Confession Obtained By Torture Is Inadmissible – Supreme Court

The respondent was arraigned before the Kwara State High Court of Justice, Ilorin Judicial Division on a two count amended charge, hereunder reproduced:

“Count One: That you Olashehu Salawu and five others at large on or about 8/5/2007 at Adeta round about in Ilorin, Kwara State, within the jurisdiction of this honourable court conspired to commit a criminal offence – to rob one Mr. Suleman Alafara while armed with dangerous weapon at Adeta round about Ilorin and you thereby committed an offence contrary to Section 97 of the Penal Code.

Count Two: That you Olashehu Salawu and five others at large on or about 8/5/2007 at Adeta round about in Ilorin Kwara State within the jurisdiction of this honourable court while armed with dangerous weapon did rob one Mr. Suleman Alafara of his car, Honda Bullet with dealer number KWD142 AL Nurus Motors and you thereby committed an offence contrary to Section 1 (2) (a) of Robbery and Fire Arms (Special Provisions) Act, Cap. R11, Law (sic) of the Federation of Nigeria, 2004.”

The respondent pleaded not guilty to the amended charge on 11/04/08 and the appellant opened its case, calling a total of four witnesses. The appellant sought to tender the statement allegedly made by the Respondent through P.W4 but learned counsel for the respondent objected to the admissibility of the statement on the following two grounds:

“(1) This is not the primary evidence of the Accused person because the accused speaks and understands Yoruba alone and it’s only the Yoruba version coupled with the English version that can be admitted in this honourable court.

(2) Secondly, on the voluntariness of the statement, the accused in conjunction with his counsel will be raising an objection to the admissibility of the statement on ground that it was not voluntarily made. Finally, the statement of the accused being a public document but coming from proper custody should have been certified in line with the Evidence Act.”

In reaction to the objection to the admissibility of the statement credited to the respondent, the learned trial judge Garba, J., ruled as follows:-

“Court: In view of the objection to the statement of the accused on ground of not being voluntary, the best thing to do is to conduct trial within trial to determine its voluntariness or otherwise.”

In the ensuing trial within trial the appellant called two witnesses while the respondent testified as the only witness for the defence.

Learned counsel for the parties addressed the trial court. In its ruling of

22/05/08, the learned trial judge held:

“That I find the confessional statement of the accused voluntary and it is accordingly admitted in evidence and marked Exhibit 4.”

At the conclusion of the evidence of the P.W.4, the appellant rested its case.

The only witness for the defence was the respondent who testified as DW1. The defence closed its case on 23/06/08 and the trial court adjourned to 14/07/08 for counsel’s addresses.

On 14/07/08, learned counsel for the parties adopted their written addresses and the case was adjourned to 23/9/08.

However, the case did not come up again until 10/10/08 from which date it was adjourned to 14/10/08 for judgment after learned counsel at the instance of the trial court, had resolved some issues relating to the number of those at large referred to in the charge and the numbering of the Exhibit 4, i.e. the alleged statement of the respondent.

In its judgment of 14/10/08 the trial court concluded as follows:

“It is apparent from the overwhelming and believable evidence adduced by the prosecution, the circumstances culminating into the arrest of accused, his lack of respect for truth and his inconsistency in his testimony, I feel

satisfied that the prosecutor has proved the charge of armed robbery against the accused person to the standard required in criminal cases. That is, beyond reasonable doubt and he is found guilty of the offence charged. He is accordingly convicted.”

The trial court passed sentence of the respondent, thus: “In respect of the 1st count of criminal conspiracy, which I have a discretion to exercise, the convict is sentenced to 6 (six) months’ imprisonment without an option of fine.

On the 2nd count of armed robbery, he is sentenced to death by hanging him in his neck till he is pronounced dead.

The convict has right of appeal to the Court of Appeal.”

On the 5th day of November, 2008, the respondent filed a notice of appeal in the Court of Appeal, Ilorin, Kwara State.

In the unanimous judgment of the court below delivered on 13/11/2010 by Denton-West, JCA., his lordship concluded thus:

“I have found that there is merit in this appeal and I hold that the conviction by the lower court is null and void, and therefore the death penalty has no effect and significance on the appellant. I accordingly set aside the conviction of the appellant by the lower court and order that the appellant be released from custody forth.”

Aggrieved, the appellant herein appealed the judgment on three grounds, reproduced hereunder but shorn of their particulars:

“Ground 1:

The lower court erred in law when it held that Exhibit 5, the extra-judicial statement of the Respondent cannot be used to corroborate any other evidence.

Ground 2:

The lower court erred in law when it held that the appellant breached the legal principle espoused in the case of NMM v The State (2007) 2 NCC 598 at 611; on the identification of the respondent as the person who committed the robbery in question.

Ground 3:

The learned trial judge erred in law when it held that the prosecution has not led evidence to show common criminal design to sustain the offence of criminal conspiracy for which the respondent was convicted by the trial court.”

Learned counsel for the appellant formulated three issues in his brief of argument.

The issues, one from each of the three grounds of appeal are:

(1) Whether the Court of Appeal was right to have held that Exhibit 4, the

extra-judicial statement of the respondent was wrongly admitted. (Relates to Ground 1 of the grounds of appeal)

(ii) Whether the Court of Appeal was right to have come (sic) to the conclusion that the respondent was not properly identified by PW2 who was the victim of the robbery operation. (Relates to Ground 2 of appeal).

(iii) Whether the Court of Appeal was right to have held that the prosecution had not led sufficient evidence to sustain the offence of criminal conspiracy against the respondent. (Relates to Ground 3 of the grounds of appeal).

In Issue One, the appellant complained of the decision of the court below that Exhibit 4 – the extra- judicial statement credited to the respondent was wrongly admitted by the trial court. Exhibit 4 was objected to by the respondent when it was sought to be tendered in evidence as a confessional statement made by the respondent.

The trial court, rightly in my view, ordered a trial within trial to determine the voluntariness vel non of the alleged confessional statement. At the said trial, the respondent gave a detailed account of his arrest in Lagos and his journey from Lagos to lIorin, from lIorin to Abuja and back to Ilorin on the allegation that he was the Oluwashun who was wanted for the assassination of some SSS men in Abuja. At the instance of the police who were in Lagos looking for Oluwashun, he gave his name as Ola Shehu. The police said he was the man they wanted for murder. At the end of his

cross-examination as the DW1 in the trial within trial, the respondent said:

“I made one statement at Lion Building Police Station and three statements at the Police CID Headquarters, llorin.

From all the statements I made to the police, none of them is before the court and the one in court is not my statement.”

Based on the above statement, the trial court jettisoned the evidence at the trial within trial and admitted the statement as retracted statement of the respondent.

In the totality of the evidence at the trial within trial, the learned trial judge

made two contradictory decisions. His lordship held:

“In effect, I quite agree with the learned DPP that since the accused has retracted his confessional statement, the question of involuntariness does not arise again.

The court is entitled to admit the statement and consider it on its own and

determine if it was made by the accused or not and I so hold.”

The learned trial judge held also:

“The effect of the above findings is that I find the confessional statement of the accused voluntary and it is accordingly admitted in evidence and marked Exhibit 4.”

Be that as it may, I will take the issue as framed: whether the court below was right in holding that the confessional statement Exhibit 4 was wrongly admitted by the trial court. Whether or not Exhibit 4 was made by the respondent, as distinct from the issue of its voluntariness, is not in issue in this appeal.

Section 27(1) of the Evidence Act, Cap.112, Laws of the Federation of Nigeria, 1990 defines a confession thus:

“S.27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.” Sub-section 2 provides:

“Confessions, if voluntary, are deemed to be relevant facts as against the person who made them only.”

I shall now consider the evidence in the records of the trial court to determine whether or not the lower court was right in the decision that Exhibit 4 was wrongly admitted by the trial court. At Page 41 of the record, the PW3 stated on oath:

“Being a member of the anti-robbery section, I was instructed by the team leader to obtain the statement of the accused person which I did (underlining mine) by cautioning him in English language.

It was Insp. Matthew Adino that brought the accused to me to take his statement because he (Inspector Adino) did not understand Yoruba language.”

My Lords, a statement, confessional or exculpatory, made by an accused to the police officer investigating the crime for which he is arrested are a form of evidence. PW3 said she was instructed to obtain the statement of the respondent, a form of evidence. The word “obtain” connotes a demand and in my view, the statement made by the respondent on demand by the police officer cannot be said to have been voluntarily made. The demand for the statement wholly dissipated the effect of the caution administered by the Police. See The State v Mati Audu (1971) NNLR 91 at 92 and Nakumde v Jos NA (1966) NNLR 52 at 58-59. Even the words of caution have been held to be an inducement to speak to the police for the accused

cannot be expected to keep mute after the caution. See Queen v Viaphony (1961) NNLR 47 at 47- 48. In Onobu v IGP (1957) NNLR 25, it was held that when a person is under arrest in a criminal charge, it is not the duty of the police to obtain evidence in the form of a statement from him. The duty of the police, after the accused has been charged and cautioned, is to take or record the statement of the accused, if he makes any.

The police have no authority to obtain a statement from him, having told him he is not obliged to say anything. The judges rules, though rules of practice, are designed to leave it open to the arrested person to say nothing and to prevent police officers from trying to get the arrested person to say anything.

The respondent was arrested in Lagos and taken to Ilorin on allegation of

assassination of SSS men. He was told if he co-operated by making a confessional statement he would not be taken to Abuja. He was eventually taken to Abuja and presented to the police boss as the assassin. The police boss ordered them out when the policemen who brought him admitted that the assassination took place three days after he was arrested. He was taken back to Abuja and subjected to inhuman treatment as a result of which he spent two months in the hospital. He named the officers at whose hands he suffered torture and humiliation as Adino, Dada and two others. The above facts can be verified at the police headquarters,

Abuja and the hospital he was taken to in Ilorin.

From his unchallenged evidence when he was taken back to Ilorin, the police said that there had been a robbery in Ilorin and took him to a torture chamber where he confessed under torture. Apart from fruitless cross-examination the evidence of the respondent in the trial within trial went unchallenged. None of the officers he named – Adino, Dada and two others was called to the stand to disprove his story and show that Exhibit 4 was voluntarily made.

The prosecution did not explain the absence of the officers to give evidence in rebuttal. The court is entitled to hold that the evidence of the named policemen which could be, but was not produced, would if produced, be unfavourable to the case of the appellant who withheld it.

The same applies to the evidence that the respondent spent two months in the hospital as a result of the torture he was subjected to in order to extract Exhibit 4 from him. The appellant could have tendered his medical record from the hospital he was taken to and admitted. That evidence was withheld because if produced, it would have destroyed the appellant’s case and proved that Exhibit 4 was not made voluntarily. See Section 149 of the

Evidence Act which provides:

“149(d) The court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”

I find nothing in the evidence at the trial to corroborate the statement in Exhibit 4. On the other hand, the evidence of PW1 at the trial within trial gives the lie to the statement in Exhibit 4. It is the duty of the appellant to prove, positively, that Exhibit 4 was voluntarily made by the respondent and the appellant failed to do so.

(See Adekanbi v A-G Western Nigeria (1966) 4 NSCC 46 at 48). I hold the view that the court below was right in the decision that Exhibit 4 was wrongly admitted in evidence by the trial court. Issue One is hereby resolved against the appellant.

In Issue 2, learned counsel for the appellant, referred to Page 163 of the record of the court below on the mode of identification of the respondent by the PW2 and submitted that the conclusion of the lower court is not supported by the evidence before the trial court. He referred to Pages 37 and 38 for the testimony of the PW2 on the identification of the respondent. He argued that in the peculiar circumstances of the case, the PW2’s

identification of the respondent was in accord with the decision of the Supreme Court in NMM v The State (2007) 2 NCC 598 at 611; a case he said the lower court quoted copiously from at Page 164 of its record.

Learned counsel relied on the State v Collins Ojo Aibangbee & Anor. (1988) 7 SC (Part I) 96; (1988) 2 SCNJ (Part I) at 128 and 162, and Page 165 per Oputa, JSC., for the meaning of the verb “to identify” and its noun form “identification” and Nnaemeka-Agu, JSC., on the meaning of “identification”, respectively. He referred to Exhibit 3 – a statement the victim of the robbery – PW2 – made to the police on the night of the incident and said the name of the respondent was given in the said statement as Sheun and that the policemen who recorded the Exhibit 3 also gave the Respondent’s name as Sheun.

According to learned counsel, the name Olasheu given by the respondent is an enlarged form of Sheun and that “the name Sheun was derived and recollected from the scene and during the robbery operation while PW2 was struggling with the accused/respondent and his gang.” See Pages 34-38 of the record.

On the evidence of the P.W.3 (police officer who made a call through the handset alleged to have been recovered from the respondent at the scene of crime) and which he described as neither shaken nor rebutted under cross-examination, and as “direct, cogent, reasonable and compelling as to admit of no evidential conjections or make shift” he impugned the finding of the court below to the effect that the failure to call Muritala, the younger brother of the respondent who picked the policeman’s call and through whom the respondent was arrested was fatal to the appellant’s case.

On the identification of the respondent as the felon, counsel argued that:

Issue 2 reads: “Whether the Court of Appeal was right to have come to the conclusion that the respondent was not properly identified by PW2 who was the victim of the robbery operation.” The totality of the evidence of PW2 on this alleged identification of the respondent is at Page 37 of the record. It is hereunder reproduced:

“I identified the accused person at the police station, when he was arrested and brought. The accused also identified me and said it publicly that he took the vehicle from me.”

Wittingly or by deliberate design, the police turned the process of identification on its head and a subsequent identification parade would have been a farce as the witness has been firmly fixed upon the respondent as the person who took a car from him. See – Baloqun v A.G. (2003) 2 SCNJ 196 at 211-212.

The robbery was said to have taken place about 7.30 to 8pm on a street without street light. Even though the PW2 claimed he could observe the respondent, by the reflection of light from houses 20 feet from the street, there is no evidence that the PW2, if he did observe the person who robbed him, stated the physical features of that person to the police at the earliest opportunity he had. As if enough harm had not been inflicted on the appellant’s case, the police decided to work from the answer to the problem they had to solve by ordering the respondent to identify his alleged victim.

The facts as presented, warrant conduct of an identification parade, taking into account the need for:

(a) description of the accused given by the witness to the police shortly after the commission of the crime;

(b) the opportunity the witness had of observing the accused, and

(c) the features of the accused noted by the witness and communicated to the police which mark him out from other people.

See – Patrick Ikemson & 2 Ors. v The State (1989) 6 SC (Part I) 114; (1989) 1 CLRN 1 at 18. It is disturbing that learned counsel for the Appellant would urge the court to endorse the conviction of the respondent based on a travesty of the identification process. I resolve Issue 2 against the appellant.

Issue 3 is whether the Court of Appeal was right to have held that the prosecution had not led evidence to sustain the offence of criminal conspiracy against the respondent. The case for criminal conspiracy is built on a portion of Exhibit 4 reproduced hereunder:

“Myself and one Rasaq Majibare of Jankara in Lagos State came to Ilorin to join the rest of our gang members and robbed one Honda Bullet car unregistered in lIorin.”

Contrary to the submission of learned counsel for the appellant, I find nothing in the evidence of the PW2 or PW3 relating to criminal conspiracy, not to talk of linking the respondent thereto. While I accept the definition of conspiracy and the fact that conspiracy and the offence committed in pursuance thereto are two separate and distinct offences as elucidated in Lazarus Akano & Anor. v A-G Bendel State (1988) 2 NWLR (Part 75) 201 at 232 and the other authorities relied on by the appellant, the bottom of the appellant’s case has been knocked out by the resolution of Issue One in this appeal. Exhibit 4, being a product of coercion and torture of the respondent, is inadmissible. At best, the appellant failed to discharge its duty to prove that the confessional statement was voluntarily made. Issue 3 is also resolved against the appellant.

My lords, though this is not an issue before us in this appeal, there is need to comment on the mode the trial court adopted in passing sentence on the respondent.

A man condemned to death should have the sentence addressed directly to him. The sentence of death at the trial court was conveyed as information not to the respondent but to the world at large.

Having resolved all the three issues in the appeal against the appellant, I hold that the appeal is devoid of merit and it is hereby dismissed. I affirm the judgment of the lower court setting aside the judgment of the trial court.

Counsel:

K. Ajibade

Attorney-General Kwara State

…… For the appellant

with him

Jimoh Adebimpe Mumuni

Director of Public Prosecution, Ministry of Justice,

Ilorin

Olalekan Yusuf – For the respondent.