Demo Oseni Vs. The State (2012)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.S.C.
The appellant was charged along with one Abubakar Umaru Sadiq with the offences of conspiracy and armed robbery before the High Court of Justice of Kwara State, llorin Judicial Division. The counts of conspiracy and armed robbery were laid under s.97 of the Penal Code and s.l (2)(a) and (b) of the Robbery and Fire Arms (Special Provision) Act Cap. R.ll Laws of the Federation 2004, respectively.
In the course of the trial, the Criminal Justice Committee of Kwara State released the 1st accused person Abubakar Umaru Sadiq on bail based on ground of ill-health. Subsequently, he was reported dead and his name struck out of the charge. At the end of the trial, the learned trial Judge discharged and acquitted the 2nd accused, the appellant herein, of the offence of conspiracy. He was however convicted of the offence of armed robbery and sentenced to death by hanging.
The appellant appealed to the Court of Appeal llorin. The lower Court dismissed the appeal and affirmed the decision of the trial High Court.
Appellant has appealed to this Court on four grounds which are hereunder reproduced, shorn of their particulars:
‘GROUND ONE: The Court of Appeal erred in law when it held that the respondent proved its case beyond reasonable doubt.
GROUND TWO: The Court of Appeal misdirected itself when it held that the confessional statement was sufficiently corroborated.
GROUND THREE: The Court of Appeal misdirected itself in law when it held that the argument that the appellant speaks and understands a different language from that of the prosecution witnesses cannot avail the appellant the benefit of doubt in view of the fact that the witnesses were not cross-examined on how they heard the confession of the appellant.
GROUND FOUR: The Court of Appeal misdirected itself when it held that the learned trial Judge was right in convicting the appellant of the offence of armed robbery while discharging him on the offence of conspiracy.’
In compliance with the rules, learned Counsel for the parties filed and exchanged briefs of argument. From the four grounds of appeal in the Notice of Appeal, learned Counsel for the appellant formulated the following two issues for determination:
‘ISSUES FOR DETERMINATION:
(a) Whether in view of the evidence adduced at the trial Court the Court of Appeal was right to have affirmed the decision of the trial Court that the charge of armed robbery was proved beyond reasonable doubt. (Related to Grounds 1 &2).
(b) Whether the Court of Appeal was right when it held that Exhibit 5 was rightly acted upon by the learned trial Judge.’ (Related to Grounds 3 & 4).
Learned Counsel for the respondent adopted the two issues presented by the appellant.
Arguing Issue One in his brief, learned Counsel for the appellant referred to s. 138(1) of the Evidence Act on the burden of proof in criminal cases. He relied on s.36 (6) (5) and (11) of the Constitution of the Federal Republic of Nigeria 1999 as amended and on the presumption of innocence. He cited Chianugo v. State (2002) 2 NWLR (Pt. 750) 225 at 236. He argued that to prove armed robbery, the prosecution must prove three ingredients:
That there was robbery.
That the robbery was armed robbery
That the deceased was one of those who robbed.
He relied on Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 at 566-567. He argued that the prosecution must prove, in addition to the above ingredients, that the accused at, or immediately after, the time of the robbery inflicted wounds or used any personal violence on any person. He contended that the prosecution did not prove the ingredients of the offence of armed robbery as enumerated above.
He argued that the prosecution relied heavily on what he called discredited confessional statement of the appellant. He said the State sought to corroborate the statement by pieces of evidence which had no existence outside the confession and which were inadmissible hearsay evidence. He relied on Akpa v. State (2008) 14 NWLR (Pt. 1106) p.72 at 99 Para D-E; Nwachukwu v. State (2002) 2 NWLR (Pt. 751) p.366 in his contention that the trial Court failed in its duty to consider the circumstances under which the confession was made with a view to deciding the weight to be attached to it.
Learned Counsel conceded that the appropriate time to raise objection to the statement on grounds of involuntariness is at the point of tendering the statement. He cited Alarape v. The State (2001) FWLR (Pt. 41) 1872 at 1875. He regretted that Counsel for the appellant at the trial Court did not object to the statement and said that the trial Court should have been more cautious and considered the statement in the light of the testimony of the appellant. He relied on Ismail v. State (2008) 15 NWLR (Pt. 1111) page 593 at 621 para. D-E; Effiong v. State (1998) 8 NWLR (Pt. 562) 632 in support of his argument that before a conviction can be founded on a retracted confession, it is desirable to have some evidence outside the confession which would make it possible that the confession is true. He said there were no eye-witnesses to the incident leading to the charge against the appellant and what the prosecution witness claimed to have heard the appellant say was not direct but hearsay evidence and not admissible. He relied on Jolayemi v. Alaoye (2004) 12 NWLR (Pt. 887) 322 at 341.
He argued that what the prosecution witnesses claimed they heard the appellant say was not direct experience or sensation emanating directly from a fact in issue. He referred to Ojo v. Gbarono (1999) 8 NWLR (Pt. 615) 374 at 387 wherein such statement as testified to by the prosecution witnesses were admitted as what the witness heard during the incident. He argued that the evidence of prosecution witnesses is extraneous to, and cannot corroborate, the confessional statement of the appellant.
Learned Counsel conceded that a search warrant was executed leading to the recovery of a cutlass based on the confessional statement but argued that in the face of uncontroverted testimony of the appellant at the trial the Court should have been cautious in placing reliance on the recovery of the cutlass. He relied on Orji v. State (2008) 10 NWLR (Pt. 1094) 31 at 50 in his argument that the recovery of a cutlass in the appellants shed is no conclusive proof of crime. He added that there was no forensic examination to prove that the cutlass was the instrument of crime as alleged by the prosecution.
He argued further that even though the 1st accused was caught with the stolen motorcycle, the prosecution did not establish a link between the appellant and the said 1st accused. He urged the Court to resolve the issue in favour of the appellant.
In Issue Two, learned Counsel relied on Akpa v. The State (2007) 2 NWLR (Pt. 1019) p.500; Uwagboe v. State (2007) 6 NWLR (Pt. 1031) 606 at 623 and contended that the trial Court should have considered the following before convicting the appellant based on the confessional statement:
(i) Is there anything outside the confession to show that it is true?
(ii) Is it corroborated?
(iii) Are the facts therein stated as true as far as can be tested?
(iv) Had the accused person the opportunity of committing the offence?
(v) Is the confession possible?
(vi) Is the confession consistent with other facts ascertained and proved?
Counsel argued that there is nothing outside Exhibit P5 to show that the appellant committed any crime or conspired with the 1st accused or any other person to commit any crime. He re-emphasised that Exhibit P5 is not corroborated. He argued that the facts contained in Exhibit P5 and the testimonies of the prosecution witnesses are not true as far as the same can be tested. He maintained that the confession is inconsistent with other facts and findings of the Court. He referred to the evidence of PW2 who he said under cross-examination admitted that he speaks only the Baruten whereas the appellant speaks and understands only Hausa and Fulani languages.
On the neglect of Counsel to cross-examine the prosecution witnesses on the language they spoke vis-a-vis the appellant, learned Counsel relied on the presumption of innocence in s.36 (5) of the Constitution {supra). Learned Counsel added:
‘A corollary of this is that an accused person has the sole discretion whether to cross-examine the prosecution witnesses or not and the exercise of that discretion, or lack of it, should not serve as the basis of any imputation of guilt by the Court.’
Counsel argued that even though Exhibit P5 was admitted in evidence, the appellant never adopted same and in fact, disclaimed it and said he was forced to append his thumbprint on it. Learned Counsel emphasised that the evidence of the appellant in his defence was not contradicted, disputed or successfully challenged by the prosecution. He urged the Court to resolve the issue in favour of the appellant. In conclusion, he urged the Court to allow the appeal and set aside the decision of the lower Court affirming the decision of the trial Court.
In dealing with Issue One in his brief, learned Counsel for the Respondent naturally contended that the charge against the appellant was proved beyond reasonable doubt as found by the trial Court and affirmed by the lower Court. He emphasised that proof beyond reasonable doubt is not and should not be mistaken for proof, beyond every shadow of doubt. He argued that once the prosecution has proved that an offence has been committed and that no other than the accused has committed the offence, the proof beyond reasonable doubt is attained. He relied on Mufutau Bakaru v. The State (1987) 3 SC 1 at p.5.
He adopted the constituent ingredients of armed robbery as stated in paragraph 4.1.3 of the appellants brief. He referred to the evidence of PW2, PW3 and PW4 as contained at pages 27-42 of the record and argued that if the evidence is read together with the confessional statement of the appellant admitted and marked Exhibit P5, there will be no doubt that the charge of armed robbery against the appellant is proved as laid. He drew attention to the conclusion reached by the trial Court at page 20 of the record and affirmed by the lower Court at page 134 of the record. He conceded the absence of eye-witness account of the robbery resulting to the death of the victim but argued that the quality of the circumstantial evidence warranted the conviction of the appellant.
He relied on Amusa Opoola Adio & Anor v. The State (1986) 4 SC 194 at 219-220 where it was held, inter alia, that circumstantial evidence can prove a case beyond reasonable doubt.
Learned Counsel contended that the trial Court did not rely solely on the confessional statement of the appellant and that the conviction of the appellant was the cumulative effect of the trial Courts consideration of the evidence of PW2-PW4, the cutlass recovered in the home of the appellant and his confessional statement Exhibit P5.
He relied on s.27 (B) of the Evidence Act; Utteh v. The State (1992) 2 NWLR (Pt. 223) 257 at 221; UBN Plc v. Ishola (2001) 15 NWLR (Pt. 735) 47 at 75 and argued that the facts stated by PW2-PW4 are facts which could be heard and were in fact heard by the witnesses who gave direct evidence of what they heard. The evidence of the witnesses, he argued, is not hearsay evidence as argued in the appellants brief.
With regard to the argument on the respective languages spoken by the witnesses on one hand and the appellant on the other hand, learned Counsel said it was not true that there was no way the witnesses could have understood what the appellant said for the following reasons:
(1) The witnesses were not cross-examined on how they heard the confession of the appellant. An interpreter could have been used but learned Counsel did not consider it necessary to cross-examine on the issue at the trial.
(2) The appellant himself did not object to Exhibit P5 which contains the summary of the evidence of PW3 and PW4.
He urged the Court to resolve the issue in favour of the respondent.
In Issue Two, learned Counsel conceded the duty of a trial Judge to evaluate a confessional statement, more so where the Court relies solely on it to convict the accused. However, he argued that the conviction of the appellant was not based exclusively on the confessional statement but also on other cogent and compelling pieces of circumstantial evidence which made the facts stated in the confession true. He argued that the confessional statement Exhibit P5 was corroborated by the evidence of PW2, PW3 and PW4 which showed the facts in the statement to be true as can be tested, the appellant had the opportunity of committing the crime, the appellants confession is possible and the confession is consistent with other facts ascertained and proved at the trial.
Learned Counsel faulted the arguments of the appellant that the difference between the confessional statement and the oral testimony of the appellant should have weighed in favour of the appellant and submitted that the trial Court was right to reject the testimony of the appellant as an afterthought since he did not object to the said statement. He relied on Alarape v. The State (2001) FWLR (Pt. 41) 1872 at 1875.
On the argument that the evidence of the appellant was not controverted or contradicted in cross-examination, learned Counsel argued it was the appellant who did not rebut, controvert or contradict the evidence against him under cross-examination but elected to build a new case in the course of his defence. He relied on Alarape v. The State (supra) in his contention that the approach adopted by the appellant has an adverse effect on his case. He urged the Court to resolve the issue against the appellant.
In conclusion, he urged the Court to dismiss the appeal and affirm the decision of the Court below which affirmed the decision of the trial Court.
Issue one is on whether the lower Court was right to affirm the decision of the trial Court based on the evidence adduced at the trial. It is related to Issue Two in that the queried Exhibit P5 is part of the evidence adduced at the trial. This accounts for the spillage of argument on Issue one into Issue Two in the briefs filed and exchanged by the parties.
In the circumstances, I consider it appropriate to take Issue Two first. If issue two is resolved in favour of the appellant, it will be resolved whether or not the totality of evidence adduced at the trial excluding Exhibit P5 is sufficient to ground the conviction of the appellant. On the other hand, if the issue 2 is resolved against the appellant, I will proceed to determine whether or not the totality of the evidence adduced, including Exhibit P5, constitute proof beyond reasonable doubt in a charge of armed robbery.
Exhibit P5 was admitted as a confessional statement of the appellant. S.27 (1) of the Evidence Act as amended defines confession:
‘S.27(1): 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. ‘
It is further provided in subsection 2 that:
‘Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.’
The voluntariness vel non of Exhibit P5 was not an issue at the trial. Learned Counsel for the Appellant conceded this much in his brief but urged that the statement be treated with utmost caution in view of the testimony of the appellant in his defence. It is the law that a retraction of a confession does not ipso facto render the confession inadmissible. See R v. John Agangan Itule (1961) All NLR 462 (FSC) wherein Brett, Ag CJF held that ‘a confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R v. Sapele & Anor (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.’
The appellant took the earliest opportunity when the statement was offered in evidence to deny having made it. A mere denial without more, even at the earliest opportunity, cannot, on the facts of this case, lend weight to the denial. The denial is a bare statement bereft of any supporting fact and standing only on the ipso dexit of the appellant. As stated earlier, the statement was not challenged on ground of involuntariness and the trial Court rightly declined the invitation to conduct trial within trial.
The burden of proving affirmatively beyond reasonable doubt that the confession was made voluntarily is always on the prosecution. See Joshua Adekanbi v. AG Western Nigeria (1961) All NLR 47; R v. Maton Priestly (1966) 50 CR App. R 183 at 188; Isiaka Auta v. The State (1975) NNLR 60 at 65 SC.
On the evidence adduced by the prosecution, coupled with the fact that the voluntariness of the statement was not raised or challenged at trial, I hold that the prosecution proved affirmatively beyond reasonable doubt that Exhibit P5 is the voluntary confessional statement of the appellant. A man of full reason, in control of his senses and without any form of threat or inducement, the onus of proof of which is on him, who makes a statement confessing to a crime that had been committed, cannot be heard to deny that statement and exonerate himself of the crime. There was no allegation of inducement or that the appellant was coerced to confess to a crime which was not committed or if committed, was not committed by him. See Owie v. The State (1985) 4 SC 1 at 27; Cham Wei-Keung v. R (1967) 2 WLR 552.
As for the issue of corroboration stressed by learned Counsel for the appellant, the law is settled and:
‘it is the law that even without corroboration a confession is sufficient to support a conviction so long as the Court is satisfied of its truth.’
See Mohammed J. Yahaya v. The State (1986) 12 SC 282 at 290; R_v. Aminu Kano (1941) 7 WACA 146; Isaac Stephen v. The State (1986) 12 SC 45 at 470.
On the weight to be attached to a confessional statement whether retracted or not retracted the tests are as laid down in R v. Sykes (1913) 8 CR App. R.233 approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30. These are the questions a Judge must ask himself on the weight to be attached to a confessional statement:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) Is it consistent with other facts which has been ascertained and have been proved?
Whether a conviction based on a confessional statement will be upheld or not will depend on whether or not the confessional statement passed satisfactorily the six tests listed above. I will take the tests seriatim:
(1) Is there anything outside the confession to show that it is true? In his confessional statement Exhibit P5, the appellant stated inter alia:
‘at this juncture, we planned together to wait for him in the bush pending his returning back…. While in the bush, Umaru Sabi Sika came with his motorcycle while we forced him to stop. At this juncture I matched (sic) him on his right hand, head and neck while he fell down…. After weve killed him, Abubakar Umaru Sadiq went away with his motorcycle so that he would sell it.. Actually it was myself and Abubakar Umaru Sadiq that killed the said Umaru Sabi and carted away his motorcycle… The cutlass I used in killing the deceased is in my house. I am ready to produce the said cutlass to the Police at any time my house is visited.’ See page 61 of the records
The Report of the medical practitioner on the condition of the corpse Exhibit P9 states inter alia:
‘Deep cut on the neck… his right wrist almost cut off. There are six (6) other deep cuts on his head.’ See page 69 of the record.
Appellant said he macheted (he used the word ‘matched’) the deceased on his right hand, head and neck. Exhibit 9 which is outside the confession shows the presence of ‘Deep cut on the neck, his right wrist almost cut off’ and ‘six (6) other deep cuts on his head.’ The contents of Exhibit P9 tallies in all material particulars with the contents of Exhibit P5 with regards to the injury inflicted on the deceased.
There is credible evidence that the deceased travelled to a market on his motorcycle. A motorcycle was recovered and identified as belonging to the deceased. In Exhibit P5, appellant said he and his co-accused laid ambush for the deceased, stopped him and killed him on the road. There is evidence which was not challenged, that the deceased who left for market on 26/5/05 was found on the road in a pool of blood on 27/5/05. He was macheted to death.
In my view, only the perpetration of the crime could without the benefit of Exhibit P9 state where the injuries were inflicted on the body of the deceased with such degree of accuracy as evident from Exhibits P5 and P9. The contents of Exhibit P9 corroborate the confessional statement Exhibit P5. The facts that cuts were inflicted on the neck, head and right hand of the deceased and that the deceased was killed on the road and his motorcycle stolen are true as far as can be tested. They are relevant facts contained in Exhibit P5.
The appellant did not plead alibi and there is nothing, even from his cock and bull story, to suggest, even remotely, that he had no opportunity to commit the crime. He did not say he was not within the area at the time of the murder. Even without the evidence of PW2-PW4, the possibility of the.confession is amply demonstrated in Exhibit P9.
The confession is consistent with the discovery of the body of the deceased in a pool of blood on the road, the fact that the deceased was macheted to death, the fact that the motorcycle on which he travelled to the market was stolen, the machet cuts on his body. Above are facts ascertained and proved and the confessional statement Exhibit P5 is consistent with them.
Exhibit P5, in my view, satisfactorily passed the six tests listed above. On the facts of this case it can by itself support the conviction of the appellant on the charge of armed robbery upon which he was tried. In Ashcraft v. Tennessee 322 US 143,161 (1944), it was stated that:
‘A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser.’
Having satisfied the conditions for its admission and the weight to be attached to it, it is the best and strongest evidence possible, short of eye witness account which was not presented in this case. I endorse the decision of the lower Court on Exhibit P5. I resolve issue two against the appellant.
Issue one is whether in view of the evidence adduced at the trial Court, the Court of Appeal was right to have affirmed the decision of the trial Court that the charge of armed robbery was proved beyond reasonable doubt. The evidence adduced at the trial is, inclusive of it not mainly, the contents of Exhibit P5. Not only have I decided that the Court below was right in holding that the trial Court rightly acted upon it, I have also come to the conclusion that the appellant could have been rightly convicted solely on his confessional statement, Exhibit P5.
The rest of the evidence – the testimonies of PW2, PW3 and PW4 will only add, but will not detract from Exhibit P5. The testimonies of those witnesses are mere subsidiaries of the main evidence, Exhibit P5, and having resolved the two issues against the appellant, it is not necessary to formally resolve issue one.
In the final analysis, I dismiss the appeal as devoid of merit. I endorse the decision of the Court below which affirmed the judgment of the trial High Court. Appeal dismissed. Conviction of, and the death sentence passed on, the appellant are affirmed.
SC. 14/2011