YUSUF IBRAHIM v. THE STATE
(2018)LCN/12254(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/283C/2016
RATIO
EVIDENCE: WHERE EVIDENCE IS UNCHALLENGED
“That the law is trite that where a piece of evidence is unchallenged, it is open to the Court seised of the proceedings to act on such unchallenged evidence. She referred this Court to the case of OGUNYADE V OSHUNKEYE & ANOR (2007) 15 NWLR, PT 105, 218.” PER PATRICIA AJUMA MAHMOUD, J.C.A.
EVIDENCE: WHO IS A VITAL WITNESS
“The twin question then is, who is a vital witness and what is the position of the law when the prosecution fails to call a vital witness. There are a host of judicial prononcements both of this Court and of the apex Court on this matter. In the Supreme Court case of OGUDO V. THE STATE (2011) 18 NWLR, PT 1278, 1, RHODES-VIVOUR, JSC defined a vital witness as: ‘a witness whose evidence is fundamental, in that it determines the case one way or the other.’ His lordship went further to add, not only that failure to call a vital witness by the prosecution is fatal to the prosecution’s case but that: ‘Failure to call a vital witness raises the presumption under Section 149 (d) of the Evidence Act that had he been called the evidence he would have led would have been unfavourable to the prosecution.'” PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
YUSUF ABRAHIM Appellant(s)
AND
THE STATE Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the judgement of HON. JUSTICE O.O AKEREDOLU of Ondo State High Court, Akure delivered on the 7th day of August, 2011, wherein the appellant with two other accused persons were convicted and sentenced to twenty-one years imprisonment on a two count charge of conspiracy and armed robbery contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol.14, Laws of the Federation of Nigeria 2004 and Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol.14, Laws of the Federation, 2004.
In proof of its case the prosecution called three witnesses and tendered thirteen exhibits. The appellant testified for himself and vehemently denied all the allegations against him. He called no other witness.
At the close of hearing, the learned trial judge found the appellant together with his co-accused guilty as charged and sentenced them accordingly.
Dissatisfied with this judgement, the appellant appealed to this Court by a notice of appeal filed on the 20th day of July, 2016, consisting of five grounds of appeal:
1. The learned trial Judge erred in law when she held that:
“the evidence before the Court show that each accused persons confessed that he agreed with the other person to participate in the robbery in concert with each other accused person and others at large. I have no reason to believe the confession of each of the accused person and I believe their confession.”
PARTICULARS OF ERROR
i. The appellant testified that he was coerced in to writing the confessional statement
ii) The respondent didn’t prove any agreement to show that there was conspiracy to commit robbery or robbery
iii) The appellant gave evidence that he was coerced into signing the confessional statement and the trial Court should not have given recourse to the confessional statement.
2. The trial Court erred in law when she held that:
“the confessional statement made by each accused person reveal that he conspired with the accused persons to rob. Each of them carried out the robbery as agreed. I am satisfied that the prosecution has proved the offence of Conspiracy beyond reasonable doubt.”
PARTICULARS OF ERROR
i. The prosecution did not prove where and how the appellant was involved in conspiracy to commit robbery.
ii. The confessional statement was relied upon by the appellant and that was the only evidence by the prosecution linking the appellant with the offence of conspiracy.
iii. The confessional statement that was refuted by the appellant should not have been relied on by the trial Court
3. The trial Court erred in law when it held that:
“In view of the contradiction between the evidence of DW2 (2nd accused) and DW3, the 2nd accused is not a person whose evidence can be believed and I don’t believe him.”
PARTICULARS OF ERROR
i. Where the prosecution has failed to prove its case beyond reasonable doubt, it is not for the accused person to prove his defense.
ii) The Court cannot use the evidence of one accused against the other.
iii) Contradiction between the evidence of one accused and another cannot be used as a good ground of conviction or sentence.
iv) An accused person cannot be convicted for mere telling lies, if any.
4. The trial Court erred in law by relying on Exhibit A, the statement of the complainant (Adeoti Kazzem) when the complainant did not submit himself to Court for cross-examination.
PARTICULARS OF ERROR
i) A person or witness, whose extra judicial statement admitted in evidence, must make himself available for cross-examination.
ii) It is against the principle of fair hearing for a Court to rely or act on the statement of any witness who refuses to submit himself for cross-examination.
iii) The reliance placed by the trial Court on Exhibit A to convict the appellant has occasioned a great miscarriage of justice against the appellant.
5. The learned trial judge erred in law when he relied on the contradictory evidence of PW2 and her extra judicial statement i.e. Exhibit A3 to convict the appellant.
PARTICULARS OF ERROR
i) The oral testimony of PW2 is inconsistent with her extra judicial statement made to the police.
ii) The contradictions in the oral testimony of PW2 and her extra judicial statement is material enough and ought not be delivered by the trial Court.
iii) The Court is required to act only on legally admissible evidence.
iv) When the oral testimony of a witness is inconsistent with his extra judicial statement, he should not be believed.
The appellant prosecuted this appeal through his brief of argument dated and filed on the 14th day of March, 2017 but deemed properly filed on the 23rd day of January, 2018. In it MR. O. M. Atoyebi of Counsel for the appellant formulated three issues for the determination of this Court:
1. Whether the trial Court was not wrong when it placed reliance on the alleged confessional statement of the appellant to arrive at its conclusion (Grounds 1& 2)
2. Whether the trial Court was justified when it relied on the alleged contradiction between the evidence of DW2 and DW3 to convict the appellant (Grounds 3 & 5)
3. Whether the trial Court was right when it held that the prosecution has proved its case beyond reasonable doubt even when the maker of Exhibit A did not submit to cross examination (Ground 4)
Addressing on issue one, learned counsel submitted that the trial Court was wrong when it placed reliance on the already retracted or denied confessional statement. He referred this Court to the cases of ADEKOYA V THE STATE (2012) 9 NWLR, PT 1306, 539 AT 547 & DAWA V STATE (1980) 8-11 S.C, 147 to further submit that the six tests enumerated in the above authorities were not applied, noting that the confessional statement in this instant case cannot ground a conviction in criminal matters. Counsel referred this Court to the case of GAMBO V STATE (2011) ALL FWLR, PT 602, 1609 AT 1615 to contend that the law requires that there must be corroborative evidence outside the confessional statement. He contended further that the evidence adduced by PW1, PW2 and PW3 are contradictory and therefore unreliable.
Learned counsel contended that the alleged confessional statement falls short of the requirements encapsulated in Section 27(1) & (2) of the Evidence Act 2011. He placed reliance on the case of INUSA SAIDU V STATE (1982) 4 SC, 26 AT 43; OSENI V STATE (2012) 5 NWLR, PT 1293, 613 AT 637 PARAS D-F and DAWA V STATE (SUPRA) and urged the Court to expunge the alleged confessional statement and resolve this issue in favour of the appellant.
On issue two, counsel submitted that the trial Court was not justified when it relied heavily on the contradiction in the evidence of DW2 & DW3. Counsel further contended that the prosecution bears the burden of proving her case. He referred this Court to the case of OLAYINKA V STATE (2007) 9 NWLR, PT 1040, 561, PAUL AMEH V THE STATE (1978) 6-7 S.C AT 35 and UDOSEN V THE STATE (2007) 4 NWLR, PT 1023,125 AT 162, PARAS D-G. Counsel relied on OZAKI V STATE (1990)1 S.C.N.J, 76 to contend that the law is trite that the Court cannot convict an accused on the statement of a co-accused, unless the other accused adopts the said statement.
Learned Counsel canvassed that the Court was in error when it believed the evidence of PW2, noting that her oral statement was inconsistent with her extra judicial statement which she made at the police station. He referred this Court to the case ofMUKA V STATE (1976) 9-10 S.C, 193 AT 206, LINES 9-15 and urged this Court to resolve this issue in favour of the appellant.
Responding to issue three, learned counsel submitted that the prosecution failed woefully in proving the elements of conspiracy as the accused persons denied ever meeting, agreeing or discussing at any place to conspire to do or commit any crime at all, noting that it is in evidence how the accused persons were tortured to confess to the offence they never committed. He placed reliance on the case ofPOSU V THE STATE (2011) ALL FWLR, PT 565, 234 AT 238, RATIO 5. Counsel further referred to OJO V FRN (2008)11 NWLR, PT 1099, 515 and IDEN V STATE (1994) 8 NWLR, PT 365, 719 to submit that the prosecution has failed in discharging their duty as imposed by law.
On whether there was robbery, counsel contended that there was no corroboration of the fact that the robberies alleged ever happened as the ingredients of the offence of armed robbery were not established. He relied on the authority of SOLOMON OMOTELOYE V THE STATE (1989) 1 CLRN, 142 AT 147 to submit that there was no robbery and if there was any, the appellant was not involved. Counsel contended that the evidence of PW1 & PW2 about hearing a gunshot, which was that of the police man, not the appellant’s shows a clear contradiction and inconsistency. That the appellant should have been given the benefit of doubt and not be convicted on the basis of such an unreliable and concocted piece of evidence. He referred this Court to the case ofAUGUSTINE ONUCHUKWU & ORS V STATE (1998) 4 NWLR, PT 547, 576 AT 59, PARAS D-E; UNOBEOGU V STATE (1976) 9 SC & AKOSILE V STATE (1976)5 SC, 9-10 SC, 305 AT 325.
On whether the appellant was one of the robbers, learned counsel submitted that none of the prosecution witnesss identified the appellant as one of the robbers that robbed them. That the only evidence led by the prosecution was to the effect that the 1st accused person mentioned the name of the appellant.
Counsel urged this Court to give due consideration to the evidence of the appellant. He referred the Court to the case of OGUGU V STATE (1990) 2 NWLR, PT 134, 552 AT 553, PARAS G-A, to contend that the appellant was a commercial motor driver who was stopped by the police who demanded for his particulars. That he showed them the said particulars but the police pointed out an error then and led him to SARS. There they collected the N135, 000.00 on him, shot him on the leg and asked him to confess that he was the gang leader. Counsel finally submitted that the law is trite that no matter how silly or little a defence is, the Court is enjoined to consider every part of it. He placed reliance on the cases of AKPABIO V THE STATE (1994) 7 NWLR, PT 359, 635 AT 671 & EKANEM V STATE (1990)2 FWLR, PT 530, 1142 and urged the Court to resolve all the issues raised in favour of the appellant.
The respondent’s brief of argument is dated 21st day of June, 2017, but filed on the 3rd day of July 2017, but deemed properly filed on the 23rd day of July, 2018. It was settled by Mrs. A.O Adeyemi-Tuki, the then DPP but argued by MRS O.I Adejumo, A.G & PT, ONDO STATE MOJ, AKURE. In it counsel formulated a sole issue for the determination of this Court:
“Whether from the nature, circumstances, substances and situations of this case, the learned Hon. trial judge was not right when he held that, I find the 3rd accused person, Ibrahim Yusuf guilty of Conspiracy to commit robbery and robbery…”
Mrs Adejumo submitted that in proving its case the prosecution’s evidence is not measured by the number of witnesses called but by the degree of proof attained. She referred the Court to the case of AYENI V THE STATE (2016) 11 SCM, 1 AT 20, PARAS C-F. Counsel further submitted that the respondent discharged the onus imposed on her by law by proving its case through the three means enumerated in the case of OKIEMUTE V STATE (2016) 15 NWLR, PT 1535, 295 AT 335, PARAS G-H.
On whether there was a robbery, the learned counsel submitted that evidence of the robbery incident contained in Exhibits A1, A7, A8, A9, A11 & A12 was not controverted or contested. That the law is trite that where a piece of evidence is unchallenged, it is open to the Court seised of the proceedings to act on such unchallenged evidence. She referred this Court to the case of OGUNYADE V OSHUNKEYE & ANOR (2007) 15 NWLR, PT 105, 218.
Counsel relied on the case of MOHAMMED V STATE (2015) LPELR-25916, 22 PARAS D-F to contend that the prosecution proved that the appellant and his partners were armed with knives, pestle and other dangerous weapons. She argued that the evidence of PW2 was clear, cogent and corroborated the evidence of PW1. She referred the Court to page 33 of the printed records. The learned counsel contended that the weapons used qualified as offensive weapons under Section 11 of the Robbery and Firearms (Special Provisions) Act. She placed reliance on the cases of ISSAC OMOREGBE V DANIEL LAWANI (1980) 3-4 SC, 108 AT 117; ODULAJA V HADDAD (1973) 11 SC, 35 & ABEL BOSHALI V ALIED COMMERCIAL EXPORTERS LTD (1961) ALL NLR, 917.
The learned DPP submitted that the appellant confessed to being a member of the gang in his confessional statement which was admitted without objection. That none of the accused persons resiled from his extra judicial statement at the point of tendering it. She referred this Court to page 79 of the printed records and placed reliance on the cases of OKEREKE V STATE (2016) 1 SCM, 99 AT 113; MADJEMU V STATE (2001) 5 SCNJ 31 & OBIDIOZO V STATE (1987) 4 NWLR, PT 67 AT 48.
The learned counsel further submitted that once an extra judicial confessional statement has been proved to be made voluntarily, it amounts to guilt of the accused and a conviction would be held to be good regardless of the fact that the accused resiled or retracted from it in his testimony. She referred the Court to the case of SMART V THE STATE (2016)1 SCM, 153 AT 168, PARAS G-H and urged the Court to discountenance the argument of the appellant?s counsel. She further placed reliance on the case ofAWUSE V ODILI (2004) 8 NWLR, PT 874-876, 494 AT 524. The learned counsel contended that the argument of the appellant’s counsel on issue three are unsustainable based on the facts contained in the printed records. That the trial Court was very emphatic that none of the accused persons gave probable evidence.
On Conspiracy, learned counsel submitted that the law is trite that once the prosecution succeeds in proving the existence of conspiracy, evidence against one conspirator is admissible against the other. She referred the Court to the case of MUSA YARO V STATE (2008)3 NCC, 250 AT 262. She also relied on the cases of OMOTOLA V STATE (2009) 7 NWLR, PT 1139, 151 & KAZA V THE STATE (2008) 7 NWLR, PT 1085, 125 AT 175-176, PARAS F-B to submit that the positive and affirmative actions of the parties have been proved. The learned counsel contended that Exhibit A is a cogent, reliable and a quality piece of evidence. That once the facts of conspiracy are established, it does not matter what a party to the conspiracy did. She placed reliance on the case of STATE V OLASHEHU SALAWU (2012) ALL FWLR, PT 614, 1.
I have reflected quite soberly on the submissions of both counsel in this appeal. The sole issue raised by the respondent in this appeal of ‘whether from the nature, circumstances, substances and situations of this case, the learned trial judge was not right in convicting the appellant for conspiracy to commit robbery and robbery’, can well be situated in the appellant?s issues. In other words, this appeal would be decided on the three issues raised by the appellant. The 1st and 3rd issues are interrelated and to avoid repetitions in findings, I will take them together. The first issue raised by the appellant is:
“Whether the trial Court was no wrong when it placed reliance on the alleged confessional statement of the appellant to arrive at its conclusion.”
The third issue is:
“Whether the trial Court was right when it held that the prosecution has proved its case beyond reasonable doubt even when the maker of Exhibit A did not submit to cross examination.”
The confessional statement of the appellant, Exhibit A12 is reproduced verbatim at pages 75-76 of the printed records. I have read the said Exhibit 12. It is a narration of not only what transpired in the instant case but also the involvement of the appellant in other criminal operations. As I read how the appellant was involved in raping a girl before robbing her, I had to resist the temptation to condemn him without a proper consideration of the evidence. But then a man is not convicted for an offence because he is notorious or a bad man. He is convicted only in the face of overwhelming evidence which establishes his guilt beyond reasonable doubt.
I therefore upon reading the terrible details in Exhibit A12 had to pause, take a step back and dispassionately consider the evidence as my position as an arbiter demands. In reading Exhibit A12, I find that only a small portion thereof relates to the robbery in the current appeal. I reproduce it:
?the operation also took place at No.7 Ijapo Estate. Myself, Awolu Olaleye ‘M’, Micheal ‘M’ and Ramoni Jelili ‘M’, we entered Mr. Adeoti Kazeem ‘M’ house to operate, but I was outside while the others entered into the house, but people therein disallowed them to operate, so we escaped and entered the opposite building to rob the compound suddenly, I heard that one person open the gate, that was how I alerted my gang members to escape, but Awolu Olayeye refused to follow us later, I heard gunshot, not knowing that it was Police that shot Awolu Olayeye ‘M’, it was later I heard a rumor in town that Awolu ‘M’ has been arrested by SARS Police Akure.On the 13th day of October, 2012, I was arrested by SARS Police men Akure?..We don’t use any gun in our gang, the only thing we use is touch light but the last operation we used pliayer to cut barbed wire and net…’
From this quoted portion of Exhibit A12, I am unable to see how this statement amounts to an admission of robbery by the appellant. He admitted to entering the house of the alleged Adeoti Kazeem for a robbery operation but stated quite clearly that they were disallowed from operating. The appellant wasn’t convicted for attempted robbery but for robbery. There is no evidence of any robbery from this statement. At page 76 of the printed records, the learned trial judge found as follows:
‘In Exhibit A12, the 3rd accused confessed that he entered the house of Adeoti Kazeem for a robbery operation’.
The appellant said he did not enter the house; he was outside while the others entered into the house. And that those others who entered were disallowed from operating. This finding of the learned trial judge is clearly not based on Exhibit A12, the appellant’s confession. It is a well settled law that a free and voluntary confession of guilt, judicial or extra judicial, if it is direct, positive and properly established is sufficient proof of guilt and is enough to sustain a conviction as long as the Court is satisfied with the truth of such a confession. See the cases of IHUEBEKA V THE STATE (2000)4 SC, PT 1, 203; ALARAPE V STATE (2001)14 WRN, 1 and SOLOLA V STATE (2005)11 NWLR, PT 937, 460.
I find from a proper reading of Exhibit A12 that it is neither direct, positive nor properly established. Firstly, Exhibit A12 is jumbled up with so many incidents that it is anything but direct. It never admitted to committing any robbery in the house of the shadow complainant, Adeoti Kazzem. It did admit of other robberies, so it is not positive. I also find that Exhibit A12 is not properly established. Going through Exhibit A12, especially the way it is replete with ‘M’ against every male name makes it appear to me and any discerning eye that it is more of an extraction than a voluntary confession. The language is more of a police language. Again reading the exploits of the appellant in Exhibit A12 gives him away as a notorious but elusive criminal. Imagine the disgrace to the Police Force when he ran away in their handcuffs! Is it possible for the Police to have concocted this armed robbery, to put away this ‘torn in their flesh’ for good?
I would like to start this analysis from the complainant, Adeoti Kazeem. Does he exist, where is he, did he make a complaint to the Police and why did he not follow up on his complaint to the Police? These and many unanswered questions are what trail this elusive and shadowy complainant. I have seen Exhibit A1, the extra judicial statement of the said Adeoti Kazeem. It gives his address as No.10 Oduduwa, Ijapo, Akure. His house which the appellant is alleged to have robbed is No. 7, Ijapo Estate, both on the charge sheet and Exhibit A12. To better unravel this curiosity, it is best to reproduce the said Exhibit A1:
“At around 10:30pm when I wanted to off the generator, I saw some set of armed robbers, that chased me in with a gun threaten, they came and started collecting our money they collected fourteen thousand naira (N14,000.00) and my phone, when they were collecting phones, money from my uncle wife I jumped from the upstairs and hide somewhere, after they raided our house, they jumped through the fence and went to the opposite house where I ran to the Police Station for rescue…” (underlining is mine)
If the police (prosecution) like they alleged, could not find the complainant, why didn’t they get the uncle’s wife to testify especially since she lost N14,000 to the robbers? This whole scenario about Adeoti Kazeem is indeed very curious. There was no adequate explanation as to why he could not come to testify and why the police never went to the alleged ‘robbed’ house to make inquiries. And then there is the issue of PW2. She claimed to have been with her sister who was visiting her. Where was the sister visiting from and why was she not called as a witness? She said the alleged robbers never made it past her kitchen as the police came to their aid before the robbers could break down their door.
Again PW2 said her sister passed N2, 000 to the robbers begging them not to rob, rape or kill them. How then did this become robbery when the appellant and his gang members never made it into her house by her own account? PW2 never stated that she and the sister rushed out upon the arrival of the police. She did give evidence that one of the robbers who was shot was taken to the hospital. How did she know all these when she was not part of the police investigating team? Why was no medical report tendered as proof that one of the robbers was shot at the scene of the robbery? Does this not create a possibility in the evidence of the prosecution that the story of the 1st accused that he was shot at the police station may be true? And shouldn’t such a doubt be resolved in favour of the appellant? I find that in this case there are more questions than answers.
Police officers testified in this matter as PW1 and PW3. They were both the investigating Police Officers in this matter. The evidence on record was that the complainant had rushed to report a case of robbery at the police station while the robbery was ongoing. That with the co-operation of the DPO some policemen were quickly dispatched to the scene. That they not only dispersed the robbers but shot and arrested one of them. Why was none of the police officers involved in this operation called to testify in this matter? This would have proved beyond reasonable doubt that the 1st accused person was shot at the crime scene and not at the police station as he alleged in his evidence in Court. What is more, an officer from that operation is a vital witness which the prosecution failed to call. So are Adeoti Kazeem or his uncle’s wife and PW2’s sister vital witnesses.
The twin question then is, who is a vital witness and what is the position of the law when the prosecution fails to call a vital witness. There are a host of judicial prononcements both of this Court and of the apex Court on this matter. In the Supreme Court case of OGUDO V. THE STATE (2011) 18 NWLR, PT 1278, 1, RHODES-VIVOUR, JSC defined a vital witness as: ?a witness whose evidence is fundamental, in that it determines the case one way or the other.? His lordship went further to add, not only that failure to call a vital witness by the prosecution is fatal to the prosecution?s case but that:
“Failure to call a vital witness raises the presumption under Section 149 (d) of the Evidence Act that had he been called the evidence he would have led would have been unfavourable to the prosecution.”
In the instant case apart from the so called confessional statement, Exhibit A12, which I have already found in this judgment is not direct, positive and an admission to committing the offence, there is no other evidence sufficient and convincing enough to sustain the conviction of the appellant. So while it is true that the prosecution has a discretion as to which witness to call in proof of its case, it is equally undisputed that where like in the instant case a vital or material witness is not called, such a failure is fatal to the prosecution?s case and I so hold.
This takes us then to the evidence of the prosecution outside Exhibit A12 which the learned trial judge relied on to convict the appellant. I must express my bewilderment at the fact that the learned trial judge admitted in evidence the extra judicial statement of the prosecution witnesses in evidence on the sole ground that there was no objection to its admission. Not only that, but the Court relied on it to reach its decision. These are reproduced at pp 70-75 of the printed records. Exhibit A1 is the extra judicial statement of Adeoti Kazeem. A3 is that of PW2.
These are the two ‘complainants’ as it were in this case. The learned trial judge appears to have equated the extra judicial statements of prosecution witnesses with confessional statement. While PW2 testified, the said Adeoti Kazeem did not testify. It has long been established that the extra judicial statement of a witness is inadmissible. I quote with complete relish the decision of this Court in OKEKE V. THE STATE (2016) LPELR 40024 where my learned brother Ogunwumiju JCA found as follows:
“The extra judicial statement of a witness in a criminal trial is inadmissible as evidence for either side, …The only time when an extra judicial statement of a witness is admissible is where a party seeks to use it to contradict the evidence of a witness already given on oath.”
In the Supreme Court case of THE STATE V. JOHN OGBUBUNJO & ANOR (2001) 2 NWLR, PT 698, 576, Karibi-Whyte, JSC (as he then was) put it more emphatically when he held:-
“It is a well settled principle of the administration of justice in our Courts that only evidence properly authenticated either by the oral testimony of a party or the written statement tendered and admitted during proceedings can be given in evidence in a trial. Extra judicial statements which remain in that category however credible they may appear, cannot be used as evidence in a trial.”
I think the Supreme Court sealed this issue when it held in its earlier case of MUSA UMARU KASA V THE STATE (1994) 5 NWLR, PT 344, 269 per Uwais, JSC (as he then was) that:
‘Former statements of any person whether or not he is a witness in the proceedings, may not be given in evidence if the purpose is to tender the statement as evidence of the truth of the matters asserted in them.’
Flowing from these authorities, I hold that Exhibits A1 and A3 the extra judicial statements of Adeoti Kazem the alleged complaint who never testified and PW2 respectively are inadmissible in so far as they were admitted not in cross examination to test the veracity of the evidence given by the witness(es) but as evidence of the truth of the matter asserted. Having wrongfully admitted them I hereby expunge Exhibits A1 and A3 from the records of the Court. Having done so I find that the only evidence left for the Court to sustain the conviction against the appellant is Exhibit A12, his confessional statement.
I have already found in this judgment that the said confessional statement is not positive, direct and does not lead to an unequivocal admission of guilt sufficient to entitle the trial judge to base the conviction of the appellant solely on it. Even the Court is very conversant with the 6 tests which an extra judicial statement of the nature of Exhibit A12 must satisfy before it could pass as a confessional statement for the purpose of grounding a conviction. Such tests as affirmed in the more recent Supreme Court case of OKPAKO V. STATE (2018) 9 NWLR, PT 1624, 213 AT 326 PARAS E-G are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the statements made in it true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the offence?
(5) Is this confession possible?
(6) Is it consistent with other facts which have been ascertained and proved?
There is nothing in the entire records to show that there is anything outside Exhibit A12 which could affirm that it is true as a confessional statement to the offence(s) for which the appellant was charged or convicted. The statement itself as I have already found does not admit to the truth of a robbery incident on the right in question. Exhibit A12 was not corroborated in any way or manner at the trial in any material particular. The learned trial judge at page 70 lines 1-24 from the top quoted the submissions of the defence counsel on the 6 way test for confessional statements. But throughout the judgment there is no where that he subjected the said Exhibit A12 to the said tests. I hold therefore that the lower Court was in grave error when it based the conviction of the appellant on Exhibit A12 and the inadmissible evidence of the complainant Adeoti Kazeem and PW2 as captured in Exhibits A1 and A3.
I therefore resolve issues (1) and (3) in favour of the appellant. Issue (2) is whether the trial Court was justified when it relied on alleged contradiction between the evidence of DW2 (2nd accused) and DW3 to convict the appellant.
This issue in my view is well answered in the case of OZAKI V. STATE (SUPRA) as cited by the learned counsel to the appellant where the Supreme Court held:
“The 2nd appellant never repeated the statement in his testimony in Court. It is an error in law to convict an accused on the statement of another to the Police. It is a travesty of justice and a gross violation of all known rules of evidence. Section 27 of the Evidence Act forbids the use of such statement even when it is confessional.”
I have gone through the testimonies of DW1, Olaleye Awolu the 1st accused, DW2, Jelili Ramoni 2nd accused. DW3 is Iyabo Ramoni, sister to the 2nd accused who testified in support of her brother. The only contradiction I can see in their evidence is that while DW3 said her brother was a furniture maker, the second accused DW2 the brothers said he was a butcher. The learned counsel failed to show what contradiction there is in the evidence of these two witnesses that the trial Court used against the appellant who was DW4. I do not see the nexus of this issue as raised with the case of the appellant. I discountenance it. Be that as it may the appeal has in my view been adequately determined on the two other issues. There is no credible admissible evidence before the Court upon which it could have acted to convict the appellant. I find that the judgment is perverse and ought to be set.
There is a strong suspicion that the appellant together with his co-accused may have committed some crimes in the past. That is not a reason to convict him in a trial in which the prosecution failed to prove a case beyond reasonable doubt against him. Speculation or suspicion can never be a basis for conviction. No matter the notoriety of a person the presumption of innocence can only be taken away from him when he is properly tried and all the elements of the charge against him are proved beyond reasonable doubt.
As a result and in view of all my findings in this judgment I hold that this appeal succeeds and it is hereby allowed. Consequently the judgment of Hon. Justice O. O. Akeredolu delivered on the 7th day of August, 2014 convicting and sentencing the appellant for conspiracy to commit robbery and robbery is hereby quashed and set aside. I accordingly discharge and acquit the appellant Yusuf Ibrahim.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having been availed the benefit of reading in draft before now, the lead Judgment just delivered, by my learned brother Patricia Ajuma Mahmoud, JCA. I agree that this appeal should succeed.
Conspiracy or any other offence for that matter cannot be proved upon the complicity evidence engendered by an accused person against his alleged conspirator. That is to say that No person shall be convicted upon the evidence of another admitting the commission of an offence and then naming that other as a compatriot, simpliciter. The law has been put simply that a confession or admission is not admissible against another person, unless that other person adopts same.
The trial Judge in this appeal at the trial relied heavily on the fact that each co-accused indicated the other as a conspirator and therefore, convicted for conspiracy on that basis. The corroborative evidence that would have satisfied the burden of proof placed on the prosecution to prove its case could not be the evidence of PW1 and PW2 which were contradictory and therefore, unreliable. PW2’s evidence in Court was at variance with her Extra Judicial Statement made at the police station.
Ultimately, the so-called confessional statement, Exhibit A12 does not prove an admission of guilt of robbery at all. The said Exhibit A12 is never a direct and positive admission of guilt. Indeed, my Lord Patricia Ajuma Mahmoud has, adroitly, analysed the fact of the complainant/victim as being a shadowy complaint. Even if it is a secretive desire by the complainant or police to mask the complainant for safety or his security, the law is that the duty of proving a crime beyond reasonable doubt cannot be traded for the security concerns.
It is either our law enforcement agencies, in this case, the police, are equipped and skilled enough to protect victims and witnesses while performing their roles in crime prevention, detection and prosecution or be damned along with the society for failure of Justice and role. Indeed, the failure to call the said Adeoti and the alleged sister of PW2 in evidence is a failure to call vital witnesses in the circumstances that have impacted against the proof of guilt at the trial.
The learned trial Judge had prolifically relied on the extra-judicial statements of Adeoti Adeola, the “Shadowy” complainant and that of PW2 – all admitted as Exhibits A1 and A3. These extra-judicial statements which were not, in law admissible as the proof of guilt of the Appellant, ought be and are expunged as in admissible evidence wrongly admitted; and which has occasioned a miscarriage of Justice.
This miscarriage is accentuated by the total lack of evidence outside Exhibit A12 to prove the commission of the offence charged. Reliance on Okpako V. The State (2018) 9 NWLW (Pt. 1627) 213 at 326, paragraph E – G is apt in the ultimate discharge and acquittal entered. I concur.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have the privilege of reading the lead judgment of my learned brother PATRICIA. A. MAHMOUD, JCA. just delivered. His lordship has comprehensively resolved all the issues canvassed by the respective parties in this appeal. I am in agreement with my learned brother that the appeal is meritorious and ought to be allowed.
I also allow the appeal. The judgment of the lower Court which convicted and sentenced the appellant is hereby set aside. I too discharge and acquit the appellant.
Appearances:
Mr. O.M. Atoyebi For Appellant(s)
Mrs. O.I Adejumo (AG & PT, Ondo State MOJ, Akure) with her, Mr. O. F Akeredolu, (ACLO, MOJ, Ondo State, Akure) For Respondent(s)
