Samodi Mustapha V. The State (2007)

LawGlobal-Hub Lead Judgment Report

ALFRED P. E. AWALA, J.C.A.

The Appellant here was arraigned on a two count charge of conspiracy and armed robbery on 21-7-03 at the Ogun State High Court Holden at Abeokuta contrary to Section 1 (2) (a) and 5(b) of the Robbery and Firearms Special Provisions) Act, Cap 398, Laws of the Federation of Nigeria 1990. He pleaded not guilty to all the counts. The prosecution called three witnesses to prove its case. The prosecution case in a nutshell is that on or about 14/6/03 the Appellant conspired with others still at large and robbed one Pastor Moses Akinpelu (PW1) at Holy Michael Church of Christ, Ogbo, Abeokuta, while armed with guns along with five others. The appellant robbed PW1 the sum of N20,000.00. None of the robbers was arrested at the scene of crime. PW1 who on reporting the incidence to the police stated he could identify two of the armed robbers. Having seen the appellant at Enu Gada Police station he identified him as being one of those who ‘robbed him and the appellant, on the strength of the identification, was arrested and arraigned in court on the instant head of counts charged above.

On the other hand, the case of the Appellant is that he was not one of the robbers, that robbed Pw1 who he states is his In-Law. Appellant stated that Pw1 had wanted him to beat the drum in his church at a revival and to convert him to Christianity from his Muslim faith and his refusal resulted into a disagreement between them.

In a considered judgment of 14/6/04, the lower court found the Appellant guilty on the two count charge and sentenced him to death by hanging. Dissatisfied, he has appealed to this court, on two grounds. Parties filed and exchanged brief of arguments.

The Appellant’s brief contained two issues for determination of the appeal. The two issues read:

1. Whether the prosecution proved its case beyond reasonable doubt against the appellant in view of available evidence in this case?
2. Whether the prosecution is not duty bound to satisfactorily prove a confessional statement to warrant conviction without corroborative evidence?

The respondent on the other hand also raised two issues as having arisen for determination of this appeal. These are:-

1. Whether the prosecution proved its case beyond reasonable doubt against this Appellant in view of available evidence in this case?
2. Whether the Appellant was rightly convicted based on his confessional statement as corroborated by the evidence adduced by the prosecution.

The issues raised by the parties learned counsel are similar. I prefer that the appellant’s counsel two to resolve this appeal.

Under the appellant first issue, his learned counsel contends that the onus of proof by S.138 of the Evidence Act places on the prosecution is to prove the guilt of the accused beyond reasonable doubt and it does not shift. He submits that the appellant is by s. 36 (5) by the 1999 Constitution is presumed innocent. He can only be convicted of the offences under which he is charged if and only if it is shown beyond reasonable doubt that he conspired and did rob and be linked to the offences. The Learned counsel then referred to the evidence of PW1 at page 12 lines 11 – 20 of the record of proceedings and under cross examination at page 12 lines 22-30 of the said record and submits that PW1’s testimony falls short of satisfying the burden placed on the prosecution under S. 138 (supra) because the Appellant’s identification and by extension his participation in the crime remained doubtful. Counsel submits further that it is the duty of the prosecution to eliminate any doubt created in its attempt to prove its case beyond reasonable doubt. For doubt on the identification of the appellant, he cited Bozin v. State (1985) 2 NWLR (pt.8) 453, Orimoloye v. State (1984) 7 SC 138, and Anyanwu v. State (1986) 5 NWLR (pt 43) 612 at 621 – 624.

On alibi raised by the appellant at page 36 lines 14 and 15 of t he record counsel submits the prosecution has the duty in law to take steps to verify and disprove same. As for the court, the court is obliged legally to consider the defence of alibi. He cited Isiekire Vs. State (1999) 9 NWLR (pt. 617) 43 at 65 E-F; State Vs. Obinga (1965) NMLR 172, Ifeiirika Vs. State (1999) 3 NWLR (pt. 593) 59 and Fatoyinbo Vs. AG WN (1966) WRNLR 4.

Appellant counsel submits further, the court also owes the accused a duty in law to consider all available defences, no matter how trial, available to the appellant dispassionately before dismissing same off hand. Learned Counsel also referred to the evidence of the prosecution vital witness not called like the Appellant’s friends who allegedly traveled with him to Ondo and Pwl’s wife. He cites the following cases on alibi. Ogunye v. State (1999) 5 NWLR (pt.604) 548 at 570 -571, Omoha v. State (1988) 3 NWLR (pt.83) 460. Abgyuluna v. Cop (1961) All NLR 4. And urged that 1st issue be resolved in appellant’s favour.

On issue two, “Whether the prosecution is not duty bound to satisfactorily prove a confessional statement to warrant conviction without corroborative evidence. First, Appellant’s learned counsel referred to Section 27(1) and (2) that if the Evidence Act and submits that for confession to be relevant against the maker, it must be voluntary. That section 28 of the Evidence Act clearly shows the types of confessional statements that are not qualified to be admissible in a criminal trial, those that have been induced.

Appellant’s Counsel submits that despite the fact that the learned trial judge overruled him at the “trial within trial” to enquire about the voluntariness of the confessional statement of Exhibit “A” pursuant to Section 28 of the Evidence Act, this court can reverse that decision because the fact that a robbery ever took place linking the Appellant became doubtful when PW1 himself said that the robbery took place at 2 a.m. dark night, no moon, no light, and the said Exhibit “A” showed clearly the Appellant was outside the Church premises, some of the robbers were inside the Church watching out and only two went inside PW1’s room with guns. That is enough corroboration of the Appellant’s evidence in the trial within trial that he was forced to sign it and enough to put the trial judge on enquiry that the evidence of the Appellant that he was beaten and forced to sign Exhibit ‘A’ can be true. Inspite of the fact also that the appellant claimed, he read up to JSS III, he was not allowed to write his statement himself. That certainly, the conviction of the Appellant on Exhibit ‘A’ alone is not proper and not sufficient to ground conviction; as it obviously does not pass the six tests in R. V. Sykes (13) 18 CR App 233 approved in Kanu v. R 14 WACA 30 and applied by the Supreme Court in Dawa v. State (1980) 8-11 SC 236. The six tests are:-

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

(2) Is it corroborated?

(3) Are the statements made in it of facts, true as far as they can be tested?

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

(5) Is the confession possible?

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

Appellant counsel then pose the question; can Exhibit “A” be hold to pass the above six tests. No, is his categorical answer.

Another submission of appellant counsel is that the appellant was not taken before any Superior Police Officer (SPO) for endorsement and there is no explanation why this best aged practice procedure by the police was not adopted. He Submits further and contends strongly that Exhibit “A” was not corroborated not even by the doubtful evidence of Pw1 who was not certain who he saw and could not have seen the appellant as Exh, ‘A’ showed he was outside the church premises watching out. He was not arrest at scene of crime. He is known to Pw1 not only as a member of his church where he is the drum beater, he is PW1’s in law.

On alibi, the Appellant along with his co-labourer said he traveled to Ondo State for work. This was not checked by the prosecution. All these are doubts which shows that Exhibit “A” can not be voluntary and not corroborated. If answers to these issues were found correct it would have been apparent that the Appellant had no opportunity to have committed the crime to corroborate Exhibit “A”. The Appellant learned counsel submits that the learned trial judge was wrong when he just reproduced Exhibit “A” and said at page 41 line 29 of the record of proceedings simply “This is a confessional statement” and at page 40 and 41 lines 29 -33 and adds

“It has been decided on a long line of cases by the Supreme Court that a free and voluntary confession of guilt made by an accused if it is direct, positive is sufficient to warrant conviction without corroborative evidence as long as the court is satisfied of the truth of the confession.”

Citing Edhigere v. State (1996) 8 NWLR (pt. 464) at P. 10 B” (Emphasis mine)

Learned Appellant counsel submits that in paragraph 10 C of the same case the Supreme Court said

“It is also been laid down that it is desirable however to have outside a defence’s confession to the police some evidence be it slight of the circumstances which make it probable that the confession is true.”(Emphasis Mine) Appellant learned counsel therefore urged us to hold that the learned trial judge having not subjected Exhibit ‘A” to the tests in R. V. Skyes misdirected himself and came to a perverse conclusion which definitely occasioned miscarriage of justice culminating in the Appellant’s conviction and sentence to death. He urge us to resolve issue two in favour of the Appellant. Responding, Learned counsel for the Respondent concedes that the law “that the prosecution must prove the case against the appellant beyond reasonable doubt sacrosant. He posits that a court where an accused so admits and confessed as in Exhibit “A” he can legally be convicted. The Appellant in the instant case having confessed in Exhibit “A” ‘B’ and ‘B1’ of committing the offences can be convicted. Counsel relies on Okonkwo Vs. State (1998) 8 NWLR (pt.561) P. 210; P.246 paras C-D.

Prosecution Counsel insists that the trial court had looked for corroborative evidence outside the confessional statement of Exhibit “A” before convicting the appellant. In particular he referred to the testimony of PW1. Learned Respondent’s counsel submits that the issue of PW1’s motive of implicating the Appellant because of his refusal to further beat drum in his church or be converted to Christianity or Appellant’s aunty’s marriage to a Christian (PW1) is an after thought. It is a matter that was not raised at the trial court; it can not be raised at this stage without the leave of this court.

On the question of alibi raised, the Respondent’s learned counsel states conferred that the prosecution is not under any obligation to investigate it as it was raised at the trial. The appellant ought to and did not raise any alibi at the earliest opportunity. Counsel submits it must be an after thought. Respondent’s counsel referred to page 38 lines 3 of the record of proceedings and argued that the trail court had fully considered the issue of alibi raised by the appellant. And contends that the court resolution of the matters is impeccable.

In concluding, learned prosecution counsel contends that the prosecution is not under any obligation to call a particular witness or number of witnesses to prove its case. Accordingly, the failure to call PW1’s wife or other witnesses for that matter can not b e fatal to t he prosecution case. He cited Ozaki vs. State (1990) 1 NWLR (pt. 124) p. 92 at 116. He also supported his submission on the needlessness of calling any particular witness or a certain number of witnesses with the following cases. Akpan Vs. State (1991) 3 NWLR (pt. 182) 646 at 659, Ekpenyong Vs. State (1991) 6 NWLR (pt. 200) 683 at 700. Learned counsel urge us to resolve issue I in favour of the Respondent and against the appellant.

On issue two learned respondent’s counsel debunked Appellant’s counsel argument as follows:-

Firstly, he concedes the court is enjoined to look for corroborative evidence outside the confessional statement but added that the rule in R. Vs. Sykes is a mere guide to the court as to what the form of corroboration to look out for before conviction of an accused can be effected. Consequently once a trial court had adverted its mind to the need to look for corroboration and found one such corroborative evidence of the prosecution witnesses is sufficient. The conviction the accused person is proper.

Secondly, on the issue that Exhibit “A” was not endorsed by an SPO, he submits failure to so endorse a confessional statement is not fatal to the prosecution case. He cited Eghoghonome Vs. State (1993) 7 NWLR (pt. 306) 383 at 421.

Thirdly, on the issue that the persons mentioned in Exhibit “A” which is the confessional statement of the Appellant should have been called as witnesses, he submits the prosecution is not bound to call every available witness to establish its case. Consequently Respondent’s learned counsel opined that if the appellant considered the persons mentioned in his statement crucial to his case to support his alleged journey to Ondo State for work; the appellant ought to have called them as witnesses on his behalf.

Fourthly, on the fued or vendetta between pw1’s family and appellant’s family, prosecution counsel submitted that this can be deduced from the refusal of appellant’s father Dw3 to settle this matter out of court and at the family level even up till now. Counsel submits this argument is borne out by the available evidence placed before the learned trial judge. As the issue of fued existing borders on speculation the trial court did not go into it, as the trial court was not called upon to speculate. The issue never arose at the trial court, raising it here at this level is incompetent He urge us to resolve issue 2 against the appellant.

In resolving issue one in this appeal, it is incumbent on me to proffer answers to a number of pertinent questions. Firstly, did the prosecution establish the identity of the appellant and link him to the offence he was charge with such that the proof could sustain a conviction? Secondly, was the issue of alibi belated or otherwise not investigated by the police or sufficiently considered by the trial judge. Thirdly, beyond the confessional statement of the Appellant Exhibit “A” are corroborative evidence abound in the proceeding to justify reliance on the said confessional statement? How corroborative is PW1’s testimony?

In answering this question one may go in excursion into the record of proceedings to peep into PW1’s evidence that holds no iota or promise of a resemblance of any value in this regard. In his examination in chief at page 12 lines 2 to 20 PWI states as follows:-

“I was asleep in my house when a big s tone was used to break down my door and about 5 or 6 men entered my room with guns, some of them were masked and they said I should declare the money I had or they will kill me. I was begging them. They broke into my box and they removed N20,000.00 from my locker and the N900.00 I had in my pocket and they took away one Rivers Rechargeable Lantern. They also took my wife’s clothes away. I reported the matter at the police station. The robbers spent about one hour with me. They came at 2a.m. I told the police I could identify two of the robbers. I identified the accused as one of the robbers that came to my house. At that time there was no light but I could see them as I was peeping. I have been seeing the accused and one other around so I could recognize them at any time. About 3 days later I was invited to Enu Gada police station where I identified the accused person and I told the police that he is the one that I recognized. Ibara police came and took him away.

(Emphasis mine)

Under cross examination PW1 said “I have been seeing the accused person around the area. There was no light. When there is no light my room is dark. Some of the robbers were masked. The face I saw that day looked like his face. The person has the same height. I can’t remember the type and (sic) of clothes he wore. The police at Enu Gada asked me “Who is this? And I said “This is the man, I am looking for” I was able to peep and I saw somebody like the accused person. My wife and my children were with me. I told the police so.” (Emphasis mine) The first question that comes to mind here is, is the above the legal way of identifying an accused person in a criminal trial?

To my mind the answer is in the negative. In Bozin v. state (1985) 2 NWLR 467, Oputa JSC delivering the lead judgment posit at p 472:-

“The identification of a suspected person must be very carefully conducted and it is very wrong to point out a suspected person and ask. “Is that the man” The usual and proper way is to place the suspected person among a sufficient number of others and to have the identifying witness pick out the accused without any assistance. That is what is called an identification parade” (Emphasis mine) He cited an old English case of Thomas v. Chapman (VIII) 7 CR APP R 53 at 54 and the case of George v. Harold Williams (1912) 8 CR APP R 84 following an earlier case of John Smith vs. Evans (1908) 1 CR APP R 203 where suspect was not mixed up with people and the question was just asked “Is that the man” as in the instance case, where Phillimore J castigated the police and remarked thus:-

“Such methods as were resorted to in this case make this particular identification nearly valueless, and the police authorities ought to know that this is not the right way to identify.” (Emphasis mine). I say no more.

PW1 pretending he did not know the Appellant from Adam only said he is part of the gang that invaded my home. And pretending he was seeing the appellant for the first time at the police station in responded to the question. “Is that the man?” said “This is the man I am looking for.” (Emphasis mine) PW1’s identification in the instant case certainly to say the least is valueless. For modern cases on this issue see:- Ajibade v. State (1987) 1 NWLR (pt. 48) 205 at 209, Madagwa v. State (1987) 4 NWLR pat.64 172, Anyanwu v. State (1986) 5 NWLR (Pt.43) 612, Abudu v. State (1985) 1 NWLR (Pt.43) 55 at 62 and Ukorah v. State (1977) 4 SC 167.

Secondly on alibi not investigated by the police on the ground that it was belated. An accused by raising the defence of alibi is saying that he was somewhere else at the time the crime was committed, and as to where he was at the material time was a matter specially within his knowledge, the accused ought to raise the defence at the earliest possible opportunity. In his defence he ought to give such details and particulars of his whereabout so that the police can investigate. This burden is on the accused which if he discharges, shift to the police. The Appellant did, albeit not comprehensively mentioned in Exhibits “A”, “B” and “B1” the names of his friend he usually travel to Ondo State with for intinary labourer casual work that is all he need do, those named should have put the police on guard to investigate, and take statement from them not necessarily call them as witness at the trial but to ascertain the truth in the interest of justice. See Gashi v. State (1965) NWLR 333 at 335, Abudu v. State (1985) 1 NWLR (Pt.1) 55, Nwabueze v. State (1988) 4 NWLR (Pt. 86) 16 at 34, Salami v. State (1988) 3 NWLR Pt. 85) 670 at 693. As for the trial judge, bare remarked I agree with the appellant counsel submission, at page 39 lines 1-2 of the record of proceedings. “Going through the cases the defence of alibi raised here cannot be taken seriously.” (Emphasis mine.) Can this be considered a sufficient consideration of alibi? It is my respectful view it falls short of consideration in a capital offence trial the accused person was facing. He discharge his burden that is to say the essential burden of introducing the evidence of alibi, apart from the burden shifting to the police to investigate as reasoned above, the trail judge must not just waive it out with respect with a statement as above, “going through the cases the defence of alibi raised here cannot be taken seriously without evaluating that evidence and weigh it against the evidence led by the prosecution in exhibit “A”, “B”, and “BI” and resolved the doubt in favour of the accused. See Yanor v. State (1965) NMLR 337, Esangbedo v. State (1989) 4 NWLR (Pt. 113) 60, Umani v. State (1988) 1 NWLR (Pt.70) 274 at 284, Okosun v. A.G. Bendel State (1985) 3 NWLR (pt.12) 283.

Now the main, the main, Exhibit “A” confessional statement upon which solely the accused was convicted with or without it being backed up with corroborative evidence? It is now trite the court should not act on a confessional statement without first testing the truth thereof by seeking any other evidence no matter how slight which make it probable that the confession is true. The old six testes or rule in R. Sykes (supra)states; I repeat them again for emphasis:-

1. Is there anything outside the confession to show that is true?
2. It is corroborated?
3. Are the relevant statements made in it of facts 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 have been proved?

There is no way the evidence of PW1 can be of help. No way. It has holes left right and centre around it. By Exhibit “A”; the Appellant was keeping watch outside the church, two of the armed robbers were in the church premises watching out, only two men armed with gun broke the door of the PWI open with a big stone to bail him up. He peeped out in the dark and saw through the wall of his house and through the wall fenced perimeter of the church in the dark at the distance to see the Appellant outside who he could not remember the clothes he was wearing. Fantastic! All these should have put the learned trial on enquiry that PW1 evidence is useless and not credible evidence to be a corroborative evidence to support Exhibit “A”. My answer to the above is in the negative. The confessional statement Exhibit ‘A’ is not free, voluntary, direct positive or properly proved and certainly it does not comply with the rule in R. v. Sykes now up dated by the Supreme Court of Nigeria in cases such as Ikpara v. A.G. of Bendel State (1981) 9 SC 7. Onochie V. The Republic (1966) NMLR 307. Akpan v. The State (1992) 6 NWLR (Pt.248) 439.

I must not end this judgment without answering the question, What amounts to confessional statement? and what is corroborative evidence?

S.27 (1) of the Evidence Act defines confessional statement as an admission made at any time by a person charge with a crime stating or suggesting the inference that he committed the crime. It is an extrajudicial statement made by the accused person to the police containing an assertion or admission showing that he participated in the commission of the offence for which he stands accused. 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 confession. See Giwa v. State (1996) 6 NWLR (Pt.443) 375, Lira v. State (1998) (Pt.538) 397.

On the other hand, corroborative evidence simply put is an independent testimony which affects the accused by connecting or tending to connect him with the crime. Here in this instant case, PW1 evidence woefully failed to link the appellant with the offence charge thus leaving Exhibit “A” uncorroborated and valueless. See. R. v. Nwigboke (1959) SCN LR 248, Egboghonome v. State (1993) 7 NWLR (Pt.306) 383.

In the final analysis this appeal is meritorious. It succeeds. The sentence of the lower court on the Appellant to death is hereby set aside. He is discharged and acquitted.

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Other Citations: (2007)LCN/2296(CA)