Legalpedia Citation: (2023-03) Legalpedia 46853 (CA)

In the Court of Appeal

Fri Mar 31, 2023

Suit Number: SC.CR/503/2020

CORAM

Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria

Chima Centus Nweze Justice of the Supreme Court of Nigeria

Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria

Mohammed Lawal Garba Justice of the Supreme Court of Nigeria

Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria

PARTIES

FRIDAY CHARLES

APPELLANTS

THE STATE OF LAGOS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant was linked with an armed robbery that took place on 9th September, 2011 at about 9pm at Globus Supermarket, Ago Palace Way, Isolo, Lagos State. PW1, the Sales Manager of the Supermarket was robbed of the sum of N5.1 Million Naira, the proceeds of sale of the day as he evacuated same to their office opposite the supermarket. The Respondent alleged that the Appellant, who was a sales-boy at the supermarket was heard discussing about the alleged robbery with his co-defendant over the phone. The Appellant was reported by his colleague to the General Manager of the supermarket who then handed him over to the Police.

PW1, the victim of the armed robbery was knocked unconscious and could not get a glimpse of the robber. The only tangible evidence which linked the Appellant to the crime is the confessional statement of the Appellant to the Police and the alleged phone conversation of the Appellant with the co-defendant discussing the robbery incident in a manner that showed conspiracy.

The appellant was tried and convicted by the trial Court, Lagos State High Court, for conspiracy to commit armed robbery and armed robbery contrary to Sections 297 and 295(2) (a) of the Criminal Law of Lagos State 2011 respectively.

The trial Court convicted the accused and the Court of Appeal affirmed the conviction of the trial Court. However, the concurrent findings of the two Courts did not rely on other corroborative evidence or circumstances upon which the contested confessional statement could stand but went ahead to convict and sentence him.

Aggrieved by the decision, the Appellant made the instant appeal.

HELD

Appeal allowed

ISSUES

1. Whether the learned Justices of the Court of Appeal were right to have affirmed the Appellant’s conviction based on Exhibit 4, his purported confessional statement, which although was admissible, but was invalid and impotent, having breached the mandatory provision of Section 9(3) of the Administration of Criminal Justice Law of Lagos State?
2. Whether the learned Justices of the Court of Appeal were right to have affirmed the Appellant’s conviction, when the Prosecution failed to prove the offences of conspiracy to commit armed robbery and armed robbery against him beyond reasonable doubt?

RATIONES DECIDENDI

APPEAL – WHERE A PARTY TO AN APPEAL SEEKS THE DETERMINATION OF AN ISSUE THAT WAS NEVER RAISED AT AND DETERMINED BY THE TRIAL/LOWER COURT

Now, any party to an appeal who seeks the determination of an issue that was never raised at and determined by the trial and/or lower Court must show that it has sought and obtained the leave of the Court earlier. It is long settled that where no leave was sought and obtained, and one is required, the appeal is incompetent and liable to be struck out. See EHINLANWO V. OKE & ORS (2008) LPELR – 1054 (SC) and METUH V. F.R.N (2017) 4 NWLR (PT 1554) 108 at 121. – Per M. D. Muhammad, JSC

APPEAL – WHAT CONSTITUTES A COMPETENT APPEAL – CONDUCT OF APPELLATE COURTS TO PARTIES RAISING FRESH ISSUES ON APPEAL

A competent appeal to this Court from the Court of Appeal, the Court below, arises only from that Court’s decision. In the case at hand where an issue had not been heard and decided by the Court of Appeal, an appeal to this Court, by virtue of Section 233(2) of the 1999 Constitution as amended, does not enure. See THOR V. FIRST CITY MERCHANT BANK LTD (2002) LPELR – 8061 (SC) and OYAKHIRE V. STATE (2006) LPELR-2863 (SC).

In CHUKWUEMEKA N. OJIOGU V. LEONARD OJIOGU & ANOR (2010) LPELR – 2377 (SC), this Court per Chukwuma-Eneh JSC (of blessed memory) restated the principle inter-alia as follows:-

“It is trite that an appellate Court will not allow a fresh issue on appeal to be taken without leave as it has not been pronounced upon by the Courts below. This is even more so as in this case where the appellant is trying on appeal to raise an issue which has not been raised, nor considered by the trial Court. However, where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence may be called, the Court may allow the issue to be raised subject to leave having been sought and obtained.”

Given the facts on record, appellant’s 1st issue for the determination of his appeal, raised without the required leave, is manifestly incompetent. The issue, therefore, is hereby accordingly discountenanced. See OKEY JIM NWAGBARA V. JADCOM LIMITED (2021) LPELR-55329 (SC) and Miss PROMISE MEKWUNYE V. EMIRATES AIRLINES (2019) LPELR-46553(SC). – Per M. D. Muhammad, JSC

CONCURRENT FINDINGS – CONDUCT OF COURTS WHERE CONCURRENT FINDINGS ARE FOUND TO BE PERVERSE

My Lords, it is evident from the record that this appeal is against the concurrent findings of the two Courts below. The firm position of this Court remains its hesitation to set such findings aside and allow the appeal except where the appellant shows the findings to be perverse. When and how does the appellant discharge this duty?

Concurrent as the findings appealed against are, if established not to be supported by the evidence on record and for that reason erroneous and speculative, the Court would be obligated to set such findings aside and allow the appeal. See AFOLABI V. STATE (2016) LPELR – 40300 (SC) and AMADI V. AG IMO STATE (2017) LPELR – 42013 (SC). – Per M. D. Muhammad, JSC

CRIMINAL TRIALS – PRESUMPTION OF INNOCENCE IN CRIMINAL TRIALS – BURDEN OF PROOF IN CRIMINAL TRIALS

It is trite that in criminal trial, the accused person is constitutionally presumed to be innocent until the prosecution proves otherwise. This burden lies throughout on the prosecution and does not shift. See LEKAN OLAOYE V. THE STATE (2018) LPELR – 43601 (SC), STATE V. ABDU MUSA (2019) LPELR – 47541 (SC) and KALGO V. STATE (2021) LPELR – 53077 (SC). – Per M. D. Muhammad, JSC

CONSPIRACY – WHEN CONSPIRACY IS DEEMED TO BE ESTABLISHED

In order to establish the charge of conspiracy, it is respondent’s burden to prove that there was agreement between the appellant and another person to commit robbery and that the robbery had infact been committed. The offence of conspiracy is established once the Court is satisfied that the appellant and any other person had and knew of the intention or purpose of the conspiracy. This agreement between the conspirators to commit the unlawful act is, in most cases, inferred or presumed. See N. OSUAGWU V. THE STATE (2013) 1-2 SC (PT1) 37 and AFOLABI V. STATE (2016) LPELR – 40300(SC). – Per M. D. Muhammad, JSC

ROBBERY – INGREDIENTS OF THE OFFENCE OF ROBBERY

To secure conviction for the offence of robbery against the appellant, the prosecution must prove:

(1) The occurrence of the robbery.

(2) The participation of the appellant in the said robbery and

(3) That at the material time, the robbery was being committed, the appellant was either armed with firearms or offensive weapon or that he was in company of a person who was so armed EKE V. STATE (2011) LPELR-1133 (SC) and LEGI MOHAMMED V. STATE LPELR-46420. – Per M. D. Muhammad,JSC

CONFESSIONAL STATEMENT – WHETHER THE CONFESSIONAL STATEMENT OF AN ACCUSED AVAILS THE PROSECUTION AGAINST ANOTHER ACCUSED

By its clear and unambiguous words, Section 29(4) of the Evidence Act 2011, a confessional statement of an accused person does not avail the prosecution against the other accused except it is made in the latter’s presence and adopted by him. – Per M. D. Muhammad, JSC

CONFESSIONAL STATEMENT – WHETHER A COURT WILL ANCHOR ITS DECISION SOLELY ON THE CONFESSIONAL STATEMENT OF THE ACCUSED TO CONVICT HIM – WHETHER A COURT CAN CONVICT AN ACCUSED BASED ON THE CONFESSION OF A CO-ACCUSED

It is long established that a Court of law will not anchor its decision solely on the confessional statement of the accused to convict him. The Court’s failure to look out for other material facts which corroborate the confessional statement in convicting him remains fatal.

The profound contention of the appellant herein had further caught the attention of this Court in ALBAN AJAEGBO V. THE STATE (2018) LPELR-44531 (SC) where in my concurring contribution I inter-alia stated thus:-

“The fact of the death of Anthony Ikechukwu Okoronkwo is not in dispute. The act or omission of the appellant and his intention to cause the death of the deceased however appear to remain intriguing. In resolving the 1st issue, therefore, it must be answered whether the two Courts are right in their concurrent findings that Exhibits 26 and 36 provide the evidence of those crucial and seemingly outstanding facts. Being the confession of a person “jointly charged” for the murder of the deceased with the appellant, the two Courts by virtue of 29(4) of the Evidence Act “shall” not take Exhibits 21 and 36 into consideration as against the appellant in the absence of evidence of the fact of appellant’s adoption of the said confession. The failure of the two Courts to accept the distinction the law makes between the admissibility of the two exhibits and the probative value to assign to them, learned appellant’s counsel is right, is fatal to their concurrent findings of appellant’s culpability. Exhibits 21 and 36 are the extra-judicial statements of Innocent Ekeanyawu, from whom the head of the deceased was recovered. The statements provided the implicating information that triggered the arrest and the trial of the appellant. In the eyes of the law, Exhibits 21 and 36 lack the evidentiary worth of being the Courts’ basis for the inference of appellant’s guilt. The respondent is not unaware of this legal truth when it retorts at page 101 of the record of appeal that the exhibits are only tendered as to the fact of their being made only and not as proof of their content. It is indeed wrong for the two Courts below to hold otherwise at pages 763 and 800 – 801 respectively. Consistently, this Court has maintained that the evidence contained in Exhibits 21 and 36 cannot be relied upon by the respondent to sustain the conviction of the appellant unless there is evidence that the appellant has adopted them. See FATILEWA V. STATE (2008) LPELR – 1251 (SC), DARE JIMOH V. THE STATE (2014) LPELR – 22464 (SC).” (Underlining supplied for emphasis). – Per M. D. Muhammad, JSC

CONCURRENT FINDINGS – CONDUCT OF COURTS WHERE THE CONCURRENT FINDINGS OF THE LOWER COURTS ARE PERVERSE

The concurrent findings of the two Courts arrived at in breach of trite principles enunciated by this Court cannot endure. The findings though concurrent are perverse. I so hold.

Resultantly, the appeal succeeds and is hereby allowed. The lower Court’s perverse affirmation of the trial Court erroneous findings is hereby set aside and the appellant acquitted and discharged. – Per M. D. Muhammad, JSC

CONFESSIONAL STATEMENT – WHETHER THE FACT THAT THE ACCUSED DENIES MAKING A CONFESSIONAL STATEMENT RENDERS THE CONFESSIONAL STATEMENT INADMISSIBLE – CONDUCT OF COURTS WHERE THE ACCUSED DENIES MAKING A CONFESSIONAL STATEMENT

The fact that an accused person denies making a confessional statement to the police, does not render such extra-judicial statement inadmissible merely because the accused person denies having made it. What the Court is expected to do to determine the weight to be attached to a retracted confessional statement is to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. The Court would consider whether: a. There is anything outside that Confessional statement to show that it is true; b. It is Corroborated; c. The facts stated in it are true as far as it can be tested; d. The accused person had the opportunity of committing the offence; e. The accused person’s confession is possible; f. The confession is consistent with the other facts ascertained and proved at the trial. See Per OKORO, JSC, in ALAO V. STATE (2019) LPELR-47856(SC) (PP. 23-24 PARAS. E). – Per U. M. Abba-Aji, JSC

ARMED ROBBERY – THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBER

It is trite that for the offence of armed robbery, the Prosecution must prove the following beyond reasonable doubt:

1. That there was a robbery;

1. That the robbers were armed with offensive weapons as at the time of the robbery; and

1. That the defendant participated in the robbery. (underline for emphasis)

See THOMAS v. STATE (2017) LPELR-41735, MINDI v. STATE (2020) LPELR-52897(SC), SANUSI v. STATE (2023) LPELR- 59977(SC). – Per H. M. Ogunwumiju,JSC

STATUTE – THE IMPLICATION OF THE USE OF THE WORDS ‘SHALL’ AND ‘MAY’ IN STATUTES – WHERE A STATUTE CLEARLY PRESCRIBES PERFORMING AN ACT

In ADESANOYE v. ADEWOLE (2006) LPELR – 143 at Pp. 22-23 Paras E-A, this Court, per Tobi JSC, pronounced on the effect of non-compliance with statutory provision thus:

“Where a statute clearly provides for a particular act to be performed, failure to perform the act on the part of the party will not only be interpreted as delinquent conduct but will be interpreted as not complying with the statutory provision. In such a situation, the consequences of non-compliance with the statutory provision follows notwithstanding that the statute did not specifically provide for a sanction. The Court can by invocation of its interpretative jurisdiction, come to the conclusion that the failure to comply with the statutory provision is against the party in default.”

The use of the imperative word “shall” in the provision underscores its mandatory nature. The mischief sought to be curbed by the law includes such unsavory situations as where an alleged confession is extracted by torture and duress imposed on a defendant which led to the confession, to avoid miscarriage of justice and to reduce to the barest minimum the incidents of retractions and time consumed by trial within trial proceedings.

Section 9(3) ACJL is a mandatory procedural law against infractions on the constitutional rights of a defendant as enshrined in Section 35(2) of the CFRN (as altered). Any purported confessional statement recorded in breach of the said provision is of no effect. It is impotent and worthless. See JOSEPH ZHIYA v. THE PEOPLE OF LAGOS STATE (2016) LPELR – 40562 Pp. 28-29 Paras G-B, ISMAILA FATOKI v. THE STATE- unreported judgment of the Court of Appeal in Appeal No. CA/L/1125/2011 delivered on 11/12/2015, FABIAN MATHEW v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1126/2011 delivered on 11/12/2015, KINGSLEY AKHABUE v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1056/2011 delivered on 11/12/2015, AGBANIMU v. FRN (2018) LPELR – 43924 (CA) Pp. 11-12 Paras E-A, ENECHE v. PEOPLE OF LAGOS STATE (2018) LPELR – 45826 (CA) Pp. 27-28 which are persuasive precedents of the Court of Appeal.

On the age long debate in respect of the use of the word “may” in Sections 15(4) and 17(1) & (2) of the ACJA, I will say a few words by way of obiter. I am aware of the conflicting decisions of the Court below on this vexed issue. The general principle of interpretation is that the use of the word “may” connotes permissive action. See ORAKUL RESOURCES LTD & ANOR v. NCC & ORS (2022) LPELR-56602(SC). However, I endorse the brilliant reasoning of the Court below in NNAJIOFOR v. FRN (2018) LPELR-43925(CA). In that case, the Appellant contended inter alia that the Respondent did not comply with Sections 15(4) and 17(2) of the Administration of Criminal Justice Act 2015. The trial Court held that the word “may” as used in those sections is discretionary and not mandatory. The Court of Appeal however held as follows:

“It has been established by a long line of decided cases that the Courts would interpret the word “may” as mandatory wherever it is used to impose a duty upon a public functionary to be carried out in a particular form or way for the benefit of a private citizen. See R v. BARLOW (1693) CARTH. 293 cited in R v. BISHOP OF OXFORD (1879) 4 O.B.D. 245, 258, MOKELU v. FEDERAL COMMISSIONER OF WORKS AND HOUSING (1976) 1 ALL NLR (Pt. 1) 276, 282, EDEWOR v. UWEGBA (1987) 1 NWLR (Pt. 50) 313, 339, UDE v. NWARA (1993) 2 NWLR (Pt. 278) 638, 661, OGUALAJA v. ATTORNEY GENERAL OF RIVERS STATE (1997) 6 NWLR (Pt. 508) 209, 233, ADESOLA v. ABIDOYE (1999) 14 NWLR (Pt. 637) 28, 56, JOHN v. IGBO-ETITI LGA (2013) 7 NWLR (Pt. 1352) 1, 16, GALAUDU v. KAMBA (2004) 15 NWLR (Pt. 895) 31, 52, and CORPORATE AFFAIRS COMMISSION v. THE REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (NIGERIA DIOCESE) (2009) 11 NWLR (Pt. 1151) 40, 60.”

Relying on the mischief rule of interpretation, the Court of Appeal further held thus:

“…to hold that the word “may” in the said provisions carry a discretionary or permissive meaning would not suppress the mischief the provisions are aimed at curing nor would it advance the remedy for it. It would also not add force and life to the cure, rather it would add strength to the mischief and that would not be pro bono publico. Given the objective of the provisions, to give a permissive colouration to the provisions would mean that the Legislature gave a cure to the mischief with one hand and also took away the cure with the other hand. That would reduce the provisions to futility and defeat their purpose. Courts are to adopt construction that would bring out the purpose of legislation. See COCA COLA (NIG.) LTD v. AKINSANYA (2017) 17 NWLR (Pt. 1593) 74, 123.”

The Court held that the use of the word “may” in those provisions are in those circumstances mandatory and not permissive and I could not have agreed more. I adopt the above brilliant reasoning as mine. – Per H. M. Ogunwumiju, JSC

S. 9(3) ACJL LAGOS STATE 2011 – THE IMPORTANCE OF S. 9(3) ACJL LAGOS STATE 2011

Usually, objections raised as to the admissibility of confessional statements pose one of the greatest challenges to criminal trials as it slows down the pace of the proceedings when there is a trial within trial. It is for this reason that Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 and Section 17(2) and 15(4) of the Administration of Criminal Justice Act 2015 have been put in place to ensure that the Police and other agencies who have the power to arrest, obtain confessional statements from suspects without any form of oppression or illegality. The effect of the said provision is that every confessional statement must be recorded on video so that the said recording can be tendered and played in Court as evidence to prove voluntariness or a legal practitioner or any person as specified under Section 17(2) of the ACJA must be present. – Per H. M. Ogunwumiju, JSC

JUDGES – CONDUCT OF JUDGES IN ADJUDICATION

The judge cannot pick and choose which extant law to enforce. – Per H. M. Ogunwumiju, JSC

 

HEARSAY – THE IMPORTANCE OF THE HEARSAY RULE

This Court, per KEKERE-EKUN, JSC in the case of SIMEON v. STATE (2018) LPELR-44388(SC) Pg. 25-26 paras. B has held and I very much agree that:

“The hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony. Where it is shown that the evidence relied upon to convict an accused person amounted to hearsay, an appellate Court would quash the conviction. See IJIOFFOR vs THE STATE (2001) LPELR-1465(SC) @ 19 B-F.” – Per H. M. Ogunwumiju, JSC

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Criminal Law of Lagos State 2011
3. Administration of Criminal Justice Law of Lagos State
4. Evidence Act 2011
5. Administration of Criminal Justice Act 2015
6. Police and Criminal Evidence Act 1984
7. Criminal Investigations Act 2006 (WA) s 118 (Austl.)
8. Police Administration Act 1978 (NT) s 142 (Austl.)

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