UMORU v. STATE
(2021)LCN/15795(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, March 26, 2021
CA/ABJ/CR/443C/2020
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
HASSAN UMORU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE PRIMARY DUTY OF THE TRIAL COURT
As settled by numerous judicial precedents, the appraisal of both oral and documentary evidence and ascription of probative value thereto is the primary duty of a trial Court. See Friday Nwankwo v. The State (2020) 6 NWLR (Pt. 1720) 359 at 378; where the Supreme Court recently restated the law as follows:
“The appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts is primarily the function of the trial Court”.
Where the evaluation does not require assessment of the credibility of the witnesses who testified, an appellate Court is in a good position as the trial Court. See Akinola v. Oluwo (1962) 1 All NLR 224 and Attorney-General of Oyo State v. Fairlakes Hotels Limited (1989) 5 NWLR (Pt. 121) 255. PER ADUMEIN, J.C.A.
THE POSITION OF LAW ON THE PROPER TIME TO RAISE AN OBJECTION TO THE ADMISSIBILTY OF DOCUEMENTARY EVIDENCE
The law is that the proper time to raise an objection to the admissibility of documentary evidence is when the document is sought to be put or tendered in evidence. See Ekpe v. Fagbemi (1978) All NLR 107; Arinze v. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 78; Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547; Aminu v. Hassan and Isa Kassim v. The State (2018) 4 NWLR (Pt. 1608) 20 at 53, where the Supreme Court stated that:
“The law is clear that an objection to the admissibility of a document is taken when it is sought to be tendered”.
At the time that his alleged confessional statement was tendered, the appellant raised no objection but, in oral testimony, he retracted the said confession. The law is that a retraction of a confessional statement is not the same thing as denial of the voluntariness of it. In Joseph Akenkule Sale v. The State (2020) 1 NWLR (Pt. 1705) 205 at 228, the Supreme Court held as follows:
“But an objection to a confessional statement on the ground of involuntariness is not the same thing as a retraction of same on the ground that the statement was never made in the first place. PER ADUMEIN, J.C.A.
THE POSITION OF THE LAW WHERE AN ACCUSED PERSON DENIES MAKING A CONFESSIONAL STATEMENT
It is settled that where an accused says that he did not make the confession, a trial Court is entitled to admit it in evidence, and decide at the conclusion of the trial whether or not he had made it. But where he agrees that he made the confession but says that he was forced or tortured to make it, he is attacking its admissibility, so, trial-within-trial must be held to determine its voluntariness.”
The tests require an inquiry by the Court into whether or not:
“a. Is there anything outside the confession which shows that it is true?
b. Is it corroborated in any way?
c. Are the relevant statements of fact as they can be tested?
d. Did the accused have an opportunity to commit the offence?
e. Is the confession possible; and
f. Is the confession consistent with other facts which have been ascertained and established?”
The above tests have been applied or referred to by the Courts in Nigeria in the following cases: Kanu v R. 14 WACA 30; Queen v ltule (1961) 2 SCNLR 183; Dawa v. State (1980) 8-11 SC 236; Edhigere v. State (1996) 8 NWLR (Pt. 464) 1; Wole Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470; Ikumonihan v The State (2018) 14 NWLR (Pt 1640) 456; Joseph Akenkule Sale v. The State (2020) 1 NWLR (Pt. 1705) 205; amongst a hosts of others. PER ADUMEIN, J.C.A.
WHETHER OR NOT A COURT CAN RAISE AN ISSUE SUO MOTU
I agree that the general principle of law is that it is wrong for the Court to raise an issue suo motu and determine it without hearing the parties on the issue so raised. See Osagie v. Adonri (1994) 6 NWLR (Pt. 349) 131; Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250 and Abbas v. Solomon (2001) 15 NWLR (Pt. 735) 144.
It is also the law that a statement made by a defendant to the police is considered or regarded as part of the case for the prosecution, whether it does not contain a confession or it contains a confession, and whether or not the defendant resiles the confessions. See Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383 and Ikumonihan v. State (2018) 14 NWLR (Pt. 1640) 456.
The law is also clear that a Court is allowed or permitted to examine evidence on record, such as a document and draw inferences from it. The law does not regard such inferences as raising issues suo motu by the Court. See Olorunkunle v Adigun (2012) 6 NWLR (Pt. 1297) 407 and Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1. PER ADUMEIN, J.C.A.
THE POSITION OF LAW ON THE TERM “JUDGES RULE”
The term “Judges rules” was discussed by the Supreme Court in Samuel Ojegele v. The State (1988) 1 NWLR (Pt. 71) 414 at 423 to 424, where the apex Court elaborately commented and categorically stated that:
“The Judges’ rules are rules made by English Judges for the guidance of English Police Officers, Nobody, however, disputes the wisdom behind those rules. But having said that, it is necessary to add that the rules are not rules of law but merely rules of administrative practice. They are rules made for the more efficient and effective administration of justice and therefore should never be used to defeat justice. Even in England, the Court of Appeal felt bound to observe that “the Court must take care not to deprive themselves by new artificial rules of practice of the best chances of learning the truth”–R. v. Richardson (1971) 2 QB, 434 at p.490: (1971) 2 All E.R. 777.
Here in Nigeria, there is a consensus of judicial opinion that the practice set out in the Judges’ rules accords with prudence and that where it is practicable, especially in serious cases of felony, where the only material evidence against an accused person is his confession contained in his Statement made to a junior police officer that practice should be followed”.
That the Judges’ rules are not strictly rules of law but ordinary rules of administrative practice, see also Friday Smart v. The State (2016) 9 NWLR (Pt. 1518) 447 at 476. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant and Messrs Idris Iliyasu, Mohammed Abbas and Hassan Abubakar were the 2nd, 1st, 3rd and 4th defendants, respectively, in Charge No. AHC/2C/2019 wherein they were charged and tried for the offences of “criminal conspiracy contrary to Section 97 (1) of the Penal Code and “Armed Robbery contrary to Section 298(c) of the Penal Code”. They pleaded not guilty and the Prosecution called two witnesses and tendered eight exhibits. The appellant testified in his defence and called no witness.
The trial Court, upon the close of evidence and after entertaining the addresses of learned counsel, delivered a reserved judgment on the 29th day of April, 2020 whereby the appellant, Hassan Umoru and Hassan Abubakar were each convicted of the offence of criminal conspiracy and each of them sentenced to five years’ imprisonment. Each of them was convicted for the offence of armed robbery and sentenced to ten years’ imprisonment. The trial Court ordered that “the sentences shall run concurrently”.
Being dissatisfied with the decision of the trial Court, the appellant lodged an appeal to this Court. The appellant’s notice of appeal contains eight grounds from which learned counsel distilled the following issues in the appellant’s brief filed on 28/07/2020:
“1. Whether the lower Court validly raised the issue of the Judges’ rule with respect to the confessional statement having been raised suo motu and without calling for counsel’s address thereon. Distilled from ground 7 of the notice of appeal.
2. Whether the lower Court rightly convicted the appellant having regard to the evidence on record and the standard of proof required by law to secure a conviction for the offences of criminal conspiracy and armed robbery. Distilled from grounds 1, 4 and 5 of the notice of appeal.
3. Whether the lower Court properly evaluated the evidence on record and rightly acted on the confessional statement. Distilled from grounds 2, 3 and 6 of the notice of appeal.
4. Whether the award of sentence is not excessive and contrary to the provision of the law. Distilled from ground 8 of the notice of appeal.”
The respondent’s brief was filed on 25/08/2020 but it was deemed as properly filed and served on 21/01/2021. Learned counsel for the respondent adopted the issues distilled by the appellant.
I think that the four issues identified by the contending parties can be conveniently adjusted to the following two issues:
1. Whether or the trial Court properly evaluated the evidence and, having regard to the requirements of the law, rightly convicted the appellant for the offences of conspiracy and armed robbery.
2. Whether or not the sentences are excessive and contrary to law.
The first issue above covers issues 1, 2 and 3 raised by the parties, and the second issue is their issue No. 4
On the first issue, learned counsel for the appellant argued that the issue of Judges’ rules was raised by the trial Court, in its judgment for the first time, without affording the appellant the opportunity of addressing the Court on it. Relying on the cases of State v. Oladimeji (2003) NWLR (Pt. 839) 57 at 74-75; Okafor v. B.D.U. Jos Branch (2017) 5 NWLR (Pt. 1559) 385 and NDIC v. Rabo Farms Ltd (2018) 15 NWLR (Pt. 1643) 482 at 44 and contended that where a Court raises an issue suo motu, the parties or at least the adverse party should be given an opportunity to address the Court on it.
Counsel stated that the appellant challenged the validity of exhibit P7, on the ground that, it was “obtained or made in violation of Section 28 (2) of the Kogi State Administration of Criminal Justice Law, 2017” but the trial Court “failed to grant opportunity to the parties to address him on the point” before proceeding to make a decision on it. Learned counsel, therefore, urged the Court to “strike out the finding of the trial Court with respect to exhibit P7”.
S. A. Mustapha, Esq., learned counsel for the appellant relied on the case ofDahiru v. State (2018) 14 NWLR (Pt. 1640) 547, on the ways by which a crime can be established; and Adekoya v. State (2017) 7 NWLR (Pt. 1565) 343 on the essential ingredients to be proved for the offence of armed robbery and submitted, interalia, as follows:
“In the instant case, the prosecution relied on exhibit P7, the alleged confessional statement of the appellant and the trial Court convicted the appellant for the two count charges of criminal conspiracy contrary to Section 97(1) of the Penal Code and the offence of armed robbery contrary to Section 298(c) of the Penal Code. There was no direct evidence of witnesses or circumstantial evidence. The victims of the alleged robbery did not testify at the trial.”
Counsel contended that none of the essential ingredients of the offences of conspiracy and armed robbery was proved, especially as exhibit P7 “has no probative value and does not establish the guilt of the appellant beyond reasonable doubt”.
Learned counsel submitted that the appellant’s evidence, on page 57 lines 14-22 of the record of appeal, was not discredited as he was not cross-examined and that “the effect of failure to cross-examine a witness upon a particular matter constitutes a tacit acceptance of the truth of the evidence of the witness”, In support of this contention, he relied on the case of Dahiru v. State (supra).
It was contended that the appellant “denied knowledge of the alleged robbery contrary to the content of exhibit” and successfully impeached the content of the exhibit and thereby discharged the duty or burden on him.
The learned counsel for the appellant relied on the cases of Kayode v. State (2012) 11 NWLR (Pt. 1312) 523 at 547-548 and Bello v. C.O.P. (2018) 2 NWLR (Pt. 1603) 267 at 317 and submitted that the victims of the alleged robbery:
“Hajia Rekiva Yahaya and Alhaji Mohammed Yahaya are material witnesses whose evidence is material to the resolution of the vital points in issue with respect to the elements of the offence. The prosecution is not bound to call a host of witnesses, but where there are vital witnesses whose evidence will settle the matter once and for all, the prosecution ought to and should call them to give evidence and failure to do so will be fatal, if those witnesses are considered vital.”
He contended that since exhibit P7, the appellant’s alleged confessional statement, was obtained contrary to Section 28(2) of the Kogi State Administration of Criminal Justice Law, 2017 and which statement was also impeached by the appellant’s oral testimony in Court, “there is no any evidence outside exhibit P7 which makes it probable that the confession is true”.
On the principles to be considered in determining the veracity of a confessional statement, counsel cited and referred the Court to the case of Ikhumonihan v. State (2018) 14 NWLR (Pt. 1640) 456 at 477.
It was further argued that the trial Court did not properly evaluate the evidence before it. On what constitutes a proper evaluation of evidence, learned counsel relied on the cases of Nwabueze v. The People of Lagos State (2018) LPELR-44113 (SC) and Al-Mustapha v. State (2013) 17 NWLR (Pt. 1383) 350.
On the consequences of failure to adequately or properly evaluate evidence by the trial Court, learned counsel argued that a decision arrived by the Court, in such a case, “cannot stand”. To buttress this argument, he referred the Court to the cases of Basil v. Fajebe (2001) 11 NWLR (Pt. 725) 592; Agbi v. Ogbe (2005) 8 NWLR (Pt. 926) 40; State v. Rabiu (2013) 8 NWLR (Pt. 1357) 585 and Ogundalu v. MacJob (2015) 8 NWLR (Pt. 1460) 96.
Learned counsel contended under Section 414 (2) of the Kogi State Administration of Criminal Justice Law, 2017 “the gravity of an offence is not a factor to be reckoned with” but the trial Court took in consideration the gravity of the offence, when sentencing the appellant, and the sentence is excessive. He also argued that the trial Court failed to take into consideration of the period of time the appellant spent in detention and the allocutus of his counsel.
Relying on Section 15 of the Court of Appeal Act, 2004 and Darlinton v. FRN (2018) 11 NWLR (Pt. 1629) 152, learned counsel submitted that the Court has power to reduce the sentence imposed on the appellant.
Learned counsel for the appellant finally urged the Court to resolve the issues in this appeal in favour of the appellant and to allow the appeal.
In response, H.O. Abdullahi, Esq., (Director of Public Prosecutions, Kogi State) who settled the respondent’s brief, argued that “the attestation of the superior police officer endorsed on exhibit P6 is not separate or independent of the content of exhibit P6 but part and parcel of it” and that the document can speak for itself, as no oral evidence can be used to add to or vary its content. On this point, learned counsel referred the Court to the cases of Anya v. Anya (2020) 301 LRCN 90; Akeredolu v. Abraham (2018) LPELR-44067 (SC) and Enekwe v. International Merchant Bank of Nigeria Ltd. (2006) LPELR 1140 (SC).
Concluding on the matter of the trial Court raising the issue of Judges’ rule, suo motu, learned counsel submitted as follows:
“The Judges’ rule which is the bone of contention is part of the content of exhibit P6 which was tendered and admitted in evidence without objection. As a document before the Court, the learned trial Judge is legally bound right to refer to it and there is no necessity whatsoever that to do so he must call for counsels’ address as same cannot be categorised as an issue raised suo motu but a consideration of the evidence before him”.
Relying on the case of Oguntoyinbo v. FRN (2018) LPELR (CA), learned counsel argued that Section 28(2) of the Administration of Criminal Justice Law, 2017 of Kogi State “does not make the presence of counsel at the making of the extra judicial statement of the appellant mandatory”.
Counsel cited the case of Dahiru v. State (2018) 14 NWLR (Pt. 1640) 567 at 580 and contended that the prosecution can rely on any of the three methods of proof to wit confession, eye witness evidence or circumstantial evidence to establish its case and that “exhibit P6 sufficed in proof of all the three ingredients of the offences of armed robbery and conspiracy”.
Learned counsel for the respondent argued that –
“Hajiya Rekiya, Alhaji Yahaya and Labaran are not material witnesses in the sense that they are not witnesses in the absence of which the Court would be unable to determine the case one way or the other, as that in essence is what the term vital or material witness stand for. See STATE VS. FATAI AZEEZ & 5 ORS (2008) 4 KLR (PT. 253) P. 1679 AT 1696″.
Learned counsel for the respondent further stated that the sentences passed on the appellant were not excessive.
The Court was finally urged by the respondent to resolve the issues against the appellant and to dismiss the appeal.
As settled by numerous judicial precedents, the appraisal of both oral and documentary evidence and ascription of probative value thereto is the primary duty of a trial Court. See Friday Nwankwo v. The State (2020) 6 NWLR (Pt. 1720) 359 at 378; where the Supreme Court recently restated the law as follows:
“The appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts is primarily the function of the trial Court”.
Where the evaluation does not require assessment of the credibility of the witnesses who testified, an appellate Court is in a good position as the trial Court. See Akinola v. Oluwo (1962) 1 All NLR 224 and Attorney-General of Oyo State v. Fairlakes Hotels Limited (1989) 5 NWLR (Pt. 121) 255.
In this case, the appellant retracted his alleged confessional statement – exhibit P7 and learned counsel contended that the purported confession was made in contravention of Section 28(2) of the Kogi State Administration of Criminal Justice Law, 2017. Learned counsel argued that the trial Court wrongly acted on exhibit P7 but failed to act on the appellant’s evidence.
Section 28(1) and (2) of the Kogi State Administration of Criminal Justice Law, 2017 provide as follows:
“1 Where a suspect is arrested on an 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, Civil Society Organization or any other person of his choice, Provided that the legal practitioner or any other person mentioned in this Sub-section shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.”
In its judgment, the trial Court, before attaching weight to exhibit P7, rightly, in my view, held, inter alia, as follows:
“In my view, the Section is intended to serve as a safeguard to ensure that confessional statements credited to person accused of crime were truly made by the defendants. This arose from the experience of some persons who complained that they had been forced to admit the offences in violation of S.29 of the Evidence Act, 2011. Indeed, the provision is a legislation aimed at ensuring that no person is forced to admit an offence and also aimed at preventing an accused person from retracting his confession freely made. What is the law on failure to comply with S.28 of the Administration of Criminal Justice Law 2019 of Kogi State? My view is that where there is failure to comply with the law and there is no evidence to show that the defendant voluntarily made his statement, no weight should be ascribed to the statement. In the present case, each defendant is credited with two confessional statements. Once set of statement were made at the Divisional police office while the second set were made at the Lokoja office of the special anti-robbery squad. The two sets of statements were not made in the presence of Legal Practitioners or some other persons related to the defendant’s choice. However, the statements made at Lokoja carry attestation or information in compliance with the Judges rules. These are rules made by English Judges to ensure that policemen allow persons accused of crimes to voluntarily admit crimes and not forced to admit crimes.”
His Lordship, Awulu, J., then proceeded to hold, find and state as follows:
“To my mind, S.28(2) of the ACJL, 2017 is the promulgation of a law aimed at achieving the same result as the Judges’ rules. Indeed, over the years and up and until the coming into effect of the ACJL, 2017, the Judges’ rules were applied by Nigerian Courts when considering voluntariness of confessional statements. Let me reproduce the attestation on the said confessional statements for clarity. It reads ‘Today being 29/4/2019 Sgt Samuel Gbenga brought the suspect before me, his statement was read over to him and he agreed that the statement was not made under duress”.
The attestation on exhibit P7, as stated by the trial Court, has not been disputed or refuted by the appellant. I have also examined exhibit P7 and the attestation reproduced by the trial Court, in its judgment of 29/04/2020, is conspicuously endorsed or written on the said confessional statement.
When the prosecution sought to put the appellant’s extra-judicial statement as evidence before the trial Court, there was no objection by or from the appellant — See page 53 of the record of appeal.
The law is that the proper time to raise an objection to the admissibility of documentary evidence is when the document is sought to be put or tendered in evidence. See Ekpe v. Fagbemi (1978) All NLR 107; Arinze v. First Bank (Nig.) Ltd. (2000) 1 NWLR (Pt. 639) 78; Omega Bank (Nig.) Plc. v. O.B.C. Ltd. (2005) 8 NWLR (Pt. 928) 547; Aminu v. Hassan and Isa Kassim v. The State (2018) 4 NWLR (Pt. 1608) 20 at 53, where the Supreme Court stated that:
“The law is clear that an objection to the admissibility of a document is taken when it is sought to be tendered”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
At the time that his alleged confessional statement was tendered, the appellant raised no objection but, in oral testimony, he retracted the said confession. The law is that a retraction of a confessional statement is not the same thing as denial of the voluntariness of it. In Joseph Akenkule Sale v. The State (2020) 1 NWLR (Pt. 1705) 205 at 228, the Supreme Court held as follows:
“But an objection to a confessional statement on the ground of involuntariness is not the same thing as a retraction of same on the ground that the statement was never made in the first place.
It is settled that where an accused says that he did not make the confession, a trial Court is entitled to admit it in evidence, and decide at the conclusion of the trial whether or not he had made it. But where he agrees that he made the confession but says that he was forced or tortured to make it, he is attacking its admissibility, so, trial-within-trial must be held to determine its voluntariness.”
During the trial, the appellant did not object to the admissibility of his alleged confessional statement on the ground of involuntariness or any other ground. The trial Court, in the circumstances, was not obliged to conduct a trial-within-trial in respect of the extra-judicial confession.
There is nothing inviolable about retraction of a confession by a defendant. Retraction by a defendant of his alleged confessional statement, per se, does not automatically make the confession inadmissible.
Where a defendant recoils his extra-judicial statement or springs back from it, the safer thing is that the trial Court should first resort to the tests laid down in the celebrated case of R.V. Sykes (1913) 1 CR. App, R. 233 to determine the probability of the disputed confession being true. The tests require an inquiry by the Court into whether or not:
“a. Is there anything outside the confession which shows that it is true?
b. Is it corroborated in any way?
c. Are the relevant statements of fact as they can be tested?
d. Did the accused have an opportunity to commit the offence?
e. Is the confession possible; and
f. Is the confession consistent with other facts which have been ascertained and established?”
The above tests have been applied or referred to by the Courts in Nigeria in the following cases: Kanu v R. 14 WACA 30; Queen v ltule (1961) 2 SCNLR 183; Dawa v. State (1980) 8-11 SC 236; Edhigere v. State (1996) 8 NWLR (Pt. 464) 1; Wole Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470; Ikumonihan v The State (2018) 14 NWLR (Pt 1640) 456; Joseph Akenkule Sale v. The State (2020) 1 NWLR (Pt. 1705) 205; amongst a hosts of others.
In this case, as can be seen from the portions of the judgment of the trial Court, reproduced earlier in this judgment, the learned trial Judge was alert to the trial Court’s responsibilities and adequately applied the Judges’ rules in determining whether or not the appellant’s confession, as contained in exhibit P7, has probative value. The Honourable Justice A. N. Awulu then concluded as follows:
“In exhibit p.7, the first defendant Hassan Umoru stated that he is a furniture maker. What is more, he stated that he was arrested by vigilante operatives. Before me, he gave evidence of these same facts. His evidence of his arrest by vigilante operatives tallies with the evidence of pw1 and pw2 and exhibit p.7. credited to him. I am satisfied the second defendant, Hassan Umoru made exhibit p.7. He truly confessed to the crime.”
Having regard to the totality of the circumstances and facts of this case, I entirely agree with the trial Court’s view, reproduced above, and I find no basis to deviate from it or disturb it.
Learned counsel for the appellant argued profusely that the trial Court did not call for counsel’s address when he raised the issue of Judges’ rule to find and hold that exhibit P6 has probative value.
I agree that the general principle of law is that it is wrong for the Court to raise an issue suo motu and determine it without hearing the parties on the issue so raised. See Osagie v. Adonri (1994) 6 NWLR (Pt. 349) 131; Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250 and Abbas v. Solomon (2001) 15 NWLR (Pt. 735) 144.
It is also the law that a statement made by a defendant to the police is considered or regarded as part of the case for the prosecution, whether it does not contain a confession or it contains a confession, and whether or not the defendant resiles the confessions. See Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383 and Ikumonihan v. State (2018) 14 NWLR (Pt. 1640) 456.
The law is also clear that a Court is allowed or permitted to examine evidence on record, such as a document and draw inferences from it. The law does not regard such inferences as raising issues suo motu by the Court. See Olorunkunle v Adigun (2012) 6 NWLR (Pt. 1297) 407 and Adebayo v. PDP (2013) 17 NWLR (Pt. 1382) 1.
The term “Judges rules” was discussed by the Supreme Court in Samuel Ojegele v. The State (1988) 1 NWLR (Pt. 71) 414 at 423 to 424, where the apex Court elaborately commented and categorically stated that:
“The Judges’ rules are rules made by English Judges for the guidance of English Police Officers, Nobody, however, disputes the wisdom behind those rules. But having said that, it is necessary to add that the rules are not rules of law but merely rules of administrative practice. They are rules made for the more efficient and effective administration of justice and therefore should never be used to defeat justice. Even in England, the Court of Appeal felt bound to observe that “the Court must take care not to deprive themselves by new artificial rules of practice of the best chances of learning the truth”–R. v. Richardson (1971) 2 QB, 434 at p.490: (1971) 2 All E.R. 777.
Here in Nigeria, there is a consensus of judicial opinion that the practice set out in the Judges’ rules accords with prudence and that where it is practicable, especially in serious cases of felony, where the only material evidence against an accused person is his confession contained in his Statement made to a junior police officer that practice should be followed”.
That the Judges’ rules are not strictly rules of law but ordinary rules of administrative practice, see also Friday Smart v. The State (2016) 9 NWLR (Pt. 1518) 447 at 476.
For the avoidance of any doubt, the Judges’ rules as per the 1964 Rules, are as follows:
“RULE 1. When a police officer is trying to discover whether, or by whom, an offence has been committed, he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question had been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.
RULE 2. As soon as a police officer has evidence, which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence. The caution shall be in the following terms: “You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.” When after being cautioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present.
RULE 3. (a) Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms: “Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.“ (b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimizing harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement. Before any such questions are put the accused should be cautioned in these terms: ‘I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions, but if you do the questions and answers will be taken down in writing and may be given in evidence.’ Any questions put and answers given relating to the offence must be contemporaneously recorded in full and the record signed by that person or if he refuses by the interrogating officer. (c) When such a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any questioning or statement began and ended and of the persons present.
RULE 4. All written statements made after caution shall be taken in the following manner:
(a) If a person says that he wants to make a statement, he shall be told that it is intended to make a written record of what he says. He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him, If he accepts the offer the police officer shall, before starting, ask the person making the statement to sign, or make his mark, to the following: “I …, wish to make a statement, want someone to write down what I say. I have been told that I need not say anything unless wish to do so and that whatever I say may be given in evidence.”
(b) Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material.
(c) The person making the statement, if he is going to write it himself, shall be asked to write out and sign before writing what he wants to say, the following: “I make this statement of my own free will. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence.”
(d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters: he shall not prompt him.
(e) When the writing of a statement by a police officer is finished the person making it shall be asked to read it and to make any corrections, alterations or additions he wishes. When he has finished reading it he shall be asked to write and sign or make his mark on the following certificate at the end of the statement: “I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will.”
(f) If the person who has made a statement refuses to read it or to write the above mentioned certificate at the end of it or to sign it, the senior police officer present shall record on the statement itself and in the presence of the person making it, what has happened. If the person making the statement cannot read, or refuses to read it, the officer who has taken it down shall read it over to him and ask him whether he would like to correct, alter or add anything and to put his signature or make his mark at the end. The police officer shall then certify on the statement itself what he has done.
RULE 5. If at any time after a person has been charged with, or has been informed that he may be prosecuted for an offence a police officer wishes to bring to the notice of that person any written statement made by another person who in respect of the same offence has also been charged or informed that he may be prosecuted; he shall hand to that person a true copy of such written statement, but nothing shall be said or done to invite any reply or comment. If that person says that he would like to make a statement in reply, or starts to say something, he shall at once be cautioned or further cautioned as prescribed by RULE 3 (a).
RULE 6. Persons other than police officers charged with the duty of investigating offences or charging offenders shall, so far as may be practicable, comply with these Rules”.
See Michael v. State (2015) LPELR – 25778 (CA) per Ogunwumijiu, JCA (as he then was, now JSC).
Judges’ rules are judicially recognized and there is substantial jurisprudence on it. For example, in the cases of Stanley Idigun Egboghonome v. The State (1993) 7 NWLR (Pt. 306) 383 and Richard Igago v. The State (1999) 14 NWLR (Pt. 637) 1, the effect of non-observance of the Judges’ rules, 1912 of England was extensively stated.
It was held that non-observances of the Judges’ rules, that is: taking an accused before a superior police officer, for confirmation of his statement, is not necessarily fatal to its admissibility.
However, in evaluating the probative weight to be attached to a defendant’s confessional statement, the Court may apply the Judges’ rules. See Iorliam lorapuu (2020) 1 NWLR (Pt. 1706) 391 at 429-428, where the Supreme Court stated as follows:
“I agree with learned counsel for the respondent that once a confessional statement satisfies the basic fundamental of a valid statement, to wit:
(i) The cautionary words must be well written and signed,
(ii) The body of the accused person’s statement written by the accused person or by someone usually a police officer on the accused person’s directives, giving detailed confession which will show clearly that he committed the offence for which he is charged.
(iii) The statement must be endorsed by a superior police officer and signed by the accused person; then the Court can convict on it”
(Underlining is mine, for the sake of emphasis).
The application of the Judges’ rules is now well settled and a Court can apply the principles enunciated therein in assessing a retracted confessional statement. It would, therefore, be incongruous, and even unreasonable, for the Court to have a prior hearing from counsel or parties, or to give notice of its intention to apply such settled principles of law. In fact, it will be making a caricature of the administration of criminal justice for the Court to invite counsel or parties to be heard on every legal issue it intends to comment on or make reference to in its judgment.
With specific reference to this case, the issue of whether or not the appellant’s retracted extra-judicial statement should be accorded any probative evidential value was raised by the parties and the trial Court was judicially expected to resolve it.
The question of breach of a party’s right to fair hearing cannot arise from a Court properly performing its adjudicatory duties of evaluating the evidence on record, appropriating probative value or weight thereto, making findings of facts, searching for the applicable or relevant cases or law and applying settled principles or rules of law in arriving at its conclusion or decision, without the address of counsel. The addresses of learned counsel on the issues, matters or questions before a case is reserved for judgment, should be regarded as the stream that will guide the Court in its judgment. To hold otherwise would result to a multiplicity of addresses or hearings within the period a case is reserved for judgment and when the judgment is actually delivered or pronounced.
In exhibit P6, the appellant unequivocally confessed that he and his co-defendants conspired to rob and, indeed, with the force or use of arms, they robbed the victims — Hajia Rekiya Yahaya and Alhaji Muhammed Yahaya of sums of money and other properties or things specified in the information filed against them and which contains the offences with which they were charged.
The elements of conspiracy and armed robbery are well-known and need not be repeated in this judgment. By the appellant’s extra-judicial, he clearly and unambiguously stated that he and his co-defendants agreed or conspired to rob their victims and with a gun and cutlass they actually robbed them.
The law is trite that the prosecution can establish or prove the guilt of a defendant beyond reasonable doubt by any or a combination of the following ways:
“(i) Direct evidence;
(ii) Confessional statement by the defendant; and
(iii) Circumstantial evidence”.
See State v. Isah (2012) 16 (Pt. 1327) 613; Adekoya v. State (2012) 9 NWLR (Pt. 1306) 539; Mbang v. State (2013) 7 NWLR (Pt 1352) 48; ltu v. State (2016) 5 NWLR (Pt. 1506) 443; Michael Adeyemo v. The State (2015) 16 NWLR (Pts 1435) 311; Joseph Bille v. The State (2016) 15 NWLR (Pt. 1536) 363; Ifeanyichukwu Akwuobi v. The State (2017) 2 NWLR (Pt. 1550) 421 and Wahab Alao v. The State (2019) 17 NWLR (Pt. 1702) 501.
The learned counsel for the appellant contended that the failure by the prosecution to call Hajia Rekiya Yahaya and Alhaji Muhammed Yahaya, victims of the crimes, was fatal to the prosecution. The law is that the prosecution is not bound to call a host of witnesses before it can establish the guilt of a defendant, because, the evidence of a single credible witness can prove a criminal allegation beyond reasonable doubt. See Basil Akalezi v. State (1993) 2 NWLR (Pt. 273) 1. Therefore, the prosecution is not only conferred with a privilege but the prerogative to call such witness or witnesses it decides to prove its case. See R. v. Adebanjo 2 WACA 315; Opayemi v. State (1985) 2 NWLR (Pt. 5) 101 and Akpan v. State (1991) 3 NWLR (Pt. 182) 646.
In this case, without the evidence or presence of Hajia Rekiya Yahaya and Alhaji Muhammed Yahaya as prosecution witnesses, the criminal allegations levelled against the appellant were proved beyond reasonable doubt by the appellant’s own direct and positive confession. It is the law that confession alone, whether retracted or not, if direct, positive and true is sufficient to ground and sustain a conviction. See R. v. Ajayi Omokaro (1941) 7 WACA 146; Philip Kanu v. King (1952) 14 WACA 30; Ikemson v. State (1989) 3 NWLR (Pt. 110) 445; Uchenna Nwachukwu v. The State (2002) 12 NWLR (Pt. 782) 543; Shurumo v. State (2010) 19 NWLR (Pt. 1226) 73; Joseph Akenkule Sale v. The State (2020) 1 NWLR (Pt. 1705) 205 and lorliam lorapuu v. The State (2020) 1 NWLR (Pt. 1706) 391.
Learned counsel for the appellant also submitted that the sentences awarded on the appellant were excessive and in violation of Section 414 (2) of the Kogi State Administration of Criminal Justice Law, 2017.
I have read the provisions of Section 414 (2) of the Kogi State Administration of Criminal Justice Law, 2017. I have also read carefully the judgment of the trial Court, wherein the learned trial Judge sentenced the appellant to “five years imprisonment” for the offence of conspiracy and to “ten years imprisonment” for the offence of armed robbery. The trial Court then concluded as follows:
“The sentences shall run concurrently”
The appellant has not demonstrated how the above sentences violated the provisions of Section 414 (2) of the Kogi State Administration of Criminal Justice Law, 2017 or at all. In addition, I have read the relevant provisions of the Penal Code under which the appellant was tried, convicted and sentenced and it is clear that the sentences did not exceed the term of imprisonment for life provided for the offence of armed robbery under Section 298(c) of the Code. In fact, the trial Court was very lenient in the sentences imposed on the appellant.
In conclusion, having regard to all that has been stated above, the live issues in this appeal ought to be resolved against the appellant and they are hereby so resolved.
Having resolved the issues against the appellant and in favour of the respondent, this appeal is barren of any merit and it is dismissed, accordingly.
The judgment of the trial Court, per Honourable Justice A. N. Awulu, in Case No. AHC/2C/2019 delivered on the 29th day of April, 2020, is hereby affirmed.
PETER OLABISI IGE, J.C.A.: I had privilege of reading in advance, the judgment just delivered by my learned brother ADUMEIN, JCA.
The appellant’s learned Counsel raised sundry issues of failure of trial Court to give opportunity to appellant’s Counsel to address the trial Court on issue of Judges’ rule raised suo motu.
That having regard to the evidence the offences for which Appellant was arraigned were not proved. That there was no proper evaluation of evidence and that the sentence imposed on the appellant was excessive and contrary to law.
On issue one, I believe it is outlandish for the appellant to raise issue of admissibility of Exhibit P7 in this Court on the ground that it was obtained contrary to Section 28 of Administration of Criminal Justice Law, 2017, of Kogi State and on the flimsy ground that trial Court suo motu raised issue of the applicability of Judges’ rules to this proceedings.
It is on record that when the prosecution through PW2 sought to tender Exhibit P7 made by the Appellant at the trial Court his learned Counsel A. O. lgeh Esq. on page 53 of the record categorically stated that he has no objection and same was admitted as Exhibit P7. That put paid to all complaints against the said Exhibit which is no doubt a confessional statement. The submission that it was made in violation of Section 28 (2) of Administration of Criminal Justice Law Kogi State or that Judges’ rules was applied by lower Court suo motu cannot avail the appellant in this Court. The grounds of complaints and submission therein are all afterthought.
See: ADEYINKA AJIBOYE VS. FRN (2018) 13 NWLR (PART 1637) 40 at 452 C – H per SANUSI JSC, who said.-
“The trial Court thereupon, ordered that a trial-within- trial be conducted. At the mini-trial, the IPO who recorded the statements testified for the prosecution denying that any torture was meted on the accused and stressed that the latter made 8 it voluntarily. On his part, the appellant testified in the mini-trial even though in his testimony he delved into mere irrelevancies without clearly addressing the issue of the type of torture he alleged was meted on him. In its considered ruling, the trial Court found that the accused made the statement voluntarily and admitted them in evidence.
Basically, the grouse of the learned appellant’s counsel are three folds, namely:
(a) That the statement exhibits P5 and P27 were not made voluntarily;
(b) That he made the statements in the absence of his counsel;
(c) That the statements were written on demand.
Another complaint of the appellant is that one Ronke Oyeneyin who was the SPO who endorsed the statement in question was not called to testify at the trial-within -trial.
It needs to be restated here, that the law is well settled that a free and voluntary confession of guilt by an accused, be it judicial or extra-judicial if direct, and positive and properly proved, is sufficient to ground a conviction once the trial Court is satisfied with its truth. See Odeh v. Federal Republic of Nigeria (2008) 3-4 SC 147; (2008) 13 NWLR (Pt. 1103) 1; Silas Ikpo v. The State (1995) 33 LRCN 587; (1995) 9 NWLR (Pt. 421) 540; Akinmoju v. The State (2000) NSCQR vol.2 (Pt. 1) 90 at 93; (2000) 6 NWLR (Pt. 662) 608. The burden is always on the prosecution to prove that a statement was made voluntarily. In this instant case, the trial Court after the trial-within-trial found that the statement was voluntarily made by the accused/appellant.
On the issue of endorsement of the said statement by an SPO, it needs to be emphasised here, that the practice of having an SPO to verify and confirm that a confessional statement of an accused was voluntarily given, does not have the force of law. It is merely a desirable practice, therefore any confessional statement which was not so verified should not of necessity without more, be viewed with any air of suspicion. In other words, the fact that an SPO was not called to testify as in this instant case (which even the reason for her absence was given) will not affect the admissibility or credibility of the endorsement of exhibits P5 and P21. See the case of Dibie v. State (2007) 2 NSCQR 1431; (2007) 9 NWLR (Pt. 1038) 30. In any case, it is even not the law that the prosecution must call host of witnesses to establish its case. All it is required to do is to call witnesses who are material and would assist it in proving its case.”
At pages 461 F-H to 462 A-C PETER ODILI JSC said:
“Taking a cue from the case of Kim v. The State (1992) 4 NWLR (Pt.233) 17 at 25 para.14, the Supreme Court enumerated the formal requirements of extra-judicial statement which are that:
(a) It must carry the usual forms of caution.
(b) Each of the words of caution must be in the language understood by the maker.
(c) It must be followed by the maker’s thumbprint or signature as the case may be.
(d) It must be recorded in the language understood by the maker.
(e) It must be read over and interpreted to the maker in language in which it is made.
I shall also refer to the case of Dibie v. State (2007) 9 NWLR (Pt. 1038) 30 at 64 paras. B-D, per Ogbuagu, JSC along similar lines, thus:
“It need be stressed by me and this is also settled, that there is no requirement of law in Nigeria, but that the practice of taking an accused person along with his confessional statement, to a superior officer who reads over and interprets the statement to him and he confirms it as his voluntary statement, has been highly commended and a wise one as giving extra assurance of fairness to the accused person and the voluntariness of his confession.”
See the cases of the Queen v. Omerewure Sapele & Anor – in Re: German Awip (1957) 2 FSC 24; Nwiboko Obodo & 5 Ors v. The Queen (1958) 4 FSC 1; (1958) SCNLR 464; R. v. Igwe (1961) ANLR 330 at 333 and Kim v. The State (1992) 4 SCNL 81; (1992) 4 NWLR (Pt. 233) 17. Also, confessional statements not so treated, should not necessarily be viewed with suspicion. See the case of Nwigboke & 6 Ors v. The Queen (1959) 4 FSC 101 at 102; (1959) SCNLR 248 – Per Mbanefo, F. 1., see also Akpan v State (1992) 6 NWLR (Pt. 248) 439 at 472 paragraphs B-C. “
From what I can see, the points of anchor against the confessional statements of the appellant cannot sustain a rejection of the statements as involuntarily obtained. Firstly, it is not the law or practice that an accused person’s legal representation must be present before a statement from him can be accepted as voluntarily obtained nor is it also mandatory that the superior officer who before the attestation was made must be called in evidence. In effect from the proceedings of the trial-within-trial, not only was the procedure followed, the learned trial Judge was right in his conclusion that the statement was voluntarily made and had to be admitted. See Edoho v. State (2004) 5 NWLR (Pt.865) 17 at 51.”
I agree with the findings of my learned brother on all the issues raised by the appellant’s Counsel.
I agree with the reasoning and conclusion of my learned brother in the leading judgment. The appeal is lacking in merit and it is hereby dismissed
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the benefit of reading in advance, the lead judgment just delivered by my learned brother Moore Aseimo Abraham Adumein, JCA.
I am in complete agreement with the reasoning and conclusion reached therein. I therefore affirm the judgment of the trial Court, per Honourable Justice A. N. Awulu, in Case No: AHC/2C/2019 delivered on the 29th day of April, 2020.
Appearances:
S. A. Mustapha, Esq. with him, A. A. Bakare, Esq. For Appellant(s)
Ibrahim Sani Mohammed (SAN, Attorney General of Kogi State) with him, Habib O. Abdullahi, Esq. (Director of Public Prosecutions, Kogi State Ministry of Justice), Maryann O. Otaru, Esq. (Principal Legal Officer, Kogi State Ministry of Justice); O. J. Etubi, Esq. (Legal Officer, Kogi State Ministry of Justice) and Nima Rabiu, Esq. (Legal Officer, Kogi State Ministry of Justice) For Respondent(s)
