ASAKPA v. STATE (2022)

ASAKPA v. STATE

(2022)LCN/16259(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, May 27, 2022

CA/AS/384C/2017

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MONDAY ASAKPA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

The burden of proof in a criminal case lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.

Proof beyond reasonable doubt connotes such proof that precludes every reasonable proposition except that which it tends to support. It does not mean proof beyond the shadow of doubt but it means establishing the guilt of the accused person with compelling and conclusive evidence. It connotes a degree of compulsion which is consistent with a high degree of probability. If the evidence against the accused is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence, “of course it is possible but not in the least probable”, the case would have been proved beyond reasonable doubt. Where however at the end, there is reasonable doubt as to the guilt of the accused person, the doubt must be resolved in his favour. See Miller v. Minister of Pensions (1947) 2 ER 372, Akinlolu v. State (2016) 2 NWLR (Pt. 1497) 503, 528-529 and Philip v. State (2019) 13 NWLR (Pt. 1690) 509, 534.

The guilt of an accused person may be established by:
1. Direct evidence of eye witness/es.
2. Voluntary confessional statement of the accused person.
3. Circumstantial evidence.
See Emeka v. State (2001) 14 NWLR (Pt. 734) 666 and Ujang v. State (2017) 18 NWLR (Pt. 1597) 281, 299. PER EKANEM, J.C.A.

WHETHER OR NOT QUESTIONS RELATING TO PRIMARY FINDINGS OF FACT ARE EXCLUSIVELY RESEREVED FOR THE TRIAL COURT

DEFINITION OF A CONFESSION

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State, Warri Judicial Division (the trial Court) delivered on 18/12/2013 in charge No. W/9C/2011 by Umokoro, J., as he then was in which he convicted and sentenced the appellant to various terms of imprisonment for the offences of conspiracy to commit a felony, kidnapping, demanding with menaces and conspiracy to commit murder contrary to Sections 514, 364, 406, 324 and 319 (1) of the Criminal Code Law of Delta State Cap C21 Vol.1 of the Laws Of Delta State.

Aggrieved by the decision, the appellant appealed to this Court by the means of a notice of appeal.

The facts of the case that resulted in this appeal are that the appellant was charged along with three other persons on a five-count information for the various offences mentioned above as well as murder. The appellant was the 1st accused person. The case of the prosecution was that the appellant conspired with the other persons to kidnap one Ifeanyi Akukalia and demand for ransom for his release from Madam Angela Akukalia.; that even after the ransom had been paid, the said Ifeanyi Akukalia was killed.

The prosecution called six witnesses and tendered eight exhibits including Exhibit C, the extra-judicial statement of the appellant which the trial Court found as a confessional statement.

The appellant testified on his behalf denying the charge. He did not call any other witness.

In the appellant’s amended brief of argument settled by O. J. Obodaya, Esq., the following issues were distilled from the grounds of appeal for the determination of the appeal:
1. Whether the prosecution was able to establish any case against the appellant as to warrant the guilty verdict handed down by the trial Court? (Grounds 3, 4 and6)
2. Whether in all the circumstances of this case the evidence upon which the trial Court acted to reach its verdict was credible and admissible? (Ground 2)
3. Whether the lower was right to have brushed aside the defence of the appellant without considering same? (Ground 5)

It can be easily seen that no issue is formulated from ground 1 of the grounds of appeal (which complaint focused on a passing remark by the learned trial judge) and so it is deemed abandoned by the appellant. I accordingly strike out the same.

In the respondent’s brief settled by Omamuzo Erebe, Esq., learned Solicitor-General and Permanent Secretary, Ministry of Justice, Delta State, the following issue was crafted for the determination of the appeal:
Whether in view of the evidence on record, the learned trial judge was right in law when he held that the prosecution proved the offences for which the appellant was convicted beyond reasonable doubt?

Having read the remaining grounds of appeal in the notice of appeal, it is my view that one issue arises for determination in this appeal, to wit:
Was the trial Court right in convicting and sentencing the appellant?

Appellant’s counsel submitted that the prosecution failed to establish its case against the appellant and that the trial Court was wrong in finding him guilty of the offences. He stated the trite position of the law that the prosecution has a duty to prove the guilt of an accused person beyond reasonable doubt. He stressed his position that the prosecution did not lead any credible evidence to link the appellant with the offences that were charged. He referred to the evidence of the prosecution witnesses and noted that the appellant was convicted on the basis of:
1. His statement, Exhibit C, and
2. The testimony of the PW3.

He set out the evidence of PW3 and posited that the appellant was convicted on an “encrypted” evidence which the said witness said could not be revealed as it was said by him to be an official secret. Counsel thereafter set out the extra-judicial statement of the appellant and submitted that it was not confessional. He placed reliance on Section 28 of the Evidence Act and Oshim v. State (2014) LPELR – 23142 (CA). After setting out the reasoning of the learned trial judge, counsel remarked that his lordship consistently but erroneously attributed the extra-judicial statement of 2nd accused person (Exhibit A) to the appellant whereas the extra-judicial statement of the appellant is Exhibit C. He referred to the inferences that the learned trial judge made from the extra-judicial statement of the appellant and posited that there was no positive evidence linking the appellant with the commission of the crimes. Continuing, appellant’s counsel submitted that the trial Court brushed aside the defence of the appellant without giving it a dispassionate consideration. He finally noted that the 2nd accused person was discharged and acquitted by this Court in a different appeal in a judgment reported as Ejedegba v. State (2018) ALL FWLR (Pt. 942) 399 and urged the Court to discharge and acquit the appellant.

Counsel for the respondent set out the methods of establishing the guilt of an accused person and submitted that the prosecution proved the guilt of the appellant by the evidence of its six witnesses and by inference from his extra-judicial statement. He set out in numbered paragraphs the facts that were established before the trial Court. He stated that the trial Court relied on appellant’s extra-judicial statement in holding that the appellant was one of the assailants that committed the offences. He added that the reference by the trial Court to the extra-judicial statement of the appellant as Exhibit A instead of Exhibit C was an error. He contended that the appellant might not have admitted affirmatively that he participated in the crimes but stated that the facts contained in his extra-judicial statement could only be recounted by an active participant in the crimes. He queried what the appellant was doing in the house of the 4th accused person at the time the victim was taken there as a victim of kidnapping. He asserted that the said statement of the appellant was confessional.

The learned Solicitor-General urged this Court not to interfere with the finding of the trial Court as, according to him, it was based on the fact that the learned trial judge had the singular opportunity of hearing and listening to the prosecution witnesses and the appellant testify. He emphasised that the appellant having confessed that he was aware of when the victim was kidnapped and killed though ransom had been paid, the trial Court was right to infer that the appellant was involved in the planning and execution of the crimes.

Counsel argued that the trial Court considered the defence of the appellant. He finally submitted that the case of Ejedegba v State supra cited by appellant’s counsel was inapplicable as the situation in that case is different from the one in the instant case.

The burden of proof in a criminal case lies on the prosecution to prove the guilt of the accused beyond reasonable doubt.

Questions relating to primary findings of fact are ordinarily exclusively within the domain of the Court of trial. This is because, as rightly argued by respondent’s counsel, it is the Court of trial which had the opportunity of observing the witnesses give oral evidence and determining their credibility from their demeanour and behaviour before that Court. The appellate Court which is not in the same advantageous position as the trial Court cannot set aside the judgment of the trial Court merely on the ground that it would have, if it were considering the matter, come to a different conclusion. Hence so long as there was evidence from which the learned judge could have come to the conclusion to which he did, the verdict cannot be disturbed. However, it is well settled that where the record discloses that the finding of the trial Court cannot be supported on the evidence, such a finding will be disregarded and the appellate Court can interfere by setting aside the finding. See Ikem v. State (1985) 4 SC (Pt. 2) 30, 53 and State v. Oray (2020) 7 NWLR (Pt. 1722) 130, 151.

The material part of the testimony of PW3 which in part formed the basis of the conviction of the appellant reads:
“The 1st accused was arrested through the confessional statement of the 2nd accused.”
Later in his evidence, he stated that:
“The analysis of the phone number used by the kidnappers to demand the ransome(sic) showed that 1st accused was involved when we picked up the 2nd accused, he led us to arrest the 1st accused. The analysis of the telephone numbers are classified which for security purposes we do not divulge to the public. If I include it in my investigation report it will amount to divulging official secrets… the 1st accused was amongst those who kidnapped Ifenyi Akukalia and murdered him.”

It is noteworthy that the 2nd accused person’s conviction was upturned by this Court in Ejedegba v State supra and what is more the confessional statement of a co-accused person is only evidence against him and not evidence against an accused person except it was made in his presence and he (the accused person) adopted it by word or conduct. See 29 (4) of the Evidence Act, 2011, State v. Onyeukwu (2004) 122 LRCN 5245, 5267 and Suberu v. State (2010) 8 NWLR (Pt. 1197) 586, 614. This did not happen in this matter.

Since the “top secret” analysis of the phone numbers by the PW3 was not tendered in Court, the Court should not speculate on it. It remained in the realm of secrecy. The evidence that the appellant was among those who kidnapped and killed the deceased person was nothing but hearsay since the witness was not eyewitness. The evidence of PW3 was a non-starter vis-à-vis the proof of the guilt of the appellant.

That takes me to the extra-judicial statement of the appellant which the trial Court held to be confessional. There is no doubt that a man may be convicted on his confessional statement alone so long as it is found to be direct, positive and unequivocal as to admission of guilt though it is desirable that it be corroborated. See Dibie v. State (2007) LRCN 718, 732. Before setting out the content of the same, it is necessary to obtain guidance as to what a confession is.

In Section 28 of the Evidence Act, 2011 a confession is defined as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See alsoAbdullahi v. State (2013) 11 NWLR (Pt. 1366) 435, 454. It must be direct, positive and unequivocal as to the admission of guilt by the accused person. See Solola v. State (2005) All FWLR (PT. 269) 1751.

On account of its importance in this appeal, I shall take the liberty of quoting in extenso the extra-judicial statement of the appellant (Exhibit C) hereunder:
“On 14th September, 2010. Mathew, Henry Ochuko and Onyile meet me in the place were we smoke, they told me that they want to kidnap one boy, after same hours I left Mathew’s house to Osiefun roundabout where my sister is selling. When I came back to Mathew’s house the same day, I met a new face in Mathew’s house and Henry introduced him to me as Oscar that he brought the phone number of the person they want to kidnap. And that Oscar and Ifeanyi are friends and they attended the same school. When I look into one of the rooms I saw somebody sitting on a chair, Mathew told Ifeanyi to call his father that he is been held hostage. Then Ifeanyi gave his father phone number to Mathew, Mathew dialed the number and give some distance from us, I did not hear their discussion. Later I left to my house. The following day being 15th September, 2010. When I came back to mathew’s house, he told me that, he talk to Ifeanyi’s father and he promised to pay hundred thousand naira (N100,000). After three days Mathew and Ochuko arranged for the collection of the money. In the process of collecting the money, police shot Ochuko in his leg and hand and they arrested him and Mathew escape.
The police searched Ochuko and collect his phone, when the police checked his phone, they did not see the number that was used in communicating with Ifeanyi’s father. The police abandoned Ochuko and left. When Ochuko came back, he told me all that happened Ochuko also said that, the police collected his address and have also recognized him. OCHUKO said that if they release Ifeanyi, that police will trace him back for arrest, this was what ochuko told Mathew. The same day, Mathew killed Ifeanyi Akukalia. When I went to Osiefun to see Mathew, Mathew told me that he has killed Ifeanyi I asked Mathew, why did you kill the boy. Mathew said, if they release the boy to go, he will recognized Ochuko during investigation, and himself Mathew will also be in trouble because Ifeanyi was kept in his house. There are other boys guiding Ifeanyi in Mathew’s house, because Mathew don’t always sleep in his house. And the names of those boys are, Obas, Pius and Oyinle. And also, Mathew did not tell me the actual place he killed the boy, what Mathew told me is that he kill the Ifeanyi in the bush along Express.”

At page 277 of the record, the learned trial judge reasoned as follows:
“The analysis of the 1st accused and statement to the PW3 which was not challenged revealed these;
1. The 1st accused person was aware before Ifeanyi Akukalia was kidnapped.
2. That he saw the victim in the house of the 4th accused.
3. That he was present when the 4th accused made demand on the parents of the kidnapped victim – Ifeanyi Akukalia.
4. That the 1st accused referred to Henry, Onyile, Oscar and Ochuko as confederates and conspirators.
What was the 1st accused doing in the house of the 4th accused at the material time IfeanyI Akukalia was brought in as kidnap victim. Is it not reasonable to believe he was there because of the pre-arranged meeting of the minds. Is it not reasonable to believe that the kidnap victim brought onto the house of the 4th accused to be used as a commodity for bargain to get ransome?
The statement of the 1st accused is confessional in nature.“

With the greatest respect to learned trial judge, Exhibit C does not amount to a confessional statement because it is not a direct, positive and unequivocal admission of guilt by the appellant. Respondent’s counsel admitted this much in his brief of argument at page 7 paragraph 4.11 where he stated that, “The appellant may not have admitted affirmatively that he participated in the crime in his extra-judicial statement, the facts contained in the said statement Exhibit C can only be recounted by an active participant in the crime.” I shall return to this statement later in this judgment.

The most that can be drawn from Exhibit C is that the appellant was aware of the unfolding crime but mere knowledge of a planned or on-going crime and the perpetrators of it is not the same as taking part in the crime except the person does or omits to do something to facilitate the commission of the crime or counsels or procures the commission of the crime. Again, mere presence at the scene of a crime without more cannot be the basis of conviction of a person for the crime. See Titilope v. State (1986) 12 CA (11) 27 and Aba v. State (1986) 4 CA (1) 441.

Exhibit C leaves one with the strong suspicion that the appellant may have been part of those who committed the crimes but suspicion no matter how strong cannot lead to conviction. See Zubairu v. State (2015) LPELR – 40835 (SC).

It must be emphasized that where the extra-judicial statement of an accused person is capable of two interpretations, one leading to a conclusion of guilt and the other pointing in the opposite direction, a judge should not convict the accused person on the basis of it but must give him the benefit of doubt. See Solola v. State, supra.

With all due respect, the learned trial judge was only engaging in speculation and conjecture when his Lordship analysed Exhibit C and concluded that it is confessional.

Though the Evidence Act permits inference to be drawn from relevant established facts, no law permits the Court to engage in conjecture and speculations. See NICON v. Nze (2004) 15 NWLR (Pt. 896) 245, 263 – 264 and Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, 204.

Counsel for the respondent, with all due respect to him, was also engaged in speculation and conjecture in submitting that the facts contained in Exhibit C could only be recounted by an active participant in the crime. It may well be so and it may also be true as stated by the appellant therein that he was only given the information though he was not one of the criminals.

The burden of proof is on the prosecution to establish beyond reasonable doubt that an accused person is guilty of the offence with which he is charged. This is because an accused person is presumed to be innocent until he is proved to be guilty. See Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Such proof is not attained by speculation and conjecture. Where the prosecution has not led evidence discharging this burden, the idea of considering the defence of the accused person does not arise. So I will not weary myself in considering whether or not the trial Court considered the defence raised by the appellant.

The finding of the learned trial judge against the appellant is not supported by evidence and I am under a duty to interfere and set it aside as it has resulted in a miscarriage of justice. See Ikem v. state supra.

I therefore enter a negative answer to the lone issue for the determination of the appeal and resolve it in favour of the appellant.

The inexorable conclusion that I reach is that the appeal has merit and so it succeeds. I therefore set aside the decision of the trial Court and, in its place, I enter a verdict of not guilty for the appellant. I accordingly discharge and acquit him in all the counts of the information.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in draft, the judgment of my learned brother, JOSEPH EYO EKANEM, JCA. I agree with his reasoning and conclusion therein. I am not aware of any legislation or law in this country which protects intelligence materials gathered during the course of an investigation from disclosure to the Court in criminal proceeds.

In criminal proceedings such as the one in the instant case. Materials or evidence gathered during investigation of an alleged crime does not in my view qualify as a classified matter, under Section 9 of the Official Secrets Act which defines:
“Classified Matter” as “any information or thing which under any system of security classification, from time to time, in use by or by any branch of the government, is not to be disclosed to the public and of the disclosure to the public would be prejudicial to the Security of Nigeria.”
The evidence of PW3 that the analysis of the phone number used by the Kidnappers to demand ransom showed that the appellant was involved in the Kidnapping and Killing of the victim, is a conclusion by the police based on the facts gathered during the investigation.
The Court cannot accept the conclusion or finding by the police without a disclosure of facts or evidence from which that conclusion was drawn. The Court cannot convict an accused upon a secret evidence known only to the investigator. The evidence of PW3 that inclusion of the analysis of the telephone numbers used to demand ransom in his investigation report would amount to divulging official secrets is totally wrong and unacceptable. The prosecution has a duty to show or demonstrate to the Court how they arrived at the conclusion that the appellant was involved in the alleged crime. Disclosure of facts and evidence gathered or discovered in the course of an investigation of commission of crime is a right of the accused and that right cannot be denied on the pretext of state security.

Secondly, the appellant’s Statement though raised a strong suspicion that he is not just a bystander or an on looker of the commission of the alleged crime, it is not sufficient to support a conviction. The law is trite that suspicion no matter how strong does not take the place of legal proof and cannot ground conviction for any crime. See WAZIRI & ANOR V. GEIDAM & ORS (2016) LPELR – 40660 (SC) AT 44 (A-C) STATE V. AJAYI (2016) LPELR – 40663 (SC) AT 48 (A-C).

For these and other reasons ably advanced by my learned brother, I too allow the appeal. I abide by the consequential orders made therein.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read before now the draft judgment of my learned brother Lord, JOSEPH EYO EKANEM JCA and agree with the reasoning and conclusions therein except to add that.

The mere presence of the accused person at the scene of crime is not conclusive that he committed the offence. This was the apt findings of the Court in the case of HABILA KORAU & ORS V THE STATE (2015) LPELR – 25917 did something to facilitate 17 (CA) thus;
“It is trite law that the mere presence of an accused person at the scene of a crime does not as a matter of law render the person so present guilty. There must be clear evidence that either prior to or at the time of the commission of the offence, the person present did something to facilitate the commission of the offence. MOHAMMED V THE STATE (1995) SCNJ 189, ORJI V THE STATE (2008) 10 NWLR (PT 1094) 31, EMIOWE V STATE (2000) 1 NWLR (PT 641) 409……
Our law, in such cases, requires evidence so clear and convincing that every bystander the instant he hears it must be fully satisfied of the truth of it; it admits of no surmises, innuendos, forced consequences or harsh construction, nor anything else to be offered in evidence but what is real and substantial according to the rules of natural justice and equity.”
Therefore, the learned trial Court erred when he inferred the … was involved in the planning and execution of crimes because that the appellant knew about the kidnap and killing of the victim.

For this reason and all the above, I join in allowing the appeal and abide by all consequential orders therein.