Retraction of Confessional Statement – Duty of Court Thereby
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 7th Day of May, 2021
Before Their Lordships
Musa Dattijo Muhammed
Chima Centus Nweze
Helen Moronkeji Ogunwumiju
Justices, Supreme Court
Mosunmola Kolawole Appellant
The State Respondent
“Where a Confessional Statement has been retracted, the court is bound to apply the probability test in R v. SKYES (1913) 8 CAR 223. This is for a retraction or denial of a Confessional Statement does not affect its admissibility.”
(Lead judgement delivered by Helen Moronkeji Ogunwumiju, JSC)
The Appellant herein and one Issa Bio, were arraigned before the High Court of Ogun State, Ayetoro Judicial Division, on a two-count Charge of conspiracy to commit armed robbery, and armed robbery contrary to Sections 6(a) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, CAP R.11 Laws of the Federation of Nigeria, 2004 respectively. The case of the Respondent as Prosecution at the trial court was that on the 5th of March 2010, at about 12:30am, at the cattle ranch at Joga Ayetoro, three people came to attack PW1. They tied him and his wife up and raped his daughter. They also stole the sum of N22,000 from them. One of the children of PW1, who was a bit far from the scene, heard the noise and ran to tell PW2, who then alerted the police. The robbers were pursued and arrested, one of whom was the Appellant. Their extra judicial statements were tendered and admitted in evidence as Exhibits CC, DD, EE, and FF. During the trial, the Appellant raised an objection regarding the admissibility of Exhibit CC on the ground that it was not voluntarily made. The lower court conducted a trial-within-trial and found that the Confessional Statement was voluntarily made and proceeded to admit same as Exhibit CC. The learned trial Judge found the Appellant and his Co-Defendants guilty of the offences with which they were charged. The appeal to the Court of Appeal was equally not successful. The Appellant further appealed to the Supreme Court.
Issue for Determination
“Whether from the entirety of materials and evidence available on record, the lower court was right in upholding the conviction of the Appellant by the trial court.”
Submitting on the sole issue, counsel for the Appellant argued that PW1’s testimony under cross-examination contradicted his evidence-in-chief where he stated that he recognised the Appellant as one of his attackers. Counsel submitted that material contradictions can be drawn from the testimonies of PW2 and PW3 and it is with regards to the number of people arrested at the scene of the accident and on the way from the victim’s residence. Counsel relied on UDOSEN v. THE STATE (20007) 1 SCNJ 482. It was submitted further that the Respondent failed to prove the elements necessary to sustain the commission of the offence of conspiracy to commit armed robbery and armed robbery. Counsel argued that PW1 in his account clearly stated that he did not have the opportunity to note the facial features of his attackers, he never had previous contacts with them before the alleged incident and visibility at the time of the incident was very poor. Counsel submitted that the evidence of PW1 supports the facts that the prosecution failed to meet the standard of proof required to sustain a conviction in this case. He relied on ANEKWE v. STATE (2014) 10 NWLR (Pt. 1415). It was also his submission that the Appellant was not arrested at the scene of the crime, neither was his identity as one of the perpetrators established by the prosecution. Counsel urged the court to resolve this issue in favour of the Appellant and to further hold that that the Respondent did not lead cogent evidence to connect the Appellant to the commission of the crime especially because the money stolen was not recovered from the Appellant who was arrested immediately after the offence was committed. Regarding the failure of the prosecution to tender the weapon used in the alleged commission of the crime, counsel submitted that where the prosecution led evidence that weapons were recovered from the Defendants/ Accused persons, failure to tender the weapons found on the Accused person raises doubt in the prosecution’s case. Counsel argued that reasons must be given why the weapons were not tendered in evidence and failure to so do, the court should invoke the provisions of Section 167(d) of the Evidence Act, 2011 against the preosecution.
In response to the submission above, learned counsel for the Respondent argued that the witnesses gave clear and compelling evidence regarding the identity of the Appellant as one of the robbers caught running away from the scene of the crime. Counsel argued that there was no material contradiction on the issue of the identity of the Appellant since he was practically caught at the scene of the crime and confessed to the crime even though he retracted the confession. He urged the court not to disturb the concurrent findings of the two lower courts. Counsel argued further on behalf of the Respondent that the Appellant made a mountain out of a molehill on what he considered contradictions in the evidence of the Respondent at the trial court. He urged the court to adopt the reasoning in MUSA v. THE STATE (2009) 15 NWLR (Pt. 1165) wherein the court held that not all minor contradictions should vitiate the case of the prosecution. Counsel submitted further that the evidence of PW1, PW2 and PW3 successfully linked the Appellant and his Co-Defendants at the trial court to the crime. Specifically, the testimonies of PW2 and PW3 resonated with and corroborated Exhibits CC & EE wherein the Appellant confessed to having committed the crimes. He argued that PW2 in his evidence stated that he knew the persons in the vehicle were the ones who robbed PW1 because they met the vehicle on the only road that led to the Gaa where PW1 was robbed. The Cows of P.W. 1 were in the vehicle according to the testimonies of PW2 and PW3. The Appellant admitted in his statement that they came for the robbery with cutlasses. Counsel also argued that the evidence of PW1, PW2 and PW3 were not challenged neither were they impugned under cross examination by counsel for the Appellant and that the trial High Court was bound to accept same and act on those evidence which corroborated the Confessional Statement of the Appellant. Counsel submitted that the Charge of armed robbery was proved beyond reasonable doubt by the prosecution.
Court’s Judgement and Rationale
In deciding the sole issue, the Supreme Court held that a careful perusal of the testimony of PW1 would readily reveal that counsel for the Appellant made an attempt to interprete what PW1 never said or meant. From the evidence on record, the Appellant and the other Defendants were arrested on the only way that led to the Gaa shortly after the armed robbery with the cows which were stolen from PW1. It stands to reason therefore, that PW1 later knew the identity of those who came to rob him. Hence, he was factually correct and not self-contradictory in his testimony. The apex court also held that where a Confessional Statement has been retracted, the court is bound to apply the probability test in R v. SKYES (1913) 8 CAR 233 and approved in a plethora of authorities by the Supreme Court such as KARIMU SUNDAY v. THE STATE (2017) LPELR-42259 (SC), as follows: (i) Is there anything outside the confession to show that it is true; (ii0 Is it corroborated: (iii) Are the relevant statements made in it of facts true as far as they can be tested; (iv) Was the prisoner one who had the opportunity of committing the murder; (v) Is his confession possible, is it consistent with other facts which have been ascertained and have been proved. The court held that in this appeal, the Confessional Statement of the Appellant was amply corroborated by the evidence of the prosecution witnesses.
The court held further that in spite of the fact that Exhibit CC and EE are sufficient in law to justify the conviction of the Appellant for the offences of Conspiracy to commit Robbery and Armed Robbery, there are other pieces of evidence on record as adduced at the trial of the Appellant which did not only support Exhibit CC but justified the conviction of the Appellant. Specifically, the testimonies of PW2 and PW3 that the Appellant and his gang were arrested in the vehicle that they used in conveying the cows they robbed PW1 of, which corroborated Exhibits CC & EE. The Appellant admitted in his statement that they came for the robbery with cutlasses and according to Section 11(1) the interpretation section of the Robbery and Firearms Act defines “Weapon” to include Cutlass etc.
Regarding the issue about contradictions in the evidence of the prosecution witnesses and how they should be resolved, the court held that there were no material contradictions in the evidence of the PW1, PW2 and PW3 to warrant interference with the concurrent findings of fact of the trial court and the Court of Appeal. The court stated further that the witnesses gave clear and compelling evidence as regards the Appellant being one of the robbery gangs in addition to the Appellant’s own Confessional Statement. There can be no serious issues about identity of the offenders as the Appellant and his cohorts were caught on the spot. The court, relying on UKPABI v. STATE (2004) 11 NWLR (Pt. 884) 884, held that where a Defendant is caught on the spot, the question of identification is a non-issue.
Their Lordships held that the burden of proving the guilt of a Defendant/Accused person for the offences he was charged with beyond reasonable doubt is discharged when the prosecution proves by evidence the ingredients or elements of the offences charged. The court, in this instance, was persuaded that the prosecution discharged the burden of proof beyond reasonable doubt. The apex court declined the invitation to disturb the concurrent findings of fact by the two lower courts, as they were not shown to be perverse or led to a gross miscarriage of justice. The court relied on CHIJIOKE ORLU v. CHIEF MPAKABOARI AGOGO-ABITE (2010) 1 SCJN 32.
Aderemi Oguntoye with B.B. Lawal and A.H. Arhere for the Appellant.
Olatunde Abegunde for the Respondent.
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