IFEANYICHUKWU AKWUOBI v. THE STATE
(2011)LCN/4673(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of July, 2011
CA/J/213C/06
RATIO
VOLUNTARINESS OF A STATEMENT: PROPER TIME TO TEST VOLUNTARINESS OF A STATEMENT TENDERED IN EVIDENCE
In ALARAPE V. THE STATE (2001) FWLR (PT.41) 1872 at 1895, statements were tendered and admitted without objection from the defence. None of the prosecution witnesses was cross-examined as to their involuntariness. It was not until the prosecution had closed its case and the Appellants were testifying in their own defence in the witness Box that the issue was raised. Though the facts in ALARAPE are slightly distinguishable from the facts in the instant appeal the principle laid down in that case is sufficiently applicable to the facts and circumstances of this matter. In applying the law, settled in IKEMSON V. STATE (supra), the Supreme Count in ALARAPE held that the voluntariness of a statement is tested at the time the statement is sought to be tendered in evidence and doing so at any subsequent moment would be totally belated and liable to being disregarded. I therefore think that the learned Trial Judge was right to dismiss the belated raising of the issue of the admissibility and credibility of the statement in Exh . 4 as an afterthought. PER ALI ABUBAKAR BABANDI GUMEL, J.C.A
CONFESSIONAL STATEMENT: CIRCUMSTANCE IN WHICH A CONFESSION OF GUILT WILL BE SUFFICIENT TO SUSTAIN A CONVICTION
It is trite law that a free and voluntary confession of guilt whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the court is satisfied with the truth of such a confession. See: Ikpo Vs The State (1995) 9 NWLR (421) 549 at 554 D-E; R.V. Sykes (1913) 8 Car 233 at 236; Ajayi v. Omokaro (1941) 7 Waca 146. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
CONFESSIONAL STATEMENT: ESSENCE OF CORROBORATIVE EVIDENCE TO CONFESSIONAL STATEMENTS
It is also trite that it is desirable to have some corroborative evidence outside the statement, no matter how slight, of circumstances that make it probable that the confession is true and correct. See: Onochie and Ors v. The Republic (1966) NMLR 307; R.V. Sykes (supra). PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
IFEANYICHUKWU AKWUOBI Appellant(s)
AND
THE STATE Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Benue State High Court, Makurdi in change no. MHC/239C/94 delivered on 23rd March, 2005. The Appellant was arraigned before the High Count of Benue State on a 2 count change to wit: –
1st count
That you, IFEANYICHUKWU AKWUOBI on or about the 1st day of April, 2003 at about 0230 hours along Ugbokolo Local Government Area of Benue State within the jurisdiction of this Honorable Court agreed with three others (now at Large) and one other (now deceased) to do an illegal act to wit, commit armed robbery in a 911 Lorry with Registration No. XD 259 FGG which act was done in pursuance of the agreement and you thereby committed an offence punishable under section 5(6) of the Robbery and Firearm (Special Provision) Act Cap. 398 Firearm (Special Provision) Act Cap. 398 Laws of the Federal (Federation) of Nigeria 7990.
2nd Count
That you, IFEANYICHUKWU AKWUOBI on or about the 1st day of April, 2003 at about 0230 hours along Ugbokolo Area in Ogbadibo Local Government Area of Benue State within the jurisdiction of this Honorable Court in the company of three others (now at Large) and one other person that you attacked and shot on the Leg, one Boniface Chigbo Okeke a driver of 911 Lorry with Registration No. XD 259 FGG and other passengers and robbed them of a hand bag, money and other valuables while armed with guns and you thereby committed an offence punishable under section 1(2) (a) of the Robbery and Firearm (Special provisions) Act Cop. 398 Laws of the Federal (Federation) of Nigeria 1990.
To prove the allegations contained in the change sheet, the Respondent called and relied on the evidence of one Sgt. Peter Abuma, a policeman attached to State C. I. D, Makurdi. Upon the evidence of its sole witness the Respondent closed its case.
While contemplating on a defence, Learned Counsel for the Appellant opted for a no case submission. The Count allowed respective learned Counsel to address it for the no case submission. In a very short ruling dated 15/12/2004, the Learned Trial Judge considered all the arguments and submissions of respective Learned Counsel and proceeded further to overrule the no case submission and ordered the Appellant to enter his defence. The Appellant testified in his defence and also called no other witness. Thereafter respective Learned Counsel addressed the Count.
In its judgment the Lower Count found the Appellant guilty on the 2 counts of charge. He was accordingly convicted and sentenced to death. The Appellant was dissatisfied with his conviction and sentence and appealed to this Court in a notice of appeal dated 30/05/2005 but filed on 2/06/2005. The notice of appeal contains 4 grounds of appeal with their particulars. They are hereby set out as follows: –
1. The judgment is unreasonable, unwarranted and cannot be supported having regard to the evidence before the Court.
2. The Learned Trial Judge erred in Law when she convicted and sentenced me to death for the offences of criminal conspiracy and armed robbery when:
i. The case against me was not proved beyond reasonable doubt as required by Law.
ii. Exhibit 4 relied upon by the Trial Court to come to judgment was not proved to have been executed by me or the due execution was not Proved beyond reasonable doubt.
3. The Learned Trial Judge erred in Law when she came to the conclusion that the issue of me not signing exhibit 4 was not made an issue under cross – examination and then preceded in this error to come to the conclusion that Exhibit 4 was signed by me.
PARTICULARS OF ERROR
i. The issue of my not signing Exhibit 4 was made an issue under cross-examination.
ii. PW1 was specifically asked of my being an illiterate person.
iii. The fact that my evidence in Court was not recorded vide an interpreter does not make me capable of reading and write.
The Learned Trial Judge erred at Law when she drew wrong inferences from the evidence before hen and Exhibit 4 to convict me of the offences of criminal conspiracy and armed robbery when:
i. Exhibit 4 is equivocal which has both favourable and unfavourable facts.
ii. It is not possible for the Trial Count to pick and choose which Part of Exhibit 4 to believe and not to believe.
iii. It is clear from Exhibit 4 that I was going to Lafia Nassarawa State, and not Enugu State as wrongly inferred by the Trial Court.
iv. Exhibit 4 does not support the allegations of criminal conspiracy and armed robbery against me.
v. My mere presence with the Persons, who were alleged to be at large without more, was not enough to fix me in criminal liability.
To argue the appeal respective Learned Counsel filed and exchanged briefs of argument. The Appellants brief was settled by Learned Counsel Mr. J . S. Okutepa. It is dated 25/10/2006 but filed on 30/10/2005. The Respondent’s brief was settled by Learned Counsel Vera Venda ESQ. it is dated 10/04/07 and filed on 18/04/2007 but deemed properly filed pursuant to an order of this Count made on 25/04/2007. At the hearing of the appeal on 4/05/2011 respective Learned Counsel adopted and relied on their respective briefs of argument. Just before urging this Count to allow this appeal and set aside the conviction and sentence imposed on the Appellant by the Lower Court, Learned Counsel Mr. Okutepa drew our attention to a list of additional authorities dated 2/05/2011 but filed on 3/5/2011. It contains 2 cases. They are GBOKO V. THE STATE (2007) 17 NWLR (PT.1063) 272 at 304 – 385 and GARBA V. THE STATE (1997 3 SCNJ 68 at 85 – 7. Learned Counsel to the Respondent without more urged on us to dismiss the appeal and affirm the conviction and sentence on the Appellant.
From the 4 grounds of appeal Learned Counsel to the appellant formulated and argued a single issue for the determination of this appeal. The issue is: –
Whether the case against the Appellant in the Court below was proved beyond reasonable doubt as required by the Law.
The Respondent adopted the lone issue formulated by the Appellant.
In arguing against the finding of the lower Court on count one on the offence of conspiracy, Learned Counsel Mrn. Okutepa for the Appellant explained that the mere presence of an accused person in the midst of persons who were alleged to have committed an offence, is no sufficient reason for an inference to be made that he was, without more, guilty of the offence of conspiracy. While referring to the cases of KWALE V. STATE (2003) FELR (PT.159) 1504 at 1524 F-G. IYERE V. STATE (1988) 1 NWLR (PT. 53) 255. ERIM V. THE STATE (1994) 5 NWLR (PT. 346) 522 and NJOVENS V. THE STATE (1973) 5 SC 17, learned Counsel explained further that there has to be a meeting of minds of the conspirators before an offence of conspiracy can be said to have been committed.
According to Mr. Okutepa, of Counsel the finding of the lower Count on count one was based on a heavy reliance on Exh . 4 as well as the conduct of the Appellant. For the purpose of this point, learned Counsel did not seem to be against the reliance on Exh . 4 per se but appears to only be complaining about the interpretation of the series of events which culminated in the commission of the offences alleged and so fan found to have been committed by the Appellant.
Learned Counsel Mr. Okutepa went on to argue that upon a proper consideration of the extra judicial statement of the Appellant he did not know what the other accused persons he was following were up to when they left Lagos. Also, he added such other circumstances that stood out as showing that the Appellant was not fully taken on board when the alleged offences were being hatched. He identified such circumstances as the meeting that was held at the 9th mile, the Appellant being shut out and kept outside and he also not being aware of the content of the black bag Emma Okwuyi carried along. According to learned Counsel because nothing incriminating was found on the Appellant and the totality of his entire conduct in all the events leading to and up to the time of the alleged robbery, it was not possible that he was in any conspiracy with the other persons and therefore Exh . 4 standing alone without more cannot ground a charge of conspiracy against him.
It was at this stage that learned Counsel paused to focus further and analysed the contents and authenticity of Exh. 4. According to Mr. Okutepa, he saw this as very compelling because of the heavy reliance both the prosecution and the learned Trial Judge placed on it to anchor the guilt and conviction of the Appellant. As pant of this exercise, learned Counsel emphasized that the learned Trial Judge was wrong to hold that the issue of the Appellant not signing Exh . 4 was not taken up under the cross – examination of PW1. He then referred to page 35 of the record where the illiteracy of the Appellant was highlighted to PW1 under cross-examination. Upon this background, learned Counsel went further to submit that the learned Trial Judge embanked on an erroneous evaluation of the contents of Exh . 4 based on conjectures and thereby closing eyes to facts in Exh. 4 which tend to portray the Appellant as an innocent traveller, who found himself in the company of alleged criminals but without his having the slightest idea of their criminal intentions, let alone agreeing with them to do any illegal acts.
Having laid this foundation, learned Counsel embanked on his interpretation and evaluation of the facts in Exh . 4 and submitted that rather than incriminating the Appellant, Exh . 4 clearly exculpated him of any guilty intentions. Added to this submission, Mr. Okutepa of Counsel contended that the presence of the Appellant in the company of “Epicie” and “KC” on having left Lagos with them may raise some suspicion but that cannot be strong enough to be consistent with any guilty intention in the form of an agreement to do an illegal act. Mr. Okutepa continued to argue that because it was not PW1 who arrested the Appellant and he was also not at the scene of the incident coupled with the fact that it was Paul Attah and not PW1 who recorded the statement of the Appellant so much of the oral evidence of PW1 and Exh. 4 ought to have been excluded and discountenanced for being hearsay and inadmissible under S. 100 of the Evidence Act.
On the substantive charge of armed robbery under count 2 of the indictment, learned Counsel sought to lay some foundation when he explained that the law is well settled that for the prosecution to succeed in the proof of an armed robbery allegation, it has to prove beyond reasonable doubt that: –
(i) There was a robbery on series of robberies;
(ii) Each robbery was an armed robbery; and
(iii) The accused was one of those who took part in the armed robbery.
To support this explanation, learned Counsel referred to a number of decided cases such as BOZIN V. THE STATE (1985) 2 NWLR (PT.8) 455 AT 467. ALABI V. THE STATE (1993) 7 NWLR (PT. 307) 511; OKEKE V. THE STATE (1995) 4 NWLR (PT. 392) 675; ISIBOR V. THF STATE (2001) FWLR (PT. 78r 1077 at 1100 etc.
While considering the facts and circumstances of this appeal, learned Counsel underscored the fact that there was no direct oral evidence of any eyewitnesses to the alleged robbery. Because of this peculiarity, learned Counsel argued that in armed robbery trials victims of the alleged crime are always material witnesses to prove that there was a robbery and to the extent that the prosecution in this appeal failed to call these material witnesses and victims, this would remain fatal to the conviction of the Appellant. In the opinion of learned Counsel Mr. Okutepa Exh . 4 requires corroboration, and to that extent, it cannot be used to corroborate another set of evidence. He maintained that the evidence of accused/Appellant cannot in law corroborate Exh . 4. He referred to S. 92 (2) of the Evidence Act and submitted that the mere fact that the Appellant was in the vehicle which was alleged to have been robbed cannot be a corroboration of the allegation that the Appellant robbed in the vehicle.
In concluding his arguments learned Counsel highlighted the various pieces of evidence the learned Trial Judge employed to corroborate the facts in Exh . 4. He continued his attack on all these findings and maintained that they were all faulty and erroneous. Also, of concern to learned Counsel was the failure of the prosecution to call the Police officer who was at the scene and recovered the guns and cartridges ( Exhibits 2 and 2A) , to testify as a witness. He then referred to sections 76 and 77 of the Evidence Act and a series of decided cases to anchor the point that it is independent evidence that can corroborate any evidence that needs corroboration and not a repetition of the evidence that itself needs corroboration.
Also, as part of his closing submissions, learned counsel suggested that the lower Court chose and picked out of Exh . 4 only such facts that would support the conviction of the Appellant while
neglecting such facts tending to suggest his innocence. He referred to the case of ELE V. THE STATE ( 2006) ALL FWLR ( PT. 329) 849 at 871 where it was held that a Court cannot accept part of the statement of an accused person and reject the other parts. He urged the Court to allow this appeal and set aside the conviction and sentence of the Appellant and to also order for his discharge and acquitted.
In her response, learned Counsel Mrs. Vera Venda, leaned DPP, Benue State Ministry of justice,
highlighted count one and referred to NJOVENS V. THE STATE (Supra) and reiterated that conspiracy can be proved and more often than not is proved by circumstantial evidence. With respect to the circumstances and facts in this appeal, learned Counsel Mrs. Venda, referred to the admiration the Appellant had for the lifestyles of “KC” and “Epicie” who were his cohorts in Lagos. She then referred to the Appellants trip from Lagos to Enugu to help “KC” and “Epicie” to carry their handbag as well as the moment when Emma Onwuka, the alleged kingpin and mastermind, said that he would not like to show his face at Obolo Afor.
For a foundation, learned Counsel pointed out that Exh . 4 was admitted without objection at pages 31, 32 lines 16 to 12 of the record. According to Learned Counsel it was curious and strange that the Appellant now seeks to disown his statement to the Police as contained in Exh. 4. Mrs. Venda, of Counsel pointed out some peculiar facts in Exh . 4 and pointed out that it was not possible for Exh , 4 to be made by any person other than the Appellant. She went on to underscore and highlight such peculiar facts as the family history of the Appellant that can be gleaned from Exh . 4. To this end, Learned Counsel urged this Court to find and hold that Exh . 4 is the extra judicial statement of the Appellant and the lower Court was night to use same to convict the Appellant.
Specifically with respect to the offence of conspiracy, learned Counsel referred to some decided cases and argued that there was nothing to show otherwise that the Appellant and his cohorts planned and executed their plan to commit armed robbery.
According to learned Counsel the Appellant consistently aided the robbers while carrying their bag from Lagos to the scene of the crime. Learned Counsel went further to explain, that while the original journey was from Lagos to Enugu, the Appellant never asked any questions on sought for explanations, when the course of the journey changed to 9th Mile and later Lafia, Nassarawa State.
On the issue of need for corroboration, learned Counsel argued that Exh . 4 needed no corroboration because the Appellant did not object to its admissibility. It was at this stage that learned Counsel referred to the case of SHODIYA V. STATE (1992) 3 NWLR (PT. 230) 457 to emphasize the definition of conspiracy in law to involve the meeting of 2 on more minds to carry out an unlawful purpose on to carry out a lawful purpose by unlawful means, and it is not necessary that there should be direct communication between each conspirator and every other. To underscore, the positive effect of circumstantial evidence in the proof of the offence of conspiracy, Learned Counsel embarked on his own interpretation and evaluation of some of the events disclosed by the evidence in Exh . 4. According to Learned Counsel, the Appellant had shown how he had admitted the lifestyles of 2 of the members of the gang in Lagos and when he was invited to join the gang he did not hesitate and was ready to carry for them an empty bag from Lagos to Enugu. In the opinion of learned Counsel, the Appellant should have sought for explanations when the journey changed course and his friends spent 3 hours in discussions away from him. He then continued to enumerate various other circumstances of this ease which According to him,it points to the fact that he was not oblivious of what the plans of his co-travellers were leading to the ultimate statement of the Appellant that “…this was his first time of going out for a robbery operation.” Upon all these, learned counsel submitted that the change of conspiracy had been proved against the Appellant by circumstantial evidence as required by law and he urged the Count to so find and dismiss this appeal.
On the principal count of armed robbery, Learned Counsel tried to put the case of the Appellant before this Count in perspective and the contention of the Appellant that it was not safe for the Trial Court to find him guilty as it did. According to learned Counsel the fact that the prosecution relied on the evidence of PW1 and Exh.4 alone has got nothing to do with proof because it is trite that a case can be proved based on the credible evidence of a single witness. He referred to the cases of IGBO V. THE STATE (1998) 1 All ACLR 527. OKPOGIADE V. C.O. P. (1998) l AII CLR 585 and ONYEGBU V. THE STATE (1998) 1 All CLR 386 as well as ADAJE V. STATE 0979) 6 – 9 SC 28 where it was held that the law imposes no obligation on the prosecution to call a host of witnesses as the need is only to call enough material witnesses in order to prove its case to the extent of proof beyond reasonable doubt as the standard.
Still on the issue of the need of other corroborative evidence in addition to Exhibit 4, Learned Counsel referred to the case of R. V. BASKEVILLE (1915) 2 kb 658 and explained that the evidence before the lower Court showed on tended to show that the accused committed the offence he was changed. She added that since there was no objection to the admissibility of the statement of the appellant to the Police and there was no need for a trial – within a trial, the question whether offences were committed and whether the accused / Appellant was one among those who committed the offence was long answered when the accused / Appellant said he was in the company of those who committed the offence having started off for the journey together from Lagos. To add substance to this submission learned Counsel referred to the decision of the Supreme Count in the case of IKEMSON V. THE STATE (supra) where it was held that any person in company of a person so armed on aiding and abetting in the commission of the offence is similarly guilty.
In a further explanation learned Counsel pointed out that it was the Appellant himself via Exh . 4 that told the lower Court about the 2 locally made pistols that were with Emma Onwuka with whom he was travelling and that it was Onwuka that shot the driven of the lorry on his leg. According to learned Counsel the 2 guns were admitted in evidence as Exhibits I and 1A, while Exhibits 2 and 2A were respectively the live and expended cartridges. Added to this, Learned Counsel urged the Court to hold that though the Respondent could not call any of the victims of the robbery as witnesses that failure was not fatal to its case since there was other credible evidence that robbery was committed. She also maintained that available evidence shows that there is an irresistible inference and conclusion pointing to the guilt of the Appellant. She urged this Court to so hold, resolve this issue against the Appellant and dismiss this appeal as well as to affirm the conviction and sentence of the Appellant.
I have carefully considered all the foregoing arguments and submissions of respective learned Counsel together with some of the decided cases cited in the briefs of Counsel. It is important to say right at the onset that both learned Counsel were spot on in their arguments that the lower Court and the prosecution placed a heavy reliance on Exh . 4.
There is therefore no doubt that Exh . 4 is at the heart of the trial and this appeal.
fn the course of the trail, PW1 told the Court:-
“Thereafter I cautioned the suspect in English Language, he agreed that he understood the cautionary words. He thereafter volunteered a statement which I recorded in English Language. After the statement I read it over to him also in English Language. He agreed that was what he told me. He signed and I also signed as the recorder………. I took him to the officer in – charge, anti-robbery section, Mr. Z. A. Agono ASP. He read over the statement to the accused person, he agreed that was the statement he gave me. The accused signed, and I as the recorder also signed, Mr. Agono also signed…..”
(See lines 8 – 1 pages 29 – 30 of record)
Also in the course of the proceedings, Learned Counsel Mr. Ukande for the prosecution applied thus:-
“I seek to tender the statements and the Exhibits in evidence,
(Page 31 lines 15 – 17 record of appeal)
Upon this application of Mr. Ukande, Learned Counsel to the accused Mr. Okutepa responded thus: –
“I have no objection to the admission of the two guns, the expanded and unexpended cartridges. I equally have no objection to the admission of the statement of the accused person…..”
(Page 31 lines 18 – 20 and page 32 lines 1 – 2)
At page 33 the lower Court admitted the statement of the Appellant and marked same as Exh . 4 while also upholding the objection of learned Counsel Mr. Okutepa on the statements of Ejiofor Nwankwo and Boniface C. Okeke being inadmissible in the circumstance.
In the course of cross-examination PW1 told the Court that: –
“The accused did not tell me that he an illiterate. He asked me to record the statement for him because according to him he is (sic) not in a good mood…. …….. I did not ask him why he went to Lagos, He was the person who decided to tell me the story how he met his gang.
The accused did not tell me that he was going to Lafia to buy rice. I wrote down what he told me. After the recording, he accepted and he signed.”
(Page 35 record of appeal)
Also at page 35 lines 9 – 10, PW1 said”-
“I deny that Exh. 4 is not an accurate account of what the accused told me.”
In the course the no case submission, learned counsel started to dance to the tune of another music. At page 42 he was recorded to have said:-
“If Exhibit 4 was tendered to prove the truth of its contents, then we urge the Court to expunge it from the record as it is an inadmissible piece of evidence.”
From then till today, learned Counsel Mr. Okutepa and the Appellant began and continued their systematic disassociation with Exh , 4 and its contents.
In the course of the judgment and having been faced with a seemingly belated rejection of his statement by the Appellant, the lower Court considered such circumstances as the Appellant testifying before it without the need of an interpreter etc and came to the conclusion that the denial by the Appellant that he did not sign Exh . 4 was an afterthought and he was not as illiterate as he wanted the world to believe. The learned Trial Judge went on to decide thus: –
“On the basis of the unchallenged evidence before me, I reject the belated denial of the accused person that he did not execute Exhibit 4. I have no hesitation in holding that the accused signed Exhibit 4 and the signatures on Exhibit 4 attributed to him actually belong to him……….., I shall give to it the weight it deserves.
(See pages 83 – 84)
In his statement to the Police, Exh. 4, the Appellant was seen to have given a detailed account 3 of his parentage, educational background, the series of calamities and misfortunes that he met such as the loss of both parents and also the tragic loss of a very supportive brother etc. also in this statement was a detailed account of an encounter on encounters with persons of different backgrounds leading to a robbery operation between Obolo Afor and Otukpo. As significant and important some of these details may be to the trial of the Appellant and this appeal, the most remarkable and crucial pant of Exhibit 4 is a sentence that goes thus: –
“This is my first time to go out for a robbery operation.”
This is a very direct and most profound statement.
After deciding that Exh . 4 was a voluntarily made confessional statement, the lower Court found it to have been sufficiently corroborated and that it was very logical and not self contradictory. Upon these crucial findings, the lower Court found the Appellant guilty as changed.
In ALARAPE V. THE STATE (2001) FWLR (PT.41) 1872 at 1895, statements were tendered and admitted without objection from the defence. None of the prosecution witnesses was cross-examined as to their involuntariness. It was not until the prosecution had closed its case and the Appellants were testifying in their own defence in the witness Box that the issue was raised. Though the facts in ALARAPE are slightly distinguishable from the facts in the instant appeal the principle laid down in that case is sufficiently applicable to the facts and circumstances of this matter. In applying the law, settled in IKEMSON V. STATE (supra), the Supreme Count in ALARAPE held that the voluntariness of a statement is tested at the time the statement is sought to be tendered in evidence and doing so at any subsequent moment would be totally belated and liable to being disregarded. I therefore think that the learned Trial Judge was right to dismiss the belated raising of the issue of the admissibility and credibility of the statement in Exh . 4 as an afterthought.
Learned Counsel Mr. Okutepa had sought to rely on the additional authorities of the cases of GBOKO V. THE STATE (2007) 17 NWLR (PT. 1963) 271 at 304 – 305 and GARBA V. THE STATE (1997) 3 SCNJ 68 At 86 – 87. I have read all these 2 decisions. In GARBA V. THE STATE (supra) the Supreme Count was of the opinion that the law appears settled that where a mixed statement is under consideration in a case where an accused person has not given evidence, the Court should aver its mind to the fact that the whole statement, both the incriminating parts and the excuses on explanations therein, must be considered together in deciding where the truth lies. It goes without saying that because the Appellant in the instant appeal, had testified in his own defence as DW1, the facts in the 2 cases are distinguishable but the principles of law in the decision, I believe are applicable.
I have carefully read the whole of Exh . 4. It is fully incriminating. There are no aspects of it that are exculpatory. The suggestions of learned Counsel Mr. Okutepa that the lower Count closed its eyes to parts of Exh.4 that afford good defence to the indictment against the Appellant totally lack substance and remained feeble and ad-hoc. So the question here is not about picking and choosing what parts of it were favourable on otherwise to the Appellant. Whatever exculpatory factors, if there were any, arose from the attempts of both learned Counsel and the Appellant to entirely disown Exh. 4 on water down its effects and consequence.
I understand the law to be that a Trial Court is entitled to accept an incriminating portion of a confessional statement as established while rejecting another portion of the same statement, especially where, upon a consideration of the entire evidence before the Court, there exists overwhelming credible evidence in support of such incriminating portions of the confessional statement, as well as other pieces of evidence which render the rejected exculpatory pants cleanly unreliable. I therefore do not see the relevance of the additional authorities. I do not see them to be of any meaningful assistance in the circumstance of this case.
According to Exh . 4 the Appellant was said to have mentioned thus: –
“I stayed at Oyingbo in Lagos…. there I used to see Epicie and KC. They Looks (sic) neat and eats (sic) better food … ..and so much admired then. … so one day, they called me and told me that I will follow then to Enugu to help then carry their handbag for them. I told them that I have no transport money but they said that they will transport me.
My own was to carry their handbag and follow them. So we boarded o Luxurious bus from Lagos to Onitsha. We then entered another vehicle from Onitsha to Ninth Mile. At Ninth Mile, we net with one Enma Onwuka …….. he called Epicie and KC to one side and they discussed ………. and when they came back they said that we should go …….. when Onwuka come, he was holding something in a black Leather bag in his armpit …….. We entered one 911 from Ninth Mile to Lafia, Nassarawa State… On reaching somewhere near Otukpo, Emma Onwuka climbed through the drivers side from the back and held the driver and ordered that the driver should stopped (sic. ) This time I saw Emma Onwuka with two Locally made pistol (sic) …. Emma brought out the second pistol and fired the driver(sic)…the driver increased speed though he was staggering till he finally stopped at the Police checkpoint…he started shouting armed robbers!! Armed robber!! At this juncture, Epicie, KC and Okwuyi jumped down and ran into the bush………. This is my first tine to go out for a robbery operation……..”
I have carefully considered all the arguments and submissions of respective learned Counsel and I am of the opinion that the findings of the lower Court on Exh . 4 and the steps it took to arrive at those findings remained in order and cannot be faulted. All the findings are very well founded on a sound understanding of the principles of law involved and the evidence on record. The most significant finding is that Exh . 4 was the voluntary confessional statement of the Appellant. I agree that the lower Court was fully entitled to give it credibility and weight and it was safe for a finding of guilt and conviction to be founded on it having regard to the circumstance of the instant appeal.
The facts in Exh . 4 are very direct and straight forward. I do not see any good reasons to embark on any capricious or whimsical interpretations of those facts in the manner suggested by learned Counsel Mr. Okutepa. The evaluation of the evidence and interpretation of the facts and events made by the Learned Trial Judge appear to me to be impeccable and nearest to the truth of the matter. Having regards to Exh. 4 and the entire facts in this matter, I am of the view that the prosecution fully succeeded in proving the guilt of the Appellant beyond reasonable doubt. The question in the sole issue formulated by the Appellant must therefore be answered in the positive and resolved against the Appellant.
This appeal therefore lacks merit and it is hereby dismissed. The judgment of E. N Kpojime, J. of the Benue State High Count in charge no. MHC/23C/2004 delivered on 23/03/05 convicting the Appellant for conspiracy and armed robbery and sentencing him to death is hereby affirmed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the Judgment of my learned brother, A.A.B. Gumel JCA, just delivered. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
It is trite law that a free and voluntary confession of guilt whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and is enough to sustain a conviction so long as the court is satisfied with the truth of such a confession. See: Ikpo Vs The State (1995) 9 NWLR (421) 549 at 554 D-E; R.V. Sykes (1913) 8 Car 233 at 236; Ajayi v. Omokaro (1941) 7 Waca 146. It is also trite that it is desirable to have some corroborative evidence outside the statement, no matter how slight, of circumstances that make it probable that the confession is true and correct. See: Onochie and Ors v. The Republic (1966) NMLR 307; R.V. Sykes (supra). In the instant case the learned trial Judge painstakingly applied the test in R.V. Sykes (supra) to Exhibit 4 (the confessional statement) vis a vis the evidence of the appellant and Exhibits tendered.
I am of the view and I hold that the learned trial Judge properly carried out his duty in this regard and arrived at the correct conclusion.
The appellant attempted to retract his confessional statement at the trial court on the ground that he did not make or sign Exhibit 4. It was held in Akinmoju Vs The State (2009) 3SC (part 1) 64 at 81 that the mere fact that an accused person retracts his confessional statement does not make it inadmissible. Where the accused states that he never made the statement at all, it is a matter of fact to be resolved by evidence at the trial. See: Nwangbomu Vs The State (1994) 2 SCNJ 107 at 114 line 40-115 lines 1-14. The facts narrated in Exhibit 4 were so similar to the oral evidence given by the appellant, in addition to the Exhibits tendered that the learned trial Judge had no difficulty in reaching the conclusion that the appellant made the statement, particularly as it was tendered without objection during the trial.
I agree with my learned brother in the lead judgment that in the circumstances of this case the appellant was rightly convicted of the offence charged based on his confessional statement. For these and the more detailed reasons contained in the lead judgment, I also dismiss the appeal, I affirm the judgment of E.N. KPOJIME, J. of the Benue State High court in charge No.MHC/23C/2004 delivered on 23/03/2005 convicting the appellant of conspiracy and armed robbery and sentencing him to death.
UCHECHUKWU ONYEMENAM (J.C.A): I have had the advantage of reading in draft the lead judgment just delivered by my learned brother A.A.B. Gumel JCA. I agree with him that the court below was right in convicting the appellant on the two counts charge for Criminal Conspiracy and Armed Robbery. The appellant consistently maintained that he was in the company of his friends who were armed and who indeed robbed with the arms although he was neither found with an arm or took part in the robbery. The appellant said he followed these armed robbers all the way from Lagos to the point of their robbery in Benue State for the sole role of carrying their empty bag. The conviction of the appellant was right in law because it is settled that any person in company of a person who while armed commits armed robbery is similarly guilty of the offence. See Ikemson V. The State (1998) 1 ACLR 80.
I would also dismiss the appeal and uphold the conviction and sentence of the lower court.
Appearances
Miss N.I OGOHFor Appellant
AND
MR. MIKE A. AGBER, DDPP,
Benue state Ministry of Justice with E. Kpojime senior state counsel, Benue state Ministry of Justice.For Respondent
