TORTYA v. STATE
(2021)LCN/15643(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, May 26, 2021
CA/MK/83C/2017
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
TORDUE TORTYA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
There is no doubt as rightly submitted by the learned Counsel to the parties particularly the learned Counsel to the Respondent that the law is trite that for the Prosecution to secure a conviction in a criminal case the guilt of the Accused person must be proved beyond reasonable doubt. Section 135(1) of the Evidence Act, 2011 which the learned Counsel to the Respondent relied upon and indeed subsections (2) and (3) thereof stipulate in mandatory terms thus:-
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
By the above provisions of the Evidence Act, the Prosecution bears the onerous burden of proving the alleged commission of any offence(s) against an Accused person, beyond reasonable doubt. This burden can only be discharged by the prosecution adducing cogent, credible, compelling and convincing evidence in proof of the essential elements of the offence(s) with which Accused is charged. See Patrick Oforlete vs. The State (2000) 7 SC (Pt.1) 80 and Bakare vs. The State (1987) NWLR (Pt.52) 579 at 595. The provisions of Section 135(1) and (2) are encapsulated in Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 which states that: “Every person who is charged with a criminal offence shall be presumed innocent until proved guilty.”
These Statutory and Constitutional provisions regarding the presumption of innocence and burden of proof have been given judicial interpretation and assent by English Courts and followed in a long line of Nigerian cases by the Superior Courts of the land. In the locus classicus of Woolmington vs. Director of Public Prosecutions (1935) A.C 42, 462, Lord Sankey of the House of Lords, while enunciating the common law position on this principle of law, aptly put it so succinctly thus:-
“Throughout the web of English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have said as to the defence of insanity and subject also to any statutory exceptions”. PER AGUBE, J.C.A.
WHETHER OR NOT THE COURT CAN PRESUME THE EXISTENCE OF ANY FACT WHICH IT DEEMS LIKELY TO HAVE HAPPENED
It is trite that there is a presumption of law that evidence which could be and is not produced would if produced, be detrimental or unfavourable to the person who withholds it (in this case the Prosecution). See Section 167(d) of the Evidence Act, 2011 which provides that:
“167. The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that-
(d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
See further the recent Supreme Court case of Bakari vs. Ogundipe & Ors. (2020) LPELR-49571 (SC) per Peter-Odili, JSC at pages 63-65, paras. F-A; where Section 149(d) of the Evidence Act, 2004 which is replicated in the above cited Section 167(d) of the Evidence Act, 2011; was interpreted thus:
“…I refer to the following cases relevant to the case in hand. See The People of Lagos State vs. Umaru (2014) LPELR-22466 (SC), this Court held thus: “I shall now consider Section 149(d) of the Evidence Act, that is, on withholding of evidence. I have already set out the provision of this paragraph earlier. What paragraph (d) of Section 149 of the Evidence Act stipulates is that where a party claims to have evidence that goes to show the existence of a document in proof of his case, the document should be tendered. Where such evidence could be produced but it is not produced, it is presumed to be against the interest of the party withholding it.” Also, in George vs. The State (2009) 1 NWLR (Pt.1122) at 345 where the Court held thus: “By virtue of Section 149(d) of the Evidence Act, where there is any evidence which is available but not produced in Court, it is presumed in law that the evidence, if produced, would be against the party that has failed to produced it.” Finally to Aremu vs. Adetoro (2007) 16 NWLR (Pt.1060) at 261 where this Court held as follows: “A Court of law can invoke Section 149(d) of the Evidence Act that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.” PER AGUBE, J.C.A.
WHETHER OR NOT A VOLUNTARY CONFESSIONAL STATEMENT IS SUFFICIENT TO GROUND A CONVICTION
In Nsofor vs. The State (2004) 18 N.W.L.R (Pt.905) 292, per Oguntade, JSC at page 310 -311 paras. F-G; particularly in paras. C-E at page 311 quoted with approval the dictum of Obaseki, JSC in Dawa vs. The State (1980) 8-11 S.C. 236 at 267 to 268 (the above authorities as well as Okanlawon vs. The State (2015) 17 NWLR (Pt.1489) 445 at 180 paras. A-D; Kareem vs. FRN (No.1) (2002) 8 NWLR (Pt.770) 636 at 656 paras. C-D and Osetola vs. State (2012) 17 NWLR (Pt.1329) 251 at 278 paras. E-H; which have been cited by the respective learned Counsel herein) that:-
“Since Kanu vs. King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 test enumerated above. Among the long line of authorities may be mentioned: 1, The Queen Vs. Obiasa (1962) 2 SCNLR 402; (1962) 1 All NL.R 651. 2; Edet Obosi vs. The State (1965) N.M.L.R 119 3; Paul Onochie & 7 Ors vs. The Republic (1966) 1 SCNL.R 204; (1966) NML.R 307 4. Obue vs. The State (1976) 2 SC 141 5. Jimoh Yesufu Vs. The State (1976) 6 SC 167 6. Ebhomien & Ors Vs. The Queen (1963) 2 S.C.N.L.R. 332; (1963) 1 All N.L.R 365.” PER AGUBE, J.C.A.
IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal challenges the Judgment of the High Court of Benue State, Makurdi Judicial Division delivered by the Honourable Justice J.M. Ijohor on the 22nd day of May, 2015 (See pages 62-83 of the Records) whereof the Appellant was convicted and sentenced to death and ten years imprisonment respectively for the offences of Criminal Conspiracy, Armed Robbery and Illegal Possession of Arms contrary to Sections 6(b), 1(2)(a) and 3(1) of the Robbery and Fire Arms (Special Provisions) Act, Cap.R11, Laws of the Federation of Nigeria, 2004. On the 3rd day of February, 2014 when the Appellant was arraigned and the Charge read to him as an Accused person in Tiv language it is recorded that he appeared to have perfectly understood same and he pleaded not guilty to the Three Heads/Counts.
In the course of his trial, the Prosecution called two Witnesses and tendered Seven Exhibits marked Exhibits “A” (a locally made pistol) that was allegedly wielded by the Accused/Appellant in the course of the robbery; Exhibit “B” the live Cartridge also said to have been recovered from the Appellant; Exhibit “C” a Cable wire whip also allegedly possessed by the Appellant in the course of the robbery, Exhibit “D” an Army Camouflage Shirt said to have been worn by the Appellant during the robbery; Exhibit “E” (the Accused’s Statement (alleged Confessional); Exhibit “F” (the Statement of the Informant or the Complainant of the Offences) and Exhibit “G” (the Statement of the Chairman of the Vigilante Group of Mbakaange District in Vandeikya Local Government Area) where the robbery allegedly took place.
At the close of the Prosecution’s case, the learned Counsel to the Accused/Appellant made a NO CASE SUBMISSION which was overruled on the 22nd day of September, 2014 by the learned Trial Judge who held that in view of the totality of the evidence before him, a prima facie case had been made out against the Accused person to warrant him to enter his defence.
On 28th October, 2014 the Accused/Appellant entered his defence, testified as DW1 and called no other Witness(es) after which the learned Defence Counsel closed his case. On the 26th day of November, 2014, the respective learned Counsel adopted their Written Addresses and the case was adjourned to the 22nd day of December, 2014 for Judgment but it was not until the 22nd day of May, 2015 that the Judgment was eventually delivered.
Dissatisfied with the said Judgment, a Notice of Appeal with a whopping 13 (Thirteen) Grounds dated the 16th day of July, 2015 was filed on the 21st day of July, 2015 through his learned Counsel Bernard Hom (SAN). Notwithstanding the prolix nature of the Grounds I hereby set them out hereunder as follows:-
“GROUNDS OF APPEAL:
(1) The verdict contained in the Judgment of the Trial High Court of Benue State, sitting in Makurdi and presided over by Hon. Justice J.M. Ijohor, is unwarranted and cannot be supported having regard to the evidence.
(2) The Trial High Court of Benue State sitting at Makurdi, presided over by Hon. Justice J.M. Ijohor, erred in law in failing to properly evaluate the evidence before the Court, and this error occasioned a miscarriage of justice.
(3) The Trial High Court of Benue State sitting in Makurdi presided over by Hon. Justice J.M. Ijohor, erred in law when it held that the Prosecution proved beyond reasonable doubt the Offences of Conspiracy, Armed Robbery and being in possession of firearms, under Sections 6(b), 1(2)(a) and 3(1) of the Robbery and Fire Arms (Special Provisions) Act, Cap.515, Laws of the Federation of Nigeria, 2010, when there was no cogent, compelling and credible evidence to show that the Appellant committed the offences charged, and thereby occasioned a miscarriage of justice.
(4) The Trial High Court of Benue State, presided over by Hon. Justice J.M. Ijohor, misdirected itself and erred gravely in law by relying on Appellant’s Confessional Statement (Exhibit “E”), which was later retracted, without proper corroboration, in convicting and sentencing the Appellant to death under Sections 6(b), 1(2)(a) and 3(1) of the Robbery and Fire Arms (Special Provisions) Act, Cap.515, Laws of the Federation of Nigeria, 2010, by holding thus: “Exhibit “E” is the best and strongest evidence possible, short of an eye witness account which was not presented in this case…” and this error occasioned a miscarriage of justice.
(5) The learned Trial Judge of Benue State High Court erred in law in admitting in evidence, the Statement of the Accused/Convict, Exhibit “E”, despite objection, and relying on the said Statement of the Accused, to convict and sentence him to death, and this error occasioned a miscarriage of justice.
(6) The Trial High Court of Benue State sitting at Makurdi presided over by Hon. Justice J.M. Ijohor, erred in law when it held that Exhibit “E”, a retracted Statement of the Accused/Convict Exhibit “E”, established the offence of Conspiracy, Armed Robbery and being in possession of fire arms against the Appellant, without testing the truth of the confessional Statement in the light of other credible independent evidence before the Court, and this occasioned a miscarriage of justice.
(7) The learned Trial Judge of the Benue State High Court erred gravely in law by relying on the Statement of the Appellant (Exhibit “E”) in arriving at its decision when the said Exhibit “E” was never confirmed and endorsed by a Superior Police Officer, and administrative practice and requirement, which renders the Statement unreliable, and this error occasioned a miscarriage of justice.
(8) The learned Trial Judge of the Benue State High Court gravely erred in law when the Court admitted and relied on Exhibits “A”, “B”, “C”, “D”, “E”, “F” and “G” in convicting and sentencing the Appellant for the offences of Conspiracy, Armed Robbery and being in possession of fire arms, based on those Exhibits and when:
(i) The said Exhibits were consistently denied by the Appellant in the course of evidence at the trial;
(ii) Admission of possession of the said Exhibits “A” – “D” in Exhibit “E” by the Appellant was not corroborated as it was later retracted;
(iii) The said Exhibits “A” – “D” were brought to the Police and alleged to have been recovered from the Appellant by the Informant and Victim of the alleged robbery and the Chairman of the Vigilante who never testified before the Court;
(iv) PW1 and PW2 did not recover the said Exhibits “A” – “D” from the Appellant directly, and this error occasioned a miscarriage of justice.
(9) The learned Trial Judge erred in law when it relied on the testimonies of PW1 and PW2 even though the testimonies were riddled with contradictions, and this occasioned a miscarriage of justice.
(10) The learned Trial Judge of the High Court of Benue State erred in law in holding that the Appellant was guilty of the offences of Conspiracy, Armed Robbery and being in Possession of Fire Arms, when there was no identification of the Appellant by the victim of the offence, or Police Informant, and this misdirection caused a miscarriage of justice.
(11) Having found and held that: “PW1 directed a member of his team, Corporal Godwin Audu, to record the Statement of the Accused person. And that, that Statement was, however, not tendered in evidence”, the learned Trial Judge erred in law in not applying the provisions of Section 167(d) of the Evidence Act, 2011, against the Prosecution and in favour of the Accused/Convict, and this error occasioned a grave miscarriage of justice.
(12) The learned Trial Judge of the Benue State High Court erred in law in admitting and relying on Exhibit “F” and “G”, the Statement of the Police Informant and alleged Victim of the Robbery, Ierkwagh Bugh and the Chairman of the Vigilante at Mbakaange, Peter Nember to convict and sentence the Accused/Convict, when the said authors of Exhibits “F” and “G” were alive but did not testify before the Trial Court, and this error occasioned a miscarriage of justice; AND
(13) Having held that parts of the evidence given by the Prosecution Witnesses fall within the defined rule of hearsay which were discountenanced and would not be relied upon in the determination of this case, the learned Trial Judge nevertheless erred in law when the Trial Court considered and relied on Exhibits “A”, “B”, “C”, “D”, “E”, “F” and “G” as the evidence left before the Court that proved the charge against the Accused/Convict beyond reasonable doubt, and even when the Prosecution was recorded as having relied only on Exhibits “A” – “E” to prove their case, and this error occasioned a grave miscarriage of justice.
RELIEF SOUGHT FROM THE COURT OF APPEAL:
An Order setting aside the Judgment of the Trial Court and in its place, an Order discharging and acquitting the Appellant of all the Charges of Conspiracy, Armed Robbery and being in possession of Fire Arms contrary to Sections 6(b), 1(2)(a) and 3(1) of the Robbery and Fire Arms (Special Provisions Acts), Cap.515, Laws of the Federation of Nigeria, 2010.”
Upon transmission of the Record of Appeal to this Honourable Court and the entry of Appeal here at, Briefs of Argument were filed and exchanged by the respective learned Counsel to the Convict/Appellant and the Prosecution/Respondent. In the Appellant’s Brief of Argument settled by Bernard Hom, SAN with him J.I. Atime, Esq. dated the 7th of June, 2018 but filed on the 12th day of June, 2018, 4 (Four) Issues were distilled from the 13 (Thirteen) Grounds of Appeal for determination to wit:-
“ISSUES FOR DETERMINATION:
(1) Whether or not the Trial Lower Court was right in admitting and relying on Exhibits “A”, “B”, “C”, “D”, “E”, “F” and “G” in convicting and sentencing the Appellant on the Offences charged, having earlier held that part of the Prosecution’s evidence was hearsay? (Distilled from Grounds 8, 11, 12 and 13 of the Notice of Appeal).
(2) Whether or not Exhibit “E”, a retracted Confessional Statement of the Appellant, was properly admitted, and relied upon, by the Trial Lower Court, as the Sole ground of convicting and sentencing the Appellant of the Offences charged? (Distilled from Grounds 4, 5, 6 and 7 of the Notice of Appeal).
(3) Whether or not the Prosecution, proved beyond reasonable doubt, the offences as charged against the Appellant to warrant his conviction and sentence? (Distilled from Grounds 3, 9 and 10 of the Notice of Appeal); AND
(4) Whether or not the learned Trial Judge properly evaluated the evidence before the Trial Lower Court before convicting and sentencing Appellant to death? (Distilled from Grounds 1 and 2 of the Notice of Appeal).”
On the part of the Respondent, E. Enyikwola, Esq., Assistant Director, Citizens Rights, Ministry of Justice, Benue State who settled her Brief dated 3rd February, 2020 and filed on the 2nd of June, 2020 but deemed properly filed on the 8th day of June, 2020, formulated a Sole Issue for determination to wit:-
“ISSUE FOR DETERMINATION:
“Whether having regard to the totality of the evidence before the Court, the Trial Court was right to have convicted the Appellant of the offences charged?”
Before delving into the Arguments of the respective learned Counsel for the parties in the Appeal, it is only apt at this juncture to have a resumé of the facts upon which their respective cases were predicated. For the Prosecution who were the Complainants in the Lower Court, their case was that on the 12th day of June, 2013 at about 0600hours One Ierkwagh Bugh (Male) of Dyegh Village, Vandeikya Local Government Area of Benue State reported at the Divisional Police Headquarters, Vandeikya, that on the same day at about 10.35 hours he was attacked in his home by a group of armed men with locally made pistol and a electric cable whip. According to the Complainant, during the attack, the Accused person (now Appellant) who was dressed in Army Camouflage Uniform was arrested while others fled with his N24,000.00 (Twenty-Four Thousand Naira). The gun, Army Uniform and Cable Wire were recovered from the Appellant and handed over to the Police.
In the course of trial, the Respondent also stated, the Appellant pleaded not guilty to the charge and the Prosecution called two Witnesses (the PW1 and PW2) and tendered Exhibits “A” – “G” which are the gun, Cartridge, Cable Wire Whip, Army Camouflage Shirt worn by the Appellant in the course of the Robbery which Exhibits were recovered from the Appellant; the Appellant’s Confessional Statement, the Statement of the Informant and that of the Vigilante Chairman respectively.
It was also their case that after calling the PW1 and PW2, the prosecution made frantic efforts to call more witnesses as listed in the proof of evidence to no avail, hence the Prosecution closed its case. Upon closing their case, the Defence Counsel made a NO CASE SUBMISSION which was overruled and the Accused/Appellant testified as a lone Witness. At the close of the Appellant’s case, the respective learned Counsel adopted their Written Addresses after which the learned Trial Judge rendered his Judgment convicting and sentencing the Appellant which has culminated in this Appeal. See page 2 of the Respondent’s Brief of Argument.
The Appellant’s extra-judicial Statement that confessed the commission of the offences for which he was charged, tried and convicted which Statement was tendered and marked Exhibit “E” can be found at pages 14-16 of the Record of Appeal. However, in his defence on Oath while testifying as DW1 on the 28th day of October, 2014, the Appellant stated that he was 24 years old and knew why he was in Court. He related how on the 12th of June, 2013 at about 4:00am on his way back from a Funeral in Mbakaange in Vandeikya Local Government Area, he saw eight (8) persons who informed him that they were looking for someone. They asked him whether he saw any one and he told them that he did not and the eight persons passed by but a few minutes later, the persons came back and questioned where he was coming from at that hour of the night and he explained that he was coming back from the funeral of one Anongo Ityozenda.
The 8 (eight) persons then said that since his (Appellant’s) face was not familiar and his face was new, more so, as they were looking for someone, they decided to arrest him and started beating him. They told him that a theft occurred at their place and they were looking for the thief. He was then taken to the Kindred Head having been severely beaten up and he has a scar on his head as a result. According to the Appellant, even the Kindred Head saw the wound at that time and he said that the Appellant was only a suspect who was beaten and was bleeding. He (the Kindred Head), said he could not settle the matter and he advised that the (Appellant) should be taken to the Police Station.
At the Police Station he could not give his Statement since he was weak and so he was detained. The next day being 13th June, 2013, his Statement was taken and on 14th June, 2013, he was transferred to Police Headquarters, Makurdi where he was taken before the O/C SARS and as soon he (Appellant) entered the Office, the Officer said he should be taken out as he (Appellant) was smelling. From there, he was taken to a Policeman who turned out to be the Investigating Police Officer (I.P.O) whose name is Joshua. The said Joshua started beating him and called another Officer to take his Statement but as his Statement was being taken, the IPO continued beating him (Appellant) until O/C SARS came and ordered the IPO to stop the beating. Thereafter he was taken to the German Cell so called because it is where hardened criminals are kept but he was later brought out and taken to the Police Clinic where he was treated for the wounds sustained.
On the 19th of June, 2013, he was arraigned before the Magistrate’s Court 5, Makurdi and was subsequently remanded in Prison custody by the Magistrate. It was also his case that as far as the Exhibits tendered in the Lower Court were concerned, they were not found on him neither did he have those items when he was arrested. He rounded up his testimony in-chief that: “I want to tell this Court that I do not know anything about the offences with which I have been charged. All I know is that I went to a funeral and on my way back, I was arrested.”
In spite of the above evidence, the learned Trial Judge nevertheless convicted and sentenced the Appellant to death having found him guilty of the offences allegedly committed and for which he was standing trial. On the 4th day of March, 2021 the learned Counsel for the parties adopted their respective Briefs of Argument to either urge the Court to allow the Appeal or dismiss same.
ARGUMENT OF LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER ONE (1):
“WHETHER OR NOT THE TRIAL LOWER COURT WAS RIGHT IN ADMITTING AND RELYING ON EXHIBITS “A”, “B”, “C”, “D”, “E”, “F” AND “G” IN CONVICTING AND SENTENCING THE APPELLANT ON THE OFFENCES CHARGED, HAVING EARLIER HELD THAT PART OF PROSECUTION’S EVIDENCE WAS HEARSAY? (GROUNDS 8, 11, 12 AND 13 OF THE NOTICE OF APPEAL).”
Arguing this first Issue, the learned Senior Counsel prefaced his submissions with an affirmative answer to the question posed above and referring us to page 74 of the Records posited that Exhibits “A” – “D” relied upon as corroborating Exhibit “E” were alleged to have been recovered and brought to the Police by named persons Ierkwagh Bugh and Peter Nember who were not called to testify but whose Written Statements were tendered and admitted as Exhibits “F” and “G” and relied upon by the Trial Court. The learned Senior Advocate therefore contended that the Trial Court was not justified to have admitted and relied on Exhibits “A”-“G” which are hearsay evidence (pages 73 and 74 of the Records referred) as corroborating Exhibit “E” (the retracted Confessional Statement of the Appellant), to convict the Appellant.
The learned Counsel pointed out that from the evidence on Record and from the Judgment of the Court below that the PW1 and PW2 were not present at the scene of crime and did not witness the commission of the crime and recovery of Exhibit “A”, their evidence about what took place at the scene of crime was what was relayed to them by persons who did not testify at the trial; Exhibits “A”-“D” were allegedly recovered from the Accused person at the scene of crime by the Informant/Victim of the crime and Chairman of the Vigilante Group who did not testify but only brought the said Exhibits to the Police. He maintained that Exhibits “F” and “G” are Statements of Ierkwagh Bugh and Peter Nember who did not testify and that Exhibits “A”, “B”, “C”, “D”, “F” and “G” were documentary hearsay and therefore inadmissible.
It was further submitted that the Trial High Court was right to have held as quoted in paragraph 3.1.3 of the Appellant’s Brief from pages 73 and 74 of the Records but that the Court below was wrong to have held that the evidence of the PW1 and PW2 as to what they did as Investigators do not constitute evidence of hearsay natures as contained in page 73 of the Records. He insisted that the Court below erred in law by holding that Exhibits “A”-“G” do not amount to hearsay evidence because Exhibits “A”-“D” were not recovered from the alleged scene of crime by the Police Witnesses – PW1 and PW2 in the course of their investigation. He therefore maintained that since the named Informant and Chairman of the Vigilante Group who allegedly recovered the said Exhibits “A” – “D”, were not called to testify and be cross-examined, the said Exhibits “A”-“D” and whatever evidence relayed to the Police concerning the Exhibits amount to hearsay evidence.
On Exhibits “F” and “G” the Statements of the Informant Ierkwagh Bugh and Chairman Vigilante Group Peter Nember, it was also submitted that they amount to documentary hearsay because the makers were not called as Witnesses in Court and as such the Statements are inadmissible. Okoro vs. The State (1998) 14 NWLR (Pt.584) 181 at 218-219 paras. G-A (SC); Osunare vs. People of Lagos State (2014) All FWLR (Pt.757) 605 at 626 paras. D-F (CA); which relied on the former case were cited and relied upon to buttress his above submissions and to urge this Court to expunge Exhibits “A”, “B”, “C”, “D”, “F” and “G”; for being inadmissible hearsay evidence which were erroneously admitted and relied upon by the learned Trial Judge. Having submitted that Exhibits “A”, “B”, “C”, “D”, “F” and “G”; are inadmissible hearsay evidence he submitted again on the authority of Uwa vs. The State (2015) 4 NWLR (Pt.1450) 438 at 473, paras. A-C per Tur, JCA; that those Exhibits cannot corroborate the retracted Confessional Statement (Exhibit “E”) of the Appellant.
He further submitted that since Courts cannot act on inadmissible evidence, even when wrongly admitted, they must be expunged. Olayinka vs. State (2007) 9 NWLR (Pt.1040) 561 at 577-578, paras. H-A; was relied upon in calling on us to expunge the inadmissible evidence since the Lower Court wrongly admitted it and added that from the content of pages 74 lines 7-15 and 78 lines 11-20 of the Records, the contents of the inadmissible Exhibits “A” – “D” and “F”-“G”; influenced the learned Trial Judge’s mind in arriving at his Judgment having held that the said Exhibits corroborated Exhibit “E,” the Appellant’s retracted Confessional Statement in convicting the Appellant.
Citing and relying on the case of Okoro vs. The State (supra) at 208 paras. B-D and 217 paras. E-F; per Ogbwuegbu, JSC; where the Court cited Queen vs. Olubunmi (1958) SCNLR 98, 3 FSC at p.10; on the position of the law that where it is uncertain or impossible to say with some degree of certainty whether the Trial Court would have reached the same decision if an inadmissible evidence had not been admitted, an Appellate Court would be left without any alternative than to quash the conviction and sentence by the Trial Court. In respect of this case, the learned Senior Counsel was of the view that Exhibit “E” is highly prejudicial to the Appellant. The dictum of Ogwuegbu, JSC in the Okoro vs. The State case (supra) at page 217 paras. E-F was further relied upon in so submitting that the Appeal be allowed and the sentence imposed on the Appellant quashed.
On another score, the learned Counsel contended that apart from the inadmissibility of Exhibits “A”, “B”, “C”, “D”, “F” and “G”; the Prosecution’s failure to call Ierkwagh Bugh and Peter Nember (the Informant/Victim and Chairman Vigilante Group) who were alleged eye witnesses of the commission of the offences is/was fatal to their case since the Appellant denied that Exhibits “A”-“D” belonged to him and asserted that he was arrested by 8 (eight) persons while coming from a funeral at Mbakaange and was apprehended, beaten up and taken to the Kindred Head and subsequently to the Police. Page 32 of the Records refers. In the circumstances, he maintained that the evidence of those eye witnesses becomes/became vital and material in clearing the doubt created by the assertion of the Appellant.
Relying again on the cases of Sale vs. The State (2016) 3 NWLR (Pt.1499) 392 at 415 paras. A-C and Millar vs. The State (2005) 8 NWLR (Pt.927) 236 at 277 paras. A-C; Opayemi vs. The State (1985) 2 NWLR (Pt.5) 101 at 108-109 paras. H-D and Onah vs. The State (1985) 3 NWLR (Pt.12) 236 at 241 paras. F-A; on the trite principle that while it is generally accepted that the number of Witnesses to be called in a criminal case is at the discretion of the Prosecution, it is also settled law that the Prosecution, in order to secure a conviction, must call all material and vital witnesses in proof of their case as it is immaterial that the testimonies of such witnesses are favourable to or against the Prosecution.
The learned Senior Counsel also argued that apart from not calling these vital Witnesses who witnessed the commission of the offences, the Prosecution also failed to tender the second Statement of the Accused before the Court below as rightly pointed out by the Court at page 64 lines 16-22 of the Records. For this reason, it was submitted that evidence which could be and is not produced is presumed to be unfavourable as provided by Section 167(d) of the Evidence Act, 2011 and the decision in Opayemi vs. The State (supra) at 415 para. G per Ogunbiyi, JSC; which provision and authority he urged us to apply in this case against the Respondent and called on us to hold that there are great doubts as to the guilt of the Appellant which doubts should be resolved in favour of the Appellant. We were therefore in the light of the above submissions urged to allow the Appeal, quash the conviction and sentence, discharge and acquit the Appellant.
ARGUMENTS OF LEARNED COUNSEL TO THE APPELLANT ON ISSUES NUMBER TWO (2) AND THREE (3) TOGETHER:
“(2) WHETHER OR NOT EXHIBIT “E”, A RETRACTED CONFESSIONAL STATEMENT OF THE APPELLANT WAS PROPERLY ADMITTED, AND RELIED UPON BY THE LOWER COURT AS THE SOLE GROUND OF CONVICTING AND SENTENCING APPELLANT OF THE OFFENCES CHARGED? (GROUNDS 4, 5, 6 AND 7 OF THE NOTICE OF APPEAL).”
AND
“(3) WHETHER OR NOT THE PROSECUTION PROVED BEYOND REASONABLE DOUBT THE OFFENCES AS CHARGED AGAINST THE APPELLANT TO WARRANT HIS CONVICTION AND SENTENCE? (GROUNDS 3, 9 AND 10 OF THE NOTICE OF APPEAL).”
Arguing these two Issues together because both touch on proof of evidence and the basis upon which the Appellant was convicted and sentenced, the learned Senior Advocate and his Colleague urged us to resolve the Issues in favour of the Appellant in that the learned Trial Judge was not justified to have admitted and relied on Exhibit “E” (the retracted Confessional Statement of the Appellant) as the sole ground of convicting the Appellant of the offences charged, when the said Exhibit “E” was not corroborated as required by law; was never tested in the light of other independent evidence before the Court; was never endorsed and confirmed by a Superior Police Officer as required by the English Judge’s Rules, 1912 and the practice in Nigeria and that Prosecution failed to prove beyond reasonable doubt the offences charged against the Appellant.
The learned Counsel repeated their earlier argument on Issue Number One (1), that Exhibit “E” was inadmissible and uncorroborated or tested in the light of their independent evidence before the Court as the Appellant undoubtedly retracted Exhibit “E”. They conceded that the learned Trial Judge was right in the first place to have “’admitted” the said Confessional Statement as Exhibit “E” after it was objected to by the learned Counsel to the Appellant on the ground that it was not made by the Appellant. However, the learned Counsel were of the view that the learned trial Judge failed to advert his mind to the fact that having “admitted” Exhibit “E”, he still had a duty to decide whether or not the Appellant made the Statement at the end of the trial which was the position of the law as stated in Gbadamosi vs. The State (1992) 9 NWLR (Pt.266) 465 at 498 paras. C-E per Ogundare, JSC (of blessed memory).
Relying on the dictum of the learned Law Lord of blessed memory, the learned Counsel to the Appellant contended that there is nothing on Record to show that the learned Trial Judge referred to this important element of admissibility of Exhibit “E” and accordingly the Lower Court erred in law in failing to decide whether or not the Appellant made the Statement, which it heavily relied upon in convicting and sentencing the Appellant. Nweze vs. The State (2018) 6 NWLR (Pt.1615) 197 at 213 paras. B-D (SC); where a similar view as that of Gbadamosi vs. The State (supra); was taken, was also relied upon in so submitting. On the settled position of the law that a Statement of an Accused to the Police, is evidence of the fact that it was made, but being extra-judicial, it is not evidence of the truth of its contents, he cited and relied on the decisions inSuberu vs. The State (2010) 8 NWLR (Pt.1197) 586 at 608 paras. C-D; Adelumola vs. The State (1988) 1 NWLR (Pt.73) 683 and Kasa vs. The State(1994) 5 NWLR (Pt.344) 239 at 286 paras. E-H and further submitted on the authorities of Okanlawon vs. The State (2015) 17 NWLR (Pt.1489) at 445 at 480 paras. A-D and Kareem vs. FRN (No.1) (2002) 8 NWLR (Pt.770) 636 at 656 paras. C-D (CA); that once there is a retraction by the Accused of a Statement accredited to him, the Court of Trial is expected to test its truthfulness and veracity by examining the said Statement in the light of other credible evidence available. In other words, he maintained, the Trial Court is obligated to consider the weight to be attached to the Statement in view of the guidelines for assessing its truthfulness as laid down in the latter cited case as well as Nsofor vs. The State (2004) 18 NWLR (Pt.905) 292 at 310-311 paras. E-D (SC) and Osetola vs. The State (2012) 17 NWLR (Pt.1329) 251 at 278, paras. E-H.
In respect of our instant case, it was the learned Counsel to the Appellant’s view that when the retracted Statement of the Appellant (Exhibit “E”) is subjected to the six tests for determining the voluntariness or truthfulness of the Confession, one is left in no doubt that the Prosecution failed to prove the case of Armed Robbery against the Appellant beyond reasonable doubt. Reference was made to page 78 lines 10-20 of the Records as quoted in page 14 para. 3.2.6 of the Appellant’s Brief of Argument, where the Trial Court attempted to apply the six tests and merely stated as so quoted. The learned Counsel also argued that from the above quoted pertaining the Trial Court’s Judgment, the learned Trial Judge did not properly apply these tests to Exhibit “E” as there was nothing outside the said Statement to justify the Appellant’s conviction nor was there any evidence outside the alleged confession to support and show that the confession was true, because Exhibits “A”, “B”, “C” and “D” apart from being inadmissible, are not evidence outside Exhibit “E” capable of corroborating the facts contained in the said Confessional Statement.
Referring us again to Section 34(2) of the Evidence Act, 2011 and Kasa vs. The State (supra) at 285, paras. D-H (SC); the holding of the Apex Court which he copiously quoted in paragraph 3.2.7 of pages 14 and 15 of the Appellant’s Brief of Argument; it was submitted that since no eye Witness was called to prove the case, it became desirable to have corroborative evidence independent of the confession and in the absence of such independent corroborative evidence in the instant case, we were urged to quash the conviction of the Appellant. Iko vs. The State (2001) 14 NWLR (Pt.732) 221 at 241 paras. D-E, per Kalgo, JSC; was cited and relied upon on the purpose of corroboration to submit that the learned Trial Judge was wrong to have found as he did that Exhibits “A”-“D” are other pieces of evidence which made it probable that Exhibit “E” is true whereas the said Exhibits “A”-“D” which are/were inadmissible were used to corroborate Exhibit “E” and were part and parcel of the retracted Statement.
Still on the nature of corroborative evidence, the learned Counsel to the Appellant again cited Section 34(2) of the Evidence Act, 2011as well as State vs. Gwangwan (2015) All FWLR (Pt.801) 1470 at 1495-1496, paras. H-D or (2015) 13 NWLR (Pt.1477) 600 at 626, paras. D-F (SC); to further submit that for evidence to amount to corroboration, it must be extraneous to the Witness who is to be corroborated, as a person cannot corroborate himself more so when Exhibits “A”, “B”, “C” and “D” relied upon by the trial Court as corroborating Exhibit “E” are inadmissible hearsay evidence. For this submission, reliance was placed on the dictum of Tur, JCA (now of blessed memory) in Uwa vs. The State (supra) at 473, paras. A-C. In the light of the above authorities, the learned Counsel to the Appellant insisted that the findings of the learned Trial Judge at page 78 lines 10-20 of the Records that Exhibits “A”, “B”, “C” and “D” corroborated Exhibit “E” are perverse and that it is the duty of this Court to interfere therewith and set same aside. Olayinka vs. State (supra) 578 paras. E-G; was cited in support of the above submission.
On another score, the learned Counsel argued that the learned Trial Judge rather made a case for the Prosecution when he stated: “When he was arrested, the Accused was wearing the Camouflage Shirt” as none of the Witnesses for the Prosecution saw the Accused wearing the said Army Camouflage shirt in view of what the PW2 through whom the Exhibits were tendered said in his evidence in-chief under cross-examination at pages 23-25 of the Records that Exhibits “A”-“D” were brought to the Police by the Chairman of the Vigilante Group. They therefore submitted that the learned Trial Judge had no business bridging the yawning gap in the Prosecution’s case and therefore on the authority of Suberu vs. The State (supra) at 604-605; he was in grave error in so holding thereby occasioning the Appellant grave miscarriage of justice.
On the question whether from the Confessional Statement (Exhibit “E”) there are relevant facts made in it of facts, true as far as they can be tested, we were referred to the case of Shande vs. The State (2005) All FWLR (Pt.279) 1342 at 1359-1360, paras. G-C or (2005) 12 NWLR (Pt.939) 301 at 323, paras. E-H (SC); where the Supreme Court commenting on the factors that will affect the materiality and credibility of Confessional Statement held as quoted in paragraph 3.2.10 of pages 17 and 18 of the Appellant’s Brief of Argument. The learned Counsel then insisted that in the instant case, Exhibit “E” was the retracted Confessional Statement of the Appellant said to have been made on the 12th of June, 2013 which was tendered through the PW2 and Appellant through his Counsel denied making the Statement and while testifying on Oath denied the commission of the Offence and gave his own version of the incident maintaining his stand that he did not make any Statement on 12th June, 2013 but he only made his Statement on 13th June, 2013 (page 32 of the Records) and the authority of Iliyasu vs. The State (2015) 11 NWLR (Pt.1469) 26 at 81, paras. A-C); were referred to in submitting that the Appellant discharged the duty of explaining to the Trial Court as part of his defence, his reasons for resiling from Exhibit “E” and reasons for the inconsistency with his Statement in Court.
The learned Counsel also contended that it has not been shown that the Appellant was aware that the contents of the Statement was confessional and it was not on record that the Statement admitted was read over to the Appellant before a Superior Police Officer or taken to a Superior Police Officer at all.
Citing Agbo vs. The State (2006) 6 NWLR (Pt.977) 545 at 566 paras. C-E and 570, paras. A-C; as well as Aigbadion vs. The State(2000) 7 NWLR (Pt.666) 686 at 702 paras. H-A; on the trite position of the law that where a Witness is not cross-examined the import is that the party who ought to have done so accepts the evidence of the Witness that ought to be cross-examined as true, it was argued that the Appellant was not confronted with the Statement made on 12th June, 2013/he made on the 13th of June, 2013 nor was that Statement produced in order to determine whether Exhibit “E” was the same with the Statement he allegedly made on 13th June, 2013. The learned Counsel noted that there is evidence from the Appellant that he was subjected to severe beatings on the 12th, 13th and 14th of June, 2013 at Vandeikya his place of arrest and Makurdi by the Police to the extent that he was even taken to the Police Clinic for treatment before being taken to Court on 19th June, 2013 and so Exhibit “E” could not be said to be free and voluntary. Pages 32 and 64-65 of the Records refer.
It was also the learned Counsel to the Appellant’s view, that there is equally nothing to show that the Appellant had the opportunity to commit the alleged crimes as the Prosecution did not prove that he did and that it is not the duty of the Appellant to show that he did not commit the offences with which he was charged and as such it is unsafe to sustain the conviction of the Appellant on the retracted confession.
Turning to the question whether the Confession was possible, it was submitted that the learned Trial Judge failed to look at all the circumstances under which the Statement was made, more so when the Appellant’s denial was not challenged; the original Statement made on 13th June, 2013 was not produced by the Prosecution and the PW1 gave evidence that he recorded the Statement at the Police Headquarters, Makurdi but that Statement was also not tendered. The learned Counsel in the light of the above repeated their earlier submission that the failure to tender the said Statements is fatal to the Prosecution’s case as those Statements would have assisted the Court to determine the truthfulness or otherwise of the alleged confession in Exhibit “E”.
On whether the Confessional Statement was consistent with other facts which have been asserted and proved, it was submitted that there is no other evidence in this case emanating outside the Confession that is consistent with the retracted Confession having contended that the grouse of the Appellant is that he did not make a Statement on 12th June, 2013 (Exhibit “E) but that he made a Statement on 13th June, 2013 which was not tendered and that whereas he was coerced into making a Statement at the Police Headquarters on 14th June, 2013, that Statement was mentioned by PW1 in his evidence-in-chief but was also not tendered in Court apart from vital Witnesses not being called by the Prosecution. The learned Counsel to the Appellant asserted that the above omissions on the part of the Prosecution are material and fatal to their case.
In the light of the foregoing submissions, they further contended that the fact that Exhibit “E” did not pass through the six tests laid down in a plethora of authorities cited above, the alleged Confessional Statement (Exhibit “E”) has not been proved to be voluntarily made or proved to be direct, positive and unequivocal so as to amount to an admission of guilt. The only duty, they maintained was for the learned Trial Judge to have resolved the doubt as to whether the Appellant made Exhibit “E” in his favour. For the above submissions they placed reliance on Sale vs. The State (supra) at 415, para. G, to insist that Exhibit “E” is insufficient to ground a finding of guilt, more so as the Appellant resiled therefrom or retracted it all together at the trial. It was further contended that apart from the failure of Exhibit “E” to pass through the six tests it was inadmissible as the Accused was not taken before a Superior Police Officer for purposes of endorsement and confirmation as laid down by the English Judge’s Rules and the decision of the Supreme Court in Smart vs. The State (2016) 9 NWLR (Pt.1518) 447 at 484, paras. C-F.
The learned Counsel to the Appellant apart from repeating their earlier arguments, submitted that apart from the evidence of the PW1 and PW2 being inadmissible hearsay as rightly held by the learned Trial Judge, their said evidence are riddled with contradictions which materially occasioned the Appellant miscarriage of justice. To buttress their contention, they reproduced excerpts of the evidence-in-chief of the said Witnesses and under cross-examination as well as Exhibit “F” (the inadmissible Statement of the Complainant in the last paragraph thereof), which according to the learned Counsel to the Appellant, cast doubt as to whether there was, robbery which the Appellant participated and which shows that some essential elements of Armed Robbery were not proved. For the above reason, it was submitted that the learned Trial Judge was in error to have held that the contradictions are/were not material adding that in view of the material contradictions and inconsistencies in the evidence of the Witnesses for the Prosecution such as cast doubt on the guilt of the Appellant in this case, the Appellant ought to be given the benefit of doubt and not to be convicted upon such unreliable evidence. Onuchukwu vs. State (1998) 4 NWLR (Pt.547) 576 at 590 paras. D-E; was relied upon in so submitting.
On the three essential ingredients of the offence of Armed Robbery that ought to be proved by the Prosecution beyond reasonable doubt in order to sustain the conviction of an Accused person charged under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004, they referred to the case of Bozin vs. The State (1985) 2 NWLR (Pt.8) 453 at 469, paras. G-H; where the Supreme Court enumerated those ingredients as reproduced at page 12, paragraph 3.2.20 of the Appellant’s Brief of Argument. Alluding to the first ingredient, they insisted that apart from Exhibit “E”, the retracted and inadmissible Confessional Statement of the Appellant, there is no other independent evidence to establish that Ierkwagh Bugh at Dyegh Mbakaange, Vandeikya Local Government Area was robbed because the Prosecution never proved that fact as Exhibits “F” and “G” cannot be said to have established that fact, the makers of those Statements having not been called to testify and those Statements are/were inadmissible.
They reproduced their (learned Counsel’s) earlier argument that there was no evidence to establish armed robbery or even to corroborate the facts in the disputed Confessional Statement (Exhibit “E”) as no eye Witnesses to the robbery were called, the only evidence tending to show that there was robbery for which the Appellant was charged and convicted being those of PW1 and PW2 which amounted to inadmissible hearsay as they were not present at the scene. As also already argued, they maintained that Exhibits “A”-“D” form part of Exhibit “E” and incapable of corroborating the said Exhibit “E” and if the evidence of PW1 and PW2 are discarded, there will be nothing before the Court and the absence of any other evidence outside the Confessional Statement raise doubt in the case of the Prosecution which should be resolved in favour of the Appellant.
As for the second ingredient of the Offence of Armed Robbery that ought to be proved beyond reasonable doubt by the Prosecution, they reiterated their above submission adding that there is no other evidence apart from the retracted Confessional Statement (Exhibit “E”) that proved that the Appellant was armed with offensive weapons. In their view, the fact that the Prosecution alleged that Exhibits “A”, “B”, “C” and “D” were recovered from Appellant, and the Appellant’s admittance in the disputed Confessional Statement that he participated in the robbery and that the weapons were used to rob Ierkwagh Bugh on 12th June, 2013 are not sufficient to establish the guilt of the Appellant more so that the said weapons (Exhibits “A”, “B”, “C” and “D”) were purportedly recovered from the Appellant by the Informant and victim Ierkwagh Bugh and the Chairman of the Vigilante Group – Peter Nember, who were not called as Witnesses to give their evidence.
On the third ingredient, which is that the Accused person took part in the robbery, it was submitted that it is not enough to rely on the retracted Confessional Statement to establish that the Appellant took part in the robbery in that the Appellant denied taking part in the robbery and if the hearsay evidence of the PW1 and PW2 are excluded, there is no independent evidence on that third ingredient apart from the retracted Confessional Statement to establish that the Appellant robbed Ierkwagh Bugh at gun point on 12th June, 2013. Citing the case of Alor vs. The State (1997) 4 NWLR (Pt.501) 511 at 517 para. D; the learned Counsel for the Appellant re-asserted that in the instant case, the findings of the Trial Court that the Prosecution proved its case are not supported by evidence and this Court can reverse the decision of the Court thereof.
On another score, it was their contention that the Appellant was not identified by the victim of crime or the Informant, who was not called at all to testify and that the failure of the Prosecution to call the eye Witnesses of the robbery or any one with personal knowledge of what transpired, is fatal to the Prosecution’s case. Sale vs. The State (supra) 109 paras. E-F; was again cited in support of their above contention.
As regards the Count of Conspiracy, it was submitted by the learned Counsel that even if Exhibit “E” were to be admissible, an Accused person cannot be convicted of that offence on the strength of his confession unless there is an independent Witness/evidence that other persons conspired with him. Reliance was placed on the State vs. Ajayi (2016) 14 NWLR (Pt.1532) 196 at 229 paras. C-D; to submit that in the instant case as earlier stated, the evidence/statement of the PW1 and PW2 and those of the persons who were not called, were mere hearsay and cannot support the assertion that Appellant herein conspired with others neither can Appellant be convicted of the offence of being in possession of Firearms (Exhibits “A” and “B”) when the said Exhibits were inadmissible hearsay evidence and we were urged to so hold.
Concluding their arguments on these Issues, the learned Senior Counsel and his colleague, contended that the duty and responsibility of the Prosecution is to prove the guilt of the Accused person beyond reasonable doubt and all the essential ingredients which make up the offences charged and if the Prosecution fails to prove any of the elements as in the instant case, the Accused, on the authority of Onuchukwu vs. The State (supra) at 592, paras. D-F; is entitled to acquittal. We were therefore in the circumstances of their submissions urged to resolve the doubts inherent in the Prosecution’s case, in favour of the Appellant by allowing the Appeal.
ARGUMENT OF THE LEARNED COUNSEL TO THE APPELLANT ON ISSUE NUMBER FOUR (4):
“WHETHER OR NOT THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE BEFORE THE COURT BEFORE CONVICTING AND SENTENCING APPELLANT TO DEATH? (GROUNDS 1 AND 2 OF THE NOTICE OF APPEAL).”
In their argument on this Issue, the learned Counsel to the Appellant alluded to the settled position of the law that evaluation of evidence and ascription of probative value are within the exclusive ambit of the learned Trial Judge who had the advantage and opportunity to hear and watch the demeanour of the Witnesses and an Appellate Court will not allow any Appeal merely because the verdict read by the Trial Court is challenged on the ground of its being contrary to the weight of evidence. However, they further noted, it is also the law that where the Trial Court fails or refuses to evaluate the evidence, the Appellate Court will be in good position to review the evidence and make the necessary re-assessment. For this submission, the Supreme Court case of Abdullahi vs. The State (2008) 17 NWLR (Pt.1115) 203 at 219, paras. A-C per Mohammed, JSC; was cited in support and to further submit that the Trial Court did not properly evaluate the evidence adduced by the Appellant in his defence in that the Court below did not make findings of facts on the claim of the Appellant that he did not sign a Statement on 12th June, 2013 (Exhibit “E”) because he was weak as a result of the torture meted on him.
According to the learned Counsel who repeated their previous arguments that the Trial Court’s use of Exhibits “A”, “B”, “C”, “D”, “F” and “G” which are inadmissible, use of inadmissible retracted Confessional Statement (Exhibit “E”) which was not corroborated or tested in the light of other independent evidence before the Court and the Court’s failure to resolve the contradictions in the evidence of the Prosecution’s Witnesses in favour of the Appellant, resulted in the failure of the Trial Court to perform its sacred duty of evaluation of evidence before it. According to learned Counsel, the learned Trial Judge ought to have evaluated the evidence and stated the reasons why he believed them or not clearly in his Judgment and that the failure to do as such is a denial of fair hearing that occasioned the Appellant miscarriage of justice. For the above submission, reliance was placed on the case of Nwosu vs. The State (supra) at 441 para. H; to urge us to consider and re-evaluate the evidence of the Appellant and allow the Appeal, set aside the Judgment of the Trial Court and in its place order the discharge and acquittal of the Appellant for the reasons advanced in paragraph 4.01 to 4.6 of pages 28 and 29 of the Appellant’s Brief of Argument.
ARGUMENT OF THE LEARNED COUNSEL TO THE RESPONDENT ON THE SOLE ISSUE DISTILLED FOR DETERMINATION:
“WHETHER HAVING REGARD TO THE TOTALITY OF EVIDENCE BEFORE THE COURT, THE TRIAL COURT WAS RIGHT TO HAVE CONVICTED THE APPELLANT OF THE OFFENCES CHARGED?”
Arguing the Sole Issue in the Respondent’s Brief of Argument, the learned Counsel for the Respondent conceded to the settled position of the law on the need for the Prosecution to prove its case beyond reasonable doubt in order to secure a conviction in a criminal case as provided by Section 135(1) of the Evidence Act, 2011 and decided also in Nkebisi vs. The State (2010) 5 NCC 84 at 104. Furthermore, it was submitted, the Prosecution is to prove the essential elements of the Offence(s) with strong and credible evidence in order to establish the guilt of the Accused person. For the above positions of the law, the learned Counsel to the Respondent relied on Patrick Oforlete vs. The State (2000) 7 SC (Pt.1) 80 and Bakare vs. The State (1987) NWLR (Pt.52) 579 at 595.
The learned Counsel for the Respondent like his learned Colleague also listed the essential ingredients of the Offence of Armed Robbery that must be proved as in this case in order to establish the guilt of the Accused person as decided in Fatai vs. The State (2007) NCC 505 at 523; Bozin vs. The State (1985) 2 NWLR (Pt.8) 465 and Olayinka vs. The State (2007) 9 NWLR (Pt.1040) 561;which he cited and relied upon to buttress the above submission. He further pointed out that the guilt of an Accused person may be established/proved by any of the following ways:-
1. By Confessional Statement of an Accused person.
2. By direct evidence from eye Witnesses; and
3. By circumstantial evidence; Nigerian Navy & 2 Ors. vs. Commander S.A. Lambert (2007) FWLR (Pt.398) 585 referred.
According to the learned Counsel, in the instant case the Prosecution called two Witnesses as PW1 and PW2 who were Police Investigating Officers but not eye Witnesses as their roles being restricted to what they did as investigators or the items they recovered as Exhibits in the course of investigations.
The learned Counsel recalled that the PW2 was the first to have received the Accused person along with the Exhibits because he was at the Divisional Headquarters, Vandeikya where the Appellant was arrested. He referred to page 23 of the Records in lines 25-32 to page 24 lines 1-3, where the relevant portion of the evidence of the PW2 can be found while that of the Appellant mentioned in lines 25-32 was tendered and admitted as Exhibit “E” (page 25 lines 12 of the Records refers) as well as page 23 lines 10-22 while the items recovered from the Appellant during the commission of the crime are listed by the Appellant in page 23 lines 10-22 of the Records and which items were later admitted and marked Exhibits “A”, “B”, “C” and “D” (page 21 lines 5-8 of the Records refer).
The learned Counsel also alluded to the evidence of the PW1 to the effect that he also investigated the case as can be found in page 20 lines 7-15 of the Records where the Appellant admitted the commission of the offence adding that the summary of the evidence of the PW1 and PW2 is that in the course of investigation, the Appellant volunteered his Confession Statement marked Exhibit “E” where he admitted the commission of the crime along with two others who were Sunday Tersoo and Pastor while armed with Exhibits “A”, “B”, “C” and “D” which were all recovered from him (the Appellant). He also submitted that the evidence of the PW1 and PW2 were not contradicted or challenged by the Appellant and that these pieces of evidence were what they did as investigators but not what was narrated to them by the Informant or any other person. The Trial Court was therefore, in his view, right to have relied on the evidence of the Prosecution Witnesses and held that the Prosecution proved its case beyond reasonable doubt before convicting the Appellant.
It was submitted that Exhibit “E” which zeroed on the exploits/criminal escapades of the Appellant as charged, is the fulcrum of the Prosecution’s case and the said Exhibit “E” was willingly and voluntarily given by the Appellant and its truthfulness, directness and positiveness was fleshed and corroborated by Exhibits “A”, “B”, “C” and “D”. According to the learned Counsel, the Appellant in admitting the commission of the offences in Exhibit “E”, made a clean breast of the charge by confessing to being in possession of the gun at the time of the incident, which gun had no license and the Trial Court was therefore right to have convicted the Appellant on the basis of Exhibit “E”. For the above submission he relied on Mohammed & Anor. vs. The State (2007) 4 SCNJ 117 at 128-129; Milla vs. The State (1985) 3 NWLR (Pt.11) 190; Obosi vs. The State (1969) 1 NWLR 204; Gashi vs. The State (1981) 2 PLR 342 at 347 and Adio vs. The State (1986) 2 NWLR (Pt.24) 581.
On the evidence of the Appellant who testified as DW1 at page 33 lines 6-10 of the Records that he was returning from a burial when he was arrested, the learned Counsel to the Respondent contended that under cross-examination, he would not give any satisfactory answer as to whom he was with at the purported burial and alibi was raised while testifying and did not raise it timeously for the Police to investigate such, that the alibi was/is an afterthought. Gachi vs. The State (1965) NMLR 333; Udo Ebre vs. The State (2001) 5 MJSC 140 at 156 paras. F-G; were cited in urging us to hold that the Court was right to have rejected that piece of defence and further that this Honourable Court should hold that on the totality of the evidence, the learned Trial Judge was right to have held that the Prosecution was able to prove its case beyond reasonable doubt thereby convicting the Appellant.
Reacting to the contention by the learned Counsel to the Appellant that the Lower Court was wrong in relying on Exhibits “A”, “B”, “C”, “D”, “E”, “F” to convict the Appellant for the offences charged having earlier held that the evidence of the Witnesses for the Prosecution were hearsay, and that the Trial Court was therefore not justified to have admitted and relied on Exhibits “A”, “B”, “C”, “D”, “E”, “F” and “G”, those Exhibits being hearsay evidence as corroborating Exhibit “E”, the learned Counsel to the Respondent submitted that the learned Counsel to the Appellant misconstrued the Trial Court’s reasoning at pages 73 lines 24-38 and 74 lines 1-14 of the Record of Appeal in view of the fact that while reviewing the evidence of the Prosecution, the Court drew the distinction between evidence that are hearsay and those that are not when the learned Trial Judge held as he did at page 73 lines 32-38 of the Records as quoted at pages 6-7 paragraph 4.06 of the Respondent’s Brief of Argument.
In order to appreciate what the learned Trial Judge stated on the above quoted findings as to what the PW1 and PW2 did in the course of their investigations, the items recovered as Exhibits which do not constitute evidence of hearsay, we were again referred to page 23 lines 23-31 as quoted at page 7 of the Respondent’s Brief of Argument; to submit that the above piece of evidence by PW2 was what the Court below considered as not being hearsay in nature which piece of evidence was not discountenanced as erroneously understood and submitted by the learned Counsel to the Appellant. Similarly, according to the learned Counsel to the Respondent, the PW1 at page 19 of the Records also stated what he did in the course of investigation when Appellant was brought to the State C.I.D. Makurdi along with locally made pistol (Exhibit “A”), one live cartridge (Exhibit “B”), the Electric Cable Whip (Exhibit “C”) and Army Camouflage Shirt (Exhibit “D”), when the case was referred to him for investigation. Further reference was made to page 20 lines 7-13 of the Records where the PW1 stated in evidence that he approached the Appellant on the recovered Exhibits which Appellant admitted to be in possession at the time of the commission of the crime along with two others.
On the above score, it was submitted that this part of the evidence of the PW1 is what he did as an investigator as well as evidence of the recovering of the Exhibits “A”, “B”, “C”, “D” which the Trial Court did not discountenance as they do not constitute hearsay evidence. Relying on the dictum of Achike, JSC in Udo Ebre vs. The State (2001) 5 MJSC 140 at 162; he reiterated that Exhibits “A”, “B”, “C”, “D” not being hearsay evidence, they are admissible in law as the Lower Court rightly did and relied on them as corroborating Exhibit “E” and that the Trial Court did not rely on Exhibit “F” and “G” but Exhibit “E” in arriving at his conclusion in convicting the Appellant. Page 77 of the Records was referred to in urging us to hold that no extraneous Exhibits or hearsay evidence influenced the mind of the Court in arriving at his Judgment.
Turning to the contention of the learned Counsel to the Appellant that the failure to call the Informant/Victim of the crime, Informant’s Wife and the Chairman of the Vigilante Group who arrested the Accused person as well as not tendering the second Statement of the Accused person made at the State’s C.I.D. Makurdi is/was fatal to the Prosecution’s case thereby creating doubt which should be resolved in favour of the Appellant, it was again submitted by the learned Counsel to the Respondent that in the instant case, no issue or issues abound that could not be resolved without calling the aforementioned persons for it is not the quantity but the quality of evidence that matters as in appropriate circumstances as in this case, a Court may base its decision on the evidence of a single Witness or Confessional Statement if such evidence before the Court has strong probative value. In support of the above submission, reliance was placed on Omonua vs. Okpere (1991) 5 NWLR (Pt.189) 36 at 50, para. F; Onowhosa vs. Odiuzou (1999) 1 NWLR (Pt.586) 173 at 183 para. A and Mogaji vs. Odofin (1978) 4 SC 91 at 94; to further contend that the Prosecution having tendered Appellant’s Statement (Exhibit “E”) volunteered to the Police at the earliest opportunity after his arrest and which Statement was confessional, the purported Second Statement by the Appellant whether tendered or not, is of no moment and not fatal to the case of the Prosecution as we were urged to so hold.
On the submission by the learned Counsel to the Appellant that the Court below did not properly evaluate the evidence before it, in convicting the Appellant, the learned Counsel to the Respondent relied on the authorities of Efe vs. The State (1976) 1 SC 75 and Asanya vs. The State (1991) 3 NWLR (Pt.180) 422; in asserting that evaluation of evidence and ascription of probative value to the testimonies of the Witnesses are matters within the exclusive province of the Trial Judge who had the unique opportunity to see and hear the Witnesses and he alone has the unique powers to accredit and discredit the Witnesses. He maintained that if there is any evidence before the Trial Court (which in this case, he contends there is) from which the Court of Trial could reasonably arrive at the conclusion at page 82 lines 30-33 of the Records; we were urged to uphold the decision of the Court below convicting the Appellant since there was no error in the Trial which would amount to miscarriage of justice. Efe vs. The State (1976) 1 SC 75 and Asanya vs. The State (1991) 3 NWLR (Pt.180) 422; were again cited and relied upon in submitting that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and that the Respondent having established the guilt of the Appellant by credible evidence, it has met the standard of proof required by Section 135(1) of the Evidence Act, 2011 as the learned Trial Judge was therefore right to have convicted and sentenced the Appellant.
On the grounds enumerated in paragraph 5.0 of the Respondent’s Brief of Argument, we were urged to dismiss the Appeal and affirm the Judgment of the Trial Court delivered on 22nd May, 2015.
RESOLUTION OF ISSUES:
In the resolution of the Issues for determination as nominated by the respective learned Counsel for the Appellant and Respondent, I noticed that the Four (4) Issues distilled by the learned Senior Counsel and his Colleague, particularly Issues Numbers 1 to 3 of the Appellant’s Brief and the arguments thereon; are repetitive of each other and accordingly since Issues 1 to 3 thereof deal with the question as to whether from the totality of the evidence led by the Prosecution, the guilt of the Accused/Appellant was proved beyond reasonable doubt so as to warrant the Appellant’s conviction by the Trial Court, Issues 1 and 2 shall be subsumed within Issue Number 3.
In the same vein, since Issue Number 4 of the Appellant and the Sole Issue distilled by the learned Counsel for the Respondent both touch on whether there was proper evaluation of the totality of the evidence before the Lower Court convicted and sentenced the Appellant to death, the Sole Issue of the learned Counsel to the Respondent shall be subsumed within the Appellant’s 4th Issue. Accordingly, I shall re-couch the salient two Issues that call for determination in this Appeal as reproduced hereunder:-
“1. WHETHER OR NOT THE PROSECUTION, PROVED BEYOND REASONABLE DOUBT, THE OFFENCES AS CHARGED AGAINST THE APPELLANT TO WARRANT HIS CONVICTION AND SENTENCE? (DISTILLED FROM GROUNDS 3, 8, 9, 10, 11, 12 AND 13 OF THE NOTICE OF APPEAL).”
AND
“2. WHETHER OR NOT THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE BEFORE THE TRIAL LOWER COURT BEFORE CONVICTING AND SENTENCING APPELLANT TO DEATH? (DISTILLED FROM GROUNDS 1 AND 2 OF THE NOTICE OF APPEAL).”
RESOLUTION OF ISSUE NUMBER 1(ONE):
There is no doubt as rightly submitted by the learned Counsel to the parties particularly the learned Counsel to the Respondent that the law is trite that for the Prosecution to secure a conviction in a criminal case the guilt of the Accused person must be proved beyond reasonable doubt. Section 135(1) of the Evidence Act, 2011 which the learned Counsel to the Respondent relied upon and indeed subsections (2) and (3) thereof stipulate in mandatory terms thus:-
“135(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
By the above provisions of the Evidence Act, the Prosecution bears the onerous burden of proving the alleged commission of any offence(s) against an Accused person, beyond reasonable doubt. This burden can only be discharged by the prosecution adducing cogent, credible, compelling and convincing evidence in proof of the essential elements of the offence(s) with which Accused is charged. See Patrick Oforlete vs. The State (2000) 7 SC (Pt.1) 80 and Bakare vs. The State (1987) NWLR (Pt.52) 579 at 595. The provisions of Section 135(1) and (2) are encapsulated in Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 which states that: <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
“Every person who is charged with a criminal offence shall be presumed innocent until proved guilty.”
These Statutory and Constitutional provisions regarding the presumption of innocence and burden of proof have been given judicial interpretation and assent by English Courts and followed in a long line of Nigerian cases by the Superior Courts of the land. In the locus classicus of Woolmington vs. Director of Public Prosecutions (1935) A.C 42, 462, Lord Sankey of the House of Lords, while enunciating the common law position on this principle of law, aptly put it so succinctly thus:-
“Throughout the web of English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have said as to the defence of insanity and subject also to any statutory exceptions”.
The West African Court of Appeal in the celebrated case of R. vs. Buddy Edem Eka 15 W.A.C.A 32; had also approved of the dictum of Lord Sankey when it held thus:-
“It is fundamental that in a criminal trial, the onus is upon the prosecution to prove all the essential elements which go to make up the offence charged. If it fails to prove any of them, the Accused is entitled to an acquittal and if in-spite of that he is convicted, he is entitled to have the conviction quashed on Appeal”.
See Oguntade, J.S.C in Onachukwu vs. The State (1998) 4 S.C.N.J 36 at 49 paras 3 – 11; R vs. Lawrence (1932) 11 N.L.R 6 at 7 (P.C), per Lord Atkin and Areh vs. COP (1959) W.R.N.L.R. 230 at 231. See also the case of Nkebisi vs. The State (2010) 5 NCC 84 at 104; ably cited by the learned Counsel to the Respondent.
What emerges from the decisions of all the cases above cited is that, it is not the duty of the Accused to prove his innocence but that of the prosecution to prove his guilt and it is only after the Prosecution has proved its case beyond reasonable doubt that the burden will shift to the Accused to prove the contrary, his innocence or dispel his guilt. See Kinnami vs. Bauchi N.A (1957) N.R.N.L.R 42. The Supreme Court in the case of Obiode & Ors. vs. The State (1970) 1 ALL N.L.R 35; re-echoed the dictum of the House of Lords in the Woolmington vs. D.P.P case, where Lord Sankey again held that if at the end of the whole case, there is reasonable doubt, created by the evidence given by either the Prosecution and the Prisoner, as to the guilt of the Prisoner/the Accused person, the Prosecution has not made out a case and the Prisoner is entitled to acquittal.
In the instant case, the Accused was arraigned on a Three (3) Count Charge of Conspiracy, Armed Robbery and Illegal Possession of Locally made Gun and a live cartridge without license thereby committing offences contrary to Sections 6(b), 1(2)(a) and 3(1) of the Robbery and Firearms (Special Provisions) Act, Cap.515, Laws of the Federation of Nigeria, 2010(CAP. R. 11,LFN, 2004?). It would appear from the arguments of Counsel on both sides that prominence has been given to the Offence of Armed Robbery and we shall begin from the determination of whether the Prosecution actually proved the commission of the offence of Armed Robbery against the Accused/Appellant.
Beginning from Section 1(1) of the Act, it provides inter-alia:- “Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than Twenty-One (21) years.” By Section 1(2)(a) under which the Accused/Appellant was charged:- “(2) If- (a) any offender mentioned in sub-section (1) of this Section is armed with any fire arms or any offensive weapon or is in company with any person so armed; or (b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person the offender shall be liable upon conviction under this Act to be sentenced to death.”
As I said elsewhere, the offence of armed robbery is heinous and attracts the ultimate and supreme price of death sentence and accordingly, in order to convict an Accused person, the Trial Court ought to be circumspect and must ensure that the totality of the evidence adduced by the Witnesses for the Prosecution and indeed the Accused person(s) are microscopically scrutinized in the interest of fair hearing and justice. Now considering the totality of the evidence placed before the Court below, can it be said with definitive certainty that the Prosecution did prove the offences with which the Appellant was charged beyond reasonable doubt?
Now, both the learned Counsel for the Appellant and Respondent are ad idem on the trite position of the law as established by the Supreme Court in Bozin vs. The State(1985) 2 NWLR (Pt.8) 453 at 469 paras. G-H; Fatai vs. The State (2007) NCC 505 at 523 and Olayinka vs. The State (2007) 9 NWLR (Pt.1040) 561; which cases were ably cited by the learned Counsel and followed by this Court in a plethora of decided cases that the essential ingredients or elements of the offence of Armed Robbery that must be proved beyond reasonable doubt by the Prosecution in order to sustain the conviction of an Accused person under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap.R11, Laws of the Federation of Nigeria, 2004 are as follows:
(1) That there was a robbery or series of robberies.
(2) That the Accused was armed with offensive weapon during the course of the robbery.
(3) That the Accused person robbed or was among those who participated in the armed robbery.
The law is also trite as was rightly submitted by the learned Counsel to the Respondent and on the authority of Nigerian Navy & 2 Ors. vs. Commander S.A. Lambert (2007) FWLR (Pt.398) p.585; that the guilt of an Accused person may be proved by any of the following methods:
(a) By direct evidence from eye witnesses;
(b) By circumstantial evidence and
(c) By Confessional Statement of the Accused person.
In the instant case, the Prosecution called two Witnesses (PW1 and PW2) who were Police Officers said to have conducted investigations into the case. The evidence of PW1 (Joshua Tor, an Inspector of Police) then attached to ‘B’ Division of Police Station, Makurdi was to the effect that as at 2013 when the offences were allegedly committed by the Accused/Appellant, he served at the SARS State CID to where the case was transferred from the Vandeikya Police Station alongside the Appellant, a locally made pistol, one live cartridge, electric cable and an army camouflage shirt and was referred to him and two others (Corp. Godwin Audu and CPL. Iorwuese Imah) for investigation of which he was their team leader.
According to him:
“On the 14th June, 2013 when the matter was referred to us, at about 1600 hours, I collected the exhibits which were brought along with the Accused person. We also received the original Police file from Vandeikya Police Station. I then directed Corp. Godwin Audu to record the Accused person’s Statement. The Accused was cautioned in English in my presence, having understood the cautionary words, he signed it. The Accused asked Corp. Audu to record the Statement for him. The Statement was read over to the Accused person in English. He read it over to him and the Accused person agreed that it was correct and he thumb printed it as his Statement. Corp. Audu also counter-signed as a recorder. Corp. Audu is presently on Special Duty at Gboko. I have worked with him for over a year as my Investigator. I also took the Exhibits to the Exhibits Keeper which was given an Exhibit Number 263/2013. I confronted the Accused person with the Exhibits. He said the locally made pistol was brought to him by one Sunday Tersoo of Beetsch Village in Vandeikya Local Government. The gun was recovered from the Accused person at the scene of crime. The live cartridge was also recovered from accused together with the gun. He was wearing the army camouflage shirt. One suspect called Pastor is still at large and also Sunday Tersoo.
They all took part in the robbery. The Accused person told me that all three of them took part in the robbery. They rode to the scene on a motorcycle belonging to Sunday Tersoo. The gun also belonged to Sunday Tersoo. When they arrived at the venue, Sunday Tersoo, gave him the gun. Sunday Tersoo stood as a look out with the motorcycle and Pastor had the whip. The Accused went in and asked the victims to lie down. He ordered the wife to bring the money but the husband did not want the wife to move from where she was so she showed the Accused where the money was. He took the money, which was N24,000 and the accused handed over the money to Pastor. The victim at that point got up and hit the Accused on the hand he was holding the gun. The gun fell and the victim supported by his wife held the Accused. They shouted for help. When they were shouting, the other suspect Pastor, then fearing that they would be caught, ran to Sunday Tersoo and they got on the motorcycle and left. People responded and were able to arrest the accused person right inside the victim’s room.”
The locally made pistol, the live cartridge, the electric cable whip and the army camouflage shirt were tendered, admitted and marked Exhibits “A”, “B”, “C” and “D” respectively. Under cross-examination the Witness stated that he could recognize the Statement of the Accused person said to have been made on the 14th June, 2013 that he directed CPL. Audu to record. However, that Statement was not tendered by the Prosecution. Under further cross-examination the Witness purported that he investigated the matter. He admitted that he was not present when the offence took place and that he did not visit the scene of the crime because that had been done by the IPO from Vandeikya who was/is a Witness in the case and as such there was no need visiting the house of the Accused (victim?)/locus criminis the second time. On further cross-examination, he purported that: “The facts that are presented before this Court are not facts that were given to me by IPO at Vandeikya. There are facts that are from my personal interaction with the Accused person.”
The PW2 (CPL. Iorhoso Mbawuavade) attached to the Divisional Police Headquarters, Vandeikya testified as follows:
“On 12th June, 2013 at about 6am, I was on duty at the Divisional Crime Branch, Vandeikya when the Chairman of the Vigilante Group at Mbakaange District, Mr. Peter Nember arrested the Accused person and brought him to the Police Station, Vandeikya. He was accompanied by the Police Informant, Mr. Ierkwagh Bugh. The Chairman reported that on the same date at about 0100hrs, he and other members of the Vigilante were on duty and they heard the Police Informant Ierkwagh Bugh crying and calling for help that thieves had attacked him in his house. That he and his members rushed to the Informant’s house, where they caught the Accused person in the room of the Police Informant. They also recovered a locally made pistol from the Accused. The Informant said the Accused robbed him of his money. It was the sum of N24,000.00. The Chairman also told the Police that they recovered an electric cable from the Accused. The pistol was loaded with a live cartridge. The Accused was in military uniform (camouflage) with the angle (rank?) of lance corporal. All these items were brought to the station by the Chairman of the Vigilante and handed over to the Police. Thereafter I recorded the Statements of the Chairman of the Vigilante and the Police Informant. I also took possession of the items brought. Thereafter I cautioned the Accused person in English. I interpreted the caution to him in Tiv he said he understood and volunteered his Statement in Tiv and I recorded it in English. After recording, I interpreted it to him in Tiv, he said it was correct. He signed and I counter-signed as the recorder. I asked him about the gun and army shirt recovered from him. I asked him whether he had a license for the gun. He said he had no license and said it belonged to his colleague. The said colleague was not arrested so I would not verify whether the gun belonged to him. He gave the colleague’s name as Tersoo Sunday Akperaga. Thereafter I visited the scene of crime at Udye Village, Mbakaange. When I got to the scene, I discovered that the Police Informant’s room had not been broken into. Apparently, the robbers knocked and the Police Informant opened it. They came under the guise of wanting to buy cigarettes. In the course of investigations, the Informant told me that two persons attacked him. The Accused person and one Wuese Jov popularly known as Pastor both entered his room and attacked him. It was the Accused that had the gun and cable and dressed in military uniform. Wuese had an electric cable. The Accused in his Statement mentioned Sunday Akperaga as a member of their gang. He said it was Sunday that conveyed them to the scene of crime. The said Sunday stood watch outside while he and Wuese entered Informant’s room. Wuese Jov and Sunday Akperaga have not been arrested. They escaped when Informant raised an alarm. After recovering the Exhibits, I registered it with the Exhibit Keeper. We also made efforts to arrest the other suspects but we were unable to arrest them. They are still at large. When we were unable to arrest them, we transferred the case to the State CID for further investigations.”
Under cross-examination the Witness (PW2) stated thus: “I carried out investigations in this case. I did not visit the house of the Accused in the process of investigations. I was satisfied with the Statement of the Accused since it was confessional. It was the Vigilante that brought the Exhibits “A”-“D”, money taken from the complainant was not recovered from him. The incident took place at about 01.00am on 12th June, 2013. The Accused was brought to the station on the same date. At the time he was brought, the Accused was not beaten or battered by the Vigilante.”
The evidence of the Appellant on Oath had already been reproduced at pages 8 and 9 of this Judgment. It suffices to state that he denied the commission of the offence thereby retracting Exhibit “E”, his purported Confessional Statement which the Court below relied upon in convicting him claiming that the said Statement (Exhibit “E”) was corroborated by other pieces of evidence (Exhibits “A”-“D”). It would be recalled that at pages 72/11 lines 23-38 to 73/12 of the Records/Judgment, the learned Trial Judge in the course of evaluating the evidence of the Witnesses held that from the evidence of the two Prosecution’s Witnesses the robbery was an armed robbery since a gun, Exhibit “A” was used and that from their testimonies, the Accused actively took part in the robbery and indeed it was the Accused who wielded the gun.
However, in the words of the learned Trial Judge: “It is quite tempting at this point to simply conclude that the elements of the offence have been established but an important point was raised by the defence Counsel which is that none of the vital Witnesses in the case testified and the testimonies of the Prosecution’s Witnesses amounted to hearsay.”
The learned Trial Judge rightly alluded to the case of Idahosa vs. Idahosa (2010) LPELR-9072, where it was held that the evidence of a Statement made to a Witness by a person who is not himself called as a Witness is hearsay if the object of such evidence is to establish the truth of what is contained in the Statement. Quoting from the dictum of that case, he rightly explained that the Rule is grounded upon common sense as the focus of it is to prevent a person from being accused or found guilty of an offence which he did not commit as it is a self-evident fact that malevolent people could manufacture such evidence as they would to falsely accuse persons of offences which they did not commit. Accordingly, he further reasoned that by this Rule, Courts are enjoined and indeed under a duty not to accept and/or convict an Accused person upon the testimony of witnesses who did not see, hear or perceive by any other sense or in any other manner, the facts given in their testimonies at a criminal trial of an Accused person or even in a civil case. Emphasizing also on the mandatory nature of the Rule which all Courts must observe, he cited and relied on Ijioffor vs. State (2001) 4 SC (Pt.II) pages 7-8 and Abadom vs. State (1997) 1 NWLR (Pt.479) p.1.
Now to buttress the submissions of the learned Senior Advocate and his Colleague for the Appellant on the inadmissibility of the hearsay evidence of PW1 and PW2 as well as Exhibits “F” and “G” which were documentary hearsay evidence of the Informant and the Chairman of the Vigilante Group; the learned Trial Judge again held at pages 73/12 lines 17-38 to 74/13 lines 1-17 of the Records/Judgment thus:-
“From the above authorities, the law is made clear that a Trial Court cannot properly admit evidence that qualifies as hearsay evidence and use or rely on same to ground a conviction for an offence. This is because that type of evidence is by the operation of Section 38 of the Evidence Act, 2011 rendered inadmissible and the Court cannot even without objection to the admissibility of such piece of evidence make it admissible for the purposes of proof in the case before it.
In the present case, aside giving evidence of the investigations conducted by them and the exhibits recovered in the course of the investigations, PW1 and PW2 also gave evidence of how the crime occurred. Both PW1 and PW2 were not present at the scene of crime and did not witness the commission of it. Their evidence about what took place at the scene was what was relayed to them by the Informant as well as the Chairman of the Vigilante. Both the Informant and the Chairman of the Vigilante did not give evidence in this case. Despite their best efforts, the Prosecution was not able to produce them to testify in this case. The evidence of PW1 and PW2 as to what they did as investigators or the items they recovered as Exhibits in the course of investigations do not constitute evidence of a hearsay nature. However, their narration in terms of what took place at the scene of crime amounts to hearsay since the evidence given by them was not direct; that is that the evidence was not from their personal knowledge or personal observations at the scene. The accounts given by PW1 and PW2 about how the robbery took place and what occurred at time of the robbery are hereby discountenanced and will not be relied upon in the determination of this case.”
The learned Trial Judge continued in his findings:
“Having held that parts of the evidence given by the Prosecution’s Witnesses fall within the definite Rule of hearsay evidence, the next point that now arises is whether after discounting parts of the Prosecution’s Witnesses testimony for being hearsay, the evidence left before the Court has proved the charge against the Accused beyond reasonable doubt. What then is the evidence left before the Court? It is Exhibits “A”, “B”, “C”, “D”, “E”, “F” and “G”. Exhibit “A” is the gun or pistol, Exhibit “B” is the live cartridge, Exhibit “C” is the Electric Cable Whip, Exhibit “D” is the Army Camouflage shirt, Exhibit “E” is the Confessional Statement of the Accused person, Exhibit “F” is the Statement of the Informant Ierkwagh Bugh while Exhibit “G” is the Statement of the Chairman of the Vigilante Peter Nember. The Prosecution in their attempt to prove their case however relied only on Exhibits “A”-“E”. They relied heavily on Exhibit “E” the Confessional Statement.”
At that juncture, the learned Trial Judge reproduced the contents of Exhibit “E” the so called Confessional Statement of the Accused/Appellant at pages 74/13 and 75/14 of the Records/Judgment and posed the question as to whether the facts in Exhibit “E” established the offence of Armed Robbery against the Accused and having cited Section 28 of the Evidence Act, 2011 which defines a confession and the provision of Section 29(1) thereof which is to the effect that: “In any proceeding a confession made by a Defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this section;”
he stated the obvious while relying on the authorities of Solola vs. The State (2005) 11 NWLR (Pt.937) p.460 and Nwaeze vs. The State (1996) 2 NWLR (Pt.428) p.1; that the Courts have held in a number of cases that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction without any corroborative evidence so long as the Court is satisfied of its truth. He agreed that in so doing, there is however a duty on the Court to test the truth of a confession by examining it in the light of the other credible evidence before the Court.
The learned Trial Judge also reflected on the fact that the Accused person retracted Exhibit “E” (Confessional Statement) in the course of trial and held on the authority of Akpan vs. The State (2001) 15 NWLR (Pt.737) p.745; that the Courts have recognized that it has now become a matter of routine for Accused persons to retract their confessional statements in the course of trial but that the fact that a confession has been retracted does not mean that it cannot be relied and acted upon by the Court. He also re-stated the trite position of law as was decided in Alarape vs. The State (2001) 5 NWLR (Pt.705) p.79; Jona Dawa & Anor. vs. The State (1980) SC p.236 and the authorities cited by the respective learned Counsel herein on the need to subject the Confessional Statement to the six litmus tests of the truth of the statement in the light of other credible evidence as enumerated at page 76/15 lines 10-17 of the Records/Judgment.
In answer to the question as to whether Exhibit “E” established the offence of Armed Robbery against the Accused person, he reproduced the excerpts of the purported Confessional Statement on how the Appellant and his cohorts arrived the Informant/Victim’s shop at about 01:00hrs on 12th June, 2013 and Tersoo Sunday went and knocked on the door of the shop’s owner and asked him to wake up and sell cigarettes to him and the shop’s owner asked him who he was and he Tersoo replied to him that he was Tersoo. The shop’s owner told him that it was too late for him to wake up and sell to him but Tersoo begged the shop’s owner that he dearly wanted to smoke. Then the shop’s owner opened the door and he (the Appellant) pointed the pistol that was given to him by Tersoo Sunday at the man and Appellant entered inside the shop with Pastor Wuese Jov and ordered the man to give them money.
On the basis of the above statement, he held at page 77/16 lines 14-30 of the Records/Judgment that if a man voluntarily stated as contained in Exhibit “E”:
“Then this to all intents and purposes amounts to an admission that he committed the crime. And having satisfied the conditions for its admissibility and the weight to be attached to it, Exhibit “E” is the best and strongest evidence possible, short of an eye witness account which was not presented in this case. When an Accused person freely admits to Police Officers in the course of investigation that he not only committed the crime but that he actively participated in it, what else will anyone require in further proof of the said crime? Exhibit “E” to my mind shows with certainty, which is an essential element of proof in criminal liability that the Accused person committed the offence for which he now stands charged. Learned Counsel for the Accused person stressed the issue of corroboration. However, it is not in all cases that confession must be corroborated.”
After citing the decision of this Court in the case of Demo Oseni vs. The State (2012) LPELR-7833 and Olabode vs. State (2009) 11 NWLR (Pt.1152) p.254 as well as Ogoala vs. The State(1991) 2 NWLR (Pt.175) p.509; on the trite position of the law that even without corroboration a confession is sufficient to support a conviction so long as the Court is satisfied of its truth and that a confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the Court can convict; the learned Trial Judge concluded at page 78/17 lines 10-27 of the Records/Judgment that:
“Corroboration is not a sine qua non in this case. Having said that however, there are other pieces of evidence which make it probable that the Accused person’s confession is true. Exhibits “A”, “B”, “C” and “D” are the locally made pistol, the cable whip, the army camouflage shirt and the live cartridge. The Accused person in admitting the commission of the crime stated that he was in possession of the pistol and pointed it at the Informant in the course of the robbery and that he used the whip to beat the Informant. When he was arrested, the accused was wearing the camouflage shirt. These pieces of evidence, to my mind, corroborate the confessional statement and irresistibly point to the guilt of the Accused person. The essential ingredients of the offence of Armed Robbery as stated in Counts 2 and 3 have been established in that there was a robbery within the definition of the offence and the Accused took part in it. After a careful examination of the evidence before me, I am satisfied that the Prosecution has established the offence of Armed Robbery under Section 1(2)(a) of the Robbery and Firearms Act against the Accused person beyond doubt and I find him guilty.”
With the greatest respect to the learned Trial Judge and notwithstanding the uncommon industry displayed in his Judgment, upon a careful consideration of his findings and conclusions as reproduced above as well as the submissions of the respective learned Counsel vis-a-vis the totality of the evidence adduced by the Witnesses for the Prosecution, I am in total agreement with the learned Senior Counsel and his colleague for the Appellant that the learned Trial Judge was wrong to have convicted the Appellant on his so called Confessional Statement which was not corroborated as it ought to be, by independent witness/evidence. In the first place, the learned Trial Judge as was rightly submitted by the learned Senior Counsel and his Colleague for the Appellant, was wrong to have held that Exhibits “A”-“D” which emanated from PW1 and PW2 to whom these Exhibits were handed over by the Informant/Victim and the Chairman of the Vigilante Group who were not called and no reasonable explanations were offered for not calling them, to corroborate Exhibit “E” the so called Confessional Statement of the Appellant. The totality of the evidence of PW1 and PW2 were hearsay evidence as they did not carry out any investigations apart from purportedly collecting the said Exhibits “A”-“D”. Having rightly discountenanced their evidence in the first place as hearsay, Exhibits “A”-“D” which they tendered were not products of any investigation but products of hearsay evidence gathered from the absent complainants (the Informant/Victim and Chairman of the Vigilante Group) and accordingly I agree with the learned Counsel to the Appellant that those Exhibits could not have corroborated Exhibit “E”. The learned Trial Judge cannot therefore approbate and reprobate at the same time nor can he pick and choose which part of the hearsay evidence of the PW1 and PW2 to believe or disbelieve.
Having held rightly at pages 73/12 and 74/13 of the Records/Judgment as quoted above that the PW1 and PW2’s narration of what took place amounted to hearsay evidence since the evidence given by them was not direct; in that it was not from their personal knowledge and observation at the scene of crime but that the accounts given by them of how the robbery took place were from the Informant/Victim and the Chairman of the Vigilante Group who were not called as Witnesses and accordingly would be discountenanced and not relied upon in the determination of the case, the learned Trial Judge with the greatest respect ought to have rejected in totality the evidence of the said Prosecution’s Witnesses including Exhibit “E” and even Exhibits “A”-“D” which could have been foisted on the Appellant by the so called Complainants or even the Police who did not find it necessary to call the eye Witnesses to come to Court and prove their allegations against the Appellant; rather than turn summersault to hold that the evidence of PW1 and PW2 as to what they did as investigators or the items they recovered as Exhibits in the course of investigation do not constitute evidence of hearsay nature.
From my perusal of the Records and evidence of the PW1 and PW2, it is clear that they carried out no investigations of the alleged robbery by the Appellant and his cohorts rather, as was testified to by the Witnesses, they admitted that they were not at the scene of crime and did not witness the commission of crime and recovery of Exhibits “A”-“D” but that Exhibits “A”-“D” were allegedly recovered from the Accused person at the scene of crime by the Informant/Victim of the crime and the Chairman of the Vigilante Group and Members who were not called as witnesses and did not testify but only brought the said Exhibits first to the Vandeikya Police Headquarters and subsequently to State C.I.D. Makurdi.
Furthermore, the Witnesses (PW1 and PW2) as rightly found by the Court and submitted by the learned Counsel to the Appellant confirmed that their evidence about what took place at the scene was relayed to them by the Informant/Victim and the Chairman of the Vigilante Group.
It would be recalled that the Appellant in his evidence on Oath denied making the Confessional Statement on the 12th of June, 2013 because he was very weak after being battered and it was not until the 13th and 14th of June, 2013 that he made his statement first to the PW2 at Vandeikya and subsequently at State’s C.I.D. Makurdi to the PW1 under torture until the O/C SARS came and stopped his colleagues from doing so. For purposes of emphasis, it is necessary to reproduce the evidence-in-chief of the Accused/Appellant as contained in pages 32/16 lines 17-33 to 33/17 lines 1-3 of the Records/Judgment thus:-
“At the Station, I could not give my Statement since I was weak so I was detained. The next day, 13/6/2013, my Statement was taken on the 14/6/2014 (2013?), I was brought down to the Police Headquarters, Makurdi. I was taken to the Office of O/C SARS. As soon as I entered the Office, he said I should be taken out since I was smelling. From there I was taken to the Office of a Policeman who turned out to be the IPO. His name is Joshua. He started beating me and called another Officer to take my Statement. As my Statement was being taken, the IPO continued beating me. The O/C SARS later came and asked the IPO to stop beating me. After that I was taken to the German Cell. It is called that because it is a Cell where hardened criminals are kept. I was later brought out and taken to the Police Clinic where I was treated for the wounds I sustained. On the 19/6/2013, I was arraigned before the Magistrate Court 5, Makurdi. I was remanded in prison custody by the Magistrate. As for the Exhibits tendered in this Court, they were not found on me. I did not have those things when I was arrested. I want to tell this Court that I do not know anything about the offences with which I have been charged… All I know is that I went to a funeral and on my way back I was arrested.”
From the underlined portions of the Appellant’s evidence on Oath and even the evidence of the PW1, the Appellant made a statement on the 13th of June, 2013 or 14th of June, 2013 at State’s CID, Makurdi which statements were not tendered by the Prosecution and no satisfactory explanation was offered by the Prosecution or the PW1 and PW2 for not tendering those Statements neither was the Appellant contradicted on the facts of his being tortured before making the statement on the 14th of June, 2013. I agree therefore with the submission of the learned Senior Counsel and his Colleague for the Appellant that the Appellant had offered sufficient explanations as to why he retracted the so called Confessional Statement and even if Exhibit “E” was the Statement he made on that day, that Statement could not have been voluntary same having been obtained under duress and torture.
I am also of the considered view that the Prosecution deliberately withheld the Statements made at the Vandeikya Police Headquarters and State’s CID, Makurdi knowing fully well that these would be detrimental to their case or that they would corroborate the Appellant’s Defence that he was innocent of the alleged offences with which he was charged and tried. It is trite that there is a presumption of law that evidence which could be and is not produced would if produced, be detrimental or unfavourable to the person who withholds it (in this case the Prosecution). See Section 167(d) of the Evidence Act, 2011 which provides that:
“167. The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that-
(d) evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
See further the recent Supreme Court case of Bakari vs. Ogundipe & Ors. (2020) LPELR-49571 (SC) per Peter-Odili, JSC at pages 63-65, paras. F-A; where Section 149(d) of the Evidence Act, 2004 which is replicated in the above cited Section 167(d) of the Evidence Act, 2011; was interpreted thus:
“…I refer to the following cases relevant to the case in hand. See The People of Lagos State vs. Umaru (2014) LPELR-22466 (SC), this Court held thus: “I shall now consider Section 149(d) of the Evidence Act, that is, on withholding of evidence. I have already set out the provision of this paragraph earlier. What paragraph (d) of Section 149 of the Evidence Act stipulates is that where a party claims to have evidence that goes to show the existence of a document in proof of his case, the document should be tendered. Where such evidence could be produced but it is not produced, it is presumed to be against the interest of the party withholding it.” Also, in George vs. The State (2009) 1 NWLR (Pt.1122) at 345 where the Court held thus: “By virtue of Section 149(d) of the Evidence Act, where there is any evidence which is available but not produced in Court, it is presumed in law that the evidence, if produced, would be against the party that has failed to produced it.” Finally to Aremu vs. Adetoro (2007) 16 NWLR (Pt.1060) at 261 where this Court held as follows: “A Court of law can invoke Section 149(d) of the Evidence Act that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
The above cited Section of the Evidence Act and dictum of Peter-Odili, JSC; apply mutatis mutandis to the withholding of the evidence of the Informant/Victim and the Chairman of the Vigilante Group (the complainants in the case) who ought to be called but for inexplicable reasons were not called.
From the above cited authority, the learned Director/Counsel to the Respondent was therefore wrong to have submitted at page 9 of the Respondent’s Brief that the refusal of the Prosecution to tender the second Statement of the Accused/Appellant was not fatal to the Prosecution’s case in that if the Defence considered the Statement so vital there was nothing wrong for him to bring it up or request the Statement to be brought for the purpose of discrediting the Prosecution’s Witnesses.
The learned Trial Judge in the course of his Judgment, had alluded to the fact that the Courts have recognized that it has now become a matter of routine for Accused persons to retract their confessional statements in the course of trial and that the fact that a confession has been retracted does not mean that it cannot be acted and relied upon by the Court as was decided in Akpan vs. The State (supra) hence the need to subject the Confessional Statement to the six tests as laid down in Alarape vs. The State (supra) and Jona Dawa & Anor. vs. The State (supra) was unnecessary. The observation in the case of Akpan vs. The State (2001) 15 NWLR (Pt.737) p.745; notwithstanding, the Courts have also in recent times noted with utmost chagrin and disgust the degree of impunity of Investigating Police Officers whose knack for torturing and subjecting Accused persons who come before them, to inhuman and degrading treatment before extracting Confessional Statements from them as in this case. This unwholesome development necessitated no less a Jurist of the Apex Court in the recent case of Owhoruke vs. C.O.P. (2015) LPELR-24820 (SC) at pages 22-23, paras. G-C per Rhodes-Vivour, JSC, to admonish trial Courts quite appropriately thus:
“Confessional Statements are most times beaten out of suspects, and the Courts usually admit such Statements as Counsel and the Accused are unable to prove that the Statements are not made voluntarily. A fair trial presupposes that Police investigation of an offence for which the Accused person stands trial was transparent. In this regard, it is time for safeguards to be put in place to guarantee transparency.
It is seriously recommended that Confessional Statements should only be taken from suspects if, and only if his Counsel is present, or in the presence of a Legal Practitioner, where this is not done such a Confessional Statement should be rejected by the Court.”
The Federal Legislature in their endorsement of the above recommendation of the Emeritus Law Lord of the Apex Court has enacted the Administration of Criminal Justice Act, 2015 which has been domesticated in some States of the Federation as their respective Administration of Criminal Justice Laws. For the avoidance of doubt, Section 17 of the Federal Act stipulates in mandatory terms that:
“17(1) Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement.
(2) Such statement may be taken in the presence of a Legal Practitioner of his choice, or where he has no Legal Practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an Official of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.
(3) Where a suspect does not understand or speak or write in the English language, an Interpreter shall record and read over the statement to the suspect to his understanding and the suspect shall then endorse the statement as having been made by him, and the interpreter shall attest to the making of the statement.
(4) The Interpreter shall endorse his name, address, occupation, designation or other particulars on the statement.
(5) The suspect referred to in subsection (1) of this section shall also endorse the statement with his full particulars.”
Although, the above provisions are not applicable to the facts of this case because the offence(s) with which the Accused/Appellant was charged were allegedly committed in 2013 and the trial commenced in 2014 and ended in 2015, however, since even the Court and the respective learned Counsel for the parties are ad idem on the six litmus tests that a Confessional Statement should be subjected to before it can found the conviction of the Accused person/Appellant, Counsel on both sides have in my candid opinion rightly stated the correct position of the law.
In Nsofor vs. The State (2004) 18 N.W.L.R (Pt.905) 292, per Oguntade, JSC at page 310 -311 paras. F-G; particularly in paras. C-E at page 311 quoted with approval the dictum of Obaseki, JSC in Dawa vs. The State (1980) 8-11 S.C. 236 at 267 to 268 (the above authorities as well as Okanlawon vs. The State (2015) 17 NWLR (Pt.1489) 445 at 180 paras. A-D; Kareem vs. FRN (No.1) (2002) 8 NWLR (Pt.770) 636 at 656 paras. C-D and Osetola vs. State (2012) 17 NWLR (Pt.1329) 251 at 278 paras. E-H; which have been cited by the respective learned Counsel herein) that:-
“Since Kanu vs. King (supra), authorities abound in this country where the highest Court, the Supreme Court decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 test enumerated above. Among the long line of authorities may be mentioned: 1, The Queen Vs. Obiasa (1962) 2 SCNLR 402; (1962) 1 All NL.R 651. 2; Edet Obosi vs. The State (1965) N.M.L.R 119 3; Paul Onochie & 7 Ors vs. The Republic (1966) 1 SCNL.R 204; (1966) NML.R 307 4. Obue vs. The State (1976) 2 SC 141 5. Jimoh Yesufu Vs. The State (1976) 6 SC 167 6. Ebhomien & Ors Vs. The Queen (1963) 2 S.C.N.L.R. 332; (1963) 1 All N.L.R 365.”
In the said case of Dawa vs. The State above referred which was however a case of murder; Obaseki J.S.C at pages 310-311 paras. F-B had this to say on the weight to be attached to a retracted confessional statement as in this case thus:
“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and/or followed were laid down in R. vs. Sykes (1913) 8 CAR Appeal Report 233 and approved by the West African Court of Appeal in Kanu vs. The King (1952/55) 14 W.A.C.A 30 and I regard them as sound and golden. The questions a Judge must ask himself are: 1. Is there anything outside the confession to show that it is true? 2. Is it corroborated? 3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the murder? 5. Is his confession possible? 6. Is it consistent with other facts which have been ascertained and have been proved? If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the conviction cannot properly be founded on it on Appeal, it will be hard to sustain.”
Now, going by the evidence adduced in this case and the Judgment of the Lower Court, can it be said that the Court below applied the tests as enumerated above to the Confessional Statement before finding the Appellant guilty and convicting him notwithstanding its retraction by the Appellant? Whereas learned Counsel for the Appellant has submitted that the conditions were not met, the learned Assistant Director on the other hand, argued per contra that the conditions were met by the Court below.
From the excerpts of the Judgment of the Lower Court as earlier reproduced, the Lower Court relied still on Exhibit “E” to hold that there was something outside the Confession that established its truth in spite of the fact that the Appellant retracted the Statement and gave un-contradicted evidence that the contents of Exhibit “E” were not made by him and that the purported Statement assuming it was so made was extracted from him under torture. Indeed, as was rightly submitted by the learned Senior Advocate and his Colleague, the so called Confessional Statement was inadmissible since the PW1 and PW2 did not bother to take the Accused/Appellant along with the so called Confessional Statement before a Superior Police Officer for authentication or endorsement as to its voluntariness, non-compulsion or without external influence whatsoever or that he was in a proper frame of mind. As was rightly held by the Supreme Court in the case of Smart vs. State (2016) 9 NWLR (Pt.1518) 447 at 484 paras. C-F; ably cited by the learned Counsel to the Appellant on the need to subject the Statement to endorsement by a Superior Police Officer: “The recording of the Statement therefore must satisfy the condition that it should be taken before a superior Police Officer for purpose of endorsement by him. The absence of compliance will render the Statement as inadmissible.”
Again, the Victim/Informant who brought the Exhibits “A”-“D” were not called to corroborate the Confessional Statement such that the Statement therein would have been proved as being in fact true as far as they can be tested. In view of the fact that the alleged complainants who were the purported Informant/Victim and the Chairman of the Vigilante Group were not called to testify so that their evidence could have been tested by cross-examination, the Prosecution did not establish whether the Accused had the opportunity to commit the offence on the facts that the evidence of the PW1 and PW2 who were called were hearsay and the Accused/Appellant was tortured before exacting the so called Confessional Statement did not prove that the confession was possible.
As for the sixth test, the Confession was not consistent with other facts which had been ascertained and which had been proved as there was no independent evidence particularly from the complainants who allegedly arrested the Appellant at the scene of crime and brought him to the Police Headquarters, Vandeikya and subsequently to the State’s CID, Makurdi, Benue State. More so, the learned Trial Judge failed to conduct a trial-within-trial in order to fulfill the dictates of the six tests laid down in Syke’s case and followed by Nigerian authorities as earlier set out when the Appellant retracted Exhibit “E”.
Accordingly, the holding of the learned Trial Judge that Exhibit “E” established the offence of Armed Robbery against the Appellant and that the Appellant voluntarily stated:
(a) That he participated in the robbery of a shop owner (informant) on a specific date i.e. 12/6/2013;
(b) That he knew the other suspects who are at large before the date of the robbery and that they had even gone on another robbery in April, 2013;
(c) That during the robbery he had the gun and pointed it at the Informant while demanding for money;
(d) That in the course of the robbery, the Informant knocked the gun out of his hand and grabbed him and he (accused) used the whip, he had to whip and beat the Informant;
(e) That the Informant shouted for help and the Villagers rushed into the shop and caught him;
which information were extracted from the so called Confessional Statement amounted to admission that he committed the crime, was most erroneous. Accordingly, I agree completely with the submission of the learned Counsel to the Appellant particularly on the holding of the learned Trial Judge at page 78 lines 10-20 of the Records as earlier quoted, that Exhibits “A”, “B”, “C”, and “D” corroborated Exhibit “E” (the Confessional Statement); that the learned Trial Judge merely attempted to apply the six tests but that it is obvious that His Lordship did not properly apply these six tests to Exhibit “E” and that by virtue of Section 34(2) of the Evidence Act, 2011 and the authority of Kasa vs. The State (supra) at 285; the conviction of the Appellant cannot stand and the Appellant ought to be discharged and acquitted.
I also agree with the submissions of the learned Counsel to the Appellant and as I had held earlier that apart from the alleged Exhibit “E”, nothing outside the extra-judicial Statement was used to justify the conviction of the Appellant or to support and show that the confession was true, because Exhibit “A”, “B”, “C” and “D” apart from being inadmissible, are not evidence outside the confession (Exhibit “E”) capable of corroborating the facts contained in the alleged Confessional Statement.
On the whole, I agree completely on all the authorities cited by the learned Senior Counsel and his Colleague that the Prosecution did not prove the guilt of the Accused person beyond reasonable doubt to warrant the conviction and sentencing of the Accused/Appellant to death for Armed Robbery.
Turning to the first count of Conspiracy to commit Armed Robbery, the Robbery and Firearms (Special Provisions) Act does not define the offence but text writers and judicial authorities have agreed that Conspiracy as an offence, is the manifestation of consensual intent between two or more persons to effect an unlawful purpose or some otherwise legal act with an illegal means. The offence is consummated once the parties are ad idem on the manifestation of such intent even if on the long run the conspirators reneged in the pursuance of their agreement. Thus in Onochie vs The Republic (1966) N.M.L.R 307; The State vs Haruna (1972) N.M.L.R at 174 and R. vs. Aspinall (1876) 2 Q.B.D 48 at 58 – 59, it was variously held that direct evidence is not indispensable and it is open to the trial Court to infer complacency from the fact of doing things towards a common end. Moreover, where prima facie grounds have been shown for believing in the existence of a conspiracy, things done by one conspirator in furtherance of the common intention are evidence against the other Co-conspirators. See the cases of Nwankwoala vs The State(2006) 14 N.W.L.R (Pt.1000) 663 at 683 – 684 paras. C – E per Tabai J.S.C; Waziri vs. The State (1997) 3 N.W.L.R (pt.496) 689 at 723 to 724 paras. H – B per Oguntade, J.C.A (as he then was).
In order therefore to convict the Appellant on the Count of Conspiracy to commit Armed Robbery, the Prosecution must have proved that the Appellant entered into an agreement with his Co-Accused persons to commit or cause to commit Armed Robbery in the house or premises of the complainant Ierkwagh Bugh. What then is the evidence from which conspiracy could be inferred? As the learned Counsel for the Respondent has ably argued, there was no direct eye witness evidence at the trial as the eye Witnesses and Victims of the crime were not available. Thus, the Court as can be gleaned from pages 78/17 lines 28-38 to 79/18 lines 1-13 relied still on Exhibit “E” (the Confessional Statement) of the Accused/Appellant which did not pass the six litmus tests of credibility to convict the said Appellant.
It would be recalled that in the said Judgment, the learned Trial Judge had held the view that from Exhibit “E” there is ample evidence of common intention between, Tersoo Sunday Akperaga, Wuese Jov and the Accused person. According to him, there was ample evidence that they agreed to rob the Informant since they rode to the scene of the crime together on a motorcycle and that all three participated in the crime. He also reasoned that they had whips which they all agreed to carry and the Accused used his to beat and whip the Informant. He further held that the meeting of the minds was present and emphasized that in the instant case, by the part played by the Accused person there was conspiracy. In his view, it is not unusual to have no direct evidence of conspiracy, thus it is open to the Court to infer conspiracy from the acts of doing things towards a common goal or a common end. It was his further view that the offence of conspiracy is normally planned or hatched in secret thus it is difficult to have direct evidence to prove it. In some instances, the conspirators need not know themselves and need not have agreed to commit the offence at the same time and Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or actions of the parties concerned, he further posited. In so holding, he has relied on the case of Oduneye vs. The State (2001) 13 NWLR p.88 and Obiakor vs. The State (2002) 10 NWLR (Pt.776) p.612; to conclude that the Accused person together with Tersoo Sunday Akperaga and Wuese Jov conspired to commit the offence of Armed Robbery thereby finding the Accused/Appellant guilty of conspiracy under Section 6(b) of the Robbery and Firearms Act.
With the greatest respect again to the learned Trial Judge, although the principles of law enunciated and the authorities cited are sound, he was pertinently wrong to have convicted the Appellant solely on his Confessional Statement which did not fulfill the tests as laid down in the authorities earlier cited on the admissibility and reliance on Confessional Statement to convict an Accused person. The learned Senior Counsel and his Colleague for the Appellant have rightly submitted and I agree completely with them on the authority of State vs. Ajayi (2016) 14 NWLR (Pt.1532) 196 at 229 paras. C-D; that apart from Exhibit “E” being inadmissible, an Accused person cannot be convicted of conspiracy to an offence on the strength of his own Confessional Statement unless there is independent evidence that other person(s) conspired with him.
In the instant case, as rightly submitted, the Statements of PW1 and PW2 and those of the purported complainants who were not called were mere hearsay evidence and cannot support the assertion that the Appellant here conspired with others. Accordingly, I adopt all I have said on the Count of Armed Robbery hook, line and sinker and I hold that contrary to the opinion of the learned Trial Judge, the Accused/Appellant ought not be convicted upon his so called Confessional Statement which was retracted and did not pass the necessary tests for its admissibility and reliance to convict the Accused/Appellant. I therefore reiterate that the Prosecution did not prove the offence of Conspiracy against the Appellant and he ought not to be found guilty, convicted and sentenced for that offence under Section 6(b) of the Robbery and Firearms (Special Provisions) Act.
Turning to the Offence of Possession of Firearms the essential ingredients which have been rightly enumerated at pages 79/18 of the Records/Judgment to wit:
(a) That the Accused was found in possession of firearms;
(b) That the firearms were within the meaning of the Act;
(c) That the Accused person has no licence to possess the firearms;
there is no doubt that the Act defines firearms to include any cannon, gun, rifle, carbine, machine gun, cap gun, flint lock gun, revolver, pistol, explosive or ammunition or other firearm whether whole or in detached pieces. There is also no doubt that the offence is a strict liability offence and once a person has knowingly taken possession of an article and it remains within his control, continues in possession he has committed the offence and ordinarily the authority of State vs. Oladotun (2011) FWLR (Pt.586) p.399 per Mukhtar, JSC; was aptly cited by the learned Trial Judge. Unfortunately, in spite of the analysis on the statement of law as can be found at pages 79 to 82 culminating in the eventual conclusion that the Accused/Appellant was guilty of the offence; the conviction cannot stand in the face of our earlier position that Exhibit “E” (the Confessional Statement) that was heavily relied upon and indeed Exhibits “A” and “B” were inadmissible evidence as the purported complainants who brought them to PW1 and PW2 whose evidence have earlier been declared hearsay; were not called to identify the Exhibits they purportedly brought to the Police Station in Vandeikya and State’s CID, Makurdi, Benue State.
Notwithstanding, that the learned Trial Judge also stated the correct position of the law on alibi as held by the Legendary Oputa, JSC in the case of Ikemson & Ors. vs. The State (1989) NWLR (Pt.110) p.455; I still reiterate that the Prosecution did not prove the offences allegedly committed by the Accused/Appellant beyond reasonable doubt in that no reasonable excuse was offered throughout the trial why the Informant/Victim and the Chairman of the Vigilante Group who were eye Witnesses to the purported commission of the crime and who handed over Exhibits “A” and “B” to PW1 and PW2 could not come to Court to testify. I am of the considered view that the Prosecution had something to hide in not calling those Witnesses. The Court below had no business convicting the Accused/Appellant where the Prosecution could not prove their case beyond reasonable doubt. See Onuchukwu vs. State (1998) 4 NWLR (Pt.547) 576 at 592 paras. D-F; ably cited by the learned Senior Counsel and his Colleague for the Appellant.
In the final analysis, the first Issue is resolved in favour of the Appellant and against Respondent.
RESOLUTION OF ISSUE NUMBER TWO (2):
“2. WHETHER OR NOT THE LEARNED TRIAL JUDGE PROPERLY EVALUATED THE EVIDENCE BEFORE THE TRIAL LOWER COURT BEFORE CONVICTING AND SENTENCING APPELLANT TO DEATH? (DISTILLED FROM GROUNDS 1 AND 2 OF THE NOTICE OF APPEAL).”
In the resolution of this second Issue, it is necessary to restate the settled position of the law as had been rightly submitted by the learned Senior Advocate and his Colleague for the Appellant as well as the learned Director for the Respondent that the evaluation of evidence and ascription of probative value and credibility to the testimonies of Witnesses are the primary function and within the exclusive preserve of a Trial Court which had the peculiar advantage and opportunity to hear and watch the demeanour of the Witnesses during trial. Accordingly, it is trite that in criminal cases, an Appeal Court will not allow any Appeal merely because the verdict reached by the trial Court is challenged on the ground of its being contrary to the weight of evidence. See Aladesuru & Ors vs R. (1955) A.C. 49. The Appeal Court can only allow an Appeal or intervene if it can be shown by the Appellant that the Judgment or the verdict of the Trial Court is unreasonable, unwarranted and unsupportable having regard to the totality of the evidence. See Adi vs R. (1955) 15 WACA.
It has also been held that where a Judge has properly directed himself, the Court of Appeal will not reverse the verdict after such a direction, unless there was no evidence to support it. See Wattab vs. I.G.P. (1956) W.N.L.R. 24; R vs. Aina (1953) 14 W.A.C.A. 310; R. vs. Olagunju (1961) 1 All NLR 21 and Gwawoh vs. COP (1974) 1 All NLR (Pt.2) 396. However, in the evaluation process, the Trial Judge must give consideration to all the evidence adduced in the case as a whole, as it is not enough for the Court to simply say “I believe or I do not believe this evidence”. In Oladehin vs Continental Textile Mills Ltd. (1978) 2 S.C 23, the Supreme Court held that the above rule of the evaluation of evidence applies both to criminal as well as civil cases. See also Nwoke & Ors. vs Okere & Ors (1994) 5 N.W.L.R 159 at 175; where the apex Court again laid it down that in the appraisal of the evidence of the parties, a Trial Judge must give reasons for believing or disbelieving a witness and that where the Trial Court appropriately evaluates the evidence and appraises the facts, it is not the business of an Appellate Court to substitute its views for those of the trial Court. However, where the trial Court fails in its duty to evaluate the evidence or properly appraise the facts before it based on the evidence, the Appellate Court is in as good a position to review the evidence and proceed to draw the necessary inferences therefrom. See Mogaji Vs Odofin (1978) 4 S.C 91 at 93-94; Olubode Vs Salami (1985) 2 N.W.L.R 282; Onwuchuruba Vs Onwuchuruba (1993) 5 N.W.L.R 185 at 199 – 200.
In the case of Abdulahi vs The State (2008) 17 N.W.L.R (pt. 1115) 203 at 219 paras. A-C; which I relied upon in Adewale Adedara vs. State (2009) LPELR-8194 (CA); that has been ably cited by the learned Counsel to the Appellant herein, Mohammed, J.S.C; in his concurring Judgment of the Supreme Court succinctly stated the position of the law thus:- “The law is trite that where a Trial Court has drawn a conclusion from accepted or proved facts, and which facts do not prove the Prosecution’s case, an Appellate Court has the duty to interfere with such findings because they are perverse.” See Okolo vs. Uzoka (1978) 4 S.C 77; Fatoyinbo Vs Williams (1956) S.C.N.L.R 274; Adio vs. The State (1986) 2 N.W.L.R (pt. 24) 581; and Dare Kada Vs The State (1991) 8 N.W.L.R (pt. 208) 134 at 146. The above analyses and the authorities cited set the pace for a consideration of the submissions of the respective learned Counsel on the resolution of the issue in question. <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
The learned Counsel for the Appellant has submitted that the Lower Court did not properly evaluate the evidence adduced by the Appellant in his defence in that the Trial Court did not make any findings of facts on the claim of the Appellant that he did not give or sign a Statement on 12th June, 2013 (Exhibit “E”) because he was weak as a result of the torture meted on him. He further contended that the Trial Court’s use of Exhibits “A”, “B”, “C”, “D”, “F” and “G”, which are inadmissible evidence to arrive at its decision; the Trial Court’s use of the inadmissible and retracted confession of the Appellant, which was not corroborated, tested in the light of other independent evidence before the Court and its failure to resolve the contradictions in favour of the Appellant as earlier submitted, resulted in the failure of the Trial Court to perform its sacred duty of evaluation of evidence before it. In his view, the Trial Court ought to have evaluated the evidence and state reasons why he believed them or not clearly in his Judgment and that the failure to do so amounted to denial of fair hearing which occasioned a miscarriage of justice to the Appellant. See Nwosu vs. State (supra) at 441 para. H; cited by the learned Senior Counsel for the Appellant.
On the strength of the above submissions, he had urged us to consider and re-evaluate the evidence of the Appellant, allow the Appeal, set aside the Judgment of the Lower Court and in its place order the discharge and acquittal of the Accused/Appellant.
On his part, the learned Director/Counsel to the Respondent had argued per contra that the evaluation of the evidence and ascription of credibility to the testimonies of the Witnesses are matters within the exclusive province of the Trial Judge who had the unique opportunity to see and hear the Witnesses, watch their performances and observe their demeanour and that he alone can actually accredit or discredit a Witness. If there is evidence before the Trial Court, which in this case he contended that there is from which the Trial Court reasonably arrived at the conclusion at pages 82 lines 30-33 of the Record of proceedings, this Court is urged to uphold the decision of the Trial Court, since there is no error in the Trial which would amount to a miscarriage of justice. Efe vs. The State (1976) 1 SC 75; Asanya vs. The State (1991) 3 NWLR (Pt.180) 422, were cited by the learned Counsel to the Respondent to further submit that proof beyond reasonable doubt does not mean proof beyond all shadows of doubt.
Finally, the learned Counsel to the Respondent submitted that the Prosecution having established the guilt of the Appellant by credible evidence, it has met the standard of proof required by Section 135(1) of the Evidence Act, 2011 and the Trial Court was right in convicting the Appellant. He has concluded and urged this Court to dismiss the Appeal and uphold the Judgment of the Trial Court delivered on the 22nd day of May, 2015.
Upon consideration of the above submissions of learned Counsel who are ad idem on the need for Appellate Courts like ours to be wary in re-evaluating the evidence of Witnesses and interfering with the findings of facts and conclusion of the Trial Judge who had the opportunity of hearing and watching the demeanour of Witnesses who testified before him, I am in total agreement with their Statement of this trite position of the law. The respective learned Counsel to the parties herein, have also correctly stated the position of the law on the circumstances where and when the Appellate Court can re-evaluate the evidence of Witnesses and arrive at proper findings/conclusion having drawn the appropriate inferences from proved facts.
In the instant case, this Court in its Appellate jurisdiction, can step into the shoes of the learned Trial Judge and do the needful where His Lordship in the Court below abdicated his bounding duty or responsibility to evaluate the evidence and ascribe proper probative value to the testimonies of Witnesses as in this case where the Court relied heavily on the Confessional Statement of the Accused/Appellant which he purported to have been corroborated by Exhibits “A” – “D” (a locally made pistol; the live Cartridge; Cable wire whip and Army Camouflage Shirt) which were allegedly handed over to the PW1 and PW2 the so called Investigating Police Officers by the Informant/Victim and the Chairman of the Vigilante Group. I reiterate once more that no reasonable explanation was offered by the Prosecution for not calling the eye witnesses to the commission of the crime and that their refusal to appear and testify before the learned Trial Judge should have cast doubt in the mind of the learned Trial Judge on the truth of the Confessional Statement and indeed the complaint against the Accused/Appellant.
This doubt as had been held in a plethora authorities too numerous to mention but see Akeem Afolahan vs. The State (2018) 8 NWLR (Pt.1621) 223 at 243 paras. B-H per Bage, JSC; Oforlete vs. The State (2007) 7 NWLR 86 at 106 per Achike, JSC; Ahmed vs. The State (1999) 7 NWLR (Pt.612) 641 at 672; Oladimeji Mohammed Edun vs. FRN (2019) 113 NWLR (Pt.1689) 326; which were ably cited by our learned Brother, Ige, JCA in the recent case of FRN vs. AVM John Adeniyi Kayode-Beckley (2020) LPELR-50549 (CA) at pages 52-59, paras. B-D. For the avoidance of doubt, the Erudite Law Lord Bage, JSC (as he then was), restated the position of the law inAkeem Afolahan vs. The State (2018) 8 NWLR (Pt.1621) 223 at 243 paras. B-H thus:
“A critical view of this Appeal shows that apart from the confessional statement of the Appellant (Exhibit “Q”), which is challenged for not being voluntary, there is no direct or circumstantial evidence by either PW1, PW2, PW3 or PW4 suggesting that the Appellant agreed or conspired with anyone to commit an unlawful purpose…”
In the above cited case, just like in this case where the eye witnesses were not called to testify so as to test their credibility against the purported Confessional Statement of the Appellant, the Principal Actor who was earlier arrested was later released without any charge brought against him and His Lordship in the circumstances of that case posed the question “What is the effect of all these?” which he answered “The above, in effect, casts serious doubts on the guilt of the Appellant. And, where there is or are doubts, as in this case, the law is settled that such must be resolved in favour of the suspect, the Appellant in this case. Doubts, as in this case, must necessarily be resolved in favour of the Appellant in line with the tradition of this Court. In the case of Oforlete vs. The State (2007) 7 NWLR 86 at 106, Achike, JSC (as he then was); observed that, doubt (referring to doubt as to the possibility of the Appellant committing the offence) must be resolved in favour of the Appellant where the allegation of his offence has not been proved beyond reasonable doubt. The Court per Wali, JSC, (as he then was); held in the case of Chukwu vs. The State (1996) 7 NWLR (Pt.463) 686 at 701 paras. G-H as follows: “Where Prosecution’s evidence is found to be contradictory on a material issue, the Court should give the benefit of that doubt to an Accused person that stems from the non-credibility of such evidence and discharge and acquit him.” This Court had amplified the cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the Accused is on the Prosecution who should prove such fact beyond reasonable doubt. In criminal cases, any doubt, as to the guilt of the Accused arising from the contradictions in the Prosecution’s evidence of vital issues must be resolved to the benefit of the Accused.”
In the instant case, one pertinent observation is that in spite of the objection raised to the admissibility of the so called Confessional Statement (Exhibit “E”) of the Appellant and his retraction of same, the learned Trial Judge did not subject that Statement to the normal practice of a trial-within-trial in order to determine whether the Statement was voluntary or made under duress or otherwise. In this wise, the Prosecution that asserted that the Statement was voluntary had the burden to prove the voluntariness. See Gbadamosi vs. The State (1992) 9 NWLR (Pt.266) 465 at 480 and Effiong vs. The State (1998) 8 NWLR (Pt.562) 362; where Ogwuegbu, JSC succinctly put the position of the law thus:
“The practice in Trial Court has been for an Accused person who denied the voluntariness of his extra-judicial statement made to the Police to object to the Statement when the Prosecution seeks to tender in evidence. When this is done at that stage, the Court proceeds to test the voluntariness of such a Statement by conducting a trial-within-trial on the admissibility of the Statement and the onus is on the Prosecution to prove that it was free and voluntary and it is the Prosecution who should begin.”
I had already re-evaluated the totality of the evidence and I agree with the submissions of the learned Senior Counsel that the learned Trial Judge failed to properly evaluate the totality of the evidence particularly that of the Appellant which he dismissed by a wave of the hand and relied on his Confessional Statement that was retracted as not being made by him and that the Statements he made on the 13th and 14th of June, 2013 at both the Vandeikya Police Headquarters and State’s CID, Makurdi, Benue State; were not tendered by the PW1 and PW2 who offered no reasonable explanations for not tendering those statements. I must reiterate that the presumption of law is that if those Statements were tendered they would have been unfavourable or detrimental to the case of the Prosecution.
Apart from eventually relying on the evidence of the PW1 and PW2 which were earlier discountenanced as hearsay evidence in holding that the Appellant was guilty of the First and Third Counts of the charge preferred against him, the admissibility of Exhibit “E” and the reliance placed on it in convicting the Appellant when the totality of the evidence of the Witnesses for the Prosecution bothered on hearsay and the so called eye witnesses/victim of the crime were not called, rendered the findings and conclusions of the learned Trial Judge perverse and accordingly wreaked serious miscarriage of justice against the Appellant. This is therefore a proper case for this Court to interfere and set aside the perverse Judgment and in so holding I take solace on the dictum of Ogbuagu, JSC in Nkebisi vs. State (2010) 5 NWLR (Pt.1188) 471 at 492 paras. B-C; who posited on the Grounds on which this Court can reverse the Judgment of the Trial Court thus:
“It is accepted that an Appellant who relies on improper evaluation of evidence to set aside the Judgment, has the onus to identify or specify the evidence improperly evaluated or not evaluated and to show convincingly that if the error complained of had been corrected, the conclusion reached, would have been different and in favour of the party complaining of wrong evaluation. Where a Trial Court believes a Witness, the onus shifts to the Appellant to show that the Trial Court failed to consider the relevant facts. See the case of Adelumola vs. The State (1988) 1 NWLR (Pt.73) 693 at 691.”
From the facts of this case as can be garnered from the Records, there is no doubt that the learned Senior Counsel to the Appellant and his Colleague have demonstrated convincingly that the learned Trial Judge had drawn conclusions from facts which facts do not establish the Prosecution’s case and this Court on the authority of Abdullahi vs. The State (2008) 17 NWLR (Pt.1115 203 at 219 paras. A-C, per Mohammed, JSC citing Okolo vs. Uzoka (1978) 4 SC 77; Fatoyinbo vs. Williams (1956) SCNLR 274 and Adio vs. State (1986) 2 NWLR (Pt.24) 581; whose dictum I adopt as mine, is duty bound to interfere with the findings of facts and conclusions by the Lower Court which are perverse and have occasioned the Appellant serious miscarriage of justice.
I must remark in agreement with the settled position of the law that it is better for a hundred guilty persons to be set free than for an innocent person to be found guilty and sentenced to death as in this case. I must also advice that as Judges we must be very circumspect particularly in the trial of criminal matters that carry the death sentence for in my humble view, it is not the duty of Trial Courts to willy-nilly convict an Accused person particularly in a case like this where the so called Complainants did not deem it necessary to appear in Court to prove their allegations against the Appellant oblivious of the fact that for every innocent Accused person that is a victim of judicial murder, his innocent blood shall cry to high heavens for vengeance. I say no more.
Having concluded that the learned Trial Judge did not properly evaluate the evidence at the Trial Court particularly the evidence of Accused/Appellant which he relied upon as having been corroborated by Exhibits “A” – “D” in convicting the Accused/Appellant, I reiterate that the Prosecution did not establish the guilt of the Accused/Appellant as they did not prove their case beyond reasonable doubt to warrant his conviction and sentence to death and accordingly, Issue Number Two (2) is again resolved in favour of the Appellant and against the Respondent.
In conclusion, this Appeal is meritorious and hereby succeeds. The Judgment of the High Court of Benue State, Makurdi Judicial Division, delivered by Hon. Justice J.M. Ijohor on the 22nd day of May, 2015 whereof he convicted and sentenced the Appellant to death and Ten (10) years imprisonment respectively for the offences of Conspiracy, Armed Robbery and Illegal possession of Firearms; is hereby set aside and the sentences quashed. The Accused/Appellant is accordingly discharged and acquitted.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege to read in draft before now the Lead Judgment just delivered by my learned brother AGUBE, PJCA., and I agree with the reasoning and conclusions reached therein.
The Appeal is imbued with merit and is accordingly allowed by me.
The judgment of the High Court of Benue State, sitting in Makurdi, per Hon. Justice J.M. Ijohor, J., and delivered 22nd May, 2015 whereof he convicted and sentenced the Appellant to death and 10 years imprisonment for the offences of conspiracy, armed robbery and illegal possession of firearms is also set aside and the sentences quashed by me. The accused/appellant is thus discharged and acquitted.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I am in full agreement with the extensive analysis, reasoning resolution of all the issues donated for determination.
My Lord dealt with the issues in detail and resolved all the legal issues identified by the parties without leaving room for anything more.
I can only add that standard of proof in any criminal case is proof beyond reasonable doubt and all the elements of the offence must also be so proved.
I am mindful of the principle that prosecution is not bound to call a host of witnesses if it can prove the elements of the offence but where the only witnesses called are those that came into the scene after the commission of the crime and arrest, them it leaves room for speculation and doubt which always go to the benefit of the Appellant.
Agencies that investigate crimes should be diligent in ensuring essential witnesses are called to avoid letting criminals off the hook on mere lapses in the prosecution of the case.
I adopt the judgment as mine and allow the Appeal. I also abide by the orders made therein.
Appearances:
E. N. Akor-Ikpam, Esq. For Appellant(s)
E. Enyikwola, Esq. (ADCR) Ministry of Justice, Benue State For Respondent(s)