Statement without corroboration if the Statement is direct and positive and duly made and satisfactorily proved, he argued however that it is desirable to have some facts outside the Confessional Statement no matter how slight which makes it probable that the confession was true, citing decisions in Federal Republic of Nigeria v. Iweka (2013) 3 NWLR (Pt. 134) 285; Edamine V. State (1996)3 NWLR (Pt. 438) 530; Lawal vs. State(2016) 14 NWLR (Pt. 1531) 69; Emeka vs. State (2001) 14 NWLR (Pt. 734) 66; Akpa v. State (2008) 14 NWLR (Pt. 1106) 92; Galadima vs. State (2012) 18 NWLR (Pt. 1333) 610.
Exhibit ‘B’ upon which the appellant was convicted he argued, was not so supported by any corroborative evidence outside it to prove that the confession was true and the trial Judge having thus failed to observe the rule in R v. Sykes (1913) 8 CAR 233, the Confession in Exhibit ‘B’ cannot be true.
Learned appellant’s counsel argued most forcefully that Exhibit ‘B’ upon which the appellant was convicted was not direct, positive and unequivocal in establishing the ingredients of the offence for which he was tried. He argued that the alleged robbery which is the charge against him under the second count is not the same armed robbery the appellant was alleged to have confessed to and upon which he was convicted. Learned appellant?s counsel further contended that the failure of the police to record Exhibit B in Tiv language, being the language the appellant volunteered his Statement and to tender both the Tiv and English versions of the Statements in evidence was fatal to the case of the Prosecution. He relied on Olanipekun Vs. State (2016) Vol. 256 LRCN 1, 23.
This point being made that the charge of robbery on which the plea of the appellant was taken was not the same armed robbery the appellant confessed to, is very germane to this case on appeal because it touches on one fundamental question and that is, the issue of fair hearing before conviction in any criminal trial.
The Respondent has however argued in their brief of argument based on this or similar question (issue) raised by them in their brief that, an accused person standing trial can be convicted on his own Confessional Statement. That too I agree and there are a plethora of authorities on this point See: Odua V. Federal Republic of Nigeria (2000) 5 NWLR (Pt. 261) 615, 637; Akpan V. State (1992) 7 SCNJ 22; Egboghonome V State (1993) 7 NWLR (Pt. 306) 383, 411-412; Ishaya V. The State (2013) LPELR 22202(CA); In the State Vs. Shontu (2014) LPELR ? 24206(CA) this Court held that:-
‘It has been settled in a long line of decided authorities that, in appropriate cases, an accused person can be properly convicted on his or her Confessional Statement alone. See Ojegele V. State (1988) 1 NSCC 276. However it is always desirable to have some evidence outside the confession in further proof of the offence. Since confession must be direct, positive, true and unequivocal of facts that satisfy the ingredients of the offence the accused person confesses to have committed.’
In the proof of evidence before the trial Court (page 3 of the record of appeal) the respondent submitted a list of 8 (eight) persons who were to appear as witnesses for the Prosecution out of which only 1 (one) that is, Iorahi Zambur was called to testify as a witness before the trial Court.
The rest did not appear. It is in the course of the evidence of this witness as Pw1, that Exhibit ‘B’ among other Exhibits, was tendered and admitted. Exhibit ‘B’, attributed to the appellant as his Confessional Statement was admitted amid objection taken that no such Statement was made by the appellant. Be it noted that the retraction of a confession does not make it inadmissible. See Ubierho Vs. State (2005) NWLR (Pt. 919) 644; Akpan Vs. State (1992) NWLR (Pt. 248). Such Confessional Statement is admissible evidence.
However before conviction can properly be founded on such statement, it is desirable to have some evidence outside the confession, that is, Exhibit ‘B’ which would make it probable that the confession was true. See: Ubierho Vs. State (supra); Akinmoju V. State (2000) 6 NWLR (Pt. 662).
The trial Court thus, having admitted in evidence, Exhibit ‘B’ it is incumbent on it to apply the test in R v. Sykes (supra). This test has been adopted by the Courts of the land as in the decision in Nwaebonyi Vs. The State (1994) 5 NWLR (Pt. 343) 138 where the following considerations have been laid down before any weight can be attached to a retracted confession, that is:-
(i) Is there anything outside the confession which shows that it is true?
(ii) Is it corroborated in any way?
(iii) Are the relevant statement of fact made in it most likely to be true as far as they can be tested?
(iv) Did the accused have the opportunity of committing the offence?
(v) Is the confession possible?
(vi) Is the alleged confession consistent with other facts which have been ascertained and established?
It is worthy of note that trial Court below did not embark on the procedure stated above to evaluate that evidence in order to establish the truth of the contents of Exhibit ‘B’ to justify the conviction of the appellant thereon. It cannot thus be asserted that Exhibit ‘B’ is the direct, positive, true and unequivocal Statement coming from the appellant.
Assuming for the moment that Exhibit ‘B’ is such direct, positive and true Statement coming from the Appellant, I am constrained to examine the implications of the Judgment of the trial Court appealed against vis a vis the two count charge and the appellant’s Confessional Statement in Exhibit ‘B’.
The two-count charge read thus:-
COUNT ONE: STATEMENT OF OFFENCE
Criminal Conspiracy Punishable under Section 97(1) of the Penal Code.
PARTICULARS OF OFFENCE
That you BITO SEMAKA and TERHILE EMBERGA on or about the 4th day of February, 2010 along Mai-Magani village in Donga Local Government Area within the Takum Judicial Division agreed to do an illegal act to wit:- you jointly and severally agreed to rob the following people of their belongings.
1. Chape Adagonye of the sum of N15, 200, Whenyo Japhet of the sum of 15, 000, Manu Nathaniel of the sum of N1, 000, valued at N3, 200, Tafisu Bala?s Handset with double sim valued at N12,000 and Igbakuna Nguishima of the sum of N50 only and at gunpoint and in furtherance of the agreement.
COUNT TWO: STATEMENT OF OFFENCE
Robbery punishable under Section 198 (b) of the Penal Code laws of Taraba State 1997.
PARTICULARS OF OFFENCE
That you BITO SEMAKA and TERHILE EBERGA on or about the 4th day of February, 2010 along Mai-magani village in Donga Local Government Area within the Takum Judicial Division committed robbery to wit:- you robbed the following people of their belongings: Chape Adagonye of the sum N15. 200, Whenyo Japhet of the sum of 17, 200, Manu Nathaniel of the sum of N15, 000, valued at N3, 200, Tafisu Bala’s Handset with double sim valued at 12, 200 and Igbakuna Nguishima of the sum of N50 only at gun point.
Exhibit ‘B’ the Statement attributed to the appellant as his Confessional Statement read thus:-
I of the above name and address freely elect to state that on 14/2/2010 I came and met four other persons (1) Bito (2) Aondoaver (3) Terdue Aondava (4) Suuter and (5) Terhile Emberga. We went for hunting when we reached Fulani camp Bito say we should go and robbed the Fulani. Bito was with Dane gun, I was with cutlass and the last were with theirs, when this idea came. Suuter and me returned to go the three people (1) Bito (2) Terdue Aondava (3) Aondoaver went attached the Fulani and robbed them, after place, we came to another place the same people blocked the road and robbed Suuter told me that what is happening he don’t like I only he don’t know the way back home, it was at the point of robbery the fulanis and the villagers came and attach us, Tenve Aondava and Aondoaver escaped. Suuter who was hunting also was arrested. We all went the hunting I and Suuter did not partake in the robbery, it is not true that the cutlass I was with was robbed from Fulani camp. That is all I have to say.
(Words underlined for emphasis)
By a comparative analysis of the two-count charge and Exhibit ‘B’ put together, it is obvious that the appellant and one Bito Semaka were charged to Court for the offence of Criminal Conspiracy and Robbery under Sections 97(1) and 298(b) of the Penal Code, Laws of Taraba State but the appellant was convicted for the offence of Criminal Conspiracy and Armed robbery based on the charge filed by the Prosecution.
The robbery for which the appellant stood trial took place on the 4th day of February, 2010 along Mai-Magani village in Donga Local Government Area. However the robbery the appellant confessed to was committed on the 14th day of February, 2010 at a Fulani camp, a place not particularly identified by name or location nor is the camp said to be along Mai-Magani village.
In the Judgment delivered on the 7th July, 2015 the trial Court based its decision on Exhibit ?B?. Reading through the document however, it is clear to me that the facts and circumstances contained therein are at variance with the charge or information under which the plea of the accused person (appellant) was taken. A conviction and sentence based on evidence which is not supported by facts disclosed in the charge or count cannot stand, for like pleadings in civil claims or matters, such evidence go to no issue. More importantly however, a conviction founded on any piece of evidence which is not covered by a charge is a travesty of justice so far as that trial lack basic constituents of fair hearing.
Fair hearing connotes several things. It depends on the circumstances of each case. It includes fair trial. Failure or want of hearing is a constitutional issue that goes to the root of adjudication so far as it offends Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. Where an accused person (as in this case on appeal) was not put on notice and his plea properly taken thereto of the offence for which he was convicted, there is failure of hearing. The person whose civil rights and obligation is being curtailed and investigated must fully be put on Notice of the offence by way of a formal charge framed or drawn relative (as in this case) to Exhibit ‘B’ on which he was convicted and sentenced. Such a charge shall contain all relevant facts and information as to the nature of the offence committed, the date and place the offence was committed. See Sections 200-203 of the Criminal Procedure Code of Northern Nigeria. See also Section 271(2) (a) (b) of the Administration of Criminal Justice Act, 2015. There is nothing on the record of appeal to suggest that an information or charge was framed based on Exhibit ?B? upon which the trial Court convicted and sentenced the appellant to a term of imprisonment.
In the absence of such a procedure being observed the appellant cannot be said was rightly or properly convicted, hence the only issue earmarked for determination in this appeal should and same is hereby resolved in favour of the appellant and against the respondent. The appeal in effect is allowed and the conviction of the appellant is quashed and accordingly, he is discharged and acquitted.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft form the leading judgment just delivered by my learned Brother, S. T. Husaini, JCA, in this appeal.
I am at one with His Lordship?s line of reasoning and the conclusion reached that the appeal is imbued with merit.
It is crystal clear that facts upon which the Appellant was convicted and sentenced are at variance with the particulars of the charge for which he was tried. The learned trial Judge completely ignored this very sharp point of law in his judgment the subject of this appeal.
This is a flagrant infraction of the constitutionally enshrined and guaranteed fundamental human right of the Appellant to fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The Appellant was charged and tried for Criminal Conspiracy and Robbery which was allegedly committed on 4th February, 2010 along Mai-Magani Village in Donga Local Government Area.
Whereas, the Appellant’s conviction and sentence were based solely on his alleged confessional statement wherein he confessed to the commission of the Offence of Robbery on 14th of February, 2010 at an unspecified location. This is a very grave gap. For, the Offences with which the Appellant was charged and tried is punishable, inter alia, with a term of imprisonment for Twenty-One years; while, he was convicted and sentenced for an Offence punishable with a mandatory term of Imprisonment for Life. The decision of the trial Court in the instant matter is a classical example of a perverse decision which must be penalised with an order setting same aside. In the case of: Udengwu v. Uzuegbu (2003) 13 NWLR (Pt.836) p.136, the Supreme Court per the Erudite Uwaifo, JSC (Rtd.) had the following to say on this very pivotal issue:
A perverse decision of a Court can arise in several ways. It could be because the Court ignored the facts or evidence; or that it misconceived the thrust of the case presented; or took irrelevant matters into account which substantially formed the basis of its decision; or went outside the issues canvassed by the parties to the extent of jeopardising the merit of the case; or committed various errors that faulted the case beyond redemption. The hallmark is invariably, in all this, a miscarriage of justice, and the decision must be set aside on appeal: See Atolagbe v. Shorun (1985) 1NWLR (Pt.2) 356; Adimora v. Ajufo (1988) 3NWLR (Pt.80) 1; Agbomeji v. Bakare (1998) 7 S.C. (Pt.1) 10; (1998) 9NWLR (Pt.564)1; Odiba v. Azege (1998) 7 S.C. (Pt.1) 79; (1998) 9NWLR (Pt.566) 370. (The underlining is supplied by me for emphasis).
There is no doubt in my mind that, the hallmark of the decision of the trial Court in this matter is a miscarriage of justice, occasioned to the Appellant. For this reason and the more detailed reasons advanced in the leading judgment, I unhesitatingly set the said judgment aside. Hence, the conviction and sentence of the Appellant are accordingly quashed. The two count Charge, dated 18th of October, 2010, preferred against the Appellant at the trial Court is dismissed and the Appellant is consequentially discharged and acquitted.
JAMES SHEHU ABIRIYI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother Saidu Tanko Husaini JCA. He has dealt admirably with the only issue for determination.
The Court below undoubtedly did palm tree justice in the case before it. The Chambers Dictionary defines palm tree justice as justice without litigation and legal processes. It is said to be an old Arabic or Jewish idea of a wise man dispensing justice under a palm tree.
In the instant case, the prosecution charged the Appellant for a robbery in which not a single witness was called even though the prosecution had the names and addresses of five victims of the robbery who made statements that are attached to the proof of evidence. All five victims come from one village Donga.
No police officer from Donga Police Station where the robbery was first reported testified. Inspite of all these the Court below pronounced the Appellant guilty of the offence charged. The Appellant did not confess to the offence for which he was pronounced guilty. This was a travesty of justice. Trial Courts should not do palm tree justice because the idea of a wise man dispensing justice under a palm tree is unknown to our law. There was no basis for convicting the Appellant for the offence charged when the prosecution refused to prosecute the Appellant for the offences for which he was charged.
It was equally a travesty of justice to rely on the uncorroborated purported statement of the Appellant to convict him of a purported offence for which he was not charged. The constitutional rights of the Appellant under Section 36(5) and (6) of the 1999 Constitution were thereby violated.
The learned Director of Public Prosecutions has not seen anything wrong with the trial and conviction of the Appellant. Let me simply say that I am taken aback. Has the learned Director of Public Prosecutions ceased to be a Minister in the temple of justice?
For these reasons and the more detailed reasons contained in the lead judgment I too allow the appeal.
The conviction and sentence of the Appellant are quashed. The Appellant is discharged and acquitted.
Appearances:
E. B. KizitoFor Appellant(s)
Hamidu Audu, Esq. with him, C. R. Skaki, Esq. and E.T. Anderi F.UFor Respondent(s)
