➥ CASE SUMMARY OF:
Friday Charles v. The State of Lagos (SC.CR/503/2020, Friday March 31 2023)
by Branham Chima.
➥ ISSUES RAISED
Offence of conspiracy;
Conviction is fatal;
➥ CASE FACT/HISTORY
The appellant was tried and convicted by the trial Court, Lagos State High Court, for conspiracy to commit armed robbery and armed robbery contrary to Sections 297 and 295(2) (a) of the Criminal Law of Lagos State 2011 respectively. The trial Court’s judgment was delivered on the 22nd September, 2016. The instant appeal is against the Court of Appeal’s affirmation of the trial Court’s judgment contained in the former’s decision delivered on 19th December, 2019. The appeal to this Court is on four grounds as contained in the notice of appeal dated and filed on 17th March, 2020.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the learned Justices of the Court of Appeal were right to have affirmed the Appellant’s conviction, when the Prosecution failed to prove the offences of conspiracy to commit armed robbery and armed robbery against him beyond reasonable doubt?
RESOLUTION: IN APPELLANT’S FAVOUR. (The conviction is fatal).
[A CONFESSIONAL STATEMENT WILL NOT GROUND A CONVICTION ALONE
‘It is long established that a Court of law will not anchor its decision solely on the confessional statement of the accused to convict him. The Court’s failure to look out for other material facts which corroborate the confessional statement in convicting him remains fatal.’
THE EVIDENCE OF THE TWO WITNESSES NEVER PLACED THE APPELLANT AS A PARTICIPANT IN THE ARMED ROBBERY
‘The respondent relied on two witnesses PW1, Kingsley Obasi, a staff of the supermarket, from whom the money the subject matter of the armed robbery appellant was convicted for was snatched. The IPO was the other witness. The evidence of the two witnesses never placed the appellant as either a participant in the armed robbery or the agreement to commit same. Nothing, absolutely nothing outside the confessional statements of the appellant and his co-accused link the appellant with the two offences he has concurrently been found guilty of by the two Courts below. The concurrent findings of the two Courts arrived at in breach of trite principles 10 enunciated by this Court cannot endure. The findings though concurrent are perverse. I so hold. Resultantly, the appeal succeeds and is hereby allowed. The lower Court’s perverse affirmation of the trial Court erroneous findings is hereby set aside and the appellant acquitted and discharged.’
OKAFOR STEVE SHOULD HAVE BEEN CALLED AS A WITNESS
per H.M. Ogunwumiju, JSC: ‘In the instant case, the better part of wisdom is to look for any other evidence apart from the confessional statement of the Appellant linking the Appellant to the offence. See NWEZE v. STATE (2017) LPELR-42344(SC) Pg. 32-33 paras. A. As judges, we cannot pretend to be ignorant of the operations of the defunct SARS and its notorious reputation for “extracting” confessional statements from victims in their custody. PW2, the Police officer from SARS, testified on oath during cross-examination that it was one Okafor Steve, a staff of the Supermarket who overheard the Appellant’s phone conversation with the co-defendant on how to share the proceeds of the robbery. This said Okafor Steve whose statement was tendered by PW2 was not called as a witness to be cross-examined. I agree with the Appellant that Okafor Steve is a vital witness and should have been called as a witness to be cross-examined given that his evidence is the only other thing which linked the Appellant to the offence. See STATE v. IBRAHIM (2021) LPELR-55204(SC). The statement of the said Okafor Steve in Exhibit 5 is merely documentary hearsay. It was imperative for the said Okafor Steve to have been cross-examined by the defence regarding exactly what he heard from one end of the telephone conversation.’
VITAL EVIDENCE OUGHT TO HAVE BEEN CALLED
per H.M. Ogunwumiju, JSC: ‘More so, PW2 as the Investigating Police Officer presumed to have been properly trained on the proper form of conducting investigation should have at least tendered evidence of the call log showing that the Appellant actually had a conversation with the co-defendant. Even the General Manager who handed over the Appellant to the Police was not called to testify as a witness. In my opinion, no investigation was done except to “extract” a confessional statement from the Appellant. By the aforementioned facts, it is obvious that the conviction of the Appellant was based largely on hearsay evidence. The testimony of PW1 especially cannot and should not be relied on.’]
‘Resultantly, the appeal succeeds and is hereby allowed. The lower Court’s perverse affirmation of the trial Court erroneous findings is hereby set aside and the appellant acquitted and discharged.’
➥ FURTHER DICTA:
⦿ LEAVE IS TO BE SOUGHT FOR SUPREME COURT TO DETERMINE AN ISSUE NOT RAISED AT LOWER COURT.
Now, any party to an appeal who seeks the determination of an issue that was never raised at and determined by the trial and/or lower Court must show that it has sought and obtained the leave of the Court earlier. It is long settled that where no leave was sought and obtained, and one is required, the appeal is incompetent and liable to be struck out. See EHINLANWO V. OKE & ORS (2008) LPELR – 1054 (SC) and METUH V. F.R.N (2017) 4 NWLR (PT 1554) 108 at 121. — M.D. Muhammad, JSC.
⦿ A COMPETENT APPEAL ARISES FROM A LOWER COURT’S DECISION
A competent appeal to this Court from the Court of Appeal, the Court below, arises only from that Court’s decision. In the case at hand where an issue had not been heard and decided by the Court of Appeal, an appeal to this Court, by virtue of Section 233(2) of the 1999 Constitution as amended, does not enure. See THOR V. FIRST CITY MERCHANT BANK LTD (2002) LPELR – 8061 (SC) and OYAKHIRE V. STATE (2006) LPELR-2863 (SC). — M.D. Muhammad, JSC.
⦿ TO PROVE CONSPIRACY, THERE NEED BE PROOF OF AGREEMENT BETWEEN PARTIES
In order to establish the charge of conspiracy, it is respondent’s burden to prove that there was agreement between the appellant and another person to commit robbery and that the robbery had infact been committed. The offence of conspiracy is established once the Court is satisfied that the appellant and any other person had and knew of the intention or purpose of the conspiracy. This agreement between the conspirators to commit the unlawful act is, in most cases, inferred or presumed. See N. OSUAGWU V. THE STATE (2013) 1-2 SC (PT1) 37 and AFOLABI V. STATE (2016) LPELR – 40300(SC). — M.D. Muhammad, JSC.
⦿ PROVING ARMED ROBBERY
To secure conviction for the offence of robbery against the appellant, the prosecution must prove: 6 (1) The occurrence of the robbery. (2) The participation of the appellant in the said robbery and (3) That at the material time, the robbery was being committed, the appellant was either armed with firearms or offensive weapon or that he was in company of a person who was so armed EKE V. STATE (2011) LPELR-1133 (SC) and LEGI MOHAMMED V. STATE LPELR-46420. — M.D. Muhammad, JSC.
⦿ WEIGHT/CONSIDERATIONS TO BE ATTACHED TO A CONFESSIONAL STATEMENT
The fact that an accused person denies making a confessional statement to the police, does not render such extra-judicial statement inadmissible merely because the accused person denies having made it. What the Court is expected to do to determine the weight to be attached to a retracted confessional statement is to test its truthfulness and veracity by examining the said statement in the light of other credible available evidence. The Court would consider whether: a. There is anything outside that Confessional statement to show that it is true; b. It is Corroborated; c. The facts stated in it are true as far as it can be tested; d. The accused person had the opportunity of committing the offence; e. The accused person’s confession is possible; f. The confession is consistent with the other facts ascertained and proved at the trial. See Per OKORO, JSC, in ALAO V. STATE (2019) LPELR-47856(SC) (PP. 23-24 PARAS. E). — M.D. Muhammad, JSC.
⦿ FAILURE TO USE VIDEO RECORDING DURING RECORDING CONFESSIONAL STATEMENT
The use of the imperative word “shall” in the provision underscores its mandatory nature. The mischief sought to be curbed by the law includes such unsavory situations as where an alleged confession is extracted by torture and duress imposed on a defendant which led to the confession, to avoid miscarriage of justice and to reduce to the barest minimum the incidents of retractions and time consumed by trial within trial proceedings. Section 9(3) ACJL is a mandatory procedural law against infractions on the constitutional rights of a defendant as enshrined in Section 35(2) of the CFRN (as altered). Any purported confessional statement recorded in breach of the said provision is of no effect. It is impotent and worthless. See JOSEPH ZHIYA v. THE PEOPLE OF LAGOS STATE (2016) LPELR – 40562 Pp. 28-29 Paras G-B, ISMAILA FATOKI v. THE STATE- unreported judgment of the Court of Appeal in Appeal No. CA/L/1125/2011 delivered on 11/12/2015, FABIAN MATHEW v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1126/2011 delivered on 11/12/2015, KINGSLEY AKHABUE v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1056/2011 delivered on 11/12/2015, AGBANIMU v. FRN (2018) LPELR – 43924 (CA) Pp. 11-12 Paras E-A, ENECHE v. PEOPLE OF LAGOS STATE (2018) LPELR – 45826 (CA) Pp. 27-28 which are persuasive precedents of the Court of Appeal. — H.M. Ogunwumiju, JSC.
⦿ WHERE A PUBLIC OFFICER’S FUNCTION IS INVOLVED, ‘MAY’ WILL BE INTERPRETED AS MANDATORY
On the age long debate in respect of the use of the word “may” in Sections 15(4) and 17(1) & (2) of the ACJA, I will say a few words by way of obiter. I am aware of the conflicting decisions of the Court below on this vexed issue. The general principle of interpretation is that the use of the word “may” connotes permissive action. See ORAKUL RESOURCES LTD & ANOR v. NCC & ORS (2022) LPELR-56602(SC). However, I endorse the brilliant reasoning of the Court below in NNAJIOFOR v. FRN (2018) LPELR-43925(CA). In that case, the Appellant contended inter alia that the Respondent did not comply with Sections 15(4) and 17(2) of the Administration of Criminal Justice Act 2015. The trial Court held that the word “may” as used in those sections is discretionary and not mandatory. The Court of Appeal however held as follows: “It has been established by a long line of decided cases that the Courts would interpret the word “may” as mandatory wherever it is used to impose a duty upon a public functionary to be carried out in a particular form or way for the benefit of a private citizen. See R v. BARLOW (1693) CARTH. 293 cited in R v. BISHOP OF OXFORD (1879) 4 O.B.D. 245, 258, MOKELU v. FEDERAL COMMISSIONER OF WORKS AND HOUSING (1976) 1 ALL NLR (Pt. 1) 276, 282, EDEWOR v. UWEGBA (1987) 1 NWLR (Pt. 50) 313, 339, UDE v. NWARA (1993) 2 NWLR (Pt. 278) 638, 661, OGUALAJA v. ATTORNEY GENERAL OF RIVERS STATE (1997) 6 NWLR (Pt. 508) 209, 233, ADESOLA v. ABIDOYE (1999) 14 NWLR (Pt. 637) 28, 56, JOHN v. IGBO-ETITI LGA (2013) 7 NWLR (Pt. 1352) 1, 16, GALAUDU v. KAMBA (2004) 15 NWLR (Pt. 895) 31, 52, and CORPORATE AFFAIRS COMMISSION v. THE REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (NIGERIA DIOCESE) (2009) 11 NWLR (Pt. 1151) 40, 60.” Relying on the mischief rule of interpretation, the Court of Appeal further held thus: “…to hold that the word “may” in the said provisions carry a discretionary or permissive meaning would not suppress the mischief the provisions are aimed at curing nor would it advance the remedy for it. It would also not add force and life to the cure, rather it would add strength to the mischief and that would not be pro bono publico. Given the objective of the provisions, to give a permissive colouration to the provisions would mean that the Legislature gave a cure to the mischief with one hand and also took away the cure with the other hand. That would reduce the provisions to futility and defeat their purpose. Courts are to adopt construction that would bring out the purpose of legislation. See COCA COLA (NIG.) LTD v. AKINSANYA (2017) 17 NWLR (Pt. 1593) 74, 123.” — H.M. Ogunwumiju, JSC.
⦿ RATIONALE FOR HAVING VIDEO RECORDING DURING RECORD OF CONFESSIONAL STATEMENT
Usually, objections raised as to the admissibility of confessional statements pose one of the greatest challenges to criminal trials as it slows down the pace of the proceedings when there is a trial within trial. It is for this reason that Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 and Section 17(2) and 15(4) of the Administration of Criminal Justice Act 2015 have been put in place to ensure that the Police and other agencies who have the power to arrest, obtain confessional statements from suspects without any form of oppression or illegality. The effect of the said provision is that every confessional statement must be recorded on video so that the said recording can be tendered and played in Court as evidence to prove voluntariness or a legal practitioner or any person as specified under Section 17(2) of the ACJA must be present. The essence of the video/audio-visual evidence is obviously so that the Court will be able to decipher from the demeanor of the Defendant and all other surrounding circumstances in the video if he or she voluntarily made the confessional statement. Alternatively, where a video facility is not available, the Police must take the confessional statement in writing and must ensure that while same was being taken, the Defendant had a Legal Practitioner of his choice present. However, over the years, it seems to me that these provisions are only existent on paper as the Police and other security agencies seldom comply with them. The current state of technology where most mobile phones have a recording application that would state the time and place of making the video if there is no official Police photographer at hand, makes the non-compliance inexcusable. My Lords, it is baffling, to say the least, that at this point in our criminal justice system, there is still failure to meet with minimum standards of Police investigation or interrogation that obtains in other jurisdictions. — H.M. Ogunwumiju, JSC.
⦿ WHERE DEATH SENTENCE IS THE PUNISHMENT, CONFESSIONAL STATEMENTS SHOULD COMPLY WITH THE LEGAL PROCEDURE
The learned trial judge having admitted that the prosecution still bears the burden to call evidence to prove beyond reasonable doubt that the defendant made a voluntary confession in a trial within trial, went ahead to shift the burden of proof to the Appellant (Defendant at the trial Court). Evidence of a video recording or the presence of a legal practitioner would have been conclusive proof that the confessional statement was obtained voluntarily. It makes it imperative in the circumstances, particularly in cases of armed robbery where a death sentence is the sanction on conviction, that confessional statements should be taken according to the provisions of the law. Even where the prosecution has ignored the provision of the law as sacrosanct as this, the trial judge should have brought it up suo motu. The judge cannot pick and choose which extant law to enforce. — H.M. Ogunwumiju, JSC.
The State of Lagos
➥ LEAD JUDGEMENT DELIVERED BY:
Musa Dattijo Muhammad, J.S.C.
⦿ FOR THE APPELLANT(S)
C.O.P. Emeka, SAN.
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
✓ H.M. OGUNWUMIJU JSC:
⦿ ON THE ISSUE THAT THE CONFESSIONAL STATEMENT WAS NOT APPEALED AGAINST: ‘The argument of the learned Respondent’s Counsel is to the effect that at the Court below, the Appellant did not appeal against the ruling of the trial Court that Exhibit 4 was voluntarily made but appealed against the failure of the trial Court to apply the provisions of Section 9(3) of the ACJL in arriving at its decision in the trial within trial. That argument is immaterial since the failure to apply extant law to a set of facts leads to perverseness in any finding of facts by any judge and is appealable as a matter of law irrespective of how the ground of appeal is couched.’
➥ REFERENCED (LEGISLATION)
Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011;
Section 15(4), 17(1) & (2), of the Administration of Criminal Justice Act 2015.
➥ REFERENCED (CASE)
⦿ APPELLATE COURT WILL NOT ALLOW FRESH ISSUE ON APPEAL TO BE TAKEN
In CHUKWUEMEKA N. OJIOGU V. LEONARD OJIOGU & ANOR (2010) LPELR – 2377 (SC), this Court per Chukwuma-Eneh JSC (of blessed memory) restated the principle inter-alia as follows:- “It is trite that an appellate Court will not allow a fresh issue on appeal to be taken without leave as it has not been pronounced upon by the Courts below. This is even more so as in this case where the appellant is trying on appeal to raise an issue which has not been raised, nor considered by the trial Court. However, where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence may be called, the Court may allow the issue to be raised subject to leave having been sought and obtained.”
⦿ CONVICTION WILL BE QUASHED WHERE BASED ON HEARSAY EVIDENCE
This Court, per KEKERE-EKUN, JSC in the case of SIMEON v. STATE (2018) LPELR-44388(SC) Pg. 25-26 paras. B has held and I very much agree that: “The hearsay rule is to protect an accused person from being convicted upon the testimony of a witness who did not see, hear or perceive in any other manner, the facts given in his testimony. Where it is shown that the evidence relied upon to convict an accused person amounted to hearsay, an appellate Court would quash the conviction. See IJIOFFOR vs THE STATE (2001) LPELR-1465(SC) @ 19 B-F.”
➥ REFERENCED (OTHERS)