Chukwuka Ogudo V. The State (2011)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVOUR, J.S.C.

The appellant was one of two accused persons charged and arraigned before the Kaduna High Court of Kaduna State on two counts which read:

Count 1

That you, Bright Chibuike and Chukwuka Ogudo, on or about the 16th day of April, 2001, at Buruku Forest along, the Kaduna – Lagos road, conspired to do an illegal act to wit, to block the road and rob passers-by of their properties and by so doing, you committed the offence of criminal conspiracy, punishable under Section 97 of the Penal Code Law, Laws of Kaduna State 1991.

Count 2

That you, Bright Chibuike and Chukwuka Ogudo, on or about the 16th day of April, 2001, at Kaduna Lagos Road, by Buruku Forest, blocked the road with woods, stones and robbed passengers in a commercial bus of their money, and by so doing, committed the offence of Armed Robbery, punishable under section 1(a) (b) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990.

The appellant and Bright Chibuike entered not guilty pleas.

These were the facts.

There was an Armed Robbery incident on the Bukuru, Kaduna Road, on the 16th of April, 2001. The Police arrested the appellant and Bright Chibuike, and detained them as suspects at the Birnin Gwari Police Station Bukuru. The appellant made a statement at the Bukuru Police Station, but this statement was not produced in Court at trial, thereafter, the appellant and Bright Chibuike were taken to the State C.I.D Kaduna. There, the appellant made a statement, Exhibit 1, which according to the prosecution was a confessional statement. The appellant denied making and signing Exhibit 1. Three alleged victims of the Armed Robbery made statements, to the Police, but their statements were not tendered at trial and they never came to Court to give evidence.

Notwithstanding the paucity of evidence, the learned trial Judge found as a fact that, Exhibit 1 is a confessional statement and convicted the appellant on both counts, to five years on count one and death by hanging on count two. Bright Chibuike was similarly convicted. Two witnesses, Policemen attached to the Kaduna Police Station gave evidence for the prosecution.

Their evidence had to do with recording the statements of the accused persons and visiting the scene of crime. Dissatisfied with their convictions, the appellant and Bright Chibuike brought an appeal before the Court of Appeal Kaduna (hereinafter referred to as the Court below) and that Court in a unanimous judgment delivered on the 29th day of June, 2010, dismissed the appeal.

The appellant alone has come before this Court on a further appeal. In accordance with Rules of this Court, briefs of argument were filed and exchanged. The appellant’s amended brief was deemed duly filed on the 26th of May, 2011, while the respondent’s amended brief was filed on the 17th of June, 2011.

From the appellant’s grounds of appeal, two issues were distilled for determination. They are:

1. Whether having regards to the totality of the evidence adduced and the entire circumstances of this case, particularly the burden and standard of proof required in proving a criminal allegation, the lower Court was right, in affirming the decision of the trial Court; wherein the appellant was found guilty and convicted for the offence of Armed Robbery.
2. Whether the Court below complied with the requirement of the Law and thus, correctly affirmed the trial, conviction and sentence of the appellant by the trial Court; considering that it was upon a charge that was void and incompetent.

The respondent on his part formulated three issues for determination.

1. Whether the confessional statement of the appellant to the Police (Exhibit 1) was properly admitted in evidence and utilized for his trial, conviction and sentences by the trial Court (as confirmed by the Court below) notwithstanding appellant’s retraction therefrom.
2. Whether the prosecution proved against the appellant the offences with which he was charged.
3. Whether the charge upon which the appellant was tried, convicted and sentenced was defective in Law and this robbed the trial Court of its requisite jurisdiction.

The real issue or grievance of the appellant is that the trial Court was wrong to convict him on a retracted confessional statement – Exhibit 1, and the Court of Appeal was equally also wrong to confirm the sentence of the trial Court. The respondent’s issue No. 1 says it all very clearly. All other issues are not live issues. They would not be considered, since Courts are not to indulge in an academic exercise. Courts are to restrict deliberations to live issues only. See Oyeneye v. Odugbesan 1972 4SC p. 244 Nkwocha v. Gov. of Anambra State 1984 1 SCNLR p.634

This appeal would be decided only on the respondents Issue No.1.

The conviction of the appellant was based entirely upon Exhibit 1. A retracted confessional statement.

It is important, I highlight the position of the Law on confessions, voluntary and involuntary, retracted confessions.

By virtue a section 27 (1) and (2) of the Evidence Act a confessional statement is a statement by an accused person charged with an offence stating that he committed the offence. A confession cannot be used against an accused, unless the Court is satisfied that it is voluntary. Where a confessional statement is made voluntary by the accused person, such an accused usually enters a guilty plea and a conviction based entirely upon evidence of confession of the accused person would not be upset on appeal.

See R v. Sykes 1913 CAR P. 113 R V. Omokaro 1941 7 WACA P.146 Achabua v. State 1976 NSCC P.74 Yusufu V. State 1976 6SC P. 167.

A confessional Statement must be direct, positive true and unequivocal of facts that satisfy the ingredients of the offence the accused person confesses to have committed. It is only then, can it be said that the confession is voluntary. Where the accused person contends that he did not make the statement voluntarily, that is to say the statement emanated from some threat. Fear of the unexpected, proceeding from a person in authority, usually a police officer, Justice demands and the Court would direct that a trial within trial is held. The purpose is to test the truth of what the accused person is saying. A confession found by the Court to have been obtained by threat, inducement, etc, is no longer a voluntary confession and the Court would not rely on it. It would be rejected. On the other hand, if after a trial within trial, it is found that the confession was made voluntarily, it would be admitted in evidence and considered with other evidence led in the trial. See Ikpesa v. State 1981 9SC p. 17.

Retracted confessions are usually extra-judicial statements which amount to confessions which turn out to be inconsistent with testimony at the trial. The inconsistency rule deals with such situations. It is that where a witness makes an extra-judicial statement, which is inconsistent with his testimony at the trial, such testimony is to be treated as unreliable while the statement is not regarded as evidence on which the Court can act. This rule developed in the interest of justice to resolve conflict between previous statement and later evidence for the prosecution or defence. The object was to ensure that the evidence relied on by the Court is credible. The party who retracts is always afforded an opportunity, while in the witness box to explain the inconsistency. See Onubogu v. State 1974 9SC p.1.

The inconsistency rule is restricted only to the evidence of a witness, who made an extra-judicial Statement, which was in conflict with the evidence given at trial. The previous statements are not evidence, which the Court can act on, and the evidence given at the trial is taken by the Court as unreliable. See Egboghonome v. State 1993 7 NWLR pt. 306 p. 383.

The inconsistency rule does not apply to an accused person. It does not cover a case where an accused person’s extra-judicial statement is contrary to his testimony in Court. A Court can convict on the retracted confessional statement of an accused person, but before this is properly done, the trial Judge should evaluate the confession and testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person, which is different from his retracted confession and the Judge asking himself the following questions:

(a) Is there anything outside the confession to show that it is true

(b) Is it corroborated

(c) Are the relevant statements made in it of facts true as far as they can be tested

(d) Did the accused person have the opportunity of committing the offence charged

(e) Is the confession possible

(f) Is the confession consistent with other facts which have been ascertained and have been proved See.

Kanu & anor v. King 1952 14 WACA p. 30

Mbenu v. State 1988 3 NWLR pt. 84 p. 615

Stephen V. State 1986 5NWLR pt. 46 p. 978.

Though, the Court can convict only on the extra-judicial confessional statement of the accused person, but it is desirable to find some independent evidence. That is to say, it is desirable to have outside the confession some evidence, be it slight of circumstances which make it probable that the confession was true. See

Queen v. Itule 1961 2 SCNLR p. 183

Onochie & 7 Ors v. The Republic 1966 NWLR p. 307

Edhigere v. State 1996 8NWLR pt. 464 p.1

In the appellants’ brief, it was argued that the retracted confessional statement (Exhibit. 1) alleged to have been made by the appellant, which the Court relied solely on to convict the appellant was not shown to have been made voluntarily by the appellant. Reference was made to Section 28 of the Evidence Act.

Nwangbonwu v. State 1994 2 NWLR PT. 327 p. 380

Obidiozo v. State 1987 4NWLR pt. 67 p. 748.

He further argued that when as in this case the appellant retracts his confessional statement, the Court is expected to look for independent evidence to establish or prove the offence. Reference was made to

Gabriel v. State 2001 6 NWLR pt. 1190 p.323

Nsofor v. State 2004 18 NWLR pt. 905 p. 292.

Relying on section 149 (d) of the Evidence Act, learned Counsel observed that failure of the prosecution to tender the statement of the appellant made at Birnin Gwari Police station amounts to withholding vital piece of evidence, and that is fatal to the prosecution’s case. Reference was made to PW2’s testimony under cross-examination, page 36 – 37 of the Record of Appeal, where he admitted that the appellant made statement at Brinin Gwari Police Station, which was not tendered by the prosecution.

Finally, he observed that failure to tender the statement of the appellant made at Birnin Gwari Police Station, coupled with the denial of the appellant that Exhibit 1 was voluntarily made, and failure of the prosecution to call any other witness, not even the complainants are doubts that the trial Court should have resolved in favour of the appellant. Reference was made to State v. Azeez 2008 14 NWLR pt. 1108 p. 439.

He urged this Court to hold that the Courts below failed to comply with the requirement of the Law and set aside the judgment of the lower Court.

Learned Counsel for the respondent observed that it is at the point of tendering Exhibit 1, the retracted confessional statement that the appellant should object if he did not make the statement voluntarily, but since he did not object, the statement was voluntarily made and it was properly admitted in evidence as Exhibit 1, Learned Counsel observed that the appellant’s confession in Exhibit 1 was not only voluntary, but was direct and positive, contending that the retraction of Exhibit 1 is no basis for its rejection in evidence and the conviction of the appellant was in order in Law. Reliance was placed on Ikemson v. State 1989 3NWLR pt.110 p.455. He urged us to dismiss the appeal as lacking in merit.

In the judgment at first instance the learned trial Judge said:

“… In this case, nobody has come to this Court to say that he was robbed. Nobody has come to this Court to say that any of the accused person was the person, or among the person that robbed him. Nobody has come to say that any of the accused persons was armed with any firearms or offensive weapon, or that he was in company with any person so armed; and nobody has come to say that any of the accused wounded, or used personal violence to him. None of the two witnesses called by the prosecution is either a victim of the alleged armed robbery, or that he witnessed the alleged armed robbery. In fact, none of the two witnesses gave evidence that any of the accused persons armed himself with any firearms or offensive weapon and robbed anybody, or wounded or used personal violence to anybody. There is therefore, no direct oral evidence by or from the prosecution that establishes any of the essential elements of the offences of armed robbery punishable under Section 1 (2)(a) and (b) of the Robbery and firearms Act,…”

With the above, the learned trial Judge relied only on the retracted confessional statement of the appellant, Exhibit 1 to convict him and sentence him to death, Relevant extracts from Exhibit 1 runs as follows:

“On 16-4-01 at about 2200 hrs, myself, Ezu, Small, and Chibuike Bright, we left to Lagos to Kano. We joined Luxurious bus together with some passengers, with intention to commit Robbery… so when we reached to Kaduna Lagos Motor Park. Ezu and small asked us, we should stop following that Luxurious bus to Kano and go back to Lagos.

…Then on 17/4/01 at about 1830 hrs we joined open body trailer to Lagos myself and my friend Bright. When we reached inside forest before Buruku Village, the boy of that trailer collecting N400 from each passenger. But we didn’t get money to paid. So they drop us inside that bush. We decided to put Road block on Road to rob people so that we can get money to go back to Lagos. So we went inside the forest and get some big sticks and stones which we block that road….so at about 2130 hrs one small bus came, when the driver saw that Road block he stop, then we quickly came out, and rushed on them some were run inside bush and left their properties in the vehicle. And some we attacked them, but we didn’t get anything from them but we get N1,440 from one person, Then We searched the other bag where we get N400 total of that money is N1,640. So at about 2330 hrs after that operation we saw some people coming towards us. Then we run inside bush, then they follow and arrested us.”

The Court of Appeal found that Exhibit 1 was properly admitted by the trial Court, and affirmed the admission and action on the exhibit by the trial Court in these words:

“It would amount to a mere repetition of what the High Court said in its assessment of Exhibit 1 and 2 to set out all it said thereon by way of valuation and ascription of weight thereto. It suffices for me to state simply, that the High Court properly and correctly evaluated the evidence adduced before it by both the prosecution and the appellants, but particularly Exhibit 1 and 2 and came to the right decisions. With Exhibit 1 and 2 which are direct and positive and found by the High Court to have been made by the appellants taken along the circumstances of the tell tale stories given by the Appellants in their testimonies at the trial, I find no reason to disturb the finding by the High Court that the Exhibit 1 and 2 are true”.

The Court of Appeal was satisfied with Exhibit 1 and confirmed the death sentence on the appellant. I think Exhibit 1 must be examined to see if it meets the standards expected of a statement in Law.

In cross-examination PW 1 said:

“The 2nd accused voluntarily signed the Word caution in Exhibit 1 by signing his signature. He signed the same signature at the end of the statement. The S.P.O. read Exhibit 1 to 2 accused before he endorsed it and the 2nd accused also signed again. The 2nd accused signed Exhibit 1 in three Places …”

The 2nd accused is the appellant and on oath he said:

I see Exhibit 1, I did not sign if. My signature is not there. It is not the one I signed… the information in Exhibit 1 was not given by me. I don’t know anything about Exhibit 1…”

A diligent examination of Exhibit 1 reveals that the appellant signed Exhibit 1 once and that is after the cautionary words. His signature appears as: “Chukwuka Ogudo.” Nowhere else on Exhibit 1 can this signature be seen again. It is thus clear that the appellant did not sign Exhibit 1 three times as the prosecution witness would have the Court believe. When a trial Judge decides in his wisdom to sentence an accused person to death solely on a retracted confessional statement the statement must satisfy the basic fundamentals of a valid statement, to wit:

1. The cautionary words must be well written and signed.
2. The body of the statement written by the accused person or by someone usually a police officer on the accused person’s directives given a detailed confession which will show clearly that he committed the offence for which he is charged.
3. The statement must be endorsed by a superior police Officer and signed by the accused person.

Relying on an unsigned retracted confessional statement calls for extreme caution and very little or no weight should be attached to such a statement. After all an unsigned document is worthless. See section 91 of the Evidence Act.

I am firmly of the view that the Courts below were clearly in the wrong to sentence the appellant to death solely on an unsigned retracted confessional statement. If ever the need arose to find some independent evidence, outside Exhibit 1, this is the case, sadly there is no evidence other than Exhibit 1. If the law is strictly applied as it ought to in cases that carry the death penalty these facts call for caution. The adage that it is better for nine guilty persons to go free than for one innocent person to be sent to his grave holds very true to this day. I must digress a bit to examine in what circumstances Exhibit 1, was tendered and admitted in evidence, Relevant extracts from the proceedings runs as follows:

Maisamari (the prosecutor) – I seek to tender the statement in evidence.

Ugwueruchukwu (Counsel for the 2nd accused person, the appellant). – The 2nd accused said he did not sign the statement and I know that does not stop it from being admitted.

Court – The Statement accredited to the 2nd accused person dated 27/4/2001 is admitted in evidence as Exhibit 1.

My lords, the position of the Law is well settled and it is that where the accused person says that he did not voluntarily make the statement credited to him, such a stand by the accused person calls for the holding of a trial within trial. Where on the other hand, the accused person says he did not sign the statement, the statement should be admitted in evidence, thereafter, the question of what weight should be attached to such a statement becomes an issue for the Judge to decide at the end of the trial. The time to object to the voluntariness of the confessional statement is at the time of tendering the statement and not when the accused person opens his defence or during that defence. Exhibit 1 was in the circumstances properly admitted in evidence by the learned trial Judge.

The appellant made a statement at Birnin Gwari Police Station, Buruku. That was the station to which he was taken after he was arrested. That statement was never tendered in Court. The prosecution is expected to tender all the statements made by the accused person to the Police whether at the time of his arrest or subsequently. In this case, the appellant made a statement at Birnin Gwari Police station (the first station he was taken to after he was arrested. The prosecution did not tender the statement at trial. To deprive the appellant standing trial for an offence which carries the death penalty the use of his statement made to the Police to my mind renders the trial unfair.

A vital witness is a witness whose evidence is fundamental, in that it determines the case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. See State v. Nnolim 1994 5NWLR pt. 345 p. 394.

Furthermore, failure to call vital witness raises the presumption under section 149 (d) of the Evidence Act that had he been called the evidence he would have led would have been unfavourable to the prosecution.

My lords, PW2 said that in the cause of their investigation he came to know that passengers in a vehicle were robbed. He gave their names as Sani Abubakar, Iliyasu Danlema and Nnamdi Celestine who all live in Buruku. Statements were obtained from them. The prosecution failed to call any of the three victims of the robbery and also failed to tender their statements. These are vital witnesses for the prosecution and failure to call even one of these vital witnesses is fatal to the prosecution’s case.

To succeed in the offence of armed robbery the prosecution must establish that:

(a) There was a robbery;

(b) It was carried out with the use of offensive weapons; and

(c) The accused person participated in the robbery.

All of the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge.

The above ingredients were not proved in this case.

In this case the learned trial Judge believed the contents of Exhibit 1 and disbelieved the testimony of the appellant on oath wherein he gave his own version of events. It amounts to improper evaluation of evidence for a Judge to rely on his belief or disbelief. The learned trial Judge should ask himself the six questions earlier alluded to in this judgment and this includes looking for some independent evidence to corroborate or show that the confession is true. That was not obtained in this case.

Kopa v. State 1971 ANLR p. 150

Onuoha v. State 1987 4 NWLR pt. 65 p. 331.

Such independent evidence makes it probable that the contents of Exhibit 1 are true. It is wrong for the Courts below to be satisfied with the contents of Exhibit 1 without applying the six way test.

No matter how rampant, reprehensible armed robbery is in the society, Judges who sit to hear such cases should strive to be detached and seek justice with an open mind. They are to ensure that a person accused of armed robbery is given every opportunity to defend himself, and so before convicting on a retracted confessional statement such a statement must be subjected to detailed scrutiny. This is very important where the accused person says he did not sign the statement and it is found to be true. The ascription of weight and total reliance on Exhibit 1 to convict the appellant was wrong and dangerous. It is this type of case that cries out for some independent evidence to corroborate Exhibit 1. Some evidence of circumstances which make it probable that the confession was true ought to have been produced. The conviction cannot to my mind be sustained.

There were no facts to help as corroboration or independent evidence. It is desirable to have, outside Exhibit 1, the retracted confession some evidence of circumstances which make it probable that the contents of Exhibit 1 are true. Such evidence was available if and only if:

(a) The Police Officers who arrested the appellant and took his statement at Birnin Gwari, Buruku, Police Station were called.

(b) Any of the three alleged victims of the armed robbery gave evidence and their statements were tendered in Court.

Where corroborative evidence does not show beyond reasonable doubt that the accused is guilty, he should be given benefit of the doubt. In this case, there was no corroborative evidence coupled with the fact that the three supposed eye-witnesses never came to Court to give evidence and their statements were not produced. This amounts to grave doubts that should be resolved in favour of the appellant.

When the Police deliberately withholds vital evidence that can swing the case one way or the other, then there is more to it than meets the case. Some hidden agenda is at play. Withholding evidence in this case was deliberate but unfortunately for the Police with unexpected results.

In sum, this appeal is allowed. The judgment of the trial Court and the confirmation of it by the Court of Appeal are set aside and in its place, I enter an acquittal and discharge.

The appellant is acquitted and discharged.

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SC.341/2010