Mohammed Usman V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
AMINA ADAMU AUGIE, J.S.C.
At about 8.30pm on the 18th of March 2008, a band of armed robbers, who were masked, and armed with guns, sticks and cutlasses, invaded the home of one Korau Chiroma at Tal in Billiri Local Government Area, Gombe State, and robbed him of some sum of money and handsets.
The victim’s neighbours and relations “traced the footsteps” of the robbers to the house of one Dauda Mohammed and the Appellant. They were both arrested around 3am that night and taken to the Billiri Police Station. They were later transferred to “State CID Office” where they made confessional Statements to the Police. Thereafter, they were arraigned before the High Court of Gombe State on a two-Count Charge of conspiracy to commit armed robbery and armed robbery.
They both pleaded not guilty to the Charge, and to prove its case, the Prosecution called six Witnesses, including the victim of the crime, Korau Chiroma, who testified as PW1, and D.S.P. Ahmed Abdullahi, the superior Police Officer that endorsed the confessional Statements made by the Accused Persons to the Police, and he testified as PW6.
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PW6 explained that Cpl. Garba Haruna, who took down the said Statements in Hausa language was deceased, and that he directed one Sgt. Gregory Ahalite, who was not called as a Witness, to translate the Statements into English Language. He said he was conversant with the handwriting and signature of both officers, who worked with him, and he identified the Statements in Hausa and their English translations. When the Prosecution applied to tender the Statements through him, Defence Counsel objected on the ground that he is not the maker, and “the document was prepared and made in anticipation of this case”.
But the trial Court overruled the Objection and admitted the said; “Hausa and English translated versions of the Confessional Statements of the 1st and 2nd Accused Persons – – as Exhibits D1 – D3 respectively.”
The Appellant was the second Accused, and in his Statements –
Exhibit D1 [Hausa Language] and Exhibit D3 [the English translation], he gave a detailed account of how the robbery operation was planned and executed, and named others, who also took part in the robbery. But in his testimony as DW2, he denied all knowledge of the
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robbery, and alleged that he was beaten, tortured and threatened by the Police to make the said Confessional Statements – Exhibits D1 and D3.
However, the learned trial Judge, Awak, J., held in his Judgment of 20/7/2012 that the retraction was an afterthought, and concluded:
As rightly decided by the Supreme Court in Oseni v State (2012) 4 SCM 150 at 153, it has also been held in plethora cases that – – a free and voluntary confession of guilt by a Prisoner, if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence. So long as the Court is satisfied as to the truth of the confession. Having regards to the facts and the circumstances of this case and the evidence adduced by the Prosecution, having satisfied that the Prosecution on the bases of the Confessional Statements of the Accused Persons have proved the allegation of armed robbery against the Accused Persons beyond reasonable doubt as required by law, I so hold. I accordingly find the two Accused Persons guilty as charged – – – The law creating the offence, Robbery and Firearms Special Provision Act – –
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did not give this Court a discretion in sentencing – – The Accused Persons having been found guilty under Section 1(2)(a) of the Act, I hereby sentence to death by hanging on the neck – – –
The Appellant appealed, and in its Judgment delivered on 27/5/2015, Court of Appeal affirmed the trial Court’s finding that there was ample evidence outside the said Exhibits D1 & D3 to warrant his conviction. It however observed as follows on the issue of tracing his footprints:
In respect of the submissions of learned counsel for the Appellants [on] the evidence of the footprints traced from PW1’s house across streams, rivers and tarred roads, leading to the doorstep of the Appellants’ room, I am in total agreement with learned counsel that this was inconclusive as evidence of the Appellants’ involvement in the crime. It is rather incredulous that without the aid and/or use of any forensics, trained sniffer dogs (trained to follow scents of offenders), and other more advanced techniques used in developed Countries in the detection of crimes, the Police and other members of the Community in Tal Village were able to identify the exact footprints of the
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Appellants from the many footprints observed from PW1’s house to the room where the Appellants were sleeping. This is in addition to the fact that no further explanation was offered as to how the footprints were detected on tarred roads and through streams/rivers and how they were confirmed to be exclusively those of the Appellants, to the exclusion of all others.
Nonetheless, it affirmed the conviction and sentence of the Appellant. Dissatisfied, the Appellant filed a Notice of Appeal in this Court, which contained eight Grounds of Appeal. However, he amended same, and the Amended Notice of Appeal contains only three Grounds of Appeal. He formulated two Issues for Determination in his Brief of Argument:
1) Whether or not the offence of armed robbery was proved against the Appellant so as to justify the affirmation of the conviction and death sentence of the Appellant by the lower Court.
2) Whether or not the lower Court was right in affirming the Judgment of the trial Court based on the confessional statement of the Appellant when there was no other credible evidence before the Court in support of the said confessional statement.
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The Respondent formulated only one Issue for Determination; that is:
Whether or not the Court below was right to have affirmed the conviction and sentence of the Appellant by the trial Court for the offence of armed robbery having regard to the available evidence at the trial Court.
It is clear that the Appellant was convicted purely on the basis of his Confessional Statement, and the Issue for Determination, in my view, is whether in the circumstances of this case, the Court of Appeal was right to affirm the trial Court’s decision on that basis, without more.
The Appellant’s position is that the Court of Appeal was wrong. Citing Bozin V. State (1985) 2 NWLR (Pt. 8) 469, Dibie V. State (2005) All FWLR (Pt. 259) 1995, Bello v. State (2007) ALL FWLR (Pt. 396) 702, he argued that the Prosecution failed to establish the ingredients of the offence; that PW1’s evidence on the “footsteps” is hearsay since he was informed by those who traced the footsteps, and his evidence being hearsay evidence, is inadmissible, citing Ijioffor V. State (2001) 4 SC (Pt. 11)1; therefore, robbery has not been established against him.
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He also argued that the evidence of PW3, who was one of those that followed the footsteps, is laced with irreconcilable contradictions and is, therefore, most unreliable. He set out PW3’s evidence then asked which one the Court would believe on the issue of footprints:
– That “the footprints went through the river and got to the house of the first Accused” Or
– That “some of the footprints cross tarred road” Or
– That “I did not trace the footprint of the second Accused from the one we traced Or
– That “the footprints did not cross the tarred road when he follow(sic)” Or
– That “the footprint went on the tarred road but did not cross it” Or
– That “from Korau house where the offence was committed the footprint followed a stream” Or
– “We started tracing the footprints of the Accused Persons from Korau house where the alleged offence was committed” Or
– That “it was not from Korau house that I ascertain the footprint to the Dauda’s footprint” Or
– That “the footprint of the Accused Person was not traced at the scene of crime but outside the scene”
He contends that the said contradictions on the issue of “footsteps”, which is
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material, since it led to his arrest, conviction and sentence, casts doubt in the Prosecution’s case, and must be resolved against it.
He also argued that PW3 exonerated him when he stated under cross-examination that “apart from the first Accused, I did not trace the footprints of the other Co-Accused Person [the Appellant]; and that –
While PW3 maintained that they followed the footprints with the Police at Billiri, the Police through PW5 never talked about the footprints. While the position of PW1 and PW3 is that the footprints where traced leading to the house of the 1st Accused where they were arrested, PW5’s position is that the Police at Billiri went to the scene of the crime at Tal with the 2nd Accused Person and thereafter they conducted search in the house of the Accused where the items were recovered. Which one do we believe
He contends that there is doubt in the Prosecution’s evidence on the issue of footprints, arrest and recovery of Exhibits, and submitted that it is settled that where the Prosecution’s case is fraught with palpable contradictions on a material issue, the doubt in such contradiction is to be resolved in
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favour of the Accused, citing Dibie V. State (supra); Onubogu V. State (1974) 1 All NLR (Pt. 2) 5. Furthermore, that despite the fact that there are contradictions as to the amount recovered from the Accused Persons, the Prosecution did not bother to tender either N7,000 stated by PW1, or N500 stated by PW3, which also casts doubt in its case, citing Nwomukoro V. State (1995) 1 NWLR (Pt. 372) 432.
He further argued that the pair of shoes tendered and admitted in evidence as Exhibit B, was never listed in the proof of evidence; that failure to list it as part of Exhibits to be tendered, is a gross violation of his constitutional right to be informed in details of the allegation against him contrary to Section 36 (6)(a) (b) of the 1999 Constitution; and that he was not afforded opportunity to adequately prepare for his defence to the Exhibit tendered but not listed in the list of Exhibits.
He submitted that in an Application for leave to prefer a Charge, the duty is on the Prosecution to attach or at least list all the Exhibits to be tendered at trial to enable the Accused know the evidence that would be tendered or given against him, citing Yahaya V.
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State (2008) All FWLR (Pt. 439) 476, Uket V. State (2008) All FWLR (Pt. 411) 932, so, Exhibit B was admitted in error and is liable to be discountenanced or expunged from the record, citing Namsoh V. State (1998) 6 SCNJ 55.
He pointed out that in Exhibits D-D3, first Accused and himself mentioned “Jauro Komtoli” or simply “Jauro” as one of the robbers; that PW3 stated that “Jauro Komtoli” followed to trace the footprints; and that PW1 had also stated as follows under cross-examination –
The sum of N7,000.00 was discovered from the 1st Accused which has been shared and my balance is with Jauro and others went away with their shares to Kumo. The name of the Jauro is Komtoli who kept the balance of the 1st Accused’s share of the money. Yes, Jauro Komtoli is the same Jauro who accompanied my brother Jerome to search for the thiefs (sic) who attacked me in my house. The 1st Accused informed the Police in my presence of the balance of the money kept with Jauro Komtoli – – Yes, Jauro Komtoli was arrested on two grounds for giving the 1st Accused accommodation and collecting the keeping shares of the 1′ Accused.
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He argued that if “Jauro Komtoli” was also alleged to be a member of the armed robbers, who invaded PW1’s house, and the same “Jauro Komtoli” was among those, who traced the footprints of the robbers, “then the Prosecution is duty bound to reconcile the ugly scenario”; that the only conclusion this Court can draw is that his prosecution is founded on mere suspicion; and it is settled that “suspicion no matter how strong or how grave can never take the place of legal proof”, citing Etumionu V. AG Delta State (1995) 6 NWLR (Pt. 404) 719 @ 730.
Furthermore, that the Prosecution failed to establish that there was a robbery as its evidence is laced with contradictions and hearsay evidence; that apart from his Statement, there is nothing to link him to the commission of the crime; that nothing was recovered from him; and that PW1 confirmed that he could not recognize him as one of the armed robbers because, according to PW1, the robbers were masked.
The Respondent cited Nwaturuocha V. State (2011) 9 LRCNCC 1, on ingredients of the offence, Amoshima V. State (2009) 4 NCC 280, on the mode of proving the said ingredients of the offence, which are “either through confession of guilt by the Accused
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Person or evidence of direct eye witnesses or circumstantial evidence”, and submitted that the Prosecution had proved its case against the Appellant on the basis of his Confessional Statement, which was direct and positive, and the trial Court was satisfied as to its truth, as well as the Exhibits tendered.
On Exhibit B [shoes], it argued that it was tendered and admitted without objection; that the issue was not raised at the Court below, and the lower Courts’ decisions were not based on Exhibit B; and that even if it was wrongly admitted, the law is that wrongful admission of evidence in itself is not a ground for reversal of any decision as long as the decision would have been the same, if such evidence had not been admitted, citing Owie V. Ighiwi (2005)5 NWLR (Pt. 917) 184 at 220 SC.
It further submitted that there were no material contradictions in the evidence of Prosecution Witnesses; and the law is that before any conflict, contradiction or discrepancy in their evidence can be fatal to the Prosecution’s case, it must be substantial and must have led to miscarriage of justice, citing Bolanle V. State (2005) 1 NCC 342, Agbo V. State (2007) 2
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NCC 158, Ochemaje V. State (2011) 9 LRCNCC 141.
On the Appellant’s contention that he was only arrested because he was a stranger in the village, it argued that this argument is merely speculative and not supported by any evidence before the trial Court.
This is an appeal against a conviction for armed robbery and the purpose of such an Appeal is not to retry the case against an Appellant. An Appellant cannot ask an appellate Court to hear the evidence again to determine whether he should have been found guilty. Essentially, the appeal challenges the reasons for the conclusion of the trial Court.
In this case, the Appellant’s contention is that the Prosecution’s evidence is riddled with doubts on the issue of “tracing of footprints”, arrest and recovery of Exhibits, which must be resolved in his favour. Did any of the issues have any impact on the lower Courts’ decisions
I think not. Take the issue of “tracing of footprints”, for instance. The trial Court made no reference to the said issue before it concluded that based on the contents of his Confessional Statements, which are consistent with some of the evidence of the Prosecution
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Witnesses, the Prosecution proved all the essential ingredients of the offence.
Moreover, the Court of Appeal did agree with the Appellant that “evidence of the footprints traced from PW1’s house across streams, rivers and tarred roads leading to [his] doorstops”, was “inconclusive as evidence of [his] involvement in the crime. It is rather incredulous.”
Since the Court of Appeal agreed with the Appellant on the issue, why is he asking this Court to rehash evidence pertaining to the issue The word “appeal” is simply to make a formal request to somebody in authority “for a decision to be changed” – Oxford Learners Dictionary. In an Appeal, the lower Court’s decision is submitted to a higher Court “for review and possible reversal” – see Black’s Law Dictionary, 9th Ed.
It is settled law that the findings of a trial Court must be affirmed or reversed by the Court below before its decision gets to this Court. What is more, before this Court can make any pronouncement on its correctness, it must be shown that the views it expressed were wrong. It is only on such considerations that this Court can examine whether the decision of the
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Court of Appeal appealed against is right or wrong – see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430; Djukpan V. Orovuyovbe (1967) 1 All NLR 134; Ajuwon V. Adeoti (1990) 2 NWLR (Pt. 131) 271.
In this case, the Court of Appeal agreed with the Appellant on the issue of footprints; with the hue and cry over same in this Appeal, is he asking this Court to change or reverse that finding in his favour
What is there for this Court to change or reverse The Appellant, by proffering arguments on the issue of footprints, which was decided in his favour, is asking this Court to embark on an academic exercise, which the law frowns upon. It is settled that an academic question is an issue that does not require any answer or adjudication by a Court – see Agbakoba V. INEC (2008) 18 NWLR (Pt. 1119) 489 SC, wherein this Court, per Chukwuma-Eneh, JSC, further explained as follows –
An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when its determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue has
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become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt that has lost its seasoning. And like the salt in that state, it has no practical value to anybody and so also, a Suit in that state has none.
See also Adeogun V. Fashogbun (2008) 17 NWLR (Pt. 1115) 149 SC, wherein this Court, per Niki Tobi, JSC, also observed as follows –
Academic and hypothetical issues of questions do not help in the determination of the live issues in a matter. They are merely on a frolic or they are frolic-some; not touching or affecting the very tangible and material aspects in the adjudication process. As a matter of law, they add nothing to the truth searching process in administration of justice. This is because they do not relate to any relief.
So, the issue of “tracing of footprints” is out of bounds in this Appeal.
The Appellant also complained about Exhibit B, a pair of white rubber shoes, admitted through PW4 – Sgt. Sunday Jumba, an Exhibit Keeper. It is his contention that since it was not listed in the Proof of Evidence, he
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was not afforded opportunity to prepare his defence “to the Exhibit [Exhibit B] so tendered but not listed in the list of Exhibits”. At the trial, Defence Counsel objected to the shoes being tendered in evidence on the same ground but in overruling the Objection, the trial Court held:
The basis of admissibility of any documents or exhibits in a proceeding, is its relevance to the proceedings. I also agree with learned counsel to the State that though Exhibits sought to be tendered are not specifically listed among the Exhibits in the Exhibit list attached to the Charge against the Accused Persons, however, the evidence of PW4 before the Court shows that before the registration of the said Exhibits brought to him by the IPOs, the first Accused Person admitted that they were recovered from him. I shall overrule the Objection of the Defence and admit them on the basis of its relevancy to the case of the Prosecution.
Evidently, Exhibit B was linked to the first Accused; not the Appellant, and there is nowhere in their Judgments that the lower Courts linked Exhibit B to him or used same against him. Thus, the issue of whether he was afforded the
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opportunity to prepare his defence to Exhibit B, which had nothing at all to do with him, is irrelevant in this Appeal.
He also argued that the non-tendering in evidence of the sum of N7,000.00 or N500.00, allegedly recovered from them, casts doubt in the Prosecution’s case. The position of the law is that where there is overwhelming evidence from Witnesses, which is not contradicted, and which is believed, that property or money were stolen during an armed robbery operation, the non-tendering of these items in Court, as Exhibits, will not destroy the Prosecution’s case – see Ajumobi v. State (2018) LPELR-(43854) SC, wherein Akaahs, JSC, observed that –
The production of the stolen items, no doubt, will make watertight the case of the Prosecution. The law, however, still remains that where the evidence adduced by the Prosecution is capable of being believed and the trial Judge believed it and convicts the Accused, an appellate Court will be slow to overturn the verdict simply on the basis that the trial Court could have viewed such evidence otherwise. Where it is suggested that a piece of evidence casts some doubt on the Prosecution’s
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case, it is necessary to show, unless such is manifest or evident from the Records, what aspects becomes doubtful by reason of the evidence.
In this case, the trial Court held as follows in relation to the money –
The contents of Exhibits D, al, D2, D3 – – are consistent with other facts before the Court emanating from testimonies of other Prosecution Witnesses especially with regards to the time the offence was committed, the weapons used, the fact that the robbers were masked, the amount of money robbed, the place they gathered after the robbery to share the money. The fact that the two Accused Persons were staying together in Jauro’s house. The fact that some part of the money shared after the robbery was found on the Accused Persons, which is consistent with the testimony of PW5 that N7, 000.00 was recovered after the house of the Accused Person was searched. Which is consistent with the confessional statements of Accused Persons who stated in their confessional Statements that N7,600.00 was found on them. I agree with the contention of learned counsel for the State that the alleged contradiction hearing (sic) confessed by learned counsel
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to the defence (sic) is not material.
In its own Judgment, the Court of Appeal also observed as follows –
From these confessional statements, Exhibits D, D1, D2 & D3, a deluge of details as to how the robbery operation was planned and executed were given by the Appellants. The graphic nature of the details given, inclusive of the names of all the other participis criminis in the crime could only have come from persons, who had in-depth knowledge of the operations of the night in question, and who were active participants in committing the crime. Indeed, the information contained in the confessional statements was amply corroborated by the evidence of the prosecution Witnesses – – For instance, from PW1’s evidence, the robbery was carried out at 8.30pm, the robbers were masked and they came in a large number carrying weapons in the nature of guns, cutlasses and sticks. In corroboration of this evidence, both Appellants – – stated that they went in a large group to the house of PW1 on the night in question. The 1st Appellant even went further to individually name all the people, who participated in the robbery, while the 2nd Appellant was able to
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name a few of their co-conspirators. The 1st Appellant in his Statement further confirmed that those of their accomplices, who actually entered the house of PW1 wore masks so that PW1 would not recognize them, since they were from the same Community: while him and others, who stayed outside to keep a look-out, did not wear masks. In addition, the 1st Appellant in his Statement confirmed PW1’s testimony that he was robbed of the total sum of N400,000.00. They state further in their Statements that the mastermind of the operation, their landlord, Jauro Komtoli (now deceased), gave them their share of the sum realized during the robbery in the sum of N27,600.00. The Appellants, however, requested the landlord, to keep N20,000.00 out of this sum for them, and collected N7, 600.00 from him. The 1st Appellant states that the landlord gave them N7,000.00 while the 2nd Appellant states that the landlord gave them the sum of N7,600.00. In corroboration, a sum of N7,500.00 was recovered from their persons in their room upon arrest. Yet again, this is in line with the testimony of PW5 – – who testified that amongst the items recovered from [their] room during the
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search – – was the sum of N7,000.00 in N500 denominations, while PW3 – – who was also in the search party on the night of the robbery confirmed that an additional sum of N500.00 was recovered from the pocket of the 1st Appellant. Moreover, the victim himself, as PW1, testified that the money stolen from him was in N500.00 and N200.00 denominations.
At this point, the issue is not whether the lower Courts were right to act on the Appellant’s Confessional Statement, I will get to that later; it is whether there were contradictory testimonies regarding the exact sum of money recovered from the Accused Persons, which casts doubt on the Prosecution’s case, and whether the non-tendering of the sum of money recovered, worsened the Prosecution’s case in that regard.
Now, a piece of evidence is said to be contradictory to another piece of evidence, when it asserts or affirms the opposite of what the other piece of evidence asserts. It is settled that if the contradiction in the evidence adduced by the Prosecution goes to the root of the case, as to raise doubt in the mind of a Court, the Court should not convict. In other words, if there is contradiction in
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evidence as to material fact, which raises doubt, the benefit of doubt must be given to the Accused.
However, where the contradictions are not as to material facts, such contradictions should not disturb the finding of guilt, if sufficient evidence has been led on material facts to the Charge – see Ochemaje V. State (2008)15 NWLR (Pt. 1109) 57SC, wherein Tobi, JSC, explained:
Contradictions definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not necessarily mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions, which are not material or substantial will go to no issue.
In this case, the lower Courts accepted the Prosecution’s evidence that some money was
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recovered from the Appellant, who admitted in his Confessional Statement that the money recovered from him was part of his share of the proceeds from the said armed robbery operation.
It is clear from their Judgments that this was just one of the many pieces of evidence used to corroborate the Appellant’s confession that he participated in the armed robbery operation, and even if that piece of evidence is expunged from the Record, it would make no difference to their concurrent findings that the Appellant was guilty as charged.
In the circumstances, the non-tendering of the money recovered from the Appellant did not make any dent in the Prosecution’s case, and the Appellant’s contention that it was fatal to its case, lacks merit.
Lastly, the Appellant argued that his prosecution “is founded on mere suspension”. On this score, the Court of Appeal held as follows:
The second leg of arguments – – is hinged on the strange assertion that Appellants were arrested on mere suspicion that they were strangers to the locality, i.e. Tal Village. I agree with – – the Respondent that the submissions on this were based on nothing but mere speculation,
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supposition and conjecture. Indeed, there is nothing before the trial Court to suggest that this was the case. The Appellants themselves explained that it was [because] they were not known to PW1 that they were asked to stand guard outside, while their accomplices, who were “homeboys” or “sons of soil” (as it were), wore masks and went into the house where they, in agreement with the Appellants, committed the dastardly act. I therefore disregard this submission as nothing but a mere yarn and an ingenious attempt to disengage the Appellants from the deadly web they spun around themselves.
Without much ado, and for the reasons stated by the Court of Appeal, I will also disregard Appellant’s argument on this issue; it lacks merit.
Now to the key Issue in this Appeal; whether the Court of Appeal was right to affirm the conviction and sentence of the Appellant based on his Confessional Statements, Exhibits D1 & D3. It held as follows –
It is evident that contrary to the submissions of the Appellant’s counsel, there was ample evidence before the trial Court to corroborate the [Appellants] confessional statements sufficient to make
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them probable, not merely likely, that they were true. The revelations made in the confessional statements were largely consistent with the facts before the trial Court, which emanated from the testimonies of the Prosecution Witnesses – – – A confessional statement made by an Accused Person and properly admitted in evidence is the best guide to the truth of the role played by him and upon which, alone, the Court can convict – – In line with the decision in Oseni V. State (supra) the learned trial Judge was satisfied with the truth of the confessional statements, and he was also satisfied that they were positive and direct, and thus, his action in proceeding to convict them thereon cannot be faulted. I therefore find that there was a profusion of evidence, outside the confessional statements that make it probable that the confessions contained in the Statements of the Appellants to the Police, as in Exhibits D, D1, D2 & D3 were true; and the trial Court was right to rely upon them in convicting the Appellants of the offences charged. I therefore see no reason to disturb the findings of the learned trial Judge on this.
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The Appellant contends that its view that his Confessional Statement was amply corroborated, is not supported by the Records of the Court. He argued that PW1 stated clearly that he did not recognize any of the armed robbers as they were wearing masks, and no money was found on him when he was searched, and so, he was not located at the scene of crime by the Prosecution’s star Witness; that PW3 did not mention that anything was found on him when he was searched; and that there was no evidence provided by any witness that directly connected him to the robbery incident, except the alleged Confessional Statement.
He conceded that a Court of law can convict on the confessional statement of an Accused if satisfied with the truth of that statement in line with the decision in Oseni V State (supra), relied upon by the two lower Courts, but argued that such a statement must bear no legal impediment and must pass the judicial tests for accepting same as the basis for conviction and sentence, citing Odua V. FRN (2002) 5 NWLR (Pt. 761) 615, Bature V. State (1994) 1 NWLR (Pt. 320) 267, Nsofor & Anor V. State (2004) 11-12 SC 43; and that Exhibits D1 & D3 were not subjected to the said
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tests by the trial Court; thus, the Court of Appeal was wrong in holding that the Statements are voluntary and relevant.
He also argued that though PW6 said Cpl. Garba Haruna had died at the time of his trial, no death certificate was tendered to that effect, and no Police signal or document evidencing his death was presented; that even if Cpl. Garba Haruna was dead, Sgt. Gregory Ahalite was not called as a witness; and that there was no explanation given by PW6 for the failure to call the said Sgt. Ahalite, who was a vital witness.
He asked how the trial Court determined the qualification of the said Sgt. Ahalite to translate Hausa into English, which rendered him a competent interpreter, and submitted that no parameter was used in relying upon the English translation as the correct interpretation of his original Statement recorded in Hausa Language; and citing Nwali V. State (1991) 3 NWLR (Pt. 182) 663, Damina V. State (1995) 8 NWLR (Pt. 415) 546, Ifaramoye V. State (2017) LPELR – 42031(SC), that the said evidence of PW6 amounts to hearsay, and so, it is inadmissible.
On the retraction of his Confessional Statement, he argued that the
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Court is expected to test its truthfulness and veracity by examining the said Statement in the light of the other credible available evidence; that the facts of this case are not consistent with the confession he allegedly made; that for instance in the endorsement to the Statement, PW6 stated that he admitted that he was one of those that went into the victim’s house but in the said Statement, he said he stood guard outside the house; that he also admitted that N7,600 was recovered from his pocket as his share of the proceeds of robbery but from the evidence of PW1 and PW3 under cross-examination, and his own testimony in Court, nothing was recovered from him; therefore, there was nothing on the Records of the Court from the testimonies of all the Prosecution Witnesses that linked him to the scene of crime.
He referred to Exhibits D & D2, Confessional Statements of his Co-Accused, wherein his name was mentioned as one of the robbers, and submitted that it is settled law that in a joint trial, a confessional statement made by one Accused, which incriminates a Co-Accused, cannot be used as a plank upon which to convict the Accused Person, so
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incriminated, citing Solola V. State (2005) 2 NWLR (pt. 937) 460 and Oyakhire V. State (2007) All FWLR (Pt. 344) 1; and that there is nothing outside the confession that incriminates him, and since the statement of a Co-Accused cannot also help the Prosecution’s case, his alleged Confessional Statement is standing on its own, without any support.
The Respondent, on its part, countered that the said Exhibits were tendered through PW6, after the proper foundation had been laid regarding the absence of the Recorder of the Statement; and that this Court has held that a confessional statement can be tendered in evidence by a different Police Officer from the one that recorded it, citing Stephen John & Anor V. The State (2011) 12 (Pt. 2) 5 CM 238.
As to its retraction, it submitted that the Appellant did not object to the voluntariness of the Statement at the time it was tendered; that his reasons for objecting were based on different reasons, which were adequately responded to by the Prosecution, before it was admitted; that voluntariness or otherwise of a Confessional Statement is tested at the time the Statement is sought to be tendered, and not
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when the Prosecution had closed its case and the Accused was testifying in his defence that the issue is belatedly raised, citing Oseni V. State (supra).
It also argued that the said Statement was corroborated by the evidence of the Prosecution witnesses, especially the time the offence was committed, weapon used, the fact that the robbers were masked, amount of money robbed and where they met to share the money; and that this Court has held that a voluntary confession, if it is direct, positive and satisfactorily proved, is sufficient to warrant conviction even without corroborative evidence, citing Oseni V. State (supra). Citing Nwaturuocha V. State (2011) 9 LRCNCC 1, it urged this Court not to disturb the concurrent decisions of the two lower Courts since “they are supported by evidence on record” and they are not perverse.
To cut to the chase, I will quickly say that the Respondent is right. As it happens, I wrote the lead Judgment in Ifaramoye’s Case (supra), and there is no question that facts of that case, cited by the Appellant, are distinguishable from facts of this case. In Ifaramoye’s Case (supra), PW3, a Police Officer, through whom the
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confessional statement was admitted in evidence, was not present when his colleague recorded the Statement in Yoruba, and another one translated it into English. He merely stated that he worked together with the other two Officers, and identified their handwriting and signature on the said Statements. No foundation was laid as to why the said two Officers were not called. In this case, the facts, as laid out by the Court of Appeal, are as follows:
From the evidence of PW6 – – upon the arrest of the Appellants, one Cpl. Garba Haruna, recorded [their] Statements given in Hausa language, while one Sgt. Gregory Ohalite translated the Hausa Statements into English language. On 25-03-08, both Officers brought the Appellants to the office of PW6 along with Hausa versions of the Statements for his endorsement, being confessional in nature. On his instruction, the Hausa Statements were each read out to each of the Appellants sequentially. On his inquiry, each of the Appellants confirmed that the Statements were made by them voluntarily without threat, undue influence, duress or promise, and that they signed the Statements themselves. PW6 thereafter endorsed the
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Statements and directed Sgt. Gregory Ohalite to translate them into English language. The Witness went on to inform the [trial Court] that Cpl. Garbo Haruna (who recorded the Statements in Hausa), was since deceased, but that having worked directly with him for eight years, he (PW6) was familiar with the deceased’s handwriting and signature. He had similarly worked with Sgt. Gregory Ohalite for four years and so he was also conversant with his handwriting and signature – – The statements were tendered through this Witness and admitted in evidence, the trial Court having ruled that proper foundation was laid for the Statements to be tendered through the Witness in Court, other than through the makers of the documents.
Based on these background facts, the Court of Appeal concluded that:
In view of the evidence of this Witness [PW6], it is evident that the said Confessional Statements were, indeed, the voluntary Statements of the Appellants given at a time when the events were relatively fresh in their memories. The Statements had become relevant, admissible and could be acted upon by the trial Court in spite of the latter-day attempt of the Appellants
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to cast aspersion on the documents during their defence.
Obviously, the facts of this case, which are clearly distinguishable from the facts of the case in Ifaramoye’s Case (supra), and the facts of the other cases cited by the Appellant on this Issue, speak for themselves. So, the decision of the Court of Appeal on this point cannot be faulted.
The Appellant retracted his Confessional Statement at defence stage but this Court has repeatedly stated that the appropriate time to object to the admissibility of a Statement said to be a Confession is, when the Statement is sought to be tendered see Oseni V. State (2012) LPELR-7833(SC), wherein I.T. Muhammad, JSC, observed that –
Appellant’s counsel at the trial stage did not object to the admissibility of [his] confessional statement, yet he went on to blame the trial Court in not treating [the] confessional statement with utmost caution. It [is] too late in the day to seek to supply a remedy to a dented or a crucified matter, which can hardly be revived. – – It is too late to seek to retract such confessional statement after its admission without objection from the defence. It is – –
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taken as an afterthought, which Courts are not ready to accommodate.
In this case, the Appellant had objected to the admissibility of the said Exhibits D1 & D3, merely on the ground that PW6 was not the maker. It was only when he was testifying in his defence as DW2 that he said:
Some Police Officers started beaten (sic) me, where I sustained injuries on my eye and body – – The following day, they took me to an office, I was ask (sic) that I tell the truth – – and I responded that I do not know anything – – [They] took me to one of their Officers upstairs where they discourse (sic) certain things and brought me back to his office and produce some papers to me saying – – when I get to Court I should admit I committed the offence.
The trial Court relying upon the decision in Oseni V. State (supra) held:
The question of voluntariness or retraction of the Statement of the Accused Persons was never raised by the defence throughout – – the Prosecution’s case rather (sic) was any of the Prosecution Witnesses cross-examined in respect of same and for the Accused Persons to suddenly wake up and start denying their Confessional Statement
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for the first time during their defence in open Court, is an afterthought. I so hold.
The Court of Appeal also arrived at the same conclusion. It held that:
During the testimony of the Appellants before the lower Court during their defence as DW1 and DW2 they alleged that they only made the said confessional statements after they were tortured. This allegation was, however, not made at the earliest opportunity, i.e. at the stage when the Statements were being tendered in evidence to enable the trial Court investigate the veracity or otherwise of the allegations by conducting a trial within trial. Thus, these allegations, coming after the Statements had been admitted in evidence, were considered afterthoughts by the trial Court, and they were rightly disregarded.
The Court of Appeal is right. It was too late at defence stage for the Appellant to object to the admissibility of his Confessional Statement on the ground of involuntariness. But this is not to say that an Accused cannot retract his statement; he may retract same in one of two ways:
– He may say that he never made a Statement at all, in which case, it is a matter of fact to be
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resolved by evidence before the Court;
– Or that he made the Statement or signed it but not voluntarily. In the first option, a mere denial by an Accused that he did not make the confessional statement is a question of fact the Court must decide. So, the Statement must be considered along with the entire evidence and circumstances of the case for the weight to be attached to it – see Nwangbomu V. State (1994) 2 NWLR (Pt. 327) 380. In other words, the weight that a trial Court attaches to such Confessional Statement, following its retraction by the Accused Person, is what is important.
The course of action open to the trial Court in the second option is different because what is attacked is the admissibility in evidence of the said confession, and this is where a trial-within-trial must be held; the confession having been challenged on voi dire so as to determine whether or not the confession was voluntary. At the end of the trial, if the Court concludes that the confession was not voluntary then it is not admissible in evidence, and the Court should so rule – see Ikpasa V. Bendel State (1981) NSCC 300 and Nwangbomu V. State (supra). <br< p=””
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However, as I pointed out earlier, such a challenge to an alleged confessional Statement must be made at the time it is tendered to be admitted in evidence, when the Prosecution’s case is being pursued. A challenge to the voluntariness of a statement made after it has been admitted in evidence without objection on that ground, as in this case, is exactly what the two lower Courts said; nothing but an afterthought. Something added later, which makes no difference to what occurred.
On the issue of his Co-Accused’s Statement, the Appellant is right that his statement cannot be used against him. The position of the law is that the Statement of a Co-Accused Person to the Police is binding on him only – see Suberu V. State (2010) 8 NWLR (Pt. 1197) 586. However, where the evidence incriminating an Accused Person comes from a Co-Accused Person, the Court is at liberty to rely on it as long as the Co-Accused Person, who gave such incriminating evidence, was tried along with that Accused Person – see Dairo V. The State (2017) LPELR-43724(SC) and Micheal V. State (2008) 13 NWLR (Pt. 1104) 383.
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In this case, the Appellant’s submission that his own Statement “is standing on its own without any support”, rings true because the two lower Courts never mentioned or alluded to the Statement or the evidence of his Co-Accused in relation to the Appellant; and it is clear that he was convicted on the basis of his Confessional Statement only.
The Appellant may have retracted his Confessional Statement but it is settled that where the Accused says that he did not make the Confession at all, the trial Court is entitled to admit it in evidence, and thereafter, decide whether or not he made the said Confession, at the conclusion of trial. So, a retracted Confession is admissible in evidence – Ikpasa v. State (supra), Sule V. State (2009) 17 NWLR (Pt. 1169) 33.
However, the trial Court is enjoined to look for some evidence outside the Confessional Statement, which renders it plausible or true. This entails examining his new version of events that is different from his retracted confessional Statement, then the trial Court must ask –
– Is there anything outside the confession, which shows it may be true
– Is it corroborated in anyway
– Are the relevant statements of fact made in it most
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likely true as far as they can be tested
– Did the Accused have an opportunity to commit the offence
– Is the confession possible
– Is the confession consistent with other facts, which have been ascertained and established
These are tests suggested by Ridley, J., in Rex V. Sykes (1913) 18 CR. App. R. 233, which have been approved and applied by this Court in numerous cases – see Ogudu V. State (1991) 18 NWLR (Pt. 1278) 1 SC, Oseni V. State (supra), Dawa V. Anor V. State (1980) LPELR-932(SC).
In this case, the Appellant’s contention is that there was nothing; no evidence provided by any of the Prosecution witnesses that directly connected him to the said robbery except his Confessional Statement. In Oseni’s Case (supra), relied on by the lower Courts, this Court held:
In Nigeria, a free and voluntary confession of guilt by [an Accused], if it is direct and positive and is duly made and satisfactorily proved, it is sufficient to warrant conviction without corroborative evidence, as long as the Court is satisfied as to the truth of the Confession.
In this case, the lower Courts found “ample evidence” adduced by the
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Prosecution to corroborate the Appellant’s confessional Statement so as to make it probable and not merely likely that his confession is true.
I have no reason to fault the concurrent findings of the trial Court and the Court of Appeal because the Appellant’s confession in the said Exhibits are so detailed that no one can be left in doubt as to its truth. His narration of events was in line with the evidence of PW1 and PW5, and the Court of Appeal was absolutely right when it concluded that:
The learned trial Judge was satisfied with the truth of the confessional statements, and he was also satisfied that they were positive and direct, and thus, his action in proceeding to convict them – – cannot be faulted.
There is no doubt that the Appellant’s confession in Exhibits D1 & D3 solidified the Prosecution’s case, and since he has not presented this Court with any good reason to interfere with the concurrent findings of the two lower Courts, there is nothing this Court can do about it.
Consequently, this Appeal lacks merit and it is hereby dismissed.
SC.228/2016
