Rasheed Lasisi V. The State (2013)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.S.C.

This is an Appeal against the decision of the Ilorin Division of the Court of Appeal, hereinafter referred to as the Court below, dismissing the Appellant’s Appeal and affirming his conviction and sentence for the offences of robbery contrary to Section 1(1) of the Robbery and Firearms (Special Provisions) Act CAP 398 LFN 1990 and culpable Homicide punishable under Section 224 of the Penal Code by the Kwara State High Court, hereinafter referred to as the trial Court. The brief facts of the case leading to the appeal are herein under supplied at once.

The Appellant and another person were arraigned before the High Court of Kwara State on a two count charge in charge No.KWS/28C/2004 . Respondent’s case is that on the 9th and in the early hours of 10th October 2003, the accused person robbed the Rock Field petroleum Nigeria Ltd. They took away properties of the filling station worth about N44,340.00k and in the course of the robbery caused the death of Obioma Nwakocha one of the two security guards at the filling station. Appellant’s co-accused is the 2nd security guard at the filling station.

The incidence of the armed robbery was reported to the police by pw3 who, on 10th October, 2003, discovered the fact of the robbery, the murder of Obioma Nwakocha and the disappearance of the 2nd guard, Silas Sule Mohammed, Appellant’s co-accused, from the venue of the crime.

It is Respondent’s further case that the Appellant was arrested on the 20th October 2003, some ten days after the robbery and the death of Mr. Nwakocha at the Rock field Petrol Station at Mr. Olusola Adebuyo’s (PW4) house for burglary. Exhibits 4 and 5 are Appellant’s extra judicial statements wherein, particularly in Exhibit 5, he admitted being, together with the 1st accused, Silas Sule Mohammed, responsible for the robbery at the Rock Field filling station along Fate Road, Ilorin and the death of the other security guard, Mr. Nwakocha. The content of Exhibit 5 led to the arrest of the said Silas Sule Mohammed at Ajase – Ipo on the 22nd October, 2003 and the subsequent arraignment of both accused persons.

Appellant testified in his own defence. A vulcanizer, he denies being arrested in Pw4’s house on 20th October 2003. Instead, he asserts that he was arrested on the 10th of October, at around 8.00am on his way to his work place. Appellant also denies having made Exhibits 4 and 5 to the police. He told the Court that his failure to sign the statements the police said he had made resulted in his being shot at on his leg.

Silas Sule Mohammed, the 1st accused charged along with the Appellant, also gave evidence in his own defence. He equally denies having been arrested at the Ajase-Ipo Police Station on his being identified by the Appellant. Mr Sule told the trial Court that he was arrested when he went to the Kulende Police Station around 3pm on the 10th October 2003 to report the robbery that took place at his work place.

At the end of the trial, which included the trial within trial to ascertain the admissibility of Appellant’s extra judicial statements, Exhibits 4 and 5, and Counsel addresses, the trial Court found the Appellant guilty of the offences of robbery under Section 1 of the Robbery and Firearms (special provisions) Act CAP 398 Laws of the Federation and homicide not punishable with death under Section 224 of the penal code. The trial Court in concluding its judgment dated 14th December 2006, sentenced the Appellant accordingly.

Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court below which judgment of 11th February, 2011 dismissed Appellant’s appeal and affirmed the trial Court’s conviction and sentence of the Appellant in respect of the two offences. Still aggrieved, the Appellant has appealed to this Court on two grounds.

In the Appellant’s brief settled by his Counsel, M. J. Onigbanjo Esq and filed on 7th June 2011, two issues have been distilled as having arisen for the determination of the appeal thus:-

“(i) Whether the alleged confessional statements contained in Exhibits 4 and 5 were of such quality that a Court of law could rely upon in convicting the Appellant of the offences with which he was charged.

(ii) Whether the Prosecution proved its case against the Appellant beyond reasonable doubt.

At page 6 of the Respondent’s brief settled by M. A. Oniye, two issues have equally been distilled from the two grounds in the Appellant’s notice for the determination of the appeal. The issues are:-

“i. Whether the Court below was right to have relied on the Appellant’s confessional statements, exhibits 4 and 5, in affirming his conviction by the trial Court. {Distilled from ground one}

ii. Whether the Court below was right to have affirmed the conviction of the Appellant for the offences of robbery and culpable homicide not punishable with death. [Formulated from ground two].”

At the hearing of the appeal, both sides identified, adopted and relied on their respective briefs as arguments for and against the appeal. The issues distilled by the Appellant, being preferred, will form the basis of determining the appeal.

On the first issue, learned Appellant’s Counsel refers, inter-alia, to the decisions in Gbadamosi v. State (1991) 5 NWLR (Pt.196) 182 at 203, Barmo v. State (2000) 1 NWLR (pt 641) 424 at 434, Oche v. State (2007) 5 NWLR (Pt 1027) 214 at 235 and submits that detailed principles have been propounded by Courts to guide on the admissibility or weight to be attached to a confessional statement. The reliance of the two Courts below on exhibits 4 and 5 which purports to be Appellant’s confessional statements, learned Counsel submits, stands in clear breach of all the principles on such statements. The documents, he argues, should not have been admitted and having been admitted no weight whatsoever should have been attached to them.

The evidence of PW1, at page 52, PW4 at page 69 – 70 all go to corroborate Appellant’s evidence at page 75 as well as that of his co-accused that exhibits 3, 4, and 5, the accused persons’ statement, was not given voluntarily. The police had inflicted injuries on the two in the process of obtaining their statements. This fact alone, contends learned Counsel, makes the statements inadmissible in law. All the questions the trial Court ought to have answered before admitting the statements in evidence as being confessional, learned Appellant’s Counsel submits are left unanswered inspite of the testimonies of Respondent’s witnesses during the trial within trial. Further relying on Ojegele V. State (1988) 1 NWLR (Pt.71) 414 at 425, learned Counsel urges that with exhibits 4 and 5 not having been corroborated, the Court below is wrong to have, on the basis of the two statements, affirmed the trial Court’s decision. He submits that the issue be resolved in their favour.

On the 2nd issue, it is re-iterated that the trial Court in deciding on Appellant’s guilt relied on exhibit 4 and exhibit 5 alone. Nothing outside the two statements are commended to the Court by the Respondent. Neither the weapons used in killing Mr. Nwakocha nor the goods stolen by the appellant in the course of the robbery have been tendered in evidence before the Court. Besides, the oral testimonies of Respondent’s witnesses are riddled with material contradictions. Most importantly, learned Appellant’s Counsel concludes that Appellant’s plea of alibi has not been duly considered. The lower Court’s affirmation of the trial Court’s finding that the defence has not been timeously raised is a manifest error which entitles this Court to set-aside the decision. Learned Counsel so urges and further prays that the appeal be allowed.

Responding, learned Counsel asks us to resolve the two issues for the determination of the appeal in the affirmative. He submits that a Court can rely on the confessional statement of the accused to convict him. Indeed, if well proved, a confessional statement is considered the best evidence. Exhibits 4 and 5, it is contended, are, the credible and compelling evidence led by the Respondent during the trial within a trial, established beyond doubt to be made freely and voluntarily. Appellant’s objection that brought about the procedure is that the statements were not voluntarily made but obtained from him by force and intimidation. Appellant’s subsequent posture is a total denial that he made the said statements. The trial Court admitted the statements it found to be confessional which finding, learned Counsel submits, the Court below at page 167 of the record rightly affirmed. Evidence on record does not show that the injuries the learned Appellant’s Counsel capitalizes on in arguing that Appellant’s statements were induced or given under duress, were sustained or inflicted on the Appellant in the course of recording his statements. Instead, the injuries occurred in the course of arresting the Appellant and therefore of no consequence on the admissibility of the statements. In urging us to so hold as well, learned Counsel relies on Amachree v. Nigeria Army (2003) 3 NWLR (Pt.807) 281, Odua v. Federal Republic of Nigeria (2002) 5 NWLR (Pt.761) 615, Alarate v. State (2001) 2 SC 114 and Agbo v. State (2006) ALL FWLR (Pt.309) 1380 at 1393.

In further argument, learned Respondent’s Counsel submits that none of the witnesses called by the Respondent to establish that Exhibits 4 and 5 are voluntarily given by the Appellant demonstrate any attribute by virtue of which his testimony should be disbelieved or ignored. The two statements clearly establish the Appellant as a member of the gang which robbed the filling station and killed Mr Nwakocha in the course of committing the robbery. From the two statements, learned Respondent’s Counsel contends, all the ingredients of the two offences the Appellant is convicted for are discernible. These directly positive and unequivocal statements cannot lawfully be discountenanced. In fact, submits learned Counsel, by virtue of the decisions in Ahmed State (1999) 7 NWLR (part 612) 641 and Bakare v. State (1987) 1 NWLR (part 52) 579, it is incumbent on the trial Court to rely on the statements and for the Court below to affirm a decision reached consequent upon the reliance placed at trial on the statements.

Concluding, learned Respondent’s Counsel submits that the Appellant raised his alibi for the first time at the trial Court. Having not raised the defence timeously and promptly, he is disentitled to raise the defence belatedly at trial in the open Court. Where the Respondent succeeds by evidence to fix the Appellant at the scene of crime, learned Counsel submits, it satisfies the requirement of the law thereby making the defence unavailable to the Appellant. Learned Counsel relies on Onuchukwu v. The State (1998) 4 SCNJ 36, Sowemimo v. The State (2004) 11 NWLR (part 385) 515, Ukwunneyi v. State (1989) 4 NWLR (part 114) 131 at 155 – 156 and Nigeria Air Force v. Obiora (2003) 1 SC (part 11) 145 at 167 and urges us to hold that the lower Court’s affirmation of the trial Court’s rejection of Appellant’s belatedly raised alibi is well grounded in Law.

On the whole, learned Counsel submits that the issues the appeal raises be resolved in Respondent’s favour and the appeal dismissed.

Now, the questions the appeal raises are whether indeed Appellant’s statements are confessional and, if so, whether the conviction for the offences he stands trial for are lawfully founded on his confessional statements without more. There is also the need to consider if indeed Appellant has raised any alibi and same has been wrongly discountenanced.

A confession, see Section 28 of the Evidence Act 2011, is an admission made at any time by a person charged with a crime stating or suggesting that he committed the crime. Such an admission may be given in evidence against its maker in proof of any fact in issue provided the statement was obtained in the manner provided under section 29(1) and (2) of the same Act.

The law renders irrelevant any admission obtained by oppression of the person who made it, or in consequence of anything said or done which was likely to render the admission unreliable. The practice has evolved, pursuant to these requirements, imposing the duty on Courts to reject any statement obtained from an accused under torture, duress, threat or inducement. Thus confessional statement is admissible only if voluntarily given. See In Re Osakwe (1994) 2 NWLR (Pt 326) 273 at 290; Ebot v. State (1993) 4 NWLR (Pt.240) 644 and Nwosu v. State (1986) 4 NWLR (Pt.186) 428.

In the case at hand, following his arrest on 20-10-2003 for breaking into PW4’s house and the Respondent’s resolve to make a complaint against him before a Court, the Appellant in Exhibit 4, inter-alia, states as follows:-

“I came to the city of Ilorin about 3 months ago and since I have been following bricklayers to do some Labourer job at the building sites. It was whenever I go to building site that I use to target houses that I would (effectual) eventually broke into I started to steal and broke into people’s houses for over 2 months ago. Members of group are 1. Suleiman ‘M’ who has left the city of Ilorin to Ajasepo, Kwara State. 2. Abu Alli ‘M’ of Ode-Alfanda, Ilorin, 3. Small ‘M’ 4. Abdullahi Alli and Soladipo ‘M’, One Mathew ‘M’ is along member of the group. The leader of the group is Suleiman who now lives at Ajasepo.”

In his second statement obtained on 22-10-2003, Exhibit 5, the Appellant elaborates in part as follows:-

“….I have a gang of 2 persons including myself and Silas Sule Mohammed who specializes in breaking into people’s houses to remove and steal their property away. I have operated in four different places within Sango and Fate Areas with Silas Sule Mohammed. On Thursday 9th October, 2003 at about 10:30pm. I left my place to Rockfield petroleum to meet Silas Mohammed who was a night guard at the filling station. Before this time, I have had arrangement with Silas Sule Mohammed to come to the filling station to steal things in the Mini-Mart and that we should prevent the other night guard from disturbing us from carring (sic) wit the operation. Silas Sule brought the move that he would use drug so that he would use drug so that he would sleep a way throughout the operation. On arrival at the scene we tightened up his legs and hands and we hit him with hard object and killed him. It was thereafter that we removed the block and gained entrance into the Mini-Mart where valuables were removed and stolen away…….”(Underlining supplied for emphasis).

In the course of trial, the Respondent tendered the two statements parts of which are reproduced above. At that point, Appellant’s Counsel objected to their being admitted in evidence by the Court on the ground that they were not voluntarily obtained from the Appellant. The trial Court conducted a trial within trial to ascertain whether the statements were voluntarily obtained and thus admissible in evidence. The Respondent relied on two policemen, one of whom recorded the two exhibits to prove their admissibility. The Appellant’s evidence in the course of the trial within trial states partly thus:-

“I did not make any written statement to the police when I was arrested. It is not true that I made two statements to the police on 21st October, 2003 and on 22nd October, 2003, after I had been cautioned by the police. PW1 did not tell the truth.” (Underlining supplied for emphasis).

In the trial Court’s well considered ruling dated 25th May 2006, after reviewing the evidence of both sides in the trial within trial, the Court, see page 62 of the record, states the applicable procedure thus:-

“Any objection to the admissibility in evidence of a statement on the ground that it was not made voluntarily by the accused, … calls for a trial within trial to determine the voluntariness or otherwise of the statement.” (Underlining supplied for emphasis).

At page 63 of the record, the trial Court concluded its ruling as follows:-

“However, where the accused said under cross-examination or in his evidence -in-chief in a trial within trial that he did not make any statement to the police at all, or that the statement sought to be tendered was written by the police, a different consideration is called for. Where the accused has denied making a statement at all to the police there will be no necessity to conduct a trial within trial. The statement can properly be received in evidence…..” (Underlining supplied for emphasis).

Having found that Appellant’s case has ended in a denial of ever making the statements, the Court admitted the two in evidence.

The lower Court in affirming the trial Court’s findings at page 162 of the record states as follows:-

“Accordingly, the learned Counsel was again on a pedestal when he relied on Nsofor v. The State (supra) to submit that where as in this case, the admissibility of the Appellant’s extra judicial statements were objected to not on grounds of involuntariness, but on outright denial of making them, the Court must first admit them without trial within trial and therefore to determine their probative value or whether the Appellant made them. See also Ikpasa v. The State supra.” (Underlining supplied for emphasis).

The Court’s foregoing holding is beyond reproach. Its further reliance on the decision of this Court in Olalekan v. The State (2001) 18 NWLR (Pt.746) 793 is apposite. At page 809 of the report this Court held on the point in issue thus:-

“It would appear that the objection taken to Exhibit A in this Court is different to the objection raised on it in the Court below. In that Court it was the question of its voluntariness that was contested as borne out by issue 3 raised in the Appellant’s brief in that Court. And this led to the observation of the Court to the effect that

‘When the voluntariness of a confession is being denied, a trial within trial will be held, but if the statement is voluntarily made- then it is admissible by virtue of Section 27 of the Evidence Act, Laws of the Federation of Nigeria, 1990.

It is however noteworthy that when an accused person alleged that the confessional statement credited to him is made under duress or not made voluntarily by him, objection must then be raised to its admission when the statement is sought to be tendered in evidence and not after they have (sic) been admitted in evidence.’

Of course, this observation represents the law and to that extent, their lordships of the Court below arrived at a correct decision.”

Learned Appellant’s Counsel insists that Appellant’s conviction by the trial Court as affirmed by the Court below cannot be founded on Appellant’s retracted confessional statements. Learned Counsel seems unimpressed by the plethora of decisions of this Court that hold otherwise. It is not the law that denial by an accused of his confessional statement provides reason for either rejecting or rendering it unreliable and incapable of sustaining the conviction of the accused for the offences he stands trial for. Where his confessional statement is direct, positive and unequivocal as to the admission of his guilt, the statement is enough to ground an accused person’s conviction notwithstanding the fact that he has resiled from the statement. Of course, it is desirable to ensure that other ascertained facts consistent with the confessional statement abound before convicting the accused. The law does not, however, preclude a court from convicting an accused only on his confessional statement where the statement is found to be direct, positive and unequivocal. See Ejinima v. State (1991) 6 NWLR (Pt.200) 627, Onyejekwe v. State (1992) 3 NWLR (Pt.230) 444; Obosi v. State (1965) NMLR 129 and Egboghonome v. State (1993) 7 NWLR (Pt.306) 383.

In Nwaebonyi v. State (1994) 5 NWLR (Pt.343) 138 Wali, JSC in his lead judgment stated at page 150 of the report thus:-

“Even without these corroborative evidence, decisions of this Court abounds to show that a trial Court can convict on accused person on his free and voluntary statement alone. See Queen v. Obiasa (1962) 1 ALL NLR 691.

Having accepted the truth of the confession contained in Exhibit AA1 the learned trial judge was perfectly justified in finding the appellant guilty of the charge against him and the court of appeal was also right in affirming the conviction and sentence on the evidence accepted and evaluated by the trial judge.”

Ogwuegbu, JSC at 154 of the report appears more emphatic in his concurrence thus:-

“The trial court held that the Appellant made Exhibit AA1. He found that the Appellant made Exhibit AA1 voluntarily and that there was also overwhelming evidence to corroborate the statement. He concluded that it was a deliberate act of murder motivated by some deep rooted suspicion held by the Appellant that P.W.1. was responsible for the death of the children. The Court below found that the contents of Exhibit A were true that it amounted to a confession which is direct and positive.

Exhibit AA1 having been proved to be positive, direct and made voluntarily, a court can convict on it. The fact that the appellant resiled from it does not necessarily render it inadmissible: Egbogbonome v. The State (1993) 7 NWLR (Pt.306) 383 and R. v. Kanu (1952) 14 WACA 30. The general rule is that a free and voluntary confession satisfactorily proved is sufficient proof of guilt without corroborative evidence, though the whole evidence should be weighed with the view of seeing whether they are incompatible with facts stated by the accused in the statement: The Queen v. Mboho (1964) NMLR 49 and the Queen v. Obiasa (1962) All NLR. 645 (Reprint) (1962) 1 SCNLR 137. In this case the truth of the confession was positive and the evidence relied upon by the learned trial judge were compatible with the facts stated in Exhibit AA1.” (Underlining supplied for emphasis).

In the case at hand the Court below like the trial Court, in addition to the confessional statements of the Appellant, relied on such other evidence from the testimonies of Respondent’s witnesses to further establish the truth in Appellant’s confessional statements. Both Courts are aware of the desirability of having such corroborative evidence before convicting the Appellant. That the availability of the corroborative evidence is, however, not a condition precedent to the conviction of the Appellant is equally a principle the two Courts fully understand. Not surprisingly, the lower Court in affirming the trial Court’s judgment states per Agube JCA at page 154 of the record as follows:-

“I am of the firm view that the learned trial Judge rightly convicted the Appellant on his confessional statements (Exhibits 4 and 5) particularly, by Exhibit 5 and the Evidence of the PW1-PW3. Although the Appellant alleged that the confessional statements were obtained under threat, the evidence of the PW1-PW4 has proved the contrary.”

In Exhibits 4 and 5, the Appellant himself has provided material evidence of all the ingredients of the two offences he is convicted and sentenced for by the trial Court. The lower Court’s affirmation of such a decision that draws from cogent admissible evidence remains beyond reproach. It must also be stated that by the same confessional statements, the Appellant having fixed himself at the scene of the offences no reasonable tribunal would take his Counsel’s contention that the defence of alibi avails the Appellant even if it would be conceded to them that the defence has indeed been raised. See Ogoala v. State (1991) 2 NWLR (Pt.175) 509; Ibrahim v. State (1991) 4 NWLR (Pt.186) 399 and Esangbedo v. The state (1989) 1 NWLR (Pt 113) 57.

Finally, it must be remarked that whether or not a statement of an accused person is confessional and/or the weight same should fetch is a question of fact. Evaluation of evidence and drawing the right inferences has always been the primary duty of the trial court that had the advantage of seeing and watching the witnesses as they testified. The Appellate Court, which the lower Court and indeed this Court are, does not enjoy the advantage the trial Court had in the task of evaluating the evidence of the witnesses before it and making the necessary inferences as to whether or not Exhibits 4 and 5 are confessional.

Appellate Courts interfere to ensure that justice prevails only where the trial Court failed to draw the correct inferences from the evidence or arrived at a finding consequent upon its consideration of extraneous matters.

In the case at hand the two Courts below have concurrently found and correctly too, that the Respondent herein, by virtue of exhibits 4 and 5 as well as the evidence of the witnesses it led at trial, has discharged the burden the law places on it by proving the guilt of the Appellant beyond reasonable doubt. This Court remains hesitant, nay incapable of saying that these findings are perverse and for that reason disentitled to interfere. See Igago v. State (1999) 14 NWLR (pt 637) 1 and Bamigboye v. University of Ilorin (1999) 6 SC (Pt.11) 72. Consequently, I resolve Appellant’s two issues against him, find no merit in his appeal, dismiss same and affirm the decision of the Court below.

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SC.145/2011