VICTOR v. STATE
(2020)LCN/15917(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Wednesday, March 25, 2020
CA/E/53C/2019
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
DICKSON VICTOR APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
PROOF OF CONFESSIONAL STATEMENT.
The law is settled that where a confessional statement is proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, such confession will suffice to ground a conviction regardless of the fact that the maker has retracted or resiled from the statement at the trial. Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
OBJECTION TO A CONFESSIONAL STATEMENT.
The law is settled that the proper time to raise an objection to the admission of a confessional statement is when it is sought to be tendered and not when it had been admitted without objection. See STATE V. MUSA (2019) LPELR-47541(SC) AT 12. TOPE V. STATE (2019) 15 NWLR (PT.1695) 289. PHILIP V. STATE (SUPRA) AT 535-536 (G-E). Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
IDENTIFICATION OF VOLUNTARY CONFESSION.
The law is settled that where the accused identified himself by a voluntary confession, a formal identification parade is not necessary. See NOMAYO V. STATE (2018) LPELR-44729 (SC) at pages 12-13. OLUMUYIWA v. STATE (2019) LPELR-46387(CA) AT 24-26 PARAS. (F-B). ALAO V. STATE (2019) NWLR (PT.1702)501 AT 522 (B-D). Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State sitting in Ivo Division delivered on the 5th day of May, 2017 in Charge No. HSK/9c/2015. The Appellant was arraigned on a one count charge of armed robbery under Section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, R11 Vol.14 Laws of the Federation of Nigeria, 2004.
The prosecution’s case was that the Appellant while armed with a locally made pistol at Federal University of Agriculture, Ishiagu, Ebonyi State robbed Omini Moses of his two laptop computers, one blackberry phone, two Nokia Handsets and two Tecno handsets. The prosecution called two witnesses and tendered two (2) exhibits to wit: (1) Finger Print or Finger impression of the Appellant as exhibit “A” and (2) The confessional statement of the appellant made at the State CID, Abakaliki as exhibit “B”. The Appellant testified in his own defence, called one other witness and tendered the Police Investigation Report as exhibit “C”. The Court below delivered a considered judgment. The Appellant was convicted and sentenced to death.
Being aggrieved by the judgment, the appellant filed a notice containing four grounds of appeal on 3rd July, 2017. The grounds of appeal without their particulars are as follows:
GROUND 1
“The learned trial judge erred in law and thereby occasioned a miscarriage of justice when he relied on the self-contradictory and highly contradicted evidence of the prosecution to convict the appellant of the offence of armed robbery.
GROUND 2
The learned trial judge erred in law and thereby occasioned a miscarriage of justice when the Court proceeded to convict the Appellant of the offence of armed robbery when there was not any shred of evidence that anything was stolen from the complaint.
GROUND 3
The learned trial Court judge erred in law and thereby occasioned a miscarriage of justice when the Court proceeded to convict the Appellant despite the glaring absence of critical and material evidence necessary in determining the culpability of the appellant in the offence charged.
GROUND 4
The judgment of the learned trial Court convicting the Appellant is unwarranted, unreasonable and cannot be supported having regard to the evidence.”
The record of appeal was transmitted to this Court on 6th June, 2019. It was deemed as properly compiled and transmitted on 11th March, 2020. Consequently, the Appellant’s brief of argument filed on 6th June, 2019, the Respondent’s brief of argument filed on 24th June, 2019 and Appellant’s reply brief filed on 14th August, 2019 were all deemed as properly filed and served on the same day.
The Appellant formulated the following issues for determination:
1. Whether the Trial Court was not wrong to have convicted the Appellant of the offence of armed robbery and sentenced him to death by hanging whereas the necessary ingredients required by the Law to be established by the prosecution were not met. (GROUNDS ONE, TWO AND THREE)
2. Whether the decision of the Trial Court in convicting the Appellant of the offence of armed robbery and sentencing him to death by hanging is not unwarranted, unreasonable and cannot be supported having regard to the evidence adduced. (GROUND FOUR).
The Respondent formulated the following issue for determination:
Whether considering the credible evidence adduced in the trial Court, the prosecution established all the essential ingredients of the offence of armed robbery and proved same against the Appellant beyond all reasonable doubt.
I have considered the issues formulated for determination by both parties, the sole issue thrown up for determination in this appeal is whether the prosecution adduced sufficient, credible and compelling evidence to warrant the conviction of the Appellant by the trial Court.
The Appellant’s contention is that the trial Court was wrong to have convicted the Appellant when the prosecution failed woefully to prove the ingredients of the offence of armed robbery against the appellant beyond reasonable doubt for the following reasons:
“a. The prosecution did not tender in evidence before the Trial Court any of the alleged stolen items from the PW 1.
b. The prosecution did not even tender in evidence before the Trial Court any receipt with respect to any of the alleged stolen items.
c. The prosecution failed to tender in evidence before the Trial Court any search warrant to show the items allegedly recovered from the house of the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
d. The prosecution also failed to tender in evidence before the trial Court the alleged bond releasing the alleged stolen items to the PW1.
e. The Appellant in his oral testimony before the Trial Court (page 51 of the record) stated clearly that the police striped him naked, blind folded him and took him to his hostel where they searched the Appellant’s room and found nothing, yet, the prosecution failed to establish anything to the contrary to rebut the Appellant’s claim in (e) above and or the submission in (a) – (d) above.”
On the ingredients of armed robbery, counsel referred to BOTU V. STATE (2018) 3NWLR (PT.1607) 430 AT F-H. F.R.N. V. USMAN (2012) 8 NWLR (PT. 1301) 157. The appellant argued that assuming without conceding that the prosecution proved beyond reasonable doubt that the alleged robbery happened and that same was an armed robbery, the prosecution still failed to prove that the Appellant participated in the said robbery or that he is one of the robbers as none of the prosecution witnesses, PW1 and PW2 identified the appellant as the robber or one of the robbers at the earliest opportunity. He referred to NDIDI V. STATE (2007) 13 NWLR (PT. 1052) 633 AT 651. It is submitted that an identification parade ought to have been conducted as the instant case is on all fours with the circumstances laid down by the Court in OSUAGWU V. STATE (2013) 5 NWLR (PT. 1347) PP 381-382 PARAS H-C. OCHIBA V. STATE (2011) 48 NSCQRI @ PAGES 32-33 and STATE V. SALAWU (2011) 48 NSCQR 290 @PAGES 335-336. RABIU V. STATE (2010) 10 NWLR (PT. 1201) P 12. (PAGE 38 LINES 4 AND 5 OF THE RECORD). It is further submitted that the identification parade conducted in this case where PW1 purported to have identified the appellant as one of the robbers that robbed PW1, on the 21st day of June, 2015 after the appellant was arrested by the police and brought to the PW1, for identification is improper, unfounded in law and does not amount to proper identification parade at all,
It is submitted that before a Court can place reliance on a confessional statement which was retracted by the accused person, the statement must be subjected to the tests laid down by law. Counsel referred to BELLO V. C.O.P (2018) 2 NWLR (PT. 1603) PP 319-320 PARAS E-A. It is the contention of the appellant that the statement failed the requisite tests as there is no other evidence before the Trial Court to the effect that there was a robbery, that it was an armed robbery and that the Appellant is one of the robbers that allegedly attacked PW1 on the 21st day of June, 2015 and even the administrative procedure of taking an accused person who is alleged to have made a confessional statement to a Superior Police Officer for attestation was not followed in the instant case as the prosecution did not prove before the Trial Court that the police (i.e PW2) took the Appellant to any Superior Police Officer for attestation which fact would have weighed on the Trial Court before placing heavy reliance on exhibit “B”. Counsel referred to R. V. UGWUOGA (1943) WACA, DIBIE V. STATE (2007) 9 NWLR (PT. 103) P. 30. Section 29(2) (a), (b) and (3) of the Evidence Act 2011.
In response to the Appellant’s contentions, the Respondent argued that the prosecution proved its case against the appellant beyond reasonable doubt by direct evidence, circumstantial evidence and confessional statement. It is submitted that the doctrine of recent possession suffices to find a person guilty of the commission of a crime even where such a person was not identified at the scene of the crime and in this case, PW1 had identified the Appellant the following morning after the robbery incident and it was that identification that led to the search of the Appellant’s house where the stolen items were recovered. Counsel referred to OKIEMUTE v. STATE (2016) LPELR-40639(SC). It is further submitted that where, as is this case, a confessional statement is direct, positive and admits all or some of the elements of the offence charged and the Court is satisfied that it was voluntarily made, the Court can rely on it to ground a conviction even though retracted at the trial. The question of involuntariness arises only where the accused person alleges that he was subjected to torture in the making of a particular confessional statement, which was never the case with Exhibit B. Counsel referred to DANJUMA v. STATE (2019) LPELR-47037 (SC). OFORDIKE V. STATE (2019) 5 NWLR (Pt. 1666) 395 AT P.424, PARA. G.
In reply to the Respondent’s submissions, the Appellant submitted that the doctrine of recent possession does not apply in the instant case based on the facts and evidence adduced before the Trial Court. It is finally submitted that the Appellant retracted Exhibit B and the Respondent’s Counsel during cross examination failed to establish that the Appellant made Exhibit B in his own handwriting and in long hand.
RESOLUTION
By virtue of Section 36 (5) of the Constitution and Section 135 of the Evidence Act, the burden of proving the guilt of an accused person in respect of the offence for which he is charged is on the prosecution and the standard of proof is beyond reasonable doubt. Section 135 of the Evidence Act, 2011 provides that:
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.
See also PHILIP V. THE STATE (2019) NWLR (PT. 1690) 509 AT 533-534 (G-G). STATE V. SUNDAY (2019) LPELR-46943 (SC) AT 16-17 (F-A). In order to discharge the burden of proof in a criminal proceedings beyond reasonable doubt, the prosecution must prove all the elements of the offence charged by cogent and credible evidence.
In the case on appeal, the appellant was charged for armed robbery under Section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provision) Act Cap R11 Laws of the Federation, 2004 which provides that:
“1. (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
(2) If-
(a) any offender mentioned in subsection (1) of this section is armed with any firearms 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.”
Thus the prosecution had the burden to prove the following elements of the offence beyond reasonable doubt by cogent, credible and compelling evidence: (a) That there was a robbery or series of robberies. (b) That each robbery was an armed robbery. (c) That the accused person or appellant was one of those who took part in the armed robbery. See OGOGOVIE V. STATE (2016) LPELR-40501 (SC) AT 10-11(F-B). STATE V AJAYI (2016) LPELR-40663 (SC) AT 26-27 (F-C). ORISA V. STATE (2018) LPELR-43896 (SC) AT 53-54 (B-A). OPEYEMI STATE (2019) LPELR-48764 (SC) AT 19 (A-D). The prosecution can discharge the burden of proof beyond reasonable doubt by (a) evidence of eye witness or witnesses (b) Voluntary confessional statement of the accused or accused persons, and (c) circumstantial evidence. See AKINSUWA V. STATE (2019) LPELR-47621 (SC) AT 23-25. BASSEY V. STATE (2019) LPELR -46910 (SC) AT 23-24 (C-B). STATE V. SUNDAY (SUPRA).
The prosecution clearly relied on the confessional statement of the Appellant. The trial Court did a detailed analysis and evaluation of the entire evidence adduced by both parties and held that there is no doubt that the appellant made the statement voluntarily and that the statement passed all the tests laid down by the law.
The law is settled that where a confessional statement is proved to have been made voluntarily and it is positive, unequivocal and amounts to an admission of guilt, such confession will suffice to ground a conviction regardless of the fact that the maker has retracted or resiled from the statement at the trial. See KAYODE v. THE STATE (2016) LPELR-40028 (SC) (P. 41, Paras. C-E). The Appellant’s counsel attacked the reliance placed by the trial Court on the confessional statement of the Appellant on various grounds. The most important is that the statement was not shown to have been made voluntarily. The record of appeal at page 44 shows that when the prosecution sought to tender the Appellant’s statement as an exhibit, the Appellant simply said the statement was not his own. The trial Court in tandem with the law ruled that the retraction of the statement does not affect its admissibility and that issue is the weight the document attracts. It was admitted as exhibit B. The law is settled that the proper time to raise an objection to the admission of a confessional statement is when it is sought to be tendered and not when it had been admitted without objection. See STATE V. MUSA (2019) LPELR-47541(SC) AT 12. TOPE V. STATE (2019) 15 NWLR (PT.1695) 289. PHILIP V. STATE (SUPRA) AT 535-536 (G-E). In BASSEY V. STATE (2019) LPELR – 46901 (SC) AT 28-31 (F-A), the Supreme Court Per PETER-ODILI, J.S.C. held that :
“…the voluntariness and the objection thereto on an extra judicial statement must come at the time of the tendering of the statement as thereafter becomes too late for the objection on voluntariness to be addressed and if the concern now brought up so late is a resiling of the statement i.e. that the appellant had not made the statement, the admissibility is not affected rather what would be in consideration is the weight to be attached to the statement which would be admitted. See Oseni v The State (2012) Vol. 208 LRCN 151 at 183 and 184 A. The Court in considering the principle on admissibility of extra-judicial statement or confession of an accused person held inter alias “Another principle of the criminal law which has been consistently repeated in our law report is: at what time does an accused person object to the admissibility of a statement credited to him as a confession. This Court in its several decisions answered the question in the following words: the question of the voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statement was tendered (sic) without any objection from the defence. None of the prosecution witnesses were cross-examined as to their involuntariness. It was until the prosecution had closed its case and the appellants were testifying in their own defence in the witness box that the issue was belatedly raised. The trial judge was right to dismiss this aspect of the defence case as an afterthought having regard to the qualitative evidence tendered by the prosecution and accepted by the trial Court on the subject”. Also my lords, in the case of Egharevba v The State (supra) at page 213 A-F, this Court reiterated the above principle when it held inter alia as follows: “Once a confessional statement is tendered and admitted without objection by the defence, it is good evidence and can be relied upon. The Court can even utilize it alone, place a conviction without corroboration even if the appellant had retracted the making thereof”. At the defence stage where the circumstances surrounding the making of the statement of the Appellant is being raised is too late and would not affect the admissibility of the confessional statement Exhibit B. See IGRI V STATE (2012) 6-7 NJSC (PT. lll) PAGE 107 AT 113-114; AYINDE V THE STATE (1972) 3 SC 153 AT 158-159, NWOKORONKWO V THE STATE (1972) 1 SC 135; ARCHIBONG V THE STATE (2006) 5 SC (PT.III) 1; PRINCEWILL V STATE (1994) 6 NWLR (PT.353) 703.”
The Appellant did not raise the issue of torture and voluntariness of exhibit B when it was tendered through PW2 who said the Appellant actually wrote the statement in his own hand writing. The Appellant was represented by counsel who knew the implication of admission of a confessional state without an objection to its voluntariness. The appellant through his counsel had an ample opportunity and time to have challenged the voluntariness of Exhibit B when it was sought to be tendered but chose not to object. The allegation that the appellant was tortured and forced to make the statement is an afterthought and was rightly rejected by the trial Court. In OGHENEOVU V. F.R.N. (2019) 13 NWLR (PT.1689) 235 AT 255 (F-G) the Supreme Court held that a voluntary confessional statement made by an accused person which is tendered and admitted without objection does not need corroboration. However, in the instant case, the trial Court yielded to the advice of the Court in IFEANYI V.FRN (2018) LPELR – 43941 (SC) AT 45-47 by subjecting the statement of the Appellant to the tests laid down in a plethora of authorities. In that case the Supreme Court held that:
“The trial Court should not, however, act on the confession without first testing the truth thereof. See: Jafiya Kopa v. The State (1971) 1 All NLR 150; Jimoh Yesufu v. The State (1976) 6 SC 167; Obosi v. The State (1965) NMLR 119; R. v. Omokaru (1941) 7 WACA 146. But so long as the Court is satisfied with its truth a confessional statement alone is sufficient to ground and support a conviction without corroboration. R. V. SYKES (1913) 8 CAR 233; OBOSI V. THE STATE (SUPRA); YESUFU V. THE STATE (SUPRA). The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be it slight, or circumstances which make it probable that the confession is true. In R. V. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to included: 1. Whether there is anything outside the confession to show that it is true. 2. Whether the statement is corroborated, no matter how slight. 3. Whether the facts contained therein, so far as can be tested, are true. 4. Whether the accused person had the opportunity of committing the offence. 5. Whether the confession was consistent with other facts which have been ascertained and proved in the matter. 6. Whether the confession of the accused person was possible. The above tests have been accepted and consistently applied by this Court over a long period of time in a number of cases. See: IKPASA V. ATTORNEY GENERAL OF BENDEL STATE (1981) 9 SC 7; ONOCHIE V. THE REPUBLIC (1966) NMLR 307; AKPAN V. THE STATE (1992) 6 NWLR (PT.248) 439 AT 460.”
The statement clearly passed the above tests as there were cogent and credible pieces of evidence outside the statement which confirmed that the confession is true.
PW2 testified that some of the items stolen from PW1 were recovered from the appellant’s house. The presumption of the law where a stolen property is found in possession of a person soon after the theft is that he is either the thief or that he received it knowing it to have been stolen unless he can account for his possession. See Section 167 (a) 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-
(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession”.
See also OGOGOVIE V.STATE (2016) LPELR-40501 (SC) AT 53-57 (D-C). TAIYE V. STATE (2018) LPELR- 44466 AT 20 (B-C). I agree with the Appellant’s counsel that the prosecution could have tendered the items stolen from the PW 1, the receipts of the stolen items, the search warrant to show the items recovered from the house of the appellant and the bond signed by PW1 when the stolen items were released to him. The tendering of those items or documents would have established all the elements of armed robbery beyond all doubt. However, the law is settled that standard of proof in criminal cases is beyond reasonable doubt which does not mean beyond all shadows of doubt or proof to the hilt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. See ANKPEGHER V. STATE (2018) LPELR-43906 (SC) AT 10-12. The evidence of PW2 that some of the stolen items were recovered from the appellant’s house corroborated the confessional statement of the appellant and confirmed the evidence of PW1 that he was robbed of those items and that the robbers were armed. It is desirable that the stolen items recovered from an accused person be tendered in evidence during his trial. However, it is not a mandatory requirement of the law for conviction on a charge of armed robbery especially where there are other cogent, credible and compelling pieces of evidence such as voluntary confessional statement of the accused person which has been subjected to the required test and found to be true. See BISI v. STATE (2018) LPELR-44281(CA) AT 30 (A). Terlumun Giki v. The State (2014) LPELR – 22722 (CA). JOSEPH DANIEL UWA V. THE STATE (2013) LPELR – 20329 (CA). SIMON v. THE STATE (2017) LPELR-41988(SC) at pages 12-13; (2017) 8 NWLR (Pt. 1566) 110 at 123.
The Appellant’s counsel emphasised the failure to conduct a formal identification parade for a proper identification of the robbers who robbed PW1 of his properties. Proper and clear identification of the accused person as the robber or one of the robbers who carried out an armed robbery is one of the elements of the offence of armed robbery that must be proved beyond reasonable doubt by cogent and compelling evidence. It is necessary to conduct a formal identification parade where an accused person is not arrested at the scene of crime and the accused is not well known to the victim or where the circumstances of the commission of the crime were such that the victims might not have been in the correct frame of mind to take note of any distinguishing features that could aid in identifying the accused or the victim only saw the accused person for a short time. See OGU V. C.O.P. (2017) LPELR- 43832 (SC) AT 29-30 (A-E). However, the law is settled that where the accused identified himself by a voluntary confession, a formal identification parade is not necessary. See NOMAYO V. STATE (2018) LPELR-44729 (SC) at pages 12-13. OLUMUYIWA v. STATE (2019) LPELR-46387(CA) AT 24-26 PARAS. (F-B). ALAO V. STATE (2019) NWLR (PT.1702)501 AT 522 (B-D). The Appellant having identified himself by his confessional statement which was corroborated by the recovery of the stolen items from his house the next day after the robbery, there was no need for a formal identification parade.
In view of the foregoing, I resolve the issue thrown up for determination against the appellant. The trial Court did a proper evaluation of the evidence adduced and reached an unassailable decision that the prosecution proved the three elements of the offence of armed robbery beyond reasonable doubt as required by law. This appeal fails. The judgment of the High Court of Ebonyi State delivered in charge no. HSK/9C/2015 by HON. JUSTICE I.P. CHIMA ON 5TH MAY, 2017 is hereby affirmed. The conviction and sentence passed on the appellant is hereby affirmed.
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I hereby dismiss it.
I equally adopt the consequential orders in the lead judgment as mine.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA just delivered. I agree with the reasoning and conclusion contained therein.
For the detailed reasons adumbrated in the lead judgment, I too, therefore, find no merit in this appeal and I accordingly dismiss it.
The judgment of the trial Court is hereby affirmed.
Appearances:
Oliver I. Ugwu holding the brief of S. O. Ononye For Appellant(s)
Roy O. U. Nwaeze, with him, Nnachi U. Okoro and Franscisco Enyi For Respondent(s)