Tiemo V. State (2021)
LAWGLOBAL HUB Lead Judgment Report
TANI YUSUF HASSAN, J.C.A.
This is an appeal against the Judgment of the High Court of Bayelsa State sitting at Yenagoa delivered on the 24th day of January, 2017 in Charge No: OHC/3C/2013 by Honourable Justice M.A. Ayemieye.
The Appellant and two other accused persons were arraigned before the High Court of Bayelsa State on two counts charge of Conspiracy and Armed robbery. The two counts charge read:
COUNT ONE
Conspiracy to commit felony contrary to Section 444(a) of Criminal Code Law, Bayelsa State, 2006.
PARTICULARS OF OFFENCE
Timi Okpo, Tombra Tiemo and Oyibo Phillip on the 9th day of December, 2012 at Agobiri Creek in Oporoma Judicial Division of Bayelsa State, conspired together to commit felony to wit: armed robbery.
COUNT TWO
Armed robbery (sea piracy) contrary to Section 329(2) of the Criminal Code Law, Laws of Bayelsa State, 2006.
PARTICULARS OF OFFENCE
Timi Okpo, Tombra Tiemo and Oyibo Phillip on the 9th day of December, 2012 at Agobiri Creek in Oporoma Judicial Division of Bayelsa State, robbed Solomon Eriye of a speed boat and its 75 horse power Yamaha engine, a Samsung phone valued at fifteen thousand Naira (15,000.00) and the sum of N20,000.00, while being armed with a gun.
They pleaded not guilty to the counts of charge. The 2nd accused person before the lower Court, Tombra Tiemo is the Appellant in this appeal.
The Prosecution/Respondent in proof of their case before the lower Court called three witnesses and tendered exhibits, while the Accused/Appellant and co-accuseds testified in their defence. Trial commenced. At the conclusion of trial, the learned trial Judge found the Accused/Appellant and co-accused persons guilty of the offences charged against them and convicted and sentenced them to five years and fifteen years respectively, the sentence to run concurrently.
Aggrieved with the Judgment, the Appellant appealed to this Court, vide an Amended Notice of Appeal filed on the 14th of February, 2020 but deemed properly filed on the 30th of April, 2020. The Amended Notice of Appeal contained six grounds with their particulars.
The Appellant’s brief dated and filed the 4th day of May, 2020 was settled by Chief Kingsley Chukwu. In it, three issues were distilled for determination thus:
- “Whether the Judgment of the Lower Court is not against the weight of evidence in this case?” (Grounds 1, 2, 3 and 4).
- “Whether the prosecution proved the charges of conspiracy and armed robbery against the Appellant beyond reasonable doubt taking cognizance of the ingredients of the offences?” (Ground 5).
- “Whether the conviction of the Appellant is proper in law based on his alleged confessional statement which was not made pursuant to Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015” (Ground 6)
The Appellant’s reply brief dated 15th day of October, 2020 was filed on the 20th October, 2020 but deemed properly filed on the 30th of November, 2020. Learned counsel for the Appellant adopted the briefs and urged the Court to allow the appeal.
The Respondent’s brief dated the 20th day of May, 2020 was filed on the 8th of July, 2020 but deemed properly filed on the 30th of November, 2020. Gladys Ikiere, Esq., settled the brief. She formulated two issues for determination as follows:
- “Whether there is competent appeal before this Court?”
- Whether the Judgment of the Lower Court is not against the weight of evidence?”
Counsel adopted the brief and urged the Court to dismiss the appeal.
I adopt the Appellant’s issues to resolve the appeal and issues one and two will be taken together.
ISSUE ONE
- “Whether the Judgment of the Lower Court is not against the weight of evidence in this case.”
- “Whether the prosecution proved the charges of conspiracy and armed robbery against the Appellant beyond reasonable doubt taking cognizance of the ingredients of the offence?”
On issue one, learned counsel for the Appellant argued that the trial Judge erred in law when he held that the prosecution has proved the guilt of the Appellant beyond reasonable doubt despite the manifest flaws in the evidence of the prosecution. He referred to the evidence of PW1 which said the alleged incident took place on the 10th of December, 2012 while PW2 said it was on the 9th of December, 2012.
That further to the contradictions on the actual day the offences were committed, the evidence of the whereabout of the instrument (gun) used in the alleged robbery contradicts one another, as the first lap of evidence said the Appellant threw it in the river and the second lap said the Appellant returned it to Daniel. Counsel submitted that the contradictions are fundamental as against the decision of learned trial Judge that the contradiction is trivial and minor.
Submitting further that the contradictions in the evidence of the prosecution which raised doubts, the trial Court ought to have resolved the case in favour of the Appellant and the trial Court’s failure do so, caused grave miscarriage of Justice and we are urged to so hold.
Referring to Section 27(1) and (2) of the Evidence Act, 2011, it is submitted that a confessional statement of an accused person is not admissible if it is not obtained voluntarily. The Court was referred to Musa Vs State (2018) 13 NWLR (Pt.1636) 310, on factors listed by the Supreme Court to be considered to determine the veracity and correctness of a confessional statement. Also referred is the case of Kazeem Vs State (2009) All FWLR (Pt.465) 1749.
The contention of the learned counsel for the Appellant is that the confessional statement of the Appellant which was adjudged free and voluntary by the trial Court was not corroborated by the testimonies of PW1, PW2 and PW3, which shows that the confession was not true. That the trial Court did not abide by the decision of the Supreme Court on the need to test the veracity of the confessional statement using the six factors in Musa Vs State (supra) having regard to the retraction of the confessional statement by the Appellant during trial.
Counsel also argued that the lower Court erred in law when it observed that the Appellant does not understand English language but the Police (PW3) stated that the Appellant made his confessional statement in English without an interpreter and still convicted him based on the confessional statement. He referred to Nwocha Vs State (2012) 9 NWLR (Pt.1306) 571 and State Vs Jibrin (2018) 5 NWLR (Pt. 1611)3. That the confessional statement of the Appellant is incompetent as it was not voluntarily made which caused grave miscarriage of justice to the Appellant for being convicted for conspiracy and armed robbery.
On issue two, relying on Section 131(1) and (2) of the Evidence Act, and the case of INEC Vs Asuquo (2018) 9 NWLR (Pt. 1624) 317, learned counsel for the Appellant submitted that the burden of proof lies on the prosecution and the burden must be proved beyond reasonable doubt. It is his submission that the prosecution did not prove the offence of conspiracy and armed robbery charged against the Appellant beyond reasonable Court. That before the prosecution can be said to have proved the guilt of the accused beyond reasonable doubt, the ingredients of the offence must be established by the prosecution. He referred to Balogun Vs State (2018) 13 NWLR (Pt.1636 323 and Orisa Vs State (2018) 11 NWLR (Pt. 1631) 436 on the ingredients of conspiracy and armed robbery that must be established by the prosecution to sustain the charge against the Accused/Appellant.
Learned counsel argued that the evidence adduced by the prosecution did not prove that there was robbery at all as PW1 said he was robbed on the 10th of December, 2012 while PW2 stated in his evidence that he received information through phone that PW1 was robbed on the 9th of December, 2012. That PW1 could not properly identify the Appellant as he could not say the type or colour of cloth the Appellant was wearing on the day of the alleged robbery and there was no identification parade conducted. It is submitted that with the contradictions in the evidence of the prosecution which created doubt, the benefits of the doubt must be given to the Appellant. The Court was referred to Mohammed Vs State (supra).
It is finally submitted that the trial Judge was wrong when he held that the prosecution has proved the guilt of the Appellant for the offences of conspiracy and armed robbery beyond reasonable doubt. We are urged to so hold and set aside the Judgment of the trial Court.
Learned counsel for the Respondent submitted in response that the prosecution proved its case beyond reasonable doubt as required by law. With regard to the contradiction on the date of incident as given by PW1 and PW2, counsel argued that there was no contradiction because PW1 gave a narration of what happened on the 9th of December, 2012 with regard to the armed robbery committed by the Appellant and co-accuseds. That assuming but not conceding there were contradictions in the evidence of PW1 and PW2, the contradiction is not material as their evidence when read holistically, there is no doubt that an offence of armed robbery took place on the 9th of December, 2012. The case of Egwumi Vs State (2013) FWLR (Pt.678) 824 at 846 paragraph F – G was referred to.
Relying on the case of Musa Vs State (supra) and Okoh Vs State (2014) All FWLR (Pt. 736) 443, learned counsel for the Respondent submitted that the prosecution met the conditions i, ii, iii and v and the evidence of PW1 that he saw the Appellant and co-accused together at a burial ceremony in Opuma was corroborated by PW3. That the trial Court was right in convicting the Appellant and the Court is urged to dismiss the appeal.
The contention of the Appellant’s counsel on issue one is that the Judgment of the trial Court is against the weight of evidence, impliedly the complaint is on the improper evaluation of evidence placed before the trial Court. The issue couched as an omnibus ground connotes that the decision of the trial Court cannot be supported by evidence adduced by the successful party which the Court either wrongly accepted or that the inference it drew on conclusion it reached based on the accepted evidence is unjustifiable in law. It denotes that when the evidence adduced by the complaining Appellant if weighed against that given by the Respondent, the Judgment rendered to the Respondent is against the totality of the evidence placed before the trial Court.
In ascertaining the weight of evidence the trial Court is enjoined by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party. See Mogaji Vs Odofin (1978) 4 SC91; Military Governor Lagos State Vs Adeyiga (2012) 5 NWLR (Pt.1293) 291; Agala Vs Okusin (2010) 10 NWLR (pt. 1202) 412 and Impact solutions Ltd Vs Int’l Breweries Plc (2018) 16 NWLR (Pt. 1645) 377.
The law is settled that evaluation of evidence is the primary duty of the trial Court who heard and watched the demeanour of witnesses at trial. To discharge that burden, the trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on two different pans of scale to determine which is heavier, not in terms of quantity but quality of the testimonies. See Ayuya Vs Yonrin (2011) 10 NWLR (Pt.1254) 135; Ndulue Vs Ojiakor (2013) 8 NWLR (Pt.1356) 311 and Odutola Vs Mabogunje (2013) 7 NWLR (Pt.1356) 522.
The Appellant’s grouse is against the evidence of PW1 and PW2 with regard to the date of the alleged commission of the offence which he branded as contradictory. That while PW1 said the incident happened on the 10th of December, 2012, PW2 said it was on the 9th of December, 2012. He also complained that the whereabout of the gun used in committing the alleged robbery was contradictory. The contradictions he said are fundamental but that the trial Court convicted the Appellant.
The law does not insist that there cannot be contradictions in the evidence of witnesses called by a party on any issue in contention, but the contradiction should not be material in such a way that they cast serious doubt on the case presented as a whole by that party. See State Vs Odomo (2019) 4 NWLR (Pt.1662) 191 at 197; Bassey Vs State (2012) 12 NWLR (Pt.1314) 209; Sani Vs State (2015) 15 NWLR (Pt.1483) 522 and Chukwu Vs State (1996) 7 NWLR (Pt.463) 686.
It is not every contradiction in the case of the prosecution that would adversely affect the case of the prosecution. It is only material contradiction that can negatively affect or vitiate the case of the prosecution. See Abusu Vs State (2017) 7 NWLR (Pt. 1564) 171; Deriba Vs State (2016) LPELR-40345 and Joshua Vs State (2019) 12 NWLR (Pt. 1685) 131.
In the instant case, the contradiction highlighted in the testimonies of PW1 and PW2 as to the date of the commission of the offence and the whereabout of the gun used in committing the armed robbery are not material. The factor eliminating the materiality of the contradictions in the evidence of PW1 and PW2 is the established fact in the evidence of the prosecution witnesses that the Appellant conspired with others and committed the armed robbery.
Counsel also argued that the confessional statement of the Accused/Appellant is not admissible as it was not obtained voluntarily, and it was not corroborated by the evidence of the prosecution witnesses PW1, PW2 and PW3.
A confessional statement does not become inadmissible merely because the accused denies making it even though when such a retraction takes place, the Court is cautioned to seek evidence, no matter how slight, outside the confessional statement to show that the confession was probable. See Olude Vs State (2014) 7 NWLR (Pt. 1405) 89; Udo Vs State (2016) 12 NWLR (Pt. 1525) and Egbogbonome Vs State (1993) 7 NWLR (Pt.782) 543.
Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the Court is satisfied that it was made voluntarily, the Court can rely on it to convict, even if retracted at the trial. See Igbinovia Vs State (1981) 2 SC 5; Adebayo Vs State (2014) 12 NWLR (Pt.1422) 613 and State Vs Musa (2020) 2 NWLR (Pt. 1709) 499 at 507.
Exhibit “PR16” is the confessional statement of the Accused/Appellant where he gave a narration of what happened in respect of this case. It is stated therein:
“On the 9th of December, 2012, I was at Okaka Junction when Timi Okpo and his friend whom I do not know his name but Timi knows him better called me on phone, that I should come and meet them at town Yenagoa on business. When I got there, I actually met Timi and his friend. They brief me that they had a deal and they want me to part take, that they have the money to hire a speed boat, if the driver taken us to our destination, on the way we will threaten the driver and collect the boat for a buyer to buy it. And Timi friend said he will provide gun to carry out the operation if possible. After our discussion, on the same day Timi went and hired a speed boat and engine at such water side. Timi deceived the driver that he will take us to Agobiri Community for a ceremony. After the arrangement, three of us entered the speed boat at swah water side and we left for the journey. We drove up to thirty minutes and very close to Agobiri community of Southern Ijaw local government area in Bayelsa State. At a point we ordered the driver to stop and he immediately obeyed. Timi friend brought out a locally made pistol we previously arranged. We threatened the speed boat driver and he jumped into the river, he swum across to the bank of the river. Timi take over the steering and we drove straight to Delta State Bomadi town in Bomdi Local Government Area.”
Section 28 of the Evidence Act, 2011 defines “confession” as “an admission made at any time by the person charged with a crime, stating or suggesting the inference that he committed the crime.” Exhibit “PR16” reproduced above, constitutes a direct, positive and unequivocal admission of the part the Appellant played in the commission of the crime.
He however retracted the statement at the trial and alleged that he did not make a statement. A trial within trial was conducted, the learned trial Judge, being satisfied that the statement was voluntarily made, admitted the statement as exhibit “PR16”.
The argument of the Appellant’s counsel that the confessional statement of the Accused/Appellant relied on by the trial Court to convict the Appellant was involuntarily made is of no moment, and the Appellant did not appeal against the admissibility of the document on the ruling of the trial Court on the trial within trial. Most importantly, it is trite that where an accused person denied making a statement, trial within trial is unnecessary.
It is also the contention of the Appellant’s counsel that the confessional statement of the Appellant, Exhibit “PR16” was not corroborated. This is not correct. PW1 who is the victim of the armed robbery told the Court that the accused persons hired his boat on the 9th of December, 2012 and embarked on the journey to Agobiri the following day which was the 10th of December, 2012. He narrated to the Court how he was approached by a young man if he could take him to Agobiri which he answered yes, and has told him to pay N20,000.00 (Twenty Thousand Naira) which he agreed. PW1 said the young man collected his phone number and called him around five o’clock in the evening and he told him he cannot go again. He said the young man gave him N3,000.00 to pay for a room in the hotel and the following day at 11:00 am he called him that they should start the journey and he carried them and started the journey. PW1 said as they were going, one of them said he wanted to ease himself and he slowed down the boat, removed the engine from the gear when the 3rd person stood up and pointed a gun at him. While the man that negotiated with him to charter the boat removed the key from the engine of the boat. They started searching his pocket and collected the money they paid him and his phone which he bought at Twenty Thousand naira. When he wanted to disconnect the supply of fuel to the engine, one of them saw him and hit him on the neck with his hands, that was when he fell inside the river and they drove off the boat.
The law is settled beyond peradventure that a Court may convict an accused person solely on the basis of his confession even when he retracted or resiled from the confession. It is also the law that where an accused person outrightly denies making a confessional statement, the trial Court should admit the statement in evidence as an exhibit and decide later whether or not such denial avails the accused. See Ikemson Vs State (1989) 3 NWLR (Pt.110)455. The Court should evaluate the confessional statement, the testimony of the accused and the other pieces of evidence adduced at trial to decide if there is any independent or corroborative evidence no matter how slight showing that the offence was committed and it was the accused who committed it. See Onyegbu Vs State (1994)1 NWLR (Pt. 320) 328; Dele Vs State (2011) 1 NWLR (Pt.1229) 508; Adisa Vs State (2019)3 NWLR (Pt.1660) 488 and Sale Vs State (2020) 1 NWLR (Pt.1705) page 205.
To rely on a retracted confessional statement to convict an accused person, the Court would consider the following factors:
(a) Whether there is anything outside the confession which shows that it may be true;
(b) Whether the confession is in fact corroborated;
(c) Whether the relevant statements of fact made in it are most likely true as far as they can be tested;
(d) Whether the accused had the opportunity of committing the offence.
(e) Whether the confession is possible; and
(f) Whether the confession is consistent with other facts that have been ascertained and established- State Vs Musa (2020) 2 NWLR (Pt.1709) 499.
See also Fabiyi Vs State (2015) 18 NWLR (Pt.1490) 80; Okoh Vs State (2014) 8 NWLR (Pt.1410) 502 and Olude Vs State (2014) 7 NWLR (Pt.1405)89.
In the instant case the corroborative evidence of PW1 confirmed in some material particulars, not only that the crime had been committed, but it was the Appellant who committed it.
Where a confessional statement is direct, positive and admits all or some of the elements of the offence charged, and the Court is satisfied that it was made voluntarily, the Court can rely on it to convict even if retracted at the trial – Igbinovia Vs State (1981) 2 SC 5.
A confessional statement is properly regarded as the strongest evidence of guilt of an accused person charged with an offence and so when as in the instant case, the confession is free and positive, it is enough to secure conviction by the prosecution. See Ogudo Vs State (2011) 18 NWLR (Pt.1278)1 and Igri Vs State (2012) 16 NWLR (Pt.1327 522.
The argument of the Appellant’s counsel that the Accused/ Appellant is an illiterate and the statement was recorded in English language without an interpreter is of no moment, because the Accused/Appellant gave his educational background in the statement, and he cannot be said to be an illiterate, as he even signed the statement.
The issue is resolved in favour of the Respondent and against the Appellant.
On issue two, learned counsel for the Appellant submitted that the Prosecution/Respondent did not prove the offences of conspiracy and armed robbery charged against the Appellant beyond reasonable doubt. Learned counsel for the Respondent on the other hand submitted that the prosecution discharged the burden of proof beyond reasonable doubt against the Accused/Appellant by establishing the ingredients of the offences charged.
By virtue of Section 135(1) and (2) of the Evidence Act, 2011, the burden of proving that any person has been guilty of a crime of wrongful act is on the person who asserts it- Sanmi Vs State (2019) 13 NWLR (Pt.1690) 551 at 557; Akpan Vs State (1990) 7 NWLR (Pt.160) 101; Amala Vs State(2004) 12 NWLR (Pt. 888) 520 and State Vs Musa (2020) 2 NWLR (Pt.1709) 499 at 504.
Conspiracy is an agreement between two or more persons, acting in concert or in combination, to accomplish or commit an unlawful/illegal act or to do or to commit an act which is legal/lawful through an illegal/unlawful means. The essential ingredients of the offence of conspiracy lies in the bare agreement and association to do or commit an unlawful act by unlawful means. See Peter Vs State (2018) 13 NWLR (Pt.1635)1 at 4 – 5; Danjuma Vs State (2019) 10 NWLR (Pt.1679) 184; Okanlawon Vs State (2015)17 NWLR (Pt.1489); Babarinde Vs State (2014) 3 NWLR (Pt. 1395) 568 and Martins Vs State (2020) 5 NWLR (Pt.1716) 58 at 65.
The nature of the offence of conspiracy, it is rarely or seldom proved by direct evidence but by circumstantial evidence and inference from certain acts. All that is required by way of proof is either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the offence. There is a finding by the trial Court that from the evidence of PW1 and the confessional statement of the Accused/Appellant, it is not in doubt that the Accused/Appellant and co-accuseds conspired among themselves in tandem to pursue a common purpose to commit the crime, which is correct as shown by the evidence on the record. I fail to see any extenuating circumstances, as the learned counsel for the Appellant would want this Court to believe. To make the picture clearer it was in evidence that Appellant and co-accuseds have agreed to hire a speed boat to Agobiri, and on the way to attack the driver and rob him of the speed boat. This operation was carried out from the evidence of PW1 and the confessional statement of the Accused/Appellant exhibit PR16. The trial Court found the confessional statement corroborating the oral testimony of PW1. I am therefore in complete agreement with the trial Court that the offence of conspiracy was well established against the Appellant.
For the offence of armed robbery to be sustained, the prosecution must establish beyond reasonable doubt the essential elements of the offence which must be proved directly, circumstantially or by the accused’s confessional statement. They are:
a. That there was robbery or series of robberies;
b. The robbery was armed robbery;
c. The accused was the robber or one of robbers.
See Opeyemi Vs State (2019) 17 NWLR (Pt.1702) 403 at 409; Sanmi Vs State (2019) 13 NWLR (Pt.1690) 551 at 556; John Vs State (2019) 9 NWLR (Pt.1676) 160 at 162; Danjuma Vs State (2019) 10 NWLR (Pt.1679) 184 at 188 and State Vs Musa (2020) 2 NWLR (Pt. 1709) 499 at 503.
In the instant case, the trial Court was right in finding that the ingredients of armed robbery were established beyond reasonable doubt against the Appellant.
Taken in context, PW1 testified to have been robbed of his speedboat, engine, money and phone on their way to Agobiri with the Appellant and co-accuseds. The robbery was armed as one the robbers pointed a gun at him. He identified the Appellant and one of the robbers at a burial ceremony as having participated in the robbery. Also PW2, a Police officer testified on the information he received on the robbery and the items lost.
So what else can be more vivid in informing this Court that the Appellant and co-accused persons were in agreement to commit armed robbery? Certainly none.
Proof beyond reasonable doubt is not proof to the hilt. Where, as in the instant case, all the ingredients of the offences charged have been established, then the case has been proved beyond reasonable doubt. See Ismail Vs F.R.N. (2020) 2 NWLR (Pt. 1707) 85 at 93; Adeyemo Vs State (2015) 16 NWLR (Pt.1485) 311; Osuagwu Vs State (2013) 5 NWLR (Pt.1347) 360 and State Vs Fadezi (2018)18 NWLR (Pt.1650)1.
Issue two is also resolved in favour of the Respondent and against the Appellant.
ISSUE THREE
“Whether the conviction of the Appellant is proper in law based on his alleged confessional statement which was not made pursuant to Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015.”
Arguing on this issue, learned counsel for the Appellant submitted that Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015 which provided for statement of the accused to be taken in the presence of a legal practitioner of his choice or legal aid council of Nigeria or an official of a civil society organization or Justice people or any other person of his choice was not complied with.
Secondly, that there is no where it is recorded that the Appellant was cautioned before making the alleged Exhibits PR”16”.
Relying on the case of Inakoju Vs Adeleke (2007) 4 NWLR (Pt.1025)418, it is submitted that where a statute stipulated a particular method of performing an act, that method and no other must be followed. Also referred are System Applications Products (Nig.) Ltd Vs C.B.N. (2004) 15 NWLR (Pt.897) 655; Abubakar Vs A.G. Federation (2002) 3 NWLR (Pt. 1022) 515 at 643 – 644 and Nnajiofor Vs F.R.N. (2018) LPELR -43925 CA, among others.
It is submitted that failure of the Police to follow due process in recording exhibit “PR16”, the confessional statement of the Appellant is impotent and inadmissible. The Court is urged to discharge and acquit the Appellant.
Responding, learned counsel for the Respondent submitted that the Administration of Criminal Justice Act, 2015 is not applicable to exhibit “PR16” which was made in 2013 before the ACJA of 2015. Secondly, that ACJA 2015 is not applicable to Bayelsa State as the applicable law in Bayelsa State is the Administration of Criminal Justice Law Bayelsa State, 2019. That a statute cannot apply retrospectively except when it was to do so by clear and express terms. The Court was referred to Obiuweubi Vs C.B.N (2011) 7 NWLR (Pt.1247) 465 R.16. We are urged to dismiss the appeal.
The contention of the Appellant’s Counsel is on non-compliance with the provision of Section 17(1) and (2) of the Administration of Criminal Justice Act, 2015. The Section reads:
- “Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken if he so wishes to make a statement;
- Such statement may be taken in the presence of a legal practitioner of his choice, in the presence of an officer of Legal Aid Council of Nigeria or an official of a civil society organization or Justice people or any other person of his choice.”
The Administration of Criminal Justice Act, 2015 came into effect in 2015. Exhibit “PR16” was made on the 22nd day of February, 2013. It goes without saying, when Exhibit “PR16” was made there was no ACJA in force. Therefore it is inapplicable to exhibit “PR16” as it cannot take a retrospective effect. Most importantly, Administration of Criminal Justice Act, 2015 is not applicable in Bayelsa State so it will have no effect on Exhibit “PR16”.
On the submission of the Appellant’s counsel on Exhibit “PR16”, that there was no cautionary words stated therein, is not correct. The cautionary words are glaringly stated therein which the Appellant signed as having understood before he made the statement. The law applicable in this case is the law in force at the time the statement was recorded and not the law existing at the time the jurisdiction of the Court is invoked. See N.U.R.T.W. Vs R.T.E.A.N. (2012) 10 NWLR (Pt. 1307) 170 and Zubair Vs Kolawole (2019) 11 NWLR (Pt. 1682) 66.
The Appellant’s counsel is economical with the truth as the cautionary words are clearly stated therein in Exhibit “PR16”. Even if ACJA 2015 is applicable in Bayelsa State, the contents therein are not mandatory but optional. There is no substance in the submission of the Appellant’s counsel on this issue. The Appellant’s reply brief is discountenanced for being repetitive of the main brief.
Issue three is resolved in favour of the Respondent and against the Appellant. All the issues having been resolved in favour of the Respondent, the result is that the appeal is grossly unmeritorious and it is accordingly dismissed.
The Judgment of the Bayelsa State High Court in suit No. OHC/3C/2013 is hereby affirmed.
Others: CA/PH/26CR/2018
