YAHAYA v. STATE
(2021)LCN/15883(CA)
In The Court Of Appeal
(ILORIN JUDICIAL DIVISION)
On Friday, September 10, 2021
CA/IL/28C/2020(1)
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Between
AHMED YAHAYA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE STANDARD OF PROOF IN CRIMINAL MATTERS
In criminal matters, the standard of proof is beyond reasonable doubt. This means that it is not enough for the Prosecution/Respondent to suspect a person of having committed a criminal offence. There must be evidence, which identified the person accused with the offence, and that it was his act, which caused the offence. See AIGBADION VS. THE STATE (1997)1 NWLR PT. 479, PG. 1; AKINYEMI VS. THE STATE (2000) 6 NWLR PT. 607, PG. 449; AIGBADION VS. THE STATE (2000) 4 SC PT. 1, PG. 15.
The Prosecution has the burden of proving the guilt of the Accused Person. This can be proved by:
a) The confessional Statement of the Accused Person;
b) Circumstantial evidence; and
c) Evidence of eye-witness of the crime.
See IGABELE VS. THE STATE (2006) 6 NWLR PT. 975, PG. 100. PER NDUKWE-ANYANWU, J.C.A.
WHETHER OR NOT A CRIME CAN BE PROVED BY THE CONFESSIONAL STATEMENT OF AN ACCUSED PERSON
It is true that a crime may be proved by the Confessional Statement of the Accused Person. By virtue of S.27(1) of the Evidence Act, a confession is an admission made at any time by a person charged with a crime stating or suggesting by inference that he committed that crime. See GIRA VS. THE STATE (1996) 6 NWLR PT. 443, PG. 375.
The Law Reports are replete with the stance that there is no evidence stronger than a person’s own admission or confession. Such a confession is admissible in evidence. Although, an Accused Person can be convicted solely on his Confessional Statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true.
See DIBIE VS. THE STATE (2007) 9 NWLR PT. 1038, PG. 30; NWAEBONYI VS. THE STATE (1994) 5 NWLR PT. 345, PG. 130.
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 with its truth. 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. See SOLOLA VS. THE STATE (2005) 11 NWLR PT. 937, PG. 460; NWAEZE VS. THE STATE (1996) 2 NWLR PT. 428, PG. 1; AKINMOJU VS. THE STATE (2000) 4 SC PT. 1, PG. 64. PER NDUKWE-ANYANWU, J.C.A.
THE POSITION OF LAW WHERE AN ACCUSED PERSONS CONFESSIONAL STATEMNET IS DENIED OR RETRACTED
It has been held in a plethora of cases that where a Confessional Statement is denied or retracted, it is desirable to have corroborative evidence no matter how slight before convicting on such statement. The Court has a duty to test the veracity or otherwise of the statement by comparing it with other facts outside the statement to see whether they support, confirm or correspond with the statement. In a way, the Court must scrutinize the statement to test its truthfulness or otherwise in line with available evidence. See KAZEEM VS. THE STATE (2009) ALL FWLR PT. 465 PG. 1749; DAWA VS. THE STATE (1980) 8-11 SC PG. 236; IKPASA VS. A-G BENDEL (1981) 9 SC PG. 7; BOLANLE VS. THE STATE (2005) 7 NWLR PT. 925, PG. 431; OBISI VS. CHIEF OF NAVAL STAFF (2002) 2 NWLR PT. 751, PG. 400. PER NDUKWE-ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State, delivered on 22nd January, 2020 by S. D.KAWU, C. J. The Court found the Appellant guilty and convicted him among others to ten (10) Years imprisonment with a fine of One Hundred Thousand Naira (N100,000.00) for the offences of Criminal Conspiracy, Trafficking, Selling and Buying of Human parts.
The Appellant was naturally dissatisfied with the conviction and sentence, and filed his Notice with Four (4) Grounds of Appeal.
The fact of this case is that, the Appellant was one of the seven (7) Persons charged with the following offences:
COUNT ONE
“That you AZEEZ YAKUB, AISHAT YUNUSA, AHMED YAHAYA, SOLIU AYINDE, ABDULGANIYU BAMIDELE, ABDULRASAK BABAMALE and LUKMAN SAKA on or about 5th day of October, 2018 at No. 20, Opa Compound, Adeta, Alfa Yahaya Area, Ilorin, Kwara State within the jurisdiction of this Honourable Court conspired to commit an illegal act to wit found in unlawful possession of human parts contrary to Section 9 and Punishable under Section 12 of the Kwara State Prohibition of dealing in Human Parts Law, Kwara State of Nigeria Law No. 4 of 2018.
COUNT TWO
“That you AZEEZ YAKUB, AISHAT YUNUSA, AHMED YAHAYA, SOLIU AYINDE, ABDULGANIYU BAMIDELE, ABDULRASAK BABAMALE and LUKMAN SAKA on or about 5th day of October, 2018 at No. 20, Opa Compound, Adeta, Alfa Yahaya Area, Ilorin, Kwara State within the jurisdiction of this Honourable Court conspired to commit an illegal act of trafficking, selling and buying human parts contrary to Section 1 and punishable under Section 12 of the Kwara State Prohibition of dealing in Human Parts Law, Kwara State of Nigeria Law No. 4 of 2018.
COUNT THREE
“That you AZEEZ YAKUB, AISHAT YUNUSA, AHMED YAHAYA, SOLIU AYINDE, ABDULGANIYU BAMIDELE, ABDULRASAK BABAMALE and LUKMAN SAKA on or about 5th day of October, 2018 at No. 20, Opa compound, Adeta, Alfa Yahaya Area, Ilorin, Kwara State within the jurisdiction of this Honourable Court were found in unlawful possession of human parts contrary to Sections 1, 4 and 7 and punishable under Section 12 of the Kwara State Prohibition of dealing in Human parts Law, Kwara State of Nigeria Law No. 4 of 2018.”
The Appellant was arrested when 1st Accused Person made incriminating statements where he mentioned that the Appellant was one of his customers in the trade of trafficking, selling and buying of Human parts contrary to Sections 1, 7, 9 and punishable under Section 12 of the Kwara State Prohibition of Dealing in Human Parts Law, 2018. He was subsequently arraigned with the other Accused Persons on 18th February, 2019. After a full trial, the learned trial Judge convicted and sentenced him to ten (10) Years imprisonment with a fine of One Hundred Thousand Naira (N100,000.00). He was dissatisfied hence this appeal.
The Notice was amended vide the Amended Notice filed on 12th February, 2021 with Five (5) Grounds of Appeal. The Appellant filed his Appellant’s Brief of Argument on 22nd February, 2021 and articulated Four (4) Issues for determination.
The Issues are as follows:-
1. Whether the learned trial chief Judge was right when he convicted and sentenced the Appellant to 10 years imprisonment and fine for the offence of trafficking, selling and buying of human parts.
2. Whether the learned trial Chief Judge was right when he convicted and sentenced the Appellant to 10 years imprisonment and a fine for the offence of criminal conspiracy to traffick, sell and buy human parts.
3. Whether the learned trial chief Judge was right when he admitted and subsequently relied on the Appellant’s extra-judicial statement to convict and sentence him to 10 years imprisonment and fine.
4. Whether the learned trial chief Judge was right when he relied on the Respondent’s weak, unsubstantiated and unproven evidence to convict and sentence the Appellant to 10 years imprisonment and fine.
The Respondent in response filed its Respondent’s Brief of Argument on 16th June, 2021 but deemed properly filed and served on 22nd June, 2021. The Respondent also adopted the four (4) Issues donated by the Appellant for determination.
ISSUE 1:
Learned Counsel for the Appellant submitted that the Appellant did not know any of the Accused Persons he was charged with. Counsel argued that the Respondent did not discharge the burden placed on it that the Appellant conspired to traffic, sell and buy human parts as required by law. The standard of proof in criminal cases is proof beyond reasonable doubt and does not shift. See EHIMIYEIN VS. THE STATE (2016) 16 NWLR PT. 1531, PG. 173; ONAFOWOKAN VS. THE STATE (1987) 3 NWLR PT. 61, PG. 538; IKEM VS. THE STATE (1985) 1 NWLR PT. 2, PG. 378; MOSES IVA VS. THE STATE (2010) 4 NWLR PT. 1184, PG. 217.
It is the duty of the Respondent to establish all the ingredients of the offence charged. See Section 135(1) of the Evidence Act LFN, 2011 and Section 36(5) of the 1999 Constitution. See also ANI VS. THE STATE (2009) 10 NWLR PT. 1168, PG. 443. It is not also the duty of Appellant to prove his innocence. It is the duty of the Respondent to prove his guilt. See BELLO VS. COMMISSIONER OF POLICE (2018) 2 NWLR PT. 1603, PG. 267; MOHAMMED VS. THE STATE (2017)13 NWLR PT. 1583, PG. 386; ISMAIL VS. THE STATE (2008) 15 NWLR PT. 1111.
Section 1 of the Kwara State Prohibition of Dealing in Human Parts Law, 2018 provides that:
“Whoever buys, sells or has in his possession for the purpose of buying or selling or trafficking any human parts commits an offence”
In proof, the Respondent had to prove (1) That the Appellant trafficked, sold and bought human parts; (2) That human parts were found in possession of the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
None of the Respondent’s witnesses; PW1, PW2, PW3 and PW4 adduced credible evidence during the trial that Appellant indulged in such criminal acts. To buttress this point, PW4 said during cross-examination:
“He was not found in possession of any human parts when I arrested him… He was never found trading in human parts when I arrested him”.
PW4 also said in his cross-examination:
“Yes, Ahmed Yahaya is not in the statement of 1st Accused. His phone number is not there … The name of 3rd Accused is Ahmed Yahaya and not Eko”.
Counsel argued that PW4 wanted to rope in the Appellant at all cost. See SUBERU VS. THE STATE (2010) 8 NWLR PT. 1197, PG. 586; NWADINOBI VS. THE M. C. C. (NIGERIA) LIMITED (2016) 1 NWLR PT. 1494, PG. 427.
Appellant denied any involvement in trafficking, selling and buying of human parts. Also, Appellant stated that he did not know the 1st Accused Person who ostensibly named the Appellant and phone number in Exhibit P55. Appellant also denied that his name was Eko and also the phone No. referred to him.
Counsel argued that the Appellant was arrested, detained and arraigned on mere suspicion. See OKEREKE VS. THE STATE (NO. 1) (2016) 5 NWLR PT. 1504, PG. 69; AIGBADION VS. THE STATE (2000) 7 NWLR PT. 666, PG. 704 where the Court held that:
“But suspicion, no matter how grave cannot amount to proof that the appellant committed the offence for which he was charged. What this means is that it is not enough for the prosecution to suspect a person of having committed a criminal offence, there must be evidence which identified the person accused with the offence and that it was his act which caused the offence”
See IBRAHIM VS. THE STATE (2018) 1 NWLR PT. 1600, PG. 279; ONUOHA VS. THE STATE (1995) 3 NWLR PT. 385, PG. 590; ANAZODO VS. AUDU (1999) 4 NWLR PT. 600, PG. 530.
Counsel submitted that the evidence against the Appellant is at best hearsay evidence as retold by the 1st Accused Person.
Counsel urged the Court to hold that the evidence fell short of what is required in criminal cases, proof beyond reasonable doubt, OMOLEYE VS. THE STATE (2014) 5 NWLR PT. 1394, PG. 232; UBANI VS. THE STATE (2001) 4 NWLR PT. 807, PG. 51 where the Court held thus:
“In criminal trials, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other reasonable state of affairs other than the guilt of defendants as the defendants shall be entitled to acquittal of the crime charged, if the conclusion for conviction is not the only reasonable interpretation of which the facts adduced are susceptible”.
Finally, Counsel urged the Court to resolve this Issue in favour of the Appellant.
In response, the Respondent’s Counsel submitted that proof beyond reasonable doubt is not proof beyond a shadow of doubt. See OTEKI VS. A.G. BENDEL STATE (1986) 6 NWLR PT. 24; MBACHU VS. THE STATE (2018) 17 NWLR PT. 1649, PG. 395; JIYA VS. THE STATE (2020) 13 NWLR PT. 1740, PG. 159.
Counsel argued that the Appellant was convicted of criminal conspiracy and illegal act of trafficking, selling and buying human parts but not for being in possession of human parts. Counsel referred the Court to Exhibit P57 where the Appellant confessed to the crime. Also that the learned trial Judge evaluated all the material evidence placed before it in reaching his verdict. See IDAKWO VS. N. A. (2004) 2 NWLR PT. 857, PG. 249. It is only where the trial Judge fails to evaluate the evidence placed before it will the findings be regarded as perverse. See OGUNJEMILA VS. AJIBADE (2010) 11 NWLR PT. 1206, PG. 559; TEGWONOR VS. THE STATE (2008) 1 NWLR PT. 1069, PG. 630.
Counsel submitted that the evidence of PW1, PW2, PW3 and PW4, Exhibit P55 and Exhibit P57 all go to show that the Appellant was in the business of human parts. Counsel reiterated that the evidence of PW1, PW2, PW3 and PW4 cannot be regarded as hearsay evidence. See OLAOYE VS. THE STATE (2018) 18 NWLR PT. 1650, PG. 21.
Counsel submitted that the mere fact that the Appellant recanted his extra-judicial statement does not make the statement inadmissible. See AKINFE VS. THE STATE (1987) 7 SCNJ PT. II, PG. 226.
Counsel finally urged the Court to resolve this Issue in favour of the Respondent.
ISSUE 2:
Learned Counsel for the Appellant submitted that the trial Judge based its findings and conclusion on mere speculative assumptions not borne out of evidence on record. SeeJIMOH VS. THE STATE (2012) 3 NWLR PT. 1286, PG. 177.
Counsel argued that the Respondent failed to prove or establish that there was an agreement between the Appellant and others to commit an offence and that the Appellant took part in the alleged conspiracy throughout the trial. See GARBA VS. COMMISSIONER OF POLICE (2007) 16 NWLR PT. 1060, PG. 370 where the Court held that:
“(a) To prove conspiracy and be able to achieve conviction, the prosecution must prove, inter alia that there was –
(b) Specifically that each of the accused individually participated in the conspiracy”
Also for the inference that the Appellant committed the offence alleged against him to be drawn from the surrounding circumstances, such circumstances must be positive direct, unequivocal and must irresistibly lead to the inference that it is the Appellant that committed the crime. SeeAKPA VS. THE STATE (2008) 14 NWLR PT. 1106, PG. 72; ADEPETU VS. THE STATE (1998) LPELR–135; FATOYINBO VS. A.G. W.N. (1996) WNLR PG. 4; UDEDIBIA VS. THE STATE (1976) 11 SC PG. 133; ADIE VS. THE STATE (1980) 1–2 SC PG. 116; OMOGODO VS. THE STATE (1981) 5 SC PG. 5.
Counsel urged the Court to hold that the Respondent did not prove the offence of criminal conspiracy to traffic, sell and buy human parts.
In response, the Respondent referred the Court to Section 9 of the Kwara State Prohibition of Dealing in Human Parts Law, No. 4 of 2018 which provides thus:
“Where two or more persons agree to commit an offence under this law and one or more of such persons do any overt act to effect the objective of the agreement, each shall be guilty of conspiracy to commit that offence”
To sustain a charge of criminal conspiracy, the Respondent ought to establish the followings:-
“a) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means;
b) Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement; and
c) Specifically that each of the accused individually participated in the conspiracy. See THE STATE VS. SALAWU (2012) ALL FWLR PT. 614, 1 AT PAGE 29; ADEKUNLE VS. THE STATE (1989) 12 SCNJ 184; NWOSU VS. THE STATE (2004) ALL FWLR (PT. 218) 916.
Counsel argued that the best evidence of conspiracy is usually obtained from one of the conspirators. In this case, from Azeez Yakub, 1st Accused Person and Aishat Yunusa, 2nd Accused Person at the trial. These two in their extra-judicial statement narrated the details of the conspiracy. See AKINLOLU VS. THE STATE (2018) ALL NWLR PT. 927, PG. 82.
From Exhibit P55, where Azeez Yakub, 1st Accused Person gave the names and telephone numbers of his co-conspirator and the Appellant was referred to as Eko. Conspiracy can only be inferred from the criminal acts of the parties including evidence of complicity. See IKWUNNE VS. THE STATE (2000) 5 NWLR PT. 658, PG. 550; OSONDU VS. F.R.N. (2000) 12 NWLR PT. 682, PG. 483.
Counsel submitted that with the evidence of PW1, PW2, PW3 and PW4 and the Exhibit P55 and Exhibit P57 led the trial Court to infer that the Appellant and others were in a conspiracy to buy, sell, traffic in human parts.
Counsel therefore urged the Court to resolve this Issue in favour of the Appellant.
ISSUE 3:
Appellant’s Counsel submitted that the trial Court was wrong to have admitted Exhibit P57 the Extra-Judicial Statement of the Appellant and relied on it to convict the Appellant.
The Appellant denied making Exhibit P57 voluntarily and there was no evidence to corroborate the statement of the Appellant Exhibit P57. See OJO VS. F.R.N. (2008) 11 NWLR PT. 1099, PG. 467; OGUDO VS. THE STATE (2011) 18 NWLR PT. 1278, PG. 1 where the Court held:
“A Court can convict on the confessional statement of an accused person but before this is properly done the trial Judge should evaluate the confession and testimony of the accused person and ask himself the following questions:
(a) Is there anything outside the confession to show that it is true?
(b) Is it corroborated?
(c) Are the relevant statements made in it of facts true as far as they can be tested?
(d) Did the accused person have the opportunity of committing the offence charged?
(e) Is the confession possible?
(f) Is the confession consistent with other facts which have been ascertained and have been proved? See KANU & ANOR KING (1952) 14 WACA P.30; MBENU V. STATE (1988) 3 NWLR (PT. 84) P.615; STEPHEN V. STATE (1986) 5 NWLR (PT. 46) P. 978”
See also AKINDIPE VS. THE STATE (2016) 15 NWLR PT. 1536, PG. 470; EFFIONG VS. THE STATE (2017) 2 NWLR PT. 1549, PG. 203.
Counsel argued further that there is no evidence outside the Appellant’s Statement Exhibit P57 that can ground his conviction for the offence of trafficking, selling and buying of human parts.
There is nothing on record also to show that Exhibit P57 was made voluntarily. PW4 in his testimony agreed that it was the 1st Accused Person who proffered the names and telephone numbers of the other Accused Persons.
Surprisingly, the name of the Appellant is not on the list PW4 claimed that 1st Accused Person gave him. Counsel argued that the contradiction in the testimony of PW2 is enough to create doubt in the mind of the trial Judge. See EROMOSELE VS. F. R. N. (2017) 1 NWLR PT. 1545, PG. 55.
Counsel argued further that the trial Court had a duty to appraise and evaluate all material evidence placed before the Court. SeeADAMU VS. THE STATE (1991) 4 NWLR PT. 187, PG. 53; NWOKEARU VS. THE STATE (2010) 15 NWLR PT. 1215, PG. 1. Counsel therefore, urged the Court to resolve this Issue in favour of the Appellant.
In response, the Respondent stated that the Court can admit extra-judicial statement and act on it regardless of the fact that the Appellant resiled on it. See DARLINTON VS. F. R. N. (2019) ALL FWLR PT. 1006, PG. 600; ESSIEN VS. THE STATE (2018) ALL FWLR PT. 939, PG. 1993.
Counsel submitted that the learned trial Judge after appraising all the material evidence placed before him, admitted Exhibits P55 and P57. Also that PW4 corroborated the evidence of the Appellant in P57. See ONYEMAECHI OKOLI VS. THE STATE (2016) Legalpaedia.
Counsel also argued that there was no evidence put forward to show bias or denial of fair hearing. See MAGAJI VS. N. A. (2008) LPELR 1814; ORUGBO VS. U. N. A. (2002) 16 NWLR PT. 792, PG. 175, where the Court held:
“It has become a fashion for litigants to resort to their rights to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Courts must not be given a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of this case”
Counsel urged the Court to resolve this Issue on behalf of the Respondent.
ISSUE 4:
Learned Counsel for the Appellant submitted that proof in criminal matter is beyond reasonable doubt. However, the Respondent did not lead sufficient material evidence to discharge that burden. Where there is doubt, it should be resolved in favour of the Appellant. See AMODU VS. THE STATE (Supra) where the Court held as follows:-
“It is trite that in criminal proceedings, the burden of proof is always on the prosecution and the burden never shifts to prove the guilt of the accused person beyond reasonable doubt. That is, the standard of proof is such that if there is any doubt in relation to any of the ingredient, the doubt is to be resolved in favour of the accused person. See Omogodo V. The State (1981) 5 SC”
AL-MUSTAPHA VS. THE STATE (2013) 17 NWLR PT. 1383, PG. 350; IKUMONIHAN VS. THE STATE (2014) 2 NWLR PT. 1392, PG. 564.
Counsel finally urged the Court to resolve this Issue in favour of the Appellant and allow this appeal.
The Respondent’s Counsel submitted that there were no new Issues raised in this Issue and urged the Court to resolve it in favour of the Respondent and dismiss this appeal.
RESOLUTION:
The Appellant was charged on a three (3) Count Charge with six (6) other Accused Persons for criminal conspiracy, trafficking, buying and selling human parts. He was found guilty on two Counts and sentenced to ten (10) Years imprisonment and a fine of One Hundred Thousand Naira (N100,000.00) only.
In criminal matters, the standard of proof is beyond reasonable doubt. This means that it is not enough for the Prosecution/Respondent to suspect a person of having committed a criminal offence. There must be evidence, which identified the person accused with the offence, and that it was his act, which caused the offence. See AIGBADION VS. THE STATE (1997)1 NWLR PT. 479, PG. 1; AKINYEMI VS. THE STATE (2000) 6 NWLR PT. 607, PG. 449; AIGBADION VS. THE STATE (2000) 4 SC PT. 1, PG. 15.
The Prosecution has the burden of proving the guilt of the Accused Person. This can be proved by:
a) The confessional Statement of the Accused Person;
b) Circumstantial evidence; and
c) Evidence of eye-witness of the crime.
See IGABELE VS. THE STATE (2006) 6 NWLR PT. 975, PG. 100.
In proof, the Respondent called four (4) Prosecution Witnesses and tendered sixty (60) Exhibits.
There were no eye-witnesses to the crime alleged. The Respondent relied on the Confessional Statement of the 1st Accused Person, Exhibit P55 and that of the Appellant Exhibit P57 in proof of their case.
The 1st Accused Person, Azeez Yakub was said to have stated in Exhibit P55 that he was into the business of trafficking, buying and selling human parts. He thereafter, named some people and also gave their phone numbers. The Appellant in this case was not among the people named. However, PW4 in his statement and during cross-examination said that the person called Eko in Exhibit P55 is the Appellant. The Appellant denied the fact that he is not known by that name. The phone number of the said Eko is not his own number.
The Appellant in his evidence in Court denied the name Eko and the phone number said to be that of the said Eko. The Investigative Police Officer did not make further investigation as to the number of the phone. Whether is the truth the phone number belonged to the Appellant?
It is true that a crime may be proved by the Confessional Statement of the Accused Person. By virtue of S.27(1) of the Evidence Act, a confession is an admission made at any time by a person charged with a crime stating or suggesting by inference that he committed that crime. See GIRA VS. THE STATE (1996) 6 NWLR PT. 443, PG. 375.
The Law Reports are replete with the stance that there is no evidence stronger than a person’s own admission or confession. Such a confession is admissible in evidence. Although, an Accused Person can be convicted solely on his Confessional Statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true.
See DIBIE VS. THE STATE (2007) 9 NWLR PT. 1038, PG. 30; NWAEBONYI VS. THE STATE (1994) 5 NWLR PT. 345, PG. 130.
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 with its truth. 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. See SOLOLA VS. THE STATE (2005) 11 NWLR PT. 937, PG. 460; NWAEZE VS. THE STATE (1996) 2 NWLR PT. 428, PG. 1; AKINMOJU VS. THE STATE (2000) 4 SC PT. 1, PG. 64.
Where a confession is made while an Accused Person is testifying in Court, it carries more weight than the extra-judicial confession. See OCHE VS. THE STATE (2007) 5 NWLR PT. 1027, PG. 214; NWOSU VS. THE STATE (2004) 15 NWLR PT. 897, PG. 446.
It is trite law that no statement by an Accused Person is admissible in evidence against him unless it is shown by the Prosecution that it was a voluntary statement. See SAIDU VS. THE STATE (1982) NSCC VOL. 15, PG. 70.
In the instant appeal, the Appellant retracted Exhibit P57, the so called Confessional Statement. Even though there was a Trial-Within-Trial, to ascertain the veracity and the voluntariness of the statement, the learned trial Judge admitted Exhibit P57 in evidence as being voluntary.
A Confessional Statement to the Police does not become inadmissible because the Accused Person that made it denies ever making it or retracts the confession on Oath. The Confessional Statement cannot also be regarded as unreliable by the mere denial or retraction.
However, the denial or retraction is a matter to be taken into consideration to decide what weight could be attached to it. See DIBIE VS. THE STATE (Supra) and OCHE VS. THE STATE (Supra).
In this appeal, the learned trial Judge admitted Exhibit P57 in evidence after a Trial-Within-Trial and relied on it heavily to reach his findings and decision eventually. In a case such as this, the Appellant’s name was not in the list of customers neither was his phone number. The PW4 in cross-examination stated that the Appellant was Eko in the list. The phone number attached to the said Eko does not match the Appellant’s number. There was no independent investigation by the Prosecution Witnesses to tie the Appellant with the name of Eko and the Phone number. When the Appellant retracted his Confessional Statement, the Court is now duty-bound to test the truth of a confession by examining it in the light of the other credible evidence before the Court. See SOLOLA VS. THE STATE (Supra), NWAEZE VS THE STATE (Supra), AKINMOJU VS. THE STATE (Supra).
The Appellant in his evidence viva voce stated clearly that he did not know the other Accused Persons. He was not found with any of the human parts in Exhibit. He also stated that his name was not Eko and there was no independent evidence to attach the name Eko to him. It has been held in a plethora of cases that where a Confessional Statement has been retracted, it is desirable that before a conviction can be properly based on a retracted confession there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See FABIAN IMOH VS. THE STATE (2017) ALL FWLR PT. 887, PG. 88; ASUQUO VS. THE STATE (2016) 14 NWLR PT. 1532, PG. 309; ULUEBEKA VS. THE STATE (2000) 7 NWLR PT. 565, PG. 41; OKOH VS. THE STATE (2014) 8 NWLR PT. 1410, PG. 502; ONYENYE VS. THE STATE (2012) LPELR 7866.
It has been held in a plethora of cases that where a Confessional Statement is denied or retracted, it is desirable to have corroborative evidence no matter how slight before convicting on such statement. The Court has a duty to test the veracity or otherwise of the statement by comparing it with other facts outside the statement to see whether they support, confirm or correspond with the statement. In a way, the Court must scrutinize the statement to test its truthfulness or otherwise in line with available evidence. See KAZEEM VS. THE STATE (2009) ALL FWLR PT. 465 PG. 1749; DAWA VS. THE STATE (1980) 8-11 SC PG. 236; IKPASA VS. A-G BENDEL (1981) 9 SC PG. 7; BOLANLE VS. THE STATE (2005) 7 NWLR PT. 925, PG. 431; OBISI VS. CHIEF OF NAVAL STAFF (2002) 2 NWLR PT. 751, PG. 400.
In this appeal it would be difficult to attach a lot of weight to Exhibit P57 as it was retracted as obtained under duress. The Investigative Police Officer, Zakari took the statement Exhibit P57 and was not even called as a witness to elicit the mode by which P57 was extracted. There was no corroborative evidence to ascertain the truthfulness of the statement provided by the Respondent. There being no such evidence the learned trial Judge would not in all honesty convict the Appellant on the basis of such a Confessional Statement.
The learned trial Judge admitted Exhibit P57 – confession of the Appellant and relied on it totally to reach his conclusion that the Appellant was guilty. There was no independent evidence from any of the Investigative Police officer as to the truthfulness of the confession.
It is not the duty of the Appellant to prove his innocence. The Respondent must establish the guilt of the Accused Person. See CHIANUGO VS. THE STATE (2002) 2 NWLR PT. 750, PG. 225.
The standard of proof in a criminal trial is proof beyond reasonable doubt. This means that it is not enough for the Prosecution to suspect a person of having committed a criminal offence. There must be evidence, which identified the person accused with the offence, and that it was his act, which caused the offence. See AIGBADION VS. THE STATE (1997) 1 NWLR PT. 479, PG. 1; AKINYEMI VS. THE STATE (2000) 6 NWLR PT. 607, PG. 449; AIGBADION VS. THE STATE (Supra).
There are many instances that should create a doubt in the mind of the trial Judge. The Appellant’s name was not on the list given by the 1st Accused Person in Exhibit P55. The Appellant retracted his Confessional Statement Exhibit P57 on the grounds that it was not made voluntarily. No one saw the Appellant with any human part. He was not also seen buying or selling same.
The 1st Accused Person who is the supposed kingpin did not identify the Appellant as one of his customers. These issues create a doubt that should be resolved in favour of the Appellant. The Respondent had not proved its case beyond reasonable doubt to warrant a conviction by the trial Court.
This appeal is therefore meritorious. It is allowed. The conviction and sentence of the Appellant is hereby set aside. The judgment of the lower Court is hereby also set aside.
The Appellant is hereby discharged and acquitted on the two Counts he was convicted of in the lower Court.
IBRAHIM SHATA BDLIYA, J.C.A.: I have the benefit of reading the leading judgment in draft before now, just delivered by my learned brother, UZO I. NDUKWE-ANYANWU, JCA. I am in full agreement with the reasoning and decision reached. I do not have anything useful to add. I, too, do hereby allow the appeal being meritorious. The judgment of the lower Court is hereby set aside. The appellant is discharged and acquitted on the two counts of the charge on which he was convicted and sentenced by the lower Court.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, UZO I. NDUKWE-ANYANWU, JCA. I agree with his lordship’s reasoning and conclusion that the appeal has merit. I too allow the appeal.
Appearances:
TAIYE ONIYIDE, ESQ. For Appellant(s)
JIMOH ADEBIMPE MUMINI, SAN, (DIRECTOR PUBLIC PROSECUTION), with him, KEMISOLA AFOLABI, SENIOR STATE COUNSEL I, (SSC I); YETUNDE AJAYI, ESQ., STATE COUNSEL I (SC1) and AMINAT ADESINA, ESQ., STATE COUNSEL I (SC1); MINISTRY OF JUSTICE, ILORIN, KWARA STATE. For Respondent(s)
