MANGER v. C.O.P, FCT (2021)

MANGER v. C.O.P, FCT

(2021)LCN/15078(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, March 09, 2021

CA/ABJ/CR/684/2020

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Between

ISAAC MANGER APPELANT(S)

And

COMMISSIONER OF POLICE FEDERAL CAPITAL TERRITORY (FCT) RESPONDENT(S)

RATIO

WHETHER THE EXTRA JUDICIAL CONFESSIONAL STATEMENT OF THE ACCUSED PERSON TO THE POLICE IS PART OF THE CASE FOR THE PROSECUTION

… the case of Ayodele Ikumonihan Vs The State (2018) LPELR -44362 SC where the apex Court said: “Now it is well established principle that the statement of the Accused person to the Police is considered part of the case for the prosecution, whether it contains a confession or not, and whether the Accused Person resiles it at the trial or not — See Egboghonome Vs State (1993)7 NWLR (Pt.306) 383 SC. PER ITA GEORGE MBABA, J.C.A.

WHETHER THE COURT CAN CONVICT ON THE RETRACTED CONFESSIONAL STATEMENT OF THE ACCUSED PERSON

It is also settled that the Court can convict on the retracted confessional statement of the Accused Person, however, before this is done, the trial Court is enjoined to evaluate the confession of the Accused Person and his testimony at the trial, as well as, other evidence adduced. This would entail the trial Court examining the new version of events presented by the accused person that is different from his retracted confession, and satisfy itself that the statement was free, voluntary and properly taken and that it passed the six tests to be applied to a confession, as suggested by Ridley J. in the case of R Vs Sykes supra. The said tests have been adopted by this Court in a number of decided cases, including Ogudo Vs State (2011) 18 NWLR (Pt.1278) I SC, wherein this Court explained that in determining the weight to be attached to a confessional Statement, retracted or not, the Court must ask itself the following; -Is there anything outside the Confession which shows that it may be true? -Is it corroborated in anyway?
-Are the relevant statements of fact made in it most likely true as far as they can be listed? -Did the Accused have an opportunity to commit the offence? -Is the Confession Possible? -Is the Confession consistent with other facts, which have been ascertained and established? In effect, although, the Court can convict only on the extra judicial confessional statement of the Accused Person, it is desirable to find independent evidence; that is to say, to have some evidence outside the confession, however slight, of circumstances which make it probable that the said confession was true, See Queen Vs Itule (supra), R Vs Kanu (supra) and Edhigere Vs State (supra) Per Augie JSC PER ITA GEORGE MBABA, J.C.A.

WAYS BY WHICH THE COMMISSION OF CRIME BY AN ACCUSED PERSON CAN BE ESTABLISHED

As rightly stated by the Respondent’s Counsel, there are about 3 different ways of establishing commission of crime by an accused person, namely: (1) By positive and direct evidence of an eye witness of the commission of the offence — Blessing Vs FRN (2013) 12 WRN 36; (2) By cogent circumstantial evidence which points directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the crime can be inferred — Nasiru Vs The State (1999) 2 NWLR (Pt.589) 82 (3) By confessional statement of the accused person, adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it – Haruna Vs A.G. Fed. (2012) 32 WRN 1; (2012) 9 NWLR (Pt.1306) 419. See also the cases of Obasi Vs The State (2014) LPELR – 24013 (CA); Awo vs State (2020) LPELR – 50619 (CA); Dada vs State (2017) LPELR – 43468 (SC); Adesina & Anor Vs The State (2012) LPELR – 9722 (SC). PER ITA GEORGE MBABA, J.C.A.

WHEN IS AN IDENTIFICATION PARADE NECESSARY

See the case of Ajomayan Vs The State (2020) LPELR – 49598 CA: As rightly submitted by Counsel on both sides, an identification parade, or need to clearly identify an offender is only necessary, where and when the victim or witness did not have opportunity to see/know him, in some intimate way or at close range, to leave some lasting impression of the offender on the victim or witness. Such parade may be the case, where the victim or witness never met the offender before the attack and the attack lasted in a split movement, leaving no room for acquaintance and/or strong interaction. See the case of Ikemson Vs State (1989) 6 SC (Pt.5) 1 at 14; Auta vs The State (2018) LPELR – 44490 (CA) and Idowu vs The State (2019) LPELR – 48459 CA, where it was held: “On when an identification parade is necessary, the Supreme Court in the case of Wisdom Vs The State (2017) 7 NWLR (Pt.1586) 446 at 468 paragraph B — F held as follows: “In Akeem Agboola Vs The State (2013) 11 NWLR (Pt.1336) 619… I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time, where the victim might not have the opportunity of observing the features of the accused.” An identification would become necessary only in the following situations of visual identification: (i) Where the victim did not know the accused person before and his first acquaintance with him during the commission of the offence. (ii) Where the victim was confronted by the offender for a very short time and (iii) Where the victim due to time and circumstances, might not have had the full opportunity of observing the features of the accused. ” PER ITA GEORGE MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Federal Capital Territory (FCT) in Charge No. FCT/HC/CR/24/2017, delivered on 14th May, 2020, by Hon. Justice Sylvanus C. Oriji, whereof the learned trial Judge convicted the Appellant and his co-accused, for offence of criminal conspiracy and robbery, and sentenced each of them to 6 years imprisonment on each count but the sentence to run concurrently, or a fine of N10,000.00 on each Count.

At the trial Court, Appellant (with the Co-accused) was charged, as follows:
COUNT 1:
“That you Solomon Manger, male, 26 Years old of Lugbe F.C.T. Abuja and you Isaac Manger 22 years old of Lugbe FCT Abuja, on or about the 23rd day of August, 2017 at about 8:00pm at New Kuruduma Road, close to Mogadishu Barracks, FCT Abuja, did commit a criminal offence to wit: Criminal Conspiracy to commit the offence of robbery, in that on the said date, time and place, both of you agreed and conspired together to rob one Mr. Julius Cyprian Ukakha of Kurudu, Abuja of his Honda Civic 2000 Model, Registration Number: AW 11 YAB, and You actually succeeded in

the robbery. You thereby committed an offence (sic) 97 of the Penal Code Law.
COUNT 2:
That you Solomon Manger, male, 26 Years old of Lugbe FCT Abuja and you Isaac Manger 22 years old of Lugbe FCT Abuja, on or about the 23rd day of August, 2017 at about 8:00pm at New Kuruduma Road, close to Mogadishu Barracks, FCT Abuja, did commit a criminal offence to wit: Robbery, in that on the said date, time and place both of you robbed one Mr. Julius Cyprian Ukpakha of Kurudu, Abuja of his Honda Civic 2000 Model with Registration Number AW 11 YAB. You thereby committed an offence (sic) 298 of the Penal Code Law. ”

On being arraigned, Appellant pleaded “Not Guilty” to the Charge and the case went into hearing, whereof the Prosecution called 3 witnesses. Appellant defended himself. The prosecution tendered documents – Exhibits A to E. At the end of the trial Court, the Learned trial Judge, after reviewing the evidence and addresses of Counsel, found the Appellant guilty, as charged. The trial Judge said, on pages 205 — 206 of the Records:
“I hold the considered view that from the circumstance in which the PW1 saw the defendants, the length of

time PW1 was with defendants and interacted with them in the car, from Wuse Zone 1, Abuja to the point of the robbery, and the opportunity of close observation the PW1 had, the PW1 was in a position to recognize and identify the defendants, as he did on 25/8/2017. The Court is not persuaded by the submission that the absence of an identification parade created doubt on the identity of the defendants as the persons that robbed the PW1 on 23/8/2017.
The Court is satisfied that from the evidence of PW1 and the other pieces of evidence, like the PW1’s Tecno Phone recovered from the defendants and his car that was by the Police – all of which were admitted by the 2nd defendant in Exhibit D — the prosecution proved beyond reasonable doubt that the defendants were the persons who robbed the PW1 of his Honda Civic Car on 23/8/2017… ”

The trial Court, finally, held:
“In the light of all that I have said, the decision of the Court is that the prosecution has proved the ingredients of the offence of robbery under Section 296(2) of the Penal Code Law against the defendants, beyond reasonable doubt… I adopt the findings and decision of the

Court under Issue 1 and hold that prosecution proved the offence of conspiracy against the defendants beyond reasonable doubt. In the final analysis, the verdict of the Court is that the defendants, Solomon Manger and Isaac Manger, are guilty of the offence of criminal conspiracy in Count 1 under Section 97(1) of the Penal Code Law; and the offence of robbery in Count 2 under Section 298(a) of the Penal Code Law, ” See pages 209 — 210 of the Records.

Appellant was sentenced to 6 years imprisonment on each Count, or fine of N10,000 on each Count, but the sentence to run, concurrently.

That is the Judgment Appellant appealed against, being dissatisfied, as per the Notice of Appeal filed on 17/8/2020, with 11 grounds of Appeal (Pages 210 to 223 of the Records of Appeal). Appellant, filed Brief of Argument on 3/9/2020 and distilled 3 (three) issues for the determination of the Appeal, as follows:
(1) Having regard to the Appellant’s challenge on the voluntariness of Exhibits E and G, as well as the overwhelming evidence supporting same, whether the trial Court was justified when it refused trial within trial proceeding before admitting and

relying on the said Exhibits E and G in convicting the Appellant? (Grounds 1 and 2)
(2) Whether the trial Court gave a fair consideration to the case before it when it convicted the Appellant without properly evaluating the material evidence adduced before it. (Grounds 3, 4, 5, 6, 7, Band 10)
(3) Having regard to the requirement of the law regarding the distinct and separate nature of an offence of conspiracy, whether the trial Court was right, when it relied on its findings regarding Count 2 of the Charge in convicting the Appellant on Count 1 of the Charge? (Ground 9).

The Respondent filed its brief of arguments on 2/10/2020 and distilled 2 issues for the determination of the Appeal, namely:
(1) Whether the prosecution proved the two Counts Charge against the Appellant beyond reasonable doubt before the trial Court.
(2) Whether the Appellant suffered any miscarriage of justice throughout his trial at the Lower Court to warrant filing of this Appeal.

Arguing the Appeal, on 3/2/2021, Appellant’s Counsel Abdul Fatai Oyedele, Esq., who settled the brief, on issue 1, said this brings to sharp focus, the justification or

otherwise of the trial Court’s refusal to conduct trial within trial before admitting Exhibits E & G in evidence, in spite of Appellant’s challenge of the voluntariness of the said Exhibits; he said that this issue also questions the reliance of the trial Court on the said Exhibits to convict the Appellant. Counsel said the Exhibits formed the substratum of the case on which the trial Court convicted the Appellant. He said that the trial Court, having acknowledged Appellant’s objection to the admissibility of Exhibits E & G, on the ground of involuntariness, had held that Appellant’s objection in the face of his (Appellant’s) testimony in Court in support of the Exhibit, amounted to retraction of the said Exhibits E & G, thereby making it unnecessary to conduct “trial within trial” before admitting same in evidence. He referred us to page 21 of the judgment.

Counsel said that it was wrong for the trial Judge to say that “the objection of the defence Counsel on 11/2/2019 and the testimonies of each of the defendants amounted to a retraction of the confessional statement”, as the defendant said, when he testified in his defence, that he was

tortured and forced by the Police to sign the statement; that he signed the statement, but the Police did not read it to him, or let him know the content. (See page 196 of the Records)

Counsel stated the conditions whereof a Court is compelled to conduct trial within trial, and the purpose of such practice – to establish the voluntariness of the alleged confessional statement. He said that, once the issue of voluntariness of a confessional statement is raised, it must be resolved or settled, one way or the other, before its admission or otherwise. He relied on State vs Soyinka (2020) LPELR — 49493; Ibeme Vs State (2013) 10 NWLR (Pt.1362) 33; Patrick vs State (2019) LPELR — 40254 (among other cases).

Counsel also relied on Uzim Vs State (2019) LPELR — 48983, where the Supreme Court said:
“A trial within trial is used to test the voluntariness of a confession, not what value or weight to attach to the evidence. In other words, the question of value and what weight to attach to a confession admitted in evidence after a trial within trial is a different matter altogether as admissibility and weight are not the same thing. “See

also Kamila Vs State (2018) LPELR – 43603 SC, which said:
“… there is no getting away from it that once there is a challenge to voluntariness of a confessional statement, that the trial Court faced with this challenge is bound to conduct a trial within trial to determine the voluntariness or otherwise.”

Thus, Counsel said, the trial Court was bound to conduct trial within trial on the voluntariness of the confessional statements of the defendants, upon the challenge of the Exhibits E & G. He argued that the Appellant in the instant case resiled from making Exhibits E & G, on the ground that he was made to sign vide torture and beating by the Police. He said that the retraction was made on 11/2/2019 at the time the statement was tendered before the trial Court to be admitted in evidence. He referred us to page 145 of the Records of Appeal. He also referred to pages 166 to 167 of the Records where Appellant testified in Court rejecting the confessional statement — Exhibits E & G

Counsel said the trial Court’s reasoning in admitting the said Exhibits E & G was wrong, having failed to take into consideration the

position of the law regarding the distinction and effect of a retraction, simpliciter, and a retraction, on the ground of involuntariness. He said that the Court was wrong in its decision with regards to the ways which an accused person may retract or resile from his confessional statement and the implication of such retraction. Counsel relied on the cases of Uwa vs State (2013) LPELR – 20329 and Ikemson vs State (1989) 56 SC (Pt.1) 114, on when/how retraction or resile from confessional statement can be made, namely that:
(1) Accused can retract or resile and say that he never made the Statement, at all; or
(2) That he made or signed the statement but not voluntarily; that in the 1st option, the confessional statement remains admissible and relevant, but what weight to attach to it and its subsequent retraction is important. But in the 2nd instance, the trial Court has a duty to try the issue of voluntariness or otherwise of such statement through the conduct of trial within trial.

Counsel said in the circumstances, the Exhibits E & G are liable to be expunged, being inadmissible, for failure of the trial Court to have conducted trial

within trial on the voluntariness of same. He relied on Emeka Vs State (2001) 14 NWLR (Pt.734) 666; Giki Vs State (2018) LPELR — 43604 (SC); Obidiozo vs State (1987) 4 NWLR (Pt.67) 48; Ehot vs State (1993) 4 NWLR (Pt.290) 644; Kingsley vs State (2017) LPELR – 42422 CA.

Counsel argued that the decision of the trial Court was therefore, perverse, as it ignored facts and evidence led at the trial Court. Again, he urged us to expunge the Exhibits E & G from the evidence adduced at the trial Court. He relied on the case of Edoho Vs State (2002) LPELR – 10605; Edun & Anor vs FRN (2019) LPELR 46947 (SC); Idowu Vs State (1998) 11 NWLR (Pt.574) 354.

On issue 2, Counsel said that the trial Court, apart from relying on the Exhibit E (said to have been wrongly admitted and relied upon as per the (issue 1), also relied on the oral evidence of the PW1, PW2 and PW3, as well as on Exhibits F and H (as corroborating evidence) to convict the Appellant, saying that same were credible, cogent and reliable. Counsel said the trial Court was wrong to say that those pieces of evidence were credible, cogent and reliable; that the Court failed to be guided by the correct principle of law for the assessment of witnesses and evaluation of evidence.

Counsel said it was mandatory for a trial Court to follow the procedure of putting the totality of the testimony adduced by both parties on an imaginary scale and decide whether the evidence so adduced is of such a quality on every material issue for it to come to a decision as to which evidence to believe or accept and which to reject. He relied on Bello Vs The State (2006) LPELR – 7710; Alake vs State (1992) 9 NWLR (Pt.265) 260. He argued that proper evaluation of evidence adduced is not achieved where the Court considers one set of the case only. Peter vs State (2019) LPELR — 47308; Ogidi vs State (2014) LPELR – 23535; Babalola Borishade Vs FRN (2012) 18 NWLR (Pt.1332) 347; Martins vs The State (1997) 1 NWLR (Pt.481)0 355; Onuoha vs State (1989) 2 NWLR (Pt.101) 23; Ipalibo vs State (2014) LPELR – 22678.

Counsel asserted, again, that the trial Court did not give due consideration to the evidence of PW1, PW2 and PW3, as well as to Exhibits F & H vis-a-vis the evidence of the Appellant; he said that evidence of Appellant was never taken into account

by the trial Court, holistically; that the trial Court refused to use the imaginary scale to weigh the evidence of both sides to establish the guilt of the Appellant beyond reasonable doubt. He relied on Babatunde vs State (2014) 2 NWLR (Pt.1391) 298; Obi vs State (2013) 5 NWLR (Pt.1346) 68.

Counsel argued that the ingredients of the offence of conspiracy was not established by the prosecution. He relied on Osho vs The State (2011) LPELR — 4804; The State vs Salawu (2011) LPELR – 8252 SC; Adeyemi Vs State (1991) 6 NWLR (Pt.195); Erim vs State (1994) 5 NWLR (Pt.346) 522.

Counsel also said that the ingredients of armed robbery under Section 298 of the Penal Code Act were not proved by the prosecution. He relied on the case of Dibia Vs State (2017) 12 NWLR (Pt.1579) 196 on the ingredients of offence of armed robbery. He relied on Adekoya Vs State (2010) LPELR – 3605; Bozin vs State (1985) 2 NWLR (Pt.8) 642; Okosi Vs. State (1989) 1 NWLR (Pt.100) 642.

Counsel said the evidence by PWs 1, 2, and 3 did not establish the material elements of the offence of armed robbery, and that there were material contradictions in their pieces of

evidence, which the trial Court ignored, and which should have been resolved for the Appellant. He referred us to pages 138 and 144 of the Records of Appeal, where he said the trial Court placed reliance on prosecution witnesses to the detriment of the Appellant’s evidence, and evinced disbelief in the evidence of the Appellant. He added that the evidence of PW1, PW2 and PW3 were seriously discredited by the evidence of Appellant, with regard to where the Appellant was arrested, the items claimed to have been recovered from the Appellant and the recovery of the said car, allegedly snatched from the nominal complainant as well as the commission of the robbery.

Counsel founded on the evidence of Appellant in his defence on pages 166 to 168 of the Records and said that the same was not challenged, controverted or contradicted under cross examination. Thus, the trial Court ought to have taken same into consideration in determining the credibility to be attached to the evidence of PW1, PW2 and PW3. Counsel said there was no basis for the conviction of Appellant for conspiracy or for robbery. He relied on Nwaturuocha Vs The State (2011) LPELR — 8119 SC

on the need for proper identification of the real culprit in robbery cases. See also Ogoala Vs State (1991) 2 NWLR (Pt.175) 509; Okafor vs State (2005) LPELR – 7566; Mohammed Vs State (2014) 2 NWLR (Pt. 1390) 44.

On issue 3, the propriety or otherwise of the trial Court relying on its findings of guilt of the Appellant in respect of Count 2 of the Charge to arrive at the guilt regarding the offence of conspiracy in Count 1, Counsel said the trial Court erred, considering the requirement for establishing offence of conspiracy. He referred us to page 209 of the Records, where the trial Court held:
“I adopt the findings and decision of the Court under issue No. 1 and hold that prosecution proved the offence of conspiracy against the Defendant beyond reasonable doubt.”

For this issue 3, Counsel adopted the arguments earlier made on issues 1 and 2, particularly in paragraphs 3.1 — 3.68 of the Appellant’s Brief, to say that the decision of the trial Court was erroneous. He again cited cases on the ingredients of offence of conspiracy, and asserted that conspiracy is a separate offence, distinct from the main offence allegedly committed

and so the material elements needed to prove it, also different. He relied on Akubuiro vs State (2016) LPELR – 40143; Kolawole Vs The State (2015) 2 SCNJ (Pt.1) 186; Haruna vs State (1972) 8 – 9; Osondu V FRN (2000) 12 NWLR (Pt.682) 482; Osetola & Anor vs The State (2012) LPELR – 9348 (SC).
Counsel urged us to resolve the issues for the Appellant and to allow the Appeal.

Responding, Counsel for Respondent, Donatus Friday Abah Esq (who settled Respondents brief), on issue 1, answered in the affirmative, saying that the prosecution had proved the charge beyond reasonable doubt. He said that the ingredients needed to prove the offence of criminal conspiracy, punishable under Section 97(1) of the Penal Code Law, being a simple meeting of the minds of accused persons and their agreement to do something illegal, or something legal in an illegal way, had been established. He relied on the case of Uman vs the State (2018) LPELR-44717 CA on the ingredients of criminal conspiracy. Counsel said from every indication, Appellant had an agreement/understanding with his fellow convict, left their home at Lugbe to the city centre for the purpose of robbing

vehicle and PW1 eventually became the victim. He relied again on the case of Ayinde Vs the State (2019) LPELR-47835 SC on how to prove offence of conspiracy:
“The offence of conspiracy is usually shrouded in secrecy. Therefore, it is established once it become known to the Court that the conspirators knew of the existence and the intention or purpose of the conspiracy. In most cases, conspiracy is inferred or presumed. Afolabi Vs the state (2013) NWLR (Pt.1371) 292; Osuagwu vs the State (2013) 1-2 SC (Pt.1)37; Lawson vs The State (1975) 6 SC 79” (Per Okoro JSC)

On Count 2, Counsel said the charge was equally proved beyond reasonable doubt against Appellant; that the evidence of PW1, an eye witness, had narrated his ordeal in the hands of the Appellant and his co-conspirator, to ground the conviction. He relied on the case of Okanlawon Vs The State (2015) LPELR-24838 SC, on the definition of robbery — “as simply the illegal taking of property from the person of another, or in the person’s preserve by violence or intimidation.”

Counsel said that under Section 298 of the Penal Code Law, the necessary ingredients required to establish offence of robbery against a defendant are;
1) That the accused committed theft
2) That he caused or attempted to cause to some person:
a) Death, hurt or wrongful restraint;
b) Fear of instant death or instant hurt or instant wrongful restraint;
3 That he did as above:
a) In committing theft; or
b)In order to commit theft; or
c)In carrying away or attempting to carry away the property obtained by that theft;
4 That he acted as in (2) above, voluntarily.

Counsel said these ingredients were abundantly established and proved beyond reasonable doubt at the trial Court; that every one of the above ingredients was found in the testimonies of PW1, PW2 and PW3 before the trial Court, thereby making it less difficult for the trial Judge to convict and sentence the Appellant. He referred us to pages 120 to 154 of the Records of Appeal.

Counsel said that, by law, the guilt of an accused can be established by confessional statement of the accused, or by the evidence of eye witness of the Crime, or by Circumstantial evidence, as the PW1’s tecno phone (one of the items robbed) was found in possession of the convicts

(Appellant and his brother); Counsel said that pointed to the conclusion, that the convicts were those who committed the offence. Counsel said that the Appellant also made a confessional statement, as soon as PW1 found his brother’s and wife’s GSM phone numbers in the stolen phone at the station.

Counsel said the finding of facts, as to the credibility of evidence adduced, is that of the trial Court, exclusively, to make, having seen and heard the witnesses as they testified; that appellate Court does not interfere with such findings, unless it is shown to be perverse and occasioned miscarriage of justice. Counsel relied on the case of Kekong Vs State (2017) 18 NWLR (Pt. 1596) 108 (SC).
Counsel urged us to resolve the issue against Appellant

On the issue whether Appellant suffered any miscarriage of justice at the trial, sufficient to allow the appeal, Counsel answered in the negative. He relied on the case of Nwankwoala vs FRN (2018) LPELR- 43891 (SC) on what constitutes miscarriage of justice:
“that it is a failure of justice. There is miscarriage of justice where there are grave or serious errors in the proceedings as to make the proceedings fundamentally, flawed. It means failure of the Court to do justice… ”

Counsel said that Appellant’s arguments, that there should have been trial within trial before Exhibits E & G were admitted, was unfounded as there was no reason or proper ground of objection to the admissibility of Appellants extra-judicial statement. Counsel said the objection by the defence counsel was to the effect that Appellant made the said statement under duress; that he was tortured and beaten before the Police recorded the statement and finally, that they did not append their signatures to the statement (page 145 of the Records of Appeal).

Counsel for Respondents said that the above clearly and understandable shows that the ground of objection was not that Appellants extra judicial statement was taken or made involuntarily; he said that was what would have moved the trial Judge to conduct trial within trial. He argued that to say that Appellant was tortured and beaten before the Police recorded his statement also means that the statement was recorded after the act of torture, and beating complained of assuming, (but without conceding) that it was not

during the recording of the statement, which would have connoted involuntariness (if the torture and beating was during the recording of the statement).

Counsel said the mention of duress was just a blank open check by Appellant to get attention. He argued that the mere fact of being at the Police Station to answer to a charge is an act of duress!

Counsel relied on Akwuobi Vs State (2017) 2 NWLR (Pt.1550) 421 at 425, to say that the ground of objection raised, not being on involuntariness of the statement, merely amounted to denial and retraction of the statement, and urged us to so hold, relying on the case of Okpako Vs The State (2018) LPELR – 43875 (SC), where it was held on the whole issue of how accused person’s statement is obtained:
“…To put it another way, the Court will not consider how Exhibit ‘D’ was obtained rather the Court will take into consideration whether what is admitted is relevant to the issues being tried. “See Elias Vs Disu (1962) 1 SCNLR 361; Igbinovia vs the State (1981) 2 SC 5.”
Counsel urged us to resolve the issues against the Appellant, and to dismiss the Appeal.
<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>

RESOLUTION OF THE ISSUES
I think the real issue thrown up for the determination of this Appeal can be summarized into two, namely;
(1) Whether, in the circumstances of this case, failure of the trial Court to conduct a “trial-within-trial” before admitting the confessional statements of the Appellant, Exhibit E & G, was fatal to the decision of the Court; and
(2) Whether the trial Court was right to convict and sentence the Appellant for criminal conspiracy and robbery, relying on the Exhibits E & G and the other evidence by the Prosecution.

I think these two issues have summarized the three issues raised by the Appellant. I shall, however, take the two issues, together.

Appellant had made a heavy weather of the fact of absence of “trial within trial” by the trial Court, when Appellant’s Counsel, T.J. Aondo, Esq, raised objection to the Admission of the extra judicial statement made by Appellant, on the allegation that the same was obtained by duress.

Pages 145-146 of the Records of Appeal carry what transpired at the trial Court. When the Prosecution applied to tender Appellant’s statement in evidence, through PW3 (Inspector Godwin Davidson) who recorded the said Appellant’s statement (Exhibit E).

Immediately, the Prosecution Counsel applied to tender the said statements, the Defence Counsel said;
“I object to the admissibility of the statements. My clients informed me that they made statements under duress. The defendants were tortured and beaten before the Police recorded the statements and they did not append their signatures to the Statements. I apply that the matter be adjourned for trial within trial.”

Of course, the Prosecution counsel replied;
“I posit that the ground raised will not necessitate a trial within trial. The effect of what defence Counsel has said amounts to denial or retraction of the statements. Retraction is not a ground fro (sic) trial within trial. I rely on the case of Akwuobi Vs State (2017) 2 NWLR (Pt 1550) 421 at 425. I pray the Court to discountenance the objection and admit the statements in evidence.” See Page 145 of the Records of Appeal.

The trial Court, in resolving the arguments, admitted the said Statements of Appellant as Exhibits E & G, saying:
“There is a difference between a ground of objection to the extra-judicial

statement of a defendant to the effect that he did not make the statement on the one hand, and that he made the statement under duress or involuntarily, on the other. In the former case, which is retraction, the Court will admit the statement and determine the evidential value or weight to be attached to the statement at the end of the trial. In the latter case, the Court will order a trial within the trial, to determine the voluntariness or otherwise of the statement. In the instant case, the ground of the objection is that the defendants were beaten and tortured before the police recorded the statements, and the defendants did not sign the statements. To my mind, this objection is a retraction of the statements because the petition of the defendants is that they did not make the statements sought to be tendered…” See Page 146 of the Records of Appeal.

In his final judgment, the trial Court restated its decision that Appellant merely retracted his statement (Exhibits E & G) and so did not necessitate conducting trial within trial; the Court further said that Appellant’s Counsel had tacitly conceded that the said confessional statement were

retracted, as he referred to Exhibits D & E as “retracted statements” and “retracted confessional statement of the defendants.” See Page 197 of the Records of Appeal.

I cannot really see the fuse raised by Appellant’s Counsel about the effect of the holding by the trial Court, that Appellant had retracted or denied his statements to the Police (Exhibits E & G), by the challenge raised by his Counsel that he made the statements under duress, as opposed to Appellant’s demands that the trial Court should have conducted a trial within trial to determine the voluntariness of the statements.
Even if the trial within trial were done before the statements were admitted, the fact still remains, that Appellant had disowned the statements he made, on the ground of the same having been made under duress. I think in such a situation, the Court still had to consider the said statements (the content thereof) in the light of other pieces of evidence adduced in the case, to appreciate the claims of Appellants, whether, in fact, there was any truth in the allegation of threat to make the said statements. Thus, while treating the statements as having been

retracted (or denied) by the Accused person (Appellant), the Court had to look at, and consider other pieces of evidence, to see whether the rejected (retracted) statement agreed (or aligned) with the other pieces of evidence, to establish or disprove the charge with which the accused was charged. See the case of Ayodele Ikumonihan Vs The State (2018) LPELR -44362 SC where the apex Court said:
“Now it is well established principle that the statement of the Accused person to the Police is considered part of the case for the prosecution, whether it contains a confession or not, and whether the Accused Person resiles it at the trial or not — See Egboghonome Vs State (1993)7 NWLR (Pt.306) 383 SC. It is also settled that the Court can convict on the retracted confessional statement of the Accused Person, however, before this is done, the trial Court is enjoined to evaluate the confession of the Accused Person and his testimony at the trial, as well as, other evidence adduced.
This would entail the trial Court examining the new version of events presented by the accused person that is different from his retracted confession, and satisfy itself that

the statement was free, voluntary and properly taken and that it passed the six tests to be applied to a confession, as suggested by Ridley J. in the case of R Vs Sykes supra.
The said tests have been adopted by this Court in a number of decided cases, including Ogudo Vs State (2011) 18 NWLR (Pt.1278) I SC, wherein this Court explained that in determining the weight to be attached to a confessional Statement, retracted or not, the Court must ask itself the following;
-Is there anything outside the Confession which shows that it may be true?
-Is it corroborated in anyway?
-Are the relevant statements of fact made in it most likely true as far as they can be listed?
-Did the Accused have an opportunity to commit the offence?
-Is the Confession Possible?
-Is the Confession consistent with other facts, which have been ascertained and established?
In effect, although, the Court can convict only on the extra judicial confessional statement of the Accused Person, it is desirable to find independent evidence; that is to say, to have some evidence outside the confession, however slight, of circumstances which make it

probable that the said confession was true, See Queen Vs Itule (supra), R Vs Kanu (supra) and Edhigere Vs State (supra) Per Augie JSC
Going by the above position of the law, I think Appellant should have concerned himself as to whether the trial Court properly considered all the evidence adduced in the case, with or without the retracted statements, where there were facts in the statements capable of indentifying the Appellant or giving information about Appellant, and capable of corroborating the Exhibits E & G in the case, to suggest its truth or relevance to the case or charge Appellant was tried on.
It was therefore absurd, in my view, and unhelpful for Appellant, for his Counsel to pray that the said confessional Statements (Exhibits E & G) be expunged, because the trial Court failed to conduct trial within trial on it; and arguing that the same was not admissible in evidence by reason of the alleged failure. Having declared that the act of the Appellant amounted to retraction, the trial Court therefore had a duty to review the evidence, holistically, including the retracted statements, and it did.

I also observe that the attack against the said statements of Appellant was launched by his counsel, who took upon himself to fight the statements, alleging that his client told him it was obtained under duress; that Appellant was tortured and beaten before the Police recorded the statements, and that the Appellant did not sign the said Statements. I think Appellant’s Counsel should have allowed his client (Appellant) to tell the Court this, by himself, upon being shown the statements, before the Counsel could invite the Court to conduct trial within trial on it. As it were, Accused person’s Counsel was giving evidence (hearsay evidence) on the allegation to the trial Court and insisting that the trial Court conduct trial within trial, based on his hearsay evidence! He even erred by saying that Appellant was tortured and beaten before the statement was recorded by the police, implying that the torture and beating did not happen at the time of taking the statements and for that purpose! Counsel also said that Appellant did not sign the statements. But the exhibits E & G had the signature of the witness/accused person (See Page 109 and 115 of the Records). Of course, if Appellant did not

sign the said statements, it meant that he denied making them and so, the trial Court was right to treat Appellant Counsel’s complaint as retraction of the said statements by the Appellant. It should be noted that Appellant had also admitted signing the statement, but said that he was forced to sign, or was not allowed to read what he signed!
In this case at hand, the confessional statements (Exhibits E and G) were not the only evidence the trial Court relied upon to convict the Appellant, as the eyewitness account, the victim of the robbery PW1, had testified and identified the Appellant and his brother as those who robbed him of his car. There was also the circumstantial evidence of the recovery of victim’s tecno phone from Appellant, which phone was stolen at the time the PW1, was also robbed of the car.
PW1 had said in his evidence in chief:
“…I know the defendants. They were the ones that snatched my car from me. On 23/8/2017, I was using my car in the evening to do town taxi because I had no job then. On that day, I was around Wuse Zone 1, Abuja, in front of Skye Bank. I saw the 2 defendants standing near the bank at the

junction, stopped and asked if they were looking for taxi. They said yes and that I should take them to an estate close to Abacha Barracks in Asokoro, Abuja. Therefore we agreed on was N2000.00. As we were going, we were discussing in the vehicle. The 1st defendant sat in the front seat while the 2nd defendant sat at the back seat. As we were going, 1st defendant made a call. When heard his dialect, I knew he is a Tiv person. After the call the 1st defendant asked me if I will be chanced to carry one man who lives in Lugbe and always needed taxi. From the discussion I got to know their faces. When we got to Abacha Barracks, on top of the bridge, I wanted to negotiate into Abacha Barracks. The defendant said I should turn right towards new Koroduma Road. We went down the road. It was a lonely road but few vehicles were passing. 1st defendant was the one directing me. He asked me to turn to my left after the roundabout. At a point, 1st defendant said I should stop, because we have passed the place. He said he was looking for one Berger stone. He asked me to reverse. The Berger stone is after the roundabout. At the Berger stone, there was an untarred road. 1st

defendant asked me to enter the road. I entered the road a little and told them I will not go further because I did not understand the road. They persuaded me to continue. When I started the car, I had a rope around my neck from behind. The 2nd defendant at the back used the rope to start strangling me. I was begging them not to kill me. The 2nd defendant continued to tighten the rope on my neck. At that time, the 1st defendant who sat in front was busy putting his hand inside my pocket. He collected the money I had in my pocket and removed the car key. At a point, 1st defendant ordered 2nd defendant to release the rope from my neck and that I should come down from the car. I obeyed them and came down from the car. The 2nd defendant came to the front seat while 1st defendant took over the driver’s seat They started the car and reverse to move. I pursued the car and they stopped. Both of them came down and said they will shoot me if I pursue them again. Due to the threat, I did not pursue them. When they entered the car. They drove off. Because I had no money with me, I trekked to Asokoro Police Station, where I lodged a report. The Police asked me to make statement and I did…” See Pages 120—122 of the Records.
31

He further said:
“She (DPO) ordered some Policemen to follow me to where they (defendant) collected the car from me. I took them to the place. The DPO said I should leave my phone number. She said she will track the phone since the people left with my phone. I dropped my phone number with the DPO. The next day the DPO called my younger brother’s line which I also gave to the DPO. The DPO asked me to come to the Police Station. When we got there, she said she has been tracking my number and that the people who stole my care are in Lugbe. She advised that we (i.e. my brother and I) should go to Lugbe with the IPO… We went to Lugbe but we could not find the car, till about 11pm, when the phone of the IPO rang. The IPO was told that 2 guys were arrested at the same spot where the car was snatched. When we got to the Police Station, I recognized 2 of the defendants as the same persons that snatched my car. When I told the Police that the defendants are the ones that snatched my car, the defendants denied. When the Police collected their items and searched their pockets, they saw my phone.

I identified the phone as mine. When they went through the call log of the phone, I saw my wife’s number and that of my younger brother… ”
See page 128 of the Records

Of course, the evidence of the PW1 had clearly pinned the Appellant to the crime, and his narrative, clearly, corroborated the confessional statement of the Appellant in Exhibits E & G, wherein Appellant also gave account of how they boarded PW1’s car that night and lured him to where they robbed him of the car; how one of them at the back of the car used rope to strangle PW1 and made him to surrender, and they robbed him of the vehicle, his phone and money.

(3) By confessional statement of the accused person, adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it – Haruna Vs A.G. Fed. (2012) 32 WRN 1; (2012) 9 NWLR (Pt.1306) 419.
See also the cases of Obasi Vs The State (2014) LPELR – 24013 (CA); Awo vs State (2020) LPELR – 50619 (CA); Dada vs State (2017) LPELR – 43468 (SC); Adesina & Anor Vs The State (2012) LPELR – 9722 (SC).

Appellant had complained about the failure of the Police to organize an identification parade for the purpose of the accused person(s) identification by the PW1, the victim of the crime. I do not think identification parade was necessary in this type of a situation that the victim of the crime had a long time and opportunity of interacting with those who subsequently attacked and robbed him. He saw them, clearly, discussed with them, while in the car and even after the robbery, saw them come out of the car to threaten to shoot him, if he continued to pursue them. Moreover, on being arrested two days after, PW1 could identify them and his phone, stolen by them at the time of snatching the car; the

phone was found on them! See the case of Ajomayan Vs The State (2020) LPELR – 49598 CA:
As rightly submitted by Counsel on both sides, an identification parade, or need to clearly identify an offender is only necessary, where and when the victim or witness did not have opportunity to see/know him, in some intimate way or at close range, to leave some lasting impression of the offender on the victim or witness. Such parade may be the case, where the victim or witness never met the offender before the attack and the attack lasted in a split movement, leaving no room for acquaintance and/or strong interaction. See the case of Ikemson Vs State (1989) 6 SC (Pt.5) 1 at 14; Auta vs The State (2018) LPELR – 44490 (CA) and Idowu vs The State (2019) LPELR – 48459 CA, where it was held:
“On when an identification parade is necessary, the Supreme Court in the case of Wisdom Vs The State (2017) 7 NWLR (Pt.1586) 446 at 468 paragraph B — F held as follows:
“In Akeem Agboola Vs The State (2013) 11 NWLR (Pt.1336) 619…
I had opined that an identification parade only becomes necessary where the victim did not know the accused before his

acquaintance with him during the commission of the offence, where the victim saw the offender for a short time, where the victim might not have the opportunity of observing the features of the accused.” An identification would become necessary only in the following situations of visual identification:
(i) Where the victim did not know the accused person before and his first acquaintance with him during the commission of the offence.
(ii) Where the victim was confronted by the offender for a very short time and
(iii) Where the victim due to time and circumstances, might not have had the full opportunity of observing the features of the accused. ”
I think in this case at hand, the three different ways of proving the commission of the offence were employed by the prosecution. With the eyewitness account of PW1, the victim of the robbery and the recovery of the tecno phone of the PW1 in possession of the accused persons, when they were arrested, the confessional statement of the Appellant, simply agreed with the line of evidence, that Appellant, with his brother, conspired to rob the PW1 on 23/8/2017 and actually robbed him by snatching his car and other valuables.

I am rather surprised that Appellant’s Counsel appears to be pushing for Appellant to be sentenced for armed robbery, which attracts capital punishment, rather the 6 years prison term, which the trial Court handed down to each of them on each of the Counts, for conspiracy and robbery.

Counsel had argued in Paragraphs 3.35 and 3.39 of the Brief as follows:
(3.35): “From the said charge, the nature of the offences against Appellant as charged is criminal conspiracy to commit the offence of armed robbery, itself contrary to Sections 97 and 298 of the Penal Code Act, respectively…
(3.39): “….the essential element that is required of prosecution to prove the offence of armed robbery is also provided by Section 298 of Penal Code Act, Cap 532, Laws of the Federation of Nigeria, 1990. The Section states thus:
“Whoever commits robbery shall be punished, if the robbery is committed by any person, armed. ”

From the above, it appears Appellant’s Counsel was blaming the prosecution for not charging Appellant with armed robbery, but rather charged him for Robbery, simpliciter! He was not

helping the cause of his client, for recking up such argument on sensitive facts that could convert the charge from Robbery to Armed Robbery, especially as Appellant and his co- accused, had used threat, rope and force, to snatch the car and other valuables from PW1, and threatened to shoot him!
I see no merit in this Appeal and so dismiss the Appeal, and confirm the conviction and sentence of the Appellant by the trial Court for Conspiracy and Robbery.

IBRAHIM SHATA BDLIYA, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother Ita G. Mbaba J.C.A. I agree with the reasoning and decision contained therein. The appeal is devoid of merit and deserves to be dismissed.
I, dismiss the same, and affirm the judgment of the lower Court.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had a preview of the judgment just delivered by my learned brother, ITA G. MBABA, JCA. I am in agreement with the resolution of the issues in the appeal therein.

In the main, the issues are whether the failure of the trial Court to conduct “trial within trial” before admitting the confessional statement of the Appellant

“Exhibits E & G” was fatal to the decision of the Court and whether the trial Court was right to convict and sentence the Appellant for criminal conspiracy and robbery relying on “Exhibits E & G” and other evidence adduced by the prosecution.

My learned brother has meticulously and quite efficiently resolved the two issues submitted for determination of the appeal. It is not that I have any new things to say but only to make a few comments in favour of the judgment.

Going by the evidence before the trial Court, I have no iota of doubt that the Appellant and his brother did commit the offence for which he was arrested, charged, tried, convicted and sentenced.

The purposes of a trial within trial is not to determine whether the accused made the statement but it is to determine whether the statement was admissible. It has long been established as a positive rule of law as codified under Sections 28 and 29 of the Evidence Act, 2011 (as amended) that a confession made by a Defendant may be given in evidence against him so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of that provision. The conditions are stated clearly under Section 29 (2) (a) and (b) of the Evidence Act.

In the appeal at hand, the defence has not raised satisfactorily any of those conditions to warrant a trial within trial, the mere saying that the Defendant did not make the statement and not freely made is not sufficient to undertake the process of trial within trial in the circumstance of the fact of this case. To me what the Appellant was trying to do is to renege from what he earlier told the police (Prosecutor). Put in another way retraction of Evidence. Where the statement of an accused is voluntary and is properly admitted as in this appeal, the fact that the statement was later retracted is immaterial. See ULUEBEKA V THE STATE (2000) 4 SC (Pt. 1) 203, NWACHUKWU V THE STATE (2007) 7 SC 1, OSENI V THE STATE (2012) 2 SC (Pt. 11) 51, HARUNA V A. G. FEDERATION (2012) 3 SC (Pt. iv) 40.

The evidence before the trial Court is so convincing, unequivocal, direct and overwhelming on the acts perpetrated by the Appellant and his brother when they boarded the vehicle of PW1 “TAXI” to a dictated destination. They made PW1 navigate roads leading to where

they consider ideal to lunch their attack and collected his car from him. Not only the car was recovered from the Appellant and his brother, the techno telephone of PW1 was also found on them.

For the foregoing and the more elaborate reasoning advanced in the lead judgment, I am in complete agreement with my learned brother that the complaint of the Appellant in this appeal is untenable and is devoid of any scintilla of merit. Therefore I adopt the more detailed reasons contained in the lead judgment as mine in coming to the conclusion that the appeal lacks merit and should be dismissed. I also dismiss the appeal and abide by the orders made therein.

Appearances:

ABDU FATAI OYEDELE, ESQ, with him, A. ADEFUNNALAYO, ESQ. For Appellant(s)

DONATUS FRIDAY ABAH, ESQ. For Respondent(s)