TERHIRE DEGA v. THE STATE
(2014)LCN/7707(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 27th day of May, 2014
CA/YL/5c/2014
RATIO
EVIDENCE: PRESUMPTION; THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON AND THE BURDEN IT PLACES ON THE PROSECUTION
Under the 1999 Constitution as it affects our adversarial criminal system, an accused person is presumed innocent until proven guilty by a competent court. This presumption of innocence places a burden on the prosecution to prove a case beyond reasonable doubt in accordance with Section 138 of the Evidence Act Cap 112 Laws of the Federation. In the process, the prosecution has to prove all the essential ingredients of an offence as contained in the charge. The prosecution has the responsibility of proving all the essential elements of the offence charged by producing vital material evidence and vital witnesses to testify during the proceedings. per. JUMMAI HANNATU SANKEY, J.C.A.
CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE INGREDIENT OF THE OFFENCE OF ARMED ROBBERY
With regard to the instant case therefore, the essential ingredients of the offence of armed robbery under Section 1 (2) (a) & (b) of the Robbery and Firearms Act are as follows:
i. There was a robbery;
ii. That the robbery was with arms; and
iii. That the accused was one of the armed robbers or the robber.
For the prosecution to succeed in proof of the offence of armed robbery there must therefore be proof beyond reasonable doubt of these ingredients. per. JUMMAI HANNATU SANKEY, J.C.A.
COURT: WHAT THE COURT MUST LOOK AT BEFORE IT CAN COME TO THE CONCLUSION THAT AN OFFENCE HAS BEEN COMMITTED BY AN ACCUSED PERSON
However, before a court can come to the conclusion that an offence has been committed by an accused person, the court must look for the ingredients of the offence in the evidence presented and ascertain critically that the acts of the accused person come within the confines of the particulars of the offence charged. See Alor V State (1997) 4 NWLR (Pt. 501) 511; Amadi V State (1993) 8 NWLR (Pt. 314) 644. A court of law needs not take into account the number of witnesses for each side to a dispute as a relevant factor in deciding which side is to succeed. What is primarily relevant is the quality of the evidence adduced before the court. See Afolalu V State (2010) 7 SCNJ 354 per Adekeye, JSC; Garko V State (2006) 6 NWLR (Pt. 977) 524; Oguonzee V State (1998) 5 NWLR (Pt. 55) 521. per. JUMMAI HANNATU SANKEY, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; THE MEANING OF CONFESSION ACCORDING TO THE EVIDENCE ACT AND WHETHER AN ACCUSED CAN BE CONVICTED ONLY ON HIS OR HER CONFESSIONAL STATEMENT ALONE
By a combination reading of the relevant provisions of the Evidence Act and case law, the words ‘confession’ or ‘confessional statement’ refers to an admission made at any time by a person charged with a crime suggesting or stating that he committed the crime. See Afolalu V State (2010) 7 SCNJ 354 per Muhammad, JSC; Kassi V State (1994) 75 NWLR (344) 269 @ 284-288; Edhigere V State (1994) 5 NWLR (Pt. 344) 312 @ 321; Nwaebonyi V State (1994) 5 NWLR (Pt. 343) 138 @ 14. If made voluntarily, a confession is admissible in evidence. See Balogun V A-G (Federal) (1994) 5 NWLR (Pt. 345) 442 @ 462-463. See also Section 28 of the Evidence Act. It has been settled in a long line of authorities that, in appropriate cases, an accused person can be properly convicted on his or her confessional statement alone. See Fatai V State (2013) Vol. 2-3 MJSC 145; Edhigere V State (1996) 8 NWLR) (Pt. 464) 1; Ojegele V State (1988) 1 NSCC 276. Although it is always desirable to have some evidence outside the confession in further proof of the offence, the absence of such additional evidence would not necessarily prevent a court from convicting on the confessional statement alone, provided the statement satisfies the test of being positive, direct and unequivocal. See FRN V Iweka (2011) 12 SCNJ 783, per Tabai, JSC. per. JUMMAI HANNATU SANKEY, J.C.A.
EVIDENCE: RETRACTED CONFESSION; WHETHER A COURT CAN CONVICT ON THE RETRACTED OR DENIED CONFESSIONAL STATEMENT OF AN ACCUSED PERSON AND THE QUESTION THE COURT SHOULD ASK ITSELF BEFORE SUCH
While it is the law that a court can convict on the retracted or denied confessional statement of an accused person, it is incumbent on the court to first evaluate the confession and the testimony of the accused person and all the other evidence available. The Judge is required to examine the version of events as presented by the accused person, which version is different from the retracted confession, and then it should ask itself the following questions:
i) Is there anything outside the confession to show that it is true?
ii) Is it corroborated?
iii) Are the relevant statements made in it of facts true as far as they can be tested?
iv) Did the accused person have the opportunity of committing the offence charged?
v) Is the confession possible?
vi) Is the confession consistent with other facts which have been ascertained and have been proved?
See Ogudo V State (2011) 12 SCNJ 1, per Rhodes-Vivour, JSC; Mbenu V State (1988)3 NWLR (Pt.84) 615.
Thus, although the court can convict only on the extra-judicial confessional statement of an accused person, it is desirable to have some independent evidence outside the confession which makes it more likely that the confession is true. In other words, some evidence, no matter how slight of circumstances which make it probable that the confession is true. See Edhigere V State (1996) 8 NWLR (Pt. 464) 1. Where such evidence is not available, he should be given the benefit of the doubt. See Ogudo V State (supra). per. JUMMAI HANNATU SANKEY, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT THE TEST FOR THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT
It is the law that the test for the admissibility of a confessional statement is its voluntariness, and so, once the issue is raised it must be resolved one way or the other before its admission or otherwise. See Eke V State (2011) 2 SCNJ 57, per Fabiyi, JSC; Agholor V A-G Bendel State (1990) 6 NWLR (Pt. 155) 141; Ogoala V State (1991) 2 NWLR (Pt. 175) 509. per. JUMMAI HANNATU SANKEY, J.C.A.
CRIMINAL LAW: THE CASE OF ARMED ROBBERY; THE QUESTIONS TO ASK IN A CASE OF ARMED ROBBERY
In this case of armed robbery, it became mandatory for the prosecution to prove beyond reasonable doubt that there was a robbery on the date in question, in which arms were used and the Appellant participated in the robbery. The logical questions to ask therefore are: from the evidence adduced before the trial Court:
(i) Was there any cogent evidence before the trial Court that indeed a robbery took place on the date in question?
(ii) Were there any arms used in the robbery, if any?
(iii) Did the prosecution prove the identity of the Appellant as one of the robbers who attacked the said Ahmadu Yahaya the alleged victim on 13-09-07 per. JUMMAI HANNATU SANKEY, J.C.A.
Before Their Lordships
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEYJustice of The Court of Appeal of Nigeria
ADAMU JAUROJustice of The Court of Appeal of Nigeria
Between
TERHIRE DEGAAppellant(s)
AND
THE STATERespondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Taraba State High Court of Justice, sitting at Jalingo delivered on 18th October, 2013 in Suit No. TRST/8C/2009 wherein the Appellant was found guilty of the offence of armed robbery contrary to Section 1(2)(a) and (b) of the Robbery and Firearms Act, and consequently sentenced to death.
The brief facts of the case as presented to the trial Court are that, sometime on 12-09-07, an incident of armed robbery took place at Bibinu Fali road in Donga Local Government Area, where one Ahmadu Yahaya was attacked by a group of armed robbers who dispossessed him of the sum of N60,000.00. The said victim lodged a report of the attack to Cpl. Linus Jerome, PW2, at the Police Outpost at Bibinu. The PW2 then enlisted the support of one Usman Ilyasu, a member of a Vigilante group. They both proceeded to the scene of crime where he said the Appellant was arrested. From his testimony, the Appellant was found in possession of a handset, the sum of N1,200.00, some Indian hemp, a charm and rings. The PW2, thereafter, handed the Appellant to the Police at the Divisional Police Headquarters, Mararraba.
Afterward, the case was transferred to the Special Anti-Robbery Squad (SARS) in Jalingo and was assigned to the PW1 for investigation. PW1 testified that he received both the Appellant and the items recovered from him during the arrest. In his evidence PW1, on his part, contends that as part of the items recovered from the Appellant which, were handed over to him, was a locally made single barrel pistol, a Vodafone handset and two pieces of dried bush meat. This, I must point out, is diametrically different from the items which the arresting officer, PW2, said he recovered from the Appellant at the scene. Be that as it may, PW2, as the Investigating Police Officer, (IPO), went on to state that the Appellant volunteered a statement to him which he recorded. Thereafter, he arraigned the Appellant before the trial Court on a charge of armed robbery. The charge against the Appellant is as set out at page 1 of the Record of the lower Court and it reads follows:
“That you Terhire Dega on or about the 13th day of September, 2007 along Bibinu Fali road in Donga Local Government Area within Takum Judicial division committed an offence to wit: robbed one Ahmadu Yahaya of the sum of Sixty Thousand Naira (60, 000.00) with some dry meat at gun point.”
At the trial, two (2) witnesses testified for the State. A confessional statement, said to have been made by the Appellant, was tendered through the PW1 and same was admitted in evidence and marked Exhibit A. However, neither the single barrel pistol nor the handset, nor even the two pieces of dried bush meat for that matter, which the PW1 testified were recovered from the accused and were handed over to him, and which were also listed in the proofs of evidence filed before the lower Court, were tendered. Noteworthy also was that the items reportedly recovered by the PW2, the arresting police officer, were quite different from those the PW2 alleged to have been handed over to him and they were never tendered in evidence.
The Appellant was the sole witness in his defence. He essentially denied the charge and also denied that he ever made the Exhibit A, the confessional statement ascribed to him. He stated instead that he was arrested while eating a meal at a Restaurant at Peva in Takum Local Government Area, on an allegation that he was seen in possession of a stolen handset. He was then taken to the Police Station where he explained that he bought the handset from a shop in Takum. Thereafter, he was taken to Jalingo on the same allegation, where he offered to show the Police his receipt for the handset or even take them to the person who sold same to him in Takum. This offer was not accepted nor was it acted upon in the course of investigation. Instead, the Police detained him and subjected him to severe beatings with a Police baton that, at a point in time, even caused him to faint. He alleged that the Police wrote the Exhibit A and held his hand to thumbprint the statement. He, therefore, denies that he confessed to the crime or that he made the confessional statement, Exhibit A.
At the close of trial and final addresses of Counsel, the learned trial Judge found the Appellant guilty of armed robbery contrary to Section 1 (2) (a) and (b) of the Robbery and Firearms Act, and consequently, sentenced him to death. Dissatisfied with his conviction and sentence, the Appellant filed an Appeal on 26-11-13 challenging this conviction and sentence on three (3) grounds as contained in his Notice and Grounds of Appeal at pages 60-64 of the printed Record.
On 14-04-14, when this Appeal was called up for hearing, the Appellant, who is incarcerated in Prison, was not represented in Court by his Counsel, Mr. E.K. Idepefo, who, though duly served a hearing notice, wrote a letter to the Registrar of Court seeking an adjournment. The application was denied and the Appellant’s Brief of Argument filed on 28-03-14 was deemed argued pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011. Whereupon, Mr. Hamidu Audu, Director Public Procurement, Ministry of Justice, Taraba State, leading Mr. C.R. Shaki, State Counsel II, and Mr. Z.Y. Usman, State Counsel II, adopted the Respondent’s Brief of Argument filed on 28-03-14. He also relied on the arguments contained therein as the Respondent’s arguments in this Appeal. He urged the Court to dismiss the Appeal and affirm the Judgment of the lower Court delivered on 18-10-13.
Both learned Counsel submitted two issues each for the determination of the Appeal. Since I consider the issues submitted by the Appellant suitable and sufficient in resolving this Appeal, I adopt them for a proper resolution of this Appeal. They are as follows:
1. Whether the Learned trial judge properly afforded the Appellant a dispassionate consideration of the Appellant’s defence of non est factum before relying on Exhibit A as a statement of the Appellant in finding the Appellant guilty of the offence of Armed Robbery contrary to Section 1 (2) (a) and (b) of the Robbery and Firearms Act (Grounds 1 and 3).
2. Whether, assuming but not conceding, that Exhibit A is a statement of the Appellant, the learned trial Judge properly subjected Exhibit A to the veracity test before relying on it as a confessional statement of the Appellant warranting the conviction of the Appellant solely on it. (Ground 2).
Issue 1: Whether the Learned trial judge properly afforded the Appellant a dispassionate consideration of the Appellant’s defence of non est factum before relying on Exhibit A as a statement of the Appellant in finding the Appellant guilty of the offence of Armed Robbery contrary to Section 1(2)(a) and (b) of the Robbery and Firearms Act (Grounds 1 and 3).
Learned Counsel for the Appellant in his Brief of Argument, submits, that from the Record of Appeal, it is not in dispute that the conviction and sentence of the Appellant for the offence of armed robbery was based solely on Exhibit A, as evident from the pronouncement of the learned trial Judge at page 57 of the Record. Counsel submits that the Appellant, who testified as DW1, denied ever making the Exhibit A. He contends that the learned trial Judge was however persuaded by the submission of the prosecution that, since Exhibit A was tendered without any objection, the testimony of the Appellant denying that he made the confessional statement cannot avail him. The trial Court accepted this line of reasoning as is reflected in his pronouncement at pages 51- 52 of the Record.
Counsel argues that the failure of the trial Court to consider the Appellant’s defence that he did not make the Exhibit A has occasioned a serious miscarriage of justice. He further argues that the learned trial Judge did not avert his mind to the fact that there is a world of difference between the plea of an accused person that he did not make a statement and a plea that the statement was made under duress, in which case it could be retracted. He submits that, while a plea that an accused person was forced to make a statement is by way of retraction, which affects the admissibility of the statement and which defence ought to be raised at the time of tendering the document thus leading to a trial within trial; a defence that an accused person did not make a statement is a different issue altogether amounting to a defence of non est factum.
Counsel submits that a defence of non est factum is raised at the time an accused person appears in the witness box as a witness. That non est factum is a defence predicated on fact and therefore outside the province of Counsel. Counsel cannot raise a defence of non est factum on behalf of an accused person, whether at the time of tendering the statement or at any other time. He relies on a decision of this Court in Olusanya V State (2012) All FWLR (Pt. 656) 573 @ 584-585 paras H-D per Mshelia JCA. Counsel thus submits that, had the learned trial judge correctly resolved that the Appellant’s defence of non est factum was properly raised by the Appellant, it would have come to the conclusion discharging and acquitting the Appellant. Counsel therefore urged the Court to resolve this issue in favour of the Appellant.
In response, learned Counsel for the Respondent relies on Igbale V State (2007) LNCC 125 ratio 6 to submit that, in criminal trials, the guilt of an accused person can be proved in the following ways, through:
a. The evidence of an eye witness;
b. A confessional statement; and
c. Circumstantial evidence.
He submits that, from the totality of the evidence available to the trial Court, the confessional statement of the Appellant was made voluntarily, and the trial Court was therefore right in convicting him on same. He argues that the Exhibit A was tendered and admitted in evidence without any objection from the defence and it clearly linked the Appellant to the commission of the armed robbery with which he was charged. He was hence of the view that the Appellant was rightly convicted on the strength of his confessional statement alone. He relies on Onyenye V the State (2012) Vol. 212 LRCN 107 @ 111 ratio 1.
Counsel further submits that Exhibit A, a statement made by the Appellant himself, is stronger than the evidence of an eye witness. For this, he relies on Akpa V State (2008) 163 LRCN 186 @ 192, & 203 JJ-208 A, ratio 9; Fatai V State (2003) Vol. 2-3 MJSC 145 @ 148, ratio 2; Edhigere V State (1996) 8 NWLR (Pt. 464) 1 @ 10, paras B-C. Counsel therefore submits that the court can act on the confessional statement of the accused person/Appellant to convict him as charged.
Additionally, learned Counsel submits that where an accused person makes an extra-judicial statement admitting the commission of an offence with which he is charged, the statement will still be considered or taken into account in the determination of his guilt, notwithstanding that, in his evidence in court, he resiles from the statement or gives evidence contrary to the statement. He placed reliance on Akpan V State (2000) 12 NWLR (Pt. 682) 608 @ 612 ratio 10; Alli Dogo V State (2013) Vol. 221 LRCN (Pt. 1) 164 @ 170 ratio 7. Counsel also contends that the Appellant’s defence denying that he made the statement was an afterthought and he relies on Oseni V State (2012) Vol. 208 151 @ 156 ratio 7.
In respect of the defence of non est factum relied on by the Appellant relying on Aiguorehian V State (2004) All FWLR (Pt. 195) 716, Counsel submits that, assuming without conceding that the said defence can avail him, it will still be fatal to his case since no finding was made by the lower Court on whether or not the said confessional statement was actually made by the Appellant. Relying on Nwangbomu V State (1994) 2 NWLR (Pt. 327) 380 @ 399-400 F-A, Counsel submits that the plea of non est factum in relation to a confessional statement is a matter of fact to be determined by the Judge at the conclusion of the trial. He contends that the learned trial Judge in fact made a finding that the Appellant made Exhibit A voluntarily, and convicted him on same. He therefore urged the Court to so hold.
Findings
Under the 1999 Constitution as it affects our adversarial criminal system, an accused person is presumed innocent until proven guilty by a competent court. This presumption of innocence places a burden on the prosecution to prove a case beyond reasonable doubt in accordance with Section 138 of the Evidence Act Cap 112 Laws of the Federation. In the process, the prosecution has to prove all the essential ingredients of an offence as contained in the charge. The prosecution has the responsibility of proving all the essential elements of the offence charged by producing vital material evidence and vital witnesses to testify during the proceedings.
With regard to the instant case therefore, the essential ingredients of the offence of armed robbery under Section 1 (2) (a) & (b) of the Robbery and Firearms Act are as follows:
i. There was a robbery;
ii. That the robbery was with arms; and
iii. That the accused was one of the armed robbers or the robber.
For the prosecution to succeed in proof of the offence of armed robbery there must therefore be proof beyond reasonable doubt of these ingredients.
It is true, as submitted by the Respondent’s Counsel, that proof beyond reasonable doubt does not mean proof beyond any iota or shadow of doubt. However, the burden of such proof as is required by law, which lies on the prosecution, never shifts. The degree of proof is that if, on the entire evidence, the court is left with no doubt that the offence was committed by the accused, that burden is discharged and the conviction of the accused person will be upheld, even on the evidence of a single witness.
However, before a court can come to the conclusion that an offence has been committed by an accused person, the court must look for the ingredients of the offence in the evidence presented and ascertain critically that the acts of the accused person come within the confines of the particulars of the offence charged. See Alor V State (1997) 4 NWLR (Pt. 501) 511; Amadi V State (1993) 8 NWLR (Pt. 314) 644.
A court of law needs not take into account the number of witnesses for each side to a dispute as a relevant factor in deciding which side is to succeed. What is primarily relevant is the quality of the evidence adduced before the court. See Afolalu V State (2010) 7 SCNJ 354 per Adekeye, JSC; Garko V State (2006) 6 NWLR (Pt. 977) 524; Oguonzee V State (1998) 5 NWLR (Pt. 55) 521.
By a combination reading of the relevant provisions of the Evidence Act and case law, the words ‘confession’ or ‘confessional statement’ refers to an admission made at any time by a person charged with a crime suggesting or stating that he committed the crime. See Afolalu V State (2010) 7 SCNJ 354 per Muhammad, JSC; Kassi V State (1994) 75 NWLR (344) 269 @ 284-288; Edhigere V State (1994) 5 NWLR (Pt. 344) 312 @ 321; Nwaebonyi V State (1994) 5 NWLR (Pt. 343) 138 @ 14.
If made voluntarily, a confession is admissible in evidence. See Balogun V A-G (Federal) (1994) 5 NWLR (Pt. 345) 442 @ 462-463. See also Section 28 of the Evidence Act.
It has been settled in a long line of authorities that, in appropriate cases, an accused person can be properly convicted on his or her confessional statement alone. See Fatai V State (2013) Vol. 2-3 MJSC 145; Edhigere V State (1996) 8 NWLR) (Pt. 464) 1; Ojegele V State (1988) 1 NSCC 276. Although it is always desirable to have some evidence outside the confession in further proof of the offence, the absence of such additional evidence would not necessarily prevent a court from convicting on the confessional statement alone, provided the statement satisfies the test of being positive, direct and unequivocal. See FRN V Iweka (2011) 12 SCNJ 783, per Tabai, JSC.
There is no gainsaying that the conviction of the Appellant was based entirely on Exhibit A, a confessional statement which the Appellant denied persistently making. Section 27 (1) and (2) of the Evidence Act, 2011 defines a confessional statement as a statement by an accused person charged with an offence stating that he committed the offence. In order for a court to make use of a confessional statement, it must first satisfy itself that it was made voluntarily by an accused person. A confessional statement must however be direct, positive, true and unequivocal of facts that satisfy the ingredients of the offence the accused person confesses to have committed.
Where the accused person contends that he did not make the statement voluntarily, i.e. to say that it was issued following some threats, fear of the unexpected proceeding from a person in authority, usually a Police officer, justice demands and the court would direct that a trial within trial be conducted to determine its voluntariness or otherwise.
A confession found by the court to have been obtained by threat, inducement or the like, is no longer voluntary. It would be rejected and the court would not rely on it. On the other hand, if, after a trial within trial, it is found that the confession was made voluntarily, it would be admitted in evidence and considered along with the other pieces of evidence at the trial.
While it is the law that a court can convict on the retracted or denied confessional statement of an accused person, it is incumbent on the court to first evaluate the confession and the testimony of the accused person and all the other evidence available. The Judge is required to examine the version of events as presented by the accused person, which version is different from the retracted confession, and then it should ask itself the following questions:
i) Is there anything outside the confession to show that it is true?
ii) Is it corroborated?
iii) Are the relevant statements made in it of facts true as far as they can be tested?
iv) Did the accused person have the opportunity of committing the offence charged?
v) Is the confession possible?
vi) Is the confession consistent with other facts which have been ascertained and have been proved?
See Ogudo V State (2011) 12 SCNJ 1, per Rhodes-Vivour, JSC; Mbenu V State (1988)3 NWLR (Pt.84) 615.
Thus, although the court can convict only on the extra-judicial confessional statement of an accused person, it is desirable to have some independent evidence outside the confession which makes it more likely that the confession is true. In other words, some evidence, no matter how slight of circumstances which make it probable that the confession is true. See Edhigere V State (1996) 8 NWLR (Pt. 464) 1. Where such evidence is not available, he should be given the benefit of the doubt. See Ogudo V State (supra).
In the instant case, there was absolutely no evidence outside the Exhibit A which linked the Appellant to the offence of armed robbery alleged; coupled with the fact that the supposed victim and the vigilante who assisted in the apprehension of the Accused person at the scene of crime were never produced to testify. This amounts to grave doubts that should be resolved in favour of the accused person.
The real issue or grievance of the Appellant is that the trial Court acted wrongly when it convicted him on a retracted confessional statement, Exhibit A. This is captured in issue one formulated by the Appellant. Learned Counsel for the Appellant has argued that even though the Appellant outrightly denied making the said confessional statement, Exhibit A, during his testimony in his defence at the trial, the learned trial Judge relied solely on the said exhibit to convict the Appellant and to sentence him to death.
For clarity, this is what the Appellant said as DW1 before the trial Court as contained at pages 35-37 of the printed Record:
“… I was at home in Peva. I left and went into town. I went into a restaurant and was eating. Suddenly I saw three policemen who told me that I should accompany them to the police station. I asked them what was wrong they told me I was seen with stolen property… At the police station I was told that I was seen with a stolen handset. I told them the handset with me was bought in a shop in Takum. They insisted it was a stolen handset. They insisted that that it was a stolen handset. I maintained that it was not a stolen handset… The following day I was brought to Jalingo together with the handset to the CID office… I told him that I bought the set with my money in Takum. I said they should allow me show them the receipt or they take me to Takum where I can show them the person from whom I bought the set. I was then detained while in detention the police brought a batten (sic) and started beating me with it until I fainted. The police wrote a statement which they asked me to sign. I said I was not going to sign since I did not know what was written. They continued to beat me until I signed. In fact the policeman held my hand and used my hand to thumbprint the statement… I did not make any statement confessing that I committed the offence. The handset I was found with was taken by the police and it is still with them.”
Under cross examination, the Appellant insisted and was unwavering in stating thus:
“I was arrested at Peva by the police… I did not make any statement to the police. I did not rob Ahmadu Yahaya of anything.”
It is therefore evident that the Appellant quite stridently denied making the confessional statement ascribed to him by the PW1. Yet the trial Court found it somehow expedient, in the face of these protestations, to solely rely on this exhibit to convict the Appellant and to sentence him to death. What is worse is that, despite the fact that the learned trial Judge was aware of this fact, and that both learned Counsel addressed the issue in their final addresses to the Court, he simply glossed over it and failed to make any finding at all on this all important issue. Ironically, it is also for the reason that the lower Court failed in its duty to make a finding one way or another on this issue that learned Counsel for the Respondent has also submitted before this Court that the Appellant cannot now complain.
By denying that he made the confessional statement attributed to him by the prosecution, the Appellant was raising the defence of non est factum. Even though the Appellant admittedly did not raise the issue of non-est factum when the statement was sought to be tendered, the plea was nonetheless validly raised. If the Appellant had raised an objection to the admissibility of the statement on the basis of non est factum at the time it was offered in evidence, as the Respondent has prescribed, it would still have been admitted as non-est factum does not affect admissibility. Thus, raising the defence at the stage the document was being tendered would have been superfluous, as the statement would notwithstanding have been admitted.
It has been consistently held in a line of decided cases that the plea of non est factum in relation to a confessional statement is a matter of fact to be determined by the Judge at the conclusion of the trial. See Aiguorehian V State (2004) 1 SCNJ 65; Nwangbomu V State (1994) 2 NWLR (Pt. 372) 380. It trite law that, if a document is sought to be tendered and it is objected to by Counsel, what he is simply doing is objecting to the admissibility of the statement. Thus, because the issue of non est factum is a matter of fact, the challenge of such a statement is more properly done when the accused, or any other witness called on his behalf, impugns the statement as not being that of the accused from the witness box. The challenge of a confessional statement on ground of non est factum, being thus a matter of fact, Counsel for the Appellant was not competent to give evidence from the Bar. The challenge is only appropriately made when the accused, as a witness, denies the making of the statement. In view of the Appellant’s attack of the statement, Exhibit A, as not being of his making, it was incumbent on the lower Court to have made a finding on whether or not the said statement was actually made by the Appellant, before proceeding to hold that the statement was retracted or before putting it into use in convicting the Appellant.
As was captivatingly held by Onu, JSC in Aiguorehian V State (supra) at page 87 of the Report:
“It is noteworthy to stress that the terms ‘retraction’ and ‘resile from’ have been used interchangeably in most decisions with the pleas of non-est factum. This is misleading since a statement must first be shown to have been made before it can be said to have been retracted by its maker for where the very making of the statement is in issue, the retraction cannot arise at that stage. It is in this wise that I agree that where an accused person sets up a defence of non est factum in relation to a confessional statement, what he has done is not a retraction but a denial of the making of the statement.”
As earlier stated, no finding was made by the lower Court on this issue of fact as to whether or not the Appellant made the statement. What this means is that had the lower Court given heed to the testimony of the Appellant and believed that he did not make the confessional statement ascribed to him, the Appellant would have been discharged and acquitted since the entire decision convicting him of the offence of armed robbery was based on this document and nothing else.
Where an accused person says that he did not voluntarily make a statement credited to him, the proper step to take is conduct a trial within trial to determine the voluntariness or otherwise of the statement.
It is the law that the test for the admissibility of a confessional statement is its voluntariness, and so, once the issue is raised it must be resolved one way or the other before its admission or otherwise. See Eke V State (2011) 2 SCNJ 57, per Fabiyi, JSC; Agholor V A-G Bendel State (1990) 6 NWLR (Pt. 155) 141; Ogoala V State (1991) 2 NWLR (Pt. 175) 509.
Where, on the other hand, the accused person says he did not make or sign the statement, it should still be admitted in evidence. It was incumbent on the Respondent, as prosecution, to prove that he did indeed make it, and for the trial Court to make a finding one way or the other on the authorship of the document. This, the trial Court failed to do in this case. Yet it proceeded to rely on the same statement to convict an accused person in such a capital case and to hand down a sentence of death, based on a confession of such dubious and doubtful authorship and source. The question of the weight to be attached to the contents of a statement which has been denied becomes an issue for the Judge to determine at the end of the trial.
For the sake of emphasis, the time to object to the voluntariness of a statement is at the point when it is being tendered in evidence and not when he is entering his defence. Conversely, the point at which an accused person should properly raise the issue of non est factum, i.e. that he did not make the statement, is when he is in the witness box testifying in his defence. In the instant case, where the Appellant denied the statement, in my opinion, Exhibit A was admitted to no avail. And since the conviction of the Appellant was based solely on the Exhibit A, the failure of the learned trial Judge to determine the issue thereby raised as whether or not he made the statement before going on to convict on same, is fatal to the case.
From the Judgment of the learned trial Judge, he laid emphasis on the principle of law that a court can convict on a confessional statement alone, even without corroboration, once it is satisfied of the truth of the confession, (see Achaba V State (1996) 3 NWLR (Pt. 438) 530 @ 533), to justify his disregard of the defence of the Appellant of non-est factum and his utter and complete reliance on the denied confessional statement to convict the Appellant. However, the basis of the Court’s satisfaction in this regard must not merely be by an instinct, or by some whimsical fancy or by anything of such an abstract and intangible nature, as was done in this case. Instead, there must exist some facts or evidence which is tangible that the court would rely on to base its belief in the truth of the confession.
On the question of whether there is any evidence outside the confession which makes it probable that the confession is true, it is my view that absolutely nothing in the evidence of the PW1 and PW2 bears out the confession in any material particular whatsoever. Both of them are what is commonly referred to as ‘professional’ witnesses. They were not eyewitnesses. Their evidence was merely after the fact since they were alerted to the alleged robbery by the victim only after the incident of armed robbery had occurred. Also, much as the PW2 alleged that the Appellant was arrested at the scene of crime with the help of a vigilante, there is absolutely no further evidence from either the vigilante or the victim to confirm this, as none of their testimonies was presented to the lower Court. His evidence therefore stands at par with the testimony of the Appellant in his defence where he denied that he was arrested at the scene of crime in Bininu in Donga Local Government Area. Instead, the Appellant asserts that he was arrested while eating a meal at a Restaurant in Takum in Takum Local Government Area. In consequence, all I have laboured to put across is that the issue of non est factum, once raised, made it incumbent on the learned trial Judge to seek for some independent facts outside the confession that would make it likely that the confession was true.
Furthermore, it is not a general rule that a confession relieves the prosecution of its duty of proving its case beyond reasonable doubt.
In this case of armed robbery, it became mandatory for the prosecution to prove beyond reasonable doubt that there was a robbery on the date in question, in which arms were used and the Appellant participated in the robbery. The logical questions to ask therefore are: from the evidence adduced before the trial Court:
(i) Was there any cogent evidence before the trial Court that indeed a robbery took place on the date in question?
(ii) Were there any arms used in the robbery, if any?
(iii) Did the prosecution prove the identity of the Appellant as one of the robbers who attacked the said Ahmadu Yahaya the alleged victim on 13-09-07?
The question that arises consequently is: did the prosecution prove all these three (3) ingredients, and hence prove its case beyond reasonable doubt to justify sentencing him to death? Since no attempt was made by the trial Judge to seek for proof of any of the ingredients of the offence, having merely relied on the confessional statement to convict the Appellant, the failure to pronounce on the denial of the statement by the Appellant made it even more fatal to the suit. I am consequently of the firm view that the trial Court was palpably in error to have convicted and sentenced the Appellant to death solely on a confessional statement, which was denied.
On a parting note, I must say that this was a case which was very poorly investigated and poorly prosecuted by the prosecution, and in which a comedy of errors was committed by the trial Court, in arriving at its decision. In view of the glaring deficiencies in the case of the prosecution, the learned trial Judge should have made some effort to find some independent evidence, outside the confessional statement, Exhibit A, to make it probable that the confession was true. The offence the Appellant was charged with was a capital one carrying a mandatory sentence of death, and the trial Court proceeded to convict and sentence him to death on such meager and feeble facts which clearly fell far short of the standard of proof required in criminal cases. It is for all these reasons I have given above that the answer I render to issue one is in the affirmative.
Issue 2: Whether, assuming but not conceding, that Exhibit A is a statement of the Appellant, the learned trial Judge properly subjected Exhibit A to the veracity test before relying on it as a confessional statement of the Appellant warranting the conviction of the Appellant solely on it (Ground 2).
In the light of my findings in issue one this second issue is no longer a live issue. Thus, I decline to consider same since courts of law do not indulge in academic exercises. See Yusuf V Toluhi (2008) 6 SCNJ 37; Okotie-oboh V Manager (2004) 12 SCNJ 139; Justice Anyah V Imo Concorde Hotels Ltd (2002) 12 SCNJ 145; Abimbola V Abatan (2001) 4 SCNJ 73; Global Transport Oceanico SA V Free Enterprises Nigeria Ltd (2001) 2 SCNJ 224; IBWA Ltd V Pavex International Co. (Nig.) Ltd (2000) 4 SCNJ 200; Nwocha V Governor, Anambra State (1984) 1 SCNLR 634. Accordingly, this Appeal is decided essentially on the Appellant’s issue one.
In the result, I find the Appeal meritorious. It is allowed. The Judgment of the Taraba State High Court delivered on 18th October, 2013 in Suit No. TRSJ/8C/2009, convicting and sentencing the Appellant to death for the offence of armed robbery punishable under Section 1 (2) (a) & (b) of the Robbery and Firearms Act, is accordingly quashed and the sentence is set aside. In its place, a verdict of discharge and acquittal is entered in favour of the Appellant.
JIMI OLUKAYODE BADA, J.C.A.: I read now the lead Judgment of my Lord JUMMAI HANNATU SANKEY, JCA, just delivered and I agree with my Lord’s reasoning and conclusion.
I am also of the view that the prosecution did not prove all the ingredients of the offence of armed robbery.
In view of the good analyses and reasons so ably set out in the said Judgment, I too allow the appeal.
I abide by the consequential orders made in the said lead Judgment.
ADAMU JAURO, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered.
I agree with the reasoning and conclusion that the appeal is meritorious and ought to be allowed. I adopt the said judgment as mine and hereby allow the appeal.
I abide by all consequential orders made in the lead judgment.
Appearances
No representation for the Appellant.
Mr. E.K. Idepefo, Counsel on record for the Appellant, sent in a letter seeking an adjournment.For Appellant
AND
Mr. Hamidu Audu, Director Public Procurement, Ministry of Justice, Taraba State, leading Mr. C.R. Shaki, State Counsel II, and Mr. Z.Y. Usman, State Counsel II, appears for the Respondent.For Respondent
