Whether Courts Can Admit And Act On Alleged Confessional Statements Without First Testing Their Veracity

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ABAYOMI ISHOLA v. THE STATEsuit
no: CA/G/196C/2017

Legalpedia Electronic Citation: (2021)
Legalpedia (CA) 37817

Areas Of Law:

Appeal, Court, Criminal Law And Procedure, Law Of Evidence,
Practice And Procedure, Words And Phrases

Summary Of Facts:

On or about the 2nd day of August 2012, there was an armed
robbery incident at Km 14, Idiroko Road, Iju-Ota, Ogun State. The
Toyota Camry Car belonging to the PW1 was stolen during the
robbery.

Shortly after the robbers made their getaway, the PW1 raised an
alarm and a report of the robbery was lodged with the Police.

Subsequently, information filtered to the PW1 that a Toyota
Camry Car, which matched the description of his stolen car was
recovered by the Police from the Appellant, who was seen driving
the car, and was unable to produce the vehicle particulars when the
Police stopped him and demanded for the same.

The PW1 proceeded to where the vehicle was said to have been
recovered and identified the vehicle as his own, which was stolen
at a robbery incident in his house that day.

The Appellant was eventually arraigned before the High Court of
Ogun State, on an Information which preferred charges of conspiracy
to commit armed robbery and armed robbery contrary to and
punishable under Sections 1 (2) (a) 1 and 6 (b) of the Robbery and
Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation
of Nigeria.

The Appellant pleaded not guilty and the matter went to
trial. At the end of the trial, the lower Court, in its
judgment convicted the Appellant as charged and sentenced him to
death.

Peeved by the trial court’s decision, the Appellant filed an
appeal to this Court.

HELD:

Appeal Dismissed
ISSUES FOR DETERMINATION

Ø Whether having regard to the circumstances of this
case and the evidence on record, the lower Court was right in
holding that the charges against the Appellant were proved beyond
reasonable doubt.

RATIONES

FORMULATION OF ISSUES FOR DETERMINATION – WHETHER AN
APPELLATE COURT IS OBLIGE TO REFORMULATE ISSUES FOR DETERMINATION
IN AN APPEAL

“It is settled law that an appellate Court can adopt the issues
formulated by the parties, but the Court is not only obliged, it is
entitled to, in the interest of justice, to reframe or reformulate
issues from the grounds of appeal in a manner that would bring out
what is really in controversy and for the purposes of accuracy,
clarity, brevity and precision that would lead to a proper
determination of the appeal. See Okeke vs. The State
(2016) LPELR (26057) 1 at 28-31, Kayode vs. The State (2016) LPELR
(40028) 1 at 8-9, The State vs. Sani (2018) LPELR (43598) 1 at
10-12 and Salawu vs. FRN (2019) LPELR (50060) 1 at 4-5.
. PER U. A. OGAKWU, J.C.A

STANDARD OF PROOF – NATURE OF THE STANDARD OF PROOF IN
CRIMINAL TRIALS

“Under our adversarial criminal justice system, the Prosecution
has the onus of proving the commission of the crime charged. By
Section 135 of the Evidence Act, the standard of proof in a
criminal case is proof beyond reasonable doubt. The lower Court
held that the said standard of proof was attained, consequent upon
which it convicted and sentenced the Appellant to death. Proof
beyond reasonable doubt means proof of an offence with the
certainty required in a criminal trial. That certainty is that the
offence was committed, which is established by proving the
essential ingredients of the offence, and that it is the person
charged therewith that committed the offence . PER U.
A. OGAKWU, J.C.A

PROOF BEYOND REASONABLE DOUBT – WHAT AMOUNTS TO PROOF
BEYOND REASONABLE DOUBT?

“There is nothing esoteric in the apothegm that in criminal
trials the burden is on the Prosecution to prove the offence
charged beyond reasonable doubt. Proof beyond reasonable doubt does
not mean proof beyond all shadow of doubt and if the evidence is
strong against a man, as to leave only a remote probability in his
favour, which can be dismissed with the sentence: “of course it is
possible, but not in the least probable”, then the case is proved
beyond reasonable doubt. See Miller vs. Minister Of
Pensions (1947) 2 ALL E.R. 372, Michael vs. The State (2008) LPELR
(1987) 1 at 24 and Bakare vs. The State (1987) 3 SC 1 or (1987)
LPELR (714) 1 at 12-13″. PER U. A. OGAKWU,
J.C.A

PROOF BEYOND REASONABLE DOUBT – MEANING OF PROOF BEYOND
REASONABLE DOUBT

“Proof beyond reasonable doubt does not mean or import beyond
any degree of certainty. The term strictly means that within the
bounds of the evidence adduced before the Court, no tribunal of
justice would convict on it having regard to the nature of the
evidence led in the case. It should be a proof that excludes all
reasonable inference or assumption except that which it seeks to
support. It must have clarity of proof that is readily consistent
with the guilt of the accused person. See The State
vs. Onyeukwu (2004) 14 NWLR (PT 893) 340 at 379-380 and Onianwa vs.
The State (2015) LPELR (24517) 1 at 40-41.

I iterate that proof beyond reasonable doubt means proof of an
offence with the certainty required in a criminal trial. That
certainty is that the offence was committed, which is established
by proving the essential ingredients of the offence, and that it is
the person charged therewith that committed the offence. Generally,
in criminal trials, the burning issue is not ordinarily whether or
not the offence was committed. Most often, the disceptation is on
the identity of the person or persons alleged to be the actual
perpetrators of the offence charged: Ndidi vs. The
State (2007) 13 NWLR (PT. 1052) 633 at 651. PER U. A. OGAKWU,
J.C.A

GUILT OF AN ACCUSED PERSON – WAYS OF PROVING THE GUILT
OF AN ACCUSED PERSON

“It is settled law that there are three ways or methods of
proving the guilt of an accused person, namely:

By reliance on a confessional statement of an accused person
voluntarily made.
By circumstantial evidence.
By evidence of eyewitnesses.

See Emeka vs. The State (2001) 32 WRN 37 at 49,
Okudo vs. The State (2011) 8 NWLR (PT. 1234) 209 at 236 and Adeyemo
vs. The State (2015) LPELR (24688) 1 at
16. PER U. A. OGAKWU, J.C.A

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE
AND PROCEDURE

OFFENCE OF ARMED ROBBERY – INGREDIENTS A PROSECUTION
MUST ESTABLISH BEYOND REASONABLE DOUBT IN ORDER TO SECURE A
CONVICTION FOR ARMED ROBBERY.

“The law is settled beyond peradventure on the conjunctive
ingredients which the prosecution has to establish beyond
reasonable doubt in order to secure a conviction for armed robbery.
They are:

That there was a robbery.
That the robbery was an armed robbery.
That the accused person was one of the armed robbers.

See Bozin vs. The State (1985) LPELR (799) 1 at 6,
Ikemson vs. The State (1998) 1 ACLR 80 at 103 and Ogogovie vs. The
State (2016) LPELR (40501) 1 at 10-11.

As stated by Learned State Counsel, the law is settled under the
provisions of Section 167 (a) of the Evidence Act is that a man
found in possession of stolen goods soon after the theft is either
the thief or has received the goods knowing them to be stolen,
unless he can account for his possession, and which position the
Courts have truly restated in a plethora of cases
including Afolabi vs. The State (supra). PER U. A.
OGAKWU, J.C.A

“ON OR ABOUT” – MEANING OF “ON OR ABOUT”

“Critical in the resolution of the contention in this regard is
the underlined phrase “on or about” employed in the Charge.
Happily, there exists judicial decisions on the meaning of this
phrase when it is employed in a Charge. In Awopejo vs.
The State (2000) 6 NWLR (PT 659) 1 at 13, this Court (per
Amaizu, JCA) stated as follows:

“It is common ground that the charge on which the appellants
were arraigned alleges that ‘on or about the 29th day of September,
1993, the appellants caused the death of one Alhaji Issa…’

It is suggested that because of the evidence before the Court
that the deceased was murdered on 30/9/93… One may ask what does
the phrase ‘on or about 29th September, 1993’ in the charge mean.
Does it mean that the offence was committed precisely on 29th day
of September, 1993? I do not think so. This is because the word
‘or’ when used in a sentence introduces an alternative and it is
sometimes used to express uncertainty about a thing. On the other
hand, the word ‘about’ means ‘a little more or less than’, ‘a
little before or after’. See Oxford Advanced Learners Dictionary.
It is because of this that when the phrase ‘on or about’ is used in
a charge it is not necessary to prove the precise date the alleged
offence was committed.”

See also Rex vs. Eronini 14 WACA 366 and Akpa vs.
The State (2006) LPELR (7603) 1 at 22-23. Recently
in Muhammed vs. The State (2020) LPELR (51006) 1 at
10-13, Daniel-Kalio, JCA, forcefully stated the legal
position, inter alia, as follows:

“With regard to the argument that the contents of the
confessional statements did not reflect the commission of the crime
having regard to the time of the commission of the crime as stated
in the Charge, a look at the wording of the Charge as regards the
time of the commission of the crime shows that it is not very
specific as to the time of the crime. The charge reads…

‘on or about the 23rd day of November, 2016…’. Now, the phrase
‘on or about’ has received judicial interpretation in a number of
cases. …where the phrase ‘on or about’ is used in a charge, it is
not necessary to prove the precise date the alleged offence was
committed. It is clear to me that the phrase ‘on or about’ is used
to indicate an approximate time or location. When used in a charge,
… It is to prevent a variance between the charge and the proof of
the charge whether through a confessional statement or some other
evidence. Thus, the argument of the Appellant’s Learned Counsel
that the lower Court should not have given credence to the
confessional statements of the Appellant because their content as
to the date of the commission of the crime is not in harmony with
the date of the commission of the crime as stated in the charge, is
misconceived.”

See also Veepee Industries Limited vs. Cocoa
Industries Ltd (2008) LPELR (3461) 1 at
20. PER U. A. OGAKWU, J.C.A

CONFESSIONAL STATEMENT – WHETHER COURTS CAN ACT ON
RETRACTED CONFESSIONAL STATEMENT WITHOUT FIRST APPLYING THE TEST
FOR DETERMINING THE VERACITY OR OTHERWISE OF THE CONFESSIONAL
STATEMENT

“Undoubtedly, the legal position is that a Court cannot act on a
retracted confessional statement without first applying the test
for determining the veracity or otherwise of the confessional
statement. The law enjoins the Court to seek any other evidence,
however slight, or circumstances which make it probable that the
confession is true: R vs. Sykes (1913) 1 Cr. App. R
233, Nwaebonyi vs. The State (supra), Akinmoju vs. The State (2000)
4 SC (PT. I) 64 at 81 and Ubierho vs. The State (2005) 7 MJSC 168
at 188-189. PER U. A. OGAKWU, J.C.A

CONFESSIONAL STATEMENT – TEST TO DETERMINE THE VERACITY
OF A CONFESSIONAL STATEMENT

“It is thus apposite at this stage to consider the confessional
statements of the Accused person and consider whether it can pass
the tests laid down to ascertain its truth by looking for other
evidence outside it, no matter how slight in order to ascribe
probative value to it. The tests so laid down which are herewith
reproduced are contained in the Supreme Court decision
of Dawa & Anor & Vs The State (1980) 8-11 S.C.
147

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

(2) Is it corroborated?

(3) Are the relevant statements made in it of facts, true 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?

– PER U. A. OGAKWU, J.C.A

OFFENCE OF ARMED ROBBERY – WHETHER A PRINCIPAL OFFENDER
IS LIABLE TO BE CONVICTED FOR THE OFFENCE OF ARMED
ROBBERY

“The Appellant, by operation of law, is a principal offender and
remains liable as such. Section 6 (a) and (b) of the Robbery and
Firearms (Special Provisions) Act, the enactment under which the
Appellant was charged, tried and convicted provides thus:

“6. Any person who –

(a) aids, counsels, abets or procures any person to commit an
offence under Section 1, 2, 3 or 4 of this Act; or

(b) conspires with any person to commit such an offence; or

whether or not he is present when the offence is committed or
attempted to be committed, shall be deemed to be guilty of the
offence as a principal offender and shall be liable to be proceeded
against and punished accordingly under this Act.”

See Adekoya vs. The State (2017) LPELR (41564) 1 at
18, Odewole vs. The State (2021) LPELR (52833) 1 at 24 and Aliu vs.
The State (2021) LPELR (53354) 1 at 40-42. PER U. A. OGAKWU,
J.C.A

DOCTRINE OF RECENT POSSESSION – OPERATION OF THE
DOCTRINE OF RECENT POSSESSION

“Section 167 (a) of the Evidence Act 2011 enacts as follows:

“167. The Court may presume the existence of any fact which it
deems likely to have happened, regard shall be had to the common
course of natural events, human conduct and public and private
business, in their relationship to the facts of the particular
case, and in particular the Court may presume that –

(a) a man who is in possession of stolen goods soon after the
theft is either the thief or has received the goods knowing them to
be stolen, unless he can account for his possession.”

The above stipulation, which enacts the doctrine of recent
possession, is a rebuttable presumption of fact. Presumptions of
fact are logical inference drawn from other known facts. By the
provision the presumption that the person in possession of stolen
goods soon after the theft is either the thief or the receiver of
the stolen goods, is rebutted where the person can account for his
possession of the goods. The legal consequence of arriving at a
presumption is to call on the Appellant to produce contrary
evidence. For the doctrine to operate there ought to be
evidence:

1) That the person was found in possession of some goods.

2) That those goods were recently stolen.

3) That the person failed to account for his possession of the
goods.

See Eze vs. State (1985) LPELR (1189) 1 at 11-13 or
(1985) 3 NWLR (PT. 13) 419 at 436, Ehimiyein vs. The State (2016)
LPELR (40841) 1 at 29-30 and Madagwa vs. The State (1988) LPELR
(1804) 1 at 49-51. Where there is enough explanation
as to how the person came by the property, the presumption will not
apply. In State vs. Nnolim (1994) 6 SCNJ 48 or (1994)
5 NWLR (PT. 345) 394 at 410, Adio, JSC stated as
follows:

“An explanation by the accused person of the way in which a
stolen property came into his possession which might be reasonably
true and which is consistent with innocence, although the Court may
not be convinced of its truth would displace the presumption.”

Consequently, an accused person may rebut the presumption by
giving evidence on the balance of probability and where the
explanation is reasonable the onus on the accused person is
discharged and the presumption will not apply.
See Yongo vs. COP (1990) 5 NWLR (PT. 148) 103 and
Omopupa vs. State (2007) LPELR (8571) 1 at 28. PER U. A. OGAKWU,
J.C.A

DOCTRINE OF RECENT POSSESSION –WHETHER AN ACCUSED PERSON
CAN BE CONVICTED ON THE OFFENCE OF RECENT POSSESSION BASED ON HIS
RETRACTED CONFESSIONAL STATEMENT

“The possession of the stolen vehicle was truly recent in light
of the proximity of time in the robbery and when the vehicle was
recovered from the Appellant; indeed, it was the same day of the
robbery. In the circumstances, it was therefore open to the lower
Court to convict the Appellant for the offence as there was the
further evidence to buttress the application of the doctrine in the
eyewitness testimony of the PW1, which put the Appellant at the
scene of crime, the circumstantial evidence of the Appellant being
apprehended with the vehicle, which is strengthened by the
confessional statement of the Appellant that the vehicle was
recovered from him; which confessional statement, though retracted,
has ample corroboration from the other evidence, outside the
confession adduced by the Prosecution and as rightly found and held
by the lower Court. See Gbadamosi vs. The State (1992)
LPELR (1313) 1 at 18-19, The People Of Lagos State vs. Umaru (2014)
LPELR (22466) 1 at 51-52 and Kolawole vs. The State (2015) LPELR
(24400) 1 at 50. PER U. A. OGAKWU, J.C.A

PROOFS OF EVIDENCE –WHETHER PROOFS OF EVIDENCE IS A
PIECE OF LEGAL OR JUDICIAL EVIDENCE WHICH A COURT CAN ACT
UPON

“It is rudimentary law that proofs of evidence are mere
summaries of statements of witnesses to be called by the
Prosecution and it is settled law that they are not pieces of legal
evidence on which the Court acts. They are not pieces of judicial
evidence in proof of a crime in the Court. See FRN vs.
Wabara (2013) LPELR (20083) 1 at 20-21, Dada vs. FRN (2014) LPELR
(24255) 1 at 15, Idagu vs. The State (2018) LPELR (443443) 1 at 38
and Erhadavwe vs. The State (2020) LPELR (52418) 1 at 64.
Accordingly, the summaries of statements by a witness in the proof
of evidence not being a piece of legal or judicial evidence which a
Court can act upon, cannot be equated to the testimony of a witness
given in Court under oath and subjected to the crucible of cross
examination such that it can be said that there is a contradiction
between the testimony of the witness in Court and what is
summarised in the proof of evidence. No! That is not the Law as I
know it. PER U. A. OGAKWU, J.C.A

CRIMINAL TRIAL – WHETHER THE PROSECUTION IS OBLIGATED TO
CALL EVERY AVAILABLE PIECE OF EVIDENCE TO PROVE ITS
CASE

“It is abecedarian law that the prosecution is not required to
call every available piece of evidence to prove its case. It
suffices if sufficient evidence is called to discharge the onus of
proof beyond reasonable doubt. See Odili vs. The State
(1977) LPELR (2221) 1 at 10, Theophilus vs. The State (1996) LPELR
(3236) 1 at 18-19, Afolalu vs. The State (2010) LPELR (197) 1 at
32-33 and Mukoro vs. FRN (2015) LPELR (24439) 1 at 27. The
Prosecution has a discretion when it comes to who to call as a
witness: Adaje vs. The State (1979) 6-9 SC 18 at
28. Where the Appellant considered that any potential
witnesses from Onipanu Police Station was a vital witness, then the
Appellant should have called such a witness and not expect the
Prosecution to call him, when nothing stopped the Appellant from
calling him. See Nwaeze vs. The State (1996) 2 NWLR
(PT. 425) 1 at 15, Asariyu vs. The State (1987) 4 NWLR (PT. 67)
709, Ogbodu vs. The State (1987) 2 NWLR (PT. 54) 20 and Eze vs. The
State (2013) LPELR 1 at 29″. PER U. A. OGAKWU, J.C.A

FACTS – CONCEPT OF FACTS

“Facts are the fountainhead or arrowhead of the law. The
decision in a case is intimately related to the facts that induced
the decision. Where the facts of a given matter are different from
the decision in an earlier case, it will be pulling the ratio in
the earlier case out of context and giving it a general application
if it is sought to apply the decision to totally different facts.
Therefore, the principle laid down in Ogudo vs. The
State (supra) and relied upon by the Appellant will only
be applicable where the diacritical facts of this matter are the
same as the facts that induced the decision in the said case.
See Adegoke Motors Ltd vs. Adesanya (1989) 5 SC 92 at
100, Fawehinmi vs. NBA (NO. 2) (1989) 2 NWLR (PT. 105) 558 at 650,
Onwuamadike vs. IGP (2018) LPELR (46039) 1 at 31, Okoye vs. COP
(2020) LPELR (50102) 1 at 26 and Ezeogwum vs. COP (2020) LPELR
(50103) 1 at 26. PER U. A. OGAKWU, J.C.A

PROOF OF EVIDENCE – WHETHER PROOF OF EVIDENCE IS
JUDICIAL EVIDENCE ON THE BASIS OF WHICH A COURT CAN HOLD THAT THE
PROSECUTION FAILED TO TENDER THE STATEMENT BY AN ACCUSED
PERSON

“The summary of what he is to testify to, contained in the proof
of evidence, is not judicial evidence on the basis of which a Court
can hold that the prosecution failed to tender the statement
volunteered by the Appellant at Onipanu Police
Station: Idagu vs. The State (supra), FRN vs. Wabara
(supra) and Dada vs. FRN (supra). PER U. A. OGAKWU,
J.C.A

Statutes Referred To:

Evidence Act 2011
Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of
the Federation of Nigeria