In the Supreme of Nigeria
Holden at Abuja
On Friday, the 8th day of March, 2024
Before Their Lordships
Kudirat Motonmori Olatokunbo Kekere-Ekun
Mohammed Lawal Garba
Helen Moronkeji Ogunwumiju
Adamu Jauro
Tijjani Abubakar
Justices, Supreme Court
SC/CR/ 263/2014
Between
OCHOLI FRIDAY APPELLANT
And
THE STATE RESPONDENT
(Lead Judgement delivered by Honourable Tijjani Abubakar, JSC)
Facts
The Appellant was arraigned and tried on an amended eight count Charge of conspiracy and armed robbery along with two other persons, before the High Court of Justice, Lokoja, Kogi State presided over by Nasiru Ajanah, (CJ as he then was), contrary to Sections 97(1) and 298 (c) of the Penal Code. When the amended charge was read to the Appellant, he pleaded “not guilty” to all the counts. Trial commenced thereafter, and on 2nd December, 2009, the trial court delivered its judgement and found the Appellant and the co-accused guilty of Counts 2 and 6 in connection with the offences of conspiracy to commit armed robbery and armed robbery. While the Appellant was consequently discharged and acquitted on Counts 3, 4, 7, and 8, the 1st Defendant was convicted in respect of Counts 1 and 5. Upon conviction, the Appellant was sentenced to two years and five years imprisonment for the offences of conspiracy and armed robbery, respectively.
Aggrieved by the decision of the trial court, the Appellant filed an appeal to the Appeal Court. In the judgement of the Court of Appeal delivered on 31st January, 2014, the court dismissed the appeal and affirmed the conviction and sentence of the Appellant. Dissatisfied by the decision of the Court of Appeal, the Appellant further appealed to the Supreme Court via a Notice of Appeal dated 26th February, 2014 but filed on the 28th day of February, 2014.
Issue for Determination
The Apex Court considered the following issue raised as issue 2 in the Appellants’ issues for determination:
Whether the lower court’s failure to re-evaluate the evidence led before the trial court vis-à-vis the Appellant’s mens rea in the commission of the offence, did not occasion a miscarriage of justice?
Arguments
Counsel for the Appellant submitted that appeal from the High Court to the Court of Appeal are by way of rehearing, and an appeal provides an opportunity for the appellate court to look at the circumstances, facts and evidence before the trial court which culminated into the judgement. Counsel contended that though the Appellant’s testimony was not contradicted at the lower courts, both courts erred when they found nothing wrong with the mode by which the Appellant’s extra-judicial statement was taken, and which raised doubt as to its voluntariness. Counsel urged the court to take judicial notice of the fact that the Police interrogated the Appellant alone in the absence of a counsel, as well as his uncontroverted evidence before the trial court, and that this sufficed to taint the Appellant’s extra-judicial statement. Counsel cited Sections 122(1) and 124 of the Evidence Act, SARAKI v KOTOYE (1990) 4 NWLR (Pt. 143) 144 AT 195, PARAS B- C and urged the court to resolve the issue in favour of the Appellants and allow the appeal.
Responding, counsel for the Respondent contended that the Appellant had not demonstrated that the failure of the lower Court to re-evaluate evidence, had occasioned a miscarriage of justice to him. Counsel submitted that since the Appellant’s complaint relates to the review of documentary evidence including Exhibit 8, that is, the Appellant’s extra-judicial statement which was a product of a ruling delivered in connection with trial-within-trial proceedings, the Appellant could only attack same by filing an interlocutory appeal, or incorporating the interlocutory appeal into the substantive appeal, since the ruling on the trial-within-trial is an appealable decision within the context of Section 25(1)(b) of the Court of Appeal Act, relying on STATE v DUKE (2003) 5 NWLR (Pt. 813) 394.
Counsel also drew the court’s attention to the fact that the Appellant did not file a distinct ground of appeal against the said ruling, or challenge the specific finding of the trial court in connection with the trial-within-trial.
In response to the Appellant’s argument that PW7’s evidence is hearsay, Counsel for the Respondent argued that the trial court convicted the Appellant not only based on the evidence of PW7 which was unchallenged during cross-examination, but also based on the testimony of the Investigating Police Officers. Counsel added that the failure to cross-examine a material witness, is deemed to be an acceptance of the truth of the evidence of the witness. He relied on – OLA v STATE (2018) LPELR-44983(SC) 22 – 23, PARAS C – D, in this regard. Counsel also relied on MUSA v NIGERIAN ARMY (2016) LPELR-41595 to argue that PW7, being a direct victim of the acts of armed robbery for which the Appellant was charged, qualified as a witness.
Court’s Judgement and Rationale
In resolving the issue, the Supreme Court noted that in criminal cases, as in the instant appeal, the prosecution is expected to prove the case against an accused person beyond reasonable doubt. Therefore, before a person can be convicted of an offence, the court must be satisfied that the guilt of the person has been established beyond reasonable doubt – LORI v STATE (1980) 8-11 SC 81.
The Court re-echoed the three modes of proving the guilt of an accused person are: (a) direct proof – by the testimonies of eyewitnesses who witnessed the commission of the crime(s) by the accused person(s); (b) through the confessional statements voluntarily made by the accused person(s); and (c) indirect proof – through circumstantial evidence, which irresistibly point to the fact that the accused person(s), and no other, committed the offence(s) and any one of these methods can be used to establish the guilt of an accused person – IGABELE v STATE (2006) 6 NWLR (Pt. 975) 100 (SC).
The Apex Court noted that, in reaching the decision to convict the Appellant, the learned trial Judge acted on the extra-judicial statements made by the Appellant and the co-accused person, as well as the evidence of PW7 to establish the guilt of the Appellant beyond reasonable doubt. However, on the evidence of PW7, the Apex Court agreed with the submission of Counsel for the Appellant that same amounted to hearsay. This was because during cross-examination by Counsel for the 1st Defendant, PW7 confirmed at page 128 of the records of appeal that he “was not at home when the armed robbers visited (his) house.” The court held thus: it is elementary law that oral evidence must, in all cases whatsoever, be direct. See Section 126(a), (b) and (c) of the Evidence Act, 2011. Clearly, evidence of a statement made by a person, other than a witness testifying in court, which is offered to prove the truth of the statement, is inadmissible as hearsay evidence. A witness is expected to testify in court on oath on what he knows personally, if the witness testifies on what he heard some other persons say, his evidence is hearsay and inadmissible. See Section 38 of the said Evidence Act, 2011 and the old case of UTTEH v THE STATE (1992) LPELR-6239(SC) 21, PARAS A–B. The court then proceeded to expunge the evidence of PW7.
Thereafter, the Supreme Court directed itself to the extra-judicial statements of the Appellant, Exhibits 2 and 8. The court found that when the prosecution sought to tender Exhibit 2, the Appellant’s extra-judicial statement made on 8th November, 2007, Counsel for the Appellant objected on the ground that the said statement was not made by the Appellant, and denied making the statement. Their Lordships restated the position of the law that a court can convict on a confessional statement retracted at the trial, if it is satisfied that the accused person made the statement in circumstances which give credibility to the contents of the confession.
The Supreme Court noted that the learned trial Judge did not convict the Appellant based on Exhibit 2 alone, but also acted on other evidence before it, including Exhibits 6 and 8, which were the extra-judicial statements of other co-accused and the second extra-judicial statement obtained from the Appellant respectively. The court found that although the Appellant had indeed objected to the admissibility of Exhibit 8, contending that same was not voluntarily made, however, the learned trial Judge conducted a trial-within-trial in accordance with laid down procedure in criminal trials and found that the Appellant had not been tortured into making Exhibit 8, and that same was voluntarily made. The Supreme Court also found that from the confessional statement, the Appellant clearly admitted the ingredients of the offence of armed robbery and also vividly gave details of how the Appellants and other co-accused achieved the common goal of carrying out the armed robbery. Thus, the absence of an express agreement between the Appellant and the others was of no moment, as the said conspiracy could be inferred from the criminal acts of the parties.
Conclusively, the Apex Court held that an accused person may be convicted solely based on his confessional statement if it is positive, direct, unequivocal and voluntarily made, and consistent with other ascertained facts. Therefore, even without the evidence of PW7, the Appellant can be rightly and sufficiently convicted on his confessional statement alone, and this was rightly done in this case.
Appeal dismissed.
Representation
Ibrahim Gamdeh Adamu with Chuks Udo-Kalu and Jerry Joseph Dabo for the Appellant.
Liman Salihu for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)
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