IGWE v. COP (2020)

IGWE v. COP

(2020)LCN/14448(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, July 29, 2020

CA/A/279C/2016

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

CHINWENDU IGWE APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

Now, as it relates to the offence of conspiracy and whether the prosecution proved the offence, it is trite law that the essential ingredient of the offence of conspiracy lies in the bare agreement and association to do an unlawful thing which is forbidden by law. Proof of conspiracy is also usually a matter of inference from surrounding facts and circumstances, which means the Court may infer conspiracy from the fact of doing things toward a common purpose. See CLARK VS. THE STATE (1986) 4 NWLR (PT. 35) 381; AJE VS. THE STATE (2006) 8 NWLR (PT. 982) 345 AT 363 and ALATISE VS. THE STATE (2012) LPELR – 9469 (CA).
Thus, for the prosecution to establish the offence of conspiracy, the following ingredients must be proved:
a. An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means
b. Where the agreement is other than an agreement to commit an offence the same act besides the agreement was done by one or more of the parties in furtherance of the agreement.
c. Specifically, that each of the accused persons individually participated in conspiracy. PER IDRIS, J.C.A.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

On the other hand, for armed robbery the prosecution must prove that:
a. There in fact was a robbery;
b. The robbery was armed robbery; and
c. The accused person was the armed robber or one of the armed robber. PER IDRIS, J.C.A.

STANDARD OF PROOF IN CRIMINAL TRIALS

As a general rule and by Section 135(1) of the Evidence Act, 2011 (as amended), in all criminal trials the prosecution must prove the crime beyond reasonable doubt. Now, it is indeed true that proof beyond reasonable doubt does not mean proof beyond all doubt or shadow of doubt. It basically means establishing the guilt of the accused with convincing and conclusive evidence. See SMART VS. THE STATE (2016) LPELR – 40827 and NWATURUOCHA VS. STATE (2011) 6 NWLR (PT. 1242) 170. For the prosecution to discharge the burden of proof beyond reasonable doubt they must do so by either:
a. Confessional statement;
b. Circumstantial evidence
c. Evidence of an eye witness account
See EMEKA VS. STATE (2001) 14 NWLR (PT. 734) 666 and AKINMOJU VS. STATE (1995) NWLR (PT. 406) 24. PER IDRIS, J.C.A.

WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON ON A RETRACTED CONFESSIONAL STATEMENT

Now, it is elementary law, that a retraction of a confession does not mean that the Court cannot act on it and convict a person if the circumstances of the case justify this and a conviction will not be quashed simply because it was based entirely on the confession of the accused. Essentially, a confession does not automatically become inadmissible merely because the accused denied making it. See SHANDE VS. THE STATE (2005) 12 NWLR (PT. 939) 301 and ABDULLAHI & ORS VS. STATE (2013) where the Apex Court held per Ngwuta, JSC that:
“Retraction does not, ipso facto, render the confessional statement inadmissible. If an accused takes the earliest opportunity to deny having made the statement, the denial may affect the weight the Court will attach to the confessional statement. It is, however, not a reason to exclude the statement.” What one must therefore look at is the weight to be attached to a retracted confessional statement. In the Old case of DAWA & ANOR VS. THE STATE (1980) LPELR – 932(SC) the Apex Court per Obaseki, JSC held that:
“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. vs Sykes (1913) 8 Cr App R 233 and approved by the West African Court of Appeal in Kanu vs The King (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a judge must ask himself are: (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 murder? (5) Is his confession possible? (6) Is it consistent with other facts which have been ascertained and have been proved? If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist…” See also OSENI V. THE STATE (2012) LPELR-7833(SC). PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal, appealed against the decision/judgment of the High Court of the Federal Capital Territory, Abuja in Charge No. FTC/HC/G/15/CR/2007 delivered on the 12th of day of October, 2015 by Honourable Justice A.M. Talba wherein the Court convicted the Appellant and three others of conspiracy to commit armed robbery and armed robbery whereby they were sentenced to death by hanging.

The facts of the case leading to this appeal as adduced from the pleadings and evidence tendered at the trial Court are to the effect that the Appellant and three other accused persons on the 26th of March 2007 where arraigned before the High Court of the Federal Capital Territory on a two count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 5(b) and 1(2) of the Armed Robbery and Firearms Special Provisions Act CAP 398 LFN 1990, filed on the 5th of March 2007. The Appellant and the other co-accused pleaded not guilty to all the counts. To establish the two count charge the prosecution called 8 witnesses and tendered (14) exhibits: A,B,C,D1 – D12,

E,F,G,H,I,K,L,M, N1 – N2 and O1 – O2. On the application of the prosecution on the 9th day of October 2014 the count was amended to six counts and PW2 was recalled to give further evidence and was cross-examined. It was alleged that on or about the 7th of September 2006 about 1:30am there was a robbery at Bwari Area Council Secretariat, Abuja where one David Tanko was robbed of two handsets and the sum of 2,658,000.00. The Appellant lived in Lagos and was arrested at Asuwani Bus Stop in Lagos based on the confessional statement of the other accused persons.

In the Appellant’s brief three (3) issues were distilled for the determination of this appeal:
(1) Whether the learned trial Judge was correct to have held and convicted the appellant on the premise that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery in the light of the amended charge and evidence adduced before the trial Court. (Distilled from grounds 1,2,4 & 6 of the grounds of appeal)
(2) Whether learned trial Judge as a Court of first instance was correct to have suo motu struck out the four additional counts charge as

undesirable in disregard to the nature of evidence led by the prosecution and admitted exhibits L, M, N1 & 2, O1 & 2 in evidence to convict the appellant for armed robbery. (Distilled from grounds 3& 8)
(3) Whether the learned trial Judge was right in placing absolute reliance on the confessional statements to convict him. (Distilled from grounds 5, 7 & 9)

In relation to issue one Counsel for the Appellant argued that by Section 135 of the Evidence Act 2011 the burden of proof in a criminal case is on the prosecution who asserts and the prosecution can only discharge this burden reasonable doubt. The Appellant’s counsel next submitted that the offence of conspiracy is distinct which by virtue of Section 135(2) and (3) of the Evidence Act 2011 must be proved beyond reasonable doubt. Counsel then listed its ingredients of conspiracy thus:
a. There was an agreement between two or more persons; and
b. The agreement was to do an illegal act, or to do a legal act by an illegal means.

Counsel for the Appellant also argued that the trial Court relied on the confessional statement of the Appellant (contained in pages 249

and 251 of the records of appeal) to convict the Appellant of the offence of criminal conspiracy. Counsel then argued that there are factors that do not support the holding of the trial Court that criminal conspiracy was proved. These factors according to counsel for the Appellant are:
a. The name of the Appellant was not featured in the list of names contained in the confessional statement of the other accused persons as the name mentioned is Chinedu Igwe while the Appellant is Chinwendu Igwe.
b. The Appellant in his purported confessional statement said he was on cover up with one of the other accused persons but PW3 said he only saw the 1st and 4th Accused persons not the Appellant.
c. There was no evidence before the Court that any money was stolen, but the Appellant confessional statement stated that the robbers shared the money.
d. The Appellant said the robbery happened on the 6/9/2006 but the robbery according to the evidence before the Court happened on the 7/9/2006.

Counsel then concluded that based on these factors, it can be seen that the confessional statement was not natural and does not support other facts before

the Court as such conspiracy cannot be inferred from the confessional statement. Additionally, Counsel argued that the Appellant denied the confessional statement, participating in the robbery and testified that he was just boarding a bus to go to Ikeja when he was arrested but the Court did not take the Appellant’s evidence into consideration.

Counsel for the Appellant also argued that as it relates to armed robbery that the prosecution failed in its duty to prove armed robbery. Counsel listed the factors needed to prove armed robbery thus:
a. That in fact there was a robbery;
b. That the robbery was armed robbery; and
c. That the accused person was the armed robber or one of the armed robbers.

Counsel argued that going by the factors above and the evidence before the Court it cannot be said that the prosecution established the armed robbery. Counsel stressed that the trial Court relied on the confessional statement of the Appellant, that of the co-accused persons and the evidence of PW1 and PW2 to convict the Appellant. Furthermore, counsel argued that the pieces of evidence of the witnesses relied on by the trial Court to

convict the Appellant were not credible and there was no corroborating evidence outside the confessional statements. Additionally, counsel argued that the evidence of PW8 was not credible, PW8’s evidence is also in direct opposite of PW4 and two of them testified as eye witnesses.

Counsel concluded that the evidence of the Appellant contained in pages 154 – 157 of the record of appeal is more probable, which was that he was arrested in Lagos and forced to make the statement to the police and there is no evidence outside the confession showing that the confession is true especially that the Appellant denied making the confession. Counsel then argued that by virtue of the evidence given by PW3 a security man he said he did not see the Appellant and the co-accused with anything, how did the police recover the items used for the armed robbery? Counsel then submitted that PW8 must have been shot by one of the other policemen since no gun was recovered from the accused persons and only two gunshots were heard shot by PW4 and PW8 himself. From the above counsel submitted that the prosecution failed to adduce sufficient, credible and admissible

evidence to establish armed robbery. Finally, Counsel for the Appellant argued that there was no proof that 2.6 Million was stolen from the Bwari Area Council as there was no one from their cash office called to testify and PW3 in page 131 from the records of Appeal said he never told the police that 2.6 Million was stolen by the robbers.

In relation to issue two, Counsel for the Appellant argued that the trial Court was wrong to have raised the issue of the undesirability of the four counts suo motu and struck out the four charges without hearing parties thereon. Counsel argued that Exhibits L, M, N1 & 2, O1 and 2 tendered and admitted because of the amendment of the charge were allowed to stand even though the four charged were struck out. Counsel as a consequence of the above maintained that striking out the four charges suo motu occasioned a miscarriage of justice. Finally, the Counsel argued that the evidence of PW2 before his recall (contained in page 127 of the record of Appeal) was that they retrieved one Mercedes Benz ash color with Reg. AA557BDG, a bag containing 2 pairs of police uniform, one peeled ID card, two iron cutters and one rod at the

crime scene. However, the same PW2 on being recalled tendered objects differently from the registered exhibits.

In arguing issue 3, Counsel for the Appellant submitted that the purported confessional statements contained in Exhibits C and K were not freely and voluntarily made. Additionally, counsel argued that the cautionary words on Exhibit C are not signed and the signatures on the Exhibits C and K purported to be signed by the Appellant are dissimilar signatures as such the lower Court should not have placed reliance on them to convict the Appellant. Counsel as it relates to Exhibit C called to question who read the statement to the Appellant, asking whether the Appellant signed the statement before the DCO as the evidence and endorsement are in direct conflict with evidence of PW1.

As it relates to Exhibit K counsel argued that that it does not contain facts in respect of the robbery but about money they shared from the robbery operation. The Exhibit according to counsel also has many contradictions including the age of the Appellant. Additionally, counsel argued that the question of whether the Appellant made the statement or not ought not to

have been decided at the conclusion of the case based on the facts before the lower Court. In conclusion, counsel argued that the confessional statement of the co-accused only binds the maker and cannot be used against the Appellant, the lower Court was therefore wrong to have placed weight on the confessional statements to convict the Appellant.

The Respondent adopted the three issues formulated by the Appellant for the determination of this Appeal. For ease of reference the issues formulated are reproduced below:
(1) Whether the learned trial Judge was correct to have held and convicted the appellant on the premise that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery in the light of the amended charge and evidence adduced before the trial Court.
(2) Whether learned trial Judge as a Court of first instance was correct to have suo motu struck out the four additional counts charge as undesirable in disregard to the nature of evidence led by the prosecution and admitted exhibits L, M, N1 & 2, O1 & 2 in evidence to convict the appellant for armed robbery.
(3) Whether the learned trial

Judge was right in placing absolute reliance on the confessional statements to convict him.

Counsel to the Respondent in his argument to issue one submitted that though the burden of proof lies on the prosecution, in some cases where the prosecution has discharged the burden the pendulum shifts to the accused. Additionally, counsel argued that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. Counsel further submitted that prosecution can discharge its burden of proof beyond reasonable doubt in three ways:
a. By evidence of confession;
b. Circumstance evidence; and
c. By evidence of eye witnesses.

Counsel for the Respondent argued that it proved conspiracy to commit armed robbery in the lower Court by calling 8 witnesses and tendering 14 exhibits. Counsel then submitted that the eye witness evidence of PW3, PW4 and PW8 and the confessional statement of the Appellant was corroborated by evidence of PW1 and PW2 the investigative officers. Counsel also submitted that the conduct of the Appellant and the other accused persons in robbing the Bwari Area Council establishes beyond reasonable doubt that all

the accused were acting in concert with a common criminal design meaning they conspired together to commit the offence. Finally, counsel argued that the Appellant’s oral evidence during his defence is nothing but an afterthought and cannot be relied on given it was discredited under cross examination.

As it relates to the commission of armed robbery counsel argued that to establish the offence of armed robbery, the prosecution must prove that:
a. There was robbery or a series of robberies
b. That each of the robbery was an armed robbery
c. The accused was one of those who took part in the armed robbery or in company of a person who took part in the armed robbery.

Counsel for the Respondent maintained that evidence of the 8 witnesses particularly that of PW1, PW2, PW3, PW4 and PW8 and Exhibits D – D32, L, M, N1, N2 and O1 and O2 was prove beyond reasonable doubt that the Appellant and the other accused persons were armed during the operation with machetes, cutlasses, iron rod and other offensive weapons. Additionally, counsel confessed that the weapons they used in the robbery were supplied by one Barrister. As it

relates to the contradictions in the evidence even by the prosecution witnesses, counsel for the Respondent argued that it is trite law that where they are contradictions in the prosecution witnesses those contradictions must go to the root of the case. Regarding the shooting of PW8 Counsel argued that, the evidence of PW8 was that he was shot while one of the accused was trying to take his gun before he was over powered and arrested which was never challenged by any of the accused. In conclusion, counsel argued that from the totality of the evidence adduced before the trial Court the prosecution proved its case beyond reasonable doubt.

Counsel for the Respondent regarding issue two argued that where an accused person is charged with an offence carrying capital punishment and offences carrying lesser punishment, the Court can suo motu discountenance the other offences that carry a lesser offence. Counsel then argued that the learned trial judge did not raise any issue suo motu and resolve same erroneously but struck out the four additional charges after finding that the first two counts which bother on conspiracy and armed robbery were sufficient.

Counsel then argued that the contention by the Appellant that the striking out of the four charges amounts to denial of fair hearing is highly misconceived and not related to facts of this case. Counsel also submitted that the striking out of the four charges was not due to lack of evidence to sustain the two count charge earlier filed. Finally, counsel argued that the Appellant did not clearly state what injustice he suffered by the striking out of the four charges or recall of PW2.

As it relates to issue three counsel argued that the Appellant in his confessional statement admitted as Exhibit C and K admitted to taking part in the conspiracy and robbery in Bwari Area Council though he retracted the statement. Additionally, counsel argued that it is settled law that a mere retraction of a confessional statement does not affect its admissibility and even the weight to be attached to it where the trial Court is satisfied that it is voluntary, direct, positive and unequivocal in the admission of guilt. Counsel also argued that if an accused person wishes to impeach his extra-judicial statement, he has to establish that his earlier written confessional

statement cannot be true or correct. Counsel then argued that while the Appellant was denying his extra-judicial confessional statement he did not show by concrete evidence that he was not correctly recorded; or that he did not make the statement. Finally, counsel argued that the Appellant who denied making the statement in Exhibit C and K to the police cannot come and say it was made involuntarily.

MAIN JUDGMENT
Having reviewed all the briefs of arguments filed, I have formulated 2 (two) issues for the determination this appeal. The issues are:
(1) Whether the learned trial Judge was correct to have placed absolute reliance on the confessional statements to convict the Appellant on the premise that the prosecution did not prove the offences of conspiracy to commit armed robbery and armed robbery in the light of the amended charge and evidence adduced before the trial Court.
(2) Whether learned trial Judge as a Court of first instance was correct to have suo motu struck out the four additional counts charge as undesirable in disregard to the nature of evidence led by the prosecution and admitted exhibits L, M, N1 & 2, O1

& 2 in evidence to convict the appellant for armed robbery.

ISSUE ONE
As mentioned in the earlier part of this judgment Counsel for the Appellant pointed out certain factors which he alleged do not support the holding of the trial Court that Criminal Conspiracy was proved. For ease of reference I will reproduce these factors:
a. The name of the Appellant was not featured in the list of names contained in the confessional statement of the other accused persons as the name mentioned is Chinedu Igwe while the Appellant is Chinwendu Igwe.
b. The Appellant in his purported confessional statement said he was on cover up with one of the other accused persons but PW3 said he only saw the 1st and 4th Accused persons not the Appellant.
c. There was no evidence before the Court that any money was stolen, but the Appellant confessional statement stated that the robbers shared the money.
d. The Appellant said the robbery happened on the 6/9/2006 but the robbery according to the evidence before the Court happened on the 7/9/2006.

Additionally, the counsel for the Appellant also maintained that the confessional statement of the

Appellant was not natural and did not support the other facts of the case to sustain the charge of conspiracy. In the same vein counsel for the Appellant argued that the prosecution also failed to prove the offence of armed robbery. Counsel alleged that the Court only relied on the confessional statements of all the accused and evidence of the witnesses PW1, PW2, PW3, PW4 and PW8 which were fraught with falsehoods and contradictions.

proved:
a. An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means
b. Where the agreement is other than an agreement to commit an offence the same act besides the agreement was done by one or more of the parties in furtherance of the agreement.
c. Specifically, that each of the accused persons individually participated in conspiracy.

For the prosecution to discharge the burden of proof beyond reasonable doubt they must do so by either:
a. Confessional statement;
b. Circumstantial evidence
c. Evidence of an eye witness account
See EMEKA VS. STATE (2001) 14 NWLR (PT. 734) 666 and AKINMOJU VS. STATE (1995) NWLR (PT. 406) 24.

In this case, the prosecution used all the three methods listed above in proof of their case beyond reasonable doubt. The confessional statement contained in Exhibits C and K, the circumstantial evidence of PW1 and PW2 and the eye witnesses evidence of PW3, PW4 and PW8.

I will start with the confessional statements contained in Exhibits C and K respectively. It is perhaps best to reproduce it hereunder:
“I of the above name and address voluntarily confesses that I was born on the 13th of July 1974 in Mbose village Ahiazu Local Government Area of Imo State. I have attended Community Primary School Ahiazu from year 1980-1986 and proceed to Holy Ghost Secondary School, Owerri in Imo State 1987-1993. I did not proceed for further education. I went to Kano State to start a business of selling medicine at D line Sabon Gari Kano. I left Kano to Lagos in

I was jobless in Lagos and one Ibekwe Chima ‘m’ of Apapa, a brother to me got me a job in Apapa as a labourer who is uploading goods in the containers. I was sacked out as a redundancy in November 2004. I first came to Abuja January 2005. It was Sunny that make my way to Abuja. I came Abuja straight to Jabi park. Later I called Sunny and he conveyed me to Moses room at Jabi now demolished. Sunny introduced me to Moses and I was initiated into robbery by smoking cigar and drinking of beer in a nearby joint close to Moses room. We have operated three within FCT and as a matter of strangeness I cannot be able to locate or identify the place. There was no saying of any incantation during the initiation. We are nine in team namely:
1) Sunny ‘m’
2) One Moses ‘m’
3) One Barrister ‘m’
4) One Emma ‘m’
5) One I.K ‘m’
6) One Evans ‘m’
7) One Tochukwu ‘m’
8) One Umelu ‘m’
All of various address not everybody has a role to play in robbery only that (1) Barrister is the one supplying weapons.
(2) Emma, a

police officer is security watch dog example like the way we operated Bwari Area Council Secretariat, he is the one that will meet the police officer to find out how many policemen on duty both morning and night and any security attaches to the police in the Council Secretariat and the number of all the securities at the place before we plan to operate.
(3) Sunny is in charge of money
(4) Moses is the team leader also an information officer in our team where he is the one taking the largest share of the money as leader.
Barrister told us that any governmental place there was no complainant and he can stand to any length to defend himself as a Barrister and the rest is obey orders. Emma the boy among us is innocent and it is in that day I knows him. It was Moses that directed me to go to Mabushi round about and look for a bus to Bwari and to drop at junction he will meet me there. We got information to come to through Moses, our team leader and information officer. That money for incoming election is there; we should go and robbed the place that is how I came from Lagos. Why not I can identify anyone of my members in the team. I don’t

know the figures in the plate numbers except the make of it. Mitsubishi gallant ash colour if you go to Nyanya bridge from 1-3 days, you can see him riding the motor. Nobody is driving the car apart from him. He used to convey us inside his car to the place of operation. I cannot promise anything for the arrest of Moses and Sunny. Everybody got an information so they took for the hills. I believed that one day, one time I will be arrested. What we have done is a criminal offence and I realized my mistakes. I am pleading on behalf of my wife and my 2 kids to please the authority to forgive me either to release me on bail or to take me before Court. Honestly speaking it was the condition I am there is no way to survive and my kids I am still pleading the authority to please consider my kids and wife to grant me bail or charge me to Court of law for the criminal offence which involved myself into. Yes, I have committed the offence. That is all I have said.”

While in Exhibit K the Appellant stated that:
“I have the above name and address wish to state as I hailed from Ahiazu Local Government Area of Imo State. I was born into the family of Mr

and Mrs Igwe, now late. I later attended Community Primary School, Aliazu and I attended Holy Ghost College, Owerri in the year 1994. I was working with the Nigerian Ports Authority as a dock worker before dropped because it was sold, I came to Lagos from Imo State and I was broke and homeless when I don’t have anything to do or eat. There I know one Emmanuel Egwaje as a police man ‘m’ Tinker highland in Lagos, this place is a general place but I had never did any deal with him and I did not see him for long time. Sometime early this years Emmanuel Egwaje called on my phone number that I should come so that there is a container he wants to clear that I should come and assist him. I travelled to Abuja and met him in Jabi Masalaci with his Mercedes Benz and he introduced me to aka Barrister that he is his friend. And they asked me to sleep with one Moses who live in Jabi and works as a laundry in Chida hotel but I later dismissed when the police officers went there to arrest him. Firstly, we robbed a place I don’t know the place because that was my first time I have being in Abuja. Myself Moses, Sunny aka Barrister, late Tochukwu,

Kingsley were the gang that robbed the area and before each robbery operation aka Barrister and Emmanuel Ewaje a police man will first of all go an survey the place if there is any police man with gun so that we can operate successfully; and my share was given because the victims pursued us and nobody was arrested. Secondly myself, Barrister and our gang went and robbed somewhere around Abacha Barracks and N5,000 was given to me as my share. Thirdly, aka Barrister and the police man, Emmanuel Ewaje had gone to Bwari Area Council to spy the area. The police men now came and tell us that there is always a police man in the council that used to be on duty. Then Sunny and Moses lead us to the operation; Sunny is now at large and Moses too; we went there around 1:30 am on 6/0/2006 to rob the place but before we start we got the security unaware when they were still sleeping and we arrested them but it happens that the police man was not on duty. I don’t know which offices they broke into because myself and Ikechukwu Eze were cover up and it was Sunny, Moses, late Tochukwu, Kingsley, Evans Obizu that broke into the offices and they will never allow us to enter

and any share they give us we will collect. On the process police intercepted and started shooting and all of us ran and Barrister who carried us inside his Mitsubishi gallant vehicle drove off and left us. We ran in the same area and we shared money and N25,000 was my share and I travelled to Lagos the next day. I was arrested sometime in October together with the police man, Emmanuel and Emmanuel Abah. The police man is always a spy in any robbery operation we partake and at times he used to be around during the operation and his share will be given by Moses and Barrister. That is all I know.”

It is important to note that the confessional statement above was retracted by the Appellant. Now, it is elementary law, that a retraction of a confession does not mean that the Court cannot act on it and convict a person if the circumstances of the case justify this and a conviction will not be quashed simply because it was based entirely on the confession of the accused. Essentially, a confession does not automatically become inadmissible merely because the accused denied making it. See SHANDE VS. THE STATE (2005) 12 NWLR (PT. 939) 301 and

ABDULLAHI & ORS VS. STATE (2013) where the Apex Court held per Ngwuta, JSC that:
“Retraction does not, ipso facto, render the confessional statement inadmissible. If an accused takes the earliest opportunity to deny having made the statement, the denial may affect the weight the Court will attach to the confessional statement. It is, however, not a reason to exclude the statement.” What one must therefore look at is the weight to be attached to a retracted confessional statement. In the Old case of DAWA & ANOR VS. THE STATE (1980) LPELR – 932(SC) the Apex Court per Obaseki, JSC held that:
“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R. vs Sykes (1913) 8 Cr App R 233 and approved by the West African Court of Appeal in Kanu vs The King (1952/55) 14 WACA 30 and I regard them as sound and golden. The questions a judge must ask himself are: (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 murder? (5) Is his confession possible? (6) Is it consistent with other facts which have been ascertained and have been proved? If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist…”
See also OSENI V. THE STATE (2012) LPELR-7833(SC).
From the authority above, the question to answer is whether there is anything outside the confession that corroborates the circumstances and show that the confession is true?

From the evidence PW1, Cpl. Ambali Mohammed a police officer attached to the criminal investigation section, he testified that after obtaining the statement of 2 of the other accused persons his investigation led him to Lagos State where they arrested the Appellant and Emmanuel Egwaje and Emmanuel Ebah. However, both the Appellant and Emmanuel Egwaje in their statements confirmed that Emmanuel Ebah was not a gang member which corroborates the evidence of PW1. The Appellant in his confessional statement also stated that one Barrister supplied the weapons, this was corroborated

by PW2 who said he recovered some weapons including one iron cutter, machete, cutlasses, axe and two extra blades. It was further corroborated by PW3 who said the accused left the items which he saw at the secretariat in the morning. The evidence of PW4 and PW8 also shows that the confession was true. The Appellant also had the opportunity to commit the crime. After an exhaustive reading the statement in Exhibit C and K, I believe that the confession which was detailed to a fault could not have been fabricated by Police Officers who took the statement of the Appellant.

To this end the trial judge in his judgment on page 247 of the records of appeal held that:
“A critical look at Exhibit C will reveal that it does not only contain the name and address of the 3rd accused but also his date of birth and where he was born. The schools he attended, the business he was doing in Kano. When he left Lagos; the job he was doing in Lagos. And how he came to Abuja and the manner in which he was initiated into robbery. This is information which only the accused himself can supply to the IPO. It is such a detailed confession and only the accused can provide

such details. The devil itself knows not the heart of man, therefore the IPO cannot be in a position to manufacture such facts. I am of the strong view that the denial of statements i.e Exhibits C and K by the 3rd accused is only an afterthought. It is a different thing for the accused to say that he made the statement but it was made under torture. That would mean the confessional statement was not voluntarily made and therefore inadmissible in evidence. But if the accused says he did not make the statement, then the Court will have to look at the said statement vis-à-vis the other credible evidence before the Court and then decide on the weight to attach to the said statement. In this instant case, it does not appeal to common sense to say that an innocent person who is just standing at a bus stop for the next destination, will jump into a bus only to be arrested by police in the said bus and then conveyed to Abuja based on a serious allegation of committing an armed robbery. Could it be possible for police in Abuja to travel all the way to Lagos only for the search of innocent persons? One can only imagine the size of Lagos State and then think of

where they will start from looking for such innocent persons. I find it hard to believe such a story.
Exhibit C has satisfied the basic fundamentals of a valid statement. It gives a detailed confession showing that the accused committed the offence which he is charged; it was endorsed by a superior police officer and signed by the accused. The accused had the earliest opportunity to retract the confessional statement before a superior officer. The superior police officer will have no reason to endorse the statement if the accused denies same, hence it involves a very serious crime. I am therefore convinced beyond reasonable doubt that the confessional statement i.e Exhibits C and K were made voluntarily. I am satisfied that the confessional statements are free, positive and proved to be true.”

At this point I must state that by Section 28 of the Evidence Act, 2011 a confession is:
“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.”
I therefore agree with the trial judge that the confessional statement was made voluntarily by

the Appellant. Additionally, the basic factors of a valid statement were present; the statement was made under caution (cautionary words were written and signed), a detailed confession admitting the crime and the statement was endorsed by a superior officer and signed by the accused. SeeOSHIM VS. STATE (2014) LPELR – 23142 (CA). More importantly, the retraction of the statement by the Appellant was to me just like the trial judge stated an after thought in light of all the evidence in the case. The trial judge was right to have placed weight and relied on the confessional state as it was valid, direct, positive and unequivocal.

Now going back to the issue of conspiracy to commit armed robbery and armed robbery contrary to Section 5(b) and 1(2) of Robbery and Firearms Special Provisions Act, it is clear from all the evidence on record and testimonies of the witnesses PW1, PW2, particularly PW3, PW4 and PW8 who were eye witnesses and contents of Exhibits C and K amongst others, Exhibits D – D32, L, M, N1, N2,01 and 02, the prosecution proved its case beyond reasonable doubt. There was a robbery, the robbers were armed and the Appellant was one

of the robbers. The Appellant and the other co-accused also conspired to commit armed robbery from the evidence.

Finally, is the issue of contradictions in the testimonies of the prosecution witnesses PW1, PW2, PW4 and PW8 which was argued by the counsel to the Appellant. It must be stated that where two or more persons are called as witnesses to say what they saw on a particular day, there are bound to be discrepancies, however the Court is only concerned with material facts. Evidence is said to be contradictory if it implies that there are two or more conflicting accounts or versions of the same event. In essence it means one witnesses account is at variance with another witnesses’ account of the same incident such that accepting one person’s account means rejecting the other person’s account). In criminal cases for contradictions to be fatal they must be substantial and fundamental. See NDIKE VS. STATE (1994) LPELR – 1971 (SC).
In JIMMY VS. STATE (2013) LPELR-20333 (SC) the Apex Court held that:
“Whether or not contradictions in the prosecution’s case are material depends on the effect such contradictions

have on the proof of the ingredients of the offence the Appellant stands trial for.”
From the foregoing, I find that what counsel for the Appellant called contradictions were merely discrepancies that cannot render the evidence of the prosecution witnesses unreliable. In conclusion, I agree with the position of the trial Court and I resolve this issue in favour of the Respondent against the Appellant.

ISSUE TWO
This issue relates to whether the trial judge as a Court of first instance was correct to have suo motu struck out four additional counts as undesirable but admitted exhibits L, M, N1 and 2, O1 and 2 in evidence to convict the Appellant for armed robbery. Counsel for the Appellant argued that the evidence of PW2 after his recall is with reference to the amendment. The Appellant cited Section 211 of the Criminal Procedure Code and alleged that these evidences were relied on even after the counts were struck out which led to lack of fair hearing and occasioned miscarriage of justice. The Respondent on the other hand cited Section 220 of the Criminal Procedure Code which allows for the prosecution to withdraw the remaining charge or

charges when a charge contains more heads and when conviction has been obtained on one or more.

First and foremost, I find this issue very strange to say the least as it is the Appellant and not the prosecution that is complaining about the striking out of the four additional counts. The precise words of the trial judge were that:
“The prosecution has a duty to prove each and every allegation contained in the charge against the accused persons. In count 1 the four accused persons are charged with conspiracy to commit armed robbery. In count 2 they are charged with armed robbery under Section 5(b) and 1 (2) of the Robbery and Firearms Special Provisions Act. With this two effective and sufficient charge, the addition of four other charges under Sections 97,356 and 229 of the Penal Code respectively is undesirable. Accordingly the additional counts charge under the said section of the penal code are struck out.”

I do not see why the Appellant contends that the trial judge should have called the parties to address him before he struck out the additional counts as undesirable, and even if the trial judge was wrong, I fail to see how it

occasioned a miscarriage of justice or amounted to a lack of fair hearing. One must wonder why the Appellant is complaining given that it is to their own advantage since the counts were reduced. Again I state that I fail to see how this has occasioned a miscarriage of justice as alleged by the Appellant. Counsel for the Appellant also did not state how it occasioned a miscarriage of justice or amounted to a lack of fair hearing.

Having established that a count can be struck out as undesirable, I am yet to hear of relevant evidence being struck out in a case simply because a count or some counts have been struck out. Evidence as long as it is relevant to the facts in issue or other facts relevant to the facts in issue, and where and when admissible and indeed admitted in a case, cannot be struck out. The Appellant who is arguing that the trial judge struck out the additional counts but relied on the evidence obtained from the amendment through PW2 had the opportunity to cross-examine the additional evidence tendered by the PW2 and destroy it through the fire of cross-examination. In this case the evidence after cross-examination remained shaken as such

the trial judge is free to rely on it to support the original two counts.

The evidence of the recalled witness PW2 in relation to the exhibits mentioned by the Appellants (L, M, N1 and 2, 01 and 2) contained in pages 176 – 177 of the records of Appeal is to the effect that:
“PW2: I did tell the Court exhibits were transferred to the state CID along with the accused persons. The exhibits are:
(1) Iron cutter
(2) Saw blade
(3) Two Cutlasses
(4) Two screw drivers
The exhibits were registered with the exhibit keeper with No. 411/2006. I can identify them if I see them. My name is written on it as the IPO.
I visited the scene of the scene where the exhibits were recovered. I also found that the doors and windows were broken. The fence of the Local Government Council was damaged. The Security men were tied with a rope and their handsets robbed. The Area Council Safe was broken and the money inside was also robbed….”

In Cross-examination by counsel for the Appellant PW2 said:
“I cannot recall when I visited Bwari Area Council. I have to refresh my memory. I was not part of the team

that recovered the exhibits. I did not carry out any forensic examination of the exhibits. The exhibit keeper registered the Mercedes Benz; he is now late.”

In a nutshell I resolve this issue in favour of the Respondent against the Appellant.
Having resolved both issues in favour of the Respondent, I hold that this appeal lacks merit and it is hereby dismissed. There is no order as to cost.

ABDU ABOKI, J.C.A.: I had a preview of the lead judgment delivered by my learned brother MOHAMMED BABA IDRIS, JCA and I do agree with him that this Appeal totally lacks merit, and must be dismissed. He dealt extensively and decisively with all the Issues raised in the Appeal, and anything I add would only detract from his sound reasoning, which I adopt as mine in its entirety, as they represent my views on all the issues.

The end result is that I also dismiss this Appeal and affirm the judgment of the High Court of the Federal capital Territory, Abuja, delivered on the 12th of October 2015.
I also abide by the consequential Orders he made in the Lead judgment, including the Order as to costs.

STEPHEN JONAH ADAH, J.C.A.: I was

availed the benefit of reading in draft the judgment just delivered by my learned brother, Mohammed Baba Idris JCA.

I am in complete agreement with the reasoning which I adopt as mine. I also align myself with the conclusion in the lead judgment that this appeal lacks merit. I too, do dismiss this appeal.

Appearances:

O. Onyilokwu, Esq. For Appellant(s)

Lough (ACP) For Respondent(s)