ADAMS v. STATE (2020)

ADAMS v. STATE

(2020)LCN/14524(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/466C/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

LAWRENCE BASSEY ADAMS APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT A VOLUNTARY CONFESSION OF GUILT MADE BY AN ACCUSED PERSON IS SUFFICIENT TO WARRANT HIS CONVICTION WITHOUT ANY CORROBORATIVE EVIDENCE

It goes without saying as a matter of Law that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession. And, it is trite law that mere retraction of a voluntary confessional statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt. See EFFIONG vs. STATE (1998) 8 NWLR (Pt. 562) 362 SC; ULUEBEKA vs. STATE (2000) 4 SC (Part 1) 203; IDOWU vs. STATE (2000) 7 SC (Pt. 11) 50; ALARAPE vs. STATE (2001) 14 WRN 1 SC; SILAS IKPO vs. THE STATE (1996) 1 NILR 59 SC. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE,J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice Nnang Isoni of the Calabar Division of the Cross River State High Court delivered on 17th day of December, 2015.

The Appellant and the 1st Accused in the Court below stood trial on a one count charge of Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Fire Arms (Special Provision Act Cap. R. 11 Laws of the Federation of Nigeria 2004.

The Appellant and the 1st Accused pleaded not guilty to the charge on 14th March, 2013. In the course of the trial, the following items were tendered and admitted as Exhibits:
1. Exhibit 1 is 6 (six) copies of complimentary cards of Comrade Bassey Archibong Udoh of National Union of Printing, Publishing and Paper Product Workers.
2. Exhibit 2 is the statement of Uwem Etim Offiong dated 10th July, 2012.
3. Exhibit 3 is the statement of Lawrence Bassey Adams dated 10th July, 2012.
4. Exhibit 4 is the first statement of Life Etim Offiong dated 8th July, 2012
5. Exhibit 5 is the first statement of Lawrence Bassey Adams dated 8th July, 2012.
6. Exhibit 6 are 3

(three) live categories.
7. Exhibit 7 is 1 (one) army camouflage cap.
8. Exhibit 8 is a cash sum of N1,170.00 (One Thousand, One Hundred and Seventy Naira).
9. Exhibit 9 are 7 (seven) Nokia phones.
10. Exhibit 10 are (Two) Nokia handset batteries.
11. Exhibit 11 are recharge cards of different denominations.

In proof of their case, the Respondent prosecution called (2) two witnesses – PW1 and PW2. PW1 is the victim of the offence. PW2 is the Investigation Police Officer.

The PW1 stated how that he was robbed by the Appellant and the 1st Accused sometime in the month of December, 2011 at about 7.30pm, while in his shop at No. 42 Mayne Avenue, Calabar. That the Appellant and the 1st Accused came into his shop and robbed him of his phones and wallet containing N25,000.00 (Twenty-Five Thousand Naira) and his personal complimentary cards. As he was struggling with them, they brought out a pistol and over powered him. They took his phones, wallet and computer scanner and left. In July, 2012 he was called by one Police Sergeant Peter Njoku (PW2) that they saw his complimentary card with the Appellant and 1st Accused.

He did not report the December, 2011 incident to the Police but he made a statement to the Police in respect of the present case. Also, that it was PW1 who called and invited him to the station that identified the Appellant and the 1st Accused to him as he would not have been able to recognize them as the ones involved in the robbery.

PW2 stated inter alia that the Appellant and the 1st Accused admitted that the complimentary cards found in their possession was the property of their victim at No.42 Mayne Avenue, Calabar.

The 1st Accused person said they used matchetes to rob but the Appellant said they used locally made pistol and guns in robbing their victims at No. 42 Mayne Avenue, and they were 4 (four) in number.

After a trial within trial, the confessional statement of the 1st Accused which also implicated the Appellant was admitted as Exhibit 2 while the confessional statement of the Appellant was admitted as Exhibit 3.

The learned trial judge reviewed the evidence of the parties to the case, refused to accept the contention of the defence counsel that based on the facts it was necessary to conduct an identification parade on the

Appellant and concluded relying on the confessional statements Exhibits 2 and 3, first at pages 119 – 120 of the Records, that:
I am in agreement with the learned defence counsel’s submission that where the accused persons were not caught in the act and were not previously known to the victim, it is necessary to conduct an identification parade.
However as was held in the case of OLUSOLA ADEYEMI vs. THE STATE (2010) LPELR – 19776 (CA), the Court of Appeal held thus:
“… Where an accused person as in the instant case made a confessional statement, therefore by his confessional statement he has identified himself and there would be no need for any further identification parade.
Where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may be unnecessary.”
Relating the decision above to the instant case, it is my firm view that the accused persons having made a confessional statement that they in fact robbed the PW1 in December, 2011 along Mayne Avenue, Calabar, coupled with the fact that the PW1’s complimentary cards said

to have been stolen on the said day were found on the 1st Accused person who confessed to having committed the armed robbery together with the 2nd Accused person, are cogent and good evidence linking the accused person to the crime.
Throughout the trial, the accused persons failed to state how the complimentary card got into their possession.
For the reasons set out above, I find and hold that an identification parade was not necessary in the circumstances of this case as the accused persons have identified themselves. The entire circumstances of the case from their arrest to the recovery of the complimentary cards of PW1 from them brings one to the irresistible conclusion that the accused persons were the ones that committed the robbery.
From the foregoing, I find and hold that the failure to conduct an identification parade is therefore not fatal to the case of the prosecution. I also find and hold that both accused persons were the ones that robbed the PW1 in December, 2011 moreso when they could not explain in any other way how the stolen complimentary.
And, finally at pages 120 – 121 of Record, that:
The statements of the

accused persons herein are confessional and clearly have passed the test of a confessional statement based on the evidence on record and the circumstances of the case. The fact that the accused persons resiled or retracted from their confessional statement would not prevent the Court from relying on the said statements.
See HABIBA MUSA vs. THE STATE (2013) LPELR – 19932 (SC)
In the case of RASHEED LASISI vs. THE STATE (2013) LPELR – 20183 (SC).
“The tests to be adopted in determining whether a confessional statement is true are:-
1. Whether there is/are circumstance(s) that make(s) it probable that the confession is true and correct.
2. Whether the accused person had the opportunity of committing the offence charged.
3. Whether the confession is consistent with other facts proved at the trial.
4. Whether there are some other corroborative evidences no matter how slight.”
Per Muntaka – Coomasie, JSC (Pp. 45-46, Paras G-B)
I find and hold that based on the evidence adduced during the trial within trial, the confessional statements of the accused persons are true having passed the test as

enumerated above and I rely on same.
In conclusion, from the totality of the entire evidence and exhibits before the Court, the prosecution has proved the case of armed robbery against both accused persons beyond reasonable doubt. Consequently, I find the accused persons Uwem Etim Effiong and Lawrence Bassey Adams guilty as charged and convict them accordingly.

Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing four (4) grounds of Appeal in this Court on 29th September, 2017.
The relevant briefs of argument for the appeal are:
1. Appellant’s Brief of Argument filed on 27th December, 2017. It is settled by NTA A. NTA, Esq.
2. Respondent’s Brief of Argument filed on 7th May, 2020. It is settled by TANKO ASHANG, Esq., Attorney – General, Cross River State.
3. Appellant’s Reply Brief filed on 12th May, 2020. It is settled by NTA A. NTA, Esq.

Learned Counsel for the Appellant nominated three (3) issues for determination of the appeal.
They are:
1. WHETHER HAVING REGARDS TO THE EVIDENCE BEFORE THE TRIAL COURT, THE APPELLANT WAS PROPERLY AND POSITIVELY IDENTIFIED BY PW1, AS

THE APPELLANT WAS POINTED OUT TO PW1 BY PW2 AT THE POLICE STATION – GROUND 1 & 3
2. WHETHER THE TRIAL JUDGE WAS RIGHT TO CONVICT THE APPELLANT BASED ON THE CONFESSIONAL STATEMENT OF A CO-ACCUSED PERSON – GROUND 2.
3. WHETHER THE JUDGMENT OF THE LEARNED TRIAL JUDGE IS UNREASONABLE, UNWARRANTED AND CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – GROUND 4.

Learned counsel for the Respondent adopted the issues formulated by the Appellant.

I have carefully gone through the Records and processes filed by the parties to this appeal. I am convinced that a sole issue in the following terms would meet the ends of justice in this appeal. That is;
“Whether the conviction of the Appellant as charged was justified in the circumstances of the case.”

The formulation of the above sole issue for the determination of the appeal becomes compelling when one realized that ground 2 of the Notice of Appeal on which issue 2 of the Appellant’s Brief of Argument was based do not represent the ratio decidendi of the judgment of the Court below. And that the issue of identification of the Appellant by PW1 dominated

Appellant’s ground 1, 3 and 4 on which issues No. 1 and 3 were based.

On the said sole issue Learned Counsel for the Appellant submitted that during the cross – examination of PW1, he said:
“He did not know the accused persons before the date of the incident and it was the said Sergeant Peter Njoku who called and invited him to the station that identified the accused persons to him as he would not have been able to recognize them as the ones involved in the robbery.”

He submitted that the robbers that robbed PW1 were not arrested at the scene of the crime and did not wear mask on their faces. That PW1 would not have needed the assistance of PW2 or anyone to identify the Appellant.

He submitted that there was no proper identification of the Appellant. He referred to the cases of SALAMI vs. STATE (1988) 3 NWLR (Pt. 85) 670 @ 672; DOSUNMU vs. STATE (1986) 5 NWLR (Pt. 43)658 @ 659; AJIBADE vs. STATE (1987) 1 NWLR (Pt. 48) 205 @ 206. Still on the same point of identification, learned counsel for the Appellant further referred to the case of ISIEKWE vs. STATE (1999) 9 NWLR (Pt. 617) 43 @ 46 and submitted that the proper

procedure as known to law for identification of a suspect was not followed in this case and this he said is fatal to the case of the prosecution.

Learned Counsel for the Appellant generalized that where an accused person is not arrested at the scene of the crime and the prosecution witness fails to name the accused at the earliest opportunity, a proper identification parade procedure should be conducted to have a positive and proper identification of the Appellant. He referred to the cases of UMORU USUFU vs. THE STATE (2007) 1 NWLR (Pt. 1020) 94 @ 122 AND 123; NDIDI vs. THE STATE (2007) 13 NWLR (Pt. 1052) 633 @ 658 – 659; IKEMSON vs. THE STATE (1989) 3 NWLR (Pt. 107) 455.

On another wicket, Learned Counsel for the Appellant submitted that the totality of the evidence relied upon by the trial Court to convict and sentence the Appellant is not credible, but rather unreliable and unreasonable and cannot be justified and supported in view of the facts and circumstances of the case.

Even on this score, learned counsel for the Appellant repeated his previous submission that proper identification of the Appellant was not carried out by PW1.

He said, the Police having failed, refused or neglected to conduct a proper identification parade to identify the Appellant, the Appellant should have been given the benefit of doubt as whenever there is the existence of any doubt in a criminal case, such doubt are resolved in favour of the accused. He referred to this to the case of AZEEZ vs. THE STATE (2005) 8 NWLR (Part 927) 312 @ 326 and urged us to resolve the issue in favour of the Appellant.

Learned Counsel for the Respondent submitted first on identification, that PW2, the Investigation Police Officer called the PW1 whose name he saw on the complimentary card found in the wallet not for purpose of identifying the Appellant but to come and identify his complimentary cards that were found in the possession of Appellant/Co-Accused. That in such circumstance, identification parade was not necessary. He referred to the cases of AJAYI vs. STATE (2014) LPELR – 23027 (SC); OGOALA vs. STATE (1991) LPELR – 2307 (SC).

Learned Counsel for the Respondent insisted that the issue of identification of the Appellant did not arise from the facts of the case and was not the bases on which the trial

judge convicted the Appellant.

He submitted that the Appellant made a confessional statement which was admitted in evidence as Exhibit 3 after a trial within trial to determine its voluntariness. That by his confession the Appellant has indeed identified himself as one of those that committed the offence charged. He referred to the case of OLUSOLA ADEYEMI vs. THE STATE (2010) LPELR – 19776 (CA).

He added that apart from the identification by PW1 of his complimentary cards recovered from the 1st Accused and confirmed by the Appellant, the 1st Accused confessional statement Exhibit 2 also corroborates Exhibit 3, the Appellant’s confessional statement.

Learned Counsel for the Respondent then related the facts of the case to the three ingredients of the offence of armed robbery. He reasoned that the evidence of PW1, PW2 Exhibit 1, 2 and 3 taken together proved beyond reasonable doubt that the Appellant was justifiably convicted for the offence of Armed Robbery.

In his Reply Brief, learned counsel for the Appellant referred to the provision of Section 17 (2) of the Administration of Criminal Justice Act 2015 (ACJA) and submitted

that Exhibit 3 was not taken in the presence of a Legal Practitioner.

On the same subject matter he referred first to the decision of the Court of Appeal per Ekanem JCA in the case of CHARLES vs. F. R. N. (2018) 13 NWLR 5 NWLR 50 @ 63 and also to an earlier statement by my noble Lord Rhodes – Vivour JSC in the case of HARRISON OWHORUKE vs. C. O. P. (2015) 15 NWLR (Pt. 1483) @ 576 where the Law Lord opined that it is time for safeguards to be put in place to guarantee transparency in the taking of confessional statements. And that;
“It is seriously recommended that confessional statements should be taken from suspect if, and only if his counsel is present, or in the presence of a legal practitioner where this is not done such a confessional statement should be rejected by the Court…”

In deciding the sole issue in this appeal, it suffices to say that the attempt by the learned counsel for the Appellant to introduce issue of identification parade of the suspects for PW1 did not arise from the facts of the case and do not constitute the ratio decidendi of the decision of the Court below. The conviction of the Appellant was justifiably

based on the Appellant’s confessional statement Exhibit 3 as corroborated by Exhibit 2 the confessional statement of the 1st Accused and Exhibit 1, the complimentary cards of the victim recovered from the 1st Accused and the Appellant.
In Exhibit 2, the 1st Accused said inter alia:
“…We used two long matchete for the armed robbery at No. 42 Mayne Avenue where we robbed people of their phones, money and wallet including the complimentary cards with the bearing comrade Bassey A. Udoh’s name.”
And in Exhibit 3, the Appellant also said inter alia:
“…We did not rob any person at No. 1 Chamley but in the month of December, 2011 we robbed at No. 42 Mayne Avenue in one Man’s shop by Mount Zion Church. We use one locally made gun for the operation – my friend Uwem used one long matchete.”

It goes without saying as a matter of Law that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence as long as the Court is satisfied of the truth of the confession. And, it is trite law that mere

retraction of a voluntary confessional statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt. See EFFIONG vs. STATE (1998) 8 NWLR (Pt. 562) 362 SC; ULUEBEKA vs. STATE (2000) 4 SC (Part 1) 203; IDOWU vs. STATE (2000) 7 SC (Pt. 11) 50; ALARAPE vs. STATE (2001) 14 WRN 1 SC; SILAS IKPO vs. THE STATE (1996) 1 NILR 59 SC.

The reference by the learned counsel for the Appellant to the case of CHARLES vs. F. R. N. (2018) 13 NWLR 50 @ 63 per Ekanem JCA, where the Lagos Division of the Court of Appeal considered the provision of Section 17 (2) of the Administration of Criminal Justice Act (ACJA) in refusing the admissibility of a confessional statement not taken in the presence of the suspect’s Legal Practitioner would not avail the Appellant. This is because the decision in CHARLES vs. F. R. N. (Supra) was reached per incuriam for the following reasons:
1. The word “may” in the provision of Section 17 (2) of the Administration of Criminal Justice Act (ACJA) is necessarily advisory and not mandatory.
2. The Evidence Act has covered the field has a legislation on the

admissibility of confessional statements being an enactment of the Federal Legislature on “Evidence” which is on the exclusive legislative list.
3. The Administration of Criminal Justice Act (ACJA) is essentially an enactment on Criminal Procedure which together with “Offences” is on the concurrent legislative list of the Constitution of the Federal Republic of Nigeria 1999 (as amended) but only made idealistic declarations on matters of Evidence.
Similarly, the reference by the learned counsel for the Appellant to a statement by Rhodes – Vivour JSC in the case of HARISON OWHORUKE vs. C. O. P. (supra) as to the desirability of taking confessional statement in the presence of legal practitioners cannot assist the Appellant. In my humble opinion, my noble Lord Rhodes – Vivour JSC in making that statement in the Owhoruke’s case merely “flew a cart”; strictly speaking the statement referred to is obiter in two or perhaps three respects:
1. The statement was not part of the ratio decidendi of the case of OWHORUKE vs. C. O. P. (supra) even considering the fact that the lead judgment was delivered

by my noble Lord – Rhodes – vivour JSC.
2. To confirm the above, my noble Lord Rhodes – Vivour JSC and his learned brothers, my other noble Lords Muntaka Coomasie, Sylvester Ngwuta, Bata Ogunbiyi, Bayang Aka’ahs JSC unanimously dismissed the appeal by the Appellant in the Owhoruke’s case (supra).
3. My noble Lord, Rhodes – Vivour JSC knowingly and willfully referred to his opinion as a “recommendation” which though weighty but admittedly not binding.
4. The Supreme Court was not called upon in that case to pronounce on the admissibility of any confessional statement. Indeed Owhoruke’s case (supra) was decided on the non-availability of the defences of provocation and self defence for the Appellant in that case.

For these reasons, the learned trial judge was right to have convicted the Appellant in the instant case based on the evidence of PW1, PW2, Exhibits 2, 3 and 1.

The appeal lacks merit and it is accordingly dismissed. The judgment, conviction and sentence of Hon. Justice F. Nnang Isoni in Charge No. HC/78C/2012 on the Appellant Lawrence Bassey Adams are hereby affirmed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mojeed A. Owoade, JCA. I agree entirely with the reasoning therein and the conclusion arrived thereat, that the appeal lacks merit and it is hereby dismissed.

HAMMA AKAWU BARKA, J.C.A.: I totally agree with the reasoning and the conclusion reached in the judgment just delivered by my learned brother Mojeed Adekunle Owoade, JCA, and also dismiss the appeal for lack of merit.

Appearances:

NTA A. NTA, Esq. For Appellant(s)

TANKO ASHANG, Esq. For Respondent(s)