Legalpedia Citation: (2015-05) Legalpedia (CA) 29510

In the Court of Appeal

HOLDEN AT JOS

Wed May 27, 2015

Suit Number: CA/J/227C/2013

CORAM

JUMMAI HANNATU SANKEY JUSTICE, COURT OF APPEAL

PARTIES

 

1. DAUDA MOHAMMED
2. MOHAMMED USMAN

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

ADJECTIVAL LAW, APPEAL, CONSTITUTIONAL LAW, LAW OF EVIDENCE, CRIMINAL PROCEDURAL LAW, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This is an Appeal against the Judgment of the High Court of Justice, Gombe State sitting at Gombe. The PW1, one Korau Chiroma, reported a case of armed robbery which allegedly took place in his house. He alleged that some masked men broke into his house at Tal village in Billiri Local Government Area of Gombe State, threatened him with arms consisting of guns, sticks and cutlasses, and demanded money from him on the pain of death. He handed over the sum of N200, 000.00 to them, after which they ransacked his house and discovered another sum of N200, 000.00., which they also took away. Since they were masked, he was unable to recognize or identify any of them. However, upon raising an alarm, one Jauro Komtoli, Jeremiah Nathan, (PW3), in conjunction with others un-named, allegedly traced the robbers’ footprints from the complainant’s house across tarred roads and streams to the room occupied by the two Appellants. At about 3.45 a.m., the Appellants, who were found sleeping in the room, were promptly arrested. In addition, a pair of white rubber slippers belonging to the 1st Appellant, some charms and the sum of N7000.00 was recovered from the room. During Police investigations, the Appellants made confessional statements admitting to the offences. After the trial, Judgment was delivered convicting the Appellants on the Charge and sentencing them to death under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990. Dissatisfied by this decision, the Appellants each filed an Appeal to this instant Court.

HELD

Appeal dismissed.

ISSUES

 

1. Whether or not the Appellants had, in view of the entire circumstances in this case, a fair hearing and fair trial. (Grounds 1 and 6)?
2. Whether or not the prosecution had proved its case beyond reasonable doubt against the Appellants (Original Ground and Additional Grounds 2, 3, 4 and 5)?

 

RATIONES DECIDENDI

HOLDING BRIEF – THE POSITION OF THE LAW ON HOLDING BRIEF

It is the law, (as has been submitted by learned Counsel for the Respondent), that any counsel who announces that he is holding brief for another counsel is presumed to be in possession of the facts and law regarding the case, and has the full authority of the counsel, whose brief he holds, to handle the case. However, that is not what is in issue in this Appeal. PER – JUMMAI HANNATU SANKEY, J.C.A

DEFENCE – WHETHER OR NOT AN ACCUSED PERSON IS AFFORDED ADEQUATE TIME AND FACILITES FOR THE PREPARATION OF HIS DEFENCE

A close inspection of Section 36 (6) (b) and (c) of the Constitution of the Federal Republic of Nigeria, 1999 and from the law as expounded by the Supreme Court as well as this Court in a plethora of cases, discloses an accused person must be afforded adequate time and facilities for the preparation of his defence and to defend himself in person or by a legal practitioner of his own choice. See: Udo V State (1988) 6 SCNJ 181 at 199; Udofia V State (1988) 7 SCNJ (Pt. 1) 118 at 123; & Ogundoyin V Adeyemi (2001) 33 WRN 1 at 14-15; Josiah V State (1985) 1 NWLR (Pt. 1) 125; (1985); Saka V State (1981) 11-12 SC 65. PER – JUMMAI HANNATU SANKEY, J.C.A

CONFESSIONAL STATEMENT – THE ISSUE OF VOLUNTARINESS OR OTHERWISE OF A CONFESSIONAL STATEMENT SHOULD BE RAISED TIMEOUSLY

I agree with learned Counsel for the Respondent that the very first time the issue of the voluntariness or otherwise of the confessional statements was raised was during the defence of the Appellants by the Appellants themselves. Thus, at the stage it was raised, it was too late in the day for the lower Court to embark upon a trial within trial to test the voluntariness or otherwise of the confessional statements as the documents had long since been admitted in evidence. PER – JUMMAI HANNATU SANKEY, J.C.A

CRIMINAL PROCEEDING – WHETHER OR NOT AN IRREGULARITY IN PROCEDURE IN A CRIMINAL PROCEEDING WOULD GROUND AN APPEAL

It is the law that an irregularity in procedure in a criminal proceeding will not automatically result in an appeal being allowed unless the appellate court is satisfied that a miscarriage of justice has been occasioned. See the decision in Okaroh V State (1990) LPELR-2423(SC); (1990) 1 NWLR (Pt. 125) 136). PER – JUMMAI HANNATU SANKEY, J.C.A

COFESSIONAL STATEMENT – THE POSITION OF THE LAW ON COFESSIONAL STATEMENT MADE BY AN ACCUSED AND PROPERLY ADMITTED IN EVIDENCE

As was adequately demonstrated by the trial Judge, a confessional statement made by an accused person and properly admitted in evidence is the best guide to the truth of the role played by him and upon which, alone, the court can convict. See Olabode V State (2011) 9 LRCNNC 49 at 55. PER – JUMMAI HANNATU SANKEY, J.C.A

CONTRADICTION IN WITNESS EVIDENCE – WHETHER OR NOT ANY CONFLICT, CONTRADICTION OR DISCREPANCY IN THE EVIDENCE OF THE WITNESSES FOR THE PROSECUTION WOULD BE FATAL TO THE PROSECUTION’S CASE

The law is trite that in order for any conflict, contradiction or discrepancy in the evidence of witnesses for the prosecution to be fatal to the prosecution’s case, such conflict or contradiction must be substantial or fundamental to the main issue in question before the trial court, and must have led to a miscarriage of justice. See Bolanle V State (2005) 1 NCC 342 at 346; Agbo V State (2007) 2 NCC 158 at 163; & Ochemaje V State (2011) 9 LRCNCC 141 at 144. PER – JUMMAI HANNATU SANKEY, J.C.A 

CONTRADICTIONS IN WITNESS EVIDENCE – WHAT CONTRADICTIONS IN THE WITNESS EVIDENCE WOULD BE FATAL TO THE PROSECUTION’S CASE

Minor contradictions that do not affect any of the ingredients of an offence nor the crux of the facts of the offence are of no significance. A contradiction that will be fatal to the prosecution’s case is not a minor or innocuous or inconsequential point. Contradictions that would result in upsetting a conviction must be of such magnitude that warrants an interference with the conclusion of the trial court. See: Ogbu V State (2003) FWLR (Pt. 147) 1103 at 1102-1116-1167; Ogunbayo V State (2003) FWLR (Pt. 157) 1118-1119; Kwale V State (2003) FWL (Pt. 159) 1504; Ejeka V State (2003) 4 SC (Pt. 1) 147 at 150; Umeh V State (1973) 2 SC 9; Onubogu V State (1974) 9 SC 1; Muka V State (1976) 9-10 SC 305. PER – JUMMAI HANNATU SANKEY, J.C.A

 

DECISIONS OF COURT – THE DECISIONS OR ACTIONS OF A COURT ARE BASED ON THE FACTS AND EVIDENCE BROUGHT TO THEIR ATTENTION EITHER BY EVIDENCE OR BY INFORMATION IN OPEN COURT

I think it needs to be pointed out at once that trials are not conducted in the minds of an accused or his counsel as trial courts do base their decisions or actions on the facts and evidence brought their attention either on evidence or by information in the open court. Indeed, there is no art to find the mind’s construction on the face. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

CONFESSIONAL STATEMENT – THE POSITION OF THE LAW ON CONSIDERING WHETHER OR NOT TO ADMI A CONFESSIONAL STATEMENT OF AN ACCUSED

In considering whether to admit a confessional statement of an accused person, the law is that it does not become inadmissible merely because the accused person denies making it, as in the instant case. See Alabi Shittu V. The State (1970) All NLR 233. See also Queen V. Itule (1961) All NLR 462; R. V. Phillip Kanu & Anor. 7 WACA 30. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

CONFESSIONAL STATEMENT – WHEN IS A CONFESSIONAL STATEMENT ADMISSIBLE

A confessional statement is therefore, admissible in evidence if it is direct and positive and relates to the accused person’s acts, knowledge or intention stating or suggesting the inference that he committed the offence with which he was charged. However, where, as in the instant case the Appellants took the earliest opportunity at the trial when the statements were sought to be tendered in evidence to deny making them, the law is that such denial, which amounts to a retraction, though not affecting the admissibility of the statements in evidence, may lend weight to the denials by the Appellants, it is not enough reason for the court below to ignore the confessional statements of the Appellants. See Solomon Akpan V. The State (1992) 1 NWLR (Pt. 248) 1. Alabi Shittu V. The State (Supra). PER – BIOBELE ABRAHAM GEORGEWILL, JCA

PROOF OF CRIME – WHETHER OR NOT ALL THE ESSENTIAL INGREDIENTS OF THE OFFENCE CHARGED MUST BE PROVED

It must be borne in mind always by trial courts that proof of a crime charged being required by law to be above reasonable standard presupposes that all the essential ingredients of the offence charged must be proved. Where therefore, the prosecution relies mainly on the confessional statement of an accused person, the trial court must be careful to consider that the confessional statement satisfies all the essential ingredients of the offence charged. This is so because it is settled law that an essential ingredient in the offence charged, if lacking in evidence, cannot be cured or remedied by the confession of an accused person, who ordinarily does not know what the essential ingredients of the offence alleged against him are. See Joseph Abasi V. The State (1992) 1 NWLR (Pt. 260) 383. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

CONFESSION – A VOLUNTARY CONFESSION IS RELEVANT ONLY AGAINST THE PERSON WHO MAKES IT

A confession, under our criminal jurisprudence if voluntary is deemed to be relevant facts as against the person who makes it only. Accordingly, voluntary confession is admissible in evidence. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

CONFESSION – WHEN IS A CONFESSION IN ADMISSIBLE

A confession to be inadmissible, it must be shown not to be voluntarily made or caused by inducement, threat or promise from a person in authority. See Richard Igago V. The State (1999) 14 NWLR (Pt. 637) 1. See also Saidu V. The State (1982) 4 SC 1; Ojegele V. The State (1988) 1 NWLR (Pt. 71) 414; Godwin Ikpasa V. A.G. Bendel State(1981) 9 SC 7. In Pele Ogunye V. The State (1999) 5 NWLR (Pt. 604) 518, Iguh, JSC, restated the position of the law as it relates to the admissibility or otherwise of a confessional statement thus:

“Where on the production of a confessional statement it is challenged by the defence on the ground that the accused did not make it at all, such an objection does not go to the admissibility of the statement and the trial court is entitled to admit the confession in evidence as a statement obtained from the accused person and thereafter to decide or find as matter of fact whether or not the accused person in fact made the statement at the conclusion of the trial” PER – BIOBELE ABRAHAM GEORGEWILL, JCA

CONFESSIONAL STATEMENT – WHEN IS THE PROPER STAGE TO RAISE THE ISSUE OF A CONFESSIONAL STATEMENT OF AN ACCUSED PERSON NOT BEING VOLUNTARILY MADE

Procedurally, the proper stage to raise the issue of the statement of an accused person not being made voluntarily is at the stage it is sought to be tendered in evidence by the prosecution at the trial. It is not an objection to be raised either at the stage of the defence evidence or even on appeal for the first time. At those stages, it has become too late in the day to raise such a challenge to the admissibility of a confessional statement. It is akin to bolting a cage after the bird had flown away out of the cage. It is indeed an exercise in futility. PER – BIOBELE ABRAHAM GEORGEWILL, JCA

CORROBOTIVE EVIDENCE – WHETHER OR NOT IT IS DESIRABLE FOR THE COURT TO LOOK FOR OTHER CORROBORATIVE EVIDENCE IN CONSIDERING THE GUILT OF AN ACCUSED PERSON ON THE STRENGHT OF HIS CONFESSIONAL STATEMENT

However, in considering the guilt of an accused person on the strength of his confessional statement admitted in evidence, it is desirable for the court to look for other independently corroborative evidence. I should not be misunderstood here to be laying down by this view of mine any general rule that without corroborative evidence a court cannot validly convict on a confessional statement of the accused person alone. The law is that corroboration is merely desirable but not necessary. Accordingly, a court can safely convict an accused person on his confessional statement alone, even without corroboration once the confession is direct, positive, duly made and satisfactorily proved. See Jimoh Dina V. The State (1984) 1 SC 1; R. V. Omokaro (Supra); Nwachukwu V. The State (2007) 17 NWLR (Pt. 1062) 31; Onochie V. The Republic (1966) NMLR 307; Udedibia V. The State (1976) 11 SC (Reprint) 74; Ogoala V. The State (Supra); SUNDAY Udofia V. The State (1984) 1 SC 1. In Jimoh Yesufu V. The State (1976) 6 SC 109, Obaseki, JSC, puts this issue admirably in its proper context inter alia thus:

“There is a long line of judicial authorities ……….that a free and voluntary confession of guilt by a prisoner………..// it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant convictions without any corroborative evidence, so long as the court is satisfied of the truth of the confession……..” PER – BIOBELE ABRAHAM GEORGEWILL, JCA

GUILT OF AN ACCUSED PERSON – METHODS OF PROVING THE GUILT OF AN ACCUSED PERSON

It is settled by a long line of decided cases that the guilt of accused person can be proved by any one of the following 3 (three) methods or a combination of them; namely:

1. Confessional statement of the accused person

2. Circumstantial evidence

3. Direct evidence of the witnesses.

See:- Emeka Vs the State (2001) 14 NWLR (pt 734 ) 666; Onyeye Vs. The State (2010) 36 WRN 167,168; Abdullahi Vs. Nigeria Army (2010) 18 WRN 97. PER – SAIDU TANKO HUSAINI JCA

CONFESSIONAL STATEMENT – EFFECT OF FAILURE TO TAKE OBJECTION DO THE TENDERING OF A CONFESSIONAL STATEMENT

Where there is failure to take objection do the tendering of a confessional statement, the Court hearing the matter will accept that document (Statement) as admissible evidence and can rely on it as relevant piece of evidence under section 29 (1) of the Evidence Act. PER – SAIDU TANKO HUSAINI JCA

CONFESSIONAL STATEMENT – WHETHER OR NOT AN ACCUSED CAN BE CONVICTED ON HIS OWN VOLUNTARY CONFESSION ALONE

A confessional statement which is voluntary and made without the oppression of the person against whom it is tendered or introduced is admissible evidence and the accused can be convicted on his own voluntary confession alone as there is no law against it. See: Ubierho Vs. State (2005)5 NWLR (pt. 919) 644; Milla vs. the State (1985) 3 NWLR (pt.ll) 190, although it is advisable to look outside the confession for other facts as would collaborate the confession no matter how slight to make it probable that it was true. See: Emeka Vs. State (Supra). PER – SAIDU TANKO HUSAINI JCA

CASES CITED

Not Available

STATUTES REFERRED TO

Robbery and Firearms (Special Provisions) Act, 1990

Evidence Act, 2011

Constitution of the Federal Republic of Nigeria 1999 (as amended)

 

 

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