Okechkwu Nweze Vs. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

CLARA BATA OGUNBIYI, J.S.C.

The appellant herein was charged along with five others, on one count of conspiracy to commit the offence of armed robbery and five counts of armed robbery, at the High Court of Justice of Oyo State before the Hon. Justice E. Esan. The seventh accused person on the charge sheet was charged with sheltering an armed robber.

The initial original charge sheet contained seven accused persons but the prosecution later dropped the charges against the first three. The appellant herein, who was the sixth accused person at the trial originally then, became the third accused person.

The prosecution’s case was that on the night of the 7th day of May, 2003, the appellant, in company of two others also charged with the offence, conspired together and robbed passengers on board a G.U.O. Luxurious Bus at Idi-Ayunre along the Ibadan-Ijebu Ode Rood in Oyo State, whilst armed with guns.

The appellant and the two accused persons were charged under Section 5(b) and Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1999 as

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amended.

The appellant was arraigned on the 13th day of April, 2005 and pleaded not guilty to all the six counts leveled against him by the state. The appellant in his defence denied that he was one of the people who robbed the G.U.O. bus but admitted however that he did participate in the process of drugging sachet water (Pure water) which his confederates used to induce sleep in their victims before dispossessing them of their belongings. He also denied participating in the actual sale of the drugged water and travelling with the intended victims.

At the trial, the prosecution called (seven) witnesses and closed its case whilst the appellant testified in his own defence and did not call any other witness.

At the conclusion of evidence, counsel on both sides addressed the Court after which the learned trial judge adjourned for judgment.

After summarizing the case put forward by the prosecution and the defence, the learned trial judge found the appellant guilty as charged and sentenced him to death on the 9th of November, 2006.

Against the trial Court’s judgment, the appellant appealed to the Court of Appeal, Ibadan

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Division by filing his notice of Appeal dated the 17th of November, 2006, which was subsequently amended on the 16th day of June, 2008, by the leave of Court.

On the 17th day of February, 2011 the lower Court delivered its judgment and affirmed the conviction and sentence passed on the appellant by the trial Court. The Court of Appeal however, substituted the sentence of death to a sentence of life imprisonment.

By a Notice of Appeal dated the 23rd of March, 2011 and filed on the same day, the appellant herein appealed to this Court on two grounds:-

In compliance with the Rules of this Court, briefs were filed and exchanged between the parties as follows:

(1) The Appellant’s brief of argument was dated on 1st July, and filed on the 24th July, 2013. Same was settled by Olakunle Agbebi, Esq. of counsel.

(2) The Respondent’s Brief of argument was dated 1st March and filed on the 8th March, 2016. It was however settled by Oladipo Olasope, Esq.

On the 16th February, 2017 when the appeal came up for hearing, learned counsel for both parties adopted and relied on their respective briefs of argument. While the appellants counsel

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urged us to allow the appeal, the counsel for the respondent submitted in favour of the dismissal of same.

On behalf of the appellant, three issues from the two grounds of appeal were formulated as follows:-

1. Whether the appellant’s extra Judicial Statement (Exhibit ‘D’) was indeed confessional as regards the crime for which he was charged sufficient to ground a finding of guilt by the Trial Court
2. Whether the trial Court was right in dismissing the No case submission and calling on the appellant to defend himself
3. Whether the learned trial Judge was right in holding that the appellant was guilty as charged when consideration is given to the weight of evidence adduced before the trial Court

On behalf of the respondent, the only issue formulated was:-

Whether from the facts of this case the Prosecution has been able to establish the offence of armed robbery beyond reasonable doubt as required by law.

As a preliminary point, the respondent raised an objection against formulation of three issues out of two grounds of appeal by the appellant.

Without having to belabor this point, I seek to state quickly

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that, as rightly submitted by the respondent’s counsel, the Courts have constantly frowned at formulating more issues from fewer grounds of appeal. In other words, there should be no proliferation of issues over and above the grounds of appeal raised. In support of this principle is the case of Orji v. State (2008) 4 SCJN 85 at 203 also the case of Amodu v. Police College Maiduguri,(2009)FWLR (Pt. 488) 195 @ 196.

The law is trite also that on issue which is not hinged on any ground of appeal ought to be struck out. See the case of Federal Ministry of Health v. Comet Shipping Agencies (2009) All FWLR (Pt. 183) 1260 @ 1262; also the case of Drexal Energy v. T. IB (2009) All FWLR (Pt. 456) 1863.

With reference made to the appellant’s brief of argument, Paragraph 5.03 lodges a complaint against the weight of evidence which same did hot arise from any of the two grounds of appeal.

The law is well entrenched that issues must be formulated from grounds of appeal. It follows therefore that an issue which did not have its existence from a ground of appeal has no foundation and ought to be struck.

In the case of Western Steel Works v. Iron and Steel Works 1987 2 SC 11

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at 45 his Lordship Oputa, JSC (of blessed memory) said:-

“I do not think that it is permissible for an appellant to introduce in his brief issues not covered up by any ground of appeal. The idea of a brief is to develop and amplify argument on points and issues covered by the grounds of appeal, for ultimately it is only on those grounds and on them alone that the appeal will have to be allowed or disallowed. An issue taken up in a brief but which was not made a ground of appeal ought to be ignored by an appellate Court.”

On the same principle of law is also the case of Oyeyipo v. Oyinloye 1987 2 SC 148 @ 199. Further reference can be made again to the case of Federal Ministry of Health v. Comet Shipping (supra) wherein this Court at page 1262 said clearly.-

“For an issue for determination to be competent, it must be based on a ground of appeal — otherwise the consequence is that such on issue will be struck out.”

It is pertinent to point out of this juncture that the appellant did not deem it necessary to file any appellant’s reply brief in response to the preliminary objection raised by the respondent. The counsel did well in so

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doing and consequent upon which I hereby strike out issue 3.

On a further and thorough reading of the appellants, issues 2 and 3, if is apparent and obvious that he is complaining against the decision/judgment of the trial Court.

By the provision of Section 233(1) of the Constitution of the Federal Republic of Nigeria;

“The Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria to hear and determine appeals from the Court of Appeal.”

There is no provision for appeals to lie to this Court from the Trial Court as a Court of 1st instance. Therefore, issues 2 and 3 formulated by the appellant ore hereby discountenanced.

The only surviving issue out of the appellant’s formulation is issue one. I seek to say that it is not too different from the one formulated by the respondent. This appeal, in the circumstance, will be determined oh the issue.

ISSUE 1

Whether the appellant’s extra Judicial Statement (Exhibit ‘D’) was indeed confessional as regards the crime for which he was charged sufficient to ground a finding of guilt by the trial Court

At page 92 of the record of

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appeal, the judgment of the trial Court is explicitly succinct when it was held thus:-

“The 1st accused, Obinah John, the 2nd accused, Obasi Onyeye and the 3rd accused Okechukwu Nwesi on or about the 7th day of May, 2003 whilst armed with firearms and offensive weapons took part in robbing Sandat Yusuf, Bayo Adewusi, Adedopo Busayo and Hammed Lawal of their valuable proportion. The prosecution has proved counts 2, 3, 4 and 6 beyond reasonable doubt. Each accused is found guilty, accordingly convicted in counts 2, 3, 4 and 6 respectively.

having regard to the cogent evidence this Court coupled with the confessions of the accused persons, I have no doubt that the three accused persons are guilty of the offence of conspiracy as charged.”

The lower Court in its judgment endorsed the totality of the conclusion arrived by the trial Court and this was how the Court put its findings:-

“In view of the resolution of issue 1 in favour of the respondent allowing the conviction made by the lower Court against the appellant based on his confessional statement admitting the charge of conspiracy to commit armed robbery, and armed robbery

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as contained in Exhibit ‘D’ to ask of any proof beyond reasonable doubt is no longer necessary.”

The lower Court therefore affirmed the conviction and sentence of the appellant.

Prominent for the conviction of the appellant was his own statement Exhibit ‘D’ which was tagged as confessional.

It is submitted by the counsel for the appellant that Exhibit ‘D’ falls short of the standard required of a Confessional Statement to ground conviction solely thereon and that the learned trial judge erred in relying on Exhibit ‘D’, which counsel argues is not on unequivocal admission of guilt.

The learned counsel submits further that Exhibit ‘D’ was not corroborated in any way or manner whatsoever at the trial. In other words that none of the witnesses gave any evidence of that which could be remotely linked to Exhibit ‘D’, save for the purchase of two new motor cycles by the 1st accused person at the trial. It is submitted by counsel also that none of the witnesses related to the appellant as being one of the robbers or having participated in the offence of robbing the G.U.O bus; that Exhibit ‘D’ did not also make any such

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reference, nor did it go to the truth or otherwise of a robbery incident on the night of the 7th of May, 2003; that there is no evidence on record that on identification parade was conducted for the purpose of establishing the identity of the appellant as one of the robbers.

In his further submission, the appellant’s counsel reiterate that it is not the duty of the learned trial judge to attempt to make out a case for the prosecution. Rather the duty lies on the prosecution to provide corroborative evidence in proof of the guilt of the appellant.

It is submitted by counsel also that the learned justices of the Court of Appeal were in error when they held that they were in full agreement with the learned trial judge particularly as to the “acquiescence” by the appellant in the robbery of the G.U.O bus.

The learned counsel in his continued argument posed a question whether the prosecution lead evidence that by Exhibit ‘D’ the appellant acquiesced in the robbery of the G.U.O. bus Counsel quickly answered the question in the negative and remarked that the authorship of Exhibit ‘D’ remained a mystery and unresolved.

It is submitted

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by counsel again that the Court should extinguish Exhibit ‘D’ as a document shrouded in mystery and it being a document of fundamental basis upon which the learned trial judge founded her conviction and sentence of the appellant.

The learned counsel, in the circumstance, has urged us to allow this appeal for the reason that the prosecution had failed abysmally to prove the appellant guilty as charged.

In response to the appellant’s submission, the learned counsel for the respondent related forcefully to Exhibit ‘D’ which he submitted was tendered without any objection as to its admissibility. Counsel referred copiously to page 181 of the record of appeal and specifically applauded the judgment of the lower Court on Exhibit ‘D’; that the Court of Appeal, quite rightly stated the issue surrounding the said exhibit.

The learned counsel re-iterates the principle of law on a confessional statement made by an accused person which is sufficient to ground his conviction. Counsel cites in support the case of Egbohonome v. State (1993) 7 NWLR (Pt. 306) 383 and Oseni v. State (2012) All FWLR (Pt. 619) 1010.

An analytical assessment of

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Exhibit ‘D’ was made by the Counsel and the following conclusions were drawn there from:-

1. That the appellant sold drugged pure water to passengers with the aim that the passengers should be robbed after drinking the water and sleeping off.
2. That from the contents of Exhibit ‘D’, a conclusion can be drawn that the appellant was in total agreement with the commission of the crime as he had a meeting of the minds with Obinna that people should be robbed.
3. That the Confessional Statement also revealed that the appellant benefitted from the crime and he never informed the Police.
4. That the Statement also shows that the appellant was aware of a robbery and that he equally benefitted there from.

From the community deduction of the foregoing, the learned counsel drew the conclusion that the appellant was a principal offender in the commission of the crime. Reference was made to Section 6(d) and (b) of the Robbery and Fire Arms Act, which provides that an accused though absent, shall be deemed to be guilty as a principal offender. It is clear, counsel submits, that the appellant, was guilty of the offences charged, having regard to

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the role he played.

The respondent’s counsel, to buttress his submission further cited a number of authorities inclusive of Section 7 of the Criminal Code of Oyo State: that Exhibit ‘D’ has passed all the tests of a Confessional Statement as contained in Oseni v. State (supra).

It is submitted by Counsel also that the offence of conspiracy was well established because it was shown by the Confessional Statement that the accused acted in concert with others to drug the water and also ended up sharing the loot; that he, (the appellant) also failed to report to the police and hence, there was thus a meeting of the minds between the accused (appellant) and his co-conspirators. Counsel cites the case of Njovens v. State (1973) 5 SC 17 and Daboh v. State (1977) 5 SC 222 to establish that there was a meeting of the minds between the accused and his co-conspirators.

The learned counsel, on the totality has urged that the appeal should be dismissed.

The only issue for determination in this appeal as I have said earlier is, whether from the facts of this case, the prosecution has established the offence of robbery, beyond reasonable doubt

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as required by law, against the appellant

Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 presumes an accused person innocent until he is proved guilty. Accordingly, the burden of proof placed on the prosecution is not discharged until the guilt of an accused person is properly established. See the case of Idemudia v. State (1999) 7 NWLR (Pt. 610) 202 at 215 and Esangbedo v. State (1989) 4 NWLR (Pt. 113) 57.

In the appeal before us, the learned trial judge held that the prosecution proved its case against the appellant beyond reasonable doubt and thus found the appellant guilty as charged and sentenced him to death. This finding was based principally on the extra judicial statement Exhibit ‘D’ made by the appellant to the police.

In affirming the finding by the trial Court, this was what the lower Court said at page 181 of the record of appeal:

“The confessional statement of the appellant admitted and marked as Exhibit D. It is quite pertinent to mention that the issue of admissibility of Exhibit “D” was not made an issue in this appeal. It is agreed without any question that Exhibit D was obtained

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voluntarily and a clear representation of what the appellant stated to the police.”

The learned counsel for the appellant applauded the lower Court’s position and in support cited the case of Egbohonone v. State and Oseni v. State (supra). The authorities are to establish the proposition entrenched by the law that a confessional statement alone is sufficient to ground a conviction.

I seek to add at this juncture that the foregoing legal position is not however without a caveat where the law is also trite that for a confession to secure a conviction, it must have been made direct and positive in relation to the offence for which the appellant is charged. It must lead to an unequivocal admission of guilt. See Daniels v. State (1991) 8 NWLR (Pt. 212) 715; R. v. Sykes (1913) 18 CR App R. 233 approved and applied in Dawa v. State (1980) 8-11 SC 236 and Oseni v. State (2012) All FWLR (Pt. 619) 1010 at 1024.

It is pertinent to say on the foregoing authorities that both counsels to parties are ad idem on the Supreme Court’s position in restating the 6 tests which on extra judicial statement of the nature of Exhibit ‘D’ must satisfy before it

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could pass as confessional for purpose of grounding a conviction. The tests are:-

1) Is there anything outside it (the statement) to show that it is true

2) Is it corroborated

3) Are the statements made in it true as far as they can be tested

4) Was the prisoner one who had the opportunity of committing the offence

5) Is his confession possible

6) Is it consistent with other facts which have been ascertained and which have been proved

I seek to say at this point that, with reference made to Exhibit ‘D’, same I hold is not an unequivocal admission of guilt. See again Daniels v. State under reference supra.

Furthermore, there is nothing on record to show that there is anything outside Exhibit ‘D’ which could affirm that it is true as a confessional statement to the crimes for which the appellant was charged. The statement, in itself, does not admit the truth of the charges neither does it admit the truth of a robbery on a G.U.O. Luxurious Bus on the night of the 7th of May, 2003. The appellant only admitted to being told on the 8th of May, 2003 that the 1st accused person, at the trial and one other person

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(Onyekachi) had “hit big money.” There is nothing in Exhibit ‘D’ that goes to the truth or otherwise of a robbery incident on the night in question.

I seek to point out emphatically that Exhibit ‘D’ was not corroborated in any way or manner at the trial in any material particular. For example none of the witnesses gave any evidence of what could be remotely linked to Exhibit ‘D’ save for the purchase of two new motor cycles by the 1st accused person at the trial. There is no where that the purchase money was linked to the appellant.

Without any hesitation, I will state clearly that none of the witnesses identified the appellant as one of those who participated in the robbery of the G.U.O. Bus. Also the testimony of the police as regards the arrest of the appellant does not provide any evidence linking the appellant to the scene of the crime. There are no other facts which have been ascertained and proved consistent with Exhibit ‘D’.

At page 91 of the record of appeal, the learned trial judge held and said as follows:-

“In the instant case, the confessional statement of the accused persons are corroborated by the testimony of the

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witnesses for the prosecution which confirmed that a luxury bus (sic) was robbed on 7/5/2003. That the 1st accused person bought motorcycles as shown by the receipt Exhibit ‘E’ for the sum of N160,000.00 (One hundred and Sixty thousand Naira only) out of his own share of the robbery proceeds. The 2nd and 3rd accused admitted selling drugged pure water to the passengers and sharing part of the stolen money.”

Certainly, there is nothing placed before the trial Court to support the foregoing mentioned findings when regard is had to the following information which are revealed on the record:- In other words then –

1. All the statement of the prosecution witnesses particular the passengers on board the G.U.O. bus only goes to prove that a robbery occurred. There is nothing in any of the statement of either the appellant or the other accused persons (Exhibits ‘B’ and ‘C’) that corroborate or confirm the incidence of robbery on a G.U.O. bus.
2. With reference to page 37 lines 29-30 of the record of appeal, the appellant in Exhibit ‘D’, did not admit sharing the money. He stated that the 1st accused person at the trial gave him N1,000.00 to ‘wash’

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the motor cycles he bought.

3. The appellant did not admit to selling water on the G.U.O. bus, neither did he admit to selling water on the Ifesinachi bus. All that the appellant admitted to in Exhibit ‘D’ was his selling drugged pure water at a motor park.

Interestingly, the prosecution did not lead any evidence in proof of the fact that the very drugged pure water was either sold to the G.U.O. bus or that it played any part at all in the robbery of the G.U.O. bus.

Relevant in support of the foregoing is the view held by this Court in the case of Gbadamosi v. State (1992) 9 NWLR (Pt. 266) 465 per Uche-Omo, JSC wherein the learned jurists held and said:-

“In his judgment, the learned trial judge held Exhibit ‘J’ which is the statement of the 2nd appellant to the police to be a confession What the 2nd appellant admitted in that statement is being a party to the attempted sale of the stolen car. That is not the offence for which he was charged. To constitute a confession, a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must in so doing be clear, precise and

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unequivocal” (emphasis supplied)

Based on the foregoing, it is within reason to say that since Exhibit ‘D’ does not qualify as a confessional statement, the testimony of witnesses cannot be a corroboration, the exhibit itself cannot also corroborate itself. None of the witnesses identified the appellant so as to amount to corroboration.

Exhibit ‘D’ specifically, denied association with the robbery of G.U.O. bus on 7/5/2003. There is no evidence at all that drugged sachet water (pure water) sold by the appellant, played any part in the robbery of the G.U.O. bus being the offence for which the appellant and the other accused persons at the trial were charged.

It is intriguing to say also that neither PW3 nor PW7 was in any position to give direct evidence as to the fact of any robbery on an Ifesinachi bus on the night of the 7th of May, 2003. For example, PW3, who was the Station Manager, said categorically that there was no robbery. At page 46 at the end of his evidence in chief the witness said:-

“I don’t know anything about the robbery in the G.U.O. bus.”

I seek to say that PW3 was neither the driver nor one of the

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passengers on the bus that left the station and he did not also undertake the trip.

PW7 did not give any evidence that he spoke with any of the passengers or the driver of the bus. He also relied instead on the evidence given by PW3, which is of no material weight. Hence, the evidence by either PW3 or PW7 will not serve for corroboration.

As rightly submitted by the counsel for the appellant, the learned justices of the lower Court were in error when they held that they were in full agreement with the trial Court particularly as to the “acquiescence” by the appellant in the robbery of the G.U.O. bus. The question, as posed, rightly by the appellant’s counsel is, whether the prosecution lead evidence that by Exhibit ‘D’ the appellant acquiesced in the robbery of the G.U.O. bus The appellant’s counsel had responded appropriately in the negative.

As submitted rightly also on behalf of the appellant, the learned trial judge in admitting Exhibit ‘D’ correctly stated that a trial within trial was not necessary in this case. However, and that notwithstanding, that the trial judge did fail to avert his mind to the fact that having admitted

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Exhibit ‘D’ he still had a duty to determine whether or not the accused made the statement at the end of trial.

For a better explanation of the foregoing, the view expressed by this Court in the case of Gbadamosi v. The State (supra) is apt at page 498, wherein Ogundare, JSC (of blessed memory) said:-

”There is yet, however another case where the prosecution seeks to tender the Statement of an accused person, and the accused says that the statement was never made by him. As this does not involve a question of the voluntariness of the statement, it will be admitted in evidence but at the end of the trial, the judge, as a judge of fact, will have to decide whether or not the statement was made by the accused. See R v. Igwe (supra) Even here, too if the statement is a confessional one, the prosecution is still under a duty to prove that it was made by the accused voluntarily before it can be admitted in evidence. Where the accused denied making it against contending that he makes it voluntarily, the issue whether he made it at all would be a matter of fact to be resolved at the end of the trial.”

The pertinent question to ask at this

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juncture is whether the learned trial judge did resolve the issue whether or not the appellant made Exhibit ‘D’ at the end of the trial

It is not shown anywhere in the judgment that the trial judge referred to this important element of admissibility of Exhibit ‘D’. It is submitted on behalf of the appellant therefore that the authorship of Exhibit ‘D’ which the learned trial judge relied upon heavily has remained a mystery unresolved. Exhibit ‘D’ is significantly the only instrument relied upon by the learned trial judge in convicting the appellant.

Exhibit ‘D’ was the central consideration in the conviction of the appellant. On the community conclusion of the foregoing, it is unfortunate that the lower Court fell into the same trap as did by the trial Court, when it held that Exhibit ‘D’ was confessional and thereby relying on it to convict the appellant.

For all intents and purposes, both the two lower Courts erred greatly when they held that the appellant was guilty as charged, when the prosecution failed abysmally to prove the guilt of the appellant as charged.

The said issue is hereby resolved in favour of the appellant.

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In the result and with the outcome on the issue, same is sufficient to determine the entire appeal wherein the conviction of the appellant was based on his extra-judicial statement which has fallen below the expectation of being confessional.

On the totality, this appeal has merit and succeeds. It is hereby allowed and the convictions and sentence by the two lower Courts are hereby set aside. The appellant herein is acquitted and discharged accordingly.

The appeal succeeds and is allowed.

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SC.79/2012