BRIGHT CHIBUIKE & ANOR V. THE STATE (2010)

BRIGHT CHIBUIKE & ANOR V. THE STATE

(2010)LCN/3903(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 29th day of June, 2010

CA/K/259/C/07

RATIO

NATURE OF A CONFESSIONAL STATEMENT; CIRCUMSTANCES UNDER WHICH A CONFESSION WILL BE RELEVANT AND ADMISSIBLE IN A CRIMINAL TRIAL

So a confession is a statement oral or written by a person accused of the commission of a criminal offence at the time it was made, agreeing or admitting that he had committed the offence with which he was accused. Such a confession may be used at the trial of such a person for the offence with which he was accused in the discharge of the burden of proof placed by law on the state which usually charges persons accused of the commission of criminal offences. However, for a confession to be relevant for admission at the trial of the maker, the law required that it must be voluntary. In this regard, section 27(2) of the evidence Act provided thus:- 27(2) A confessions, if voluntary, are to be relevant facts as against the persons who make them only. The purport of the above provisions has been held to be that for a confession to be relevant and therefore admissible in a criminal trial, it must have been made freely and voluntarily by the maker without any let or hinderance or undue influence of whatever nature by or from persons in authority over the case against him. See OGBODU .Vs. THE STATE, (Supra) OSAKWE .V. ATT-GENERAL OF BENDEL STATE, (1991) NWLR (107) 315. PER MOHAMMED LAWAL GARBA, J.C.A

POSITION OF THE LAW WHERE THE VOLUNTARINESS OF A CONFESSION IS RAISED OR CHALLENGED BY AN ACCUSED PERSON; INSTANCES WHERE A CONFESSION MADE BY AN ACCUSED PERSON IS IRRELEVANT IN A CRIMINAL PROCEEDING

Another established principle of the law of evidence on confession is that once its voluntaries is raised or challenged by an accused person, the prosecution bears the burden of proving that it was voluntarily made before it can be admitted in evidence. NWANGBOMU .V. THE STATE (1994) 2 SCNJ 107, OJEGELE .V. THE STATE (Supra). This principle of law derived from the provisions of section 28 of the Evidence Act which makes the following provisions.
28. A confession made by an accused person is irrelevant in a criminal Proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage of avoid any evil of a temporal nature. By these provisions a confession is irrelevant in formal proceedings if it appears to the Court that in making it the accused person was induced, threatened or promised any advantage or evidence of any evil in relation to the charge against him by a person in authority over the case. Once the Court is of the opinion that a confession is not free and voluntary it becomes irrelevant in the trial of the matter by virtue of the above provisions and therefore inadmissible in evidence. PER MOHAMMED LAWAL GARBA, J.C.A

POSITION OF THE LAW WHERE AN ACCUSED PERSON CHALLENGES AN EXTRAJUDICIAL STATEMENTS MADE TO POLICE OFFICERS IN THE COURSE OF INVESTIGATING THE OFFENCE WITH WHICH THEY ARE ACCUSED

Generally, accused persons usually challenge their extrajudicial statements made to police officers in the course of investigating the offence with which they are accused in one (1) of two (2) ways thus:- (a) That they never made the statement at all in which case it is a matter of fact to be resolved by the evidence before the court (b) That they made or signed the statement but not voluntarily. The position of the law is that in (a) above, the mere denial by an accused person of having made a statement confessing to the commission of the crime he is accused of or charge with is an issue or question of fact to be decided by the trial Court. It does not make the statement inadmissible in evidence but it must be considered along with the other evidence, adduced as well as the circumstances of the case for the purpose of attaching or ascribing probative weight, or value to it in the determination of the guilt or otherwise of the accused person. The confessional statement in the circumstance is relevant and admissible under section 27 (2) of the Evidence Act. See SHANDE .V. THE STATE (2005) ALL FWLR (279) 1342, SOLALA .V. THE STATE (supra), IKPASA .V. A.G. BENDEL STATE (supra) ITULE .V. THE STATE (1961) 1 ALL NLR, 462. As regard the situation in (b) above of denial that the statement was made voluntarily for any of the reasons set out in section 28, the law as stated earlier requires that a trial Court should first decide whether the statement was voluntary in what has now become known as trial within trial. It is only when it was found to have been made voluntarily that it becomes admissible. See KAZEEM .V. THE STATE (supra) OKEKE .V. THE STATE (supra), MOMODU .V. THE STATE (2008) 28 WRN 24, UGURU .V. THE STATE (2002) 4 SCNJ 282, GBADAMOSI V. THE STATE (1992) 19 NWLR (266) 465. PER MOHAMMED LAWAL GARBA, J.C.A

WHEN IS A CONFESSION SUFFICIENT TO GROUND THE CONVICTION OF THE MAKER FOR THE OFFENCE OR CRIME WHICH WAS ADMITTED IN THE CONFESSION

CONDITION THAT MUST BE SATISFIED WITH FOR A CONFESSIONAL STATEMENT TO SUPPORT OR SUSTAIN A CONVICTION

JUSTICES:

BABA ALKALI BA’ABA Justice of The Court of Appeal of Nigeria

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria

Between

1. BRIGHT CHIBUIKE
2. CHUKWUKA OGUDO – Appellant(s)

AND

THE STATE – Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment): The Appellants were arraigned before the High Court of Kaduna State on a two (2) counts charge of criminal conspiracy under section 97 of the Penal Code and armed robbery punishable under section 1(a), (b) of the Robbery and Firearms (special provisions) Act, Cap 398, Laws of the Federation of Nigeria, 1990.
After their plead were taken by that court, the case against them proceeded to trial during which the state presented two (2) witnesses to prove the offences charged. At the close of the prosecution evidence, a no case submission was made for the Appellants which was over ruled and so each of the Appellants testified in defence of the charges against him.
Eventually after taking final addresses from the learned counsel for the Appellants and the Respondent, the High Court in the judgment delivered on the 5/8/2005, found the Appellants guilty of the two (2) offences with which they were charged and convicted them accordingly on each of the two (2) counts of the charge. Each of them was consequently sentenced by that Court to imprisonment term of five (5) years in respect of the 1st count of criminal conspiracy and to death, on the 2nd count of armed robbery with recommendation for mercy pursuant to Rule 12 of the Robbery and Firearms Rules of procedure.
The sentence on the 1st count was to take effect from the date of the Appellants’ arrest and detention in April, 2001. Being dissatisfied with their conviction and sentence on the 2nd count of the charge each of the Appellants with the leave of this Court, caused a Notice of Appeal of six grounds, to be filed against same.
In the Appellants’ brief filed on the 17/7/07 as required by the Rules of this Court, two issues were distilled from the six grounds of appeal contained of on each of the Notices of Appeal and submitted for determination, in the appeal.
They are:-
a) Was the confessional sentiment properly admitted in evidence.
b) Having regard to the totality of the evidence, was the guilt of the accused persons established beyond reasonable doubt in respect of the offence charged, (sic).
The issue (a) was said to arise from grounds of appeal 2, 3 and 4 while issue (b) was said to arise from grounds 1, 5 and 6.
For the Respondent three (3) issues were formulated for determination in the Respondent’s brief filed with the leave of Court granted on 14/1/10 as follows:-
ISSUES FOR DETERMINATION
1. Whether the mere retraction by the Appellants of their confessional statements, disqualifies same as being voluntarily made and from being properly admitted in evidence.
2. Whether there was established that there was armed robbery committed along Buruku-Lagos Road on the 16/04/2001 (the date of the arrest of the Appellants) and if issue 2 is found in the affirmative.
3. Whether the prosecution has proved that the Appellants were the ones that committed the armed robbery as to warrant their conviction and sentence as made.
The issues formulated by the learned counsel for the parties are essentially the same in that issues 2 and 3 of the Respondent are subsumed in the Appellant’s issue (b). For that reason, I would consider the Appellants’ issues in the determination of the appeal.
Before then however, I should mention that the learned Counsel for the Respondent had filed a list of additional authorities on the 7/5/10 in respect of the issues formulated in the Respondent’s brief. The authorities, I would say are on restatements of the position of the law on the points made and supported by other established cases cited by learned counsel. They are merely for emphasis being additional authorities.
The Appellants’ submissions on the issue; (a) started with the basis of the admission of any piece of evidence in proceedings and relying on the case of TORTI .V. UKPABI (2004) ALL NLR 185 @ 195, it was said to be relevant to the issues in a case. It was submitted that before a confession can be considered relevant and worthy of being acted upon, it must clearly be proved to have been made voluntarily as required under section 27 (2) of the Evidence Act. Further that the voluntariliness of a confession must be proved beyond reasonable doubt on the authority of DAWA .V. THE STATE (1980) ALL NLR 226 @ 241, OJEGELE .V. THE STATE (1988) 1 NWLR (71) 414 @ 421 and section 138 (1) of the Evidence Act. Pages 4 and 8 of the record of appeal were referred to where the Appellants were said to have denied making the confessional statements admitted in evidence as Exhibits 1 and 2 and it was argued that if the High court had adverted to the standard of proof required to prove the statements it would have realized that the evidence of eye witnesses or the complainant was most credible to clear any doubt in the confessional statements.
Learned counsel also said though the prosecution had the liberty in calling witnesses to prove its case, it had the duty to call credible evidence to convince the court about the quilt or otherwise of the accused persons. The case of OGBODU .V. THE STATE (1987) 3 SC 497 @ 500 was cited on the point and it was submitted that the statements made by the Appellants at Birnin Gwari when they were arrested were critical in the just determination of the case against them and that failure or refusal to tender them amounts to with holding evidence under section 149 (d) of the Evidence Act. The evidence of the state witnesses, PW1 and PW2 was then set out and it was contended that it was totally inadequate to discharge the burden of proof beyond reasonable doubt that the confessional statements were made by the Appellants’ and if they were voluntary.
Learned Counsel for the Appellants submitted that the Appellants had each given evidence of how they were tortured before Exhibit 1 and 2 were said to have been made and that if the High Court had properly evaluated the evidence and resolved the doubt about the quality of the evidence, it would have found that the prosecution had failed to prove the voluntariliness of the confessions.
Once again, the case of DAWA .V. THE STATE, Supra, was cited and relied on and we were urged to resolve the issue in the negative by holding the Exhibits 1 and 2 were not made by the Appellants and not properly admitted in evidence.
The Learned Counsel for the Respondent after reference to the definition of confession in section 27 (1) and (2) of the Evidence Act as well as some judicial authorities said the evidence of the prosecution witnesses is to the effect that Exhibits 1 and 2 were made voluntarily by the Appellants.
He also submitted that the test for the admissibility of confessional statement lies in its voluntariliness and cited KAZEEM.V.THE STATE (2009) ALL FWLR (465) 1749 @ 1775 – 6, OKEKE .V. THE STATE (2003) FWLR (159) 1381 @ 1451 and section 27 (2) of the Evidence Act.
Relying on the portions of the evidence of PW1 and PW2 which he set out in the brief and which he said was not challenged under cross examination, learned Counsel argued that the Appellants were not tortured, manhandled, beaten or induced to confess to or sign Exhibits 1 and 2. According to him, the Exhibits were voluntarily made and so properly admitted and acted upon by the High Court.
YAHAYA .V. THE STATE (2005) 1 NCC, 120, NJOFOR .V. THE STATE (2005) ALL FWLR (242) 397 @ 410 were cited on the submission and it was further submitted that the retraction of the statements by the Appellants did not make them involuntary or inadmissible, relying on SOLOLA .V. THE STATE (2005) ALL FWLR (209) 1757 @ 1770 and 1771, IKEMSON .V. THE STATE (1989) 3 NWLR (110) 455 among other cases. It was also said what the law requires the High Court to do was to scrutinize and verify the authenticity or truthfulness of the retracted statements which it had done at pages 33 -34 of the record of appeal. We were urged by learned counsel to resolve the issue as formulated by him in the negative and uphold the decision of the High Court.
From the judgment of the High Court, it is clear that the foundation or basis for the conviction of the Appellants on the 2nd count of the charge against which this appeal was filed were the statements made by them to PW1 and PW2 which were admitted in evidence as Exhibits 1 and 2.
The two (2) Exhibits contain statements which state or suggest the inference that the Appellants who were charged or accused at the time they were made with the commission of the offence of armed robbery, had committed the said offence. In other words, the Exhibits contain statements giving the impression that the Appellants had agreed or admitted to have committed the offence of armed robbery with which they were accused by the state through the police. The Exhibits therefore qualify as confessions under the provisions of section 27 (1) of the Evidence Act, cited by both learned counsel in their briefs of argument. The provisions are as follows:-
27 (1) A confession is an admission made at any time by a person charges with a crime, stating or suggesting the inference that he committed that crime.
Confession has also, as seen in the cases cited by learned Counsel, been judicially defined in the terms provided in section 27 (1). So a confession is a statement oral or written by a person accused of the commission of a criminal offence at the time it was made, agreeing or admitting that he had committed the offence with which he was accused. Such a confession may be used at the trial of such a person for the offence with which he was accused in the discharge of the burden of proof placed by law on the state which usually charges persons accused of the commission of criminal offences. However, for a confession to be relevant for admission at the trial of the maker, the law required that it must be voluntary. In this regard, section 27(2) of the evidence Act provided thus:-
27(2) A confessions, if voluntary, are to be relevant facts as against the persons who make them only.
The purport of the above provisions has been held to be that for a confession to be relevant and therefore admissible in a criminal trial, it must have been made freely and voluntarily by the maker without any let or hinderance or undue influence of whatever nature by or from persons in authority over the case against him. See OGBODU .Vs. THE STATE, (Supra) OSAKWE .V. ATT-GENERAL OF BENDEL STATE, (1991) NWLR (107) 315.

Another established principle of the law of evidence on confession is that once its voluntaries is raised or challenged by an accused person, the prosecution bears the burden of proving that it was voluntarily made before it can be admitted in evidence. NWANGBOMU .V. THE STATE (1994) 2 SCNJ 107, OJEGELE .V. THE STATE (Supra).
This principle of law derived from the provisions of section 28 of the Evidence Act which makes the following provisions.
28. A confession made by an accused person is irrelevant in a criminal Proceeding, if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage of avoid any evil of a temporal nature.
By these provisions a confession is irrelevant in formal proceedings if it appears to the Court that in making it the accused person was induced, threatened or promised any advantage or evidence of any evil in relation to the charge against him by a person in authority over the case. Once the Court is of the opinion that a confession is not free and voluntary it becomes irrelevant in the trial of the matter by virtue of the above provisions and therefore inadmissible in evidence.

Generally, accused persons usually challenge their extrajudicial statements made to police officers in the course of investigating the offence with which they are accused in one (1) of two (2) ways thus:-
(a) That they never made the statement at all in which case it is a matter of fact to be resolved by the evidence before the court
(b) That they made or signed the statement but not voluntarily.
The position of the law is that in (a) above, the mere denial by an accused person of having made a statement confessing to the commission of the crime he is accused of or charge with is an issue or question of fact to be decided by the trial Court. It does not make the statement inadmissible in evidence but it must be considered along with the other evidence, adduced as well as the circumstances of the case for the purpose of attaching or ascribing probative weight, or value to it in the determination of the guilt or otherwise of the accused person. The confessional statement in the circumstance is relevant and admissible under section 27 (2) of the Evidence Act. See SHANDE .V. THE STATE (2005) ALL FWLR (279) 1342, SOLALA .V. THE STATE (supra), IKPASA .V. A.G. BENDEL STATE (supra) ITULE .V. THE STATE (1961) 1 ALL NLR, 462.
As regard the situation in (b) above of denial that the statement was made voluntarily for any of the reasons set out in section 28, the law as stated earlier requires that a trial Court should first decide whether the statement was voluntary in what has now become known as trial within trial. It is only when it was found to have been made voluntarily that it becomes admissible.
See KAZEEM .V. THE STATE (supra) OKEKE .V. THE STATE (supra), MOMODU .V. THE STATE (2008) 28 WRN 24, UGURU .V. THE STATE (2002) 4 SCNJ 282, GBADAMOSI V. THE STATE (1992) 19 NWLR (266) 465.

The law is also settled that once a confession complies with the requirements of the law, it is sufficient to ground the conviction of the maker for the offence or crime which was admitted in the confession.
This position was demonstrated by learned Counsel in the cases cited in their brief of argument as well the High Court in its judgment. See also ACHABUA .V. THE STATE (1976) 1 SC 63 @ 68, EGBOGHONOME .V. THE STATE (1993) 7 NWLR (306) 383, EKPENYONG .V. THE (1991) 6 NWLR (200) 683 @ 704, YARO .V. THE STATE (2007) 32 NSCQR 229 @ 244 – 5.
Enough of the restatement of the principle of law on confession for the purpose of the appeal. I would turn to submissions of learned Counsel on the issue raised and find how the above principles apply to the appeal.
It may be recalled that the contention of the learned Counsel for the Appellant is that since the Appellants had denied signing the Exhibits 1 and 2, the Respondent had to prove beyond reasonable doubt that they were made by the Appellants and made voluntarily.
The record of the appeal at page 8, shows what happened when the statement by the 1st Appellant; Exhibit 2, was tendered through PW2, the police officer who recorded it. This is the reaction of Mr. B. C. Ugoeruchukwu learned Counsel for the Appellants (as accused persons):-
Ugoeruchukwu:
The 1st accused said it is not his statement because he did not sign it but thump printed the statement he made.
After the above statement by the learned Counsel, the High Court admitted Exhibit 1 on the ground that the Ist Appellant only denied making the statement tendered. An earlier similar record appears at page 4 of the record of appeal in respect of Exhibit 1. The statement made by the 2nd Appellant when it was tendered for admission in evidence the learned Counsel for the Appellants had staled thus:-
Ugwueruchukwu (sic); the 2nd accused said he did not sign the statement and I know that that does not stop it from being admitted.
So quite glaring, the learned Counsel for the Appellants by the above quoted statements made by him when Exhibits 1 and 2 were tendered by the prosecution, did not amount to even an attempt to challenge them on the ground that they were not admissible in evidence for any reason whatsoever. As seen in the statements, which are in fact mere observations, the Learned Counsel said or admitted that what he said on the Exhibits would not stop them from being admitted in evidence. All that the statements really were meant to say was that each of the Appellants disowns the statement because he did not sign it. In effect, that the statements were not made by the Appellants or that they were not the ones made by the Appellants. As was stated in the cases cited on the point, the fact that an accused person denies making a confessional statement or disowns it, does not ipso facto, affect the admissibility of the confession in evidence. Whether or not it was made by the accused person is a question of fact to be decided when taken along with other pieces of evidence, by the trial Court.
In the above circumstances, the state of record of the appeal leaves no doubt that the challenge by the appellants to Exhibits 1 and 2 was not as to their being in voluntary for any of the reasons set out in section 28 of the Evidence Act. It was simply a denial of making the Exhibits or signing them which the law says does not affect the admissibility of the Exhibits in evidence.

In the result, the inevitable answer to the issue (a) formulated by the learned Counsel for the Appellants is that Exhibits 1 and 2 were properly admitted in evidence. I should perhaps point out here that the issue did not and was not on the assessment or evaluation of the Exhibit 1 and 2 but one which is merely on their admissibility in evidence. I resolve issue (a) against the Appellants:-
The Appellants’ submissions on issue (b) which was said to derive from grounds 1, 5, and 6 are that in order to get a conviction on a charge of armed robbery, the prosecution must prove the following:-
(a) That there was a robbery.
(b) That the accused was the robber.
(c) That the accused was armed with any firearms or offensive weapon or was in the company with any person so armed,
(d) That at or immediately before or after the robbery, the accused wounded or used personal violence on any person.
Learned counsel then said the Appellants’ case is one where:
(a) nobody testified that any of the accused robbed him or was among the persons that robbed him.
(b) nobody gave evidence that any of the accused persons was armed with any firearms or offensive weapon or that he was in company of any person so armed.
(c) nobody gave evidence that any of the accused wounded or used personal violence on him.
(d) none of the two witnesses who testified was a victim of the alleged armed robbery.
It was the further submission of learned Counsel that PW2 had admitted under cross-examination that the accused persons made statements at Birnin-Gwari Police station which were not tendered in evidence and that the eye witnesses were not called as witnesses at the trial. He referred to the case of ONAH .V. THE STATE the citation of which he gave as i.e. 625 @ 639 as well as section 148 (d) of the Evidence Act and said that the High Court ought to have been wary of acting on Exhibits 1 and 2 which the Appellants had denied making.
In addition, it was submitted that though the prosecution had the liberty to call witnesses it chooses, the evidence produced must be capable of proving all the ingredients of the offence charged beyond reasonable doubt. That since the prosecution witnesses had the names and other particulars of eye witnesses to the alleged crime, but who were not called to testify at the trial, the High Court should not have convicted the Appellants solely on Exhibits 1 and 2. It was contented that apart from Exhibits 1 and 2 nothing else was done or shown to the High Court to corroborate the fact that the Appellants committed the offence they were charged with and that the prosecution with held the statements of the Appellants at Birnin-Gwari Police Station. Page-417, volume 1, 14th Edition of Sarkar on Evidence was cited to the effect that where corroborative evidence does not show beyond reasonable doubt that the accused is guilty, he should be given the benefit of the doubt.
Learned Counsel for the Appellants then submitted that the evidence led by the prosecution was so manifestly flawed and very doubtful in the following particulars:-
(a) that date of the alleged crime given in Exhibit 1 is 17/4/2001 while that in Exhibit 2 is 16/4/2001.
(b) PW1 said under cross-examination that it was exhibit 1 that convicted him that the accused committed the offence after he had earlier said he was led to the scene by the accused persons.
(c) PW2 had said that the money taken from him the victims of the alleged crime, recovered from the accused persons was N1,140 in N100 and N50 notes.
We were urged to resolve the issue in the negative.
The learned Counsel for the Respondent argued the issue as his issues 2 and 3 and after setting out the ingredients for the offence of armed robbery as stated in the case of BOLANLE .V. THE STATE (2005) 1 NCC 345 also reported in (20050 7 NWLR (925) 431, BELLO .V. THE STATE (2007) ALL FWLR (296) 702 @ 719 among others, said they are to be proved beyond reasonable doubt as required under section 138 of the Evidence, Act.
Reference was made to the case of DIBEL .V. THE STATE (2005) ALL FWLR (259) 1995.
According to him, the evidence of PW1 and PW2 was unchallenged and unrebutted under cross examination and had established that there was armed robbery on the 16/4/2001 along the Kaduna – Buruku-Lagos road. The evidence was unassailable and qualifies to be believed on that authorities of EZEJA .V. THE STATE (2006) ALL FWLR (309) 1536 @ 1562 and OFOR LETTE .V. STATE (2000) 7 SC (10) 80. Exhibits 1 and 2 were also said to support the evidence of PW1 and PW2 on the proof of the fact that there was armed robbery on 16/4/2001 and we were urged to so hold.
On the second ingredient i.e the accused being armed with firearms or offensive weapons, it was submitted that Exhibits. 1 and 2 in which the Appellants said they came out from the bush with plank or by planking, wood clearly show that it was armed robbery as plank or big planking wood are offensive weapons within the purview of section 15(1) of the Robbery and Firearms Act since they are capable of igniting fear in and inflicting injury on the victims of the robbery. Further that the admission by the Appellants in Exhibits 1 and 2 which are confessions is relevant and sufficient to prove that the robbery was an armed robbery. The cases of AROGUNDADE .V. THE STATE (2009) ALL FWLR (469) 416 and YARO .V. STATE (2008) 3 NCC 250 were relied on and the Court was urged to hold that the persecution has proved the second ingredient beyond reasonable doubt and therefore discharged the burden of proof.
On the last ingredient of whether the Appellants were the armed robbers, learned Counsel for the Respondent said the unchallenged evidence of PW1 that the 2nd Appellant led his team to the scene of the of the robbery clearly shows that the Appellants were the robbers who had in Exhibits 1 and 2 confessed to have committed the offence. According to him, Exhibits 1 and 2 are positive and direct and sufficient to prove that the Appellants beyond reasonable doubt that the Appellants took part in the robbery. He relied on STEPHEN .V. STATE (1986) 12 SC, 450 AND YESUF .V. STATE (1976) 6 SC, 167 cited in the judgment appealed against on the law that voluntary confession is enough to sustain the conviction of an accused person.
It was also submitted that the 1st Appellant’s evidence that there were other people where he was arrested at Buruku but that he alone was arrested supports the confessional statement that the story of how a bus he took from Zaria left him at Buruku clearly tallies with Exhibit 2. For 2nd Appellant, it was submitted that his evidence that he was arrested because he refused to settle the Police like the other people in the bus he was traveling, supports the confessional statement because he was arrested at Buruku at about the time of the crime. It was contended that the evidence of the Appellants’ arrest at Buruku, and the evidence of PW1 and PW2 that the Appellants led them to the scene of the robbery where they saw the big stones and big sticks used to block the road provide sufficient corroboration to the Exhibits 1 and 2 to warrant the conviction of the Appellants. Learned Counsel said proof beyond reasonable doubt does not mean there could be no minor discrepancy and that there is no material discrepancy which occasioned a miscarriage of justice in the prosecution’s evidence. Placing reliance on the case of DIBEL .V. STATE (supra) once more, he urged us to hold that the basic ingredients of the offence of armed robbery have been proved by the prosecution against the Appellants beyond reasonable doubt and resolve the issues in the affirmative.
On the whole, the Court was invited to sustain and affirm the conviction of and sentence on the Appellants as contained in the decision of the High Court. Let me say at the onset that the Appellants issue (b) and the Respondents’ issues 2 and 3 are on the assessment or evaluation of the evidence adduced at the trial of the Appellants for the offences they were challenged with. The primary complaint of the Appellants in their issue is on the probative worth, value or weight ascribed to the evidence adduced by the prosecution in proof of the charges against them in the course of High Court’s assessment or evaluation. As is now known, the duty to assess or evaluate evidence adduced by the parties in a case civil or criminal, is primarily that of the trial court before which the evidence was placed.
Once a trial Court has properly and correctly applied the established principles of law on such assessment or evaluation of evidence, an appellate would have no viable justification for interference with the decisions resulting there from no matter the style adopted in the procedure for the evaluation which is a matter of discretion MARTINS .V. THE STATE (1997) 1 NWLR (481) 355, AWOPEJO .V. THE STATE (2001) 18 NWLR (745) 430, ONUOHA .V. STATE (1985) 5 NWLR (54) 118.

The duty of this Court is to look at record of the evidence adduced at the trial in support of the charges against the Appellants and find out or see whether the High court has or has not made substantive or procedural errors or has failed to make any or proper findings which the evidence available deserves and accordingly take such decision in the interest of justice by way of correction or confirmation of the decision appealed against. It is not the function of this Court to retry the Appellants on the notes of the evidence and set aside the decision of the High Court merely because the court would have reached a different conclusion on some or even all the facts upon which the evidence was premised.
From the record of the appeal, the conviction of the Appellants for the offence of armed robbery was entirely based and founded on the Exhibits 1 and 2, their respective confessional statements made to PWI and PW2 which contain admission by them of committing the offence. Learned Counsel are right when they said that in law, an accused person charged with an offence can be properly convicted on his voluntary confession that he committed the offence with which he was charged. In other words, a voluntary confession by person charged with the commission of an offence without more is sufficient to warrant or ground his conviction for the offence admitted in the confession. The cases cited by the learned counsel supra clearly stated this position of the law on the point. See also SHALLA .V. THE STATE (2007) 18 NWLR (1066) 240, ACHABUA .V. THE STATE (1976) 12 SC, 63 @ 68, AKPAN .V. THE STATE (87) 5 SCNJ, 112.

It is also the law that for a confessional statement alone to be sufficient to support or sustain a conviction, it has to be direct, positive, unequivocal and conclusive on the offence with which the maker was charged see KAZA .V. STATE (2008) 7 NWLR (1085) 125, TANKO .V. STATE (2008) 16 NWLR (1114) 597, in addition to the cases cited by learned counsel on the position.Similarly, learned Counsel are right that a voluntary, direct, and positive confessional statement which is proved to the satisfaction of the Court can be used to convict an accused person even without corroboration from outside evidence. However, it is desirable and the practice to look for and use some evidence of circumstances no matter how slight outside the confession which support and make it true especially as in the present appeal, where it was retracted by the accused person
See HASSAN .V. THE STATE (2001) 15 WLR (735) 184, ISMAIL .V. THE STATE (2008) 15 NWLR (1111) 593. But ordinarily, the offence of armed robbery with which the Appellants were charged is not statutorily under the Evidence Act, one which requires corroboration to be proved beyond reasonable doubt. See NDIDI .V. THE STATE (2007) 13 NWLR (1052) 633 @ 661, in addition to the cases of NJOKU .V. THE STATE (1992) 2 NWLR (262) 714 cited before and referred to by the High Court in its judgment at page 40 (hand written) of the record of appeal. In its assessment of the confessional statements of the Appellants admitted in evidence as Exhibits 1 and 2, the High Court had stated inter alia thus:-The Exhibits 1 and 2 having been admitted despite denial by the accused persons that they made the Exhibits, I now have a duty to decide whether or not the accused persons made Exhibits 1 and 2.
Now the accused persons merely disputed the statements credited to them, Exhibits 1 and 2, but gave no version of the statements they claimed to have made. It is settled law that where an accused disputes a statement credited to him but gives no other version of it the court is left with only the version (the statement) tendered in court. See THE STATE. vs. OJI IRONSI (1969) 1 NMLR 203.
The accused persons in this case gave no other version of the story other than the versions in Exhibits 1 and 2. I must therefore take it that Exhibits 1 and 2 are the statements made by the accused persons to PW1 and PW2. Exhibits 1 and 2 are retracted statements and as the supreme court did say, per Akpata, JSC, in CHUNGWOM KIM V-V. THE STATE (1992) 4 NWLR (Pt.233) 17 AT 51 AND 52.
The law as I know it is that the Court can act on a retracted confession provided that there is something outside the confession to show that it is true if every defence proffered by an accused person in his confessional statement must be accepted, because there is not eye witness to rebut it, it would be a sad day for the administration of justice. As I have already pointed out the court can act on a retracted confession provided there is something outside the confession to show that it is true, In the same vein a court can reject any part of a confessional statement if there is something outside it to show that portion is untrue. See ANTHONY EJINIMA . V. THE STATE (1991) 7 SCNJ (pt 318 at 341 – 342 per NNAMAEKA -AGU, JSC.
The accused persons having failed to give any other version of the statements contained in Exhibits 1 and 2, I hold that the Exhibits were indeed made by them and that this court can act upon the statements notwithstanding their retraction by the accused persons.
Because Exhibits 1 and 2 were admitted in evidence, they become part of the evidence adduced by the prosecution in the discharge of the legal burden of proving the charge of armed robbery, with which we are specifically concerned in this appeal, beyond reasonable doubt. The High Court therefore, had the duty to evaluate them along with the other pieces of evidence given by the prosecution witnesses and the Appellants’ in their respective defence in order to make findings on whether or not each of the ingredients of the offence was proved as required by law.
The above extract of the High Court judgment clearly shows the first stage in the process of evaluating the Exhibits and the findings that in the absence of other versions from the Appellants, they were indeed made by them and they could be acted on inspite of the retraction by the Appellants. There after, the High Court considered the provisions of section 15 of the Robbery and Fire armed Act along with the Exhibits in its overall evaluation of the evidence before it, and found that the ingredients of the offence of armed robbery were proved as required by law, relying on the authorities relevant to each of them.
It would amount to a mere repetition of what at the High Court said in its assessment of Exhibits 1 and 2 to setout all it said thereon by way of valuation and ascription of weight thereto. It suffices for me to state simply that the High Court properly and correctly evaluated the evidence adduced before it by both the prosecution and the Appellants, but particularly Exhibits 1 and 2 and came to the right decisions. With Exhibits 1 and 2 which are direct and positive and found by the High court to have been made by the Appellants’ taken along the circumstances of the tell tale stories given by the Appellants in their testimonies at the trial. I find no reason to disturb the finding by the High Court that the Exhibits 1 and 2 are true. The learned Counsel had argued that failure to call eye witnesses or tender the statements made by the Appellants at Buruku Police Station was material and fatal to the prosecution’s case. I readily agree with him, because he is right that the prosecution has a duty to tender any statement made by accused person during the investigation of the offence with which he was accused or charged in evidence whether or not it was in his favour.
The case of DANDARE .V. STATE (1967) NMLR 56, cited in the High Court judgment had stated that position, of the law but I would like to point out that the Appellants, had in their testimonies at the trial stated all that they must have said in their statements at the Buruku Police Station. The High Court had properly considered, evaluated and assessed the Appellant’s testimonies along with the other pieces of evidence before arriving at the conclusion that the offence against the Appellants’ had been proved as required by law.
In the circumstances, failure to tender the statement made at Buruku, Police Station, desirable as it was, would not have made any difference in the finding of the High court. As for failure to call eye witnesses, the law is settled that the commission of a crime, including armed robbery, can be proved in any of the following ways:-
(a) confessional evidence; or
(b) direct or eye witnesses evidence; or
(c) circumstantial evidence. See EMEKA V THE STATE (2010) 1 RN 41 at 64 IGRI. V. THE STATE (2010) 7 WRN, SI @ 47.
In premises of the above authorities, the prosecution had the discretion and option to prove the offence against the Appellants by any one or more of the three ways mentioned.
The respondent in the present appeal opted for the proof by confessional evidence through the production of Exhibits 1 and 2 through PW1 and PW2 who recorded them from the Appellants.
The need to therefore call eye witnesses or any other witnesses did not arise in law and failure to do so was of no moment in the discharge of the legal burden of proof placed on the prosecution.
The Supreme Court had restated the law once again in the case of UBIERHO .V. THE STATE (2005) 20 WRN 111, (2005) 5 NWLR (919) 644 @ 655 that:-
A man may be convicted solely on his confession. There is no law against it. If a man makes a free and voluntary confession which is direct and positive and is properly proved, the Court
may if it thinks fit, convict him of any crime upon it.
See also EFFIONG. V. STATE (1998) 5 SC (II) 136 @ 142-3, OHUKA . V. STATE (1988) 7 SC, 24@37, BATURE. V. THE STATE (1994) 1 NWLR (320) 267.
I would once more say that Exhibits 1 and 2 on their own, without more, are in law sufficient and enough to sustain the conviction of the Appellants for the offence they were charged with since the High Court had correctly found them to be direct and positive and properly proved to its satisfaction to be true by circumstances of the evidence of the PW1, PW2 and the Appellants’ themselves.
In the result, having regard to the totality of the evidence placed before the High court, the guilt of the Appellants was proved beyond reasonable doubt for the offence of armed robbery as required by law. I accordingly resolve the Appellants’ issue (b) in the affirmative.
In the final result, with the resolution of the two (2) issues formulated and submitted for determination in the Appellants’ brief of argument against the Appellants, the appeal is left without merit. Consequently the appeal is dismissed and the conviction of and sentence the Appellants for the offence of armed robbery contained in the judgment of the Kaduna State High Court delivered on 5/8/05 in case No. KDH/KAD/8C/03 is hereby affirmed.

BABA ALKALI BA’ABA, J.C.A.: I have had the opportunity of reading in draft the judgment read by my learned brother, Garba, J.C.A. I entirely agree with the judgment and I have nothing to add.

JOHN INYANG OKORO, J.C.A.: I read before now the judgment of my learned brother, Garba, J.C.A just delivered and I agree with the views expressed therein on the two issues submitted for the determination of this appeal. I agree that the Appellant was properly and within the law, convicted of the offence of armed robbery. There is therefore no merit in this appeal. I accordingly, join my learned brother in dismissing the appeal. I also affirm the judgment of the Kaduna State High Court delivered on 5/8/03 in charge No.KDH/KAD/8C/03.

Appearances

A. T. KEHINDE For Appellant

AND

ADEMOLA ADENIJI For Respondent