Ogunsanya Oluwaseyi V. The State (2016)
LawGlobal-Hub Lead Judgment Report
HARUNA SIMON TSAMMANI, J.C.A.
This is an appeal against the judgment of the Ogun State High Court, delivered by A. O. Jibodu, J on the 30th day of June, 2011.
Before the Ogun State High Court, the Appellant and two others, namely; Haruna Rafiu and Ganiyu Rafiu were charged with the commission of the offences of Robbery contrary to Section 1(1) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation, 2004 and Receiving stolen Goods contrary to Section 5 of the Robbery and Firearms Act (supra). While Haruna Rafiu was charged alone with the commission of robbery, Ganiyu Rafiu and the Appellant were with the offences of receiving stolen goods.
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The case against the Appellant is that, on the 17th day of January, 2007, the complainant, one Aminat Olufade (Pw1) took a commercial motorcycte to take her home after closing from her place of business at about 7.30p.m. That around Printing Corporation in Abeokuta, as the motorcycle slowed down, another motorcycle suddenly emerged beside her and the rider of that motorcycle forcefully snatched her bag and sped away. According to the complainant,
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she started shouting for help and asked the motorcycle rider that took her to ride fast after the other motorcycle; but they lost him. According to the complainant (PW1), because of the conduct of the motorcycle rider that took her, she suspected his complicity in the whole incident, and therefore sought the help of policemen attached to the Central Bank of Nigeria, who then immediately arrested him.
According to the complainant (PW1) about two weeks later, MTN gave her an itemized bill which contained the list of all calls, duration of such calls and the numbers called. That, upon checking the list’ she discovered that 15 minutes after the incident, calls were made from her phone stolen from her, and that, a call to one of the numbers went through and was picked by a lady. That she then fixed an appointment with the lady, and also reported to the police who assigned a police-woman to accompany her. The lady was arrested. The lady then told her that it was one Seyi (Appellant) who called her with the complainant’s phone. The Appellant was then arrested. The complainant also testified that, her bag which was snatched contained some MTN, GLO, V-Mobile lines
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as well as recharge cards for MTN, GLo, MTS, Multilinks and v-Mobile. That it also contained some phones such as Nokia 1100, Sagem MYX2, Federal Polytechnic Ilaro Student Identity Card and National Identity card including a bunch of keys.
The Appellant denied the charge. At the trial, the prosecution called three witnesses who testified as the PW1, PW2 and PW3 respectively. The prosecution also tendered the extra-judicial statements of the Appellant in evidence and the MTN itemized Bill, and were admitted as Exhibits P, P1, P10 and P11 respectively. The Appellant testified in his defence. At the close of evidence, counsel addressed the Court and in a considered judgment delivered on the 30th day of June, 20th the learned trial Judge convicted the Appellant of the offence of receiving stolen goods contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act (supra), and proceeded to sentence him to 21 years imprisonment. The Appellant is aggrieved by his conviction and has therefore appealed to this Court.
The Notice of Appeal which is contained at pages 104-106 of the Record of Appeal consists of three grounds as follows:
1. The
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learned trial Judge erred in law when in finding the 2nd Appellant guilty of the offence charged, he held as follows:
“Again having tested the truth of the confessional statement of the 3rd accused in the light of other ascertained facts which have been proved, I am satisfied and convinced that the same i.e, Exhibit 11 is true.?
PARTICULARS
The said confessional statement of the 2nd Appellant (Exhibit P11) did not meet or satisfy the conditions laid down in R. v. Sykes (1913) C.A.R. 233 and approved by the Supreme Court in Jona Dawa. & Anor v. The State (1980) 8-10 S.C. 236 at 267.
(b) There were no other credible pieces of evidence to corroborate the said confessional statement of the 2nd Appellant.
(c) The said confessional statement was retracted during the trial.
2. The learned trial Judge erred in law when he held as follows:
?I hold that it can be inferred from the circumstances surrounding the receipt and possession of the stolen properties by the 3rd accused that he knew that the properties were stolen.”
PARTICULARS
(a) The ingridients of receiving stolen goods were not proved to the
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satisfaction of the trial Court by the prosecution.
(b) The learned trial Judge in the absence of direct evidence relied on circumstantial evidence to infer the guilt of the 2nd Appellant which fell far below the standard required in coming to the conclusion.
3. That the decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence.
In compliance with the Rules of this Court, the Appellant filed and served an Appellant’s Brief of Arguments. It was dated the 06/1/2014 and filed the 08/1/2014. Therein, two issues were distilled for determination as follows:
1. Whether the learned trial Judge was right in finding the Appellant guilty of the offence of receiving stolen goods when his supposed confessional statement did not meet or satisfy the conditions laid down in R. v. Sykes and approved by the Supreme Court in Jona Dawa v. The State? (Ground One)
2. Whether the learned trial Judge was justified in holding that from the circumstances surrounding the receipt and possession of the stolen properties by the Appellant that he knew that the properties were stolen?
(Ground Two)
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The
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Respondent did not file any Brief of Argument. Consequently, the Appellant by a motion on Notice dated the 3rd day of December, 2014 and filed the 8th day of December, 2014 moved this Court to set down the appeal for hearing on the Appellant’s Brief alone, since the Respondent had failed to file a Brief of Argument. This appeal was therefore heard on the Appellant’s Brief of Arguments only pursuant to Order 18 Rule 9 (4) of the Court of Appeal Rules, 2011. The two issues formulated by the Appellant were argued together by the Appellant. This appeal will therefore be determined in the manner it was argued by the Appellant.
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Now, in arguing the appeal, learned counsel for the Appellant referred to the provisions of the Robbery and Firearms Act (supra) to contend that, for the prosecution to secure a conviction for the offence of receiving stolen property, there must first of all be evidence that the property in question is stolen property. In other words, the prosecution must also prove that the accused person knew at the time of receiving the property, that it was stolen. The case of Aiyeola v. The State (1969) 1 All N.L.R. p.309 was cited in support. It
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was therefore submitted that the burden was on the Respondent to prove the offence of receiving stolen goods against the Appellant as charged beyond reasonable doubt, and that where there is any doubt, it must be resolved in favour of the accused person. The cases of Onafowokan v. The State (1987) 3 NWLR (Pt.61) p.538; Kalu v. The State (1988) 4 NWLR (pt.90) p.503 and Ikemson v. The State (1989) 3 NWLR (Pt.110) p.455 were cited in support and to further submit that, where the prosecution fail to discharge that burden, it will lead to the discharge and acquittal of the accused person.
Learned counsel for the Appellant went on to submit that, the confessional statements (Exhibits P10 and P11) relied on by learned trial Judge to convict the Appellant, did not meet the conditions laid down in R v. Sykes and approved by the Supreme Court in Jona Dawa v. The State, as there are no other credible pieces of evidence before the Court to corroborate the said statement. Learned counsel conceded that, where confessional statement is proved to have been voluntarily made, and is positive and unequivocal as to amount to admission of guilt, it will suffice to sustain a
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finding of guilt without the need to find any corroborative evidence. The cases of Onah v. State (1985) 3 NWLR (Pt.12) p.236; Egbeyom v. State (2000) 4 NWLR (pt.654) p.559 and Liya v. State (1998) 2 NWLR (Pt.538) p. 397 were cited in support.
Learned counsel for the Appellant then examined the guiding principles of confessional statements as judicially stated in the cases of Ukut v. State (1995) 9 NWLR (Pt.420) p.392; Onah v. State (supra), Egbeyom v. State (supra) and Liya v. State (supra) in line with the statements of Appellant (Exhibit P10 and P11). It was then submitted that, the value of the stolen goods which are stated in the charge to be recharge cards and Sagem handset was never stated in the Particulars of the offence. That none of the prosecution witnesses, including the PW1 (person whose goods were said to have been stolen), gave evidence of the value of the goods allegedly received by the Appellant. Furthermore, that PW2 told the Court that the Appellant denied receiving any property stolen, and that he did not recover any item allegedly stolen from the Appellant. That the PW3 stated that, the complainant (PW1) provided the receipt of the
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two (2) telephones allegedly stolen, but could not remember the exact value of the phones nor were the receipts tendered in evidence. That, under cross-examination, the PW3 told the Court that, he could not remember how much the Appellant bought the Sagem phone from the 1st Accused, and that though the Appellant admitted buying some recharge cards from the 1st accused, the PW3 could not remember the value of the cards. It was further submitted that, it was the 1st accused who attempted to give a value to the stolen Nokia 1100 but not the Sagem handset allegedly received by the Appellant.
It was further submitted by learned counsel for the Appellant that, the Appellant, in his testimony in Court, told the Court that, he bought cards worth N90.00 for N80.00 and other cards worth N180.00 he bought for N170.00. That the cards were GLO V. Mobil and MTN. That the Appellant told the Court that, he bought cards worth the total sum of N3,800.00 from the 1st Accused, out of which he paid N3,600.00 with a promise to pay the balance of N200.00 at a later date. Furthermore, that the Appellant denied buying any Sagem MYX2 from the 1st Accused. It was therefore
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submitted by learned counsel for the Appellant that, from the totality of the evidence adduced at the trail, from both the prosecution and the defence, that there is no iota of evidence led by the prosecution upon which the trial Court could base the conviction and sentence meted on the Appellant. That aside the alleged confessional statements of the Appellant (Exhibits P10 and P11), there are no other co-existing circumstances on which to infer the guilt of the Appellant. That, in any case, there is uncontroverted evidence that the Appellant repairs phones and that the 1st Accused brought a lady to his shop who sold some phones to him because she wanted to further her education; and also that he sells recharge cards. That such fact was confirmed by PW2 under cross-examination. It was then submitted that, the entire evidence before the trial Court is not sufficient or capable of proving the offence for which the Appellant was charged beyond reasonable doubt. That, the evidence did not sufficiently prove on the standard required by law, that the Appellant knew, at the time he bought the recharge cards and Sagem handset, that he was buying stolen goods from the
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1st Accused.
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Learned counsel for the Appellant then went on to submit that, for the prosecution to succeed in securing a conviction in a charge of receiving stolen goods, it must lead evidence to prove beyond reasonable doubt that; (a) the property was stolen or capable of being stolen; (b) that the Appellant received same; and (c) that he knew at the time of receiving it that the property was stolen. That, to prove ingredient (c), the prosecution must prove that the sale was made in circumstances, as to time, place of sale and the price paid therefore, as to warrant the inference that he knew that he was buying stolen property. The cases of Nnolim v. State (1993) 3 NWLR (Pt.283) p.569; Ekpo v. The State (2003) 17 NWLR (Pt.849) p.392 and Okoroji v. State (2002) 5 NWLR (Pt.759) p.21 were relied upon. Learned counsel further cited the finding of the learned trial Judge at pages 97-98 of the Records, to submit that, such conclusion as arrived at by the learned trial Judge, that the Appellant bought the goods on credit or at a price lower than their actual worth is not supported by any evidence, and therefore speculative. The cases of Onah v. State (supra);
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Abieke v. State (1975) 9-11 S.C. p.97 and Ubochi v. State (1993) 8 NWLR (pt.314) p.697 were then relied upon to contend that, the Appellant never bought the goods on credit as erroneously arrived at by the learned trial Judge.
In conclusion, learned counsel for the Appellant submitted that, the fact that the Appellant did not fully pay for the goods was not enough reason for the trial Court to infer guilty knowledge, in the absence of cogent and compelling evidence attesting to that fact. The case of Udoh v. State (1994) 2 NWLR (pt. 329) p. 666 was then cited to urge us to re-evaluate the evidence on record, the learned trial Judge having failed to properly evaluate same, That on the entire evidence adduced at the trial, the learned trial Judge erred when he held that the Appellant knew that the properties were stolen. We were also urged to find that, had the learned trial Judge properly appraised and evaluated the evidence before him as required by law, he would have come to a different conclusion.
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Now, the law which is now settled is that, the burden of proof in a criminal trial rests squarely on the prosecution. This burden the prosecution must
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discharge by calling concrete, cogent and credible evidence to prove beyond reasonable doubt that the accused person has committed the offence charged. In order to succeed, the evidence adduced must establish every ingridient of the offence charged. Thus in the case of Cyril Areh v. C.O.P. (1959) W.R.N.L.R, 230 at 231 cited at page 325 of the Law and Practice Relating to Evidence in Nigeria (2nd Ed.) by T. Akinola Aguda, Kester, Ag. J (as he then was) held that:
“It is a principle of law that the burden of proof lies upon the party who substantially asserts the affirmative of the issue and generally in criminal cases (unless otherwise directed by statute) the presumption of innocence casts upon the prosecution the burden of proving the offence.?
This is in view of Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which guarantees that every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. By that Constitutional provision therefore, a burden has been cast on the prosecution to proof the guilt of an accused person. That burden is constant and never
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shift, unless in a situation where the law has cast on an accused person the burden of proving particular facts. See Ogundiyan v. State (1991) 3 NWLR (Pt.181) p.519 Omoregie v. State (2008) 12 SC (pt.III) p.80; Nwankwoala v. State (2006) 14 NWLR (pt.1000) p.663 and Abdullahi v. State (2008) 17 NWLR (Pt.1115) p.203.
The standard to be discharged is that beyond reasonable doubt. Proof beyond reasonable doubt does not however mean proof beyond all shadow of doubt. The doubts that the law recognizes are doubts that are reasonable and not any sort of doubt, which the judge who heard the witnesses testify in the case can explain away as not affecting his judicial mind in arriving at a decision whether to convict or not. Thus, in Afolalu v. State (2010) 16 NWLR (Pt.1220) p. 584 My Lord, I. T. Muhamad, JSC observed as follows:
“I think it is always helpful, anytime there is an allegation of lack of “proof beyond reasonable doubt” in a criminal trial, to remember the long established principle of criminal law that “proof beyond reasonable doubt, is not proof beyond shadow of doubt. It is not therefore, a proof beyond all possible or imaginary doubt that it is such
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proof as precludes every reasonable hypothesis except that which it tends to support. It is proof to moral certainty, such proof as satisfies the judgment and conscience of the judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been commited by the defendant and so satisfies him as to leave no other reasonable conclusion possible. It therefore imposes a duty on the prosecution to prove the main ingredient of the offence charged against the accused person to the satisfaction of the trial judge.”
Now, in the instant case, the Appellant was charged, tried and convicted for having received stolen goods contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004. He was alleged to have received some recharge cards and Sagem handset the property of one Miss Aminat Olufade, and that same were obtained by means of robbery, Section 5 of the Robbery and Firearms Act (supra) stipulates that:
“5. Any person who receives anything which has been obtained by means of any act constituting an offence under this Act shall be guilty of an offence under this Act and shall be liable upon conviction to sentenced to imprisonment for life”.
The
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Robbery and Firearms Act (supra) does not define what receiving stolen property or goods mean in law. In the circumstances, I propose to have recourse to judicial authorities on the point. Thus, the Supreme Court and this Court have determined that, for the prosecution to proof the offence of receiving stolen goods beyond reasonable doubt, the following ingridients or elements must be established:
(a) That the property was in fact stolen; or the proceeds of a robbery as in the case at hand;
(b) That the accused or appellant received or was found in possession of the property or goods; and
(c) That the accused or appellant received or was in possession of the property with the guilty knowledge at the time of receiving it, that the property was stolen or the proceeds of a robbery.
All the above stated ingredients must co-exist and be proved beyond reasonable doubt before the Court can convict. Where any of those elements is found not to have been established on the standard required by law, it would mean that the offence has not been proved, and the accused would be entitled to an acquittal. This is because, the prosecution has the legal
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and evidential burden in a criminal trial to adduce cogent and credible evidence that will prove every ingredient beyond reasonable doubt. See Section 135 (1) and (2) of the Evidence Act, 2011. See also, Ndukwe v. The State (2009) 7 NWLR (Pt.1139) p.43; Sunday Ani v. The State (2009) 16 NWLR (Pt.1168) p.443; The State v. Danjuma (1997) 5 NWLR (Pt.506) p.512 and Nkebisi v. State (2010) 5 NWLR (Pt.1188) p.471. For the elements to be proved in a charge of receiving stolen property, see Yongo v. C.O.P. (1992) NWLR (Pt.257) p.36; The State v. Joseph Nnolim (1994) 5 NWLR (Pt.345) p.394; Obinah John v. The State (2013) LPELR ? 22197 (CA) and Emmanuel Zacchaeus v. People of Lagos State (2015) LPELR ? 24531 (CA).
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I have carefully read the Notice and Grounds of Appeal, and the issues canvassed by the Appellant upon reading the processes stated above that, the Appellant’s complaint is against the finding of the learned trial Judge that, the Appellant knew that the properties were stolen. It therefore means that, the Appellant does not contest the finding of the learned trial Judge that the properties were the proceeds of a robbery and that the Appellant
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was infact found in possession or received the properties. Those two ingridients are therefore deemed proved. The issue to be resolved now, is whether the Appellant received the Sagem handset and the recharge cards with the required guilty knowledge. In the determination of the issue, the learned trial Judge found and held at pages 99 line 11-100 line 15 of the Record of Appeal as follows:
“Now, on the 3rd ingredient of guilty knowledge, the Court of Appeal in Bassey Asuquo Ekpo v. The State (2003) 17 NWLR (Pt.849) 392 at 394 held the following to be the facts from which inference of guilty knowledge can be drawn to include:
(a) The manner of receipt or delivery of the good allegedly stolen;
(b) The time of delivery
(c) The price paid for the property or goods; and
(d) The selling and delivery environment.
There is abundant evidence that the 1st accused is not a dealer or seller of telephone or recharge cards by profession. The 1st accused testified about himself as being a farmer and an ‘Okada, rider. The 3rd accused under cross-examination said he knows the 1st accused as an ‘Okada man’. Okada, in the Nigerian parlance means
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motorcycle. The Court is aware of this 1st accused is therefore a commercial motorcycle rider. The fact that as an ?Okadaman’, and not being a dealer in telephones, he brought telephones and telephone recharge cards to the 3rd accused should have aroused the suspicion of the 3rd accused. The fact that he agreed to sell the cards at lower prices after bringing them to the home of the 3rd accused also constitutes an inference of guilty knowledge on the part of the 3rd accused. I hold that it can be inferred from the circumstances surrounding the receipt and possession of the stolen properties by the 3rd accused that he knew that the properties were stolen. Thus the 3 ingridients of receiving as alleged against the 3rd accused in the 3rd – count have been proved to the satisfaction of this Court and I so hold. The prosecution has proved count 3 beyond reasonable doubt. In reaching this accused, in spite of my earlier conclusion that the prosecution has not proved the same offence with which the 2nd accused is charged in count 2, I am convinced that the facts and evidence placed before the Court on the two different accused persons are different.”
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Aside
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the reasons given by the learned trial Judge, as reproduced above in finding the Appellant guilty of receiving stolen goods, it is clear on the record of appeal, that the learned trial Judge placed reliance on the “confessional statement” of the Appellant which are in evidence as Exhibits P10 and P11. I say so because, in the resolution of the issues canvassed by counsel at the trial, the learned trial Judge had held at page 86 lines 9-18 of the Records as follows:
“In discharging this onus of proof beyond reasonable doubt? as described above, the prosecution among others, tendered confessional statements of all three accused persons…. Exhibit P11 is the confessional statement of the 3rd accused person made at the state C.I.D.”
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The learned trial Judge then correctly stated the position of the law with respect to, the evidential or probative value of a confessional statement of an accused person in a criminal trial. He cited the cases of Idowu v. State (2000) 7 SC (Pt.11) 50; Alarape v. State (2001) 14 W.R.N.L; Okeke v. State (2003) 15 NWLR (Pt.842) 25, etc, to rightly state that:
“It is settled law by a long line of cases that a free,
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voluntary, direct and positive confession is sufficient by itself, without corroboration, to warrant the conviction of an accused provided always that the Court is satisfied of the truth of the confession….. The trial Court before acting on a confessional statement is duty bound to embark on the prudent course of testing the truth of the confessional statement in the light of other pieces of evidence adduced….”
The tests to be applied in examining the truth of a confessional statement as laid down in the English case of R v. Sykes (1913) 8 Cr. App. R. p.233 and approved by the Supreme Court in Shazah v. State were clearly stated at page 88 of the records. In applying those tests to the statement of the Appellant (Exhibit P11), the learned trial Judge held at page 97 lines 7-10 as follows:
“What the Court must do now is to ascertain the truth of the confessional statement of the 3rd accused (i.e. Exhibit p.11) by considering other evidence which implicate this accused and which is consistent with his confession in such a way and manner as to be convinced of the truth thereof.?
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I wish to point out here that, the statement of the learned
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trial Judge reproduced above is built on a faulty premise. The purpose of applying the tests as laid down in the case of R v. Sykes (supra) and approved by the Supreme Court in Shazah v. State (supra) is not to search for evidence that implicates the accused. The purpose of that test is to determine the truth of the facts stated in the confession, so as to enable the trial Court determine the probative value of the statement which the prosecution allege to be confessional. That is by the way. Having said that I find it necessary here to say that, the “other facts or evidence” which the learned trial Judge considered at page 97 lines 11-98 line 9 proved the fact that the properties allegedly received by the Appellant were infact received by him or at least found in his possession. As stated earlier in the course of this judgment, there is no appeal against those findings. What concerns us now, and which is the crux of the Appellant’s complaint by this appeal, is whether the Appellant had confessed by Exhibit P11, to receiving the properties, with the knowledge that they were stolen or the proceeds of a robbery as charged. I also wish to note that Exhibit p11
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was tendered and admitted without objection. It is an additional statement to Exhibit P10. To appreciate the decision of the learned trial Judge, I find it useful to reproduce the said additional statement (Exhibit P11). It states that:
“In addition to my formal (sic) statement which I earlier made to the police I wish to state that on 17th January, 2007 at about 8.30p.m. I was at home when Haruna Rafiu a.k.a Paso call me on G.S.M. that where I am and I told him that I am home after 15 minutes Paso came with recharge cards M.T.N, GLO and Celtel recharge cards and ask me to buy with Sagem MYX2 handset with which I accepted and bought them from Haruna Rafiu a.k.a. Paso N20,000 and the Sagem Myx2 for N2,000.00. Paso told me the recharge cards worth N35,000 but I told him that I will pay only N20,000, the Sagem Myx2 is in my shop while the recharge card is one of my friend call student who I did not know his actual name he use to stay at Sapon but I did not know his house. I ask him to help me to sell it after three days I cannot remember the date now. Student is one of the Sapon boys student has run away because I was arrested.?
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As I stated
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earlier, the Appellant who testified at the trial as DW3, gave a completely different story. On that, the learned trial Judge observed at page 100 lines 15-101 line 2 as follows:
?Before I conclude, let me say something about the attempt made by the 3rd accused to resile from his confessional statement made at the state C.I.D, Eleweran, when (as DW3 testifying in chief he said he was threatened and slapped by the police. Exhibit Pl1 was tendered without any objection from Defence counsel, and it was admitted. It is settled that the proper time for taking objection to the admissibility of a confessional statement is at the time it was being tendered and not later. See Nwachukwu v. State (2001) 7 S.C.1, It is also settled that once a confessional statement is admitted in evidence, it becomes part of the case of the prosecution, the probative value of which the trial Judge is bound to consider. See again Nwachukwu v. State (supra). I hold that the attempts of the 3rd accused to resile from his confession as aforesaid is of no moment.?
The findings and conclusion of the learned trial Judge above is the correct position of the law. Let me
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support that position by affirming that, the law, which is now settled is that, a confessional statement which has been tested and proved to have been voluntarily made, is a relevant fact against the accused person who made it. If found to be direct and positive, it will be sufficient to ground a conviction. The fact that the accused person retracts or resiles from such statement, will not render such statement inadmissible. Accordingly, where the accused wishes to rely on such denial as his defence or part of his defence, he has to explain the inconsistency between his confessional statement which has been duly proved and admitted and his testimony before the Court. See Onwumere v. The State (1991) 4 NWLR (Pt.186) p. 428 at 444, wherein Akpata JSC held that:
“If the accused person resiles from his confessional statement, it is his function to explain to the Court as part of his defence the reason for the inconsistency. In such circumstances, if he is to be believed, the accused has to lead evidence to establish that his confessional statement could not be correct. It may be that he was not correctly recorded or that in fact he did not make the statement
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or that he was unsettled in mind at the time the statement was made or that he was induced to do so. The explanation should come from him without promptings from the prosecution. It is in rare cases that a Court would attach credence to the evidence of an accused person as against his extra-judicial statement could not be correct.”
In the instant case, Exhibit P11 was admitted without objection by the Appellant who was represented by counsel. The Appellant who is educated up to secondary school level wrote the statement himself. In his evidence in-chief before the trial Court, he did not dispute the statement (Exhibit Pl1) but acknowledged the signature thereon as his own. There was also no other explanation from him as to the inconsistency between his confessional statement (Exhibit P11) and his testimony in Court. Furthermore, the learned trial Judge duly approved the test as required in R v. Sykes (supra) which has been approved and applied by the Supreme Court in a legion of cases. This is moreso when the Appellant never denied making the statement nor give any explanation about the inconsistency between his extra-judicial statement and his testimony
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in Court. In such a circumstance therefore, the learned trial judge was right to rely on it to convict. This is because a trial Court can convict on a confessional statement so long as it has been demonstrated and proved to be direct, positive, unequivocal and voluntarily made, and proved beyond reasonable doubt that the accused committed the offence. See Nwachukwu v. The State (2007) 17 NWLR (Pt.1062) p.31; Hassan v. State (2001) 15 NWLR (Pt.735) p.184 and Effiong v. The State (1998) 8 NWLR (Pt.552) p.362. Thus, in the case of State v. Sule (2009) 17 NWLR (Pt.1169) p.33, Ogbuagu, J.S.C. said:
“In any case, the failure to object and the later retraction, it is settled, cannot vitiate the proceedings….. In my humble and respectful view, any contention, suggestion or submission that Exhibit ?B? is inadmissible even inspite of the evidences I have reproduced above and the absence of any objection by the defence counsel will be grossly misconceived in the extreme. I therefore hold that Exhibit “8” was admissible in evidence. Even if it was retracted by the Appellant in his evidence at the trial, it was of no moment. I say so because in the
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first place, a Court can still convict on a confessional statement alone even if the accused person resiles from it. A confessional statement, is part of the evidence adduced by the prosecution. See…”
As stated elsewhere in this judgment, in relying on the confessional statement of the Appellant, the learned trial Judge applied all the tests as enunciated in the case of R v. Sykes (supra) to find that the confessional statement of the Appellant is true. I agree with that finding of the learned trial Judge. In any case, the said confessional statement is supported by other evidence which point to the fact that the confession is true.
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Now, the question to be answered is, whether the statement is a positive and unequivocal confession by the Appellant that, he received the recharge cards and the Sagem handset with knowledge that they are the proceeds of an offence under the Robbery and Firearms Act (supra). This is because, guilty knowledge that the goods were stolen is a vital element of the offence, which must be proved beyond reasonable doubt. Guilty knowledge is therefore a very vital ingredient of the offence, which may be inferred from the
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circumstances as revealed by the evidence. In determining the issue, the trial Judge has a duty to examine carefully the explanation given by the accused as to how the goods came into his possession. In the instant case, the Appellant made statements to the police after his arrest. Those statements are in evidence as Exhibits P, P10 and P11. In Exhibit P, which was made at Ibara Police Station, shortly after his arrest, he denied complicity in the snatching of the PW1’s handbag which contain the recharge cards and the handset he is alleged to have received. In Exhibit P10, he admitted knowing the 1st accused who was charged with the robbery and that the said 1st accused, Haruna Rafiu used to sell handsets to him. I think it will be helpful to reproduce the portion of the Appellant’s statement in Exhibit. P10, as is relevant to the issue under consideration. He stated that:
“I know one Haruna Rafiu also known as Paso who use to come to my shop, who came to repair and sell handset to me he also an Okada rider. Sometimes November 2006 Haruna Rafiu brought a Sagem MYX7 handset for sale and I bought it for N5,000.00 and after the following week he brought
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another Sagem MYX1 handset I bought it for N2,000. On February 6th 2007 Haruna Rafiu came collected it from him. I have not give him money for that because it has got fault and three handset he…did not come with the charger. I did not know Haruna Rafiu as handset dealers any time he bring handset he always tell me that somebody gave him to sell, the time he use to bring those handset to me I did not know that he stole them. I dont know that Haruna Rafiu use to snatch the handset from people. It was when I was arrested at Ibara police station that I know.”
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In the same statement (Exhibit P10), he denied that on the 17th January, 2007, Haruna Rafiu sold to him any Sagem handset and recharge cards. It is however clear from the above reproduced statement of the Appellant that, he knew the 1st accused (Haruna Rafiu) before his arrest for receiving the stolen goods. The 1st accused was in the habit of selling handsets to the Appellant with the story that other people gave him the handsets to sell. It is also not in doubt that the Appellant was an “Okada Rider”. There is also evidence that the said Haruna Rafiu used to sell the handsets without their chargers. It
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is also evident that the said Haruna Rafiu was not in the business of selling handsets. Those are the facts which support the finding of the learned trial Judge that, any prudent person in the circumstances would have perceived that the phones sold to him were not from lawful sources. Furthermore, the Appellant admitted in Exhibit. P11, which was made four (4) days after Exhibit P10 was made, that the said Haruna Rafiu indeed sold some recharge cards and Sagem Myx2 handset to him. The said Haruna Rafiu told him that the items were, worth N35,000.00 but he (Appellant) haggled and bought the recharge cards for N20,000.00 and N2,000.00. It is common knowledge that recharge cards have fixed prices and therefore, where a person sells them at a price far below their fixed prices, a reasonable suspicion may be raised that the seller might not have possessed them lawfully.
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One vital factor to be considered is the circumstances the goods were sold to the Appellant. The evidence on record disclosed that, the PW1 was robbed of the goods found in possession of the Appellant on the 17/01/2007 at about 7.30p.m. The Appellant stated in Exhibit P11 that, Haruna Rafiu
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called him at about 8.30p.m on the same 17/01/2007 to tell him that he had some MTN, Glo and Celtel cards, and a Sagem Myx2 handset to sell to him. The said transaction took place in the Appellant’s house at about 8.30p.m., which is barely one hour after the robbery incident. The Appellant further stated that he later gave the recharge cards to a student to sell for him, and that the said student ran away when he heard that he (Appellant) had been arrested. If the Appellant had a shop where he was engaged in repairing and selling handsets, as he tried to impress in Exhibits P and P10, I am of the view that the shop was also used as a cover for the Appellant’s illegal acts of receiving and reselling stolen handsets. On the above stated facts, I am of the view that the learned trial Judge was alive to his duty and therefore properly appraised the totality of the evidence before him. His findings are amply supported by the evidence. I therefore hold that the learned trial Judge was right when he convicted the Appellant on the charge preferred against him.
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On the whole, it would be seen that this appeal has no merit. It is accordingly dismissed. I therefore
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affirm the judgment of the Ogun State High Court delivered on the 30th day of June, 2011 in charge No.AB/8R/2010. The conviction and sentence meted on the Appellant is also affirmed.
Other Citations: (2016)LCN/8613(CA)
