In The Supreme Court of Nigeria
On Friday, the 19th day of January, 2018
Before Their Lordships
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
AMIRU SANUS IJustice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
…………………….A…………………….AMIRU SANUSI, J.S.C.(Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Lagos division (“The lower Court” for short) delivered on the 16th day of May, 2014 which affirmed the judgment of the Lagos State High Court (Trial Court) delivered on 13th December, 2007.
The appellant herein who was the 1st accused person at the trial Court, was charged along with three other co-accused persons before the trial Court on offences of conspiracy to commit armed robbery, armed robbery, murder and receiving stolen goods, contrary to Sections 403A, 402(2) (A), 319(1) and 420 of the Criminal Procedure Code, Cap 32, Vol.2 Laws of Lagos State of 1994. In proof of the case, the prosecution (now respondent) called three witnesses and tendered eight (8) exhibits, while the 1st accused/appellant did not call any witness but testified on his behalf. During the trial, the prosecution sought to tender a confessional statement which it alleged was voluntarily made by the accused/appellant but the defence objected to the admissibility of the said confessional statement on the ground that it was not made voluntarily by the accused/appellant. As is the law, the trial Court conducted trial within trial in order to determine the voluntariness of the said confessional statement. At the end of the mini-trial, the Court held that the statement was made voluntarily and admitted it in evidence and marked it as Exhibit H. The trial thereafter proceeded in earnest and in the end the trial Court found or held that the prosecution/respondent had proved its case beyond reasonable doubt that the appellant and the three other co-accused persons committed all the offences as charged and convicted them accordingly.
Miffed by the judgment of the trial Court, the appellant appealed to the Court of Appeal (the lower or Court below), albeit, without success. Aggrieved by the judgment of the Court below affirming the conviction and sentence passed on him by the trial Court the appellant further appealed to this Court.
The case of the prosecution was that on the 9th of December, 2000, the deceased late Chief Layi Balogun arrived at Muritala Muhammad International Airport from Abuja at around 3.30pm after which he, in company of his security detail, one Sgt Olajide Longe, Ieft for his (deceased’s) office situate at No.1, Balogun Street, Oregun, Ikeja Lagos. The security detail was in mufti. Then at about 9.00pm both of them left the office for the deceased’s residence at No.26, Oluwole Street, Akoka along with the deceased’s driver.
On approaching his residence, the gate was opened when the deceased and his security detail were accosted by five unknown armed men who fired gun shots towards the chest of the security detail. Thereafter, the deceased, the security detail and other members of his family were taken hostage by the five gun-men. After about ten to fifteen minutes later, both the deceased i.e Chief Balogun and the security detail were shot after which the gun-men carted away with the deceased’s cell phone, omega wrist watch and a sum of N20,000.00 and fled the scene of the crime. The Chief and the security detail were later rushed to hospital where the former passed on.
After filing this appeal before the Supreme Court, the counsel for the appellant, in keeping with the practice and rules of this Court, prepared his brief of argument and served same on the respondent. The Appellant’s brief of argument settled by F. Ajibola Dalley Esq, was filed on behalf of the appellant on 13th July 2017. In the said brief of argument, three issues were identified for the determination of this appeal which are set out hereunder:-
1. Whether the eminent justices of the Court of Appeal were right in holding admissible Exhibit H, the purported confessional statement of the appellant predominantly relied on in convicting the appellant of the charges of conspiracy to commit armed robbery and murder same having been established to have been obtained under duress (Grounds 1 and 2)
2. Whether the eminent justices of the Court of Appeal were right in relying exclusively on the challenged evidence presented by the prosecution without taking cognisance of the case presented by the Defence (Grounds 3 and 4).
3. Whether the eminent justices of the Court of Appeal were right in holding that the trial Court rightly admitted the challenged evidence of the Prosecution witnesses without furnishing or stating any reasons whatsoever for arriving at such findings and conclusion (Ground 5).
Upon being served with the appellant’s brief of argument, the learned counsel for the
respondent also filed a brief on behalf of its client on 23rd August 2007. The said respondent’s brief of argument was settled by Adedoyin Rhodes-Vivour and therein, two issues were identified as germane for the determination of this appeal. The dual issues are reproduced below:-
A. Whether the eminent justices of the Court of Appeal were right in holding admissible Exhibit H, the purported confessional statement of the appellant predominantly relied on in convicting the appellant of the charges of conspiracy to commit armed robbery, robbery and murder same having been established to have been obtained under duress.
B. Whether apart from the Exhibit “H”, the prosecution led cogent and credible evidence in proof of the guilt of the appellant beyond reasonable doubt.
It is not out of place to note that the respondent by her Issue No.1, has adopted the corresponding appellant’s issue No.1…………………….B…………………….
SUBMISSION BY APPELLANT’S COUNSEL ON HIS ISSUES FOR DETERMINATION
This issue deals with whether the Court below was right in holding admissible, Exhibit H the confessional statement of the appellant.
The learned counsel to the appellant contended that the confessional statement obtained from the appellant was not voluntarily made by him. He submitted that where element of oppression either by way of torture, inhuman or degrading treatment is established, the voluntariness of the said confessional statement is vitiated. He submitted that the onus of establishing whether a confessional statement is admissible or not is on the prosecution. He cited the case of COP v EPHRAIM ALOZIE (2017) LPELR 1313(SC). He argued further, that the prosecution failed to present any form of documentary evidence particularly in form of a medical report, corroborating the testimony of PW3 that the gun shot injuries sustained by the appellant occurred before he was arrested and detained at the Special Anti Robbery Squad Ikeja, Lagos. He argued further that the Court below ought not to have accepted Exhibit “H” in the light of uncontroverted credible evidence presented during the trial within trial, He cited the case of THE STATE V JAMES GWANGWAN (2015) LPELR 24837 (SC) where it was held per Ogunbiyi JSC as follows:
“The law is trite and well established it is open for an appellate Court to interfere with findings of a trial Court when such findings have been made on legally inadmissible evidence or they are perverse or are indeed not based on any evidence before the Court.”
He therefore submitted that the trial Court relied on a legally inadmissible confessional statement of the appellant (Exhibit “H”) in convicting and sentencing the appellant. He urged this Court to expunge from the record the legally inadmissible purported confessional statement attributed to the appellant.
This issue queries whether the Court below was right in relying exclusively on the challenged evidence of the prosecution without taking cognisance of the case presented by the defence. He argued that the statements of both PW1 and PW2 made at the police station were inconsistent with their oral testimonies in Court. They testified at the trial that they saw the appellant participating in the robbery and murder of the deceased, whereas in their statements to the police, they made no mention of the appellant or gave any description of him. He cited the case of OGUDO V THE STATE (2011) 11-12 [pt.1] SCM 209 at 222-223. He therefore submitted that failure of the Court below to take cognisance of apparent inconsistencies in both PW1’s and PW2’s statements made to the police and their oral testimonies had occasioned a miscarriage of justice. He contended further, that the Court below ought not have relied on PW1’s and PW2’s purported identification of the appellant as same was vague and imprecise as no credible evidence in form of identification was conducted. He contended that identification of the appellant on the television by PW1 and PW2 as one of those who robbed and killed the deceased cannot take the place of lawfully conducted identification parade. He submitted further, that the Court below erred in law by relying on the oral testimony of PW3 as his testimony can at best be described as legally inadmissible hearsay evidence. He referred to Sections 37 and 38 of the Evidence Act 2011 as amended and submitted that the Court ought to ascribe probative weight only to direct oral evidence of a witness who either saw or heard a fact in issue. He submitted again, that the Court below erred in law and that miscarriage of justice had been occasioned when it relied on the impeached evidence presented without taking any form of cognisance of the case presented by the appellant in his defence. He urged this Court to also resolve this issue in favour of the appellant.
This issue questions whether the Court below was right in holding that the trial Court rightly admitted the challenged evidence of the prosecution witnesses without giving reasons on such conclusion.
The learned counsel for the appellant argued that the Court erred in law when it upheld that the trial Court need not give reason for believing the evidence of PW1 and PW2 who claimed to have seen the appellant in the group of people that allegedly robbed and killed the deceased. He then urged the Court to also resolve this third issue in favour of the appellant and allow the appeal.
SUBMISSION OF RESPONDENT’S COUNSEL ON HER ISSUES FOR DETERMINATION
As I stated above, the respondent adopted the first issue formulated by the appellant and raised an additional issue for determination.
On issue No.1 i.e the issue relating to admissibility of Exhibit “H” the learned counsel referred to the contention of the appellant to the effect that the Court below affirmed the decision of the trial Court on the basis that the appellant had his signature on the statement, rather than the voluntariness of that statement.
The learned counsel to the respondent submitted that this contention is misconceived as the lower Court apart from the issue of signature, held that the trial Court followed logically the guide set by the apex Court. He referred to the judgment of the lower Court at page 472 of the record. He argued that establishment of oppression or coercion is a finding of fact and as such it is a determination to be made by a Court of law and it falls within the exclusive preserve of the trial judge only. He submitted that the Court below rightly considered the ratio decidendi adopted by the trial Court in reaching the decision that the confessional statement was voluntarily obtained. He submitted that a careful perusal of Exhibit “H” will show that it was recorded in total compliance with the requirement of the law. He submitted that the case of KIM V STATE(1992)4 NWLR pt 233 Pg.17 this Court stated the requirements of admissibility of extra judicial statement and listed them to include the followings:
(a) It must carry the usual words of caution
(b) each of the words of caution must be in the language understood.
(c) it must be followed by the maker’s thumb print or signature by the accused,
(d) it must also be recorded in the language understood by the maker.
(e) it must be read over and interpreted to the maker in the language in which it was made.
The learned respondent’s counsel argued further that even if Exhibit “H” was wrongly admitted, same would not automatically cause a reversal of the judgment. She cited Section 251 of the Evidence Act and submitted that wrongful admission of an evidence shall not itself be a ground for reversal of a decision where it appears on appeal that such evidence cannot reasonably be held to have affected the decision and that such decision would have been the same, even if such evidence had not been admitted. She then urged the Court to resolve this issue in favour of the respondent.
This issue relates to whether apart from Exhibit “H”, the prosecution led cogent and credible evidence to prove appellant’s guilt beyond reasonable doubt.
The learned counsel submitted that the lower Court apart from affirming the decision of the trial Court on the ruling on the “trial within trial,” also considered all evidence led in the trial before affirming the judgment of the trial Court. He referred to the judgment of the Court below at page 478 of the record.
On the contention of the appellant that PW1’s & PW2’s identification of the appellant is vague, she referred to the judgment of the Court below at pages 479-481 of the record. Also on the contention of the appellant that the evidence of PW3 was hearsay for failure to call the cell mate of the appellant who informed him [PW3) that the appellant boasted while in the cell and that he was among those who robbed and killed the deceased, she responded by submitting that Sections 37, 38, 125 and 126 of the Evidence Act 2011 referred to by the appellant are not applicable in the instant case as the IPO was merely giving evidence in respect of the investigation carried out by him to unravel the people behind the crime. He urged the Court to resolve the issue in favour of the respondent and to dismiss the appeal.
RESOLUTION OF ISSUE FOR DETERMINATION
Looking at the two sets of issue for determination proposed by the learned counsel for the parties, I feel that approaching this appeal based on the issues raised in the respondent’s brief of argument will comfortably determine this appeal. I will therefore be guided by them, and in doing so, I shall consider them together since as I said supra, the first issue had also been adopted in the appellant’s first proposed issue for determination.
Issues Nos1 & 2
The first issue revolves on Exhibit H, the confessional statement allegedly made by the appellant. Perhaps it is apt to kick-start the resolution of this issue by reiterating that there are three modes of proof of criminal cases. These methods or modes of such proof are:
(a) By testimonies of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s).
(b) Through confessional statement voluntarily made by the accused.
(c) Through circumstantial evidence which clearly points to the sole fact that the accused and no other person committed the offence charged.
For the time being, I will concern myself with Exhibit H, which is the confessional statement allegedly made by the appellant even though he retracted it during his defence. In the course of the proceedings in this case at the trial Court the prosecution sought to tender in evidence the confessional statement allegedly made by the appellant. The latter objected to the admissibility of that statement by the ground that it was obtained through torture arbitered on him. The law is trite and well settled too, that where there is dispute on whether or not an accused person made the statement sought to be tendered made same voluntarily, it is the duty of the trial Court to try the voluntariness of such statement by conducting, a “trial within trial” otherwise known as ‘mini trial’. See Olayinka v State (2007)9 NWLR [pt.1040)5; Obasi v State[1965) NWLR 119. In this instant case, the learned trial judge had duly complied with this rule and had conducted ‘trial within trial’ before he finally admitted the confessional statement of the accused/appellant in evidence as Exhibit H. Having ascertained the voluntariness of the extra-judicial statement of the accused/appellant, the trial Court in my view is duty bound to rely and act on the confessional statement (Exhibit H).
The call by the learned counsel for the appellant that the statement should be expunged from the record by this Court is therefore of no moment and rather absurd.
A confessional statement can be simply be defined as an admission by a person charged or an accused person accused of committing a crime at anywhere or at anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act 2011, as amended. It is well settled law, that free and voluntary confession of guilt alone by an accused person provided it is direct and positive and was duly made voluntarily, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. See Alabi v State (1993) 7 NWLR [pt.307) 5; Fabiyi v State (2015) 6-7 SC [pt.l] 83. Osetola & Anor vs State (2012) 6 SCNJ 321; Nwachukwu vs The State (2002) 7 SCNJ 230; Dogo v The State (2013) 2-3 SC (pt.II) 75 at 92-94.
I am not unaware of the fact and it is even settled law that before a Court convicts an accused person on his confessional statement alone, it must ascertain whether such confessional statement was voluntarily made and that it was also direct, positive, pungent and consistent with other facts as proved. See Jimoh vs State (2014) 10 NWLR (pt. 1414) 105. Looking closely and dispassionately at the confessional statement Exhibit H vis-a-vis the record of proceeding, I am not doubtful of the fact that the trial Court had duly examined and evaluated Exhibit H and also the lower Court had duly considered same before endorsing the trial Court’s reliance on it when in its judgment the lower Court stated as follows, inter alia.
“After reviewing the evidence placed before the Court in the trial within trial, the learned trial judge held that appending of the signatures by the appellants is proof that those statements were voluntarily made. This in my view is in line with the decision of the Supreme Court in Uche Obidiozo & Ors vs The State (supra). The learned trial judge had followed logically the guide set by the apex Court for admission of such statements. It was right on the part of the trial Court to have admitted the confessional statement of the 1st and 2nd appellants and marked them as exhibits ‘H’ and ‘D’ respectively. I do not have any reason to disturb the decision of the trial Court on this issue …………… “
It is pertinent to say that this Court has over the years evolved some requirements which a confessional statement must meet in order to be relied on by trial Courts. Some of these requirements include the followings:
(i) It must contain the words of caution
(ii) The cautionary words must have been administered in the language understood by the accused.
(iii) The statement was duly signed or thumb printed by the accused.
(iv) That the statement was recorded in the language understood by the accused person
(v) That the statement was after being recorded read over and interpreted to the maker in the language it was recorded.
From the look of the statement of the appellant Exhibit H, it is as clear as crystal, that all the above requirements were met or complied with, hence I also hold the view that the trial Court was right to accept and act on the extrajudicial statement of the appellant (Exhibit H).
It is also part of the complaints of the appellant that the trial Court had convicted him on an uncorroborated and inadmissible evidence. According to him, the trial Court solely relied on the confessional statement (Exhibit H) to convict him of the offences charged. It needs be stressed here, that a confession of an accused person to the commission of an offence plays a vital role in the determination of his guilt. Therefore, a trial Court is free to convict him even on the confessional statement alone once that trial Court is convinced that the confession is voluntary as in this instant case. I said so because by his confession, the accused (now appellant) had confirmed the commission of criminal responsibility in terms of mens rea and actus rea. See Okeke vs State(2003) 15 NWLR (Pt.842) 25. It also needs to be emphasised and it’s also settled law too, that mere retraction of a voluntary confessional statement by an accused person, as in this instant case, does not render such statement inadmissible or worthless or untrue in considering his guilt. See Idowu v State (2000)7 SC (pt.ll) 50; Silas v State (1996) 1 NILR 59.
Now, coming to the issue of alleged want of corroborative evidence insinuated by the learned counsel for the appellant I do not think that is true. As it could be fathomed, PW1 and PW2 were eye witnesses who had actually witnessed the entire criminal act perpetrated by the appellant and his partners in crime. Both of them gave uncontradicted and uncontroverted testimonies which had duly corroborated Exhibit ‘H’, the appellant’s confessional statement. I must however state here, that a confessional statement which is made voluntarily and is direct, cogent credible and positive, is enough to ground conviction even without corroboration of any sort. See Sule Iyanda Salawu vs The State (1971) NMLR 249; Grace Akinfe vs The State [1988)7 SCNJ (pt.Il) 226; Yahaya vs The State (1986)12 SC 282 at 290.In any case, in this instant case, the criminal event took place in the presence of PW1 and PW2 who as eye witnesses, had watched, observed and witnessed the entire event as it happened first hand. Those two eye witnesses had witnessed the armed robbery operation and heard the sound of the gunshots fired at the deceased and had also seen the body of the victim in his room upstairs after the gun shots. Similarly, some exhibits in the nature of items/goods that were robbed from the deceased, were all tendered by the prosecution at the trial in proof of the offences the appellant and his co-accused were charged with, tried and convicted by the trial Court. The witnesses called by the prosecution as rightly held by the trial Court, had given credible and reliable evidence which fixed the appellant at the scene and time of the crime and linked him with the crime when the appellant and his co-conspirators dastardly murdered the deceased after robbing him of the goods some of which were duly exhibited at the trial. Those pieces of evidence were neither contradicted nor challenged in any material respect at the trial. The appellant was therefore pinned down in the commission of the offences charged.
Learned counsel for the appellant frowned at the prosecution’s failure to call a witness to testify in the case at the trial within trial more especially on the admission of the commission of the offences who PW3 testified on alleged boasting in a cell by the appellant. With due deference to the learned appellant’s counsel, it is not necessary for the prosecution to in order to discharge the onus of proof imposed upon it by law, to call a host of witnesses or to adduce or tender every available pieces of
evidence. It is sufficient if the evidence called is enough to discharge the onus placed on it by law. The true position of the law is that the prosecution is not bound to call every person linked to the commission of the crime by physical presence or otherwise to give evidence on what he perceived. Once persons who can testify to the actual commission of the crime and on the other ingredients have done so, that will suffice for the satisfaction of the principle of proof beyond reasonable doubt as stipulated by Section 138 (1) of the Evidence Act 2011 as amended, Cap 112 Laws of the Federation of Nigeria 2004. See Sadau v State(1968) 124; The State vs Ogbubuoyo & Anor (2001)12 NWLR (pt.679) 576; Obue v State (1976) 2 SC 141; Shurumo v The State (2010) 44 NSCQR 159. As a matter of fact, even a single witness who gives cogent eye witness account of the incident can be sufficient. See Odili vs State (1977) 4 SC 1.
Another complaint by the appellant relates to the identification of the appellant. According to the learned appellant’s counsel, the evidence of PW1 and PW2 were faulty and nebulous and that the situation required the conduct of identification parade. He referred to the case of Agboola v State (2013)5 SCNJ 683 at 701/702. He opined that the trial Court was wrong to have solely relied on the confessional statement (Exhibit H), which was even inadmissible. I must emphasis here, that identification evidence is not sine qua non for conviction. It is sufficient if credible evidence is adduced to show that the person charged with an offence is the same as the person who was seen committing the offence(s). When a trial Court is confronted with identification evidence, all it is required to do is to be satisfied that the evidence of identification had established the guilt of the accused person beyond reasonable doubt. See Ukpabi v State (2004)6-7 SC 27. Identification parade is not necessary in all criminal cases. Identification is simply a means of establishing whether a person charged with an offence is actually the same person who committed the offence. Therefore once credible evidence abounds confirming that the person charged was the actual one who committed the offence, as in this instant case, then there will be no need to conduct identification parade at all, See Orimoloye vs The State (2004) 10 SC (Reprint) 128; Ebri v The State (2004) 5 SC (pt.Il) 29. Here, the two eye witnesses namely PW1 and PW2 had contact or interaction with the appellant and other co-accused persons for quite a reasonable time during the commission of the offences. Also, the appellant had identified himself when in his confessional statement Exhibit ‘H’, he had fixed himself at the scene of the crime on the day of the incidence. The requirement of formal identification parade is therefore superfluous as rightly held by the two lower Courts.
Also on the quality of the testimony of PW3 who is the investigation Police officer which the appellant’s learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay because an IPO narrates to the Court the outcome of his investigation or enquiries or what he recovered and in the course of his duty he must have discovered or recovered some pieces of evidence vital to the commission of the crime which trial Courts normally consider in arriving at just decision one way or the other. The lower Court was therefore right in refusing to discountenance the evidence adduced or given by PW3.
The age long principle of law, is that in criminal cases an accused person is constitutionally presumed innocent until the contrary is proved by the prosecution. The onus of proof in criminal cases does not shift as the burden throughout lies on the prosecution in criminal trial which must prove the guilt of the accused. See Bello v State (2007) 10 NWLR (pt.1043)364;Igabele v State (2006) 6 NWLR (pt. 975)100.
However, any doubt in the prosecution’s case must be resolved in favour of the accused person. In this instant case, as found by the two lower Courts, the prosecution had led credible, cogent and reliable evidence in proof of all the offences the appellant and his co-conspirators were accused of committing. The appellant at the close of the prosecution’s case presented his defence when he testified as DW1. The learned trial judge had duly and painstakingly considered and evaluated the entire evidence adduced in the case by both parties before concluding that the prosecution had proved its case beyond
reasonable doubt and convicted him as charged. It is sequel to that that I find myself in entire agreement with the Court of Appeal (the lower Court) when it observed as below:
“This Court has painstakingly read both the extra judicial statement of PW1, PW2, PW3. This Court without any difficulty arrived at the fact that the learned trial judge had performed the duty imposed upon him by law in evaluating the evidence before him and ascribing probative value to them. The learned trial judge meticulously discharged that responsibility. The evidence of eye witnesses to the event who saw it all when it happened. It was direct and positive and this Court is unable to see how the learned trial judge misapplied those facts to upset them.”
It is worthy of note that there is in this instant appeal, concurrent findings of two lower Courts both reaching the same conclusion that the prosecution had proved its case against the present appellant beyond reasonable doubt. As a matter of practice, this Court is always hesitant in interfering with or disturbing the concurrent findings of two lower Courts except on special circumstances, for instance, where the findings are perverse or there is misconception or misapplication of law. None of these vices are apparent in this instant case.
I therefore see no reason to disturb or interfere with the findings of the two Courts below.
The resultant effect of all that I posited above is that the two issues for determination ought to be and are accordingly resolved against the appellant and in favour of the respondent herein.
In the final result, I do not find any merit in this appeal as would justify me to interfere with the decision of the lower Court. The appeal therefore fails for being meritless. It is accordingly dismissed by me. The judgment of the Court of Appeal, Lagos division which had earlier affirmed the judgment of the trial High Court of Lagos State is hereby further affirmed. Appeal dismissed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in agreement with the judgment just delivered by my learned brother, Amiru Sanusi JSC and to register that support, I shall make some remarks.
This is an appeal against the judgment of the Lagos Division of the Court of Appeal or Court below or Lower Court Coram: Justice Sidi Dauda Bage JCA (as he then was), Yargata Nimpar and Abimbola Osarugue Obaseki – Adejumo JJCA.
The Court below affirmed the judgment of the trial Court delivered on the 13th day of December 2007 per D. O. Oluwayemi J.
FACTS BRIEFLY STATED:
According to the Prosecution’s version of events on 7th December, 2000, the deceased, late Chief Lai Balogun arrived at the Muritala Mohammed Airport from Abuja at about 3.30 p.m. after which the deceased in the company of his driver and security detail, Sergeant Olajide Longe was taken to his office situated at No 1, Balogun Street, Oregun Industrial Estate, Ikeja, Lagos.
Subsequently, the deceased at about 9.05 p.m on 7th December 2000 left his office for his residence at 26, Oluwole Street, Akoka, Lagos in the company of his driver and his security detail.
On approaching the deceased’s residence, the security gatemen opened the gate after which both the deceased and his security detail were accosted by 5 unknown armed men who fired gunshots towards the security detail’s chest.
Upon gaining access into the residence of the deceased after threat to life had been issued by the gunmen, the deceased and the security detail were taken upstairs into two separate rooms with armed gunmen standing guard whilst members of the deceased’s family were held captive downstairs with another armed man stationed to watch over them,
After about 10 to 15 minutes, both the deceased and the security detail were both shot in the separate rooms in which they were held after which the armed gunmen carted away the deceased’s cellular phone, omega Wristwatch and the sum of N20,000.00 (Twenty Thousand Naira) and fled the scene of the crime.
The deceased and the security detail were both taken to the hospital where the deceased was later declared dead.
On the 26th October 2017 date of hearing, learned counsel for the appellant, F. Ajibola Dalley adopted his brief of argument filed on 18/7/2017 and in it were raised three issues for determination, viz-.
1. Whether the eminent Justices of the Court of Appeal were right in holding admissible, Exhibit H, the purported confessional statement of the appellant predominately relied on in convicting the appellant of the charges of conspiracy to commit armed robbery, robbery and murder same having been
established to have been obtained under duress. (Grounds 1 and 2).
2. Whether the eminent justices of the Court of Appeal were right in relying exclusively on the challenged evidence presented by the Prosecution without taking cognisance of the case presented by the Defence. (Grounds 3 and 4).
3. Whether the eminent Justices of the Court Appeal were right in holding that the trial Court rightly admitted the challenged evidence of the prosecution’s witnesses without finishing or stating any reasons whatsoever for arriving at such findings and conclusion. (Ground 5).
Mrs. Adedoyin Rhodes-Vivour, learned counsel for respondent adopted its brief of argument filed on 23/8/17. She adopted issue one of the appellant and made an additional one as follows:
Whether the eminent Justices of the Court of Appeal were right in holding admissible, EXHIBIT H, the purported confessional statement of the appellant predominately relied on in convicting the appellant of the charges of conspiracy to commit armed robbery, robbery and murder same having been established to have been obtained under duress.
Whether apart from the EXHIBIT “H” the prosecution led cogent and credible evidence in proof of the guilt of the appellant beyond doubt.
I shall utilise the issues as stated by the respondent in the determination of this appeal.
ISSUES 1 & 2
These two issues in the main question the admissibility of the confessional statement, Exhibit H and if apart from that exhibit there was any other evident, cogent and reliable upon which the guilt of the accused appellant could be based.
Canvassing the position of the appellant, Mr. Dalley of counsel submitted that the purported confessional statement attributed to the appellant was neither voluntarily obtained nor was it voluntered by him of his free volition but was rather obtained by means of torture and so the statement ought to have been rejected. He cited Section 29(2) and (5) of the Evidence Act 2011, impari materia with Section 28 of the Evidence Act 2004; Ganiyu Gbadamosi & Anor v State (1992) LPELR – 1313 (SC) etc.
Learned counsel for the appellant further contended that it was wrong for the trial Court to have relied heavily on this legally inadmissible confessional statement of the appellant, Exhibit H and worse still for the Court below to have affirmed that wrongly obtained decision and it is incumbent on this Court to interfere and set the record straight. He cited The State v James Gwangwan (2015) LPELR – 24837 (SC).
It was also submitted for the appellant that the testimonies of PW1 and PW2 in Court were inconsistent with their statements to the police. It was cited the case of Chukwuka Ogudo v The State (2011) 11-12 SCM 209 at 222 to 223.
That the evidence on the identification of the appellant as proffered by PW1 and PW2 was faulty and vague and an identification parade was necessary. The case of Agboola v State (2013) 5 SCNJ 683 at 701 -702, referred to.
That the evidence of PW3 was hearsay and the Court ought not to have placed probative weight on it as it was even inadmissible. Learned counsel referred to Sections 37, 38, 125 and 126 of Evidence Act, Thomas Opolo v The State (1977) 11-12 SC (Reprint) 1 at 7 per Bello JSC (as he then was); Chima Ijioffor v The State (2001) NWLR (Pt.7I8) 371.
Learned counsel for appellant described the failure of the prosecution to produce to testify a key witness which appellant contends is fatal to the case of the prosecution. He cited Kolawole v State (2015) LPELR –24400(SC); Onah v State (1985) 3 NWLR (Pt.12) page 236; Alake v State (1992) 9 NWLR (Pt.265) 200.
It was also submitted for the appellant that the Court of Appeal had failed to consider the defence put forward by the appellant and so the appellant was denied his constitutional right of fair hearing as enshrined under Section 36 (4) of the 1999 Constitution.
Countering the submissions of the appellant, Mrs. Rhodes Vivour of counsel for the respondent contended that the trial Court acted correctly in conducting the trial within trial once there was that challenge on the voluntariness of the confessional statement and came to the decision accepting the statement within its discretion judiciously and judicially done. That the Court below affirmed what the trial Court did rightly and so the objection at this point should be disregarded by the Supreme Court. He cited Bouwor v State (2016) LPELR 26054 (SC); Uche Obidiozo & Ors v State (1987) 72 SC 74 at 93, 100 – 102.
For the respondent, learned counsel submitted that even if Exhibit H was wrongly admitted, same would
not amount to a reversal of the judgment of the two Courts below as there was more than enough to sustain the conviction, She relied on Section 251 of the Evidence Act; State v Ogbubunjo (2001) FWLR (Pt.37) 1097 (SC).
That PW1 and PW2 were direct eye witnesses of the armed robbery and recounted how the operation took place and the evidence of PW3, the investigating police officer was supportive.
The appellant strongly urges this Court to expunge the admitted Exhibit H and to hold that the lower Courts reliance on it jeopardised the conviction secured thereby.
The definition of a confession is as stated in Section 28 of the Evidence Act 2011 thus:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”
It is now settled law that a confession would be relevant against the person who makes it when the statement is voluntary and thereby admissible. It follows that once a confessional statement is deemed to be positive, direct and unequivocal such a statement would be admitted since it has been voluntarily made and when that is the case such a confessional statement alone as evidence can sustain a conviction. In such a case also there is no need for corroboration. In this, I place reliance on the cases of Yesufu v State (1976) 6 SC 167 at 173; Olabode v State (2007) All FWLR (Pt.389) 1301; Nwachukwu v State (2003) FWLR (Pt.123) 312; Kanu v King (1952 14 WACA 30; R v Omokaro (1941) 7 WACA 146.
There needs be pointed out that the Evidence Act 2011 at Section 29 (2) (a) and (b) has provided for the circumstances in which a confessional statement would be rejected in evidence.
(2) If in any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that his confession was or may have been obtained.
(b) by oppression of the person who made it or
(c) in consequence of anything said or done which was likely in the circumstances existing at the time to render unreliable any confession which might be made by him in such consequences, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (not withstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.“
In this case at hand, at the trial Court, the appellant as 1st accused objected to the tendering of his confessional statement stating that it was not voluntarily made being obtained by torture and duress. The trial Court empanelled a trial within trial to determine the voluntariness or otherwise of the said statement and in ruling it voluntarily made admitted it as EXHIBIT ‘H’. The exact words of the trial Court are hereunder captured thus:
“The duty of a trial Court in a case of trial within trial is to assist the trial Court in the determination of the voluntariness or otherwise of a confessional state EXHIBIT ID1 sought to be tendered. It is also trite that the burden of proof lies on the prosecution and never shifts as state (sic) by Oguntade JSC in the case IGABELE v THE STATE 2006 6 NWIR (Pt.975) at 111. Without tautology, it is evident from Exhibit ID1 that the 1st accused person was cautioned by the recorder PW1 that he was not obliged to say anything and whatever he said would be given in evidence. Also 1st accused person was taken before a superior Police Officer ASP Sunday Maichibe on 21/01/2001 there he had opportunity to either accept or deny the statement ID1 or inform the SPO that he was tortured or threatened before he signed the statement. Moreover, PW1 stated that the 1st accused and himself were facing each other while he gave facts he wrote them down. Even though PW1 denied knowing what is called a theatre room, I believe there is a theatre room at SARS but based on the condition of the 1st accused person during the arrest. It was not possible for anybody to have shot him again because the Police even took him to the General Hospital where he was treated. From the totality of evidence of PW1, DWI and the submission of the learned counsel Mrs. B. Akinlade and Mr. J. A, Sanni and having regard to the contents of Exhibits ID1, I believe the statement was obtained in a conducive atmosphere since the 1st accused said he did not know PW1 before his arrest, then most of the facts in Exhibit ID1 were given by the accused person before his arrest, then most of the facts in Exhibit ID1 were given by accused person to PW1. He may have been tortured but not by PW1. The accused was given handful
opportunity to deny (sic) the statement being made voluntarily when he was taken before a Superior Police Officer. The content of Exhibit ID1 is germane to the case of prosecution, I hereby say that the statement Exhibit ID1 was voluntarily made under a good conducive atmosphere.”
At the Court below, when the entire matter came on appeal, that appellate Court in agreement with the outcome of the trial within trial of the Court of first instance stated thus:
“I quoted the above decision of the Supreme Court in extensio, having found the decision and its appeal. In the instant appeal, the two appellants 1st and 2nd, made their respective statements (extra judicial) to the Police. Each signed his own statements. At trial they both challenged the voluntariness of the statements with their signatures on them. The learned trial judge conducted a trial within trial to ascertain their voluntaries (sic). After reviewing the evidence place before the Court in the trial with in trial the learned trial judge held that appending of the signatures by the appellants is proof that those statements were voluntarily made. This in my view is in line with, the decision of the Supreme Court in Uche Obidiozo & Ors v The State (supra). The learned trial judge had followed logically the guide set by the apex Court for admission of such statements. It was right on the part of the trial Court to have admitted the confessional statements of the 1st and 2nd appellants and marked them as exhibits ‘H’ and ‘D’ respectively. I do not have any reason to disturb the decision of the trial Court on this issue. I resolve issue No. 1 against the appellants and in favour of the respondent.”
To reiterate the stand of this Court on the matter regarding confessional statements and its acceptability in evidence, it is now trite law that the establishment of duress, oppression or coercion to make a confessional statement is a finding of facts and so it is for the determination of a Court of law which however falls within the exclusive domain of the Court of trial which has the primary duty of resolving findings of facts, evaluation and ascription of probative value to evidence to which an appellate Court is in a way forbidden from interfering or disturbing those facts so elicited except under exceptional circumstances. I rely on Egbe v Adefarasin (1987) 1 SC 1; Eze lbeh v State (1997) 1 SCNJ 256-271.
The Supreme Court has gone further to list the formal requirements of an extra-judicial statement as follows:
(a) It must carry the usual form of caution
(b) each of the words of caution must be in the language understood by the maker
(c) it must be followed by the makers thumb-print or signature
(d) it must be recorded in the language understood by the maker
(e) it must be read over and interpreted to the maker in the language in which it is made. See Kim v State (1992) 4 NWLR (pt. 233) 17.
Indeed the trial Court carried out its duties as required by law before it admitted the said statement as EXHIBIT ‘H’ in its confessional status.
Assuming however that the said statement was wrongly brought in as the Court below brought out that there were other areas in the evidence adduced by the prosecution/respondent sufficient for the utilisation of the trial Court to ground the conviction. That Court of Appeal held thus:
“This Court has painstakingly read both the extrajudicial statement of PW1, PW2 PW3. This Court without any difficulty arrived at the fact that the learned trial judge had performed the duty imposed upon him by law, in evaluating the evidence before him and ascribing probative values to them. The learned trial judge diligently and meticulously discharged that irresponsibility. The Evidence of PW1, PW2, are evidences of eye witnesses to the event who saw it all when it happened. It was direct and positive, and this Court is unable to see how the learned trial judge misapplied those facts to upset them.”
Again to be said is that under Section 251 of the Evidence Act, the wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. This is really the answer to the vehemently put across submission of learned counsel for the appellant that Exhibit ‘H’ be jettisoned as if, that is the only anchor on which the conviction is supported. In this case not only is there no foundation on which the said confessional statement would be expunged, from evidence even if theoretically that was the case, there is enough upon which the Court can support a conviction of the appellant. See State v Ogbubunjo (2001) FWLR (Pt.37) 1097; Uche Obidiozo & Ors v State (1987) 12 SC 74 at 93.
At the risk of over flogging a vexed issue, the lower Court examined and considered other evidence apart from the confessional statement and in concluding affirmed the decision of the trial Court. As the PW1 and PW2 were direct eye witnesses of the armed robbery and murder and recounted how the entire operation took place and those pieces of evidence remained unchallenged or contradicted by the appellant at the Court of first instance. The investigating Police Officer, PW3 stated what he found in the course of his investigation and tendered the items he recovered there. Of note is that the appellant was arrested based on the recovered handset of the deceased Chief Layi Balogun. This evidence of PW3 was not tainted by the appellant and so the Court was duty bound to use it in building up the case against the appellant.
Again, the appellant had a grouse on the absence of an identification parade which the circumstances prevailing in the instant case made unnecessary when the PW1 and PW2 effectively identified the appellant and others when they were paraded on television. This they could do as PW1 and PW2 said they had over 20 minutes interaction with the appellant and co-travelers. There is no hard and fast rule as to how an identification could be acceptably made especially in this case where the certainty of who accosted and dealt with them was clear and not in doubt to the eye-witnesses, that made an identification parade unnecessary.
See Tajudeen Alabi v State (1993) 7 NWLR (307) 511 at 527; Adamu v The State (1986) 3 NWLR (ft’32) 865; Mbenu v The State (1988) 3 NWLR (Pt. 84) 615.
It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him since the Court has to know the synopsis of his investigative journey it is direct evidence. See Obot v State (2014) LPELR – 23130 (CA).
In conclusion, this is one of those instances where the concurrent findings of facts of the Court below are to be left un-tampered with stemming as they were from the evidence on record leading to the irresistible conclusion that for a fact the prosecution respondent proved its case against the appellant beyond reasonable doubt, the essential ingredients of the offences haven been made out as required by law. See Abeke Onafowokan v The State (1987) 7 SCNJ 233 at 249; Basil Akalezi v The State (1993) 2 NWLR (Pt. 273) 1 at 13; Ogidi v State (2005) 1 NCC 163 at 177.
From the foregoing and the better articulated lead judgment, I too see no merit in this appeal which I dismiss.
I abide by the consequential orders as made by my learned brother.
MUSA DATTIJO MUHAMMAD, J.S.C.: The lead judgment of my learned brother AMIRU SANUSI, JSC has thoroughly addressed all the issues raised by the appeal. The appellant has indeed failed to establish before us why the concurrent finding of the two lower Courts should be interfered with. The appeal must accordingly fail. I adopt all the reasoning in the lead judgment to dismiss the unmeritorious appeal. I accordingly affirm the lower Court’s judgment.
CLARA BATA OGUNBIYI, J.S.C.: I have had the privilege of reading in draft the lead judgment of my learned brother Sanusi, JSC. It is well researched and reasoned. I agree that the concurrent judgments of the two lower Courts should also be affirmed.
The appellant did not show any reason why this Court should interfere therewith. I therefore also affirm the judgments in terms of the line of reasoning advanced by my learned brother herein. Appeal is also dismissed by me.
EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered by my learned brother, AMIRU SANUSI, JSC. It represents my views in the appeal. Accordingly, I adopt it.
There is no substance in this appeal. As correctly submitted for the Respondent with or without the disputed confession in Exhibits H and or D, the evidence of the PW.1, PW.2, PW.3 and DW.4 link the Appellant to the offences he was charged and convicted for.
The PW.1 and Pw.2 were eye witnesses of the armed robbery and the murder of Layi Balogun. They, each, gave direct evidence of what they saw and experienced in the hands of the armed robbers on the fateful day. They were neither discredited nor contradicted as regards the substance of their testimonies.
The previous statement of the Pw.1 was tendered as Exhibit A without any effort made to draw his attention to any portion thereof for purposes of contradiction. That is the condition precedent for using the previous statement of a witness to contradict him. The position of the law is that, before any contradiction can be established between the evidence of a witness and the previous statement made by the witness, the statement must be brought to the attention of the witness for his explanation in accordance with Sections 199 and 209 (now Sections 232 and 235) of the Evidence Act. Contradiction between the testimony of the witness and his previous statement, in the instant case Exhibit A, cannot therefore be established without compliance with the mandatory provisions of the Evidence Act, aforestated: KWAGHSHIR v. THE STATE (1995) 3 NWLR (pt. 386) 651; BALOGUN v. A. G, OGUN STATE (2002) 2 SC (pt. II)
The Pw.1 seized by the robbers and shot twice after being dragged upstairs with the deceased Layi Balogun, was categorical that he knew the 2nd Accused who shot him. The 2nd Accused, according to the pw.1, was the person assigned to stay with him. The cross-examination did little to shake the Pw.1’s credibility. The trial Court believed him.
The Pw.2’s recognition of the 2nd Accused and the Appellant (the 1st Accused), as being among the 5 robbers, was also not discredited by cross examination. The Pw.2 averred that the robbers took Layi Balogun’s cell phone, wrist watch and N20,000.00. He identified the wrist watch, Exhibit C, and the cell phone.
The cellphone was recovered from the 4th Accused, Dw.4, who admitted buying it from one Kola and the 3rd Accused for N1,500.00. The Pw.3, the Investigating Police officer (IPO), testified that the 3rd Accused, upon his arrest, identified the Appellant (1st Accused) as the person who sold Layi Balogun’s cell phone, Exhibit B, to the 4th Accused (the Dw.4). The pw.3’s evidence, as correctly submitted by the Respondent’s counsel, was also not challenged or contradicted by the Appellant.
It is on this footing that I agree with the lower Court’s finding at page 478 that:
The bottom line of the Supreme Court’s decision of EZE IBEH v. THE STATE (supra) is that, there is the presumption that a trial judge’s decision on facts is correct; a presumption which must be displaced by a person who seeks to upset the decision if he can. In the instant appeal, the learned counsel to the appellants strenuously worked to upset the decision of the learned trial judge on facts. I had earlier in this judgment stated how he considered that the learned trial judge had misdirected himself on the evidence of Pw.1, Pw.2 and Pw.3. The evidence of Pw.1 and Pw.2 are evidences of eye witnesses to the event who saw it all when it happened. It was direct and positive, and this Court is unable to see how the learned trial judge misapplied those facts to upset them. Pw.3’s evidence is attacked as being hearsay for his failure to produce the cell-mate of the 2nd Appellant who reported as boasting of being a participant in the robbery in question. This also had no effect whatsoever as this fact only constituted an aspect of the evidence of the Pu.3 as the Investigating police Officer (IPO). The efforts made by the Appellants to upset the findings of facts made by the learned trial judge had not yielded any result to upset it. Let me state, here, and now, that, the determination earlier on by this Court of Issue No. 1, with relation to the confessional statements of Appellants, Exhibits “H” and “D” had dealt with the meat of this appeal. The issue No. 2 dealing other credible and cogent fact by the prosecution, amounts to mere surplusage with Exhibits “H” and “D” already admitted against the Appellants, the law is that even without corroboration of a confession it is sufficient to support conviction, so long as the Court is satisfied of its truth. See MOHAMMED J. YAHAYA v. THE STATE (1986) 12 SC 282 at 290; ISAAC STEPHEN v. THE STATE (1986) 12 SC. 450 AT 470; R. V. ITULE (1961) ALL NLR 462 AT 465; SULE IYANDA SALAWU v. THE STATE (1971) NMLR. 249; GRACE AKINFE v. THE STATE (1988) 7 SCNJ (pt. 11) 226, at pp 237 – 238.”
Even if the Pw.1 and Pw.2 had failed to describe the Appellant as one of the armed robbers who shot and killed Layi Balogun the fact that he sold Layi Balogun’s cellphone, seized from the deceased Layi
Balogun in the course of the robbery not only links him to the robbery and the death of Layi Balogun, it also sufficiently corroborates the testimonies of Pw.1 and Pw.2. The evidence of Pw1 and Pw.2 have also been corroborated by the defence testimony of the 4th Accused (Dw.4). The admission of the 3rd Accused to the IPO, Pw.3, is another evidence solidifying the evidence of Pw.1 and Pw2.
From the totality of the evidence of pw.1, pw.2, Pw.3 and Dw.4, with or without Exhibits H and D, the conviction and sentence of the Appellant can be sustained. That is my answer to the question: whether, apart from Exhibit H the prosecution led cogent and credible evidence in proof of the guilt of the Appellant beyond reasonable doubt? Exhibit H was not the only anchor the conviction of the Appellant was fastened; as I have, here demonstrated.
I have no cause to interfere with the concurrent findings of fact made by the trial and intermediate Courts. This appeal lacking in substance is hereby dismissed. I hereby adopt all the consequential orders made in the lead judgment.
F.A. Dalley with him, O.A. OludeFor Appellant(s)
Adedoyin Rhodes-Vivour (Mrs.) with her, Thomas Ojo, Ireti Banjo and Princess ObiFor Respondent(s)
F.A. Dalley with him, O.A. OludeFor Appellant
Adedoyin Rhodes-Vivour (Mrs.) with her, Thomas Ojo, Ireti Banjo and Princess ObiFor Respondent