Federal Republic Of Nigeria Vs Gad Barminas (2017)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, JSC.

The Respondent was tried and convicted for offences of culpable homicide punishable under Section 221 of Penal Code and armed robbery punishable under Section 298 of the Penal Code. The trial was at the High Court of the Federal Capital Territory, Abuja. The two charges he was tried and convicted for are: 1. “that you GAD BARMINAS (m) adult of Nyanyan Mobil Barracks, Abuja, on or about the 25th day of May, 2005, along Airport Road, Abuja in the Abuja Judicial Division, did cause the death of one Paul Ojo (deceased) by shooting him on the chest with a rifle knowing that death was the probable and not only a likely consequence of the act and thereby committed an offence contrary to Section …of the Penal Code. 2. that you GAD BARMINAS (m) adult of Nyanyan Mobil Barracks, Abuja, on or about 25th day of May, 2005 did commit an offence to wit: Armed Robbery against one Paul Ojo (deceased) by robbing him of a Toyota Car with registration No. XA 398 RBC, belonging to one Mr. Abbas Akintayo, while armed with a rifle and thereby committed an offence punishable under Section 298 of the Penal Code”. The prosecution called only one out of the three witnesses listed in the proofs of evidence and tendered an alleged confessional statement of the Respondent, Exhibit I, to establish the guilt of the Respondent for the two offences alleged against him. The trial court convicted the Respondent for the two offences. It found inter alia at pages 49 and 50 of the Record – “from the totality of the evidence therefore adduced, there was a death of human person, Paul Ojo, driver of the vehicle robbed”. “(a) that the act of the accused, to wit shooting with a gun, an act, done with intention to kill and knowing fully that was probable consequence and not likely consequence was done by the accused”. And on the 2nd count charge, armed robbery, I found as follows- “(a) that there was robbery; (b) it was armed robbery; and (c) the accused participated and in fact conceived and executed the armed robbery”. “Coming back on Exhibit 1 again, that is the confessional statement I pose the question whether this Court can convict upon a confessional statement. It is an admission made at any time by a man charged with a crime stating or suggesting that he committed the crime – SAIDU v. THE STATE 1982 4 SC. 41; SUNDAY ONUNGWA v. THE STATE 1976 2 SC. 169 per CJN, Katsina-Alu….. In this case the statement Exhibit 1 gave graphic description of how the event leading to the killing of the deceased and subsequent taking away of the vehicle driven by the accused and off to Kaduna for sell (sic). I take it that the fact that the accused was arrested at Kaduna by the Police in the process of selling the vehicle robbed from the deceased is corroborative of Exhibit 1 which I never doubted as a confessional statement of the Accused. [Emphasis supplied by me]. Let me pause a while to highlight and comment briefly on the definition of confession, as was done by the learned trial Judge. That is, that “it is an admission made at any time by a man charged with a crime stating or suggesting that he committed the crime”. This definition is almost ipssima verba with Section 28 of the Evidence Act, 2011 which provides that “a confession is an admission made at any time by the person charged with a crime, stating or suggesting the inference that he committed that crime”. By this definition a confession is a post, and not a pre, action of the person charged with a crime. In other words, it is not expected that a man will confess to a crime that has not yet been committed. There is nothing like anticipatory or peremptory confession. That of course may go into the realm of clairvoyancing, a field of science not contemplated by Section 28 of the Evidence Act. I will come anon to this issue in this Judgment. Upon the conviction of the Respondent largely on his alleged confession, contained in Exhibit 1 the Respondent lodged his appeal against his conviction and sentence to the Court of Appeal. In its unanimous judgment delivered on 27th July, 2013, the Court of Appeal allowed the appeal of the Respondent and set aside his conviction and death sentence. The Prosecutor, the Federal Republic of Nigeria, dissatisfied with the decision of the Court of Appeal, filed the Notice of Appeal at pages 129 -131 of the Record containing two grounds of appeal, challenging the discharge and acquittal of the Respondent for the two offences of culpable homicide and armed robbery. This appeal of the prosecutor to this Court was argued by the parties on a single issue distilled from the two grounds of appeal. The sole issue is: “whether the Learned Justices of the Court of Appeal were right in discharging and acquitting the Respondent on the basis that there was no corroboration to or independent evidence supporting the confessional statement to warrant his conviction and sentence”. In Appellant’s Amended Brief, the Appellant’s Counsel submits, rightly in my view, that in criminal trials the guilt of the accused person for the commission of any offence could be established by any or all of the following three modes namely – “i) The confessional statement of the accused person; ii) Circumstantial evidence; iii) Evidence of an eye witness”. In the instant appeal the prosecution relied heavily on the confessional statement of the accused, the Respondent, contained in Exhibit 1. It was admitted in evidence through PW.1 without objection. Exhibit 1, recorded by the PW.1 was made on 10th September, 2004 and endorsed by a superior Police Officer, who signed as “SP”, on the said 10th September, 2004. The PW.I’s role was merely to record the statement of the Respondent. He was neither an eye witness nor did he take further step in the investigation than the recording of Exhibit 1. Appellant’s counsel submitted that the Evidence Act, in Section 27(2) (actually section 29(2) thereof, recognizes the relevance of confessional statement in criminal proceedings if made voluntarily. And I quickly add that, by dint of Section 29(i) of the Evidence Act, 2011, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings. In other words, the confession that is relevant and admissible in evidence against the accused person is the confession that is relevant to the offence(s) alleged against him. Appellant’s counsel has submitted that once an accused person makes a statement under caution, saying or admitting the charge or creating the impression that he committed the offence charged the statement becomes confessional. This statement of law has the support of PATRICK IKEMSON & ORS. v. THE STATE (1989) 3 NWLR (pt. 110) 455 at 476-D. The trial court convicted the Respondent for culpable homicide punishable with death and armed robbery solely on Exhibit 1, the confessional statement of the Respondent. In setting aside the conviction and sentence of the Respondent the lower court, according to Appellant’s Counsel, predicated its decision in the main on the fact that there was no evidence, outside the confession confirming that the Respondent committed the offences charged. This stance, as submitted by the Appellant’s counsel, is erroneous. He also posited, and that is the settled law, that a free and voluntary confession of guilt made by an accused person, if it is direct and positive, is sufficient to warrant his conviction without any other corroborative evidence, as long as the court is satisfied that the confession is true: JOSEPH IDOWU V. THE STATE (2000) 7 SC. 50 at 62; (2000) 12 NWLR (pt.680) 48. Counsel submitted, correctly, further that this Court in the PATRICK IKEMSON’S case (supra) had held that an accused person can be convicted solely on his confession; that where a confession is proved to be positive and an unequivocal admission of guilt such a statement is sufficient to ground a conviction without more, and that it is immaterial that the accused person later at the trial resiled from the statement: See also NKWUDA EDAMINE V. THE STATE (1996) 3 NWLR (pt.438) 530 at 537 Paras D-E. The principle of law that a confessional statement could be relied upon solely to convict an accused person is informed by the fact that the strongest evidence establishing the guilt of an accused is his own confession and personal evidence, GANIYU GBADAMOSI & ANOR. V. THE STATE (1991) 6 NWLR (pt.196) 182 – 202; KOLAWOLE v. THE STATE (2015) ALL FWLR (pt.778) 864 at 883-884. There is no evidence stronger than a person’s own admission or confession. The law on this is quite settled, as can be seen from the line of cases including: ADEDAYO V. A.G. OGUN STATE (2008) 7 NWLR (pt.1085) 201 at 221; USMAN v. THE STATE (2011) 3 NWLR (pt.1233) 1 at 11; OSENI v. THE STATE (2012) 5 NWLR (pt.1293) 351 at 387; OLANIPEKUN v. THE STATE (2016) LPELR – 40 440 SC. The Appellant made so much fuss about the fact that the Respondent, at the point the confessional statement (Exhibit 1) was admitted in evidence, raised no objection or opposition to its admissibility on grounds of involuntariness, and that he merely, during his defense subsequently, denied his authorship or making of Exhibit 1, stating that the only statement he made was torn by the PW.1, a police officer. Appellant’s Counsel, on this, submitted that where an accused person disputes a statement credited to him, but gives no other version of the statement, the court is left with only the version before it. THE STATE V. ORJI IRONSI (1969) 1 NMLR 203. When an accused person denies his making or authorship of a confessional statement, admitted in evidence without objection, the denial does not render the statement inadmissible. It is equally the law that the mere fact that evidence was admitted-without objection does not make such evidence credible. The piece of evidence admitted without objection is still liable to be assessed or examined for its probative value. The courts exercise their discretion to determine the credibility of evidence before them. They are not automated to rely or act on every piece of evidence, including the evidence rendered inadmissible by operation of law. See KALE V. COKER (1982) 2 SC (Reprint) 118 at 120. Exhibit 1, subsequently retracted, was admitted without objection. The trial court still had the discretion to determine its credibility notwithstanding that it was admitted without objection. What should engage the mind of the court, in the circumstance, is the weight to be attached to the statement before the court: OWIE V. THE STATE (1985) 4 SC. 1; OBIDIOZOR v. THE STATE (1987) 4 NWLR (pt.67) 48; MADJEMU v. THE STATE (2011) 5 SCNJ 31; OGUDO v. THE STATE (2011) 12 SC. (pt.1) 71. The most recent authority on this coming from this Court is OLANIPEKUN v. THE STATE (2016) (supra). The mere denial by the Respondent that he made Exhibit 1, or his plea of non est factum as regards Exhibit 1, does not render the extra-judicial statement inadmissible: ALARAPE V. THE STATE (2001) 14 WRN 1 at 20; KAREEM v. THE STATE (2001) 14 WRN 97 at 111; OLANIPEKUN v. THE STATE (supra). It also did not make Exhibit 1 pro tanto incredible or credible, unreliable or reliable. The weight to be attached to a retracted confession is entirely a different matter calling for the court to act judiciously and judicially. The indisputable fact is that at the trial, the Respondent denied his authorship of Exhibit 1. The lower court did not lose sight of that fact. It stated in its judgment that in order to rely on the statement to sustain conviction, the court must be “satisfied with its truth”; relying on SOLALA V. THE STATE (2005) 11 NWLR (pt.937) 460. In such circumstance there must be some proper evaluation of the available evidence, as stated in UBIERHO V. THE STATE (2005) 5 NWLR (pt.919) 644. That is, in assessing the quality of a confessional statement, whether retracted or not, is to ask the following salient questions: – “1. whether there is anything outside the confession which shows that it may be true; 2. whether the confession is in fact corroborated 3. whether the relevant statement of fact made in it are most likely true as far as can be stated; whether the accused had the opportunity of committing the offence; 4. whether the confession is possible; 5. whether the confession is consistent with other facts that have been ascertained and established”. These tests have been with us for some time now. It is all about embarking on proper evaluation of the available facts in order to determine whether or not the retracted confession was in fact made. In LAWAL v. THE STATE (2016) LPELR – 40633 SC, Kekere-Ekun, JSC, stated that in order to determine if the statement was made voluntarily, the court will consider other evidence outside the confession that would make it probable that the confession is true. See also ITULE V. THE QUEEN (1961) 2 SCNLR 183; AKPAN v. THE STATE (1992) 6 NWLR (pt.248) 439; ALARAPE v. THE STATE (2001) (supra). The locus classicus on proper evaluation is MOGAJI & ORS. v. ODOFIN & ORS. (1978) 4 SC. (Reprint) 53 at 63 where this court stated that before a Judge before whom evidence has been adduced by the parties comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first, in discharge of his judicial function, put the totality of the evidence of the parties on that imaginary scale in order to determine the value of one set of evidence against the other. Of course, in determining the relative probative value of the two sets of evidence, as there are in this case, where the Appellant posits that the Respondent made the disputed confession in Exhibit 1 and the Respondent denies his authorship of Exhibit 1, the court should undertake proper evaluation of the totality of the evidence by resort to use of “the imaginary scale” having regard to the following – “i whether the evidence is admissible; ii. whether it is credible; iii. whether it is conclusive; and iv. whether it is more probable than that given by the other party”. I quite appreciate that this test of “imaginary scale” developed in MOGAJI V. ODOFIN (supra) was pronounced for use in civil cases. It can however be used in appropriate cases in criminal proceedings when the issue is only on the credibility or the weight to be attached to a piece of evidence where there are other competing evidence asserting the contrary. It is all about how the trial Judge exercises his discretion to believe or disbelieve one set of evidence where there is another competing set. I have had a critical look at Exhibit 1. It was purportedly made on 10th September, 2004, about eight (8) and a half months before the two offences were allegedly committed on 25th May, 2005, between the Games Village and Lugbe in the Federal Capital Territory, Abuja. It sounds, to me, preposterous that the Respondent, the accused person, confessed to the two offences about 257 days before they were actually committed. Exhibit 1, a confession allegedly made on 10th September, 2004 cannot be relevant to any offences not committed before the said date, particularly the offences allegedly committed about 8 eight and a half months after the “confession”. Section 29(1) of the Evidence Act, 2011 is quite clear on what it provides, to wit: in any proceeding, a confession made by the defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings. Exhibit 1, clearly not relevant to the issues in the two charges, the offences therein which allegedly were committed on 25th May, 2005, cannot be a credible evidence on which to predicate the conviction of the Respondent. This absurdity therefore lends credence to the evidence of the Respondent at pages 41 and 42 of the Record that Exhibit 1 was not the statement he made and that the statement he made voluntarily was torn by the investigating Police Officer (IPO). Here again, the accused person is entitled to the benefit of doubt in criminal proceedings. I had another look at Exhibit 1, viz-a-viz the second charge that alleges robbery of a Toyota car No. XA 398 RBC. In Exhibit 1, contrary to the said charge, the car, the alleged confessor took to Kaduna to be sold is a Toyota Corolla car No. AS 398 RBC. The PW.1 also alluded to Toyota Corolla No. XA 398 RBC. The contradictions between the charge No. 2, on one hand, and Exhibit 1 and the PW.1 on the other hand, as to the car stolen is material and no evidence has been offered to explain away these material contradictions. The law is settled that every material averment in the charge must be proved: See CUSTOMS V. ABUBAKAR I LRN 380 at 312. Since by virtue of Section 36(5) of the 1999 Constitution, as amended, the defendant in a criminal proceeding is presumed innocent until his guilt is proved, the duty is on the prosecution to prove the charge against the accused beyond reasonable doubt. See WILLIAMS v. THE STATE (1992) NWLR (pt.261) 515. There being now a reasonable doubt as to the car stolen such doubt ought to have been resolved in favour of the Respondent, the accused person, and it is hereby resolved in his favour. There is no evidence outside Exhibit 1 on which to ground the conviction of the Respondent for robbery or any other offence charged. No such evidence exists also to corroborate Exhibit 1. All the authorities on conviction of the accused person on his own confession insist that the confession is relevant and admissible, if it is direct and positive, and it relates to the accused person’s own acts, knowledge or intention thereby stating or suggesting the inference that he committed the offence charged. See for instance, AKPAN V. THE STATE (supra). In addition, the confession must be true, credible and reliable. See JOSEPH IDOWU V. THE STATE (2000) 7 SC 50 at 60; (2000) 12 NWLR (pt.680) at 48; UBIERHO V. THE STATE (supra) MADJEMU v. THE STATE (supra). Only recently this Court in LAWAL V. THE STATE (2016) (supra) restated the law on this point when it held that a free and voluntary confession of guilt by an accused person if it is direct, positive and satisfactorily proved, is sufficient, without corroboration, to warrant a conviction, as there is no stronger evidence than a man’s own confession. See also EKPEYONG V. THE STATE (1991) 6 NWLR (pt.2O0) 683; ADIO v. THE STATE (1986) 2 NWLR (pt.24) 581; STATE v. SALAWU (2011) 18 NWLR (pt. 279) 883 at 920. I do not need to say any more on this. As I had just demonstrated Exhibit 1, the alleged confession of the Respondent dated 10th September, 2004 is unreliable and completely irrelevant to the two offences of culpable homicide and armed robbery committed on 25th May, 2005. I cannot, therefore, fault the acquittal of the Respondent for the two offences as ordered by the court below. The evidence available to the trial court cannot sustain the conviction and sentence of the Respondent for the offence of culpable homicide punishable with death under Section 221 of the Penal Code. The ingredients the prosecution is obligated to establish, in order to sustain conviction for that offence, include the proof that – “(a) the death of a human person had actually taken place; (b) such death was caused by or was a result of the act of the accused person, and (c) the accused person did the act with intention of causing the death of the deceased or causing him grievous bodily hurt”. See SULE v. THE STATE (2009) 17 NWLR (pt.1169) 33 at 53, commended to us by the Respondent’s Counsel. Now, the question: which evidence proved or established the cause of death of Paul Ojo (deceased), as alleged by the 1st charge? The unreliable Exhibit 1 merely states inter alia – “We stop a vehicle and we entered. It was a Toyota Corolla red in colour. We move from the place and after a mile heading to Lugbe, we asked the driver to stop and hand over the key or we will kill (him). The driver held my rifle and started struggling with him and we all came out (of) the vehicle and fell down. I was on top of him and I open fire and shot him. From there we entered the vehicle and my second drove off”. There is no where in Exhibit 1 it was stated that any person (including the deceased) was shot on the chest and he died as a result. Exhibit 1 does not state who was shot. The learned trial Judge clearly had taken into consideration some extraneous facts when he found “as facts that, on the 1st count charge, there was a death of a human person, Paul Ojo, driver of the vehicle robbed” and that “Exhibit 1 gave graphic description – of the killing of the deceased”. These findings of facts are perverse. In ATOLAGBE v. SHORUN (1985) NWLR (pt.2) 30, Oputa, JSC. Stated that the word “perverse simply means persistent in error, different from what is reasonable or required, against the weight of evidence”; and held that “a decision may be perverse where the trial Judge took into account matters which he ought not to have taken into account or where the Judge shut his eyes to the obvious”. In OSUJI v. EKEOCHA (2009) 16 NWLR (pt.1166) 8l; IROLO & ORS. v. UKA & ANOR. (2002) 14 NWLR (pt.786) 195 and other decisions this Court maintains that -A decision is said to be perverse, “(a) when it runs counter to the evidence; or (b) where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut the eyes to the obvious; or (c) when it has occasioned a miscarriage of justice”, A perverse finding of fact cannot in law sustain any judgment. See JOLAYEMI V. ALAOYE (2004) 18 NSCQR 682; (2004) 12 NWLR (pt. 887) 322. All I have been labouring to say, My Lords, is that it was “most unsafe in this case to convict” the Respondent for the two offences charged, as the trial court did. I agree entirely with the Court of Appeal. Accordingly, I hereby completely align myself with this conclusion the Court of Appeal reached at page 125 of the Records and its orders setting aside the conviction and sentence of the Respondent for the offences of culpable homicide punishable with death and armed robbery and in their place ordering the discharge and acquittal of the Respondent for those offences. The Appellant, as the prosecutor, did not prove the ingredients of the said offences of culpable homicide and armed robbery. The Appellant failed to prove the guilt of the Respondent beyond reasonable doubt as required by law. Consequently, the appeal is hereby dismissed. The decision of the Court of Appeal contained in its judgment delivered on 27th June, 2013 in appeal No. CA/A/493c/2011 is hereby affirmed. EJEMBI EKO, JUSTICE, SUPREME COURT. I read before now the judgement just delivered by my Learned brother, Eko JSC. I believe that there is more to this case than really meets the eye. I find it inexplicably difficult to believe that Inspector Likita Boka who recorded Exhibit 1 on 10/9/2004 gave evidence that he recorded the statement on 9/10/2007 which was 2 years 11 months before the alleged commission of the crime. The prosecutor did not fare better to notice the discrepancy in the dates and take steps to rectify it. Furthermore after calling PW1, the prosecution abandoned the case. The plea of the accused was taken on 27/9/2005 and ruling delivered on 18/1/2006. It was not until 7/3/2007 that Inspector Likita Boka testified and tendered exhibit 1 and during his testimony he stated that it was in the course of his duty 3t the State CID FCT Command Abuja on 9/10/2007 that he recorded the statement of the accused and when he found it to be a confessional statement he took the accused and the statement before the Superior officer who endorsed the statement after reading same to the accused. After waiting for the prosecution to bring other witnesses and none was forthcoming the trial Judge ordered the case closed on 15/4/2008. The defense was overruled on a no case submission. The accused entered his defense and was cross-examined. In his evidence PW1 stated that the registration no. of the red Toyota Corolla was XA398 RBC but in exhibit 1 the vehicle registration no. was AS398 RBC. Both the IPO and the Prosecution were tardy in their work and any conviction obtained must be upturned on appeal. It is little surprise that the Court of Appeal allowed the appeal. There is no merit in this appeal and it is accordingly dismissed.

SC. 360/2013