Admissibility of Extrajudicial Statement Not Tendered through the Recorder

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 12th day of July, 2024

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Adamu Jauro

Chidiebere Nwaoma Uwa

Obande Festus Ogbuinya

Mohammed Baba Idris 

Justices, Supreme Court 

 SC. 1056C/2019

Between

PETER OMOREGBE       APPELLANT

                                                  And

THE STATE                      RESPONDENT

(Lead Judgement delivered by Honourable Adamu Jauro, JSC)

Facts

On 21st October, 2012, a family of 3 consisting of Esther Omaka (PW1), Fred Omaka (PW2) and Enima Omaka (the son of PW1 and PW2), was abducted by armed men while at their building construction site. The abductors seized different items such as phones and jewellery from them, and drove them far into a forest. Subsequently, they released PW1 and her son, but, held on to PW2 with a demand for ransom of N20 million from PW1. 

On 26th October, 2012, PW1 paid the sum of N10 million to the abductors, and they released PW2. The matter was reported to the State Security Service (SSS), and in the course of the investigation, the SSS Investigating Team recovered PW2’s Blackberry phone and the sum of N1 million from the Appellant. The Appellant and another person were consequently charged before the High Court of Edo State, on a 7-count information of conspiracy to commit armed robbery, armed robbery and kidnapping. The prosecution called PW1, PW2 and PW3 (a member of the SSS Investigating Team) as witnesses and tendered several exhibits which included PW2’s Blackberry phone and the sum of N1million recovered from the Appellant (Exhibit A and Exhibit D), the search warrant executed on the Appellant’s room (Exhibit C), and the Appellant’s confessional statement (Exhibit E).  

PW3 testified that the Appellant confessed that one “Papa” recruited him for a kidnapping job, which was to drive the kidnapped victims. PW3 also testified that the Appellant was asked to call the said “Papa” on the phone and they agreed to meet at a bar, and while at the bar, Papa noticed the presence of security operatives and tried to escape but was shot, and he died from the injuries he sustained. PW1 on her part, identified the Appellant as the person who drove the bus that took her and her son out of the forest, where the kidnappers took them.

The Appellant denied making or signing Exhibit E. He also denied being a member of an armed robbery or kidnapping gang, or participating in the kidnap of PW1 and her family. 

After considering the evidence led by the witnesses as well as the addresses of Counsel, the trial court delivered its judgement wherein it convicted the Appellant for conspiracy to commit armed robbery, armed robbery and kidnapping, and sentenced him to death. The 2nd accused person was however, discharged and acquitted on the ground that the evidence led did not establish his guilt. Dissatisfied, the Appellant appealed to the Court of Appeal; however, the appeal was dismissed. The Appellant then filed a further appeal at the Supreme Court.

Issue for Determination

After a consideration of the respective issues submitted by the parties, the Supreme Court formulated a sole issue for determination as follows:

Whether, having regard to the evidence on record, the two lower courts were right in their concurrent decision that the Appellant was guilty of the offences for which he was charged.

Arguments

Counsel for the Appellant argued that the Appellant was not properly identified through an identification parade, and PW1 who presumably had enough time to observe his features having testified that the Appellant drove her and her son out of the forest, did not mention any features she observed on the Appellant in her statement to the prosecution. He submitted that since the Appellant was not arrested at the scene of the crime, it was imperative to conduct a proper identification parade to avoid a case of mistaken identity. He cited ADEYEMI v STATE (2011) 5 NWLR (PT. 1329) 1.

Counsel also argued that the circumstantial evidence adduced against the Appellant was inadequate to sustain his conviction, and it created a situation of doubt as to whether the Appellant was guilty of the offences he was charged with. He submitted that the doubt should have been resolved in favour of the Appellant. He also contended that the SSS officer who recorded Exhibit E was a vital witness as he would have been able to testify as to whether the Appellant made the statement, and the Respondent’s failure to call him as a witness was fatal to the case. He also argued that the acquittal of the 2nd accused person, ought to have led to the Appellant’s acquittal

In response, the learned Attorney-General of Edo State submitted on behalf of the Respondent, that the doctrine of recent possession operated against the Appellant as Exhibit A and Exhibit D were found with him a few days after the payment of the ransom, and he was unable to offer any credible explanation on how they came into his possession. He cited Section 167 of the Evidence Act, 2011, and submitted that the two lower courts rightly invoked the doctrine of recent possession in convicting Appellant.

It was also argued on behalf of the Respondent that there was overwhelming circumstantial evidence against the Appellant showing that he participated in the kidnap of the victims. The learned AG referred to the fact of the recovery of Exhibit D and PW2’s phone from the Appellant, and the invitation of Papa to the bar before he was shot and killed while trying to escape. The AG argued further that the failure to call the Officer who recorded Exhibit E cannot water down the evidence available against the Appellant, and that it is only when an interpreter is used in recording a statement that it is mandatory to call the interpreter before the statement is tendered. He submitted that, as this was not the case, it was not mandatory to call the recorder. He also submitted that Exhibit E was direct, positive and unequivocal and thus, sufficient to ground the conviction of the Appellant. The Learned AG also submitted that there was no need for an identification parade as the evidence of PW1 and PW2 who were eyewitnesses and victims, showed that the Appellant was properly identified.

Court’s Judgement and Rationale

The Supreme Court held that a court can convict an accused person on the basis of circumstantial evidence which is strong, cogent and leads to the irresistible conclusion that the accused person committed the crime(s) he is accused of. The Apex Court held further that it is not in every case that an identification parade would be necessary, particularly where there are other pieces of evidence that lead conclusively to the conclusion that the suspect as one of the perpetrators of the offence. The Court referred to its decision in KUSHIMO v STATE (2021) LPELR-54999 (SC) (PP 23 -24) PARAS F-C) that where the victim of the crime promptly identifies the suspect there would be no need for an identification parade, and where there is good and cogent evidence linking the Defendant to the crime on the day of the incident, then a formal identification becomes unnecessary. The Court also held further that once an accused person identifies himself in a free, voluntary and unequivocal confession, the conduct of an identification parade becomes unnecessary.

The Court held that contrary to the contention of the Appellant’s, that the Appellant was not properly identified and that an identification parade ought to have been conducted; there was ample evidence through the prompt identification of the Appellant by PW1 and PW2, as well as the Appellant’s unequivocal confession, of the identification of the Appellant and his linkage to the offences he was charged with.

Going further to consider whether the totality of the evidence led at the trial court established the Appellant’s guilt beyond reasonable doubt, the Apex Court held that despite the availability of both eyewitness evidence and a confessional statement, there was sufficient circumstantial evidence to ground a conviction of the Appellant. The Court held that the discovery of PW2’s Blackberry phone and the sum of N1 million in the Appellant’s room, and the Appellant’s inability to extricate himself from the phone and the money constituted strong, credible and cogent circumstantial evidence pointing directly to his guilt as one of the kidnappers and armed robbers who kidnapped PW2 and robbed PW1, PW2 and their son.

On the Appellant’s complaint on the Respondent’s failure to call the recorder of Exhibit E as a witness, the Court held that it is not the correct position of the law that only the recorder of an extrajudicial statement can tender same in evidence, and where there is another investigating officer who can sufficiently respond to the questions surrounding the statement sought to be tendered, such an officer can tender the statement in court. The Court held that the fact that the statement was tendered through a person other than the recorder, does not ipso facto render it admissible and in this case where there was no interpreter involved and where the officer who tendered the statement in evidence was present when it was recorded, the statement was properly received in evidence and rightly relied on. The Court referred to its decision in OLOYE v STATE (2011) 18 NWLR (PT. 1278) 353. The Court found that in the instant case, the evidence led at the trial court clearly revealed that Exhibit E was recorded in DW3’s presence; hence, he was in a good position to tender same and answer questions thereon. Thus, the argument that only the officer who recorded the statement could have tendered it, is misconceived.

On the contention of the Appellant’s Counsel that the acquittal of the 2nd accused person by the trial court ought to have led to the Appellant’s acquittal, the Apex Court held that a court is only bound to reach the same verdict in respect of two or more accused persons, where the evidence against them is the same. The Court found that in the instant case, the evidence against the Appellant and his co-accused person were neither the same nor interwoven; the 2nd accused person did not also make a confessional statement, and was able to testify unchallenged that Papa was his step brother and he had asked him to keep some monies for him, which the Respondent was unable to prove for certain that the monies with him formed part of the ransom. The Apex Court held that the trial court was thus, under no duty to return the same verdict of discharge and acquittal for the Appellant. 

Appeal Dismissed.

Representation 

Audu Augustine with others for the Appellant.

Oluwole Osaze-Uzzi, Hon. Attorney General of Edo State with another for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)