‘Evidence must link person accused with offence’

The case of the respondent at the Lower Court was that appellant and the other accused person with three others stormed into the house of PW1 at about 2:00am. The first person had a solar light in one hand and a pistol in the other.The person with the gun followed PW1 to his room and […]

The case of the respondent at the Lower Court was that appellant and the other accused person with three others stormed into the house of PW1 at about 2:00am. The first person had a solar light in one hand and a pistol in the other.
The person with the gun followed PW1 to his room and the other four went to the room of the PW1’s wife. The person who followed the PW1 into the room asked for the N1 million he was keeping in the room. The PW1 said he had only N400 in the room. His son was dragged into the room and two of them prostrated face down on the bed. He (PW1) gave the armed robbers only 400 (whatever that is).
They took his wife’s jewelry, his diary, radio and GSM. He did not recognise the armed robbers when they entered because they wore masks. After the operation the armed robbers moved out. He (PW1) and his son had escaped from the boy’s quarters into their farm. The robbers passed through that farm. Where the son was hiding he was able to recognise one of the accused persons (Daniel Bassey) who had been employed by the PW1 to assist his wife in her shop and was living in his house. However, two weeks before the incident Daniel left them without notice.
When his son told him that he saw Daniel (the other accused) he (PW1) went to the Special Anti-Robbery Squad (SARS) the following day to report. When the Police and PW1 got to the house of the other accused person, they knocked the door. When the door was opened, they saw 10 people sleeping on the floor and the appellant was among them. The appellant told PW1 that the other accused person had gone to his work place. The appellant took PW1 and the Police to where the other accused was working. The police then arrested the other accused person.
The other accused person, PW1 said knew where they kept the key to the house. The gate was not forced open and the three dogs they had which they had released were put back in their cages. They suspected the other accused person (Daniel) who used to feed the dogs and he knew the area; that there was no road through the farm.
In his defence the appellant said he went home in January 2001 and brought (Daniel) the other accused person and gave him to the wife of PW1 and they entered into an agreement. Three months after, the other accused person came to the appellant and asked for money to go home. He gave him N5,000. He went home and came back one week after. The wife of the PW1 rejected him.
One month after, the wife of the PW1 came asking for the other accused (Daniel). They went to the Sawmill where Daniel was working. He was arrested.
The appellant went to the Police Station. The other accused was not granted bail. He gave them money for food. On 13th June, 2001, he (appellant) was at Ijapo, he was arrested and taken to the police station and from there to the Special Anti-Robbery Squad. He was beaten and he then confessed. He was charged with robbery. He was arrested on 13/7/2001. He said he only knew PW1 in court. He had never held a gun. PW2 was among those that beat him.
It was about two weeks after the arrest of the other accused (Daniel) that he too was arrested. He did not know the house of PW1. He visited the other accused three days after his arrest. He told the police that he brought the other accused (Daniel) from home, he did that in writing. He did not write the date in his statements. He signed the two statements.
The lower court tried the appellant, convicted and sentenced him to death by hanging. It is against the conviction and sentence that the appellant has approached this court by way of appeal. He has appealed on six grounds against the conviction and sentence. Learned counsel for the appellant has formulated the following three issues from the grounds of appeal.
Issue 1, presented for determination is on the trial within trial leading to the admission of the statement, Exhibit C, made by the appellant. The trial of the voluntariness or otherwise of the statement of the appellant was done immediately after that to determine the voluntariness or otherwise of the statement of the co-accused and a joint ruling was delivered. Although the proper procedure was to have ruled on the voluntariness or otherwise of the co-accused’s statement before the trial within trial in respect of the appellant’s statement and ruling separately on it; the failure of the lower court to do so in my view was a mere irregularly. It is not correct as learned counsel for the appellant argued that the trials were simultaneous or happened at the same time. The trial within trial in respect of the co-accused person’s statement was concluded before the commencement and conclusion of the one in respect of the appellant’s statement.
Therefore the procedure of writing one ruling in respect of the two trials was an irregularity which did not occasion a miscarriage of justice.
However, the lower court seemed to have complicated matters when it admitted the statements of the co-accused and the appellant because he was satisfied with the truth of the statement and not because the statements were voluntarily made. This misconception of the purport of the trial within trial in my view vitiated the trial within trial and the statement of the appellant, Exhibit C, was wrongly admitted.
To determine the voluntariness vel non of the statement of an accused person the onus is on the prosecution to satisfy the court beyond reasonable doubt that the statement in question had been voluntarily made. See Ganiyu & 1 OR V. State (1992) NWLR (Pt 266) 466. At the trial-within-trial, the appellant in part testified thus:
“I said I did not rob they started beating me. Ahmed was the one that wanted to blind me.
“Frank was the person knocking my head with ruler. I did not write any statement. It was Frank that said that if I agree that I rob they would not beat me anymore. I was tortured for three days.”
In spite of the above damning evidence, it was not seriously challenged by cross-examination. On this evidence, it is difficult to say that the prosecution proved beyond reasonable doubt that the statement was voluntarily made. In my view, it was therefore wrongly admitted for this reason also.
Although it was admitted, I think it ought to have been discountenanced by the lower court for the following reason. PW2 through whom it was admitted did not conclude his testimony in court and was therefore not cross-examined.
The lower court ought to have either struck out his evidence or discountenanced same including the statement Exhibit C tendered through him. For the foregoing reasons I resolve issue 1 in favour of the appellant.
Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Dibie V. State (2007) 9 NWLR (Pt 1038) 30 and Nwaebonyi V. State (1994) 5 NWLR (Pt 343) 130.
Assuming Exhibit C was rightly admitted the prosecution still had to lead some evidence outside it which would make it probable that the appellant conspired with one or more persons to commit armed robbery. There is no such evidence. As I pointed out earlier PW1 did not mention him in his evidence in-chief and under cross-examination he said no member of his household saw the appellant.
Issue 2 is therefore resolved in favour of the appellant.
On issue 3, as shown elsewhere in this judgment, the only evidence against the appellant is the extra-judicial statement. There is nothing outside it which would make it probable that the confession was true. The lower court found circumstantial evidence in proof of the alleged offence. The only circumstantial evidence according to the lower court on which it convicted the appellant is that he once visited the co-accused while he was working with the complainants and also that appellant was found sleeping in a room with 10 other people at about 11:45 am when the complainants went to look for appellants co-accused.
For circumstantial evidence to ground a conviction, it must lead to one conclusion, namely, the guilt of the accused person. See Ubani V. State (2003) 18 NWLR (Pt 851) 22. The pieces of evidence shown above can in no way point to the guilt of the appellant. The visit he had paid to the co-accused while the latter was working in the house of PW1 was not surprising because he was the person that introduced him to the complainants. The fact that appellant was found sleeping at 11:45 am is no suggestion of his guilt.
The standard of proof in a criminal trial is proof beyond reasonable doubt. It is not enough for the prosecution to suspect a person of having committed a criminal offence. There must be evidence which identified the person accused with the offence and that it was his act which caused the offence. See Aighadion V. State (2000) SC (Pt 1) 1. There was no evidence linking the appellant to the commission of any robbery.
Issue 3 is resolved in favour of the appellant.
All three issues having been resolved in favour of the appellant, the appeal is allowed. The conviction and sentence of the appellant to death are hereby quashed.
    
Appearances      
ADEKUNLE OJO ESQ.
For the appellants
MRS BOLA JOEL OGUNDADEGBE CHIEF LEGAL OFFICER, MINISTRY OF JUSTICE, ONDO STATE
For the respondents