DASO OLUWASIJI V. THE STATE

CORAM

OYEBISI FOLAYEMI OMOLEYE JUSTICE OF THE COURT OF APPEAL

CORDELIA IFEOMA JOMBO-OFO JUSTICE OF THE COURT OF APPEAL

YUSUF ALHAJI BASHIR JUSTICE OF THE COURT OF APPEAL

PARTIES

DASO OLUWASIJI

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

The Appellant was taken to the trial court on a two count charge of Conspiracy and Kidnapping. The offence was allegedly committed on the 18th day of October, 2015 at Araromi-Obu, when the Appellant along with four Co-defendants conspired together, armed themselves with dangerous weapons, kidnapped one Unikiere Eraikhuomen Adodo (Mrs) to an unknown destination, and demanded ransom from her employers (the Rubber Estate (Nig) Ltd.). Consequently, the learned trial Judge sentenced the Appellant to 7 years imprisonment with hard labour on the 1st count and Life imprisonment in respect of the second count of kidnapping. Both sentences are to run concurrently. The Appellant was aggrieved by this verdict and so he appealed to this Honorable Court.

HELD

Appeal dismissed

ISSUES

Whether Exhibits A – A2 being computer print-outs tendered in evidence without the requisite certification is admissible in law?

Whether the lower Appellant can be convicted based on Exhibits B, C-C1, D and E being the extra-judicial statement of co-defendants?

Whether the lower Court having found that there is no evidence to show that the Appellant and the co-defendants were responsible for the e-mails (i.e. Exhibits A-A2) was right when it speculated on facts that the appellant and the co-defendants were guilty of kidnap?

Whether the lower Court was right when it conjecture the content of a forensic analysis/report not presented before the Court in holding that the appellant and the co- defendants kidnapped the PW1?

Whether the appellant without any evidence can be held to have kidnapped the PW1 when the PW1 maintained that she could not identify her kidnappers because they covered their faces?

Whether the Appellant can be convinced solely on his extra-judicial statement (Exhibit F) rejected by the Appellant as being involuntary and inadmissible without any corroborating evidence before the Court?

RATIONES DECIDENDI

CRIMINAL TRIALS – HOW TO ESTABLISH THE GUILT OF AN ACCUSED IN CRIMINAL TRIALS

The law recognizes that in criminal trials, the guilt of an accused person can be established by any or all of the above means:

1) Evidence of an eye witness who saw the accused person committing the offence.

2) Confessional statement of the accused person wherein he or she personally admits the commission of the offence.

3) Through circumstantial evidence which is complete, cogent and unequivocal leading to the irrestible conclusion that the accused person actually committed the offence. See Philips V. State (2019) 13 NWLR (pt 1690) 209, Hamza V state (2019) 16 NWLR (pt 1699) 418, Alao V State (2019) 17 NWLR (pt 1702) 501, Hodo V State (2020) 1 NWLR (pt 1704) 1Iorapuu V. State (2020) 1 NWLR (pt 1706) 391. – Per Y. A. Bashir, JCA

CONSPIRACY – MEANING OF CONSPIRACY AND HOW IT IS ESTABLISHED/ PROVED

The gist of the offence of conspiracy is the meeting of the minds of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence conspiracy is a matter of inference from certain criminal acts of the parties done in pursuance of an apparent criminal purpose common between them and in proof of conspiracy the act or omission of any of the conspirators in furtherance of the common design may be and very often are given in evidence against others for the purpose of attaining an unlawful objective or a lawful objective through an unlawful means. See the cases of Daboh Vs. The State (1977) NSCC (v. 2) 309 @ 335, Nwosu VS. The State (2004) 15 NWLR (pt 897) 466 @ 486.

Conspiracy is an agreement between two or more people to commit an unlawful act or lawful act by unlawful means. The agreement alone constitutes the evidence. Conspiracy is rarely proved by direct evidence. It is a matter of inference deduced from certain criminal acts of the parties concerned alone in pursuance of a criminal purpose in common between them. See the cases of Oduneye V The State (2001) 2 NWLR part 697 page 311 at 325, Osondu V federal Republic of Nigeria (2000) 12 Nwlr part 682 at 483 and Upahar V State (2003) 6 NWLR page 816 at 239.’

Bearing in mind the trite position of the law on the manner conspiracy is proved, there is no doubt that in circumstances where all the defendants in the confessional statement vividly described their joined and individual roles in the commission of the offence, the trial Court is entitled to look into these statement and validly draw the necessary inference to conclude that the defendants did actually conspire to commit the offence and accordingly proceed to convict them collectively and individually. – Per Y. A. Bashir, JCA

CONFESSIONAL STATEMENT – WHETHER AN ACCUSED PERSON CAN BE CONVICTED BASED ON THE CONFESSIONAL STATEMENT OF A CO-ACCUSED

Whereas the law is very clear that an accused person cannot be convicted based on the confession of his co-accused person, unless he adopts the confession as his own expressly or by necessary implication. See Reuben Okasi V. The State (2016) LPELR – 40455. – Per Y. A. Bashir, JCA

CONFESSIONAL STATEMENT – WHEN A CONFESSIONAL STATEMENT PASSES THE TRIAL- WITHIN-TRIAL AND IT IS NOT APPEALED – MEANING OF CONFESSION

There is no ground of appeal challenging the decision of the Court on the trial within trial either on the procedure or the verdict by which the confessional statement was admitted, declaring the confession as voluntarily made by the Appellant. For this reason, the voluntariness of the confessional statement is sealed and cannot be reopened at this stage.

It stand to reason that Exhibit E having passed through the cleansing exercise of trial within trial constitute what the Supreme Court in Smart V. State (2016) LPELR 40 827 (SC) described as the best evidence in criminal trial. “A confession statement by an Accused is therefore a direct acknowledgement of commission of the offence for which he was arraigned and admission of all the elements or ingredients of the offence charged. A free and voluntary confession is the best evidence eagerly sought after and always by the prosecution to rely upon to establish the guilt of an accused person. See NNAMDI OSUAGWU VS. THE STATE (2013) 5 NWLR (PART 1347)

360 AT 387 B – E. A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. See IGBINOVIA VS. STATE(1981) 2 SC P.A YUSUF VS THE STATE (1976) 6 SC P. 167. Section 27 (1) Evidence Act. A confession is a voluntary admission or declaration by a person of his participation in a crime. It becomes a confession when in some way it amounts to an acknowledgement of guilt. A confession must either admit the elements of the offence or all facts which constitutes the offence. Once a Court is satisfied with the genuineness of a confession, a conviction can be based entirely on it and such a conviction would not be disturbed by an Appellate Court. See R. VS SYKES (1913) 8 C.A.R 233 R. V. AJAYI ONIKORO 7 WACA P. 146.” See also THE STATE VS JAMES GWANGWAN (2015) 9 SCM 253 at 276 G-S per ARIWOOLA JSC who said:- “if the Court is satisfied that the statement was made voluntarily, then it will admit same in evidence. See Samuel Ojegele Vs. The State (1988) NWLR (PT. 71) 414. In other words, it is already settled that where an extra-judicial confession has been proved to have been made voluntarily and it is found positive and regardless of the fact that the maker resiles there from or retracted it all together at the trial. See Egboghonome Vs. The State (1993) 7 NWLR (PT. 306) 383.

Pursuant to Sections 28 and 29 of the Evidence Act 2011, a confessional statement which is a direct acknowledgement of elements or ingredients of an offence is solely relevant and admitted against the maker of the confessional statement. See (1) PETER ILIYA AZABADA VS. THE STATE (2014) 12 SCM 151 at 170 I to 171 A – B per OKORO, JSC’’ by Section 28 of the Evidence Act, a confessional statement is a statement made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. Such a statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Akpan V. State (1992) 7 SCNJ 22, Yesufu V. State (1976) 6 SC 167, Obasi V State (1965) NWLR 129, Ogoala V. the State (1991) 2 NWLR (pt. 175) 509. The law is also settled that an accused person can be convicted based on his confession or admission alone if it is direct, positive and unequivocal as to the commission of the offence charged. See Akpan v State (Supra), (2) TIRIMISIYU ADEBAYO VS. THE STATE (2014) 8 SCM 34 AT 65 G per BODE RHODES – VIVUOR JSC who said: Let me state again that, confessional Statement are only admissible in Court against the maker (i.e the accused person), if it is a voluntary acknowledgement of guilt.’’ – Per Y. A. Bashir, JCA

COMPUTER GENERATED EVIDENCE – CONDITIONS FOR ADMITTING COMPUTER GENERATED EVIDENCE

The law is that (S 84 (2) (4)) provide that in any proceeding, a statement contained in a document produced by a computer shall be admissible, as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) are satisfied in relation to the computer in question. The main objective of these provisions is to authenticate and validate the reliability of the computer which generated the evidence sought to be tendered. It was necessary to prove that a computer was operating properly and was not used improperly before any statement in a document produced by the computer could be admitted in evidence. Evidence in relation to the use of the computer must therefore be called to establish compliance with the conditions set out in Section 84 (2) in Kubor V. Dickson (20120 LPELR – 9817 (SC). – Per Y. A. Bashir, JCA