Stephen John & Anor. V. The State (2011)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, J.S.C.

The appellants in this appeal were arraigned with one other before the High Court of Plateau State for the offence of armed robbery, and they were consequently convicted, after the prosecution had proved its case, and the court did not find their defence tenable. After an appeal to the Court of Appeal in which they failed, they have appealed to this court on five and six grounds of appeal respectively, from which issues for determination were raised in this appeal. The issues are:-

“1. Whether the Honourable Court of Appeal was right in affirming the conviction and death sentence passed on the Appellants by the trial Court when exhibits 3 and 5, the alleged confessional statements of the Appellants, which were heavily relied upon by the trial judge, were inadmissible in law.

2. Whether the non consideration of the submissions of the Appellants on exhibits 3 and 5 by the Honourable Court of Appeal was proper.
3. Whether the Honourable Court of Appeal was right when it held that the prosecution proved the guilt of the Appellants beyond reasonable doubt.”

In its brief of argument, the respondent raised the following issues:-

“1. Whether the learned Justices of the Court of Appeal were right in law to have convicted the Appellants on their confessional statements.

2. Whether the learned Justices of the Court of Appeal were right in law when they held that the prosecution has proved its case beyond reasonable doubt.”

The case of the prosecution against the appellants and one other is that the accuseds while armed with firearms and offensive weapons robbed one Elizabeth Musa in her house and carted away many valuable properties on 22nd of February 1999. The charge preferred against them reads as follows:-

“THAT YOU STEPHEN JOHN, HENRY LAWRENCE AND MAXWELL IDI in company of SAMSON MADAKI AND FREEDOM (surname unknown and now at large) on or about the 21st day of February, 1999 at Jenta Mangoro, Jos, Jos North Local Government Area, in the Plateau Judicial Division while armed, with guns, knives and sticks robbed one ELIZABETH MUSA of one Video cassette Recorder, one World Receiver Radio, One Car Stereo, six set of gold necklaces value (sic) at N216,000. Two wrist watches. Six sets of gold jewelries valued at N30,000. Three Cameras, Seven Cupion laces, assorted Wrappers and one Dictionary and thereby committed an offence punishable under Section 1(2) (B) Robbery and Firearms Act 1984 (as amended).”

Three witnesses testified for the prosecution, while two testified for the defence. The learned trial court after evaluation of the evidence, and consideration of the addresses of learned counsel, found the prosecution’s case proved and convicted the appellants. The appellants appealed to the Court of Appeal. The appeal was dismissed, and they have further appealed to this court. Briefs of argument were exchanged by learned counsel for the parties, who adopted the briefs at the hearing of the appeal. The issues formulated in the briefs of argument have already been reproduced above. I will however adopt the issues in the appellants’ brief of argument.

I will commence the treatment of this appeal with the argument covering issue (1) supra. The thrust of the argument in this issue is the inadmissibility of the confessional statements, exhibits 3 and 5. It is the argument of the learned counsel for the appellants that exhibit 3 ought to have been tendered through Sergeant Attah Idu, the recorder of the said statement, as is required by Section 91(1) (a), (b) of the Evidence Act. In support of this argument the following cases were cited: Omega Bank Nig. PLC v. O.B.C. Ltd 2005 All FWLR part 249 page 1964, Flash Fixed Odds Ltd v. Akatugba 2001 FWLR part 76 page 708, and Benjamin Opolo v. The State 1977 11 – 12 SC 1. According to the learned counsel, exhibits 3 and 5 were not voluntary as they were made consequent upon prompting by the police. Reliance was placed on the cases of Regina v. Nyinya Kwaghbo 1962 NLR 4, Manshep Namsoh v. That State 1993 6. Furthermore, whereas, exhibit 5 was said to have been recorded in hausa, it was the translated English version that was tendered in evidence. Learned counsel referred to the case of Shande v. The State 2005 All FWLR part 279 page 1342.

In reply, the learned counsel for the respondent has submitted that the appellants’ argument on through whom exhibit 3 should have been tendered is an after thought, as they had ample opportunity to object to its admission when it was sought to be tendered. He referred to the case of Aremu v. State 1991 7 S.C. (Pt. 111) page 82. Besides, according to him this issue is raised for the first time in this court, and without leave. It is therefore incompetent to raise it now, and so it should be struck out. Reliance was placed on the case of Nwachukwu v. State 2007 7 S.C.1. In their appellants’ reply brief of argument, the learned counsel further submitted that even if it is an issue that was not raised before the lower court, being a substantial issue of law that concerns the admissibility of exhibit 3 which was extensively used to convict and sentence the appellants to death, it is the practice of the Supreme Court to allow such argument even in the absence of leave to raise same. He placed reliance on the cases of Adio and Ors. V. The State 1986 All NLR 425, Alade v. Olukade 1976 2 SC. 183, Durosaro v. Ayorinde 2005 3 – 4 SC. 14, and Osho & Anor v. Ape 1998 6 SC. 121. He further added that the confessional statements were admissible and could be relied upon, and that apart, the court went further to confirm that the confessional statements were corroborated. The case of Alarape v. State 2001 2 S.C. 114 was cited.

On the submission of learned respondent’s counsel that the issue of the inadmissibility of exhibits 3 and 5 is raised in this court for the first time without leave, I will say that it is not absolutely correct to say that the issue of the admissibility of exhibits 3 and 5 were raised for the first time in this court. A very careful and thorough perusal of the grounds of appeal in the Court of Appeal will confirm that it was raised even in that court. Under ground (5) of the 1st appellant’s additional ground of appeal are the following particulars:-

(i) The recorder of Exhibit (3) was not called by the prosecution, as P.W.3 did not record or know (sic) any knowledge of how Exhibit (3) was obtained.

The above, coupled with issue (1) in the appellants’ brief of argument definitely signify that it is not a fresh issue that is now raised for the first time in this court. The submission that it is incompetent does not hold water, so I am discountenancing it. I will now proceed to the argument covering the issue as a whole, starting with the propriety of PW3 tendering the confessional statement of the 1st appellant (when he was in fact not the maker), and its admissibility. Section 91 of the evidence Act 1 Cap 112 Laws of the Federation of Nigeria 1990 which the learned counsel for the appellants have cited stipulates the following:-

“91(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tendering to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied –