Legalpedia Citation: (2023-12) Legalpedia 63976 (CA)

In the Court of Appeal

Holden At Calabar

Wed Dec 13, 2023

Suit Number: CA/C/329C/2019

CORAM

Hamma Akawu Barka Justice, Court of Appeal

Balkisu Bello Aliyu Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

JOSEPH EFFIONG THOMPSON

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

The appellant met his victim who fell as a prey when she boarded his motorbike to the market. The Appellant while en-route got into a conversation with another bike man about a church and they ended up hypnotizing/charming their victim who they took to the church. On getting there a ‘man of God’ prayed after which they relieved their victim of the #15,000 she had on her and required that she bring #100,000 more which she did on another occasion while still under the influence of their charm or hypnosis.

She eventually saw the Appellant (the same bike man) on another day and informed her husband who chased and caught him. The Appellant was taken to the village head who decided that the Appellant should be taken to the police station after listening to them.

The Appellant was charged and arraigned on a three counts charge of conspiracy, administering of stupefying substance and stealing contrary to Sections 552, 340, and 408 respectively of the Criminal Code, Cap. 38 Vol.2, Laws of Akwa Ibom State of Nigeria, 2000. The appellant pleaded not guilty to all the counts.

At the end of the trial, the lower Court found the appellant guilty on all three counts and sentenced him to terms of imprisonment of five (5) years, fourteen (14) years and three (3) years respectively and the sentence to run concurrently.

The appellant was dissatisfied with his conviction hence the instant appeal.

HELD

Appeal dismissed

ISSUES

Whether from the totality of evidence adduced at trial, the Prosecution has proved the guilt of the Appellant beyond reasonable doubt?

RATIONES DECIDENDI

IDENTIFICATION PARADE – WHEN AN IDENTIFICATION PARADE IS DEEMED NECESSARY

It is trite law that it is not in every situation that an identification parade is important. What will determine the necessity of conducting an identification parade will depend on the facts of each case. In the case of Sale v. The State (2016) 3 NWLR (Pt.1499) 392 at 413, paras. B-F, the Supreme Court, per Ogunbiyi, JSC, laid down the circumstances when an identification parade is necessary, in these words:

“It is significant to emphasize also that the witness PW2, did not know the appellant before the robbery and the appellant was not arrested at the scene of crime. The incident happened in the night when PW2 was woken up from sleep suddenly. In the circumstance, it is in no doubt that PW2 must have been in a state of confusion and anxiety coupled with fear especially on sighting a gun and matchet. The absence of conducting an identification parade as well as the failure to report the incident to the police until one month thereafter are factors sufficient in casting doubts on the prosecution’s case. The law is well settled that an identification parade is a sine qua non to a conviction in any of the following instances: –

(a) Where the victim did not know the accused before and hid first acquaintance with him was during the commission of the offence.

(b) Where the victim or offender was confronted by the accused for a very short time.

(c) Where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.

See the cases of Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663 at 694-695; Eyisi v. State (2000) 15 NWLR (Pt. 691) 555; and Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170 at 190. – Per P. C. Obiora, JCA

IDENTIFICATION PARADE – WHERE A FORMAL IDENTIFICATION PARADE IS NOT NECESSARY

Where the defendant is well known to the victim or complainant, a formal identification parade is not necessary. In the same vein, where there was sufficient time in the course of the commission of the offence such that the victim can positively identify the defendant then a formal identification parade is not necessary.  – Per P. C. Obiora, JCA

 

COURTS – CONDUCT OF COURTS WHEN THE ACCUSED DID NOT SIGN A CONFESSIONAL STATEMENT

The issue of not signing a confessional statement cannot activate the conduct of a trial-within-trial since the act of denying the signature is a retraction which will still allow the admission of the statement though the evaluation and weight to be attached thereto is a different matter. See Ehot v. The State (1993) 4 NWLR (Pt. 290) 644 and Ajayi v. State (2014) 14 NWLR (Pt. 1426) 1. – Per P. C. Obiora, JCA

EVIDENCE – WHETHER BRILLIANCE IN COUNSEL’S BRIEF CAN MAKE UP FOR EVIDENCE THAT WAS LACKING

It needs to be restated that no amount of brilliance in a counsel’s brief of argument will make up or be a substitute for evidence which was lacking at the trial. See Omisore & Anor v. Aregbesola & Ors (2015) LPELR-24803 (SC); Ibikunle v. Lawani & Anor (2006) LPELR-7581(CA) and Oyubu v. State (2021) LPELR-56767(CA). – Per P. C. Obiora, JCA

 

CONFESSIONAL STATEMENT – WHETHER A POLICE OFFICER WHO RECORDS A CONFESSIONAL STATEMENT OR BEFORE WHOM IT IS ATTTEESTED IS OBLIGATED TO APPEAR AS A WITNESS

With respect to the argument that the senior police officer who interpreted the confessional statement to the appellant was not called as a witness, the simple answer is that by police rules an accused person who makes a confessional statement is taken before a superior police officer for attestation. This is geared towards ensuring the genuineness and voluntariness of the confessional statement as the superior police officer will confirm from the accused person if he genuinely and voluntarily made the statement before he can attest to it. Such a superior police officer who interpreted the confessional statement to the appellant and got his confirmation that he voluntarily made the confessional statement need not be called as a witness before the document will be admitted in evidence or testify in Court before the Court can ascribe probative value to the confessional statement. See Hassan v. State (2016) LPELR-42554(SC).

In the same vein, where the person who recorded the statement is not called as a witness, any other police officer other than the recorder of the confessional statement can tender it at the trial. See Awosika v. State (2010) 9 NWLR (Pt. 1198) 49; Adoga v. State (2014) LPELR-22944(CA) and Oguno v. State (2013) 15 NWLR (Pt. 1376) 1. – Per P. C. Obiora, JCA

CONFESSIONAL STATEMENT – CONDUCT OF COURTS IN RELATION TO CONFESSIONAL STATEMENTS

I need to make this point that the admissibility of the confessional statement after the trial-within-trial is not automatic establishment of the guilt of the defendant. Like every other piece of evidence placed before the Court, the Court has a duty to evaluate the confessional statement in the context of what it seeks to establish and decide on what value and weight to attach to it. See Idagu v. State (2018) LPELR-44343(SC). – Per P. C. Obiora, JCA

 

CONFESSIONAL STATEMENT – WHERE COUNSEL PERSONALLY OBJECTS TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT – CONDUCT OF COURTS IN RELATION TO CONFESSIONAL STATEMENTS

I think this is wrong for a defence counsel to be the person who will inform the Court how a confessional statement was obtained. The confessional statement was not made by counsel. He was not there when it was made. Therefore, it does not lie in the mouth of a defence counsel to just get up in Court and say that the statement of the accused person was obtained under duress. ​To allow the defence counsel to be the person to inform the Court how the confessional statement was obtained is not only tantamount to counsel giving evidence from the Bar, but such statement from counsel will be afflicted with the virus of hearsay evidence, which in both instances are not permissible and admissible in law. It will also mean that a counsel, using his knowledge of the law, will always raise objection based on duress when there is no justifiable ground for it, in order to send the trial Court on the long, time-wasting and tortuous journey of a trial-within-trial aimed at delaying the speedy trial of the substantive charge. The ideal thing is that when such confessional statement is sought to be tendered in evidence, it will be shown to the accused person in the dock who can admit making the statement or deny signing the statement or that he signed under duress. It is the statement of the accused person that the trial Court must record and then decide on the next course of action depending on what the accused person said. – Per P. C. Obiora, JCA

CONSPIRACY – WHETHER A PERSON ACCUSED OF CONSPIRACY CAN BE APPREHENDED AND CHARGED ALONE – STANDARD OF PROOF FOR A CHARGE OF CONSPIRACY

With respect to the count of conspiracy, the appellant stood trial alone. There is no doubt that where two or more persons are accused of committing an offence that all the offenders need not be apprehended and charged to Court together. If only one of the offenders is apprehended there is nothing wrong in his being charged alone with the offence including a charge of conspiracy.

​Like all other offences, conspiracy must be proved beyond reasonable doubt. Generally, conspiracy cannot be proved by direct evidence because common sense dictates that the agreement to commit a crime is done by the conspirators in secret. However, conspiracy manifests in certain criminal acts of the parties from where reasonable inference can be drawn that their actions are in furtherance of a common desire to commit crime. See Okiemute v. State (2016) Vol. 260 LRCN 11. – Per P. C. Obiora, JCA

 

CONTRADICTION – MEANING OF CONTRADICTION

Contradiction was defined in the case of Ayo Gabriel v. The State (1989) 5 NWLR (Pt. 122) 457 at 468 by the Supreme Court thus:

“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them… Two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand; “a discrepancy” may occur when a piece of evidence stops short of, or contains a little more than, what the other piece of evidence says or contains some minor differences in details.” – Per P. C. Obiora, JCA

CASES CITED

STATUTES REFERRED TO

1. Evidence Act, 2011
2. Criminal Code, Cap. 38 Vol.2, Laws of Akwa Ibom State of Nigeria, 2000

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