AGUTA v. STATE (2020)

AGUTA v. STATE

(2020)LCN/14235(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, May 28, 2020

CA/OW/243C/2011

Before Our Loforerdships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Between

EMEKA AGUTA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN OF PROOF IN CRIMINAL TRIALS

It is so well entrenched in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial rests upon the prosecution and this burden must be discharged beyond reasonable doubt. While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. Indeed, he need say no word in his defence. The burden of proof in a criminal trial never shifts from the prosecution. The fundamental reason for this position is that an accused person is presumed to be innocent until his guilt of the offence is established, Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides;
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
See: Williams v State (1992) LPELR- 3492 (SC); Abidoye v. FRN (2013) LPELR-21899(SC); Commissioner of Police v. Amuta (2017) LPELR – 41386(SC). The provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 are also in line with the protection accorded an accused person. PER OTISI, J.C.A.

ESTABLISHMENT OF GUILT OF AN ACCUSED PERSON IN CRIMINAL MATTERS

The guilt of an accused person may be established by:
1. His direct, positive and voluntary confessional statement; Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1
2. Circumstantial evidence; Mustapha Mohammed v. State (supra).
3. Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder.
See also: Danjuma v. The State (2019) LPELR-47037(SC); Omoregie v. State (2017) LPELR-42466(SC); Kolade v. State (2017) LPELR-42362(SC); Giki v State (2018) LPELR-43604(SC); Ime David Idiok v. The State (2008) 4-5 S. C. (Pt. 1) 84; Igabele v. State (2006) LPELR-1441(SC); Afolalu v State (2010) 6-7 MJSC 187; Emeka v. state (2001) 88 LRCN 234. No matter which of these methods the prosecution employs in proof of its case, the guilt of the accused person must be established beyond reasonable doubt; Akwuobi v. State (2016) LPELR-41389(SC). Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348 (SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v State (2013) 2-3 MJSC (PT 1) 59. PER OTISI, J.C.A.

DEFINITION OF THE OFFENCE OF “ARMED ROBBERY” AND THE ELEMENTS FOR PROVING ARMED ROBBERY

Armed robbery means simply stealing plus violence used or threatened; Aruna v. The State (1990) 6 NWLR (Pt. 155) 125, (1990) LPELR-568(SC). The offence of robbery with firearms is committed where at the time of the commission of robbery, the accused is proved to have been armed with ‘firearms’ or ‘offensive weapon’ or to have been part of the robbers so armed. In law, it does not matter that the accused person did not carry the weapon. Once it is established that the accused person was among the robbers, not as a casual onlooker but as a full participant, and his accomplices carried firearms, then he is guilty of the offence of armed robbery; Okpulor v State (1990) LPELR-2523(SC), (1990) 11-12 SC 151.

In order to secure a conviction on the charge of armed robbery, the prosecution has the onus of proving beyond reasonable doubt that:
i. robbery has taken place
ii. the robbery was an armed robbery
iii. the accused person participated in the robbery.
See: Dawai v. State (2017) LPELR-43835(SC); Orisa v State (supra); John v. The State (2019) LPELR-46936(SC); State v. Sani (2018) LPELR-43598(SC), All these elements must co-exist to ground a conviction; Ugboji v. State (2017). PER OTISI, J.C.A.

DEFINITION OF “CONFESSION”

Section 28 of the Evidence Act 2011 defines a “confession” as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. The law is fairly settled that a free and voluntary confession of guilt, whether judicial or extra judicial, which is direct and positive and properly proved is sufficient to sustain a conviction, so long as the Court is satisfied with its truth; Famuyiwa v The State (2017) LPELR-43836(SC); Adekoya v The State (2012) LPELR-7815(SC); Odeh v. FRN (2008) 3-4 S. C. 147; Silas Ikpo v. The State [1995] 33 LRCN 587 at 587. A free and voluntary confession by a person that is direct, positive, duly made and satisfactorily proved, has been described as occupying “…the highest place of authenticity when it comes to proving beyond reasonable doubt.” Mustapha Mohammed v. State (2007) 11 NWLR (PT 1045) 303. It is for the prosecution to prove that the statement was made freely and voluntarily. PER OTISI, J.C.A.

ADMISSIBILITY OF A CONFESSIONAL STATEMENT.

An accused may retract or resile from a confessional statement he has made in either of two ways:
1. He can say he never made the statement at all; or,
2. He can say he made the statement and/or signed it, but not voluntarily; Nwangbomu v The State (1994) LPELR-2105(SC).
In the first option, the confessional statement remains admissible and relevant, but what weight the trial Judge attaches to such confessional statement and its subsequent retraction is important. This is because a denial of a confession by itself is no reason for rejecting the statement. The denial is a matter to be considered in deciding the weight to be attached to the confession. The statement must therefore be considered alongside the entire evidence adduced; and, in the light of the circumstances of the case for appropriate weight to be attached to the statement; Ubierho v. The State (supra); Blessing v FRN (2015) LPELR-24689(SC); Iliyasu v The State (2015) LPELR-24403(SC); PER OTISI, J.C.A.

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the conviction and sentence of the Appellant and one George Ogbonna for the offence of armed robbery, contrary to Section 1 (2) (a) of the Robbery and Firearm (Special Provisions) Act Cap. VOL Xxii Laws of the Federation of Nigeria as applicable in Imo State, by the High Court of Imo State sitting at Oguta in Charge No: HOG/9C/1999 Coram P.C Ikpeama, J., delivered on October 6, 2010. The Appellant was the 2nd accused person.

The facts leading to this appeal are: The complainant, one Christopher Okpara, who testified as PW1, was robbed by four armed men in his home at Mgbirichi on 19/12/1997. They stole his money, his medicated eye glasses and a compact disc stereo set. In the morning of 20/12/1997, one Geoffrey Njoku, PW2, who was traveling to Owerri from Mgbirichi in a bus, saw the 1st accused person, who he recognized, waiting for a vehicle to go to Owerri. The bus driver had driven past but reversed on the request of PW2 to pick the 1st accused person. Upon the 1st accused person realizing that an occupant of the bus that he flagged down recognized him, he ran into

the bush. His behaviour raised the suspicions of PW2 that he was part other robbery gang that had attacked Christopher Okpara the night before. The occupants of the bus gave the 1st accused a chase. As he ran, money in a polythene bag, shoe and cap fell from the 1st accused person. These items were picked up by the passengers of the bus and brought to the victim PW1. After PW1 lodged a report with the Police Operation Storm at Owerri, they followed him back to Mgbirichi. The 1st accused person was arrested. The Appellant was also eventually arrested through information given by the 1st accused person. On their arrest, the 1st accused person and the Appellant volunteered confessional statements following which they were charged for the offence of armed robbery. At the conclusion of hearing, the learned trial Judge convicted them and sentenced them to death. Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice of Appeal filed on 7/2/2019 on four grounds of appeal.

The parties filed Briefs of Argument. The Appellant’s Brief was filed on 7/2/2019, and Appellant’s Reply Brief was filed on 23/10/2019. Both Briefs were settled by

D.B. Fubara, Esq. The Respondent’s Brief which was filed on 30/9/2019 but deemed properly filed and sewed on 28/1/2020, was settled by K.A. Leweanya, Esq., Chief State Counsel, Ministry of Justice, (MOJ) Owerri. At the hearing of the appeal on 30/4/2020, K.O. Kalu, Esq., who appeared for the Appellant, adopted the Briefs for the Appellant and urged the Court to allow the appeal, Mrs. Chioma E. lwueze, Principal State Counsel, MOJ, with Mrs. J.U. Iwuagwu, Principal State Counsel, MOJ, Owerri, adopted the Respondent’ s Brief, urging the Court to dismiss the appeal.

Out of the four grounds of appeal, Counsel for the Appellant formulated the following Issues for determination of this appeal:
1. Whether or not the learned trial Judge was right in law when he failed to take into consideration the evidence of PW2 in determining the weight to be attached to the appellant’s purported confessional statement more so when the authorship of the purported confessional statement was in issue.
2. Whether or not the learned trial Judge of the Lower Court was right in law When he relied on prosecution evidence to convict and sentence the appellant when the

said evidence created serious doubt that ought to have been resolved in favour of the appellant.
3. Whether or not the learned trial Judge of the Lower Court was right in law when he assumed jurisdiction and convicted the appellant on Charge no. HOG/9C/1999 dated 24th September, 1999. which was not signed by a juristic person
4. Whether or not the learned trial Judge of the Lower Court was right in law when he convicted and sentenced the appellant relying on wrongfully admitted uncertified photocopy of a public document.

For the Respondent, the issues were framed in this manner:
1. Whether the learned trial Judge failed to take into consideration the evidence of PW2 in determining the weight to be attached and whether or not the authorship was in issue
2. Whether the evidence of the prosecution created doubts that ought to have been resolved in favour of the appellant.
3. Whether Charge No HOG/9C/1999 dated 24th September, 1999 was not signed by a juristic person and whether or not the trial was right to assume jurisdiction.
4. Whether the trial Judge relied on wrongfully uncertified photocopy of a public document to

convict the appellant.

The Issues as framed by the parties are the same, though slightly worded differently by the Respondent. I observe that the Appellant’s Reply Brief merely re-argued the appeal. An appellant would be required to file a reply brief to respond to or answer any new or fresh point of law raised by a respondent; Order 19 Rule 5 of the Court of Appeal Rules, 2016. Sec also: Onwubuya Ors. v. Ikegbunam (2019) LPELR 49373(SC); Awusa v. Nigerian Army (2018) LPELR-44377(SC); Mozie & Ors v. Chike Mbamalu & Ors (2006) LPELR-1922(SC). Therefore, a reply brief need not be filed if there is no new issue raised in the respondent’s brief that ought to be addressed. The issues distilled for determination in both the Appellant’s Brief and the Respondent’s Brief being practically the same, there was no need for a Reply Brief that would only rehash arguments already contained in the Appellant’s Brief. The Reply Brief shall therefore be discountenanced.

I shall adopt the Issues framed by the Appellant and resolve same in this manner: Issues 1, 2, and 4 together, and Issue 3.

Issues 1, 2 and 4
The Appellant’s Counsel posited that

the offence of armed robbery for which the Appellant was charged and convicted being a capital offence, the Trial Court ought to ensure that in the application of the law, justice is seen to be transparently done, taking all factors into consideration.

The Court was referred to the evidence adduced. PW2, Geoffrey Njoku, had told the trial Court that the statement said to have been made by him, was not dated, signed, or initialed by him. The prosecution adduced no evidence to validate the said statement. It was argued that this evidence ought to have weighed strongly on the mind of the Trial Court in determining the weight to be attached to the Appellant’s alleged confessional statement, which he denied that he made. On what factors to engage in testing the veracity of a confessional statement, reliance was placed on Akinrinlola v. The State [2016] Vol. 259 LRCN 1 at 8. It was argued that juxtaposing these recommended factors with the evidence adduced would reveal that the alleged confessional statement failed the veracity test.

It was also argued that PW1, the victim of the robbery, who was in the best position to identify those who robbed him, did

not identify the Appellant as one of those who robbed him. The case of Esene v. The State [2017] VOL. 273 LRCN 180 at 185 was cited and relied on. Other pieces of evidence were referred to in submitting that the prosecution failed to prove its case beyond reasonable doubt. The Court was urged to hold that the confessional statement was not consistent with any fact that was ascertained and established.

It was further argued that the totality of the evidence for the prosecution created doubts that ought to have been resolved in favour of the Appellant. Any doubt created in the case of the prosecution should be resolved in favour of the accused person, relying on Udosen v. State [2007] vol. 146 LRCN 771 at 778; The People of Lagos State v. Umaru [2014] vol. 230 LRCN 1 at 19.

It was further submitted that a statement obtained by the police from a suspect in the cause of Investigation of a crime is a public document under Section 102 of the Evidence Act, 2011. The only public document admissible in law, which the Court can rely on are:
a. The Original of the public document
b. Certified true copy of the public document.
c. A re-certified

photocopy of the certified true copy in special circumstances.
Reliance was placed on Ogboru v Uduaghan [2011] 2 NWLR (Pt. 1232) 538. Evidence Act annotated with cases 2011, 4th Edition by A.M. Adebayo at page 161 was also relied on.

It was the evidence of PW3 that the original copy of the Appellant’s alleged confessional statement was destroyed by fire at the DPP’s office. Therefore, the certified true copy or a re-certified photocopy of the certified true copy as was held in Ogboru v Uduaghan (supra) would be admissible. But the prosecution tendered in evidence a photocopy of the uncertified copy of the alleged confessional statement, which the Lower Court relied on to convict the Appellant. On when a public document can be accepted by the Court and acted on, reliance was placed on Tabik Investment Ltd v. G.T.B Plc. (2011) ALL FWLR (PT 602) 1592 S.C. The alleged confessional statement of the Appellant was not certified in accordance with Section 104 of the Evidence Act, 2011. The type of secondary evidence of a public document admissible in law was further defined in Sections 89 and 90 of the Evidence Act, 2011. The case Aromolaran v. Agoro

[2015] VOL. 239 LRCN 79 at 85 was cited and relied on. It was submitted that the photocopy of the alleged confessional statement of the Appellant was not certified and therefore did not comply with the aforesaid sections of the Evidence Act.

It was argued that a Court cannot rely on wrongly admitted evidences citing Abubakar v. Chuks [2008] 20 W.R.N 27 at 35. The only evidence which the Trial Court relied on to convict the Appellant was the alleged confessional statement, which it was submitted, was wrongly admitted. Although wrongful admission of inadmissible evidence is not of itself a ground for the reversal of any decision, where the wrongful admission of the inadmissible evidence leads to a miscarriage of justice, the Appellate Court should expunge the wrongly admitted evidence and reverse the judgment in the interest of justice. The Court was urged to resolve these issues in favour of the Appellant.

For the Respondent, it was argued that the Trial Court had evaluated the entire evidence before reaching its final decision, the prosecution having proved its case through confessional statement and circumstantial evidence. While it is the law that

a confessional statement must be corroborated by other facts in the case outside the statement, leading to the inference that the confession is true, as recommended in R v Kanu (1952)14 WACA, it was also trite law that an accused person can be convicted on his own confessional statement alone, citing Ikemson v State (1998) ACLR 80 at 101. It was submitted that there were facts outside the statement of the Appellant that confirmed the fact that he made it. The prosecution fulfilled all the conditions to test the veracity of a confessional statement, which was corroborated by facts outside the confession.

Although the Appellant retracted his confessional statement, a voluntary confession which is admissible against the accused does not become inadmissible merely because the accused person who made it has retracted, relying on Egboghonome v State (2001)2 ACLR 262. The denial of a confession is no reason for rejecting the statement, which was voluntarily made. The Court was invited to note that the Appellant did not challenge the voluntariness of his statement but merely stated he never made it. It was contended that the Appellant’s confessional statement was

made at the earliest opportunity when his conscience was most pricked. The retraction was made at the trial, which was months after the Appellant had considered his position and framed plausible answer. The Appellant’s confession was direct, positive, equivocal in the sense that it pointed irresistibly to the guilt of the Appellant and leaving no reasonable doubt that the Appellant robbed the victim. The case of Abirifon v State (2009) FWLR (Pt. 471) 873 was cited and relied on.

It was submitted that the evidence of the prosecution witnesses did not created any doubt as the prosecution proved the essential ingredients of the offence of armed robbery beyond reasonable doubt, relying on the evidence adduced. It was further submitted that the inconsistencies referred to by counsel do not relate to any material fact which can make the Court doubt the evidence. For an inconsistency to be fatal to the case of the prosecution, it must be substantial and fundamental to the issue at hand before the citing Namsoh v State (1993) 5 NWLR (Pt 29) 129 at 132; Nnolim v State (1993)3 NWLR (Pt. 283) 569 573, Besides, proof beyond reasonable doubt as a requirement for

conviction in a criminal case has been held not to be proof beyond the shadow of doubt, citing Ndike v State (1994) 8 NSCQ 33 at 45. Once a Court is satisfied beyond reasonable doubt that by the evidence offered by the prosecution, the Appellant was among those who committed the Offence, the Trial Court was entitled to enter a finding of guilt, relying on Ehot v State (1993) 4 NWLR (Pt.290) 663.

Counsel for the Respondent further submitted that the prosecution tendered a certified photocopy of the confessional statement at the trial. The Appellant was fully represented at the trial and the issue of certification was never raised or canvassed because the document, which was tendered without objection, was certified. The evidence of PW4 was relied on. The said confessional statement was tendered by the same department and office that recorded and certified it, and also was in custody of it when the Department of Public Prosecution requested for it. The evidence of PW3 was also relied on. It was submitted that all the confessional statements of the 1st accused person and Appellant, as well as the entire duplicate case file were endorsed and certified by the

appropriate officer. The Court was urged to discountenance the argument of Appellant’s Counsel on this issue and the authorities cited, and resolve the Issues in favour of the Respondent.

Resolution
It is so well entrenched in our criminal jurisprudence that the burden of proving the guilt of an accused person in a criminal trial rests upon the prosecution and this burden must be discharged beyond reasonable doubt. While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence. Indeed, he need say no word in his defence. The burden of proof in a criminal trial never shifts from the prosecution. The fundamental reason for this position is that an accused person is presumed to be innocent until his guilt of the offence is established, Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended provides;
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
See: Williams v State (1992) LPELR- 3492 (SC); Abidoye v. FRN (2013) LPELR-21899(SC); Commissioner of Police v. Amuta

(2017) LPELR – 41386(SC). The provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 are also in line with the protection accorded an accused person as follows:
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.
Courts, over time, have sought to clarify what ought to be the proper interpretation to be given to the well-worn phrase ‘proof beyond reasonable doubt’ in criminal trials. It is agreed that proof beyond reasonable doubt does not mean proof to scientific certainty – per Muhammad, JSC in The State v. Azeez (2008) 4 S. C. 188. Proof beyond reasonable doubt also does not mean proof beyond the shadow

of a doubt – per Denning J, in the case of Miller v. Minister of Pensions 1947 2 All E.R. page 372 at 373, cited with approval by A.M. Mukhtar, JSC (as he then was) in John Agbo v. State (2006) S.C (PT. II) 73. As Pats Acholonu, JSC (of blessed memory), in Shande v. State (2005) 12 MJSC 152, (2005) LPELR-3035(SC) at page so aptly proclaimed:
“Although the standard of proof is not that of absolute certainty (that should be in the realm of heavenly trials) the Court seized of the matter must convince itself beyond all proof that such and such had occurred. It is essential to stress times without number that the expression proof beyond all reasonable doubt – a phrase coined centuries ago and even ably applied by the Romans in their well developed jurisprudence and now verily applicable in our legal system, is proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore, it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the

accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”
Proof beyond reasonable doubt is the highest standard of proof that must be met in any trial. It is diametrically different from the Lower Court burden of proof placed on a claimant in civil litigation, which is proof by a preponderance of the evidence or balance of probabilities or proof by clear and convincing evidence. Proof beyond reasonable doubt demands that no other logical explanation can be derived from the facts, except that the defendant committed the crime; Adekoya v. State (2017) LPELR-41564(SC); Uche v The State (2015) LPELR-24693(SC); Mbachu v. State (2018) LPELR-45163(SC); Bassey v. state (2012) LPELR-7813(SC). Proof beyond reasonable doubt therefore means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness; Abokokuyanro v. State (2016) LPELR-40107(SC); Bassey v State (2019) LPELR-46910(SC). When there is proof beyond reasonable doubt, the presumption that a person is innocent until proven guilty is

routed or displaced. It follows therefore that where reasonable doubt in the guilt of the accused person exists, the accused person must be discharged. On this issue, the Apex Court, per Obaseki, JSC in Ogundiyan v. State [1991] 1 NSCC 448, (1991) LPELR-2333(SC) at pages 13-14, said:
“The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hyeienth Egbe v. The King 13 WACA 105 at 106. In that celebrated case, Verity, CJ., (Nigeria) delivering the judgment of the Court on the standard of proof said:
“As illustration of the required standard proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin, B., in Rex w. White 4 F & F 383 at 384 where the learned Baron said: –
In order to enable you to return verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt and this as a conviction created in your minds, not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.”
(Emphasis mine).

The guilt of an accused person may be established by:
1. His direct,

positive and voluntary confessional statement; Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1
2. Circumstantial evidence; Mustapha Mohammed v. State (supra).
3. Direct oral evidence given by a victim or by a witness who saw and watched the act of killing or murder.
See also: Danjuma v. The State (2019) LPELR-47037(SC); Omoregie v. State (2017) LPELR-42466(SC); Kolade v. State (2017) LPELR-42362(SC); Giki v State (2018) LPELR-43604(SC); Ime David Idiok v. The State (2008) 4-5 S. C. (Pt. 1) 84; Igabele v. State (2006) LPELR-1441(SC); Afolalu v State (2010) 6-7 MJSC 187; Emeka v. state (2001) 88 LRCN 234.

No matter which of these methods the prosecution employs in proof of its case, the guilt of the accused person must be established beyond reasonable doubt; Akwuobi v. State (2016) LPELR-41389(SC). Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348 (SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT 1) 59.

Armed robbery means simply stealing plus violence

used or threatened; Aruna v. The State (1990) 6 NWLR (Pt. 155) 125, (1990) LPELR-568(SC). The offence of robbery with firearms is committed where at the time of the commission of robbery, the accused is proved to have been armed with ‘firearms’ or ‘offensive weapon’ or to have been part of the robbers so armed. In law, it does not matter that the accused person did not carry the weapon. Once it is established that the accused person was among the robbers, not as a casual onlooker but as a full participant, and his accomplices carried firearms, then he is guilty of the offence of armed robbery; Okpulor v State (1990) LPELR-2523(SC), (1990) 11-12 SC 151.
In order to secure a conviction on the charge of armed robbery, the prosecution has the onus of proving beyond reasonable doubt that:
i. robbery has taken place
ii. the robbery was an armed robbery
iii. the accused person participated in the robbery.
See: Dawai v. State (2017) LPELR-43835(SC); Orisa v State (supra); John v. The State (2019) LPELR-46936(SC); State v. Sani (2018) LPELR-43598(SC), All these elements must co-exist to ground a conviction; Ugboji v. State (2017)

LPELR-43427(SC). It is now to see if these elements were established.
1. Robbery has taken place
The victim was PW 1. He testified that he was robbed in his residence at Mgbirichi on 19/12/1997 at about 8pm by four armed men with one Other man outside the house, The armed robbers took his money which was in a bag, his compact disc stereo and his eye glasses. After the incident, he raised an alarm which attracted other persons. He also reported the incident the same night to the police at Umuagwo Police Station. The police were unable to locate the armed robbers that night. His evidence on the event was not dislodged by cross examination.

PW2, a resident of Mgbirichi, testified that he was one of the persons who rushed to the residence of PW1 when he shouted to alert people that he had been attacked by armed robbers. His evidence in this regard was not discredited.

The Appellant’s Counsel raised contentions over the reliance on the statement of PW2 to the police, Exhibit D. Firstly, PW2 had said under cross examination that he did not write his statement to the police himself and he also did not sign the statement. He further said it was the

police IPO that wrote his initials and date on the said statement. However, PW2 also said under cross examination, pages 33 – 34 of the Record of Appeal:
“What is contained in the statement to the police was what I said and was recorded by the police…. I did not ask the police I.P.O to write the initial and date on my statement. I am adopting what the police I.P.O wrote as my statement.”

Having acknowledged that the contents of his statement as recorded by the IPO were in line with what he told the police and adopted the statement, the Trial Court was right to accord weight to the said Statement of PW2. I agree with the Respondent’s Counsel that there was no complication surrounding the authorship of the statement of PW2 who confirmed it to be a true representation of what he said happened and adopted the statement.

A copy of the statement of PW2 was produced at the Trial Court as the Respondent’s Counsel informed the Trial Court that the original case file was burnt when the DPP’s office was burnt. PW2 identified the copy shown to him as his statement, which was admitted in evidence as Exhibit D. The Appellant’s Counsel

contended that Exhibit D was not admissible as it was not certified. The Respondent’s Counsel has argued that Exhibit D was certified.

PW3, Sgt Isaac Opara who was attached to the Operation Storm Office Owerri testified that he and his team investigated the case as reported by PW1, the victim. He further said at page 43 of the Record of Appeal:
“The Original case file was forwarded to D.P.P.’s office and the duplicate copy of case file is (sic) and it is kept by the prosecutor Armed Robbery Section the State C.I.D. The D.P.P. requested for the duplicate case file on the ground that the original case file sent to them was burnt by fire when the D.P.P’s Office was gotten(sic) by fire outbreak. Consequently upon this request by the DP.P., we made copy from the duplicate case file retained by us which we forwarded to the D.P P. On my being summoned to give evidence in this Court the state counsel forwarded to us a copy of the case file for endorsement. From the duplicate case file retained by us we had to make out a copy which was endorsed by the prosecutor in charge of armed robbery section of the State C.I.D. The endorsed photocopy was forwarded to the

state counsel. I was present when the endorsement was done.”

PW4, Inspector Joel Bode of the Zonal CID, Zone 9, Umuahia, who investigated the case while he was at the State CID, Owerri, testified, pages 50 – 51 of the Record of Appeal:
“On 30/12/97 a case of armed robbery transferred from then Operation Storm was referred to me for investigations. The 2 accused persons were transferred with the case file …I sent the 2 case files – Operation storm and State C.I.D to the D.P.P and we kept duplicate copy in our office. On 25/10/2008, the Police Officer incharge of duplicate case files sent for me. He is Sgt Emmanuel Luck. When I came to him he told me that the DPP asked for the duplicate copy of this case file. He told me that original case file got burnt I their office during a fire disaster. Another duplicate copy was therefore made from the duplicate case file. These documents were attested to by the said Sgt Luck Emmanuel who is in charge. The new duplicate copy was sent to the D.P.P. I was present when Sgt Luck Emmanuel made the endorsement of the documents in the duplicate case file.

PW4 was not cross examined on this

aspect of his evidence. Under cross-examination, he said that after he took over the case file, he did not take any further statement from PW2. In other words, the certified (endorsed) photocopy, Exhibit D, was made from the statement of PW2 that was already in the Operation Storm case file when it was handed over to the State CID Owerri, from where PW4 took over investigation. What was tendered was therefore a certified copy of the original statement of PW2, which PW2 acknowledged as his statement; Orlu v Gogo-Abite (2010) LPELR – 2769(SC); Tabik Investment LTd v GTB Plc (2011) LPELR-3131(SC).
It was therefore established from the evidence of PW1 and PW2 that there was a robbery.

2. The robbery was an armed robbery
The evidence of PW1 was as follows, page 23 of the Record of Appeal:
“I was in my dining room eating when I heard my maid Charity Odu shouting “manager”, “manager”. I got up from the dining chair to find out why my maid was shouting. I saw 4 men armed with guns pointing guns at the neck of my maid and following her to my parlour. When the 4 men saw me as I was standing in the dining room they shouted at me

lie down. I lied(sic) on the ground and they ordered me to bring all the money I have in the house. I asked them if I could get up to go and bring the money and they answered yes. I then got up. I led them to my bedroom and they pointed guns at my back…. The money was in a bag. The bag was heavy as the money was in N20 denominations. The robbers carried the bag containing the money.”
The account of this incident as given by PW1, was not discredited by cross-examination. The robbery was therefore an armed robbery.

3. The Appellant participated in the robbery.
This element is fundamental, because, if the accused person is not established to have participated in the armed robbery, he must be discharged. The prosecution must therefore prove that the Appellant executed or took part in executing the robbery.

In answering this question positively thereby convicting the Appellant, the learned trial Judge relied on confessional statements, Exhibits F and J, made by the Appellant, but which he later retracted. The learned trial Judge found that these statements, which were tendered by the Investigating Police Officers (IPO), that testified as

PW3 and PW4, were corroborated by facts outside the said statements.

Section 28 of the Evidence Act 2011 defines a “confession” as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. The law is fairly settled that a free and voluntary confession of guilt, whether judicial or extra judicial, which is direct and positive and properly proved is sufficient to sustain a conviction, so long as the Court is satisfied with its truth; Famuyiwa v The State (2017) LPELR-43836(SC); Adekoya v The State (2012) LPELR-7815(SC); Odeh v. FRN (2008) 3-4 S. C. 147; Silas Ikpo v. The State [1995] 33 LRCN 587 at 587. A free and voluntary confession by a person that is direct, positive, duly made and satisfactorily proved, has been described as occupying “…the highest place of authenticity when it comes to proving beyond reasonable doubt.” Mustapha Mohammed v. State (2007) 11 NWLR (PT 1045) 303. It is for the prosecution to prove that the statement was made freely and voluntarily.

It must be noted that a confessional statement can ground a conviction regardless of the fact that the maker

resiled therefrom or retracted same at the trial. Such retraction does not necessarily make the statement inadmissible; Ubierho v. The State (2005) LPELR-3283(SC), (2005) 2 S.C. (Pt I) 18; Shande v State (supra).

LPELR-24403(SC); Okanlawon v The State (2015) LPELR-24838 (SC); Ikemson v. State (supra), (1989) 6.S.C, (PT I) 114, (1989) LPELR-1473(SC); R v. Itule (1961) I All N. L. R. 462. However, such retraction must be made at the time the statement is tendered to be admitted as evidence. A challenge to an alleged voluntary confessional statement must be made upon presentation of the statement. A retraction made after a statement has been tendered without objection, and admitted as evidence is, at best, an afterthought. Indeed, a challenge or retraction presented after the statement has been admitted in evidence and perhaps the witness for the prosecution discharged, cannot be taken seriously;Ikemson v. State (supra); Saliu v The State (2014) LPELR-22998(SC).
In the second option, the course of action open to the trial Court differs. Where an accused retracts a statement on the ground that it was not voluntarily made, it becomes incumbent on the Trial Court to conduct a trial within trial in order for the prosecution to establish that the statement was voluntarily made. Upon holding a trial within trial, the prosecution has opportunity to prove that the statement

was voluntary, while the accused has opportunity to prove that it was not; Madjemu v The state (2001) LPELR-1805(SC), (2001) 5 SC (PT. I) 84; Emeka v The State (2001) LPELR-1125(SC), (2001) 6 SC 227; FRN v Iweka (2011) LPELR-9350(SC), Eke v The State (2011) LPELR-1133(SC).

It is desirable to have outside the confessional statement some evidence however slight, of the circumstances which made it probable that the confession was true; Awosika v The State (2018) LPELR-44351(SC); Emeka v. State (supra); Akpan v. State (2008) 4-5 S. C. (PT. II); Hassan v The State (2001) LPELR-1358(SC); Galadima v. State (2012) LPELR-15530 (SC), (2012) 12 MJSC (PT III) 190; Onyenye v The State (2012) LPELR-7866(SC); Fatai v. State (2013) LPELR-20182(SC), Danjuma v. The State (2019) LPELR-47037(SC). Such further or additional evidence are applied to determine the weight to be attached to the confessional statement. Tests to be applied or followed by the Trial Court in determining the issue of weight to be attached to confessional statements were laid down in R v Sykes (1913) 8 Cr. App R 233 and approved in Kanu v. R 14 WACA 30. By these tests, the judge must ask himself these

questions:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4 Was the prisoner one who had the opportunity of committing the offence ?
5. Is his confession possible?
6. Is the confession consistent with other facts which have been ascertained and have been proved?
The Trial judge ought to be satisfied with the answers to these questions; COP v Alozie (2017) LPELR-41983(SC); Mbang v. State (2012) 6-7 MJSC (PT IV) 119 at 148; Osetola v. state (supra), (2012) LPELR- 934860, (2012) 6-7 MJSC (PT 11) 47. If the confessional statement passes these test questions satisfactorily, a conviction founded thereon is invariably upheld, notwithstanding the fact that the accused person retracted or resiled from the statement, unless there are other grounds of objection;Lasisi v. State (2013) LPELR-20183 (SC); Shurumo v The State (2010) LPELR-3069(SC) Egboghonome v. State (1993) LPELR-1037(SC), (1993) 7 NWLR (PT 306) 383. If the confessional statement fails to pass the tests, no conviction can properly be

founded on it; Bassey v. The State (2019) LPELR-46910 (SC); Lasisi v. State (supra).

PW1 and PW2 testified that there was an armed robbery incident on 19/12/1997 in which PW1 was violently dispossessed of his money and possessions. PW1 reported the incident, first to police at Umuagwo, then to Operation Storm at Owerri. The next day, PW2, who was one of the sympathizers at the scene, was traveling in a commercial vehicle to Owerri from Mgbirichi and saw the 1st accused person, George Ogbonna, waiting on the road to board a vehicle to Owerri. The vehicle stopped to pick up George Ogbonna, who upon recognizing PW2 in the vehicle suddenly began to run. As a result of this suspicious behaviour, PW2 voiced his suspicion that George Ogbonna must have been one of the armed robbers that robbed PW1 the previous night. Thereupon the people in the car began to pursue him. He ran into the bush, dropping a polythene bag containing money, shoe and cap. These items were picked up and handed over to PW1 who took the items to Operation Storm, Owerri.

PW3, Sgt Isaac Opara, was attached to Operation Storm, Owerri at the time and was assigned to investigate the case.

PW3 said that they recovered a pair of black shoes, a face cap and a polythene bag said to have been abandoned by George Oghonna while running away. The bag contained the sum or N70, 000.00. They also recovered a face cap at the residence of PW1, which PW1 identified as worn by one of the armed robbers. George Ogbanna was handed over to the police on 21/12/1999 by his brother. PW3 said at page 40 of the Record of Appeal:
“I recorded a voluntary confessional statement from George Ogbonna under caution I took the accused with the statement to my superior officer for interview. My superior officer as the accused if he made the confessional statement and he admitted making same. My superior officer endorsed and countersigned the accused statement.”

Following the direction given by George Ogbonna, PW3 said he and his team went to Mgbirichi to a forest behind the Primary School and recovered from under a tree the compact disc stolen from PW1, which George Ogbonna had hidden there.

In his statement made at Operation Storm on 21/12/1997, Exhibit E, George Ogbonna stated:
“I, the above named suspect, having been duly charged and cautioned that

I am not obliged to say anything in answer to the charge against me, but whatever I say will be taken down in writing and giving as evidence hereby voluntarily elect to state as follows:
I know the four suspects who took part with me to rob Mr. Christopher Okpara the complainant at my home town Mgbirichi on Friday 19/12/97. The names of the four suspects are Tony a calabawan (sic) from Cross Rivers State. Tony is a commercial motor cyclist who rides on Suzuki 25. Tony lives at Ubomiri. The name of the second suspect is Emeka Aguta of Mbieri. The third suspect name is “Chember” Chamber is Ibo but I do not know his address or where he comes from. The fourth person is known as “Narrow” Narrow” from the way he speaks may come from either Enugu or Anambra State. I do not know Narrow’s address. Out of the four suspects mentioned above, Emeka is the only one that is my friend I came to be connected in knowing the other three, namely “Chember” Tony and “Narrow ” at Otamiri River bank where we normally meet to bathe or take Our bath. On Thursday 8/12/97 between 0630 hrs and 0830hrs, I and “Chember” and Narrow” met at Otamiri river where we three discuss(sic)

and planned to rob Mr. Christopher Okpara’s house at Mgbirichi my home town. Tony was equally at the discussion venue on the first day thursday 18/12/97 at Otamiri River Bank. I later on the same day communicated our discussion with other members of our gang to Emeka my friend. I then asked Emeka who know my village home too well to meet me at my Mgbiriehi home the nest (sic) day being friday 19/12/97 night. While waiting for them at home, Emeka and the other three whose names already I have mentioned, arrived to meet me at home at about 7.00 pm. The gang members including myself making them five were led to Oga Christopher’s house by myself. Before we left, they met me Community Central School Mghirichi from where we took Off Mr. Christopher’s house to rob. I supplied the whole information concerning the robbery and as well led the operation. Myself and Emeka were not armed by Tony, “Chember and “Narrow” had guns as they went into Oga Christopher’s house, while myself remained outside watching. Because I am from Mghivichi where am well known by everybody including Christopher the complainant. After the robbery, “Chember ” carried the bag of money while Tony

carried the compact disc sound stereos frosm Oga Christopher’s house. Having left Christopher’s house after the robbery, we went to Obinze that night through the bush and track Road behind the primary School Mgbiriehi. It was in a bush at Obinze that we shared or divided the money. My share of the money was (N65, 000 00 sixty-five thousand naira) while Emeka’s own share was N55, 000.00 (Fifty five Thousand Naira) according to what he told me the rest (sic) money of which amount I do not know was shared by Tony, “Narrow and “Chember” I do not know the exact amount each and every one of the three got as share. After sharing the money, we remained in the bush at Obinze till the following morning being Saturday 20/12/97. Around 5. 00am of Saturday morning “Narrow” and “Chember” lef myself, Tony and Emeka in the bush and went to Umuokanne Junction from where the two entered motor to Owerri. From the bush, myself, Tony and Emeka came out into the main or tarred Road along which we trekked to Umuanunu Obinze Junction bus stop where we stopped to wait for bus for motor to Owerri, While we three were waiting for transport to Owerri, when a bus arrived at the bus stop

where we were standing, we rush to enter the bus bound to Owerri but the conductor told us that only one chance remained in the bus, Tony entered while myself and Emeka remained behind at the bus stop. A few minutes later, the bus reversed and started approaching our directions. At that stage I sensed danger and escaped into the bush. Tony himself dashed out of the vehicle and rushed into bush as well while Emeka missed loss(sic). The pair of black shoes and face cap belongs to Tony and not myself. I was not wearing shoes on my feet because I have a fresh wound on my left heel, hence the black shoes do not belong to me. As I escaped into the bush, I abandoned the bag containing my own share of the money which is N65,000.00 Sixty-five Thousand Naira), plus N20,000.00 (Twenty Thousand Naira) given to me for safe-keeping by Emeka altogether totaling N85, 000.00 Eighty-five Thousand Naira). After some time, I came out of the bush and joined bus to Owerri where I remained till evening of same day Saturday 20/12/97. When I reported back home that evening. I learnt that my father was being held at operation storm base. That night, my uncle who is my father’s junior

brother in the name of Mr. Anthony then called my immediate senior brother who rushed to invite Oga Christopher who came to our compound and picked me to operation storm base where I met my father who was released while I was arrested and charged with armed robbery. I am the person who carried the complainant compact disc sound stereo belonging to Oga Christopher which I hid behind an oil bean tree in the bush behind Union Primary School, Mgbirichi. If escorted, I can locate the compact stereo.
In addition to my statement, I wish to state that while I escaped into the bush as I stated above, I dropped the bag of (N85,000.00 Eighty-five Thousand) which was recovered by Geoffrey a tenant at Mgbirichi who took part in pursuing me amongst other passengers.
Signed: George Ogbonna
21/12/97
The accused Mr. George Ogbonna ‘m’ brought before me today 21/12/97 by Sgt Okpara and his confessional statement read over to him and he admitted to have made the statement freely and voluntarily with no promise, inducement or threat.
Under cross-examination, PW3 said Exhibit E was endorsed by ASAP Ahigbe.

PW3 further testified that George Ogbonna

had directed the police to James International Hotel at No 104 Lobo extension Owerri as where the Appellant was lodging. The police went there and discovered from the Hotel lodging register that the Appellant was lodging there. While they were there, unknown to them, the Appellant escaped. But the hotel manager told the Police that the Appellant had left the sum of N30,000.00 for safe keeping for which he would return to collect. As predicted, the Appellant returned back to the hotel to collect the N30,000.00. and was arrested. PW3 said that the Appellant also made a voluntary confessional statement on 23/12/1997, Exhibit F, as follows:
I, the above named suspect and address, after being duly charged and cautioned in English Language that am not obliged to say anything in answer to the charge against me, but whatever I say will be taken down in writing and giving as evidence hereby freely volunteer my statement as follow:-
I have known George Ogbonna for almost one year now. I happened to came to know him as a hawker of tailoring materials along Douglas road, Owerri where my tailoring workshop is situated at NO. 40 Douglas Rd, since our knowledge

each other, I and George have been regular customers to each other. On Thursday morning at about 0800hrs being 18/2/97 George came to our workshop and collected me to Otamiri River where I met one Tony, “Narrow” and one “Chember” All meet up venue, George brought the topic that his uncle in the village has large sums of money. George further hinted to us that, that uncle of his is a fearful type, that we should go and get money from him. The next day being Friday 19/12/97 at about 7.00pm I and George travelled down their town Mgbirichi from Owerri town. In the field of the village Primary School, Tony, Chember and Narrow came to join us that same evening as directed by George. After briefing us, George led us into one compound where “Narrow “Tony’ and “Chember ” who were armed with guns entered the man’s house while I and George who were unarmed remained outside. After the robbery, Narrow, Tony and Chember came out, with “Chember” carrying the bag of money and “Narrow ” carried the compact disc stereo out of the man’s house George then led us out of the way in to an escape route through the bush. I do not know the area very well. I did not see the man’s

spectacles or pair of glasses. That night of robbery, we shared the money in the bush. My own share was N55, 000.00, George’s own share as the leader of the operation was N65,000.00. I do not know the actual amount Tony, Narrow and “Chember ” collected as their own share immediately after the sharing of the money, I found my way back to Owerri I did not know what became of the compact disc stereo. On arrival at Owerri, I went straight to my shed at No. 40 Douglas Rd. Owerri where I passed the night. The following day being saturday 20/12/97, I checked into James Hotel International 104 Lobo Extension, Owerri I paid N900.00 as fee for 3 days accommodation covering 20th, 21st, 22nd through 23th December, the No of the receipt issued me on 20/12/97 at James Int. Hotel is 3905 while I gave the manager of the Hotelon 31/12/97 the sum of 30,000.00 (Thirty Thousand Naira) for safe keeping. The number of the receipt issued in respect of the No. 3913. The N4,000.00 written in the receipt is wrong. When I checked back into the James International Hotel where I was lodging, I was arrested around after 10pm of Sunday 21/12/97 by some mobile police men on duty at Emmanuel

College roundabout. The Mobile men detained me for some short time, after which men of the operation storm on mobile petrol(sic) came and picked me up to their base where I met George and identified him as the person who led the robbery operation in his Mgbirichi home town. I do not know where to locate, “Narrow”, “Chember and Tony.
Signed: Emeka Aguta
23/12/97
Statement of the suspect recorded by me in English language and in the presence of the maker which I read over to him and he endorsed it to be correct and I countersigned.
The accused Mr. Emeka Aguta ‘in’ was brought before me today 23/12/97 by Sgt Okpara and his confessional statement read over to him and he admitted to have made the statement freely and voluntarily with no promise inducement or threat.
Signed 23/12/97.

The case file was transferred to the state CID, Owerri, PW4, Inspector Joel Bode, was then attached to the Anti-Robbery Section. PW4 said he personally recorded a statement from the Appellant on 30/12/1997, which was also confessional. His superior endorsed the statement of the Appellant. The statement of the Appellant recorded by PW4 was

marked Exhibit J. In Exhibit J, the Appellant substantially repeated his earlier statement, adding:
“Out of the said amount that given (sic) to me I gave N20,000.00 to my friend George to keep in the polythene bag for me because the money did not entered(sic) into my pocket he dropped all the money when he ran away I only come (sic) to Owerri with N35, 000.00k Thirty-five Thousand Naira… On 22/12/97 Operation Storm send(sic) to the Manager of the Hotel which I lodge at Lobbo Extention(sic) Hotel Owerri and recovered the N30, 000.00k which I kept for safe keeping in the Hotel. ”

The Appellant testified in his defence as DW3. He simply denied knowledge of the incident and of George Ogbonna or any other named participant in the armed robbery. Rather he said that he had a misunderstanding with his girlfriend, one Chinyere, who reported him to the police. He also denied making any statement to the police. Under cross examination, he continued with the story of how his girlfriend reported him to the police. He said, page 71 of the Record of Appeal:
“l saw my girlfriend whom I wanted to marry with another man and I therefore asked her to

leave me but she went to the police and reported that I beat her up. It was not the 1st time I saw my girlfriend with the man and it was in my girlfriend’s house that I saw them.
I made inquiries about the relationship between (sic) which revealed that they were having affairs(sic).”

I would straightaway say, in my candid opinion, that this story does not add up. In the first place, the not-fully identified girlfriend was already in a relationship with another man, since this was not the first time that he had seen them together, and it was in her house that he met them. He told her to “leave him” by which I understand him to be saying that he was no longer interested in relationship with her. How does that lead to a report to the police that he beat up his former girlfriend, if I may add, in the presence of her present boyfriend? In fact, if DW3 alleged that he got into a fight with the new boyfriend who he met in his girlfriend’s house leading to the police report, it may make more sense.
The defence of the Appellant was not at all credible.

On the Other hand, the testimonies of PW3 and PW4, which withstood the onslaught of cross

examination, revealed the following:
1. George Ogbonna, the 1st accused person, who testified as DW2, was first arrested through PW2.
2. The 1st accused person pointed the police to the direction of the Appellant as having participated in the crime.
3. The 1st accused person gave the sharing formula of the proceeds of the crime as follows: he got N65,000,00, while the Appellant got N55,000 as his share. The Appellant gave this same sharing formula in his statements made at different times from the 1st accused person.
4. The Appellant gave the 1st accused person the sum of N20, 000.00 to keep for him as the 1st accused had carried a polythene bag to the scene of crime – the Appellant also stated so in his statement.
5. The 1st accused gave the information to the Police that the Appellant was lodged at James International Hotel.
6. The Appellant stated that he lodged at the said James International Hotel for three nights.
7. The Manager of James International Hotel confirmed that the Appellant was lodged at the Hotel and further informed the Police that the Appellant gave the Hotel the sum of N30,000.00 for safe keeping

– the Appellant stated in his statements that he gave the sum of N30, 000.00 to the Hotel for safe keeping.
8. The Police recovered the said N30, 000.00 from the Hotel Manager. PW3 said so in evidence.
9. The Appellant was eventually arrested at the Hotel when he returned to collect his deposited money of N30,000.00.

The law is now settled that where an accused in his oral testimony in Court resiles from his written statement, the Court instead of discountenancing both pieces of evidence would be right to evaluate the oral statement in order to reach a just decision; Egboghonome v. State (supra). The oral evidence proffered by the Appellant in his defence lacked credibility, in the light of the entire circumstantial evidence. Rather, on a calm appraisal of the evidence adduced before the Trial Court, I find that I have to agree with the learned trial Judge that the confessional statements of the Appellant, Exhibits F and J, though later retracted, were corroborated by facts outside the said statements.
The Supreme Court, per Bello, CJN, in Egboghonome v. State (supra) at page 46 – 47 of the E-Report, cited with approval the writer

of the Journal of Nigerian Law published for July, 1992 at pages 31 – 32 thereof, thus:
“Confessions are generally made at the earliest opportunity, and probably where the conscience was most pricked’ Achabua v. The State (1976) 12 S.C. 63. A retraction is often made ‘at the trial after the appellants had reconsidered their positions and framed plausible answers’ Ikemson & Ors v The State (1989) 3 NWLR (Pt. 455) 476. As between the two, from the circumstances of each case, one may be accepted as truthful by the trial Court, while rejecting the other. Both the confessional statement and the retracting testimony need not be jettisoned because of the contradiction between them.”

To my mind, this accords with what appears to have happened in this case. At the earliest opportunity, pricked by conscience, the Appellant confessed to the crime. At the trial about 13 years later, he reconsidered his position and decided to come up with what could be a plausible defence. But then his defence was not credible in the circumstance. The evidence points to the fact that the Appellant participated in the robbery in the house of PW1, in which some of the

robbers were armed.

I therefore see no reason to disturb the conclusion of the learned trial Judge who found that the prosecution proved its case beyond reasonable doubt. Issues 1, 2 and 4 are thus resolved against the Appellant and in favour of the Respondent.

Issue 3
The Appellant’s Counsel contended that the learned trial Judge ought not to have assumed jurisdiction and convicted the Appellant as Charge No, HOG/9C/1999 dated 4/9/1999, was not signed by a juristic person.

It was submitted that for any Court process to be competent it must first be headed with the name of the Court where it will be heard or used, it must he dated and must be signed by a juristic person, either the litigant or his legal representative or other named authorized legal officer. Any originating process that falls short of any of these conditions is incompetent which robs the court of its jurisdiction to hear same, citing Okafor v. The State [1976] 5 S.C 13. The charge sheet with which the Appellant was tried and convicted by the learned trial Judge was not signed by a juristic person which made it fundamentally and incurably defective and incompetent, thereby

robbing the Court of its jurisdiction to hear same. The information with which the Appellant was tried and convicted did not disclose the name or identity of the person who signed same. This rendered the information incompetent and robbed the Court of its jurisdiction to hear same. Reliance was placed on Sarai v. Haruna [2008] All FWLR (Pt.432) 1147; A.C. v. Kaigama [2009] All FWLR (Pt.473) 1325 at 1337 where the Courts held that a signature by an unknown person or a signature that does not disclose who signed it is an incompetent signature. The Court was urged to hold that in the absence of jurisdiction, the entire proceedings of the Trial Court, including the conviction and sentence of the Appellant was a nullity.

For the Respondent, it was submitted that the trial Judge had jurisdiction to hear the Charge No HOG/9C/1999. The information or charge upon which the Appellant was tried in the Lower Court was initiated by the Attorney-General and Commissioner for Justice, Imo State. At the trial, the office of the Attorney General was fully represented by an officer from his chamber whose identity was not in issue. The signature on the information was not

also in issue as not belonging to the officer from the Attorney General’s chambers.

The provisions of Section 211(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, relating to Public Prosecution was cited and relied on. In order to carry out effectively and efficiently the above powers, functions and duties, the Attorney-General of a State under Section 211 (2) of the said Constitution is empowered to exercise those powers under Section 211(1) in person or through the officers of his department. The Officers in the Attorney-General’s department are lawyers enrolled in the Supreme Court of Nigeria and who have been employed as such by the State Civil Service Commission to assist the Attorney-General in the performance of his function. These lawyers have been recognized and accorded definition in both the Legal Practitioners Act, particularly Sections 2(3), 6(1)(2)thereof, Sections 341, 342 of the Criminal Procedure Law, 1963, Eastern Nigeria, as applicable to Imo State (CPL) and the Criminal Procedure (Miscellaneous Provisions) Edict, 1974, East Central State as applicable to Imo State, which gave law officers the power to

sign information or charges to conform with the provisions of Section 211(2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended. Cases cited and relied on include; M.U.O. Ezomo v A.G Bendel State (1986) 4 NWLR (PT. 36) 448; The State v Ilori (1983) 1 SCNLR 14; Abacha v The State (2002) 11 NWLR (PT. 779) 43; Christopher Awobotu v The State (1976) 1 U.I.LR. (PT.1) 5 at 18-20; Onwuka v The State (1970) 1 All NLR 9.

It was submitted that the information in Charge No. HOG/9G/99 dated 24/8/1999 was initiated in the Trial Court by the Attorney-General of Imo State on behalf of the State and was signed by a Law officer. It was not disputed that the person that signed the information is not a Law Officer. The law and authorities cited so far did not state that the law officer prosecuting must write his or her full names to validate the information. The Court was urged to resolve this issue in favour of the Respondent.

Resolution
I note here that the contention of the Appellant’s Counsel was not that the information was not signed at all or that the person whose signature was appended on the information was not a Law Officer in the Chambers of

the Attorney-General of the State. It was not contended that the said signature was forged. Copies of the Information and Record of Proof of Evidence as well as the case file, were filed on 19/10/1999 and signed by:
Signed
J.I Ubochi
For: Director of Public Prosecutions.
Although the designation of J.I. Ubochi was not stated, it has not been disputed that the information was signed on behalf of the Director of Public Prosecution.
By virtue of the powers donated to an Attorney General of a State by virtue of Section 211(1)(a) of the 1999 Constitution, the Attorney General of a State is authorized have the prosecutorial powers as exercised by officers under his office or by any counsel he so assigns by Fiat. In Amadi v AG of Imo State (2017) LPELR-42013(SC), Peter Odili, JSC, elucidated the powers of a State Attorney General as donated by Section 211 of the 1999 Constitution, as amended, thus, at pages 27 – 28:
“Therefore, when such assignments or delegations take place, the office of the Attorney-General is taken as having performed its constitutional duty and it is not for anyone to go into the minute details of which officer is

holding forth on behalf of the Attorney General.
It is in the light of what has been constitutionally provided for the Attorney-General of a State that the Attorney General can so delegate his Powers to officers of his Ministry to prosecute and defend matters in Court on his behalf, be it criminal or civil….. Therefore the Courts take it for granted that if the Director of Public Prosecution has started prosecution, he has done so in accordance with the instruction given to him by the Attorney General and it is in that wise that any Law Officer can sign an information on behalf of the DPP.
In the case of Christopher Awobotu v The State (supra) also reported in (1976) LPELR-649(SC), the Apex Court held that information signed on behalf of a Director of Public Prosecution was not invalid and that the trial of the appellant therein held thereon was not a nullity. See also M.U.O Ezomo v A.G. Bendel State (supra).
Therefore, it is to be presumed by the Court in the absence of any objection by the Attorney-General that both the Director of Public Prosecution and the State Counsel were acting in accordance with the instruction of the

Attorney-General in filling an information; Awobotu v The State (supra) at pages 24 – 25 of the E-Report, Therefore, unless the argument is that the Attorney-General has disavowed the information or that the signature of a named Law Officer in the Chambers of the Attorney General was forged, Information signed on behalf of the Director of Public Prosecution by a Law Officer in the Chambers of the Attorney General is not a nullity. A trial initiated by such Information is not a nullity. Issue 3 is therefore resolved against the Appellant and in favour of the Respondent.

In all, this appeal is without merit. It fails and is hereby dismissed. The conviction and sentence of the Appellant is hereby affirmed.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the opportunity to read in draft, the lead Judgment of my learned Brother, ONYEKACHI A. OTISI, JCA.
I agree with her reasoning and conclusion.
The appeal is without merit and I also dismiss same.

RITA NOSAKHARE PEMU, J.C.A.: I had the privilege of reading in draft, the lead Judgment of my Learned Brother, ONYEKACHI A. OTISI, JCA
I agree with her reasoning and conclusion.

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The appeal is without merit and I also dismiss same.

Appearances:

K.O. Kalu, Esq., For Appellant(s)

Mrs. Chioma E. Iwueze, Principal State Counsel, Ministry of Justice, Owerri with him Mrs. J.U. Iwuagwu, Principal State Counsel For Respondent(s)