CHUKWU v. STATE (2020)

CHUKWU v. STATE

(2020)LCN/14611(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/E/65C/2018

RATIO

PLEADINGS: BURDEN OF PROOF

The law is settled that the burden of proof of the offence with which an accused is charged lies on the prosecution. To discharge the burden as required by law, the prosecution may adopt any or a combination of the following means: – (a) Direct evidence of an eye witness who saw the commission of the crime. (b) Circumstantial evidence and/or (c) Voluntary confession of the accused. See MUSA V. The STATE (2019) LPELR-46350 (SC) AT 8 (C-F). In the instant case, the prosecution relied on the confessional statement of the appellant. It is on record that when the prosecution applied to tender the appellant’s statement in evidence through PW1, the appellant denied making the statement. He stated that the statement is not his own. Notwithstanding the fact that the appellant denied making the statement, the Court below in compliance with the settled principle of law that the fact that an accused retracts his confessional statement to the police does not render the statement inadmissible admitted it as Exhibit A. The law is settled that a Court can act and rely on a voluntary confessional statement to convict an accused person, even if it is the only evidence. However, where an accused retracts his confessional statement, the accused has a duty to explain to the Court (as part of his defence) the reason(s) for retracting from his confessional statement and the inconsistency between his earlier confessional statement to the police and the evidence he has given in his oral testimony before the Court. The law also casts a duty on the Court to test the veracity or otherwise of the statements. See STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 AT 429 (C-G) where the Supreme Court held that:
“…The fact of the retraction of a confessional statement does not mean the end of the road of it or that the Court cannot act upon it and rely on it to convict him even if it is the only evidence. This Court had at numerous occasions stated what the attitude of the Court would be faced with a retraction of a confessional statement. The Court states that when the retraction takes place at the trial whereby the accused resiles from an earlier extra-judicial statement that the duty is then cast on the accused who is the maker of the statement and then a subsequent duty on the trial judge who is to test the veracity or otherwise of such a statement by passing through the crucible or tests to see if such a statement is correct. That is to say that the statement is subjected to scrutiny by the Court in order to test its truthfulness or otherwise in line with other available evidence and circumstances of the case. See State v Gwangwan (supra) 624 per Okoro JSC; Chiokwe v State (2013) 5 NWLR (Pt.1347) 205; Hassan v State (2001) LPELR – 1358 SC at PP 12-13; (2001) 15 NWLR (Pt.735) 174; Mbenu v State (1988) 7 SC (Pt.111) 71 at 82; Busari v The State (2015) 5 NWLR (Pt.1452) 343 at 367; Iliyasu v State (2015) 1 NWLR (Pt.1469) 26 at 56, 66.”
And at 437 (A-C) per C:EKO, JSC
“A retraction, according to Okoro, JSC, in THE STATE v. JAMES GWANGWAN (2015) LPELR – 24837 (SC), means saying “that something you have said earlier is not true or correct or that you did not mean it”. Whenever an accused person attempts to retract or resile from his previous statement, that is incriminating, the law casts dual burdens on the accused and the Court. The first, it is incumbent on the said accused person who made the subsequent statement to impeach the earlier statement. The Appellant failed to discharge that burden. The other burden is on the Court to test the veracity or otherwise of both statements, by process of evaluation, to see if the previous statement was in fact and truth made.” Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

RATIO

PLEADINGS: DEFENCE OF ALIBI

The law is trite that a defence of alibi must be raised timeously and at the earliest opportunity. The accused must give the particulars of his where about, the specific place(s) he was, the particulars of the people who saw or were with him at that place(s) at the time of the commission of the offence to enable the police investigate it. See EBRE & ORS. V. STATE (2001) LPELR –995(SC) AT 14-15(D-G), IKUMONIHAN V. STATE (2018) LPELR-44362(SC) AT 35-40(B). In AKEEM V. STATE (2017) LPELR-42465(SC) AT 24-26 (E-A) the Supreme Court per RHODES-VIVOUR, J.S.C. held that:
“When a suspect arrested for committing a crime, e.g armed robbery, Murder etc and he says he has an alibi, what he is saying is that he was nowhere near or at the scene of the crime when it was committed. He is saying that he was elsewhere, so he could not have committed the offence. The onus of establishing an alibi is on the suspect since it is within his personal knowledge. The suspect should at the first opportunity he has to write a statement raise the defence of alibi. An alibi should be very detailed on where he was at the time the offence was committed. He should give the names of people he was with, their addresses e.t.c. A detailed alibi is mandatory since a plea of alibi is demolished if that prosecution leads sufficient evidence to fix the suspect at the scene of crime at the time in question. An alibi is established not on its proof beyond reasonable doubt, but on the balance of probabilities. See Osuagwu v State (2013) ALL FWLR (Pt. 672) p. 1605. Mohammed v State (2015) 2 SC (Pt. i) p. 163, Uche v State (2015) 4-5 SC (Pt. ii) p.140 Sani v State (2015) 6-7 SC (Pt. ii) p. 1. In this case the accused person raised the defence of alibi for the first time during his trial. A genuine alibi always fresh in the mind of the accused person. Since he never raised the defence of alibi at the earliest opportunity, i.e when he wrote his statement, raising it in Court during trial is an afterthought. By raising the defence of alibi for the first time during trial, the accused person is deliberately denying the investigating Police Officers the opportunity to investigate the alibi, a clear attempt to frustrate the trial, knowing fully well that it is too late to investigate an alibi during trial. In the circumstances such an alibi should not be considered as there is nothing to consider.” Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

RATIO

PLEADINGS: TEST FOR DETERMINING VERACITY OF CONFESSIONAL STATEMENT

In ILIYASU V. STATE (2015) 11 NWLR (PT.1469) at page 34 ration 8 on test for determining veracity of confessional statement, the Supreme Court intoned as follows: “The test to be applied in determining whether or not to believe and act on a confession or confessions which an accused person resiled from are as follows: (a) whether there is anything outside the confession which may vindicate its veracity: (b) whether it is corroborated in any way; (c) whether its contents if tested, could be true; (d) whether the defendant had the opportunity of committing the alleged offence; (e) whether the confession is possible and (f) the consistency of the said confession with other facts that have been established.
Stemming from the facts and information already referred to above as gleaned from Exhibits A and B, it is doubtless that many facts contained in Exhibits A and B are outside the confession, the confession are corroborated by the evidence of PW1 and some facts in the evidence in chief of the accused persons, the accused persons obviously had the opportunity of committing the offence, the confessions are possible because they are consistent with other facts that have been established.”I have carefully perused the judgment of the Court below. It is clear that the Court below relied on the personal information of the appellant contained in the statement which was confirmed by the appellant as the independent evidence which confirmed that the confession is true. The personal information of an accused contained in a statement which has been retracted by him is not the independent evidence outside the statement required by law. The Court must look for corroborative evidence independent of or outside the confessional statement. Where the retracted confessional statement of the accused fails to pass the tests for veracity and truthfulness as laid down by law as in the instant case, the Court should be cautious and reluctant in convicting him solely on that statement. See KASA V. STATE(1994) 1671(SC) AT 19-20 (D-A) where the Supreme Court per Uwais, JSC held that: “It is not however every confessional statement which has been admitted in evidence that can be relied upon by the Court to convict the maker of the statement. There are occasions when no eye-witnesses are available to prove a case. The only evidence available may well be the confessional statement of the accused person. In such instance, it becomes desirable for the Court to be very cautious in convicting the accused of the offence charged merely on his confession. Hence the desirability to have outside the confession some material evidence, be it slight, of circumstances which make it probable that the confession is true. This is the reason for laying down the test in R v. Skyes (supra) which was followed in Kanu v. King (supra) by the West African Court of Appeal and inDawa’s case (supra) by this Court” InNWEZE V. STATE (2017) LPELR-42344(SC) AT 32-33 (A-E) the Supreme Court per Per Sanusi J.S.C held that: “The law is trite that a trial Court can convict an offender merely on his confessional statement provided such confessional is direct and positive on the offence the accused is charged. That notwithstanding, this Court in multiplicity of its decided authorities, enunciated the six afore-listed tests which must be met or satisfied, before such confessional statement can be solely relied upon to convict an accused. Also, it is desirable for such confessional statement to be corroborated. See: Udedibia & Ors v. The State (1976) LPELR 3290 (SC). Therefore, although a confessional statement alone can ground a conviction, in most cases the need arises as in this instant case, for the trial Court to apply the tests as highlighted above in order to determine and ascertain its veracity or otherwise by seeking any other independent evidence no matter how slight to show the truthfulness of the said confession. See Ashiwe v. The State (1983) 5 SC 23; Galadima v. The State (2012) 12 SC (Pt. II) 213; Adamu Saliu v. The State (2014) LPELR-22998 (SC). Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

RATIO

PLEADINGS: MEANING OF CORROBORATIVE EVIDENCE

The Supreme Court stated the nature and extent of corroborative evidence required by the Court before attaching any weight to a retracted confessional statement in STATE V. YAHAYA (supra) at 428-429(H-B) as follows:
“On what corroboration means, one can posit with humility that it entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness. It does not mean that the witness corroborating must use the exact or very words, unless the maker involves some arithmetic. The test to be applied to determine the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. The corroborative evidence required needs not be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or leads to connect the accused with its commission. See State v Gwangwan (2015) 13 NWLR (Pt.1477) 600 at 626; Edhigere v The State (1998) 8 NWLR (Pt.464) 1 at 8; Durugo v State (1992) 7 NWLR (Pt.255) 525 at 541.” In UZIM V.STATE (2019) LPELR SC – 48983 AT 28-29 (D-A), the Supreme Court held that:
”Now, “corroboration” explained by Lord Reading, CJ, in Rex v Baskerville [1916] 2 KB 658. Must be independent evidence, which affects an Accused by connecting or tending to connect him with the crime. It must be evidence, which implicates him, that is, which confirms in some material particular not only the evidence that the crime was committed, but that the Accused committed it. So, corroborative evidence is evidence that shows that the story that the Accused committed the crime is true, and not merely that the crime has been committed, but that it was committed by him.” Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

UCHENNA CHUKWU APPELANT(S)

And

THE STATE RESPONDENT(S)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State delivered in charge no. HSK/14C/2014 on 26/1/2018. The appellant and one other person were arraigned before the Court on a one count charge of armed robbery contrary to Section 402 of the Criminal Code Act, cap. C38 Volume 4, Laws of the Federation of Nigeria 2004. They were alleged to have robbed one Osuija Ifeoma Susan and Inoh Edna of H. P. Laptop and Nokia handset on 3/4/2012 at Ishiagu in Ivo Judicial Division of Ebonyi State.

The prosecution’s case was that the appellant and his co-accused while armed with locally made guns went into the youth corper’s lodge located at Echiele Development Centre and robbed the victims of their properties. It was the shouting of the victims that woke up one Anigor Linus Emeka. The appellant was caught at the scene while he was trying to jump over the fence with the locally made gun. It was the appellant that informed the corpers that his co-accused had escaped with the stolen items. The co-accused was later arrested. The two accused persons made confessional

statements to the police wherein they confessed to the crime.

The prosecution called Sergeant Idongesit Issac who testified as PW1 and tendered the statements of the accused persons in evidence. Appellant’s statement was admitted as Exhibit A. The prosecution called no other witness. The appellant testified in his own defence as DW1 and called his mother who testified as DW2. Parties filed and exchanged final written addresses which they adopted as their arguments before the Court.

In its considered judgment delivered by P. P. Chima, J, the Court below found the two accused persons guilty as charged and sentenced each accused to death by hanging. Aggrieved by the judgment, the appellant filed a notice of appeal against the judgment on 7/3/2018. The 3 grounds of appeal contained therein without their particulars are as follows:

GROUND 1
“The trial Court erred in law by holding as follows:
“It is the further view of this Court that the 1st accused person made Exhibit A while the 2nd accused person made Exhibit B and voluntarily too as the tested facts are facts the police were not in a position to know if the accused

persons did not volunteer them.
It will be recalled that 1st and 2nd accused persons only resiled from Exhibits A and B and never challenged their voluntariness as they were being tendered and admitted; but turned round to allege in their defence that they were terribly beaten by the police while making Exhibits A and B, with the 1st accused person going comical by stating that after the terrible beating while being hung on a ceiling fan hook, a female police was invited and given a broom stick which she inserted into his penis. These are all cock and bull stories.”
GROUND 2
The trial Court erred in law by acting on and relying on the confessional statement, Exhibit A, to convict the appellant.
GROUND 3
The trial Court erred in law by holding that the confessional statement, Exhibit A, was made by the appellant on the ground that the personal information of the appellant contained in the confessional statement could only have been obtained by the police from the appellant.”

The appellant’s brief of argument was filed on 19/10/2018. It was deemed as properly filed and served on 28/4/20. The respondent’s

brief was filed on 22/5/20.

The appellant formulated the following issues for the determination of this appeal:
1. “Whether the learned trial judge was not in grave error by convicting the appellant on a purported confessional statement (Exhibit A) which the appellant resiled from at the trial? (Distilled from ground 1 of the grounds of appeal).
2. Whether the trial Court was right in convicting the appellant on such retracted confessional statement without looking for some corroborative evidence outside the purported confession? (Grounds 2 & 3 of the appeal).”
The issues formulated by the respondent are as follows:
1. “Whether the prosecution successfully proved the offence of Armed Robbery against the appellant beyond reasonable doubt through his confessional statement.
2. Whether the defence of alibi relied upon by the appellant was not logically demolished by the respondent as required by law.”

I find the issues formulated by the appellant to be apt for the determination of the appeal. The two issues shall be considered together. The appellant’s counsel submitted that before a Court can

act on a retracted confessional statement the Court must subject the statement to the tests laid down in various cases to determine its veracity and truthfulness. He referred to ILIYASU V. STATE (2015) 1 NWLR (PT. 1469) 26 AT 34 (8). It is further submitted that the corroborative evidence must be independent evidence outside the confessional statement. He referred to OLUDE V. STATE (2014) 7 NWLR (PT.1405) 89, OKOH V. STATE (2014) 8 NWLR (PT.1410) 502, AJAYI V. STATE (2014) 14 NWLR (PT.1426) 1 AT 18. Counsel contended that the conviction of the appellant on the said confessional statement cannot stand because there is no independent evidence which shows that the confession is true, the Court below merely extracted some information on the appellant from the statement and concluded that since those personal information are true, the statement that the appellant robbed the corpers is also true. It is further contended that contrary to the finding of the Court below, the confessional statement of the appellant was not corroborated by the evidence of PW1 because his evidence is hearsay as he was not an eye witness and he did not investigate the crime by visiting the

scene of the crime and inviting the witness that observed the alleged commission of the crime but merely relied on the statement purportedly volunteered by one Anigor Linus Emeka who was not called as a witness and whose statement was not tendered in evidence at the trial.

Counsel submitted that failure to call the corpers that allegedly arrested the appellant at the scene of the crime or tender the gun allegedly used by the appellant or proof of the release of the items allegedly recovered from the appellant and his co-accused is fatal to the prosecution’s case and the provisions of Section 167(d) of the Evidence Act, 2011 on withholding of evidence must be invoked against the respondent. He referred to DANLADI V. DANGIRI (2015) 2 NWLR (PT. 1442) 124 AT 195 (E-F), FBN PLC V. ASAWARI (2015) 9 NWLR (PT. 1463) 182 AT 209-210, AHMED V. STATE (1999) 7 NWLR (PT.612) 641, AYO V. STATE (2015) 16 NWLR (PT.1486) 531. Counsel finally submitted that the Court below failed to consider the defence of the appellant that he was in his house on the day of the alleged robbery and which evidence was corroborated by the evidence of DW2 that both of them were in the

house when the police came to arrest the appellant and the evidence was not contradicted by the respondent.

In his response, the respondent’s counsel submitted that where a confessional statement is shown to have been made voluntarily and it passed the tests for veracity as laid down by the law, it is sufficient to ground a conviction. He referred to OJEGELE V. STATE (1988) 1 NWLR (PT.71) 414, GALADIMA V. STATE (2012) 2 NWLR (PT.1333) 610. He submitted that the evidence of PW1 is not hearsay because he is an investigator who gave evidence of what he saw, did or discovered in the course of his official duty. He referred to AROGUNDADE V. THE STATE (2009) 1-2 SC, OLADEJO V. STATE (1994) 6 NWLR (PT.348) AT 101 and Section 27 of the Evidence Act. On failure to tender the weapon used to commit the offence and the stolen items, counsel submitted that it is trite law that failure to tender the weapons used in committing a crime is not fatal to the prosecution’s case. He referred toEZE V. THE STATE (2013) SC 326 ELC (2018) 3037 SC 1. On the defence of alibi raised by the appellant in his evidence before the Court, counsel submitted that the

prosecution has a duty to investigate an accused person’s alibi but only when such an alibi is set up at the earliest opportunity at investigation stage preferably in the accused person’s statement to the police as an alibi raised for the first time in the witness box is an afterthought. He referred to IKEMSON V. STATE (1998) 1 ACLR 80 AT 86 (27), OMOTOLA & ORS. V. STATE (2009) 8 ACLR 38 (3). He urged the Court to reject the defence.

RESOLUTION
The law is settled that the burden of proof of the offence with which an accused is charged lies on the prosecution. To discharge the burden as required by law, the prosecution may adopt any or a combination of the following means: – (a) Direct evidence of an eye witness who saw the commission of the crime. (b) Circumstantial evidence and/or (c) Voluntary confession of the accused. See MUSA V. The STATE (2019) LPELR-46350 (SC) AT 8 (C-F).

In the instant case, the prosecution relied on the confessional statement of the appellant. It is on record that when the prosecution applied to tender the appellant’s statement in evidence through PW1, the appellant denied making the statement.

He stated that the statement is not his own. Notwithstanding the fact that the appellant denied making the statement, the Court below in compliance with the settled principle of law that the fact that an accused retracts his confessional statement to the police does not render the statement inadmissible admitted it as Exhibit A. The law is settled that a Court can act and rely on a voluntary confessional statement to convict an accused person, even if it is the only evidence. However, where an accused retracts his confessional statement, the accused has a duty to explain to the Court (as part of his defence) the reason(s) for retracting from his confessional statement and the inconsistency between his earlier confessional statement to the police and the evidence he has given in his oral testimony before the Court. The law also casts a duty on the Court to test the veracity or otherwise of the statements. See STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 AT 429 (C-G) where the Supreme Court held that:
“…The fact of the retraction of a confessional statement does not mean the end of the road of it or that the Court cannot act upon it and rely on it to convict

him even if it is the only evidence. This Court had at numerous occasions stated what the attitude of the Court would be faced with a retraction of a confessional statement. The Court states that when the retraction takes place at the trial whereby the accused resiles from an earlier extra-judicial statement that the duty is then cast on the accused who is the maker of the statement and then a subsequent duty on the trial judge who is to test the veracity or otherwise of such a statement by passing through the crucible or tests to see if such a statement is correct. That is to say that the statement is subjected to scrutiny by the Court in order to test its truthfulness or otherwise in line with other available evidence and circumstances of the case. See State v Gwangwan (supra) 624 per Okoro JSC; Chiokwe v State (2013) 5 NWLR (Pt.1347) 205; Hassan v State (2001) LPELR – 1358 SC at PP 12-13; (2001) 15 NWLR (Pt.735) 174; Mbenu v State (1988) 7 SC (Pt.111) 71 at 82; Busari v The State (2015) 5 NWLR (Pt.1452) 343 at 367; Iliyasu v State (2015) 1 NWLR (Pt.1469) 26 at 56, 66.”
And at 437 (A-C) per C:EKO, JSC
“A retraction, according to Okoro, JSC, in

THE STATE v. JAMES GWANGWAN (2015) LPELR – 24837 (SC), means saying “that something you have said earlier is not true or correct or that you did not mean it”. Whenever an accused person attempts to retract or resile from his previous statement, that is incriminating, the law casts dual burdens on the accused and the Court. The first, it is incumbent on the said accused person who made the subsequent statement to impeach the earlier statement. The Appellant failed to discharge that burden. The other burden is on the Court to test the veracity or otherwise of both statements, by process of evaluation, to see if the previous statement was in fact and truth made.”

In Exhibit A, the appellant confessed to the commission of armed robbery for which he was charged and being arrested at the scene of the crime. In his evidence before the Court, the appellant denied being at the scene of the crime and claimed that he was in his house when the community chairman who was his uncle came with policemen to arrest him. His mother testified as DW2 and confirmed that it was the appellant’s uncle who came to their house with the police to arrest him. The law is trite that a

defence of alibi must be raised timeously and at the earliest opportunity. The accused must give the particulars of his where about, the specific place(s) he was, the particulars of the people who saw or were with him at that place(s) at the time of the commission of the offence to enable the police investigate it. See EBRE & ORS. V. STATE (2001) LPELR –995(SC) AT 14-15(D-G), IKUMONIHAN V. STATE (2018) LPELR-44362(SC) AT 35-40(B). In AKEEM V. STATE (2017) LPELR-42465(SC) AT 24-26 (E-A) the Supreme Court per RHODES-VIVOUR, J.S.C. held that:
“When a suspect arrested for committing a crime, e.g armed robbery, Murder etc and he says he has an alibi, what he is saying is that he was nowhere near or at the scene of the crime when it was committed. He is saying that he was elsewhere, so he could not have committed the offence. The onus of establishing an alibi is on the suspect since it is within his personal knowledge. The suspect should at the first opportunity he has to write a statement raise the defence of alibi. An alibi should be very detailed on where he was at the time the offence was committed. He should give the names of people he was with, their

addresses e.t.c. A detailed alibi is mandatory since a plea of alibi is demolished if that prosecution leads sufficient evidence to fix the suspect at the scene of crime at the time in question. An alibi is established not on its proof beyond reasonable doubt, but on the balance of probabilities. See Osuagwu v State (2013) ALL FWLR (Pt. 672) p. 1605. Mohammed v State (2015) 2 SC (Pt. i) p. 163, Uche v State (2015) 4-5 SC (Pt. ii) p.140 Sani v State (2015) 6-7 SC (Pt. ii) p. 1. In this case the accused person raised the defence of alibi for the first time during his trial. A genuine alibi always fresh in the mind of the accused person. Since he never raised the defence of alibi at the earliest opportunity, i.e when he wrote his statement, raising it in Court during trial is an afterthought. By raising the defence of alibi for the first time during trial, the accused person is deliberately denying the investigating Police Officers the opportunity to investigate the alibi, a clear attempt to frustrate the trial, knowing fully well that it is too late to investigate an alibi during trial. In the circumstances such an alibi should not be considered as there is nothing to consider.”

The Court below was right when it held that the defence of albi raised by the appellant is an afterthought. The second explanation given by the appellant for retracting his statement is that he was tortured to make the statement. The Court below at pages 72 -73 of the record of appeal held that:
“It is the further view of this Court that the 1st accused person made Exhibit B and voluntarily too as the tested facts are facts the police were not in position to know if the accused persons did not volunteer them.
It will be recalled that the 1st and 2nd accused persons only resiled from Exhibits A and B and and never challenged their voluntariness as they being tendered and admitted, but turned round to allege in their defence that they were terribly beaten by the police while making Exhibits A and B, with the 1st accused person going comical by stating that after the terrible beating while hung on a ceiling fan hook, a female police was invited and given a broom stick which she inserted into his penis. These are all cock and bull stories.
It should be brought to the fore that the dutiful M.U Akamabe of counsel had

urged the Court in his final address not to attach any weight to Exhibits A and B because the accused persons were not taken to a superior police officer for Exhibits A and B to be attested to. But this certainly is not a rule of law but a rule of practice known as judge’s Rule and failure of which does not detract or vitiate the credibility or authenticity of a confessional statement.”

The position taken by the Court below cannot be faulted as it accords with the law. It is trite law that the proper time to object to the admissibility of a confessional statement is at the stage when it is sought to be tendered and not after it has been admitted in evidence or at the appellate Court. See STATE V. MUSA (2020) 2 NWLR (PT 1709) 499 AT 518 A-H. There was no objection to the admissibility of the appellant’s statement on ground of involuntariness when the prosecution sought to tender it in evidence. The appellant at that stage denied making the statement and not that he was tortured to make the statement, the Court below was right to reject the allegation of torture made by the appellant for the first time in his evidence before the Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Having rejected the explanations of the appellant for retracting the statement, It is settled law that the Court below must still subject the statement to the following tests laid down by the law to confirm the veracity or truthfulness of the statement: (i) Are there anything outside the confession to show that it is true (ii) Is the confessional statement corroborated (iii) Are the statements made in it of fact and so far as we, can test them true (iv) Is the accused person a person who had the opportunity of committing the offence (v) Is his confession possible (vi) Is it consistence other facts which have been ascertained and which have been proved at the trial. See STATE V. YAHAYA (supra), STATE V. MUSA (SUPRA). The Court below at pages 70-72 of the record that:
“It was part of the evidence of the I.P.O. who gave evidence as PW1 that both accused persons confessed to the commission of the crime as charged and tendered Exhibits A and B which are the alleged confessional statements of 1st and 2nd persons respectively. In Exhibits A, the 1st accused person allegedly stated that his name is Uchenna Chukwu, that he is a native of Amaeke Community in

Ishiagu, Ivo L.G.A. of Ebonyi State, that he is the second son of his parents Mr. & Mrs. John Chukwu who are still alive. That he attended Ishiagu High School from 2000 to 2006. That after his secondary school that he learnt driving and became a driver which he repeated in his evidence in chief before this Court. That he was plying Okigwe Uturu route.
Obviously all the above information which are personal to the 1st accused person could not have been known to the police if the 1st accused person did not disclose same to them. So, if all the above are true, then the confessional statement that he robbed the corpers of their Lap top and mobile phone handsets is also true.
Besides, it was part of the evidence in chief before this Court that it was his own uncle that assisted in handing him over to the police after the robbery.
Similarly in Exhibit B which is the alleged confessional statement of the 2nd accused person who gave evidence as the DW2 that he is Sampson Anyim; that he is a native of Amaeke Community, Ishiagu, Ivo L.G.A of Ebonyi State; that he is the second son of his Late parents. That he attended Ishiagu Community primary school

but due to the death of his parents he dropped out before his primary three(3) and did not attend school again. That he was struggling for living and later went into learning a trade of fixing tiles in 1999 and completed his apprenticeship in 2001 and has been on his own since 2001. That he inherited the single barrel gun from his late father Anyim Okeke.
It is also doubtless that the facts are facts known to the 2nd accused person which the police could not have known if he did not volunteer them, including the fact that he is a tiller which he also stated in his evidence in chief before this Court that if all these facts above are true, then the confession that the 2nd accused person robbed the Corpers of their Laptop and phones in concert with the 1st accused person while armed with a locally made gun will also be true. This view of this Court is reinforced by the fact that the 2nd accused person in his evidence in chief before this Court stated that it was his own uncle who their youth chairman that apprehended him after the robbery and handed him over to the police.
It should be noted that both accused persons from their confessional statements.

consistent with other facts that have been established.”

I have carefully perused the judgment of the Court below. It is clear that the Court below relied on the personal information of the appellant contained in the statement which was confirmed by the appellant as the independent evidence which confirmed that the confession is true. The personal information of an accused contained in a statement which has been retracted by him is not the independent evidence outside the statement required by law. The Court must look for corroborative evidence independent of or outside the confessional statement. The Supreme Court stated the nature and extent of corroborative evidence required by the Court before attaching any weight to a retracted confessional statement in STATE V. YAHAYA (supra) at 428-429(H-B) as follows:
“On what corroboration means, one can posit with humility that it entails the acts of supporting or strengthening a statement of a witness by fresh evidence of another witness. It does not mean that the witness corroborating must use the exact or very words, unless the maker involves some arithmetic. The test to be applied to determine

the nature and extent of corroboration is to establish that the evidence is an independent testimony which affects the accused by connecting or tending to connect him with the crime. The corroborative evidence required needs not be direct evidence linking the accused person to the commission of the offence. It is enough even if it is only circumstantial and connects or leads to connect the accused with its commission. See State v Gwangwan (2015) 13 NWLR (Pt.1477) 600 at 626; Edhigere v The State (1998) 8 NWLR (Pt.464) 1 at 8; Durugo v State (1992) 7 NWLR (Pt.255) 525 at 541.”

In the instant case, the only witness called by the prosecution was one of the police investigating officers assigned to investigate the case when it was transferred to the state CID. The law is settled that the evidence of an investigating police officer as regards what he saw or discovered during an investigation is not hearsay. See ANYASODOR V. STATE (2018) LPELR-43720(SC) AT 20-21 9E-C), OLAOYE V. STATE (2018) LPELR-43601 (SC) AT 23-24 (C-A). However, apart from PW1’s evidence on pages 41-44 of the record that he recorded the appellant’s statement, there is nothing to

show that he did anything else. It is clear from his evidence that what he narrated to the Court is not what he actually saw or witnessed or discovered in the course of his work as an investigator. It is not his evidence that he visited the scene of the crime or that he came in contact with any of the victims of the alleged robbery or the one who allegedly handed over the other accused to the police at Ishiagu to confirm that the appellant was actually arrested at the scene of the crime and that he was the one that mentioned the other accused. He said the victims of the robbery made statements to the police, none of the victims or the youth leader to who the commission of the crime was allegedly reported and through who the 2nd accused was apprehended was called as a witness. It is my firm view that an investigating police officer who did nothing apart from recording the statement of the accused cannot give evidence of what the victims of the alleged robbery said or what was recovered and how it was recovered. The law is settled that in a charge of armed robbery, the prosecution has the onus to prove beyond reasonable doubt that (1) there was a robbery (2) the

robbery was an armed robbery. (3) The appellant was one of the robbers. It is not PW1’S evidence that he talked to or interviewed any of the victims or Anigor who allegedly arrested the appellant at the scene of the crime. The quality of the evidence given by PWI fell far short of what is required by law to prove the ingredients of armed robbery beyond reasonable doubt. I am of the firm view that convicting an accused based on a confessional statement dumped on the Court without any independent corroborative evidence no matter how slight is not justice. In UZIM V.STATE (2019) LPELR SC – 48983 AT 28-29 (D-A), the Supreme Court held that:
”Now, “corroboration” explained by Lord Reading, CJ, in Rex v Baskerville [1916] 2 KB 658. Must be independent evidence, which affects an Accused by connecting or tending to connect him with the crime. It must be evidence, which implicates him, that is, which confirms in some material particular not only the evidence that the crime was committed, but that the Accused committed it. So, corroborative evidence is evidence that shows that the story that the Accused committed the crime is true, and not merely that the

crime has been committed, but that it was committed by him.”
There is nothing outside the confessional statement to show that it is true. It is not corroborated by any independent evidence outside the confession which linked the accused to the offence. In essence, the statement failed the test for veracity and truthfulness. Where the retracted confessional statement of the accused fails to pass the tests for veracity and truthfulness as laid down by law as in the instant case, the Court should be cautious and reluctant in convicting him solely on that statement. See KASA V. STATE(1994) 1671(SC) AT 19-20 (D-A) where the Supreme Court per Uwais, JSC held that:

“It is not however every confessional statement which has been admitted in evidence that can be relied upon by the Court to convict the maker of the statement. There are occasions when no eye-witnesses are available to prove a case. The only evidence available may well be the confessional statement of the accused person. In such instance, it becomes desirable for the Court to be very cautious in convicting the accused of the offence charged merely on his confession. Hence the desirability to

have outside the confession some material evidence, be it slight, of circumstances which make it probable that the confession is true. This is the reason for laying down the test in R v. Skyes (supra) which was followed in Kanu v. King (supra) by the West African Court of Appeal and inDawa’s case (supra) by this Court”

InNWEZE V. STATE (2017) LPELR-42344(SC) AT 32-33 (A-E) the Supreme Court per Per Sanusi J.S.C held that:

“The law is trite that a trial Court can convict an offender merely on his confessional statement provided such confessional is direct and positive on the offence the accused is charged. That notwithstanding, this Court in multiplicity of its decided authorities, enunciated the six afore-listed tests which must be met or satisfied, before such confessional statement can be solely relied upon to convict an accused. Also, it is desirable for such confessional statement to be corroborated. See: Udedibia & Ors v. The State (1976) LPELR 3290 (SC). Therefore, although a confessional statement alone can ground a conviction, in most cases the need arises as in this instant case, for the trial Court to apply the tests as highlighted above in

order to determine and ascertain its veracity or otherwise by seeking any other independent evidence no matter how slight to show the truthfulness of the said confession. See Ashiwe v. The State (1983) 5 SC 23; Galadima v. The State (2012) 12 SC (Pt. II) 213; Adamu Saliu v. The State (2014) LPELR-22998 (SC). As I posited above, there was no evidence adduced by the prosecution to corroborate Exhibit D in this instant case. Also the trial Court did not apply the six tests listed supra before convicting the appellant solely on his confessional statement. To my mind, this is a clear example of a case in which the appellant should be given the benefit of doubt and be discharged and acquitted him of the offence he was charged with. This is so because before a confessional statement could result to conviction of an accused person, it must be unequivocal in the sense that it leads to the guilt of the maker. Where the alleged confessional statement is capable of dual or more interpretations in the realm of guilt and non guilt, a trial Court will be hesitant to convict the accused but it should instead give him the benefit of doubt. See Monsura Solola & Anor v. The State (2005) 2

NWLR (Pt. 937) 460 or (2005) 5 SC (Pt. II) 135.”

It is my view that exhibit A was not corroborated by an independent evidence outside the confessional statement which was retracted by the appellant. The Court below ought not to have relied on it to convict the appellant. The appeal succeeds. The judgment of the High Court of Ebonyi State delivered in charge no. HSK/14C/2014 on 26/1/2018 is hereby set aside. The conviction and sentence passed on the appellant are hereby set aside. The appellant is hereby discharged and acquitted.

IGNATIUS IGWE AGUBE, J.C.A.: I had the privilege of being availed in advance the draft of the Lead Judgment of my Learned Brother, MISITURA OMODERE BOLAJI-YUSUFF JCA, and I totally endorse the reasoning and conclusion that the defence of alibi raised by the Appellant succeeds as he adduced sufficient evidence to that effect.

The Appeal is meritorious and hereby succeeds. I abide by the order quashing the decision of the trial Court and hereby discharge and acquit the Appellant.

ABUBAKAR SADIQ UMAR, J.C.A.: I have had the opportunity to preview the draft of the judgment just

delivered by my learned brother; MISITURA OMODERE BOLAJI-YUSUFF, JCA, and I entirely agree with the reasoning and conclusion contained thereat. That the appeal has merit, and is hereby allowed.

The appeal succeeds. The judgment of the High Court of Ebonyi State delivered in Charge HSK/14C/2014 on 26/1/2018 is set aside. The conviction and sentence passed on the Appellant are hereby set aside. The Appellant is hereby discharged and acquitted.

Appearances:

J. Anaenugwu holding the brief of Chigbo Anaenugwu For Appellant(s)

E. Nwaonumah, Deputy D.P.P. Ministry of Justice, Ebonyi State For Respondent(s)