OFFIONG v. STATE (2020)

OFFIONG v. STATE

(2020)LCN/15229(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/C/253C/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ROBINSON OFFIONG APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

STANDARD OF PROOF IN CRIMINAL CASES

It is a cardinal requirement of our criminal justice system especially in Nigeria which operates common law jurisprudence, that the prosecution must prove its case beyond reasonable doubt. Except in few limited circumstances in which the law presumes an accused person to be sane when a defence of insanity is raised, the burden of proof remains with the prosecution. This invariably means that every ingredient of an offence must be established to that standard of proof so as to leave no reasonable doubt of guilt of an accused. See MUSA V. STATE (1976) 8 – 10 SC 225 AIGUOREGHIAN V. STATE (2004) 1 SC (Prt 1) 65 at 86 and BASSEY V. STATE (2019) 12 NWLR (Prt 1686) 348 at 362 – 363.
The law also recognizes three ways of proving criminal offences, namely:
(a) through confessional statement of the accused person; or,
(b) by direct eye witness account of the commission of the offence charged, or
(c) through circumstantial evidence.
See AKPAN V. STATE (2008) 14 NWLR (Prt 1106) 72, BASSEY V. STATE (2012) 12 NWLR (Prt 1314) 209, AKINLOLU V. STATE (2016) 2 NWLR (Prt 1497) 503 and OKANLAWON V. STATE (2015) 17 NWLR (Prt 1489) 445. PER SHUAIBU, J.C.A.

MEANING OF HEARSAY EVIDENCE

Hearsay evidence is any statement made out of Court but offered in Court to prove the truth of the facts asserted in Court. By virtue of Section 37 of the Evidence Act, 2011, hearsay means a statement: (a) oral or written made otherwise than by a witness in proceeding or (b) contained or recorded in a book, document or any record whatsoever, proof of which is not admissible under any provision of the Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. Section 38 of the Act provides that:-
“38. Hearsay evidence is not admissible except as provided on this part or by or under any other provision of this part or any other Act.”
By and large, evidence of a statement made to a person by a person who is himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it proposed to establish by the evidence not the truth of the statement, but the fact that it was made. When a third party relates a story to another as proof of contents of a statement, such story is hearsay. See OJO V. GHARORO (2006) ALL FWLR (Prt 316) 197 at 218 and EDEMEKONG & ORS V. EKPO & ORS (2012) LPELR – 19705. PER SHUAIBU, J.C.A.

WHETHER R NOT A CONFESSIONAL STATEMENT MUST BE VOLUNTARILY MADE BEFORE IT CAN BE RELIED ON TO CONVICT AN ACCUSED PERSON

The law is settled that in order for a confessional statement to be relied on to convict an accused, it must be voluntarily made and must be free, direct, positive, unequivocal, and satisfactorily proved. It is however desirable for the Court to look for some independent evidence outside the confession of an accused no matter how slight, in order to determine if the circumstances made it probable that his confession was in fact true. See HARUNA V. AG, FEDERATION (2012) 9 NWLR (Prt 1306) 419, ASHIWE V. STATE (1983) 5SC 32, GALADIMA V. STATE also reported in (2012) 8 NWLR (Prt 1333) 610, OSUAGWU V. STATE (2013)5 NWLR (Prt 1347) 360 and BASSEY V. STATE (supra). PER SHUAIBU, J.C.A.

FACTORS TO BE CONSIDERED IN PLACING WEIGHT ON THE CONFESSION OF AN ACCUSED PERSON

The Courts have formulated certain factors to be considered in placing weight on the confession of an accused. These considerations are laid down as follows:-
(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) Was the prisoner one who had the opportunity of committing the crime?
(e) Is his confession possible and
(f) Is it consistent with other facts, which have been ascertained and have been proved?
See MUSA V. STATE (2013) 9 NWLR (Prt 13501) 214 NWACHUKWU V. STATE (2007) 17 NWLR (Prt 1062) 31, IKPO V. STATE (1995) 9 NWLR (Prt 421) 510 and GALADIMA V. STATE (supra). PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The appellant in this appeal was arraigned before the High Court of Akwa Ibom State presided over by Iniabasi T. Udobong J, sitting at Abak on two Court charge of conspiracy and kidnapping contrary to and punishable under Section 552 of the Criminal Code, Cap. 38, Vol.2 Laws of Akwa Ibom State of Nigeria, 2000 and Section 1 (1) (a) and 2 of Akwa Ibom State Internal Security and Enforcement Law, 2009.

The prosecution’s case was that the appellant along with others now at large on the 2nd day of June, 2014 at Itung village in Abak Local Government Area of Akwa Ibom State, did kidnap one Mfon Tim and forcefully took him to an unknown destination and that the said Mfon was at the time of the trial of this case not seen or heard from.

At the trial, the prosecution called five witnesses and tendered four exhibits, while the appellant herein gave evidence in his defence but called no other witness. At the conclusion of the trial and in a considered judgment delivered on 25/10/2019, learned trial judge found the appellant guilty of the offences charged and sentenced him to death by hanging.

Dissatisfied with the said judgment, the appellant has appealed to this Court by his notice of appeal filed on 17/11/2017 containing an omnibus ground which was later amended by leave of this Court. The amended notice of appeal filed on 26/3/2019 contains five grounds of appeal.

In line with the practice of this Court, briefs of argument were filed and exchanged by parties. The appellant’s brief of argument settled by Samuel Ikpo Esq. was filed on 26/3/2019 wherein the appellant distilled five issues for the determination of this appeal as follows:-
1. Whether the failure of the prosecution to call Ubokobong Sunday Okorie the only eye witness to the alleged kidnapping was not fatal to prosecutor’s case. (Distilled from ground 2).
2. Whether the prosecution proved beyond reasonable doubt that the statement of the appellant Exhibits A and A1 during trial within trial were voluntarily made to warrant the trial judge to admit them and base conviction on same. (Distilled from ground 3).
3. Whether the learned trial judge adopted the test as laid down by the Supreme Court in Galadima V. The State 2013 Vol. 217 LRCNPG 58 when he held that the statements of the appellant in Exhibits A and A1 were confessional worthy of credibility. (Distilled from ground 4).
4. Whether the learned trial judge was right in accepting and acting upon the statement of the IPO Princewell Daniel brought by way of additional evidence when no leave of Court was sought for and obtained. (Distilled from ground 5).
5. Whether the judgment of the Court was not unreasonable having regard to the evidence at the trial. (Distilled from ground 7).

The respondent in its brief of argument deemed filed on 10/10/2019 settled by the Director of Public Prosecutions Joseph Umoren Esq. adopts the appellant’s issues.

A careful perusal of all the five issues formulated by the appellants and adopted by the respondent questioned the evaluation of evidence by the learned trial judge. That being the case, the said five issues can conveniently be compressed into a single issue that is,
Whether from the totality of the evidence adduced at the trial the prosecution had proved the offence of conspiracy and kidnapping against the appellant.

In his brief of argument, learned counsel for the appellant submitted that the evidence of all the prosecution witnesses are hearsay evidence and therefore inadmissible. He referred to Section 126 (a) (b) (c) and (d) of the Evidence Act to the effect that oral evidence must in all cases be direct.

Still in argument, learned counsel submitted that where there is a vital point in issue and there is a witness whose evidence should resolve the matter one way or the other, that witness ought to be called and failure to do so will be fatal to the prosecution’s case. Thus, the failure to call the only eye witness in this case Ubokobong Sunday Okorie is detrimental to the case of the prosecution. He referred to EREKU V. QUEEN (1959) WNLR 77 and OPEYEMI V. STATE (1985) 2 NWLR 101 at 102.

On the appellants’ confessional statements, Exhibits A & A1 learned counsel submits that the statements are not material in a trial within trial but rather it is the voluntariness of the statements which is material. The prosecution in the course of trial within trial claimed that other police officers were present when the appellant made his statement and failure on the part of the prosecution to call any of these police officers to ascertain their voluntariness, raises a presumption that had they been called, they would have said things unfavourable to the prosecution.

Respecting the trial Court’s findings that the scar on appellants’ body was old, learned counsel argued that same was perverse because the inspection by the Court took place one year and six months after the torture was inflicted on the appellant.

It was also contended on behalf of the appellant that the admissibility of the appellant’s statement was tainted by the failure of the trial Court to follow the laid down procedure in admitting the appellants’ statements and thereby occasioning miscarriage of justice.

Learned counsel contend that the Supreme Court had in GALADIMA V. STATE (supra) laid down certain criteria of testing confessional statement in order to assess its quality for the purposes of determining its credibility for acceptability. He therefore submits that if the confessional statement fails to pass these tests, no conviction can properly be founded on it. He referred to NSOFOR V. STATE (2016) 5 LRCN 218 at 220 in urging this Court to upturn the conviction of the appellant for failure to adhere to the prescriptions set down by the apex Court.

It was finally argued that by the mandatory provisions of Section 314 of the Criminal Procedure Law Cap. 39 Laws of Akwa Ibom State, the prosecution while filing information shall –
(a) Attach statement taken from witnesses, and
(b) Any document which are to be put in evidence by the prosecution at the trial.

The prosecution according to the learned counsel filed what was tagged “Notice of additional evidence” and attached the statement of the IPO wherein the trial Court used same without leave of Court which runs contrary to Section 314 (3) aforesaid and this Court was urged to expunge the said additional evidence relying on GBOKO V. STATE (2007) 12 NWLR (Prt 1063) 272.

In response to the above, learned counsel to the respondent contend that it does not lie in the mouth of the defence to urge the prosecution to call a host of witnesses or a particular witness in proof of its case but all that the prosecution needs to do is to call enough material witnesses, the right of the prosecution to call witnesses required to prove its case is not mere privilege but a prerogative. He referred to AFOLALU V. THE STATE (2012) 10 LRCNCC 30 at 41 and SHURUMO V. THE STATE (2012)10 LRCNCC 1 at 16. Thus, the non-calling of Ubokobong does not amount to withholding evidence as nothing prevents the appellant from calling or issuing a subpoena on the said Ubokobong to prove that he was not involved in committing the offences charged. He referred to ROBERT V. IGP (2018) LPELR – 44176.

On the evidence of pw1 and pw3, the police officers, it was submitted that the evidence of an IPO does not amount to hearsay because an IPO narrates to Court the outcome of his investigation or enquiries or what he recovered in the course of his duties. He referred to OLAOYE V. STATE (2018) LPELR – 43601.

It was submitted on behalf of the respondent that the question of voluntariness or otherwise of a confessional statement is a question of fact to be determined by the trial Court whereas in this case, the trial Court has unquestionably evaluated the appellant’s statements and appraised same, an appellate Court would not interfere or substitute its own view for the view of the trial Court. He referred to AYENI V. STATE (2016) 13 NCC 466 at 507.

Still in argument, learned counsel submits that the procedure adopted by the lower Court on the admissibility of Exhibits A and A1 was proper and the appellant has failed to show that the finding of the trial Court was perverse and same has occasioned a miscarriage of justice.

On the laid down tests in assessing Exhibits A and A1 as alluded to by the appellant, learned counsel submits that though desired that convictions be based on evidence outside the confessional statement of an accused, a conviction based solely on confessional statement of an accused where same is direct, positive and satisfactorily proved, does avail in spite of the absence of any corroborating evidence. He referred to TAJUDEEN FABIYI V. STATE (2016) 13 NCC 52 at 75.

In further argument, learned counsel submits that the appellant’s statements were corroborated by the evidence of pw1 and the police investigation report, Exhibit B as well as the evidence of pw2, father of the victim who stated that the victim was nowhere to be found and had not been heard from uptill the time he gave his oral evidence in Court. Thus, the appellant had the opportunity of committing the offence because he is indigenous to Itung village where the victim was kidnapped and was in the village when the victim was kidnapped.

Learned counsel to the respondent also contended that procedure for bringing additional evidence is a pragmatic approach which is often adopted as the extant criminal procedure law did not provide any procedure. The respondent having filed and served on the appellant’s counsel a notice of additional evidence before pw1 testified and was duly cross-examined on it, the appellant has no cause to complain, concluded the learned counsel relying on EGBOMA V. STATE (2014) FWLR (Prt 761) 1439 at 1445.

He further submitted that the guilt of the accused person can be proved either by an eye witness account; circumstantial and or through the confessional statement of the accused person. And a conviction can be grounded and sustained on a free and voluntary confessional statement made by an accused person being the strongest evidence against the maker thereof. He referred to ILODIGWE V. STATE (2012) ALL FWLR (Pt 654) 1 and MATTHEW OKE ONWUMERE V. THE STATE (1991) 5S CNJ 150 at 163 in urging this Court to dismiss the appeal.

In the instant case, the appellant was tried for conspiracy and kidnapping but the evidence led and to which the trial Court relied upon in convicting the appellant relates to kidnapping only. At page 189 of the record of appeal, learned trial judge found as follows:-
“In the case at hand, it is only the accused person that stands trial on the charge of conspiracy. The other persons are at large and the Court cannot try them in absentia. Moreover, where an accused person is found guilty on a graver offence, the Court should abstain from returning any verdict on a lesser offence, because to punish him on both will put the accused person in a double jeopardy.”

In the light of the above finding, this Court will confine itself to the question as to whether from the totality of the evidence adduced at the trial Court; the prosecution had proved the offence of kidnapping against the appellant.

In its quest to establish the allegation against the appellant, the prosecution paraded five witnesses and relied essentially on the appellant’s extra judicial statements, Exhibits A and A1. The appellant’s main contention was that none of the prosecution’s witnesses fixed him to the scene of the crime. The testimonies of all the prosecution witnesses according to the appellant are hearsay evidence and therefore inadmissible.

From the record, none of the witnesses paraded by the prosecution gave direct evidence as regards the offence(s) charged. Thus, the evidence of the prosecution witnesses that seek to establish the event at ODOROMBOT area of Itung Abak village as to what happened to Mfon Tim, the alleged victim is hearsay and inadmissible. The learned trial judge has made a profound finding at page 180 of the record of appeal respecting the evidence of pw2, pw3, and pw4 as follows:-
“In the instant case, the narration of pw2, pw3 and pw4 as to the event at Odorombot area of Itung Abak village as to what happened to Mfon Tim are caught in the net of hearsay evidence and therefore it is inadmissible in this trial, I so hold.”

In a similar vein, the evidence of pw5 was not different from that of pw2, 3 and 4 which are adjudged hearsay and inadmissible. At page 156 of the record of appeal, pw5 said:-
“I am the secretary of the village council and on 2/6/2014 at about 1pm I saw Ubokobong Sunday Okorie one of the youth in my village, Ubokobong ran to my school and informed me that he was in company of Mfon John Tim to Odoro Mbot area commonly called NIFOR and on getting there they were waylaid, by some people but he ran away while Mfon John Tim was caught.”

I have restated that when the object of the evidence is to establish the truth of what is contained in the statement, such evidence is hearsay and inadmissible. Turning to the evidence of pw1, the Police Investigating Officer attached to Anti-Kidnapping Squad, State Police Headquarters, Uyo. The IPO in any investigation is not usually an eye witness to any crime. He investigates alleged crimes reported to him. He interrogates the suspects and takes down their statements. He also visits the locus in quo for further investigations. He interviews witnesses and investigate alibi etc.

The appellant has argued that the evidence of the IPO, pw1 is in the realm of hearsay and therefore inadmissible. In so far as the evidence of IPO relates to that outcome of his investigation, or enquiries or what he recovered in the course of his investigation, that evidence cannot be classified as hearsay and inadmissible. See OBOT V. STATE (2014) LPELR – 23130, CHUKWU V. STATE (1992) LPELR – 854 and ABIODUN V. STATE (2016) LPELR – 41399.

Learned counsel for the appellant also contend that the allegation was predicated on suspicion but in debunking that similar argument, the learned trial judge held at page 181 of the record of appeal that:-
“What is linking the accused person to the crime is the statement of the accused person at Ikot Akpan Abia on 1/10/14 and 3/10/14 but not suspicion”.

It is therefore clear from the above that the conviction of the appellant of the offence charged was based squarely on his extra-judicial statements, Exhibit A and A1. The law is settled that in order for a confessional statement to be relied on to convict an accused, it must be voluntarily made and must be free, direct, positive, unequivocal, and satisfactorily proved. It is however desirable for the Court to look for some independent evidence outside the confession of an accused no matter how slight, in order to determine if the circumstances made it probable that his confession was in fact true. See HARUNA V. AG, FEDERATION (2012) 9 NWLR (Prt 1306) 419, ASHIWE V. STATE (1983) 5SC 32, GALADIMA V. STATE also reported in (2012) 8 NWLR (Prt 1333) 610, OSUAGWU V. STATE (2013)5 NWLR (Prt 1347) 360 and BASSEY V. STATE (supra).
The appellant’s main contention here was that there was no independent evidence outside the confession in Exhibits “A” and “A1” and thus the trial Court jettisoned the tests laid down by the Supreme Court in GALADIMA V. STATE (supra). The Courts have formulated certain factors to be considered in placing weight on the confession of an accused. These considerations are laid down as follows:-
(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) Was the prisoner one who had the opportunity of committing the crime?
(e) Is his confession possible and
(f) Is it consistent with other facts, which have been ascertained and have been proved?
See MUSA V. STATE (2013) 9 NWLR (Prt 13501) 214 NWACHUKWU V. STATE (2007) 17 NWLR (Prt 1062) 31, IKPO V. STATE (1995) 9 NWLR (Prt 421) 510 and GALADIMA V. STATE (supra).
The relevant question here is whether the trial judge applied the above tests before it relied and acted on Exhibits A and A1 especially when the appellant have challenged the voluntariness of the said confessional statements, prompting the trial Court to conduct trial within trial. From the judgment of the trial on the printed record, it is doubtful that Exhibits A and A1 were subjected to any of the factors laid down by the superior Courts before attaching weight to the said confession. At page 188 of the record of appeal, the learned trial judge found thus:-
“In the instant case, I hold that having found as a fact through evidence at trial within trial that the accused person’s confessional statement was voluntarily made and positive, direct, and unequivocal, this Court can convict the accused person based on the confessional statements alone without any corroboration, I so hold”.
There is no denying the fact that where a Court is convinced that the confession of guilt was freely and voluntarily made and the Court is satisfied as to its truth, the accused person can be convicted on it. It is however expedient and desirable that where as in this case an accused person denied making it voluntarily, the trial Court should look for some evidence however slight, outside the confession to confirm that it was a true confession.
In ADEBANJO V. STATE (2019) 13 NWLR (Prt 1688) at 138 – 142, the apex Court recently held that the caution and caveat for independent evidence to sustain the conviction of an accused person is a Criminal Law Principle of justice that every doubt be resolved in favour of the accused and it is better to acquit nine people than to convict one innocent person. It is also meant to make the Courts to tread with caution in convicting an accused person on a disputed confessional statement without further corroboration. Otherwise, an accused person can be convicted solely on his confessional statement if found and proved to be positive, direct and unambiguous.
It is also relevant to note that the corroborative evidence required need not be direct evidence linking the accused person to the commission of the offence. Thus, it is enough even if it is only circumstantial and connects or tends to connect the accused with its commission.
In the absence of slightest independent evidence connecting or tendering to connect the appellant with the alleged kidnapping, it is unsafe to convict the appellant for an offence of a highest magnitude. Also where doubts exist in the mind of the Court on the guilt of an accused person, the Court should acquit and discharge the accused.

Having regard to the quality of the evidence led at the trial Court vis-a-vis the gravity of the offence, the only reasonable conclusion to make is that the appeal succeeds per force. I hold that there is merit in this appeal and it is accordingly allowed. I hereby set aside the judgment of the trial Court delivered on 25th day of October, 2017. The appellant is accordingly discharged and acquitted.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother M. L. Shuaibu, JCA. I agree with the reasoning and conclusion. I also agree that the appeal is meritorious and deserves to be allowed.
The appeal succeeds, the Appellant is accordingly discharged and acquitted.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, M. L. SHUAIBU, JCA and I am in total agreement with him on the resolution of the main issue distilled for determination.
I too allow the appeal for being meritorious. I also abide by the other orders made therein in the lead judgment.

Appearances:

O. Eddie, Esq. For Appellant(s)

Joseph Umoren, DPP MOJ, AKS with him, S. S. Ogar, P. S. C and B. O. Olaniyam P. SC, MLJ, AKS. For Respondent(s)