Dondos V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Kaduna Division or lower Court or Court below; Coram: Abdu Aboki J.C.A. (as he then was), Theresa Ngolika Orji Abadua, Ita G. Mbaba J.J.C.A. delivered on the 30th day of May, 2014, wherein the lower Court confirmed the decision of the Katsina State High Court which convicted the appellant for the offence of armed robbery and sentenced him to death with two other accused persons.
The appellant herein was the 2nd accused person at the trial Court along with two other accused persons who were charged and arraigned on two count charge of armed robbery committed on the 30th day of January, 2002 and in April, 2002.
In proof of his case at the trial Court, the prosecution called a number of witnesses in the main trial and during the trial within trial, amongst whom was PW1 who testified as it affected the Appellant herein, at pages 22-23 of the printed records thus:
“Thereafter, we continued our investigation. In August, 2002, we were able to arrest the 2nd accused person and he was brought to CID office.
I used thesame process as before and I recorded his statement and then took him before Mr. Chibok who also endorsed the statement like those of the others.”
The recorded statement of the Appellant which is referred to as Exhibit ‘B’ was confirmed by the Appellant as the statement he made to the Police when he was cross examined as DWB as seen at Page 38 of the printed records thus: “I made the statement when I was better.”
Though the Appellant later denied the said confessional statement, after a comprehensive trial within trial to determine the admissibility of the said confessional statement, the trial Court said it found no evidence to contradict the prosecution’s testimony that the confessional statement was obtained voluntarily, consequently, same was admitted in evidence. See the ruling of the trial Court at page 50 of the printed records.
The accused/appellant was convicted for the offence of Armed Robbery under Section 1 (2) (a) (b) of the Robbery and Fire arms (Special Provision) Act Cap 398 LFN 1990, by the trial Court.
The Appellant being dissatisfied with the judgment of the trial Court, appealed against the decision
via a notice of Appeal dated 17th April, 2012 containing only the ground of Appeal thus: – “That the decision of the High Court is unreasonable, unwarranted and cannot be supported having regards to the evidence adduced at the trial.”
The appellant further contended at the Court below that the two-count charge of armed robbery were not proved beyond reasonable doubt.
The Court below found no merit in the appeal and dismissed same, affirming the conviction and sentence. The appellant has now come before the Supreme Court to ventilate his grievance.
On the 5/11/2020 date of hearing, learned counsel, Dr. Adekunle Oladapo Otitoju for the appellant adopted the brief of argument filed on 14/8/2019 and deemed filed on 5/11/2020. He raised three issues for determination which are thus: –
a. Whether the judgment of the lower Court affirming/upholding the decision of the trial Court is justified, without considering the adduced evidence at the trial within trial (the issue is distilled from ground 1, 5 of the ground of Appeal).
b. Whether the lower Court was wrong to rely on Exhibit B the alleged confessional statement in also affirming the
decision of the lower Court that is not reliable (This issue is distilled from ground 2 and 4 of the grounds of appeal)
c. Whether having regards to the available evidence and the entire circumstance surrounding the matter, the lower Court was right to affirm the decision of the trial Court. (Distilled from ground 3 of the grounds of appeal).
Learned counsel for the respondent, Emeka Obegolu Esq.., adopted the amended brief of argument filed on 27/2/2020 in which learned counsel adopted the issues raised by the appellant.
I see the Issue 3 as sufficient in the determination of this appeal and I shall utilise it as a sole issue.
Whether having regards to the available evidence and the entire circumstance surrounding the matter, the lower Court was right to affirm the decision of the trial Court in this matter.
Canvassing the position of the appellant, learned counsel submitted that the situation presented in this case shows an exception in an appeal on concurrent finding of facts of two lower Courts when it is necessary for the Supreme Court to interfere as there was a miscarriage of justice propelling those findings.
He cited Mohammed Ibrahim v State (2015) All FWLR (pt. 779) 1149 at 1175 etc.
That in the instant case, the prosecution failed woefully to prove all the ingredients of the offence of armed robbery punishable with death and so no justification for the conviction and sentence by the trial Court nor the affirmation by the Court below. That the burden of proof in a criminal matter such as the present is beyond reasonable doubt and that burden does not shift. He relied on Inusa Saidu v State (1982) 4 SC 26 at 42 etc.
For the appellant, it was contended that there was no evidence showing that the appellant participated in the alleged robbery on which the appellant was convicted and sentenced. That there was no link with the alleged robbery. He cited Udosen v State (2007) 4 NWLR (pt. 1023) 125 at 162 etc.
That it was wrong for the trial Court to act on the statements of 1st and 3rd accused person to convict the appellant and the lower Court ought not to have upheld the judgment of the trial Court.
Learned counsel for the appellant went on to submit that the reliance of the trial Court on the confessional statement of the appellant, Exhibit B was
misplaced as the statement was not voluntarily made. He cited Inusa Saidu v State (1982) 4 SC (Reprint).
That the confessional statement, Exhibit B had no corroborative evidence outside of itself as it was even retracted. He said the Exhibit B ought to have been expunged from the record in the circumstances prevailing.
For the appellant, it was stated that the trial Court failed to seek any other evidence of circumstances which make it probable whether the confession is true and the failure of the two Courts below to follow the above principle negated the use of that confessional statement. He cited Shurumo v State (2010) 5 NWLR (pt. 1218) 65; Oseni v State (2012) 5 NWLR (pt. 415)513 at 537.
Learned Senior Counsel for the respondent submitted that this is an instance where the Apex Court should not interfere with concurrent findings of two lower Courts below as there is no manifest error apparent on the record occasioning a miscarriage of justice or a violation of some principle of law or procedure. He citedBoniface Adonike v The State (2015) All FWLR (pt.772) 1631; Arum v Nwobodo (2013) LPELR 20390.
That the retraction of the confessional
statement by the appellant did not make the statement inadmissible as the law allows for an accused to be convicted on his confessional statement alone as in this case where the statement is positive, direct and made voluntarily. He relied on The State v Salawu (2011) LPELR – 8252; Igba v State (2018) 6 NWLR (pt. 1614) 44 at 58 etc.
He stated on that from the records, all the ingredients of the offence of armed robbery were clearly proved and established against the appellant beyond reasonable doubt. He referred to Eke v State (2011) 1-2 SC (pt. II) 219; The State v Odunayo Ajayi (2016) 14 NWLR (pt. 1532) 216.
In a nutshell, the appellant posits that he had no link with the charge; was not found with any form of weapon; was not arrested at the scene of crime and the available evidence is just the alleged confessional statement of a doubtful origin since he was tortured and shot on the leg before he signed the said statement, Exhibit B. That the appeal should be allowed.
On the part of the respondent, it is that a careful consideration of all the facts made available, that the totality of the evidence placed by the prosecution before the trial
Court was enough to secure the conviction of the appellant for the offence of armed robbery. That the concurrent findings of the two Courts below were well grounded for which this Court should not interfere to disturb the findings and conclusions thereof.
In a case of armed robbery such as the one under discourse, it is incumbent on the prosecution to prove the essential elements of the offence which are as follows: –
- That there was a robbery or series of robberies;
- That each robbery was an armed robbery i.e., stealing plus violence with a weapon or arms
- That the accused/appellant was one of those who took part in the armed robbery
I refer to Eke v State (2011) 1-2 SC (part II) 219; Ugboji v State (2018) 10 NWLR (pt. 1627) 346; Orisa v State (2018) 11 NWLR (pt. 1631) 453 (SC); The State v Odunayo Ajayi (2016) 14 NWLR (pt. 1532) 216.
In proving or establishing the necessary ingredients above stated in a charge or armed robbery just as in any other criminal matter, the prosecution can achieve the same by the deployment of any of the following methods, viz:
a. Direct and credible evidence; or
b. Circumstantial evidence, or
c. The confessional statement of the accused person.
See Babatunde v State (2014) 2 NWLR (Pt. 1391) P.341.
The Court of Appeal in affirming the decision of the learned trial judge which had relied in the main on the Exhibit B, the purported confessional statement of the appellant in convicting him, held thus: –
“In the instant case, the evidence against the appellant as contained in Exhibit B is adequate in implicating him. A reasonable doubt which will justify an acquittal is a doubt which reasonable man might entertain not fanciful or imaginary doubt.
The evidence explains in details how Exhibit B (the purported confessional statement of the Appellant) was obtained by the police the relevant aspect of his evidence as DwB is as follows “My name are (sic) Sijaro Muhammed Dandos … I was arrested on the 17th July, 2002 at babban alyi kurna in Kano. I was arrested as I stopped to buy oranges. I was arrested by a policeman … I was not armed… I found myself in a cell at Dalla police station … I was shot on my leg by Muntari Alhassan, Aminu and five others will surround me and say I should accept what Aminu said.
I did as I was asked. I was not in full sense because I was shot. I signed the Hausa version as directed by Aminu. I do not know what the contents of the statement are …. I can read and write Hausa. I was not asked to write my statement in Hausa. I was not allowed to read the statement but Aminu said if I did not sign, I will be shot, he said I was already shot twice some policemen brought out clubs and hit me on my legs. They read my statement and they asked me to sign, I signed, the policemen was in Court and testified as O.C. robbery (PWC) he asked whether I was beaten and I said I was only shot, he asked whether I gave the statement voluntarily, I told him that I did not make any statement, he asked how come the statement and I said it was Alhaji Aminu who recorded the statement. He directed them to stop beating me, I signed the statement because I did not want a repeat of what I experienced”.
“Clearly what transpired at the trial within trial was ignored by the trial Court as there was need for corroborative evidence outside Exhibit B. The trial Court had held thus: – “in fact in some of the statement i.e., of the 2nd accused statement he
volunteered in the statement a brief history of how he started the life of a crime as a pick pocket before graduating into robbery, the Supreme Court in a number of cases have ruled that where a confessional statement is positive, unequivocal it amounts to admission and that will be adequate to ground a conviction …… it is also my candid opinion that based on the confessional statements of the accused persons as contained in Exhibit “A”, “B”, and “C”, the Court is left in no doubt that the accused persons committed the robberies of the 29th January, 2002 and the one in April of the same year, I have therefore found the Accused guilty as charged and have accordingly sentenced them to death,”
The decision of the trial Court which was anchored on Exhibit B, the confessional statement was affirmed by the Court below in circumstances which left some questions unanswered. This is because there arose the issue of the statement having been obtained by torture including a gun shot on the leg and threats on the appellant which induced him to sign the Exhibit B as his. Those facts were elicited during the proceedings at the trial within trial.
The situation therefore brings to mind the fact that a confession is irrelevant in a criminal proceedings if the making of the confessional has been caused by inducement, threat, promise or torture having reference to the charge against the accused person proceeding from a person in authority as the case in hand thereby raising the issue if the admission of the said confessional statement was not improper and having been admitted ought to be expunged. See Inusa Saidu v State (1982) 2 SC 26 at 36.
Again, to be said is that the truth of Exhibit B was not examined by both the trial Court and the lower Court and the evidence elicited during the mini trial was enough to render the said exhibit unreliable and the situation in this case become more dire with the sole reliance on the said doubtful confession to support the conviction of the appellant. The point is all the more crucial as there is corroborative evidence from DW5 and appellant that the appellant had wounds and blood all over him while with the police at the time Exhibit B was obtained from him and this critical piece of evidence was not challenged or controverted by the police at the
trial thus providing a curious scenario as to why the Court of trial believed and relied on it. This runs counter to the principle that evidence not challenged is taken as admitted by the opposing party. See Akinmoju v State (2000) 4 SC (pt. I) 64; Alarape v State (2001) 5 NWLR (pt. 205) 79; Okoebor v Police Council (2003) 12 NELR (pt. 834) 444 at 472; Dawa v State (1980) 8-11 SC 147.
It needs be reiterated that the law still remains as it is to the effect that in ascertaining the truthfulness or otherwise of a confessional statement, the Court is enjoined to seek any other evidence of circumstances which make it possible if the confession is true and in this instance that principle was not applied by either of the two Courts below and so leaves me without option than to hold Exhibit B, an unreliable piece of evidence that cannot on its own sustain a conviction. See Shurumo v State (2010) 5 NWLR (pt.1218) 65; Oseni v State (2012) 5 NWLR (pt.415) 513 at 537; Balogun v A.G. Federation (1994) 5 NWLR (pt. 345)442.
The respondent’s persuasive arguments are for this Court to stay its hand and not interfere with the concurrent findings of the two Courts below
in line with the policy stance of this Court, which stands solid. However, the circumstances prevailing in this case present the exception to that general rule which propels this Court to upset those findings which special circumstances are that the findings are perverse and have led to a miscarriage of justice. See Mohammed Ibrahim v State (2015) All FWLR (pt. 779) 1149 at 1175; Boniface Adonike v State (2015) All FWLR (pt. 772) 1631 at 1678 – 1679; Okunade Kolawole v State (2015) 2-3 SC P. 1 at 36; Bukar Madu Aji v Chad Basin Development Authority & anor (2015) 3 – 4 SC (pt. III) 1 at 16 – 17; Abegunde v Ondo State house of Assembly & 11 Ors (2015) 4 – 5 SC (pt. l) 1 at 21 – 22 & 25 – 26; Ogbu v State (1992) 8 NWLR (pt.259) 255; Adeyeye v State (2013) All FWLR (pt.704) 108; Akpabio v State (1994) 7 NWLR (pt. 359) 635; Ejikene v Okonkwo (1994) 8 NWLR (pt. 632)266.
In the insistence of sustaining the concurrent findings of the two Courts below, the question that belies its sustenance are the fact that the findings stemmed from perversity and occasioned a miscarriage of justice. In this case, the basic principle of substantive law and procedure
were not followed in those findings. Of note is that the ingredients of the offence must co-exist and proved by the prosecution beyond reasonable doubt in order to secure a conviction. In the case at hand, the prosecution failed woefully to dislodge the doubt the defence implanted both at the trial within trial as to the involuntariness of the Exhibit B, the confessional statement and during the defence when the defence witnesses testified avowing that the extra-judicial confessional statement was obtained involuntarily through blood shed when appellant was shot in the leg and through oppression, inducement and threats. Those assertions were not debunked by any cross-examination. In fact, they were left unchallenged.
I shall for effect show some excerpts of what transpired at the trial Court. I agree with learned counsel for the appellant that putting the involuntariness of the confessional statement in perspective, all the accused persons had access to information about how all the confessional statements were taken and most importantly aware of the death of Mannir who was also a robbery suspect and a co-accused, but the psychological impact the information of
the death of the co-accused had on them particularly the appellant who was the last person to be arrested and or whose statement was taken last, who saw the extent of threat and torture wounds meted on the other accused and himself and which ultimately led to the death of one of the accused persons was taken into cognisance. The statement made by PWA is thus: –
“the 1st accused statement was the first to be taken then the 3rd and then 2nd accused. Mannir’s statement was made on the same day the statement of the 3rd accused was recorded.” The above statement was made at the trial within trial by both the prosecution witnesses and the defences witnesses that support the fact of the psychological and physical threat and that it had a psychological effect or some impact, no matter how remotely put on the statement.
Pages 26-27 of the records under cross-examination, the PWA stated there was one Mannir who is not facing trial. Mannir is dead…, he died in the hospital. We took him to the hospital… at the time he died he was under arrest… Mannir made a statement before he died. It was verbal statement… the 1st accused statement was the first to
be taken and then 3rd and then the 2nd accused. Mannir’s statement was made on the same day the statement of the 3rd accused was recorded, it was an investigation office… yes when I was taking the statement of the accused.
Pages 28 of the records of appeal cross examination of the PwB “Series of arrests were made including that of the accused person. I know that some of the arrested people died, they died in the course of the investigation one Mannir was among those that died… it was when Mannir Hamisu who is now dead was arrested he revealed that he was together with the accused persons during the robbery … yes the accused were aware of the death of some suspect, I cannot say whether they saw the corpse or not…”
Corroborating PWA and PWB above, the DWA/appellant in evidence had the following to say at pages 34 of the records of appeal: “I met some people arrested already in connection with this case… yes, I can remember one Mannir also in connection with this case. I met him arrested at the police station. He is dead now. I know what led to his death. I met Mannir already arrested at Dala police station… he was shot on the right
knee in my presence. He was being interrogated before he was shot… I was hanged. I was beaten and eventually shot … They threatened to shoot me as they did to Mannir and if I didn’t admit conveying Mannir with my taxi.. I do not want what happened to Mannir to happen to me.”
Pages 36-38 of the records DWB had this to say “I was shot on my leg and I became unconscious…. Mannir was shot… he was not shot in my presence. I came to know when l was in the ceil and I was shown a photograph. I was also told by the 3rd accused person… I lost my sense because I was shot…. he said I was already shot twice some policemen brought out clubs and hit me on my legs…. he directed them to stop beaten me. I signed the statement because I did not want a repeat of what I experience (cross examination) O.C.C.I.D said they should stop slapping me, it was after that, that I signed the statement.”
Pages 38 of the record, DwC had this to say “a corpse was shown to me and I was asked if I know who it was … I was also shown the 3rd accused and asked me whether I know the 3rd accused and the corpse, a paper was brought and I was forced to
thumbprint same .. I was taken before one huge man.”
It can be seen clearly that the statement of the accused persons where obtained by force through threat, under duress by inflicting bodily harm on them which resulted in death of one Mannir.
The alleged confessional statement cannot stand the test of admissibility for being unreliable under this circumstance. The accused signed the statement given to them so that the torture and beating would stop; human instinct would always find a way to preserve its existence in the glaring face of death and acceptance and signing a statement made by another would mean preservation of life at least they will not die like their co-accused who died and was buried and nothing came out of it.
Clearly, what is evident is that the exceptional circumstances that would make the Supreme Court disregard its policy of not intervening in concurrent findings have made themselves available here, leaving the Court no option than to resolve the doubts that are present in favour of the appellant in line with the decision in Yav v State (2005) 2 NWLR (pt. 917) 1 at 25; Shekete v The Nigerian Airforce (2000) 15 NWLR (pt. 692) 868 at 880-881.
In conclusion and from the foregoing, there is merit in this appeal and I allow it. I set aside the judgment of the Court of Appeal which affirmed the decision, conviction and sentence of the trial Court.
I hereby order the acquittal and discharge of the appellant.