OKUNDAYE v. STATE
(2020)LCN/15341(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, July 24, 2020
CA/B/504C/2018
RATIO
CONFESSIONAL STATEMENT: WHETHER A RETRACTION BY AN ACCUSED PERSON OF A CONFESSIONAL STATEMENT RENDERS THE STATEMENT INADMISSIBLE IN EVIDENCE
The law is long settled that a retraction by an accused person of a confessional statement or even his denial of same does not render it inadmissible in evidence and the Court can even rely solely on such retracted statement to sustain a conviction so long as the confession is positive, direct and unequivocal. Corroborative evidence in that case, which was available in this case as shown by the circumstances of appellant’s arrest, is only as matter of prudence: see Obasi Onyenye v. State (2012) LPELR-SC 306/2010; Idowu v. State (2000) 7 SCNJ 245 @ 286, State v. Obobolo (2018) 4 NWLR (PT 1610) 397; Alarape v. The State (2001) 84 LRCN 600 @ 622-623 (SC). PER BOLOUKUROMO MOSES UGO, J.C.A.
CONFESSIONAL STATEMENT: RELEVANCE OF A DENIED EXTRA-JUDICIAL STATEMENT
A denied extra-judicial statement cannot be the basis of any defence by an accused person for the Court to consider: See Sanusi v. State (1984) NSCC 659 @ 662, 669. PER BOLOUKUROMO MOSES UGO, J.C.A.
Before Our Lordships:
Samuel Chukwudumebi Oseji Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
OSAZEE OKUNDAYE APPELANT(S)
And
THE STATE RESPONDENT(S)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the High Court of Edo State of 29th April 2014 convicting the appellant on a two count charge of conspiracy to commit armed robbery and actual commission of armed robbery. Appellant was sentenced to death upon his conviction.
The case of the prosecution, which it presented through its two witnesses (P.W.1 and P.W1) is that, on the 22nd day of March 2007 at about 8.00 to 8.30 pm, P.W.1 (Mr. Anthony Aikorighie) was driving along Urubi Iyaro in Benin City when he was flagged down by appellant and two others who were tried along with him. They begged him for a lift as, according to them, they were also going towards his direction. Along the way, they stopped him, pointed a gun at him, asked him to lie down on the floor and then drove his Ford Escort car away along with his other valuables in it.
Four days after the incident, P.W.1 who had earlier reported the robbery of his car to the police was walking along Ehakpen Street in the same Benin City when he saw his car with the bonnet open and appellant trying to start it. He thereupon called the police who responded immediately and went to arrest appellant. Statements were obtained from appellant and his co-accused persons by the police and same were all admitted in evidence. In his statement marked Exhibit B, appellant, after revealing in details that he is a member of a gang of robbers that had been robbing people in Benin City of their valuables including vehicles, admitted that members of his gang robbed P.W.1 of his vehicle but that he did not himself participate in that robbery. He had this to say in Exhibit B concerning the part he played and the circumstances of his arrest:
On Thursday 22nd March 2007, Papa and Kingsley with that other boy of our gang went out for operation and snatch this vehicle that is recovered from my hand. They did not tell me about it until when they came back and told me that they snatched one vehicle. From there they said I should go and carry the vehicle from the Ikpoba Slope. From there I went with one Osakpawen (his co-accused) and took the vehicle to our house. The next day we used the vehicle around inside Benin. Around 4pm we went back home to Ovia South. On the day, 26/3/07, around 5pm to 6pm I was driving along Ulihoha Market some people hold and said is their vehicle. From there police arrested me. In my gang we are four in number: myself, Papa, Kingsley and one other. My gang have run away. Apart from their house, I don’t know where we can see them.
In Court he retracted this statement and testified instead as follows:
In April 2007, early morning, I was going to work as carpenter. I entered taxi at Friendship Junction, the car broke down and the driver parked with the passengers inside the vehicle. The driver started to check the engine. The market women left to board other vehicles. I demanded for my money from the driver so that I could do the same but then he begged me to wait. Less than five minutes later, police came and asked of the driver and he identified himself from where he was drinking mineral. The police called him for questioning but he refused. As they walked towards him, he ran. I was crying for my money still with the man. The police chased the man but turned back to meet me crying for my ₦500 still with the driver but to my surprise, they handcuffed my hands and took me to their vehicle, saying I should take them to the house of the driver. At the station, I was detained in the cell.
As to how Exhibit B was procured, he said the policemen brought him out in the dead of the night and told him to co-operate with them on how to get the driver but he told them he didn’t how. They then beat him with wood until blood starting streaming from his ears and nose and he passed out. He had this to say on the exact manner Exhibit B was made:
In the morning, they brought me out and gave me paper to sign. I told them I did not know how to sign. They did not ask me anything before they brought the paper. One woman started to spell my name for me to write and I wrote it on the paper before they took me back to the cell.
The trial judge did not believe him; he held instead, that appellant was in fact one of those that snatched P.W.1’s car from him as stated by P.W.1 in his evidence and convicted him for both conspiracy to commit armed robbery and taking part in the actual armed robbery of the vehicle.
Appellant still pleads his innocence and has brought the instant appeal on four grounds from which he distilled two issues for determination as follows:
- Whether the prosecution proved his guilt beyond reasonable doubt.
2. Whether his said confessional statement, Exhibit B, was admissible against him.
Respondent expanded these two issues of appellant by couching three issues out of them. I do not intend to waste my time reproducing respondent’s issues. Appellant owns the appeal, so in the absence of any objection by respondent to the two issues he has formulated, I shall adopt them for the determination of the appeal.
On issue 1, appellant after making the trite point that the prosecution must prove its case beyond reasonable doubt to secure conviction attacked first his identification by the complainant, P.W.1. He submitted that the prosecution did not properly connect him with the robbery; that P.W.1 did not identify him as one of the robbers that snatched his vehicle. He said P.W.1 failed to state how he was able to identify the robbers and him in particular. He says P.W.1 did not tell the clothes he was wearing, his appearance or his features or what struck him (P.W.1) about him, more so as the robbery was said to have taken place in the night at about 8.00 to 8.20pm. He cited the cases of Ndidi v. State (2007) 41 WRN 1 @ 16, (2007) 5 SCNJ 274 @ 287-288 (SC) and Alabi v. State (1993) NWLR (PT 307) 511 on the need for the Court to be very careful in convicting an accused person without proper identification in cases where he was not previously known to the witness as in this case where P.W.1 also admitted that he did not know him before the said robbery. In such circumstances, he submitted, the Court must meticulously consider the (a) circumstances in which the eye witness saw the suspect, (b) the length of time the witness saw the suspect, (c) the lighting conditions, (d) the opportunity of close observation, (e) the previous contacts between the two parties, (f) description given of the accused to the police shortly after the commission of the crime and (g) the opportunity the victim had of observing the accused.
He argued that the fact that P.W.1 saw him with the stolen car four days after the robbery did not make him one of those that robbed him of it. He asked how he would have had the guts to risk repairing a stolen car rather than abandon it on the road if he truly knew that it was stolen. He also wondered why he was charged with armed robbery instead of simple robbery given the evidence from P.W.2 that it was toys guns that were recovered from his house when search was conducted. On the whole, he submitted that the prosecution did not prove its charges against him beyond reasonable doubt and the trial Court wrong in holding otherwise so we should resolve this issue in his favour.
The State maintains that it proved its case that appellant was one of those that robbed P.W.1 of his vehicle. In support of this, it not only cited appellant’s admission in Exhibit B but also the evidence of P.W.1 in cross-examination that he saw appellant and his co-accused persons before they flagged him down, and that other cars also beamed their lights on them before he picked them. It also relied on the doctrine of recent possession and its presumption having regards to the fact that the snatched car was recovered from appellant just three days after the robbery.
Resolution of issue
The main contention of the appellant here is whether the evidence of the prosecution witnesses, especially the complainant, P.W.1, identifying him as one of those that snatched the car from him did not leave room for doubt which should have been resolved in his favour. Incidentally, this same argument was made to the trial Judge with even a further argument that in the circumstances an identification parade should have been conducted for P.W.1 to identify appellant but the trial judge rejected it in the following manner:
“In the present case, the identification evidence of the 1st prosecution witness as it relates to the 1st accused [appellant] was rather spontaneous. According to the prosecution witnesses, it was the 1st prosecution witness who actually caused the 1st accused to be accosted and handed over to the police. It certainly could not make any sense therefore that after handing over the 1st accused to the police, the same police would proceed to conduct an identification parade to enable the same 1st prosecution witness identify the suspect.”
His Lordship did not stop there, for a little later in his judgment, he also took into account the evidence of the P.W.1 regarding how appellant was arrested. Further taking note of the admission of appellant in his extra-judicial statement (Exhibit B), the trial Judge finally concluded as follows:
In fact from the said evidence, I am unable to doubt the identification evidence of the 1st prosecution witness as it relates to the 1st accused, for the 1st prosecution witness was consistent that it was 1st accused that had driven the car after it was snatched from him.
These findings are all supported by the evidence so they cannot be faulted. Besides the evidence of the two prosecution witnesses as to how appellant was arrested with the stolen car four days after the incident and appellant’s own admission in Exhibit B of that fact, P.W.1 under cross-examination from appellant’s counsel elaborated on how he was able to recognize appellant and his comrades in robbery when he said:
“I still recognized the accused persons because I first saw them before they told me that they were going towards my direction. Moreover, other car beamed light on them. It is correct that I had not met the 2nd accused [being what appellant was at that point of the trial], when I saw him open the bonnet of the car, as one of the people that snatched the car from me and that drove it.”
Appellant’s counsel ended the cross-examination there and never suggested to P.W.1 that he did not see appellant or the people who snatched his car from him before he stopped to pick them and or that no other car beamed its headlights on them to enable him recognize them. Without that challenge the Court was bound to accept that evidence, and that means the contention of appellant about insufficient lighting to aid recognition at 8.00 to 8.30 pm when the robbery took place is of no moment.
The fact that the same vehicle snatched four days earlier from P.W.1 was recovered in the possession of appellant also activates the provisions of Section 167(a) of the Evidence Act 2011 enjoining the Court to presume that “a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for them.”
Incidentally too, appellant having denied his extra-judicial statement cannot turn around to take advantage of the explanation he made there of how the said vehicle came into his possession. A denied extra-judicial statement cannot be the basis of any defence by an accused person for the Court to consider: See Sanusi v. State (1984) NSCC 659 @ 662, 669.
As for his contention that he should have been charged with robbery since it was toy guns that were found in his house by the police when it conducted the search, it was not the case of the prosecution that it was toy guns or the ones found there that were used for the robbery so that argument is of no avail to him.
For all the foregoing reasons, I resolve this issue against appellant.
On issue 2, appellant submitted that before a confessional statement can be admitted in evidence against an accused person it must be direct, positive and unequivocal and must be shown beyond reasonable doubt by the prosecution to have been made voluntarily by the accused person. That was not the case in this case given that he in his defence denied making it. Chief J.N. Okongwu on his behalf also submitted that going by the prosecution’s admission that a caution was issued on appellant by the police before the said statement was recorded, the caution was an inducement and made the confessional statement obtained after it involuntary and inadmissible. Counsel cited R. v. Viap Bong (1961) NWLR 47 case (obviously a wrong citation as NWLR only started publication in 1985) in support of that contention. Learned counsel also argued that a careful observation of Exhibit B shows that it was not signed by the appellant.
Resolution of issue
While it is settled law that the Court can only act on a confessional statement that is direct, positive, unequivocal and shown beyond reasonable doubt by the prosecution to have been volunteered by an accused person, it does not appear to me that any of the specific complaints put forward by appellant supports his contention. I shall consider those arguments in reverse order. First on learned counsel’s contention that a careful observation of appellant’s confessional statement will show that appellant did not sign it, I do not know where counsel got his inspiration for that conclusion, for a careful comparison of appellant’s signature in his said confessional statement (Exhibit B) with his undisputed signature in his Notice of Appeal prepared for him by his same solicitor as shown at p.116 of the records of appeals shows without any doubt that they were made by one and the same person, the appellant. This Court can properly compare handwriting and disputed signatures in clear cases like the instant one: See Section 101 (1) of the Evidence Act 2011 and the cases of Queen v. Wilcox (1961) N.S.C.C. 274 @ 276; Adenle v. Olude (2002) 18 NWLR (PT 799) 413 (S.C.) and Ndoma-Egba v. ACB (2005)14 NWLR (PT 944) 79. Besides, appellant in his evidence in Court admitted that he signed the said document (see p.46 of the records).
As for the contention that administering caution on appellant before obtaining his confessional statement is evidence that it was not made voluntarily, the law as I have always understood it and supported by the Judges Rules is that the suspect need be cautioned before he makes his statement; it is rather the absence of caution that makes an extra-judicial statement suspicious. But even at that, the provisions of Section 31 of the Evidence Act 2011 that “If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given neutralizes that.
The other argument of appellant was that in Court he denied making his said confessional statement so it also ought to affect its admission in evidence. The law is long settled that a retraction by an accused person of a confessional statement or even his denial of same does not render it inadmissible in evidence and the Court can even rely solely on such retracted statement to sustain a conviction so long as the confession is positive, direct and unequivocal. Corroborative evidence in that case, which was available in this case as shown by the circumstances of appellant’s arrest, is only as matter of prudence: see Obasi Onyenye v. State (2012) LPELR-SC 306/2010; Idowu v. State (2000) 7 SCNJ 245 @ 286, State v. Obobolo (2018) 4 NWLR (PT 1610) 397; Alarape v. The State (2001) 84 LRCN 600 @ 622-623 (SC).
In the result, I also resolve this issue against appellant.
Both issues having been resolved against appellant, it means his appeal is bereft of merit and must be and is here dismissed while the judgment of the lower Court as it relates to appellant is affirmed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have been privileged to read the draft copy of the judgment just delivered by my learned brother B.M. UGO, JCA.
The issues in contention have been properly addressed and I agree with the reasoning and conclusion reached therein. I also hold that the appeal fails and it is hereby dismissed.
I abide by the consequential orders made in the lead judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment of the Court below just delivered and I am in agreement with the reasoning and conclusions reached that the appeal is unmeritious and it is according dismissed. I subscribe to all other consequential orders made thereto.
Appearances:
T. Okeke, Esq., holding the brief of Chief J.N. Okongwu For Appellant(s)
A. Ayeni, Esq. Senior State Counsel, Edo State Ministry of Justice For Respondent(s)
