LEGALPEDIA ELECTRONIC CITATION: LER[2019]SC. 877/2015

AREAS OF LAW:

Appeal, Court, Criminal Law And Procedure, Law Of Evidence, Practice And Procedure, Words And Phrases

SUMMARY OF FACTS:

The Appellant was arraigned before the Lagos State High Court, on a two-Count charge of conspiracy with others now at large to commit robbery and armed robbery, around Testing Ground Bus-Stop, Alausa, Lagos. They allegedly robbed one Inah Elias, a recharge card seller, of recharge cards, all valued at N95, 000.00, while armed with a locally made pistol. The Appellant pleaded not guilty, and to prove its case, the Prosecution called two Police Officers, PW1 and PW2, the said victim of the crime, Inah Elias, as PW3, and his brother, Onoja Elias, who witnessed the incident, as PW4. When the Prosecution Counsel sought to tender the confessional statement of the Appellant, the Defence Counsel objected on the ground that the Appellant” was chained, hanged and beaten before he made the Statement”, but after a trial-within-trial to test its admissibility, the said Statement was admitted in evidence as Exhibit P2. PW2 PC Koko Imeh, of the Alausa Police Division, identified the Statement recorded by one “Osijeme” at the Alausa Division, who did not testify. The Defence Counsel objected on the ground that it “should be tendered through the Officer, who obtained it. The trial Court overruled his objection, and the Statement made by the Appellant at Alausa Division, was admitted as Exhibit PA. However, in his testimony as DW1, the Appellant denied that he robbed PW3. He said he was a recharge card seller with PW3 at the same Testing Ground, Alausa, and that he was merely roped in. At the end of trial, the trial court found him guilty of the charges and sentenced him to death accordingly. The Appellant appealed to the Court of Appeal, which dismissed same. It is against the lower court’s decision that the Appellant has brought this appeal.

HELD:

Appeal Dismissed

ISSUES FOR DETERMINATION:

• Whether the Court of Appeal was right in affirming the con viction of the Appellant after having agreed that the failure of the prosecution to call Supol Ijinla as a witness in the matter amounted to withholding of evidence contrary to Section 149(a) of the Evidence Act?
• Whether the Court of Appeal was right in affirming the conviction of the Appellant based on the Appellant’s purported confessional statements?
• Whether having regard to the totality of evidence adduced in this case, the Prosecution proved beyond reasonable doubt the guilt of the Appellant.

RATIONES:

VITAL WITNESS – WHO IS A VITAL WITNESS?

“A vital witness is a witness, whose evidence may determine the case one way or the other, and it is settled that the failure to call such a witness is fatal to the Prosecution’s case–Onah V. State (1985) 3NWLR (PL 12)236 SC.” PER A. A. AUGIE, J.S.C.

WITNESSES- DUTY ON THE PROSECUTION TO CALL ONLY WITNESSES IT CONSIDERS RELEVANT TO ITS CASE

“It is also well settled that the Prosecution is entitled to call only the Witnesses that it considers relevant to its case. In effect, it is for the Prosecution to determine the direction of its case and which witness to call to prove its case, and once it discharges that burden on it to prove its case beyond reasonable doubt, it does not matter that a particular witness was not called to give evidence.” PER A. A. AUGIE, J.S.C.

WITNESSES – DUTY OF AN ACCUSED PERSON TO CALL ANY WITNESS ESSENTIAL TO HIS DEFENCE

“There is no legal boundary that hinders an Accused from calling any Witness he considers vital or essential to his defence. It is foolhardiness, in my view, for him to wait for the Prosecution to call a witness he needs for his defence.” PER A. A. AUGIE, J.S.C.

CRIMINAL TRIAL – SCOPE OF THE DUTY OF THE PROSECUTION IN CRIMINAL TRIALS

“The Prosecution has a duty to prosecute the Accused within the ambit of the law. To that end, the law grants it the discretion to call any number of witnesses or adduce any particular evidence, to prove its case beyond reasonable doubt. In other words, the Prosecution cannot conduct its own case and that of the defence as well. Since the Appellant felt strongly that the presence of the said Supol ijinla was vital to his defence, he ought to have called him as his Witness. He cannot complain or be seen to quarrel with the Prosecution for not calling Supol Ijinla, as its Prosecution Witness; it did not need Supol ijinla for its case.” PER A. A. AUGIE, J.S.C.

RETRACTED CONFESSIONAL STATEMENT- ATTITUDE OF COURT TO A RETRACTED CONFESSIONAL STATEMENT

“Where the Accused contends that he did not make the confession, the trial Court is entitled to admit it in evidence, and thereafter, decide whether he made the statement at the conclusion of trial. Thus, a trial-within-trial is not required in such circumstances.” PER A. A. AUGIE, J.S.C.

CONFESSIONAL STATEMENT- DUTY OF COURT WHERE A CONFESSION IS OBJECTED TO ON GROUND OF BEING INVOLUNTARILY MADE

“But where the Accused agreed that he made the Confession, and complains that he was forced or tortured to make it, this calls into question its admissibility, and the trial Court must, therefore, hold a trial-within-trial to determine its admissibility in evidence. The issue of voluntariness is kept distinct from the issue of guilt; and this is carried out by insulating the enquiry into voluntariness in a compartment that is completely separate from the main trial.” PER A. A. AUGIE, J.S.C.

CRIMINAL PROCEEDINGS – RIGHT OF AN ACCUSED TO HAVE THE QUESTION OF THE ADMISSIBLITY OF HIS CONFESSION TRIED SEPARATELY FROM THE ISSUE OF HIS GUILT

“In effect, an Accused has the right to have the question of his confession’s admissibility tried as a separate and distinct issue. So, he can go into the witness-box on the issue of voluntariness, without being exposed to general cross-examination on the issue of his guilt- see Ifaramoye v.The State (2017) LPELR-42031(SC).” PER A. A. AUGIE, J.S.C.

CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE

TRIAL-WITHIN-TRIAL- ESSENCE OF A TRIAL-WITHIN-TRIAL

“A trial-within-trial is used to test voluntariness of a confession; not what value or weight to attach to the evidence. In other words, the question of the value and what weight to attach to a confession admitted in evidence after a trial-within-trial is a different matter altogether, as “admissibility and” weight are not the same thing. For instance, the fact that a document was admitted in evidence, with or without objection, does not necessarily mean that it made out or established the evidence contained therein, which must be accepted by the trial Court. As Tobi, JSC, pointed out in Abubakar V. Chuks (2007) 18 NWLR (Pt. 1066) 386at403. “it is not automatic.” PER A. A. AUGIE, J.S.C.

ADMISSIBILITY OF CONFESSIONAL STATEMENT- APPROPRIATE TIME TO RAISE AN OBJECTION TO THE ADMISSIBILITY OF CONFESSIONAL STATEMENT

“As to Exhibit PA, which the Appellant admitted that he made at Alausa Police Station, his attempt to bring its admissibility into question in this Appeal must be stopped in its tracks because it is settled that the appropriate time to object to the admissibility of a confessional statement on the ground of involuntariness is when the statement is being tendered; not when the Accused Person opens his defence or during that defence – Ogudo v. State (supra).” PER A. A. AUGIE, J.S.C.

CONFESSIONAL STATEMENT – WHETHER AN ACCUSED PERSON CAN BE CONVICTED ON HIS RETRACTED CONFESSION

“It is a well-established principle that the Court can convict on the retracted confessional statement of the Accused Person. But the Court is enjoined to satisfy itself that the confession was free, voluntary and properly taken, and that it passed the six tests to be applied to a confession that was suggested by Ridley, J., in R. v. Sykes{mZ) 18 CR App R 233.” PER A. A. AUGIE, J.S.C.

CONFESSIONAL STATEMENT- FACTORS TO CONSIDER IN DETERMINING THE WEIGHT TO BE ATTACHED TO A CONFESSIONAL STATEMENT

“As the Court of Appeal pointed out, in determining the weight to attach to a confessional statement, retracted or not, the Court must ask itself the following questions:

• Is there is anything outside the confession, which shows that it may be true?
• Is it corroborated in anyway?
• Are the relevant statements of fact made in it most likely true as far as they can be tested?
• Did the Accused have an opportunity to commit the offence?
• Is the confession possible?
• Is the confession consistent with other facts, which have been ascertained and established?

In other words, it is desirable to find independent evidence; that is, to have some evidence outside the confession, however slight, of circumstances, which make it probable that the confession made by the Accused was true – see Queen V. Itule (1961) 2SCNLR183. Edhigere V. State (1996) 8NWLR (PL 464) 1at 13-14.” PER A. A. AUGIE, J.S.C.

CORROBORATIVE EVIDENCE- WHAT IS CORROBORATIVE EVIDENCE?

“Now, “corroboration” as explained by Lord Reading, CJ, in Rex v Baskervitle [1916] 2 KB 658, must be independent evidence, which affects an Accused by connecting or tending to connect him with the crime. It must be evidence, which implicates him, that is, which confirms in some material particular not only the evidence that the crime was committed, but that the Accused committed it. So, corroborative evidence is evidence that shows that the story that the Accused committed the crime is true, and not merely that the crime has been committed, but that it was committed by him.” PER A. A. AUGIE, J.S.C.

“TAINTED WITNESS” – DEFINITION OF A “TAINTED WITNESS”

“Now, the accepted definition of a tainted witness is a person, who is either an accomplice or who, by the evidence he gives, may and could be regarded as having some personal purpose to serve. So, his evidence should be treated with considerable caution “and examined with a tooth comb’ – see Adetola V. State (1992) 4 NWLR (Pt 235)267 and Egwumi V. State (2013) 13NWLR (PL 1372) 525.” PER A. A. AUGIE, J.S.C.

EVIDENCE OF BLOOD RELATIONS – WHETHER EVIDENCE OF BLOOD RELATION IS PROHIBITED

“However, it is well settled that the fact that there is a blood relationship between a victim and the Prosecution witness is not sufficient in itself to make him a tainted witness, whose evidence is unreliable, unless corroborated – see Egwumi V. State (supra). Omotayo & Ors V. State (2009) LPELR-2663(SC) and Omotola V. State (2009) 7 NWLR(1139) 148, wherein Ogbuagu, JSC. observed:

A case is not lost on the ground that those, who are witnesses, are members of the same family or community. What is important is their credibility and that they are not tainted witnesses. This is because the Prosecution should not be encouraged to call hired witnesses, especially in murder cases of capital offences. Justice, it is said, will be defeated, if the Prosecution of any Accused Person can only commence, when and only when, witnesses are neither related to the Accused nor are members of the same family – – The evidence of a relation can be accepted, if cogent enough to rule out the possibility of deliberate falsehood and bias– There is no law, which prohibits blood relations, from testifying for the Prosecution where such a relation is the victim of the crime committed.”

• PER A. A. AUGIE, J.S.C.

FINDINGS OF COURT- PRESUMPTION OF THE CORRECTNESS OF THE FINDINGS OF A TRIAL COURT

“In this case, the fact that PW4 is PW3 is older brother, is not a reason to reject his evidence. There is nothing in his evidence to suggest that he had his personal purpose to serve as a Witness. In fact, his evidence tallied with the evidence of other Witnesses called by the Prosecution. The trial Court believed all four of them and when it comes down to credibility, this Court is handicapped. This is so because assessing the credibility of witnesses is the pre-eminent duty of a trial Court, and there is a presumption that its findings are right and correct until the contrary is shown.” PER A. A. AUGIE, J.S.C.

 

STATUTE REFERRED TO:

Evidence Act, 2011