CORAM
PARTIES
MICHAEL ORI APPELLANTS
THE STATE RESPONDENTS
AREA(S) OF LAW
Not Available
SUMMARY OF FACTS
The Appellant and the 3 other accused persons and other still at large; were alleged to have robbed one John Nwokeocha and his passengers of one Mercedes Benz 911 Lorry with Registration No. AE 281 and money totalling N260,715.00 while armed with firearms at Mgbee along Orlu Urualla-Akaokwa Road in Orlu Judicial Division. The Appellant and the other 3 were charged with the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of Federation of Nigeria, 1990. The charge was read over to the accused persons including the Appellant and each of them pleaded not guilty thereto. The prosecution called 6 witnesses in the proof of its case against the Appellant and the other accused persons. The Appellant and each of the other accused persons, testified in their own behalf, and called no other witness. While the 1st accused person confessed to the crime, the other accused persons (Appellant inclusive) in their evidence denied the charge. At the end of the trial, the Lower Court found the prosecution to have proved its case against the Appellant and 2 of the other accused persons beyond reasonable doubt and they were subsequently convicted and sentenced to death, except for the 4th accused person who was acquitted and discharged. The Appellant has filed this appeal against his conviction and sentence, pursuant to the leave of this Court, extending the time within which the Appellant, is to appeal. The Respondent though not represented, had earlier filed a brief of argument in the appeal, and it was deemed as having been duly argued by the Respondent.
HELD
Appeal Dismissed
ISSUES
Whether the prosecution by admissible evidence proved the offence of armed robbery against the Appellant beyond reasonable doubt? Whether the defence of alibi as raised by the Appellant during his address in Court can be available in law for the benefit of the Appellant?
RATIONES DECIDENDI
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES
CONFESSIONAL STATEMENT – MEANING OF CONFESSIONAL STATEMENT –CONDITIONS FOR THE ADMISSIBILITY AND INADMISSIBILITY OF CONFESSIONAL STATEMENT
“Confession and its making are matters provided for under the Evidence Act. The law is clear from decided cases as to what a confessional statement is. Going 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 amongst many others the cases of Akpan V State (1992) 7 SCNJ 22 and Azabada V. The State (2014) LPELR-23017(SC). This is why a statement made to the Police by an accused person in the course of Police investigation into a crime that is the subject matter of a charge before a Court and in which an accused person had admitted or suggested the inference that he committed the offence, is always relevant and will be admitted where the accused person does not deny the making of the statement voluntarily; and/or where he denies making the statement at all. In a situation where an accused does not deny making a statement alleged by the prosecution to be confessional, but claims not to have made it voluntarily, then the requirement of the law is that such a statement is not admissible in evidence against the accused person unless it is shown by the prosecution that it was a voluntary statement. This must be done by the Court embarking on a trial within trial. This is to enable the trial Judge determine whether or not the prosecution has established that the statement containing the confession was made voluntarily; and to the extent that the Judge is so satisfied, the same will be admitted in evidence and duly marked as an exhibit tendered by the prosecution. See Gbadamosi V. The State (1992) NWLR (Pt. 266)465 and State V. Ibrahim (2019) LPELR-47548(SC). Similarly, it is the settled position of the law that a confessional statement which an accused person denies making at the point of its being tendered, is admissible in evidence despite the denial. See the cases of Ikemson V. The State (supra), Awopeju V. The State (2002) 3 MJSC 141 and Amos V. State (2018) LPELR-44694(SC)” –
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE
PRINCIPLE OF NON EST FACTUM – APPLICABILITY OF THE PRINCIPLE OF NON EST FACTUM
“However, I cannot but say that the principle of non-est factum would appear not to avail the Appellant in the instant case given the illuminating manner in which the Supreme Court enunciated the principle in the case of Aiguoreghian V. The State (2004) 3 MJSC 71, relied on by the Appellant. It was stated thus: –
Be it noted that it is trite that when a document is sought to be tendered and is objected to by counsel, what counsel objecting does at that stage is no more than a submission on the admissibility of the statement. Thus, as the issue of non-est factum is a matter of fact, the challenge of such a statement is more properly done when the accused or any other witness of his impugns the statement as not being that of the accused from the witness box. I agree with learned counsel for 2nd Appellant therefore that as counsel is not competent to give evidence from the bar and the challenge of a confessional statement on grounds of non-est factum is a matter of fact, the challenge is appropriately made when the accused as witness denies the making of such a statement.
As I had cause to observe in Nwangbomu v. State (1994) 2 NWLR (Pt. 327) 380, a case identical to the one in hand:
“…Now the voluntary statement of the Appellant which was confessional in nature was received in the proceedings giving rise to this appeal as Exhibits B and B1 and these are part of the prosecution’s case. See Anofi Opayemi v. The State (1985) 2 NWLR (Pt. 5) 101. The Appellant for his defence in rendering his testimony in Court, admitted he never said what was recorded. He thereby sought to retract the statement rather than its involuntariness that was in issue.”
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CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
CONFESSIONAL STATEMENT – WHETHER A PLEA OF NON EST FACTUM AMOUNTS TO A RETRACTION OF CONFESSIONAL STATEMENT
“It is noteworthy to stress that the terms “retraction” “resile from” have been used interchangeably in most decisions with the pleas of non-est factum. This is misleading since a statement must first be shown to have been made before it can be said to have been retracted by its maker for where the very making of the statement is in issue, the retraction cannot arise at that stage. It is in this wise that I agree that where an accused person sets up a defence of non-est factum in relation to a confessional statement what he has done is not a retraction but a denial of the making of the statement. No finding was made by the two Courts below on the issue of fact as to whether the Appellants made the statements. The application therefore of the rule in Oladejo v. The State (1987) 3 NWLR (Pt. 61) 419 and Asanya v. The State (1991) 3 NWLR (Pt. 480) 422, two cases that have been overruled, was therefore prejudicial to the Appellants whose conviction ought not to be allowed to stand. See Egboghonome v. The State(1993) 7 NWLR (Pt. 306) 383. –
COURT, APPEAL, PRACTICE AND PROCEDURE, JUDGMENT AND ORDER
FINDINGS OF FACT BY A TRIAL COURT – DUTY OF THE COURT OF APPEAL TO APPROACH THE FINDINGS OF FACT OF A TRIAL COURT WITH EXTREME CAUTION
“It is obvious therefrom, that in each of the statements the Appellant disclosed himself as being privy to the robbery in question; at least as one of the planners and also as having acted as a pointer. The statements made by the Appellant, therefore were rightly found by the Lower Court to be confessional statements and upon which the lower Court could have rightly acted; and indeed, rightly acted upon by the said Court in convicting the Appellant for the offence of armed robbery with which he was charged. This is more so, in the light of the evidence of PW4 as to how the Appellant came to be apprehended and which the lower Court believed, and which I cannot find any basis for faulting the same. This is more so as a trial Judge is the sole determinant of facts and law at the trial stage. See the old case of Abdullahi V. The State (1985) LPELR-29(SC), (1985) NWLR (Pt. 3) 523, wherein the Supreme Court stated thus: –
“It has been established by several authorities that a Court of Appeal must approach the findings of fact of a Trial Court with extreme caution. This is because a Court of Appeal has not had the advantage which the trial judge has enjoyed of seeing the witnesses and watching their demeanour. A Court of Appeal would only disturb the findings of fact of a trial Court where it is satisfied that the trial Court has made no use of such an advantage. If the trial judge has evaluated the evidence before him, it is not for the Court of Appeal to re-evaluate the same evidence and come to its own decision.
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CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
PROOF BEYOND REASONABLE DOUBT – DUTY ON A PROSECUTION TO PROVE ITS CASE BEYOND REASONABLE DOUBT AND NOT BEYOND THE SHADOW OF DOUBT
“The question as to whether an accused person has introduced reasonable doubt in a criminal charge as established against him by the evidence led by the prosecution, is always a fact for resolution in a criminal trial. This, being the position, there is no dearth of authorities in respect of terms like beyond reasonable doubt and reasonable doubt. One of the cases in which the meaning of the terms was considered is the old case of Bakare V. The State (1987) 3 S.C 1. Therein, the Supreme Court dwelling on proof beyond reasonable doubt vis-a-vis reasonable doubt stated thus: –
In his Brief, which was too brief to be of much use, learned counsel for the Appellant submitted that “there is only one issue for determination in this appeal; viz “whether or not the prosecution had proved its case beyond every reasonable doubt”. From the particulars of error/misdirection (supporting this ground of appeal) which were further elaborated in the Brief, it is obvious that there is here a thorough misconception of the requirement that the prosecution should prove its case beyond reasonable doubt.
Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All. E.R. 373: –
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt”….
Also it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt. No. The burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable. Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case. –
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ONUS OF PROOF- WHETHER THE ONUS OF PROOF ON A PROSECUTION SHIFTS
“Another sense in which the expression “Proof beyond Reasonable Doubt” is used refers to the shifting of the onus of proof as stipulated by Section 137(1) Evidence Act Cap 62 of 1958 :
“137(1) If the commission of a crime by a party to any proceedings directly in issue… it must be proved beyond reasonable doubt.”
But if the prosecution proves the commission of a crime beyond reasonable doubt then the burden of proving reasonable doubt is shifted onto the accused – see Section 137(3) of Cap 62 of 1958. What does this subsection mean in relation to the case now on appeal? It means this. At the close of the prosecution case the Court had heard 9 witnesses testified. If the prosecution witnesses were believed and there was nothing urged in defence, no fair ‘minded jury can return any verdict except that of guilty. In other words, the prosecution established this case beyond reasonable doubt. The onus then shifted to the defence to adduce evidence capable of creating some reasonable doubt in the mind of the trial Judge. The primary onus of establishing the guilt of the Appellant was still on the prosecution and this does and did not shift. What does shift is the secondary onus or the onus of adducing some evidence which may render the prosecution case improbable and therefore unlikely to be true and thereby create a reasonable doubt:- R. v. Harry Lazarus Lobell (1957) 41 C.R. App. R. 100 at p.104 per Goddard L.C.J…
Evidence that is not accepted cannot possibly create a doubt in the mind of a fair minded jury. If the defence account of the incident is disbelieved, then that is the end of the story and there will then be no evidence on which to consider the existence of a reasonable doubt. The Court of Appeal was right in holding that the case was proved beyond reasonable doubt…
See also the cases of Uche V. The State (2015) LPELR-24693(SC) and Ankpegher V. State (2018) LPELR-43906(SC), and many others which decide nothing different from what the same Court did on the issue of proof beyond reasonable doubt and reasonable doubt in the Bakare case (supra) . –
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
DEFENCE OF ALIBI- CIRCUMSTANCES WHEN FAILURE TO INVESTIGATE THE DEFENCE OF ALIBI SET UP BY AN ACCUSED PERSON WILL NOT BE FATAL TO THE PROSECUTION’S CASE
“I however consider it pertinent to say that it is settled in law, that non-investigation of alibi where it was given to the Police at the earliest opportunity by the accused person, cannot ipso facto result in the finding of such alibi as established or to have a destructive effect on the case of the prosecution. This in my considered view was the position of the Supreme Court in the old case of Hausa V The State (1994) 6 NWLR (Pt. 350) 281 wherein it was said: –
It appears to me that none of these issues called for wholesale re-evaluation of the evidence adduced at the trial of the Appellant. Although the defence of alibi was not investigated by the police it is clear from the testimonies of P.W.2 and P.W.3 that the Appellant was seen and identified as the assailant of the deceased.
… As both P.W.2 and P.W.3 were believed by the learned trial Judge, the defence of alibi set up by the Appellant becomes untenable, even though the police failed to investigate it. The absence of the investigation is not in the circumstances of this case fatal to the case of the prosecution See …
In the case of Ntam v. State (1968) NMLR 86, which is similar to the present case, Brett, J.S.C. stated as follows:
There are occasions on which a failure to check an alibi may cause doubt on the reliability of the case for the prosecution, but in a case such as this in here the appellants were identified by three eyewitnesses there was a straight issue of credibility and we are notable to say that the Judges findings of fact were unreasonable and cannot be supported having regard to the evidence.
Moreover, in Njovens & Ors. v. State, (1973) 5 S.C. 17, Coker J.S.C. made the following observation at p. 65 thereof:
There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could have been at a scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this of the prosecution adduced sufficient and accepted evidence to fix the person at the scene of the crime at the material time. Surely, his alibi is thereby logically and physically demolished. (emphasis mine).
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CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
DEFENCE OF ALIBI- WHETHER A DEFENCE OF ALIBI AUTOMATICALLY ABSOLVES AN ACCUSED PERSON OF THE CRIME CHARGED WITH
“It is not the law that once a defence of an alibi is set up, then it becomes sacrosanct and must of necessity absolve the Appellant of culpability in a criminal trial. It has been held by the Supreme Court in the case of Njovens & Ors Vs. State (1975) 5 S.C 17 PER COKER J.S.C at page 65 that:
There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduced sufficient and accepted evidence to fix the person at the scene of the crime at the material time. In other word, the word ALIBI is not a magic wand.
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CASES CITED
Not Available
STATUTES REFERRED TO
Criminal Code Act|Evidence Act|Evidence Act Cap 62 of 1958|Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of Federation of Nigeria, 1990|