JOSEPH EDET EKPO v. THE STATE (2008)

JOSEPH EDET EKPO v. THE STATE

(2008)LCN/3067(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2008

CA/C/113/2007

RATIO

EVIDENCE: THE APPROPRIATE STAGE TO RAISE AN OBJECTION TO A CONFESSIONAL STATEMENT

It is a settled law that the appropriate stage to raise an objection to a confessional statement is when it is about to be tendered in evidence especially where the accused person is represented by Counsel and it is assumed that he ought to know what to do at each stage of the proceeding. It is also, trite, that any belated denial of the voluntariness of a confessional statement or its retraction is a mere after-thought. Once a confessional statement is admitted in evidence, it becomes part of the case for the prosecution which the Court is bound to consider for its probative value. It must also admit the essential elements of the offence. It should be such that when tested against proven facts it will show that the Appellant committed the offence. Also once admitted, the prosecution needs not prove the case against the accused person beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the accused. A conviction can be sustained on a free and voluntary confession of an accused notwithstanding that he retracted the confession. See Akpan VS. State (2001) 15 NWLR Part 737 p. 745. Odua vs. Federal Republic of Nig. (2002) 5 NWLR Part 761 p. 615, Nwachukwu vs. State (2004) 17 NWLR Part 902 p. 262, Okaroh VS. State (1988) 3 NWLR Part 81 p. 241. Nwachukwu vs. State (2002) 12 NWLR Part 782 p. 543 per Iguh J.S.C. at 572 para C-H, Solola vs. State (2005) 2 NWLR Part 937 p. 460 per Edozie J.S.C. and Tobi J.S.C., Agbi VS. Ogbe (2005) 8 NWLR Part 926 p. 40 and Madjemu vs. State (2001) 9 NWLR Part 718 p. 349. Per THERESA N. ORJI-ABADUA, J.C.A.

Before Their Lordships

NWALI SYLVESTER NGWUTAJustice of The Court of Appeal of Nigeria

JEAN OMOKRIJustice of The Court of Appeal of Nigeria

THERESA N. ORJI-ABADUAJustice of The Court of Appeal of Nigeria

Between

JOSEPH EDET EKPOAppellant(s)

AND

THE STATERespondent(s)

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): Two people (appellant not included) were arraigned before the Special Tribunal constituted pursuant to the provision of Robbery and Firearms (Special Provisions) Decree NO.5 of 1984 as amended sitting at Ikot Ekpene, Akwa Ibom State. They were charged with armed robbery contrary to Section 1(2)(a) of the Robbery and Firearm (Special Provisions) Decree NO.5 of 1984. The particulars of the one Court charge reads “Etim Edet Oboho and Effiong Etim Sunday on or about the 17th day of June, 1993 at Oron in Oron Judicial Division while armed with dangerous weapons to wit matchet and penknife robbed Okafor Ndukwe Anya and Uche Emole Uba of the sum of N220,284.00 (Two Hundred and Twenty Thousand, Two Hundred and Eighty-Four Naira) property of one Sunday Ikema.” See page 1 of the records.
The record shows that on 20/6/94 the Clerk of Court read and explained the charge to the accused persons and each pleaded not guilty thereto. The case was adjourned to 21/6/94 for trial.
On 21/6/94 the Tribunal was informed that three other accused persons in the alleged armed robbery were being tried at the Oron Magistrate’s Court. The Tribunal adjourned to 28/6/94 for trial and ordered that the rest of the accused persons as well as all relevant exhibits be brought before it on the adjourned date. On 28/6/94 six accused persons, including the appellant who appeared as the 3rd accused were brought before the Tribunal. Even though the charge before the Tribunal on 28/6/94 contained the names of 6 accused persons learned Counsel for the prosecution was granted leave to amend the charge to include the 3rd, 4th, 5th and 6th accused persons. It was adjourned to 6/7/94 for plea and trial if possible at the instance of the prosecuting Counsel who sought adjournment to “enable him determine whether or not to proceed against the accused persons on the charge as amended.” On 6/7/94 Mr. Ekong for the prosecution applied under Section 163 of the Criminal Procedure Law to amend the charge by way of substitution. The reasons which the Tribunal said the prosecuting Counsel gave for the amendment were excluded from the records. The Tribunal granted the application. thus:
“Application to amend the charge by substituting a new charge granted and accordingly the charge filed on 13/5/94 is hereby substituted with the new charge filed on 13/5/94 is hereby struck out.” (See page 5 of the records). As the records indicated the new charge was read and explained to the accused persons. Each of the six accused persons pleaded not guilty to each of the two counts of the charge. The Tribunal “adjourned sine die for trial at the next session of the Tribunal.” When the matter was called up on 10/8/94 it was adjourned to 17/8/94 for trial. On 19/11/96 the prosecuting Counsel informed the Tribunal that the 1st, 2nd and 4th accused persons were dead and asked that the surviving accused person take a fresh plea. The Tribunal struck out the names of the 1st, 2nd and 4th accused and the charge was read to the 3rd, 5th and 6th accused each of whom pleaded not guilty to each of the two counts of the charge.
Having read the records of proceedings I have set out the above details in view of issues which will arise in the determination of the appeal. The issues appear to have eluded the Tribunal as well as learned Counsel for the parties even though they have a decisive effect on the appeal. Trial opened on 19/11/96. The State called 4 witnesses and closed its case on 24/6/98. The defence opened its case on 17/5/99. The first accused (now appellant) testified in his defence and called one other witness, his wife, Glory Edet Ekpo, and rested his case on 17/5/99.
At the conclusion of the 3rd accused person’s evidence-in-chief (he was not cross-examined) learned Counsel who appeared for the three accused persons including the 1st accused, now appellant Mr. Uwah, irrespective of the fact that this is a death penalty case, informed the Tribunal in a manner bordering on non-chalance, that “he has no address to offer.” See page 26 of the records. Following this Miss Ekanem prosecuting said that she had nothing to offer by way of reply. The case was adjourned to 26/5/99 for judgment.
In the judgment delivered on schedule the Tribunal concluded as follows:
“On the basis of the evidence adduced by the prosecution in this case, which evidence is largely unchallenged, coupled with the confession (sic) made by the accused persons as contained in Exhibits 4, 7 and 9, I find that the prosecution has proved its case beyond all reasonable doubt and so I find each of the accused persons guilty as charged.”
The Tribunal then sentenced each of the accused including the appellant, to death “in a manner to be determined by the Military Administrator of Akwa Ibom State”. See page 35 of the records.
Dissatisfied with the judgment the appellant, in a notice of appeal dated 26th day of July, 2006 but filed on 18/6/07 by leave of this Court appealed on three grounds from which three issues were distilled for determination in the appellant’s brief of argument. The issues are:
“3.1 Whether the Robbery and Firearms Tribunal was right in convicting and sentencing the appellant to death for the offence of Armed Robbery solely on the alleged confessional statement of the appellant without testing the veracity of the confessional statement.
3.2 Whether the prosecution had proved its case beyond reasonable doubt having regard to the material contradiction in the evidence of the prosecution in witnesses in respect of the identity of the appellant.
3.3 Whether there was proof before the Honourable Tribunal that the incident of 17/6/93 was an armed robbery incident.”
Learned Counsel for the Respondent in the Respondent’s brief of argument deemed filed on 28/4/08 by leave of Court, adopted though not expressly, the three issues formulated by the appellant.
Arguing issue 1 in his brief learned Counsel for the appellant quoted copiously from the proceedings of the Tribunal and defined a confession under Section 27 of the Evidence Act Cap. E14 Laws of the Federation of Nigeria, 2004. Relying on YUSUFU V. THE STATE (1976) 6 SC 167 learned Counsel conceded that a confessional statement alone can found a conviction if the Court is satisfied of the truth of the confession. As a matter of practice, argued Counsel, the Court must be satisfied that the confessional statement passes the test enumerated in SHADEV. THE STATE (2005) 1 NWLR (PT. 907) 218 AT 240 PARAGRAPHSH, A-C; IKPO V. THE STATE (1995) 9 NWLR (PT. 421) 540.
He contended that there is nothing outside the alleged confessional statement to show that it is true. He said the tribunal erred by relying in its judgment as uncorroborated confessional statement, the veracity of which was in doubt. He relied on EKUREV. THE STATE (1999) 5 NWLR (pt. 635) 456 AT 458 RATIO4 and NWACHUKWUV. THE STATE (2002) 2 NWLR (PT. 751) 366. Counsel argued that the Tribunal should have considered that the appellant denied the commission of the offence or signing the alleged confession in assessing the probative value of the confession. He relied on EGBOGHONOMEV. THE STATE (1993) 7 N\VLR (PT. 306) 383 AT 434 P. 703 PARAGRAPHS F-G. He argued that the tribunal ignored the fact that the appellant thumb-printed the statement he made to the Police but the alleged confession Exhibit 4 was signed. He argued that the Tribunal erred by not considering the alleged confession along with other evidence before it. He referred to HASSAN V. THE STATE (2001) 15 NWLR (PT. 735) 184; OCHE V. THE STATE (2007) 5 NWLR (PT. 1027) 231 PARAGRAPHS E-G. He argued that the confessional statement which was not read to the appellant at the trial should not have been the basis of his conviction. He urged the Court to discountenance the alleged confession and discharge and acquit the appellant.
On issue 2 Counsel referred to the evidence of Pw2 who said he did not identify any of the three accused persons at the identification parade, nor did he describe any of them in his statement to the Police. He relied on ARCHIBONG v. THE STATE (2004) 1 NWLR (PT 855) 494; NDIDI v. THE STATE (2007) 13 NWLR (PT. 1052) 633 AT 631 PARAGRAPHS E-H and argued that the appellant should have been acquitted as he was not identified by the witnesses, and appellant was not arrested at the scene of crime. He referred to the contradictions in the evidence of Pw1 and Pw2. He noted that Pw1 said he did not identify the accused to the Police and later claimed to have identified the same accused persons, including the appellant, to the Police. He said the Pw2 said he was able to identify the accused at the identification parade but later said that the two people he identified were not among the accused persons in the dock. Relying on CYRIL OPARA v. THE STATE (2006) 9 NWLR (PT. 986) 508, ONUCHUKWU & ORS. v. THE STATE (1998) 4 NWLR (PT. 547) 576 AT 590; STATE v. AJIE (2001) 11 NWLR (PT. 678) 434 AT 449, EDOHO v. THE STATE (2004) 5 NWLR (PT. 865) 17 AT 51; OLALEKAN v. THE STATE (2001) 18 NWLR (PT. 746) 493 AT 717; IKEMSON & ORS. v. THE STATE (1989) 3 NWLR (PT. 110) 455 AT 459 he contended that the Tribunal erred in convicting the appellant on the contradictory evidence of the Pw1 and Pw2. He urged the Court to allow the appeal on ground one in the notice of Appeal.
Issue three is whether or not the incident of 17/6/93 was armed robbery. Counsel referred to TAJUDEEN ALABI v. THE STATE (1993) 7 NWLR (PT. 307) 511, OKEKE v. THE STATE (1975) 4 NWLR (PT. 392) 676 for the constituent elements of armed robbery. Counsel reviewed the evidence led by the prosecution and concluded therefrom that the elements of armed robbery were not proved. He urged the Court to allow the appeal and set aside the judgment of the tribunal.
In issue one in his brief learned Counsel for the Respondent argued that the Tribunal considered the statement of the appellant, tested same before relying on it in its judgment, adding that the confession was verified before a superior Police Officer. He relied on OGUNGE V. STATE (1999) 5 NWLR (PT. 604) 548. Also he relied on ALARAPE V. STATE (2001) 5 NWLR (PT. 705) 7 which he said the Tribunal followed in determining the guilt of the appellant. On the authority of ALOR V. STATE (1997) 49 LRCN 942 he contended it does not matter that the appellant, a member of armed robbery gang, was not armed himself. He urged the Court to dismiss the appeal on ground 2 from which the issue was formulated.
In issue two learned Counsel impugned the argument that there were contradictions in the evidence of identity of the appellant. He referred to the evidence of Pw2 who said he identified the appellant by the aid of electric light. As if this was relevant to the identification of the appellant learned Counsel submitted that “the accused persons identified by Pw2 during the identification parade were not the ones in the dock because they were among those that died … ” He argued that the fact that the Pw2 said he did not identify the appellant at the identification parade is no contradiction, bearing in mind that the Pw2 said he identified the appellant at the scene of the incident. He said that the Pw1 gave positive and credible evidence as to the identity of the appellant who attacked the Pw1 and Pw2 on 17/6/93. He urged the Court to resolve the issue in favour of the Respondent.
In issue three learned Counsel contended that there was a robbery, that the incident was armed robbery and that the appellant was the robber. He relied on the evidence of Pw1, PW2 and Pw3 to the effect that the Pw1 had a wound on his face and the wound was inflicted during the robbery. He relied on BARARE v. THE STATE (1987) 1 NWLR (PT. 52) 579 and MILLER v. MINISTER OF PENSIONER (sic) (1947) 2 All ER 373 in his argument that the case against the appellant was proved beyond reasonable doubt, adding that if indeed there are doubts “they are financial and imaginary ones which the respondents, do not have to contend with the appellant.” He urged the Court to dismiss the appeal.
There is need to point out that errors abound in the respondent’s brief. Further the issues and argument in the brief are mixed up.
I will assume that there was a valid trial leading to the judgment giving rise to this appeal, just for the moment.
In issue one the alleged confessional statement which formed the major plank upon which the appellant was convicted and sentenced to death Exhibit 4 is on page 39 of the records. It is dated 4/11/93 below the name of the appellant “Joe Edet Ekpo.” Appellant said he thumb-impressed the statement he made to the Police at Oron That would be the statement dated 21/10/93. There is also the one dated 2/11/93. Each of the three Statements had the name of the appellant written as “Joe Edet Ekpo” above the date of its making. There is indication that each of the statements made on 2/11/93 and 4/11/93 was recorded, and signed by Mbuk Edet. The one of 21/1 0/93 was recorded and signed by a Police Inspector. Though the name of the appellant was written under the cautionary words and at the end of each statement there is no evidence that he thumb-imprinted or signed any of the statements, even though he claimed he thumb-imprinted the statement he made at Oron In addition to the above observation it was submitted for the appellant that the truth of the confessional statement ought to have been tested in the light of all the circumstances of the case. I think the point is well taken. Pw2 said he could identify the appellant by the light of a vehicle and electric power on at the time and place of the incident. But he admitted he did not identify the appellant to the Police at the identification parade. It was not suggested that the appellant was not in the line at the parade. If the Pw2 saw and identified the appellant at the scene of the alleged crime through car head lamps and electric power supply he should have identified him at the parade. The alleged identification of the appellant at the scene was not to any third party or the Police. The Police was not at the scene and there is no evidence that the appellant evaded arrest at the scene.
Appellant said he was arrested in his house on the night of 17/6/93 in the presence of his family. This was confirmed by Pw2, his wife. Who then directed the Police to the appellant since the Pw2 could not identify the appellant at the identification parade. Pw4 on page 16 of the records said “on 29/10/93 I was on duty at the S.I.I.B. Office, Uyo when a transferred case file of suspected robbery at Oron was given to me and Corporal Matthew Uzo for investigations.” This is more than four months from the date of the alleged robbery – 17/6/93. Why was the officer who arrested the appellant on 17/6/93 and handled the investigation before it was transferred not called to testify? There is a break in the chain of events as the witnesses had not identified the appellant to the Police either at the identification parade or elsewhere. On this point alone the presumption in Section 149(d) of the Evidence Act 2004 should have been invoked to the advantage of the appellant. It was not the case of the Respondent that the evidence of the arrest of the appellant and Police investigation at Oron did not exist. The sums of money given as the proceeds of the robbery in Exhibit 4 differ from the sum of money allegedly snatched from the Pw1 and Pw2.
Another issue the tribunal should have considered is the evidence of the appellant as Dw1 and his wife as Dw2. See page 23 for the evidence-in-chief of the appellant. He was not cross-examined and so his testimony denying the charge was not challenged and so deemed accepted by the prosecution.
It is not disputed that an accused person can be convicted solely on his confessional statement as was decided by the Supreme Court in IKEMON V. STATE (1989) 1 CLRN 1 AT P. 22 PARAGRAPH C and SAIDU V. STATE (1982) 4 SC 41. However it was decided in the case (Ikemson’s case) (supra) that it is desirable to have outside a confession, some evidence of circumstances which make it probable that the confession was true. In this case the circumstances do not point to the probability of the confession being true but rather create a serious doubt not only as to the truth, but also of the fact of the making, of the alleged confession. I resolve the issue in favour of the appellant. Issue 2 revolves on the evidence of Pw1 and Pw2 who testified as eyewitnesses. Pw1 was recorded as saying that he could not identify the accused persons to the Police in one breath and in another breath he claimed to have identified the accused persons to the Police. Only the Policeman who arrested the appellant could have cleared the doubt created by the Pw1 but he was not called and no reason was given for failure to call him. Pw2 said he was able to identify the accused (meaning the appellant and his co-accused) to the Police at the identification parade. He later changed to say that the two people he identified during the parade were “not among the accused persons standing here.” There is a serious doubt as to whether anyone actually identified the appellant at the scene or during the identification parade. The arresting Police Officer who could have cleared the doubt one way or the other was not called. I resolve the issue in favour of the appellant.
In issue 3 it is not the case of the appellant that the incident of 17/6/93 did not take place. The question is, was it a robbery? If the answer is in the positive was it armed robbery? Section 15(1) of the Robbery and Firearms (Special Provisions) Act 1984 defines robbery as “stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.”
See also BALOGUN v. A-G OGUN STATE(2001) 14 NWLR (PT. 733) 336. Pw1 said one of the accused persons threatened to kill him if he did not release his bag. He said that on seeing the matehet brought out by the 5th accused he released his bag to the accused persons. Pw2 said one of the accused persons held a matchet and another one held a pen knife and that one of the accused used the matchet on Uche Emole, Pw1. The above evidence of the Pw1 and Pw2 was not challenged as the defence was not that the incident did not take place as described but that the accused persons were not the perpetrators.
The evidence remains unchallenged and based on same I accept that the incident of 17/6/93 at Oron was not only a robbery but armed robbery. I resolve the issue in favour of the respondent. However, in view of my conclusions on issues 1 and 2, this is a Pyhrric victory for the Respondent. I allow the appeal, set aside the judgment of the Tribunal and discharge and acquit the appellant.
However, I determined the appeal on the merit just in case I erred in what follows below. The question of whether or not the appellant was in fact tried on a charge before the Tribunal was not raised in the appeal, but the settled record speaks for itself.
The only charge contained in the record is Charge No. RFT/1/94, a one Court Charge of armed robbery against Etim Edet Oboho and Effiong Etim Sunday. The Charge allegedly amended on 28/6/894 to include the 3rd accused (i.e. appellant, 4th, 5th and 6th accused persons) is not in the records of the tribunal.
On 6/7/94 the Tribunal granted an order to substitute the charge allegedly filed on 13/5/94 with a new charge filed on 5/7/94. The only charge in the file was not dated and appellant was not involved. Also the charge from which three of the accused were deleted as dead, leaving only the appellant as 1st accused and two others is not in the records. The charge upon which the appellant and two others were arraigned to which they pleaded, on which they were tried, convicted and sentenced to death was not in the records. The records contained on various pages Charge No. RFT/1/94 The State v. Etim Edet Oboho & 5 Ors including the appellant as 3rd accused but there is no record that the Tribunal was informed of the Charge by the Attorney-General on behalf of the State or that the statement of the offence and particulars thereof were disclosed at any point in the proceedings in the Tribunal. The information containing the charge or charges is the basis of the entire proceedings, and should have been included in the settled records. It cannot be stated with certainty that the appellant was tried on any charge as the record does not disclose any information, any charge or statement of offence and particulars thereof against him.
In the circumstances the proceedings leading to and including the judgment, conviction and sentence of death passed on the appellant are a nullity. Further, the appeal against the said judgment is incompetent and is hereby struck out.
In summary the records do not disclose the information containing the charge, the statement and particulars of the charge. The proceedings are void, and are hereby set aside and appellant discharged. In the circumstances I order that the appellant should not be arrested and or tried on the same facts.
In the alternative I allow the appeal and set aside the judgment, conviction and sentence of death passed on the Appellant. In either case it is hereby ordered that the appellant, Joseph Edet Ekpo, be released from death-row and prison custody forthwith.

JEAN OMOKRI, J.C.A.: I agree.

THERESA N. ORJI-ABADUA, J.C.A.: I was opportune to have read in advance the leading judgment, just delivered by my learned brother, Nwali Sylvester Ngwuta, J.C.A, but, deeply regret that after a thorough scrutiny of the facts of the case as found by the trial Special Tribunal, I found my self, if I may say, with the greatest respect, unable to subscribe to the conclusion herein reached in respect of issues one and two propounded by the Appellant in this appeal.
However, in respect of the third issue put forward by the Appellant, that is to say, “whether there was proof before the Honourable Tribunal that the incident of 17/6/93 was an armed robbery incident”, I agree with my learned brother’s unwavering observation that the evidence of P.W.1 and P.W.2 on the fact of the accused persons, being in possession of machete, daggers and pen knife at the time of the robbery as such, was not challenged and remains unchallenged. And, that being the case, “the incident of 17/6/93 at Oran was not only a robbery, but, armed robbery.
The brief facts of the case are that on 6/7/94 the Appellant, Joseph Edet Ekpo who was originally the 3rd Accused, but, at the trial, the 1st Accused, and, five other accused persons, namely; (1) Etim Edet Oboho, (2) Effiong Etim Sunday, (4) Etim Asuquo Enubiak (5) Edet Asuquo Bassey and (6) Okon Dan Osung pleaded not guilty to the two count charge preferred against them at the Robbery and Firearms Special Tribunal sitting at Uyo, Akwa Ibom State. The prosecution called a total of four witnesses at the trial. The Appellant testified in his own defence and also called his wife as D.W. 2. The other accused persons testified as D.W. 3 and D.W. 5. The father of D.W.3 testified as D.W. 4.
The crux of the case was that on 17/6/93 when P.W.1 and P.W.2 were returning from Aba and on reaching Oron in Oron Judicial Division they were attacked by robbers who they claimed were armed. The questions now are, whether the Appellant was one of the perpetrators of the crime? And whether he was properly identified?
It must be borne in mind that an identification evidence is one tending to show that the person charged with an offence is the same person who committed the offence. In finding that an accused is properly identified by a witness there must be evidence before the Court showing what opportunity the witness had to identify the accused as the perpetrator of the alleged offence.
See Olalekan vs. State (2001) 18 NWLR Part 746 p. 793. Identification of an accused person may take forms such as; (a) visual identification (b) voice identification and (c) identification. It should be noted that an identification parade is only necessary where; (1) the victim did not know the accused before and his first acquaintance with him was during the commission of the offence, (2) the victim or witness was confronted by the offender for a very short time, and (3) the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.
However, it is important to recognize that it is not in all criminal cases, an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the date of the incident, a formal identification may be unnecessary. And, where an accused person by his confession has identified himself, there would be no need for any further identification parade. See Ikemson vs. State (1989) 3 NWLR Part 110 p. 455 and Archibong vs. State (2004) 1 NWLR Part 855 p. 488.
The Appellant, in his confessional statements to the Police, i.e. Exhibits, 3, 4 and 5, abundantly, linked himself to the commission of the crime and properly identified himself in the said Exhibits, particularly, Exhibit 4. The Appellant sufficiently explained the role he played during the robbery.
Exhibit 4 reads:
“I Joseph Edet Ekpo having been duly cautioned in English Language that I am not obliged to say any thing unless I wish to do so. But what ever I say shall be taken down in writing and may be given in evidence voluntarily elect to say as follows:
Joe Edet Ekpo
14/11/93
In addition to the statement I made before in respect of this case, that I participated in stealing the money from Ibo men some time in June, 1993. The point we stood to rob the money was Mount Zion by Oron Road Oron, I was not with any weapon. None of us was armed. We pounced on the occupants of the vehicle search and collected one bag that contained the money. The amount that was contained in the bag was N150, 000.00. We shared the money in house of the man who gives us the information. I know him as the man who asked us to go and stole the money. I do not know his name but if seen I can identify him. After the operation the money was shared in his house. I got N12, 000, Edet Asuquo Bassey got N12, 000, Okon Dan Osung got N12, 000 and Etim Enubiak N12, 000. I used my share to by a motorcycle. My brother who is Mfon Edet bought and registered the motor cycle for me. He is at Utang Brama selling articles. The motor cycle is at Mbo with somebody I do not know. Only my brother that knows the man.”
Joe Edet Ekpo
4/11/93
Statement recorded by me Sgt. Mbuk Edet
4/11/93
“Today 25/11/93, I Supt Raymond C.
Anyanwu A.S.P. 2 Plc Anti robbery section S.I.I. B Uyo read out the confessional statement made by Joseph Edet Ekpo an armed robbery suspect to him and he agreed to have made it before me and later signed after my signature as the true maker of this statement. ”
Apart from the confessional statement of the Appellant identifying himself therein, there were other corroborative evidence.
It is’ pertinent to note that both P.W. 1 and P.W.2, in their statements to the Police stated that they can identify the robbers if they see them. See pages 36 and 37 of the Record of Appeal. At the trial, P.W.1 told the Court that after the 5th Accused showed him a machete and he was, also, given a machete cut and robbed of the money on him, the 3rd and 6th Accused went to the front of the car and held his brother, Okafor Ndukwe, i.e., P.W.2 and robbed him of his money too. He said under cross-examination, that there was electric light at the scene of the crime and, he was able to identify the accused persons by the aid of the electric light. According to him, the 6th Accused wore a sky blue shirt and a trouser, the colour of which he was unable to recollect. He, further, said that he identified the 5th Accused to the police but did not identify the 3rd Accused, the Appellant, to them.
It is instructive to note that there was no suggestion made to the P.W.1 showing that any identification parade was conducted by the police parading the Appellant and his co-accused, but, the failed to identify the 3rd Accused. Furthermore, no question was put to P.W.1 to prove that it was not the 3rd and 6th Accused persons he saw that robbed P.W.2. P.W.1 was not challenged on those.
Also, P.W.2, in his evidence before the Court emphatically stated that, it was the day the police was taking them to Court that, he, identified the remaining three accused persons standing trial at the Court, of which, the Appellant was inclusive. Again, no question was put to P.W.2 by the defence suggestive of the fact that the 3rd Accused was amongst those paraded during the identification parade held at the police station but he, P.W.2 failed to identify him.
It is interesting to note that the fact that P.W.2 did not describe the Appellant and his co-accused in his statements to the police on 17/6/93, 18/6/93 and 4/11/93 did not mean that he did not identify the Appellant and the rest accused to the police on the day they were being taken to Court. P.W.2 was not cross-examined on this aspect and the stage of his identification of the Appellant and the rest. That fact therefore remains uncontradicted and unchallenged, and, was therefore deemed admitted. See Njokwuemeni vs. Ochei (2004) 15 NWLR Part 895 p. 196 where it was held that where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of the matter as led in evidence. Failure to examine a witness upon a particular matter is a tacit acceptance of the truth of the evidence of the witness. It is, also, a well established law that an accused can be convicted on his confessional statement which is considered with other ascertained facts which had been proved. See Olalekan vs. State (2001) 18 NWLR Part 746 p. 793.
It is interesting to note that when Exhibits 3, 4, and 5, the said confessional statements of the Appellant, wherein the Appellant linked himself to the commission of the crime, and properly identified himself, were being tendered, neither the Appellant nor his Counsel raised any objection to their admissibility. They were all received in evidence without any iota of objection. It is also clear that the question of the Appellant being an illiterate and having thumb-printed on the said confessional statements were never, in the least, raised during the admissibility of Exhibits 3, 4, and 5. The Appellant and his Counsel allowed the said confessional statements to be admitted without objection. It was later, during the Appellant’s evidence in Chief, they remembered that he thumb-printed and did not append any signature on the documents.
The question is; why did the Appellant or his Counsel not raise the alarm at the earliest possible time when the documents were shown to his Counsel for their admissibility in evidence?
It is a settled law that the appropriate stage to raise an objection to a confessional statement is when it is about to be tendered in evidence especially where the accused person is represented by Counsel and it is assumed that he ought to know what to do at each stage of the proceeding. It is also, trite, that any belated denial of the voluntariness of a confessional statement or its retraction is a mere after-thought. Once a confessional statement is admitted in evidence, it becomes part of the case for the prosecution which the Court is bound to consider for its probative value. It must also admit the essential elements of the offence. It should be such that when tested against proven facts it will show that the Appellant committed the offence. Also once admitted, the prosecution needs not prove the case against the accused person beyond reasonable doubt as the confessional statement ends the need to prove the guilt of the accused. A conviction can be sustained on a free and voluntary confession of an accused notwithstanding that he retracted the confession. See Akpan VS. State (2001) 15 NWLR Part 737 p. 745. Odua vs. Federal Republic of Nig. (2002) 5 NWLR Part 761 p. 615, Nwachukwu vs. State (2004) 17 NWLR Part 902 p. 262, Okaroh VS. State (1988) 3 NWLR Part 81 p. 241. Nwachukwu vs. State (2002) 12 NWLR Part 782 p. 543 per Iguh J.S.C. at 572 para C-H, Solola vs. State (2005) 2 NWLR Part 937 p. 460 per Edozie J.S.C. and Tobi J.S.C., Agbi VS. Ogbe (2005) 8 NWLR Part 926 p. 40 and Madjemu vs. State (2001) 9 NWLR Part 718 p. 349.
It appears from the record, that the issue of the Appellant sleeping in his house with his wife and children on 17/6/93 when the policemen came and arrested him, arose for the first time during the Appellant’s evidence in defence. D.W. 2, the Appellant’s wife said, it was at midnight of 17/6/93 when she was sleeping with her husband that the police came and arrested him.
However, what the Appellant and his wife, D. W. 2, failed to explain to the trial Special Tribunal was, “where the Appellant was at about 9.p.m of 17/6/93 when the robbery incident was said to have taken place”. It is clear in Exhibit 6, the statement of the 2nd Accused (originally, the 5th Accused) to the police that he was the one who led the police to the house of the present Appellant for his arrest. The 3rd accused in his statement dated 28/10/93, Exhibit 10, stated that it was the 2nd Accused who led the police to his house to arrest him. The 2nd Accused also confessed in his statement to the police dated 2/11/93, i.e., Exhibit 6, which was admitted without objection, that he was the one who went to Oron Police Station and reported the matter.
This settled the question raised by my learned brother In the leading judgment as to “who directed the police to the Appellant?
I must, however, mention that the inconsistency rule only applies to the inconsistent statement or evidence of prosecution witnesses and has no application to the extra-judicial confessional statement of an accused person. The consequence is, where an accused makes an extra-judicial statement admitting the commission of the offence with which he is charged, the statement will still be considered or taken into account in the determination of his guilt notwithstanding that he had resiled from that evidence in his testimony at the trial by giving evidence contradictory to the statement. See Egboghonome vs. State (1993) 7 NWLR Part 306 p. 383 and Akpan vs. State (2001) 15 NWLR p. 737 p. 745. In Hassan vs. State (2001) 6 NWLR Part 709 p. 286, it was held’ that the rule did not apply to the confessional statement of the appellant and his attempt to raise it in his attack against Exhibits 1 and 11 was a misconception. See also p. 302 per Adamu J.C.A. in Hassan vs. State (supra). So, the fact that the Appellant in the present case, who never objected to the admissibility of his confessional statement or raised the fact of him having thumb-printed on the alleged confessional statement, claimed in his defence that he thumb-printed on the one he dictated to the police, can never twist the law. The evidence was an afterthought and his mere denial or retraction of the same never rendered the statement inadmissible or inapt.
I therefore, with deep respect, do not share the views expressed by my learned brother that there is a serious doubt as to whether anyone actually identified the appellant at the scene or during the identification parade. The evidence of P.W.1 and P.W.2 is quite corroborative of the confessional statements of the Appellant wherein the Appellant identified himself as one of the robbers even though he claimed they were not armed. It may, also, be necessary to mention as I earlier observed, that the evidence of P.W.1, in particular, that their attackers were armed with machetes, daggers and penknife, that it was the 5th Accused who showed him a machete and another accused (presumably deceased) gave him a machete cut on his chin was not challenged at all. That piece of evidence was therefore deemed admitted.
It is trite law that when a trial Court has performed its primary duty of assessing and evaluating the evidence before it and has made findings of fact which the evidence justifies, an Appeal Court is not entitled to make contrary findings, particularly, when such findings depend largely on the credibility accorded to the witnesses by the trial Court. It is normally within the province of the trial Court, which has the advantage of hearing and watching witnesses testify to assess their credibility.
It is, therefore, my view that the trial Tribunal duly considered all the evidence before finding the Appellant guilty as charged or convicting him.
It is for the above reasons that I find myself, with greatest humility, unable to subscribe to the leading judgment of my learned brother just delivered. If the decision in this appeal were to rest with me, I can see no option open to me than to dismiss the same. Consequently, this appeal fails and the same is hereby dismissed by me. The conviction and death sentence passed on the Appellant by the trial Special Tribunal are hereby affirmed.