Whether Retraction Of Confessional Statement Necessitates Trial-Within-Trial

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 24th day of March, 2023

Before Their Lordships

Olukayode Ariwoola

John Inyang Okoro

Amina Adamu Augie

Mohammed Lawal Garba

Emmanuel Akomaye Agim

Justices, Supreme Court

SC.320c/2019

Between

Nelson Omoha Appellant

And

The State Respondent

(Lead Judgement delivered by Honourable John Inyang Okoro, JSC)

Facts

On 4th September, 2010 at about 02:00 hours in Kadarko town, the Appellant (in company of members of his gang) broke into the house of a certain Mrs Cecilia Egbo (“the victim/PW2”) at Lafia Garage, while being armed with sticks and other offensive weapons. The Appellant and his gang robbed PW2 of the sum of N55,000.00 and two mobile phones (a Nokia and Sagem). They proceeded to rob tenants in PW2’s compound, and only fled when a tenant raised alarm that alerted the vigilante team.

By a combined endeavour of the vigilante team and the Police, the Appellant was arrested, with the sum of N27,850.00 and the two stolen mobile phones were recovered from the Appellant. The Appellant was taken to the Police station, where he made statements. Further to this, the Appellant was arraigned before the High Court of Nassarawa State, Lafia Judicial Division (the “trial court”) on 18th March, 2013, where he entered a plea of “not guilty” to the offences of conspiracy to commit armed robbery and armed robbery, punishable under Sections 6(b) 1(2) of the Robbery and Firearms Act, 2004 respectively.

In establishing the guilt of the Appellant beyond reasonable doubt, the Respondent (Prosecution) called three witnesses and tendered two confessional statements (“Exhibit AA1” and “D”) alleged to have been made by the Appellant, wherein he admitted his involvement in the armed robbery. Counsel for the Appellant objected to the admissibility of the first statement (Exhibit AA1) on grounds that (1) proper foundation was not laid by the witness to enable the court admit the statement in evidence; and (2) that the accused person (Appellant) has denied making the statement. When counsel for the Respondent also sought to tender the second statement (Exhibit D) in evidence, counsel for the Appellant objected to its admissibility on ground that the statement, being a government property, it ought to be certified for it to be admissible. The trial court, however, overruled both objections after due consideration and admitted the statements in evidence.

Meanwhile, the Appellant testified for himself and called no other witness(es). At the close of trial, the court relied on Exhibits AA1 and D in arriving at its decision. Relying on the evidence before it, the trial court convicted the Appellant for a lesser offence of robbery and sentenced him to 21 years imprisonment, in line with Section 1(1) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation of Nigeria, 2004. In respect of the offence of conspiracy to commit armed robbery, the Appellant was acquitted and discharged of same.

Dissatisfied, the Appellant appealed to the Court of Appeal. The appellate court affirmed the decision of the trial court, and dismissed the appeal. The Appellant has further appealed to the Supreme Court.

Issue for Determination

The Supreme Court adopted the sole issue raised by the Respondent, in determining the appeal:

Whether the Court of Appeal was right to have affirmed the conviction and sentence of the Appellant to 21 years imprisonment for the offence of robbery? (Distilled from Grounds i, ii, iii, iv, v, vi and vii of the Notice of Appeal)

Arguments

Arguing the appeal, counsel for the Appellant contended that the Court of Appeal and the trial court were in error to have held that the Appellant committed the offence of robbery. Counsel argued on three front: (i) the trial should have conducted a trial-within-trial to determine the voluntariness of the Appellant’s extra-judicial statements, which the Appellant denied making; (ii) the Respondent did not prove the guilt of the Appellant beyond reasonable doubt; and (iii) the Respondent failed to resolve the issue of the Appellant’s identity, as a member of the robbery gang that robbed PW2.

Regarding the admissibility of the extra-judicial statements, counsel for the Appellant submitted that it is only when a confessional statement is voluntary, free, positive and direct, that a court can rely on same to convict an accused person. He argued that since the extra-judicial statements were retracted at the point of being tendered in evidence, the trial court could not have relied on them. Counsel for the Appellant argued further that the Respondent did not discharge the burden of proof beyond reasonable doubt, having failed to identify the Appellant as a participant in the robbery incident through an identification parade. He posited that the manner PW2 identified the Appellant was mere guess work that a court should be wary of relying upon, since PW2 stated to the Police that she could not identify any of the robbers who robbed her that night of 4th September, 2010, amongst other things. Counsel relied on the case of BOZIN v THE STATE (1985) 16 NSCC (Pt. 11) 1087, to argue that the conviction was based on a suspicion. He urged the Supreme Court to interfere with the concurrent findings of the two lower courts, and set aside the conviction and sentence passed against the Appellant.

Responding to the submissions, counsel for the Respondent argued that the Appellant misconceived the position of law in respect of a retracted confessional statement, and submitted that where an accused person merely denies making a confessional statement then an issue of admissibility does not arise to warrant a trial-within-trial. In this regard, he relied on IKPASA v A.G. BENDEL STATE (1981) 12 NSIC 300. Furthermore, counsel for the Respondent reacted to the arguments on “identification parade”, to the effect that an identification parade was irrelevant since PW2 could vividly recognise the Appellant as one of her assailants. He referred to the decision in ESANGBEDO V STATE (1989) LPELR-1163(SC), in support of his position. Counsel concluded that there was no basis for the Supreme Court, to interfere with the concurrent findings of the lower courts.

Court’s Judgement and Rationale

Deciding the issue, the Apex Court addressed the Appellant’s three-pronged attack on the concurrent findings of the trial court and the Court of Appeal, as identified above. The Supreme Court quickly disregarded the argument of counsel for the Appellant, that a defence of alibi was raised during trial. The Supreme Court held that the defence of alibi must be raised at the earliest opportunity, for it to be investigated. The accused person also has a duty to furnish the prosecution with sufficient information, from which his whereabout at the particular time can be checked. The Appellant in this case, raised the defence of alibi for the first time in court during trial, when he told the court he was in Enugu on the day of the event, and nothing more. If there are pieces of evidence adduced by the prosecution witnesses fixing the accused person at the scene of the crime at the material time or which positively links him to the commission of the crime, the defence of alibi would collapse – OPEYEMI v STATE (2019) 17 NWLR (Pt. 1702) 403. The Supreme Court agreed with the two lower courts that there was evidence positively linking the Appellant to the crime scene; thus, the defence of alibi failed.

In determining the argument on the need for identification parade, the Apex Court held that the trial court had no difficulty believing the version of the evidence given by PW2 in court, and that the Appellant did not confront PW2 with a contradictory piece of evidence. The Apex Court also pointed out that, the extra-judicial statements show that the Appellant admitted committing the said offence.

On the third attack relating to admission of the Appellant’s retracted confessional statements, the Apex Court agreed with counsel for the Respondent, and held that where the accused raises the question of voluntariness, the trial court must conduct a trial-within-trial to ascertain the voluntariness thereof – OSENI v STATE (2012) 5 NWLR (Pt. 1293) 351. The Apex Court however, drew a distinction between “denial of making a confessional statement” and “objection to confessional statement not made voluntarily”. It was the holding of the court that where there is a denial/retraction, the court would admit the statement and consider the weight to be attached to it. The court can then rely on the confessional statement, where it is satisfied that the statement is the truthful account of what transpired – BATURE v STATE (1994) 1 NWLR (Pt. 320) 267. The court in the circumstance is expected to test the truthfulness, by examining the statement in the light of other credible evidence adduced. A retraction of confessional statement does not in any way affect its admissibility, as long as the court is satisfied of its truthfulness.

In this instance, the Apex Court, in determining whether the retracted confessional statement can be used to establish the guilt of the Appellant, subjected the said Exhibits AA1 and D to six tests i.e., (i) whether there is anything outside the statement to show that it is true, (ii) whether it is corroborated, (iii) whether the accused had the opportunity of committing the offence, (iv) whether the facts stated in the statement are true, as far as can be tested, (v) whether the accused person’s confession is possible, and (vi) whether the confession is consistent with the other facts ascertained and proved at trial. Here, the Supreme Court relied on IKEMSON v STATE (1989) 3 NWLR (Pt. 110) 455 and found that Exhibits AA1 and D were missing dots in the evidence of the Respondent’s witnesses. The Apex Court also found that detailed account of the robbery which was contained in Exhibits AA1 and D, matched the recovered mobile phones in possession of the Appellant. The evidence of the prosecution witnesses, especially PW2, provided sufficient corroboration to the Appellant’s confessional statements, the statement alone having been found to be the truthful account of how the robbery was executed. Their Lordships concluded that with the foregoing, it was impossible not to have relied on the extra-judicial statements to convict the Appellant.

Regarding the argument of counsel for the Respondent on conviction of the Appellant on a lesser offence of robbery instead of armed robbery, the Supreme Court held that a Respondent who did not Cross-appeal can only formulate issues for determination and make argument from the grounds of appeal formulated by the Appellant. The Respondent herein, who failed to file a Cross-appeal, cannot make an argument against the decision of the lower courts. The arguments, which were at variance with the grounds of appeal, were discountenanced.

Having resolved the sole issue in the appeal against the Appellant, their Lordships unanimously dismissed the appeal of the Appellant, and affirmed the conviction and sentence of the Appellant.

Appeal Dismissed.

Representation

B.O. Akinseye-George, Esq. with J.R. Olusola, Esq. for the Appellant.

Dr. Abdulkarim A. Kana, HAG, Nasarawa State with E.U. Aliyu Esq., CSC, M.J. Abokee Esq., CSC and R.A. Umaru Esq., PSC, for the Respondent.