Legalpedia Citation: (2024-03) Legalpedia 32500 (SC)

In the Supreme Court of Nigeria

Fri Mar 8, 2024

Suit Number: SC.CR/263/2014

CORAM

Kudirat Motonmori Olatokunbo Kekere-Ekun 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

Adamu Jauro Justice of the Supreme Court of Nigeria

Tijjani Abubakar Justice of the Supreme Court of Nigeria

PARTIES

OCHOLI FRIDAY

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

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

SUMMARY OF FACTS

The Appellant was accused of committed the offence of armed robbery by robbing Mr. Alabi Akeem’s sister of vehicle documents, Nokia handset, Digital Sony Camera, Sony Video CD with remote control, a cutlery set, cloths and his room key.

The Appellant in this appeal was charged as the 3rd accused person before the High Court of Justice, Lokoja, Kogi State on a Further Amended Eight (8) head of Counts charges for the offences of conspiracy and armed robbery alongside two other persons, the 1st and 2nd accused, contrary to Sections 97(1) and 298(c) of the Penal Code. When the amended charge was read to the Appellant, he pleaded “not guilty” to all the counts.

The trial Court delivered its judgment and found the Appellant and the co-accused guilty of Counts 2 and 6 in connection with the offences of conspiracy to commit armed robbery and armed robbery; while he was consequently discharged and acquitted on Counts 3, 4, 7, and 8, whereas only the 1st accused was convicted in respect of Counts 1 and 5.

The Appellant became nettled by the decision of the trial Court and made his appeal before the Court of Appeal. The Court of Appeal dismissed the appeal and affirmed the conviction and sentence of the Appellant by the trial Court.

Still peeved by the decision of the Court of Appeal, the Appellant appealed to this Court hence the instant appeal.

 

HELD

Appeal dismissed

ISSUES

1. Whether the lower Court’s failure to re-evaluate the evidence led before the trial Court vis-a-vis the Appellant’s mens rea in the commission of the offence did not occasion a miscarriage of justice?

RATIONES DECIDENDI

BURDEN AND STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL CASES – MODES OF DISCHARGING THE BURDEN OF PROOF/ESTABLISHING THE GUILT OF THE ACCUSED IN CRIMINAL CASES

It is settled that, in criminal cases, as in the instant appeal, the prosecution is expected to prove the case against an accused person beyond reasonable doubt. The legal maxim in latin is expressed as in criminalibus probationes debent esse luce clariores, meaning, in criminal cases, the proof ought to be clearer than light or if you will, no man should be convicted if there is any doubt as to his guilt. Therefore, before a person can be convicted of an offence, the Court must be satisfied that the guilt of the person has been established beyond reasonable doubt. See LORI V. STATE (1980) 8-11 SC 81.

Prior to delving into the complaint raised by the Appellant against the judgments of the trial and the intermediate Courts, it is essential to say here that there are foundational principles regarding the burden of proof in criminal cases within a Court of law. To this extent therefore, this Court has held in a plethora of decisions that proof of the guilt of an accused person can be established through three (3) recognized modes and this include: (a) direct proof – by the testimonies of eyewitnesses who witnessed the commission of the crime(s) by the accused person(s); (b) through the confessional statement(s) voluntarily made by the accused person(s); and (c) indirect proof – through circumstantial evidence, which irresistibly points to the fact that the accused person(s), and no other, committed the offence(s). In law, any one of these methods can be used to establish the guilt of an accused person. See IGABELE V. STATE (2006) 6 NWLR (Pt.975) 100 (SC); EMEKA V. STATE (2001) 6 SCNJ 267. – Per Tijjani Abubakar, JSC

 

EVIDENCE – WHERE THE EVIDENCE IS OF A STATEMENT MADE BY A PERSON OTHER THAN A WITNESS TESTIFYING IN COURT MEANING OF HEARSAY – THE PURPOSE OF THE HEARSAY RULE

It is elementary law that oral evidence must, in all cases whatsoever, be direct. See Section 126(a), (b) and (c) of the Evidence Act, 2011. Clearly, evidence of a statement made by a person, other than a witness testifying in Court, which is offered to prove the truth of the statement, is inadmissible as hearsay evidence. A witness is expected to testify in Court on oath on what he knows personally, if the witness testifies on what he heard some other persons say, his evidence is hearsay and inadmissible. See Section 38 of the said Evidence Act, 2011 and the old case of UTTEH V. THE STATE (1992) LPELR – 6239 (SC) 21, PARAS A – B; (1992) 2 NWLR (Pt. 223) 257 at 2731 PARA F, where this Court held as follows and I quote:

“A piece of evidence is hearsay if it is evident of the contents of a statement made by a witness who is himself not called to testify. It presupposes that if any fact is to be proved against anyone, it ought to be proved in his presence by the testimony of a witness sworn to speak the truth and testifying to facts within his personal knowledge, subject to recognised exceptions.” See also: Arogundade Vs The State (2009) LPELR-559 (SC) @ 23 B – D; Kasa Vs The State (1994) 5 NWLR (Pt.344) 269. 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.”

See also FRN V. USMAN (2012) 8 NWLR (Pt. 1301) 141 at 160; SIMEON V. STATE (2018) LPELR – 44388 (SC). – Per Tijjani Abubakar, JSC

 

CONFESSION – MEANING OF CONFESSION – THE EFFECT OF A CONFESSION

Section 28 of the Evidence Act, 2011 provides that “a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime." Indeed, a confession is a voluntary admission by a person of his participation in a crime – it constitutes an acknowledgment of guilt. Once the Court is satisfied with the veracity or genuineness of the confession, a conviction can be based entirely on it and such a conviction would not ordinarily be disturbed by an appellate Court. – Per Tijjani Abubakar, JSC

CONFESSIONAL STATEMENT – WHETHER A COURT CAN CONVICT ON A CONFESSIONAL STATEMENT RETRACTED AT THE TRIAL – TESTS TO BE APPLIED BY COURTS BEFORE CONVICTING THE ACCUSED BASED ON A CONFESSIONAL STATEMENT

The position of the law is that a Court can convict on a confessional statement retracted at the trial if it is satisfied that the accused person made the statement in circumstances which give credibility to the contents of the confession. In a case where a retraction is made by an accused person, it is desirable that before a conviction can be properly based on such a retracted confession, there should be some corroborative evidence outside the confession which would make it probable that the confession was true. See KARIMU SUNDAY V. THE STATE (2017) LPELR-42259 (SC). The Court must carefully evaluate such statement in the light of other evidence placed before the Court before relying on same to convict. In the case of DAWA & ANOR V. STATE (1980) 8 – 11 S.C (REPRINT) 147, this Court referred to the decision in the English case of R. V. SYKES (1913) 18 C.A.R. 233 to enumerate the tests trial Courts are enjoined to apply in the evaluation of confessional statements before convicting thereon. According to the Court: "Those tests have over the years been adopted by our Courts in the determination of the probative value to attach to Confessional Statements of accused persons. See for example Nwachukwu v. The State (2007) 12 S.C.M. (pt. 2) p. 447 at 455; Okeke v. The State (2003) 15 NWLR (pt. 842) p. 25; James Chiokwe v. The State (2012) LPELR – 19716 (SC); Sule v. State (2009) 17 NWLR (pt. 1169) p.33 at 60; Nsofor v. State (2004) 18 NWLR (pt. 905) p. 292 at 310 – 311 and Habibu Musa v. The State (2013) LPELR – 19932 (SC). To restate those points, I refer to the case of Ikpo v. State (1995) 9 NWLR (pt. 421) p. 540 where the Supreme Court, per Iguh, JSC said: "It is clear that a free and voluntary confession of guilt, whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the Court is satisfied with the truth of such a confession. See; R. v. Sykes (1913) 8 CAR 233 at 236; R. v. Ajayi Omokaro (1941) 7 WACA 146; Philip Kanu & Anor v. King (1952) 14 WACA 30; Jafiya Kopa v. The State (1971) 1 All NLR 150; James Obi Achabua v. The State (1976) 12 S.C. 63 at 68 – 69. But it is desirable to have outside the accused person& confession, some corroborative evidence, no matter how slight, of circumstances which make it probable that the confession is true and correct as the Courts are not generally disposed to act on a confession without testing the truth thereof. See Paul Onochie & Ors. v. The Republic (1966) NMLR 307; R. v. Sykes (supra)." His Lordship went on to stipulate the tests to be applied in determining the truth of such Confessional Statement in the following words: "Indeed the test for determining the truth or otherwise of a Confessional Statement is to seek any other evidence of circumstances which make it probable that the confession is true. In this regard, the Court would consider issues such as; (i) whether there is anything outside the confession to show that it is true. (ii) whether the statement is corroborated. (iii) whether the statement of facts made in the Confessional Statement so far as can be tested is true. (iv) whether the accused person had the opportunity of committing the offence charged. (v) whether the confession of the accused person was possible. (vi) whether the confession was consistent with other facts which have been ascertained and proved at the trial." It would appear that if any of the above stated tests is resolved to be in the negative, the Court would be reluctant to convict on such Confessional Statement.” – Per Tijjani Abubakar, JSC

COURTS – CONDUCT OF COURTS WHERE THE ACCUSED OBJECTS TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT

It is noteworthy that the Appellant had indeed objected to the admissibility of Exhibit 8, contending that same was not voluntarily made. This prompted the learned trial judge to conduct a trial within trial in accordance with laid down procedure in criminal trials. – Per Tijjani Abubakar, JSC

APPELLATE COURTS – CONDUCT OF APPELLATE COURTS TO FINDINGS OF FACTS OF TRIAL COURTS BASED ON CREDIBILITY OF WITNESSES

It is important to note that the above findings made by the learned trial judge resulting in its decision to admit Exhibit 8 and act on same, is a finding of fact based on credibility of witnesses, and by law, an appellate Court cannot ordinarily disturb or interfere with such findings, which is distinct from a finding of fact based on evaluation of evidence. In this latter case, an appellate Court is in the same position as the trial Court and has the liberty to examine, review and re- evaluate the evidence led at trial and come to a different conclusion. See OSUAGWU V. STATE (2013) LPELR – 19823 (SC). – Per Tijjani Abubakar, JSC

CONSPIRACY TO COMMIT ARMED ROBBERY AND ARMED ROBBERY – INGREDIENTS OF THE OFFENCES OF CONSPIRACY TO COMMIT ARMED ROBBERY AND ARMED ROBBERY

Where an accused person is charged with the offence of conspiracy to commit armed robbery and armed robbery, it is incumbent on the prosecution to prove that: (a) there was a robbery or series of robberies; (b) the robbery or each robbery was an armed robbery; and (c) the accused was one of those who took part in the armed robbery; and (d) there was an agreement between the accused and others to commit the armed robbery. See AFOLABI V. STATE (2010) 16 NWLR (Pt. 1220) 584. – Per Tijjani Abubakar, JSC

CONSPIRACY – CONDUCT OF COURTS IN REGARDS TO A CHARGE OF CONSPIRACY

This Court held in several cases that conspiracy – or the agreement to commit a crime is a matter of inference to be made from the acts or inactions of the parties concerned. In fact, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. See FAMUYIWA V. STATE (2017) LPELR-43836 (SC). – Per Tijjani Abubakar,JSC

CONFESSIONAL STATEMENT – WHETHER AN ACCUSED PERSON CAN BE CONVICTED BASED ON CONFESSIONAL STATEMENT ALONE

The voluntary confessional statement of an accused which is cogent, direct, positive and unequivocal may, without further evidence, sustain a conviction. In other words, an accused person may be convicted solely based on his confessional statement if it is positive, direct, unequivocal, and voluntarily made and consistent with other ascertained facts. See ISAH V. STATE (2017) LPELR-43472 (SC). There can be no better proof of the commission of a crime than the words of the accused himself, voluntarily stating how the offence was committed and the role he played. Exhibits 2 and 8 are confessional statements within the confines of Section 28 of the Evidence Act, 2011, since they admit the elements of the offence and/or facts which constitute the offence. Therefore, even without the evidence of PW7, the Appellant can be rightly and sufficiently convicted on his confessional statement alone and this was rightly done in this case. See ADEBAYO V. STATE (2014) LPELR-22988 (SC). – Per Tijjani Abubakar, JSC

CONFESSIONAL STATEMENT – WHERE A CONFESSIONAL STATEMENT IS PROVED WHICH IS DIRECT, POSITIVE AND UNEQUIVOCAL IS PROVED TO HAVE BEEN VOLUNTARILY MADE

The law is trite that a confessional statement, if proved to have been voluntarily made and which is direct, positive and unequivocal as to the appellant's participation in the commission of the offence with which he is charged is sufficient to ground a conviction even where the maker resiles from it at the trial. See Galadima vs The State (2012) 12 SC (Pt. 11) 213; (2012) LPELR- 15530 (SC) @ 21 B – F; Egboghonome vs The State (1993) 7 NWLR (Pt. 307) 383; Nwachukwu vs The State (2007) 17 NWLR (Pt. 1062) 31. It must be noted that while it is the adopted practice of our Courts to subject a retracted confessional statement to the six-way test enunciated in R Vs Sykes (1913) 18 CAR 233 in order to determine the evidential value to ascribe to it, the confession alone, once it meets the criteria stated above, is sufficient to warrant a conviction. See Lase vs The State (2018) 3 NWLR (Pt. 1607) 502; (2017) LPELR – 42468 (SC) @ 17 – 19 G – E; Kolade vs The State (2017) LPELR – 42362 (SC) @ 74 A – C; Nwachukwu vs The State (supra); Kushimo vs The State(2021) LPELR – 54999 (SC) @ 40 -41 E – F. – Per K. M. O. Kekere-Ekun, JSC

CONFESSION – WHERE A CONFESSION IS PROVED TO HAVE BEEN MADE VOLUNTARILY AND TO BE TRUE

On the Appellant& confession in Exhibits 2 and 8, which was duly proved to have been made voluntarily and to be true, was sufficient alone, to ground his conviction even without corroboration since in criminal jurisprudence, confession is considered as the best evidence of proof of guilt of an accused person as an unequivocal and direct admission of the commission of an offence, See Ikemson v. State (1989) 3 NWLR (pt. 110) 445 (SC), Shurumo v. State (2010) 19 NWLR (pt. 1226) 73 (SC), Muhammadu v. State (2020) 17 NWLR (pt. 1753) 252 (SC), Lasisi v. State (2013) 9 NWLR (pt. 1358) 74 (SC), Olayode v. State (2021) 4 NWLR pt. 1765) 144 (SC), Akinkunmi v. State (2022) 9 NWLR (pt. 1836) 553 (SC). – Per M. L. Garba, JSC

TRIAL-WITHIN-TRIAL – WHEN A TRIAL-WITHIN-TRIAL IS CONDUCTED

A trial-within-trial is conducted when the admissibility of a confessional statement is objected to on the ground of involuntariness. If, as in the instant case, after a trial-within-trial or mini trial, the trial Court is satisfied that the confessional statement was voluntarily made, the statement will be admitted in evidence. The implication of a finding that a confessional statement was voluntarily made is that the accused person can no longer argue that he did not make the confessional statement without first impugning the trial-within-trial. See KAMILA V. THE STATE (2018) LPELR – 43603 (SC); BOUWOR V. STATE (2016) LPELR – 26054 (SC). – Per Adamu Jauro, JSC

COURTS – CONDUCT OF TRIAL COURTS WHERE CONFESSIONAL STATEMENT IS FOUND TO BE VOLUNTARILY MADE BY THE ACCUSED

The confessional statement having been found to be voluntarily made by the Appellant, the trial Court was free to uninhibitedly rely thereon and the reliance by the trial Court on the said exhibit cannot be faulted. See STATE V. FAFURU (2022) LPELR – 58482 (SC); USMAN V. STATE (2022) LPELR – 57824 (SC); GARGA V. STATE (2022) LPELR – 57677 (SC). – Per Adamu Jauro, JSC

CONCURRENT FINDINGS – CONDUCT OF APPELLATE COURTS TO CONCURRENT FINDINGS OF LOWER COURTS

It should be borne in mind that this appeal is against concurrent findings of facts by the two lower Courts. The Appellant has not been able to provide any justification for this Court to interfere therewith as it has not been shown that the findings are perverse or that they have occasioned a miscarriage of justice. Hence, this Court will not interfere therewith. See ILA ENTERPRISES LTD & ANOR V. UMAR ALI & CO. (NIG) LTD (2022) LPELR- 58067 (SC); OLAWOYE V. STATE (2022) LPELR – 57832 (SC); OHAEGBU & ORS V. REGD TRUSTEES OF THE CAPUCHIN FRIARS MINOR NIGERIA (2022) LPELR – 57324 (SC); FIDELITY BANK V. THE M.T. TABORA & ORS (2018) LPELR-44504 (SC); AIGUOKHIAN V. THE STATE (2004) LPELR-269 (SC). – Per Adamu Jauro, JSC

CASES CITED

Not Available

STATUTES REFERRED TO

11. Penal Code
12. Evidence Act, 2011
13. Court of Appeal Act
    

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