Ibrahim Kamila V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This appeal is against the judgment of the Court of Appeal, Lagos division (“The lower Court” for short) delivered on the 16th day of May, 2014 which affirmed the judgment of the Lagos State High Court [Trial Court) delivered on 13th December, 2007.

The appellant herein, who was the 2nd accused person at the trial Court, was charged along with three other co-accused persons before the trial Court on four counts charge of conspiracy to commit armed robbery, murder and receiving stolen goods, contrary to Sections 403A, 402(2) (A),319(1) and 427 of the Criminal Procedure Code, Cap 32,Vo1.2 Laws of Lagos State of 1999 respectively. In proof of its case, the prosecution (now respondent) called three witnesses and tendered eight (8) exhibits i.e. Exhibits A to H, while the 2nd accused/appellant did not call any witness but testified on his behalf. During the trial, the prosecution sought to tender a confessional statement which it alleged was voluntarily made by the accused/appellant and the appellant herein, objected to the admissibility of the said confessional statement on the ground

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that it was not made voluntarily by him. In compliance with the law, the trial Court conducted a trial within trial in order to determine the voluntariness of the said confessional statement. At the end of the mini-trial, the Court held that the statement was made voluntarily and admitted it in evidence and marked it as Exhibit D. The trial thereafter proceeded in earnest and in the end, the trial Court found or held that the prosecution/respondent had proved its case beyond reasonable doubt that the appellant and the three other co-accused persons committed all the offences as charged and convicted them accordingly.

Piqued by the judgment of the trial Court, the appellant appealed to the Court of Appeal [the lower or Court below), albeit without success. Miffed by the judgment of the Court below affirming the conviction and sentences passed on him by the trial Court, the appellant further appealed to this Court.

The case of the prosecution is that on the 9th of December, 2000, the deceased late Chief Layi Balogun arrived at Muritala Muhammad International Airport from Abuja at around 3.30pm after which he, in company of his security detail, one Sgt

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Olajide Longe, Ieft for his (deceased’s) office situate at No.1, Balogun Street, Oregun, Ikeja, Lagos. The security detail was in mufti. Then at about 9.00pm both of them left the office for the deceased’s residence at No.26, Oluwole Street, Akoka along with the deceased’s driver.

On approaching his residence, the gate was opened when the deceased and his security detail were accosted by five unknown armed men who fired gun shots towards the chest of the security detail. Thereafter, the deceased, the security detail and other members of the deceased’s family were taken hostage by the five gun-men. After about ten to fifteen minutes later, both the deceased i.e. Chief Balogun and the security detail were shot after which the gun-men carted away with the deceased’s cell phone, omega wrist watch and a sum of N20,000.00 and fled the scene of the crime. The Chief and the security detail were later rushed to hospital where the former passed on.

On filing this appeal at the Supreme Court, the appellant in keeping with the practice and rules of this Court, prepared his brief of argument and served same on the respondent. The Appellant’s brief of argument,

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settled by F. Ajibola Dalley Esq., was filed on his behalf on 18th August, 2017. In the said brief of argument, two issues were identified for the determination of this appeal which are set out hereunder:

1. Whether the eminent justices of the Court of Appeal ought to have upheld the learned trial Judges decision to admit the appellant’s purported extra judicial statement being “Exhibit D” (Ground No.1).
2. Whether beyond “Exhibit D”, there was adequate, cogent and sufficient evidence to convict the Appellant of the charge of conspiracy to commit armed robbery and murder (Grounds 2, 3, 4 and 5).

Upon being served with the appellant’s brief of argument, the learned counsel for the respondent also filed a brief on behalf of her client on 17th October, 2017. The said Respondent’s brief of argument was settled by Adedoyin Rhodes-Vivour and therein, two issues were identified as germane for the determination of this appeal. The dual issues are reproduced below:

A. Whether the eminent justices of the Court of Appeal ought to have upheld the learned Trial Judge’s decision to admit to evidence (sic) the Appellant (sic) purported extra-judicial

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statement being “Exhibit D”.

B. Whether beyond “Exhibit D” there was adequate, cogent and sufficient evidence to convict the Appellant of the charges of conspiracy to commit armed robbery, armed robbery and murder,

The above issues raised by the learned counsel for the respondent are word to word the same with those two raised by the appellant as reproduced above. The respondent’s can therefore be said to have adopted the issues for determination proposed by the appellant’s learned counsel.

SUBMISSIONS BY APPELLANT’S COUNSEL ON THE ISSUES FOR DETERMINATION

ISSUE NO.1

While making submission on this first issue for determination, the learned counsel for the appellant contended that the learned trial judge did not follow the guide lines set by this apex Court in admitting the confessional statement of the Appellant i.e. Exhibit D. He referred to Sections 27 and 28 of the Evidence Act which insist that the confessional statement must be ascertained by the trial Court to have been made voluntarily. See the cases of R v Thompson [1893)2QB 12; Ibrahim v R (1914) AC 599 at 660. Learned counsel for the appellant argued rightly too, that when the

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voluntariness of a confessional statement is challenged, the trial Court is duty bound to conduct a trial within trial in order to ascertain that such statement was voluntarily made by the accused person. He cited the case of Rasheed Lasisi vs. The State (2013) LPELR 20183(SC) Re-Osakwe (1994)2 NWLR (pt.326) 273 at 290; Ebot vs. State (1993) 4 NWLR (pt. 240) 644 and Nwosu v State (1986) 4 NWLR (pt.186) 428.

Learned appellant’s counsel further argued that it is the duty of the prosecution to prove that confessional statement was voluntarily made by the accused person. See Gbadamosi & Anor Vs The State (1992) LPELR – 1313 (SC). He opined that the prosecution had failed to establish the voluntariness of Exhibit D in this instant case because it was not established to have been made voluntarily in the process of the trial within trial because of the failure of the prosecution to call the verifying officer to testify at the trial within trial, He again submitted that the trial judge did not consider and evaluate the evidence adduce at the trial within trial in his ruling on same. He argued that the learned justices of the lower Court ought to have interfered

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with the finding of the trial judge on the trial within trial and reverse same but they unfortunately failed so to do. He on that submission urged this Court to do so and reject the said exhibit as it was inadmissible and to expunge same from the record, adding that where legally inadmissible evidence was wrongfully admitted in evidence, the appellate Court can rightly intervene by expunging it from the record. He cited the case of Fatai Olayinka v State (2007) LPELR 2580 (SC) in urging this Court to resolve this first issue in the appellant’s favour.

ISSUE NO. 2

This issue deals with whether there was any sufficient evidence to convict appellant aside Exhibit “D”.

The learned counsel for the appellant argued that the evidence presented by the prosecution is manifestly weak and unreliable as it fails to link the appellant to the commission of the alleged crime and that it is improbable for the appellant to have committed the alleged offences for the following reasons:

(i) The appellant was not arrested at the scene of the crime.

(ii) There was no independent cogent eye witnesses evidence to show that the appellant fled the scene of the

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crime.

(iii) The weapon used in the alleged crime was never recover from the appellant.

(iv) The items stolen were never recovered from the appellant.

(v) The appellant was not properly identified.

(vi)The inconsistency in the oral testimony of PW3,

He pointed out that the evidence of PW1 and PW2 at the trial that they saw the appellant participated in the robbery and murder of the deceased is contrary to their extra judicial statements as they made no mention of the appellant nor gave any description of him in the said statements. He cited the case of CHUKWUKA OGUDO V THE STATE (2011) 11 12 (pt. 1) SCM 209 at 222-223. He therefore submitted that failure of the Court below to take cognisance of the inherent inconsistencies in both PW1 & PW2 statements to the police and their oral testimonies occasioned a miscarriage of justice. He argued further that the Court below ought not have relied on PW1 & PW2’s purported identification of the appellant as same is vague and imprecise as no credible evidence in form of identification parade was conducted. He contended that identification of the appellant through the television is unknown to

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law and therefore untenable in proof of the identity of an accused person. He also argued that the Court below erred in law by relying on the oral testimony of PW3 as his testimony can be described as legally inadmissible hearsay evidence. He referred Section 76 and 77 of the Evidence Act 2004 and submitted that the Court below can only ascribe probative weight to the oral evidence of a witness who said or heard a fact in issue. He submitted finally, that the Court below, in failing to articulate it reasons for upholding the trial Court’s reliance on the evidence of PW1 and PW2, had occasioned miscarriage of justice. He then urged this Court to resolve this issue in favour of the appellant and allow this appeal.

The respondent as I stated above, has adopted the two issues formulated by the appellant.

ISSUE NO. 1

Responding on the appellant’s submission on this issue, the learned counsel for the respondent referred to the contention of the failure of prosecution to call the verifying police officer before whom the statement was taken to testify. He argued that except as provided for by statute, no particular number of witnesses shall in any

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case be required for the proof of a fact and that the prosecution has no duty to call every available piece of evidence. He referred to the case of EDAMINE V THE STATE (1996) LPELR – 1002 (SC). He also submitted that failure to take confessional statement before a superior police officer would not render the confessional statement inadmissible. EDAMINE V STATE [supra). He submitted that Exhibit (D) speak for itself as a document voluntarily obtained from the appellant and the statement of the verifying officer in Exhibit “D” automatically raises a presumption in favour of the prosecution. He pointed out that the PW3 gave an oral testimony on how he obtained the said confessional statement from the appellant and he ensured that the statement was confirmed by a superior police officer. He argued that even if Exhibit “D” was wrongly admitted, the Court below considered other evidence outside the confessional statement before arriving at its conclusion in its judgment. He referred to the judgment of the Court below at pages 476-481 of the record. He then urged the Court to resolve this issue in favour of the respondent.

ISSUE NO. 2

This issue queries

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whether there are other evidence sufficient to ground conviction of the appellant apart from Exhibit “D”.

The learned counsel referred to the judgment of the Court below at pages 478-479 of the record and submitted that both PW1 and PW2 are credible witnesses who saw the appellant in the act and that the identity of the appellant was at all time known by PW1 and PW2. On the contention of the appellant that the evidence of PW3 was hearsay and that failure to call the cell mate of the appellant who informed him that the appellant boasted while in the cell that he was among those that robbed the deceased. The learned counsel to the respondent also argued that Sections 76 and 77 (a) and (b) referred to by the appellant on this point are not applicable in the sense that the PW3 was merely giving evidence in respect of the investigation carried out by him to unravel the people behind the crime. In the light of the foregoing, he urged the Court to resolve this issue in favour of the respondent and to allow the appeal.

RESOLUTION OF ISSUES FOR DETERMINATION

Looking at the two sets of issues for determination proposed by the learned counsel for the parties, I

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feel that approaching this appeal based on the issues raised in the appellant’s brief of argument will comfortably determine this appeal. I will therefore be guided by them and in doing so, I shall consider them together since as I said supra, both issues they had been adopted by the learned counsel for the respondent in her brief of argument.

Issues Nos 1 & 2

The first issue revolves on Exhibit D, the confessional statement made by the appellant. Perhaps it is apt to commence the consideration of this issue by stating that there are three modes of proof of criminal cases. These methods or modes of proof are:

(a) By testimonies of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s).

(b) Through confessional statement voluntarily made by the accused.

(c) Through circumstantial evidence which clearly point to the sole fact that the accused and no other person committed the offence charged.

See Emeka v The State (2001) 6 SCNJ 267.

For the time being, I will concern myself with Exhibit D, which is the confessional statement of the appellant even though he retracted it

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during his defence. In the course of the proceedings in this case at the trial Court, the prosecution sought to tender in evidence the confessional statement of the appellant. The latter objected to the admissibility of that statement on the ground of torture and stated that it was not voluntarily made by him. The law is trite and well settled too, that where there is dispute as to whether or not an accused person’s statement sought to be tendered was made voluntarily by him, it is the duty of the trial Court to try the voluntariness of such statement by conducting a “trial within trial” otherwise known as ‘mini-trial’. See Olayinka v State (2007) 9 NWLR [pt.1040) 5; Obasi v State [1965) NWLR 119. In this instant case, the learned trial judge had duly complied with this rule as he had conducted a ‘trial within trial’ before he finally admitted the confessional statement of the accused/appellant in evidence as Exhibit H. Having ascertained the voluntariness of the extra-judicial statement of the accused/appellant the trial Court, in my view, is duty bound to rely and act on such confessional statement (Exhibit D). The call by the learned counsel for the appellant

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that the statement should be expunged from the record by this Court is therefore of no moment uncalled for and is rather absurd.

A confessional statement can simply be defined as an admission by a person charged (or an accused person accused) of committing a crime at anywhere or anytime stating or suggesting the inference that he committed such crime. See Section 28 of the Evidence Act 2011 as amended. It is well settled law that free and voluntary confession of guilt alone by an accused person, provided it is direct and positive and was duly made voluntarily, is sufficient to ground a conviction, since a confession always remains the best proof of what he had done. See Alabi v State (1993) 7 NWLR [pt. 307) 5; Fabiyi v State (2015) 6-7 SC (pt.1) 83. Osetola & Anor vs. State (2012)6 SCNJ 321; Nwachukwu vs. The State (2002)7 SCNJ 230; Dogo v The State (2013)2-3 SC (pt.II) 75 at 92-94.

I am mindful of the fact and it is even settled law, that before a Court convicts an accused person on his confessional statement alone, it must ascertain whether such confessional statement was voluntarily made and that it was also direct, positive, pungent and

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consistent with other facts as proved, See Jimoh vs. State (2014) 10 NWLR (pt. 1414) 105. Looking closely and dispassionately at the confessional statement Exhibit D vis a vis the record of proceeding, I am not doubtful of the fact that the trial Court had duly examined and evaluated Exhibit D and also the lower Court had also adequately considered same before endorsing the trial Court’s finding reliance on it when in its judgment, the lower Court stated thus, inter alia:

“After reviewing the evidence placed before the Court in the trial within trial, the learned trial judge held that appending of the signatures by the appellants is Proof that those statements were voluntarily made. This in my view is in line with the decision of the Supreme Court in Uche Obidiozo & Ors vs. The State (supra). The learned trial judge had followed logically the guide set by the apex Court for admission of such statements. It was right on the part of the trial Court to have admitted the confessional statement of the 1st and 2nd appellants and marked them as Exhibits H and D respectively. I do not have any reason to disturb the decision of the

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trial Court on this issue.

It is apposite to say, that this Court has over the years evolved some requirements which a confessional statement must meet in order to be relied on by trial Courts. Some of these requirements include the followings:

(i) It must contain the words of caution.

(ii) The cautionary words must have been administered in the language understood by the accused person.

(ii) The statement was duly signed or thumb printed by the accused person,

(iv) That the statement was recorded in the language understood by the accused person

(v) That the statement was after being recorded, read over and interpreted to the maker in the language it was recorded.

From the look of the statement of the appellant Exhibit D, it is crystal clear that all the above requirements were met or complied with, hence I also hold the view, that the trial Court was right to accept and act on the extra-judicial statement of the appellant [Exhibit D).

It is one of the complaints of the appellant that the trial Court had convicted him on an uncorroborated and inadmissible evidence. According to him, the trial Court solely relied

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on the confessional statement [Exhibit D] to convict him of the offences charged. In the first place, it needs be emphasised here, that a confession of an accused to the commission of an offence plays a vital role in the determination of his guilt. Therefore, a trial Court is empowered to convict him even on the confessional statement alone, once that trial Court is convinced that the confession was voluntary as in this instant case. I said so because, by his confession, the accused, now appellant had confirmed the commission of criminal responsibility in terms of mens rea and actus rea. See Okeke vs. State [2003)15 NWLR (pt. 842) 25. It also needs to be emphasised and it is also trite law too, that mere retraction of a voluntary confessional statement by an accused person, as in this instant case, does not render such statement inadmissible or worthless or untrue in considering his guilt. See Idowu v State (2000) 7 SC (pt.II) 50; Silas v State (1996)1. NWLR 59.

Now, coming to the issue of alleged want of corroborative evidence insinuated by the learned counsel for the appellant, I do not think that is true. As it could be fathomed, PW1 and PW2 were eye

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witnesses who had actually witnessed first-hand, the entire criminal act, perpetrated by the appellant and his partners in crime. Both of them gave uncontradicted and uncontroverted testimonies which had duly corroborated Exhibit D, the appellants confessional statement. I must however state here that a confessional statement which is made voluntarily and is direct, cogent, credible and positive, is enough to ground conviction even without corroboration of any sort. See Sule Iyanda Salawu vs. The State (1971) NMLR 249; Grace Akinfe vs. The State (1988)7 SCNJ (pt.II) 226; Yahaya vs. The State (1986)12 SC 282 at 290. In any case, in this present case, the criminal event took place in the presence of PW1 and PW2 who, as eye witnesses, had watched, observed and witnessed the entire event as it happened first hand. These two eye witnesses had witnessed the armed robbery operation and heard the sound of the gunshots fired at the deceased and the security detail and had also seen the body of the victim in his room upstairs, after the gun shots. Similarly, some exhibits in the nature of items/goods that were robbed of the deceased, were all tendered in

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evidence by the prosecution at the trial in proof, the offences the appellant and his co-conspirators were charged with, tried and convicted by the trial Court. The witnesses called by the prosecution, as rightly held by the trial Court, had given credible and reliable evidence which fixed the appellant to the scene and time of the commission of the crime and linked him with the offences when the appellant and his co-conspirators dastardly murdered the deceased after robbing him of the goods, some of which were duly exhibited at the trial. These pieces of evidence were neither contradicted nor challenged in any material respect at the trial. The appellant was therefore pinned down in the commission of the offences charged.

Learned counsel for the appellant frowned at the prosecution’s failure to call a witness to testify in the case at the trial within trial more especially on the admission of the commission of the offences when appellant was said to have boasted in a cell of committing the offences. With due respect to the learned appellant’s counsel, it is not necessary for the prosecution, in order to discharge the onus of proof imposed upon it by law,

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to call a host of witnesses or to adduce or tender every available piece of evidence. It is sufficient if the evidence called is enough to discharge the burden placed on it by law. The position of the law is well settled, that the prosecution is not bound to call every person linked to the commission of the crime by physical presence or otherwise, to give evidence on what he perceived. Once persons who can testify to the actual commission of the crime and on the other ingredients have done so, that will suffice for the satisfaction of the principle of proof beyond reasonable doubt as stipulated by Section 138 [1) of the Evidence Act 2011, as amended , Cap 112 Laws of the Federation of Nigeria 2004. See Sadau v State (1968) 124; The State vs Ogbubuoyo & Anor (2001) 12 NWLR (pt.679)576; Obue v State (1976)2 SC 141; Shurumo v The State (2010)44 NSCQR 159. As a matter of fact, even a single witness who gives a cogent eye witness account of the incident can be sufficient. See Odili vs State (1977)4 SC 1.

Another complaint by the appellant relates to the identification of the appellant. According to the learned appellant’s counsel, the evidence of PW1 and

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PW2 was faulty and nebulous and that the situation required the conduct of identification parade. He referred to the case of Agboola v State (2013)5 SCNJ 683 at 701/702. He opined that the trial Court was wrong to have solely relied on the confessional statement Exhibit D which was even inadmissible. I must reiterate here, that identification evidence is not sine qua non for conviction. It is sufficient if credible evidence is adduced to show that the person charged with an offence is the same as the person who was seen committing the offence. When a trial court is confronted with identification evidence, all it is required to do is to be satisfied that the evidence of identification had established the guilt of the accused person beyond reasonable doubt. See Ukpabi v State (2004)6-7 SC 27. Identification parade is not necessary in all criminal cases. Identification is simply a means of establishing whether a person charged with an offence is actually the same person who committed the offence. Therefore, once credible evidence abounds confirming that the person charged was the actual one who committed the offence, as in this instant case, then there will be no

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need to conduct any identification parade at all. See Orimoloye vs The State (1984) 10 SC (Reprint) 128; Ebri v The State (2004) 5 SC (pt.II)29. Here, the two eye witnesses namely PW1 and PW2 had contact or interaction with the appellant and other co-accused persons for quite a reasonable time during the process of commission of the offences. Also, the appellant had identified himself when in his confessional statement Exhibit D; he had fixed himself at the scene and time of the crime on the date of the incidence. The requirement of formal identification parade is therefore superfluous as rightly held by the two lower Courts.

Again on the quality of the testimony of PW3 who is the investigation police officer which the appellant’s learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay evidence because as an IPO he narrates to the Court the outcome of his investigation or enquiries or what he recovered or discovered in the course of his duty. He must have discovered or recovered some pieces of evidence vital to

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the commission of the crime which trial Courts normally consider in arriving at a just decision one way or the other. The lower Court was therefore right in refusing to discountenance such evidence adduced or given by PW3.

The age-long principle of law, is that in criminal cases an accused person is constitutionally presumed innocent until the contrary is proved by the prosecution. The onus of proof in criminal cases does not shift as the burden throughout lies on the prosecution in criminal trial which must prove the guilt of the accused. See Bello v State (2007) 10 NWLR (pt.1043) 364; Igabele v State (2006)6 NWLR (pt.975)100.

Any doubt in the prosecution’s case must be resolved in favour of the accused person. In this instant case, as found by the two lower Courts, the prosecution had led credible, cogent and reliable evidence in proof of all the offences the appellant and his co-conspirators were accused of committing. The appellant at the close of the prosecution’s case presented his defence when he testified as DW2. The learned trial judge had also duly and painstakingly considered and evaluated the entire evidence adduced in the case by both parties

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before concluding that the prosecution had proved its case beyond reasonable doubt and convicted him as charged. It is sequel to that, that I find myself in entire agreement with the Court of Appeal (the lower Court) when it observed as follows:

“This Court has painstakingly read both the extra judicial statement of PW1, PW2, PW3. This Court without any difficulty arrived at the fact that the learned trial judge had performed the duty imposed upon him by law in evaluating the evidence before him and ascribing probative value to them. The learned trial judge meticulously discharged that responsibility. The evidence of eye witnesses to the event who saw it all when it happened. It was direct and positive and this Court is unable to see how the learned trial judge misapplied those facts to upset them.”

The two issues are hereby resolved in favour of the respondent against the appellant.

To my observation, there are in this instant appeal, concurrent findings of two lower Courts both arriving at the conclusion that the prosecution had proved its case against the present appellant beyond reasonable doubt. As a matter of policy, this Court is always

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hesitant in interfering with or disturbing the concurrent findings of two lower Courts except on special circumstances, for instance, that the findings are perverse or there is misconception or misapplication of law. None of these vices are apparent in this instant case. I therefore see no reason to disturb or interfere with the concurrent findings of the two lower Courts.

On the whole, it is my judgment that this appeal is unmeritorious. It fails and is accordingly dismissed. The judgment of the Court of Appeal, Lagos Division, which had earlier affirmed the decision of the trial Court, is also hereby further affirmed by me. Appeal dismissed.

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SC.489/2016