OSAMEDE ABBEY v. THE STATE
(2013)LCN/6202(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2013
CA/B/77C/2007
JUSTICES:
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
OSAMEDE ABBEY – Appellant(s)
AND
THE STATE – Respondent(s)
RATIO
WHETHER OR NOT A VOLUNTARY CONFESSION OF GUILT IS SUFFICIENT TO WARRANT A CONVICTION
It is now well settled that for a confessional statement to operate against the maker, (i.e. the accused), it must be direct and positive and admit of no equivocation. There are plethora of authorities on the point. I refer to the case of Effiong v. State. supra cited by Chief Uzamere for second accused.
In that case, the apex court held per Ogwuegbu, JSC, stated as follows:
“In Nigeria, a free and voluntary confession of guilt by a prisoner, whether under examination by a Magistrate or otherwise if it is direct and positive and is duly made satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence, so long as the court is satisfied of the truth of the confession.” PER BAGE, J.C.A.
THE DUTY OF THE TRIAL CORT TO EVALUATE THE EVIDENCE OF WITNESSES BEFORE IT
The law is already trite that, the duty to evaluate and ascribe probative value to the evidence is in the province of the trial court and not that of the appellate court. See the Supreme Court decisions in Eze Ibeh v. The State (1997) 1 SCNJ 256 at 271, Wali JSC (as he then was) stated as follows:-
“On evaluation of evidence, I wish to stress firstly, by saying that confirmation of the concurrent findings of facts by this court of the decisions of the two courts below is compelling in the sense that it is an avowed and age-long judicial policy in this country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings of them are matters within the province of the court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify and watching their demeanours. See Balogun & Ors V. Alimi Agboola (1974) 1 All NLR (Pt.2) 66; The Military Gov. of Western State V. Afolabi Lanibe & Anor (1974) 1 All NLR (Pt.2) 179. For this reason, there is a presumption that a trial judge’s decision on facts is correct; a presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate court for its part in such a case should always be reluctant to interfere or to substitute its view of the facts for those of the court of trial. See Ajao v. Ajao (1986) 5 NWLR (Pt.45) 802; Akponugho v. Adja Kodaja (1933) 2 WACA 24.” PER BAGE, J.C.A.
INGREDIENTS TO ESTABLISH THE OFFENCE OF ARMED ROBBERY
The law is already settled that, those ingredients must co-exist in the evidence, before the court, for the prosecution to attain a proof beyond reasonable doubt. See Kalgo, JCA (as he then was) in Peter Nwomukoro & Ors v. The State (1995) 1 NWLR (Pt.372) 432 at 443.
“It is settled law and therefore trite that for the prosecution to succeed in proof of the offence of armed robbery there must be proof beyond reasonable doubt of the following:-
(1) That there must be robbery or series of robberies.
(2) That the robbery or each robbery was an armed robbery.
(3) That the accused was one of those who took part in the armed robbery.
Bozin V. State 2 NWLR (Pt. 8) 465 at 469; Amina v. The state (1990) 6 NWLR (Pt. 155) 125 of 135; Okosi V. Attorney-General Bendel State (1989) 1 NWLR (Pt. 100) 642; Nwachukwu V. The State (1985) 1 NWLR (Pt.11) 216; Ani V. The State (2003) 11 NWLR (Pt.83) 142.” PER BAGE, J.C.A.
SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Hon Justice R. I. Amaize of the High Court of Justice, Edo State, holden at Benin City, in the Benin Judicial Division in Charge No.B/15C/2001 THE STATE VS OKECHUKWU MARAIRE, OSAMEDE ABBEY, FRANCIS EHEBHOLO. The Appellant and the two other accused persons in the court below were charged as follows:-
COUNT I: – That you Okechukwu Maraire, Osamede Abbey, and Francis Ehebholo on or about the 25th day of March, 1999 at Buvel Filling Station, No. 222 Murtala Mohammed Way Benin City in the Benin Judicial Division conspired with each other to commit a felony to wit: armed robbery and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Fire Arms (Special Provision) Act Cap 398 Laws of the Federation of Nigeria 1990.
COUNT II: – That you Okechukwu Maraire, Osamede Abbey, and others now at large on or about the 25th day of March, 1999 at Buvel Filling Station at No. 222, Murtala Mohammed Way Benin City in the Benin Judicial Division robbed the sum of seven hundred and sixty-four thousand, four hundred and thirty-eight naira, eighty-three kobo (N764,438.83), four hundred Dutch Mark (400 Dutch Mark), sixty-four U.S. Dollars (S64.00), fifty British Pounds Sterling (50.00pounds) and coral beads of assorted forms valued about one hundred and fifty thousand naira (N150,000.00) properties of Prince Clement Okoeguale and at the time of the robbery you were armed with a gun and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990.
Briefly the prosecution’s case at the High Court was that:
The Appellant was the 2nd accused in the erstwhile Charge No. B/15C/2001 brought against four of them. They were charged with conspiracy and armed robbery. On the death of the erstwhile 1st accused, Appellant became the 1st accused. To prove its case, the prosecution called seven witnesses and the Appellant testified in his own defence and called no witnesses.
There were many interlocutory processes during the trial, such as trial within trial for each of the accused persons, a motion challenging jurisdiction; stay of proceedings and no case submissions made on behalf of both accused. The learned trial Judge refused each and every application made to it by the accused persons. None of the refusals was appealed against. After the evidence of the prosecution and defence, the respective counsel for the accused addressed court. Thereafter, the learned trial Judge gave Judgment. The accused persons appealed in two separate Notices of Appeal filed, however, for them by the erstwhile counsel for the 2nd accused.
The Appellant filed his Notice of Appeal dated the 11th of July 2005 containing twelve (12 grounds). From the said grounds, the Appellant distilled the following six (6) issues for determination as follows:
(1) Whether the High Court had the jurisdiction to try the accused having regard to the fact that:
(a) The condition precedent was not fulfilled because the correct format for arraignment of the accused in the High Court was not used.
(b) By trying the Accused/Appellant under a non-existent law.
(2) Whether the so-called confessional statement which was the only evidence before the court and by which the Accused/Appellant was convicted was not so tainted because it was riddled with inconsistencies and contradictions and therefore not cogent enough to ground the conviction of the Accused/Appellant in the trial.
(3) Whether the confessional statement was not itself inadmissible because it was coercively extracted from the Accused/Appellant and therefore expungeable
(4) Whether as in the case in hand, the confessional statements of Accused/Appellant inter-se and evidence of PW3, Thomas Iyere are not so contradictory and inconsistent with one another as not to be sufficient to ground the conviction of the Accused/Appellant.
(5) Whether the confessional statements in the trial were rightly admitted at all.
(6) Whether it was right in law for the Judge to have engaged in utter speculation instead of evaluation of the facts before him. In other words whether the learned trial Judge’s evaluation of the evidence before him in this case was not altogether faulty.
On the other hand Respondents formulated the following three (3) issues for the determination of the Appeal as follows:
(1) Whether the proper mode for commencement of trial for the offence of armed robbery in the High Court is by way of filing information rather than by way of a charge.
(2) Whether the confessional statement of the Appellant Exhibit ‘P.1’ was rightly admitted in evidence and relied on by the learned trial Judge.
(3) Whether having regard to the totality of the evidence led and the circumstances of this case, the prosecution has proved the case of armed robbery leveled against the Appellant beyond reasonable doubt as required by law.
After a careful examination of the two sets of issues as formulated by the parties, I tend to be guided by those formulated by the Respondent. The three issues have captured all the six issues of the Appellant, and have also made the management of the appeal easier. The Appellant proliferated the issues, which over the time is being frowned at, by all superior courts. The first issue for determination in this appeal is:-
(1) Whether the proper mode for the commencement of trial for the offence of armed robbery in the High Court is by way of filing information rather than by way of a charge.
Learned counsel to the Appellant in argument submitted that the trial court had lacked jurisdiction “ab initio” to try this matter, the procedure (precedent form) for initiating charges in the High Court by first filing information and obtaining the Judge’s consent was not complied within this case. The Accused/Appellant was tried upon a charge sheet used in the magistrate court for misdemeanours under a summary trial procedure. He was not tried on “an information”. This would require an application to the Judge whose consent is required to bring up such information before the court, as required by law. In this case, the Judge’s consent having not been sought and obtained to file charges in a capital offence, the trial court lacked jurisdiction as one of the essential conditions precedent to the trial of the case has not been fulfilled. See:- Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 595; A.G. Lagos V. Dosunmu (1989) 3 NWLR (Pt 111) 552, 557 – 558; Eimmks V. Exquisite Industries Ltd (2003) 4 NWLR (Pt.809) 88, 118 – 119; Nwinyuma V. C.O.P. (2005) II NWLR (Pt.936) 255, 260 – 261 paras C – C.
Learned counsel submitted further that where the process in a case is faulty, it is a nullity and liable to be struck out. See:- Obiosa v. Nigeria Airforce (N. Crime Report) 355 at 356; Exclusive Stores Ltd v. Edo State Board of Internal Revenue in Suit No.CA/B/256/98 dated 28/4/2000 (unreported) non-compliance with Section 337 of the Criminal Procedure Law Cap 49 Vol. II Laws of the Defunct Bendel State 1976 as applicable to Edo State Vitiates the whole proceedings. Even the word “summary” appearing in the Original Decree on Armed Robbery cannot be imported into the successor law under a democratic dispensation as held by the trial court at page 184 of the printed record. The learned trial Judge’s attempt to pick only the word “summary” in Section 4 of the Tribunal (certain consequential Amendments etc) Decree 1999 is untenable. The Section of the Federal High Court Law referred enjoins the court to conduct criminal proceedings substantially in accordance with the provisions of the Criminal Procedure Act. Section 4 of the Decree has to be read in conjunction with Section 337 of the Criminal Procedure Law Bendel State as applicable to Edo State. We urge the court that the charge of armed robbery against the Appellant be struck out because the trial court lacked the requisite jurisdiction to try the Appellant in the first place. The charges in this case were brought under a defunct Decree. No attempt was made to modify the wordings of the charges so as to be in line with the new dispensation after May 28, 1999. The Appellant was therefore charged under a non-existent law. See Aoko v. Fagbemi (1961) All NLR 100.
In response to the Appellants submission above, learned counsel to the Respondent submitted that, the proper mode for the commencement of trial for a charge for the offence of armed robbery at the High Court is by way of a charge and not by way of an information. By virtue of the provisions of Section 4 of the Tribunals (certain consequential Amendment) Decree (now Act) No. 62 of 1999 and part II of the schedule thereto which Act was saved by Section 315 of the 1999 Constitution of the Federal Republic of Nigeria, the State High Court is vested with the jurisdiction/power to hear armed robbery cases summarily. See Section 4 of Decree 62, Section 33 of the Federal High Court Act. There is no such provision in the High Court Law of Defunct Bendel State Law 1976 something close to that is Section 12 thereof. It is conceded that the Criminal Procedure Law, Cap 49 Laws of Bendel State 1976 applicable to Edo State is to be followed by the High Court and the Magistrate courts in the state. Section 4 of Decree 62 has expressly provided that all matters to which it relates shall be tried summarily. The Criminal Procedure Law, Cap 49, Laws of Bendel State, 1976 applicable in Edo State has now deemed the Tribunals (certain consequential Amendment) Decree (now Act) No. 62 of 1999 to be an existing law made by the National Assembly. See Section 315 (1) of the 1999 Constitution. Section 4 of Decree 62 (now Act) has obviously dispensed with the procedure required for filing information in the High Court as far as armed robbery cases are concerned. Summary trials are only for the offences listed under Section 277 of the Criminal Procedure Law of Bendel State 1976 applicable to Edo State.
Learned counsel further submitted that where the law creating an offence specifies the mode of the trial of offences created thereunder, the mode applies to the exclusion of the general mode of commencement of the trial of offences. See: Joseph Mangtup Din v. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147 at 186.
The submissions of counsel is carefully examined. The Appellant and others were charged for robbery, an offence committed and punishable under Section 1(2)(a) of the Robbery and FireArms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990. The pertinent question here is whether to initiate prosecution of that offence at the High Court is by the filing information and obtaining consent of the Judge, or to try such offence upon a charge sheet used in the Magistrate Court for misdemeanors under a summary trial procedure. The argument of the Appellant on this issue is that, he was not tried on an information. As this would require an application to the Judge whose consent is required to bring up such information before the court as required by law. Appellant maintained that, in this case, the Judge’s consent having not been sought and obtained to file charges in a capital offence, the trial court lacked jurisdiction as one of the essential conditions precedent to the trial of the case has not been fulfilled. The Respondent replied that on the contrary the proper mode for the commencement of trial for a charge for the offence of armed robbery at the High Court is by way of a charge and not by way of information. This is by virtue of the provisions of Section 4 of the Tribunals (certain consequential Amendment) Decree (now Act) No. 62 of 1999 and part II of the schedule thereto which Act was saved by Section 315 of the 1999 Constitution of the Federal Republic of Nigeria, the State High Court is vested with the jurisdiction/power to hear armed robbery cases summarily.
Before considering the import of the provisions of Section 4 of the Decree, for clarity and better understanding, a historical journey of armed robbery offences in Nigeria becomes necessary. In 1971, the Robbery and Firearms (Special Provisions) (Amendment) Decree 1971 came into force on 14 October, 1971, it extended the punishment under Section 1(2) of the 1970 Decree to parties to offences under Sections 1, 2, 3 of the Principal Decree by a new Section 3A as follows:
“3A. Any person who
(a) aids, counsels, abets or procures any person to commit an offence under Section 1, 2 or 3 of this Decree or
(b) conspires with any person to commit such an offence whether or not he is present when the offence is committed or attempt to he committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Decree.”
Consequently, armed robbers, persons who accompany them in the commission of the offence or those who aid, counsel, procure the commission of the offence, and those who conspire with others to commit the offence are on conviction, punishable with death. See:- Joseph Okosun & Ors V. Attorney-General, Bendel State (1985) 3 NWLR (pt.12) 283 at 296. Section 6 of the 1971 Amendment Decree also empowers the state Attorney-General, instead of the Director public prosecutions, to initiate prosecution for the trial of offences under the Decree.
A new Section was introduced in 1974 under the Robbery and Firearms (Special Provisions) (Amendment) (No. 2) Decree No. 29 of 1974. A new dimension to the issue was the introduction of the right of appeal of a convict under the Decree the Supreme Court.
On the eve of the transition into the Republic Constitution, that is, the 1979 Constitution, the Constitution of the Federal Republic of Nigeria (certain consequential Repeals etc) Decree 1979 No.105 was passed. This Decree repealed Section 6 of the Robbery and Firearms (Special provisions) Decree 1970 as amended. It also deleted the definition of “tribunal” therefrom. Offences under the Decree were henceforth triable in the High Court of the state concerned. It is patent that by Section 5 of the Decree No. 47 of 1970 that the Decree remains a state legislation on the 1st day of October, 1979. And by virtue of Section 274(4)(b) of the 1979 Constitution, it became an existing law of the state and “Robbery” per se became a residual matter while the Legislation (1970 No.47 as amended) was deemed to be a Law by the State House of Assembly.
At the end of the year 1983, there was another Military Putsch. The Constitution (suspension and modification) Decree No.1 of 1984 was passed. The Robbery and Firearms (Special Provisions) Decree 1984 No. 5 was enacted. It was later amended by Decree No. 21 of 1984. What happened? There was a return to tribunals. The 1984 Decrees were in essence in Pari Materia with the 1970 Act No. 47 as subsequently amended. The old order which was changed by the 1979 Act No. 105 and the 1979 Constitution has again been reverted to. See:- Eso JSC (as he then was) in Ishmael Emelogu V. The State (1988) 2 NWLR (Pt.78) 524 at pp 537, 538 and 540.
The issues that came up for determination in that appeal before the Supreme Court were:
(1) Whether offences under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 as amended by the Constitution of the Federal Republic (certain consequential Repeals etc) Act No. 105 of 1979 are federal offences or not.
(2) If offences under the Act No. 47 of 1970 are federal offences, whether the Attorney-General of Imo State had the requisite locus standi to prosecute the Appellant on a charge for an offence brought under Act No. 47 of 1970 as at the 14th day of July 1982 when information was filed for the trial of the Appellant without express delegation of powers by the Federal Attorney-General.
(3) Whether the Criminal Procedure (Miscellaneous Provisions) Law No.19 of 1974 of East Central State of Nigeria applicable in Imo State, applied to trials for offences charged under the Act No. 47 of 1970.
The Decree No. 1 of 1984, the Robbery and Firearms (Special Provisions) Decree 1984 No. 5 remained the law and later amended by Decree No. 21 of 1984. This remained the extant law until the promulgation of the Tribunals (certain consequential Amendment) Decree (now Act) No. 62 of 1999, Section 4 thereof. Section 4 Decree No. 62 provides:
“All criminal proceedings brought before the court relating to a matter for which court has jurisdiction under this Act shall be tried summarily in accordance with Section 33 of the Federal High Court Acts and rules of procedure made under that Act or under the equivalent section of the relevant High Court Law of the State concerned and rules of procedure made under that law.”
Section 33 of the Federal High Court Act relates to criminal proceedings before the court and it provides:-
(1) Subject to the provisions of this section, criminal proceedings before the court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act, and the provisions of that Act shall with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect of all matters falling within the jurisdiction of the court.
(2) Notwithstanding the generality of subsection (1) of this section, all criminal causes or matters before the court shall be tried summarily.”
The above is the existing law with respect to arraignment in armed robbery cases. The Appellant in his submissions did not provide any subsequent amendment made to that law. Any new law which made that arraignment residual returning such powers to the state as stated earlier on, in the journey of the law up to this stage. The law is very clear, the procedure for commencement of trial for offence of armed robbery is by way of a charge and not information as contended by the Appellant. The Appellant was charged under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990. This Act only translated the Decree No. 1 of 1984 the Robbery and Firearms (Special Provisions) Decree 1984 No.5 which became the Act in Laws of the Federation of Nigeria 1990. The law had never been made residual up till the extant law of 1999. It is therefore wrong on the part of the Appellant to contend that, the charges were brought under a defunct Decree, and that no attempt was made to modify the wordings of the charges so as to be in line with the new dispensation after May 28, 1999. The Appellant was rightly charged on the current and existing law that time. The arguments proffered on issue No. 1 have no basis. Issue No. 1 is resolved against the Appellant, and in favour of the Respondent, as the trial court rightly as it did had jurisdiction to try the matter.
Issue No. 2 whether the confessional statement of the Appellant Exhibit ‘P.1’ was rightly admitted in evidence and relied on by the learned trial Judge. This issue captures the arguments of the Appellant on issues Nos. 2, 3, 4 and 5.
Learned counsel to the Appellant contended in his argument that, whether the confessional statement (Exhibit P1) of the Accused/Appellant was cogent enough to ground a conviction. There is the question of the credibility of this confession in the entire trial.
Learned counsel to the Respondent on the other hand maintained that, the principles that govern the admission of a confessional statement are whether it is free, voluntary, true, positive and probable. Once the court satisfies itself that these elements are present, the court is bound to admit it. It is submitted further that a free and voluntary statement satisfactorily proved can ground a conviction without any corroborative evidence. See:- Section 27, Evidence Act, and the case of Nwachukwu v. State (2005) 4. LRCN CC page 53 at 75 lines Z – EE.
Learned counsel furthered his submission as to whether the learned trial Judge in the present appeal had satisfied himself that Exhibit P1, is positive, true, probable and voluntary. The law is that, where the prosecution seeks to tender an extra-judicial statement of an accused and objection is raised thereto on the ground that it was not voluntarily made, the only option open to the court to test the voluntariness is to conduct a trial within a trial. See Emeka V. State (2005) 4, LRCN CC 187 at 197 A-D.
In my very recent decision in this court, (unreported), in Appeal No.CA/B/154C/2007, delivered on Friday the 19th day of April, 2013 at page 21 thereto, Sunday Ehimiyein V. State, it was stated as follows on the admissibility of confessional statements:-
“On the admissibility of the confessional statements of the Appellant Exhibits “E” and “G1″, the law is that in this country where criminal trials are usually held by a judge sitting alone without a jury, a distinction is usually drawn as regards a practice and procedure in relation to the admissibility of a confession in evidence of trial proceedings between a confession objected to on the ground that it was not made at all by an accused person in which case such a confession may be said to have been retracted; and a confession objected to on the ground that it was not voluntary in that although an accused person agreed to have made the confession his complaint would be that he was forced or induced to make it.
In the latter case, what is attacked is admissibility in evidence of the confession and therefore a trial within a trial must be held. The confession having been challenged on voir dire so as to determine whether or not the confession was voluntary. lf at the end of such trial, the court comes to the conclusion that the confession was not voluntary, then it is not admissible in evidence and the court should so rule.
In the former case, where the confession is wholly retracted the question as to whether or not the confession is admissible in evidence does not arise for decision at all. The trial judge is entitled to admit the confession in evidence as something which had occurred in the course of investigation conducted by the police into the case; and thereafter to decide or find a matter of fact at the conclusion of the case as to whether or not in all the circumstances, the accused person did make the statement as alleged by the police. See:- Godwin Ikpasa v. Bendel State (1981) 9 SC 7 at pp 26 – 29; Inusa Saidi V. The State (1982) 4 SC 41 at 69; Igbineweka Owie v. The State (1985) 4 SC (Pt. 2) 1 at 27; Alarape V. The State (2001) 2 SC 114; Uche Obiodiozo & Ors V. The State (1987) 12 SC 74 at pp 93 and 100 – 102; also reported in (1987) 4 NWLR 748.”
In the instant appeal at page 7 of the Appellant brief the last paragraph, it was contended as follows:
In the instant case, the so-called confessional statements are a forgery because they tell lies about themselves. The duo were said to have conspired together to rob a certain place. They were now made to confess to a myriad of other crimes which they were supposed to commit together at the same times, yet these places were different, certainly this situation was suspect and the learned trial judge in evaluating such evidence should have given the Appellants the benefit of doubt and acquitted them.”
Forgery is mentioned here. From that it is wholly retraction or a denial of the confessional statement by the Appellant. In that kind of situation, the law is that, the question as to whether or not the confession is admissible in evidence does not arise for decision at all. The trial Judge is entitled to admit the confession in evidence as something which had occurred in the course of investigation conducted by the police into the case, and thereafter to decide or find a matter of fact at the conclusion of the case as to whether or not in all circumstances, the accused person did make the statement as alleged by the police. See:- Godwin Ikpasa v. Bendel State (Supra). The confessional statement of the Appellant was therefore admissible in view of the law as stated above. The confessional statement of the Appellant was rightly so admitted by the learned trial Judge.
Let me mention here again that, the situation in the instant appeal where the Appellant alleges that his confessional statement was even forged, thus questioning the whole voluntariness of the entire statement, the trial within a trial as was conducted by the learned trial Judge in this appeal, was no longer necessary. The entire exercise had amounted to a mere surplusage. It was right to admit straight the confessional statement of the Appellant without the labour of having to conduct a trial within a trial. See:- Uche Obidiozo & Ors V. The State (Supra). The confessional statement of the Appellant was therefore rightly admitted in evidence by the trial court. Issues No. 2, 3, 4 and 5, of the Appellant’s brief of argument, which this court determined together, as argued and canvassed by the Respondent as Issue No 2, is resolved against the Appellant and in favour of the Respondent.
ISSUE NO. 3: Whether taking into account the circumstances of this case, the prosecution has proved the case of armed robbery against the Appellant beyond reasonable doubt.
Learned counsel to the Appellant submitted that, the trial Judge speculated throughout his Judgment. He filled in the gaping gaps in the prosecution’s case which is unacceptable on the Authority of Nsofor v. State (Supra). We have capitalized on the words “IF” and “PERHAPS” frequently used in evaluating evidence by the trial Judge. These two words connote doubt, and the law is that whenever there is any doubt it should be always resolved in favour of the accused. See Longe v. Inspector-General of Police (1959) 4 FSC 203. Also that the law is that a court is not an investigatory institution but an adjudicatory one. See:- Udock v. State (2007) NWLR (Pt. 1033) 369, 374 RR 1 – 3. Willoughby V. International Merchant Bank (Nig) Ltd (1987) 1 NWLR (Pt. 148) 105; Emesim v. Nwachukwu (1999) 6 NWLR (Pt.605) 154, 158, R6.
Learned counsel submitted further that, a court of law is enjoined at all times to stick to the evidence before it and not to go out of its way to fish out evidence which will tidy up the evidence of any party. See:- A.G. Federation V. Fafunwa-Onikoyi (2006) 18 NWLR (Pt.1010) 51, 55 R1; NICON V. NZC (2004) 15 NWLR (Pt.896) 245, 249, R3; Moghalu v. Wobo (2004) 17 NWLR (Pt.898) 465, 468, RR1 – 3; Udock v. The State (2007) 7 NWLR (Pt.1033) 369 at 374 RR1 – 3; Atanze V. Attah (1999) 3 NWLR (Pt.596) 647 at 650 R1.
In response to Appellant on this issue, learned counsel to the Respondent submitted that, taking into account the circumstances of this case, the prosecution has proved the case of armed robbery against the Appellant beyond reasonable doubt. “Reasonable doubt” here connotes proof which carry a high degree of probability not proof beyond every shadow of doubt. See:- Onafowokan v. State (1987) SCNJ pp 328.
Learned counsel submitted further that the Appellant was tried for the offences of conspiracy to commit armed robbery and armed robbery. On the long run he was discharged of the charge for conspiracy and convicted of the charge for armed robbery. All that the prosecution needed to do to discharge the burden of proof for the charge of armed robbery is to show that:-
(a) There was robbery.
(b) The accused was the robber or one of the robbers.
(c) That the accused or one of the robbers was armed.
See:- Nwachukwu V. State (1985) 11 NWLR (Pt.11) 218; Adeyemi V. State (1991) 1 NWLR (Pt.170) 679.
Learned counsel to the Respondent submitted further that, in proving its case, the prosecution called 6 witnesses. From the evidence of the prosecution witnesses, the three elements/ingredients of the offence of armed robbery have been established. Going by the evidence of PW1, PW2, PW3 and PW4, it is not in controversy that the offices in Buvel Filling Station were broken into and various sums of money including 400 Dutch Mark, sixty-four U.S. Dollars and coral beads were carted away by the robbers. The evidence of PW3, the only eye-witness shows at least one of the robbers was armed with a gun.
Learned counsel further submitted that, the totality of the prosecution’s case, i.e. evidence of prosecution witnesses taken together with the admissions/confessions contained in Exhibit P1 shows that the prosecution has proved the charge of armed robbery against the Appellant beyond reasonable doubt as required by S.138 (1) of the Evidence Act.
Learned counsel submitted further that the contention that the prosecution’s case is full of contradictions is not borne out of the records of the proceedings at the trial court. The said contradictions relate to the various robbery operations confessed to by the Appellant in Exhibit P1, and those confessed by Osamede Abey (co-accused) in Exhibit P3 which relate to other robbery operations, contradictions that found no expression in the charge for which they were tried. The contradictions go to no issue. They are at best minor inconsistencies not material in the prosecution’s evidence to warrant doubts that should be resolved in favour of the Appellant by this court. See:- Effia v. State (1999) VLRN 7(e) at P.5; (1999) 8 NWLR (Pt.613) 1; Onubogu & Anor V. The State (1974) 1 All NLR (Pt.11) 5.
On the part of the court, the submissions of counsel on issue No.3 is carefully examined. It is the contention of the Appellant that the offence of armed robbery was never established against the Appellant by the prosecution. Rather the learned trial Judge, speculated throughout his Judgment. He filled in the gaps in the prosecution’s case. This contention of the Appellant relates to pages 272, 273, 274, 275, 276, 277 and 278 of the Record of Appeal thus:
I have already accepted the evidence of P.W.3, Thomas Iyere, the night guard who encountered the intruders on the night in question to the effect that one of the men held, showed and threatened him with a gun. I hereby reinforce my position in the acceptance of that piece of evidence, especially so that even under cross-examination, that witness maintained a stoic position on the point. I therefore find as a fact that on the occasion in question, one of the men had in his possession a gun. That concludes the point that a case of armed robbery has been established by the prosecution. I recall P.W.3 had also told the court that as he laid on the floor at the command of the men and bounded hands and feet, he heard a noise suggesting that protectors in the Administrative Block were being cut. P.W.2 and P.W.4, the Administrative Manager and Cashier respectively told the court the state they met the office when they arrived the following morning. They each enumerated the offices that were broken into and items removed but with what I consider minor disparities. P.W.1, the Managing Director, also stated the state in which he met his office and others upon arrival. In this connection, I must recall that the incident occurred on 25/3/99 while he (P.W.1) was away in the United States and from his unchallenged evidence, by 27/3/99, he was already back to his office. I infer from the foregoing facts that by 27/3/99, things were still fresh for P.W.1 to observe as he said he did.
Now, if the evidence of P.W.1 Thomas Iyere, to the effect that he heard the cutting of protectors of the Administrative building on the fateful night is considered alongside with those of P.W.1, P.W.2 and P.W.4, as to the states they found the offices and that certain properties were carted away, it comes to this that the robbers armed with a gun and perhaps some other dangerous implements ripped the offices opened and carted away such properties and in the process dangled a threat over the head of P.W.3 with the use of a gun.
I recall learned counsel for 2nd accused describing the evidence of P.W.1, P.W.2 and P.W.4 as hearsay. This, with respect to counsel, is a misconception, their evidence are centred on what they observed and what they believed were taken away from their respective offices. To that extent, their evidence do not amount to hearsay. If they had each attempted to give evidence on how the intruders came, armed and how they broke into the offices, that would have clearly amounted to hearsay. I therefore hold that the evidence of P.W.1, P.W.2 and P.W.4 generally strengthened P.W.3’s evidence that on that night robbers broke into the offices.
From the totality of the evidence as so far appraised, therefore, I make the following inevitable findings:
(1) that during the early hours of 25/3/99, some robbers invaded the premises of Buvel Filling Station on Murtala Muhammed Way, Benin City.
(2) that at least one of the robbers during the invasion had in his possession a gun with which he threatened the night guard on duty on the said premises, Thomas Iyere, who testified as P.W.3.
(3) that the robbers broke into the Administrative Block of the Station and carted away some items of property.
The question is who were the robbers? Or better put, were the accused persons the robbers? Admittedly, direct evidence of an eyewitness does not avail the court to provide an unequivocal answer to this all-important question. This dilemma, as it were, has arisen because the only witness who saw it all (i.e. Thomas Iyere) whom I have already described as a witness of truth, told court he could not say who exactly the robbers were.
One may then perhaps ask: does the fact of absence of an eyewitness on the point close the case against the prosecution and therefore in favour of the defence? I venture to proffer a negative answer and to add that who between the prosecution and the defence carries the day will perforce depend on the outcome of my close scrutiny of the confessional statements of the accused persons admitted and marked in this proceedings as Exhs. P1, P3 and P3A respectively against the backdrop of other relevant pieces of evidence adduced by the prosecution and the defence thereto.
I kick off my consideration of the afore-mentioned by reference to and reliance on S. 27 (1) and (2) of the Evidence Act, Cap. 112 LFN, 1990, the texts of which I reproduce as follows:
“(1) A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime.
(2) Confessions, it voluntary, are deemed to be relevant facts as against the persons who make them only.”
It is now well settled that for a confessional statement to operate against the maker, (i.e. the accused), it must be direct and positive and admit of no equivocation. There are plethora of authorities on the point. I refer to the case of Effiong v. State. supra cited by Chief Uzamere for second accused.
In that case, the apex court held per Ogwuegbu, JSC, stated as follows:
“In Nigeria, a free and voluntary confession of guilt by a prisoner, whether under examination by a Magistrate or otherwise if it is direct and positive and is duly made satisfactorily proved is sufficient to warrant a conviction without any corroborative evidence, so long as the court is satisfied of the truth of the confession.”
Earlier, the defunct West African Court of Appeal, more commonly called by its abbreviated name “WACA” in the case of R v. Essien (1939) 5 WACA, P.10, held: that a statement cannot be regarded as a confession unless it is direct and positive and not equivocal.
This now takes me to an examination of the confessional statements of the accused persons – Exhs. P.1 by the first accused and Exhs. P.3 and P3A by the second accused. Exh. P1 is 5-sheet 10-page statement, and it is dated 22nd November, 2000. I must observe that in numbering the pages of Exh. P1 by whoever did, it was numbered from pages 1 – 5 as though there were five pages only but in actual fact and from my visual understanding of the document, it is a 10-page document. In numbering the document, account was not taken of the contents of the reverse side of each sheet hence the apparent discrepancy. So, in my consideration of that document and to avoid any doubt, I shall deal with it as a 5-sheet 10-page document.
Now, the portion I find relevant on the point in issue runs from about the middle of line 15 on page 7 (marked page 4) to end of line 2 on page 9 (marked page 5). I reproduce it ipsissima verba as follows:
“The next robbery operation I attended with my gang is at Buvel Filling Station along Murtala Muhammed Way, Benin City. Those of us that carried out the operation includes (sic) myself, Osamede Abbey as the leader, Moses, Lucky, Henry and Jude. We went with a M/Benz 230 car, Ash Colour which we robbed from a man at 8.00p.m. of same date for the operation. We parked the car at a certain Primary School along M. M. Way for sometimes before proceeding to Buvel Filling Station at about 11.00pm. I drove the vehicle to a place close to the Filling Station where I waited in the vehicle, while others went into the filling station. The people that went into the Buvel filling Station went with an Iron Cutter to enable them cut the Protectors. Since I did not go in with them, l did not know what they did in the office and how the (sic) cut the Safe in the office. But the Operation ended at about 2.00a.m., I was not told the exact amount robbed from Buvel as none of them told me. But all of us were given N35,000.00 (thirty-five thousand naira) each as our own share. I later heard that Osamede stole beads from Buvel Filling Station which he sold to one Alhaji Gongola at Lagos Street, Benin City. After the operation, we abandoned M/Benz car at a certain spot along Murtala Muhammed Way towards Ikpoba Slope Benin City.”
In respect of the second accused, Osamede Abbey, as earlier noted, two statements were put in evidence – Exhs.P3 and P3A. Exh.P3 is a 4-sheet 8-page document, but page 1 – 4 without due regard to the content of the reverse side of each sheet. In my consideration of it, however, and as I did in the case of Exh.P1 by first accused, I will treat Exhibit P3 as a 4-sheet 8-page document. Exh.P3A is 1-sheet 1-page document. Exh. P3A which amounts to a confession to the commission of the crime now alleged. I will therefore discountenance that document for purpose of being a confessional statement. In the case of Exh.P3 however, I find relevant the portions running from line 5 on page 5 to line 8 on page 6 which I also reproduce verbatim as follows:
“The next robbery I attended with the gang was the robbery at Buvel Filling Station along Murtala Muhammed Way, Benin City. The robbery was carried out by myself, Okechukwu a.k.a. Oke, Jude a.k.a. Obi, Moses, Henry Omonigho and Lucky. We went to the Filling Station in a Peugeot 504 Saloon which I drove. Initially, I remained outside with Jude a.k.a. Obi to keep watch because the premises of the Filling Station is large. But when I noticed them packing money from the upstairs, I decided to join. I did not know how much they robbed from the upstairs, but my share of the money was N35,000 (thirty-five thousand naira). The coral beads and the foreign currency also robbed from the Filling Station was (sic) with Moses and Henry who promised to sell and change the foreign currency and give us our share of the money. I knew that Henry sold the beads to one Alhaji Gongola, an Hausaman who also changed the foreign currency for them but they have not given us our own share of it till now. I was arrested two months after the arrest of Okechukwu and Jude Maduka a.k.a. Obi…”
Each of the above extracts, taken from Exhs. P1 and P3 (extrajudicial statements of first and second accused) respectively is direct and positive and devoid of any equivocation as to the facts that the maker took part in the robbery charged and the respective roles played. I therefore hold that each of those exhibits eminently satisfies the requirement of what constitutes direct and positive confession. It will be recalled that at some earlier stages in the trial of the accused persons, each of them disowned his extra-judicial statement, a denial which in each case was an admixture of total retraction and contention of involuntariness. If each had merely retracted, ofcourse a trial within trial would not have been necessary but it would have been otherwise if it was merely a contention as to involuntariness, this court conducted for each statement, a full-blown trial within trial and held in respect of each statement that it was voluntarily made. In consideration of the foregoing analysis, therefore, I find and hold (and on this I entertain no scintilla of doubt in mind) that by the accused person’s respective confessions (i.e. Exhs.P1 and P3), they were or at least among the robbers who invaded Buvel Filling Station on Murtala Muhammed Way, Benin City on 25/3/99. This finding thus close the apparent lacunae created in the evidence of P.W.3, Thomas Iyere, that robbers did strike with one of them possessing a gun but could not say exactly who the robbers were. I accept the totality of the evidence of that witness whom I had earlier described as a witness of truth. The result is that I hold as I must that on the occasion charged at least one of the robbers was in possession of a gun and it matters not that neither of the two accused persons had physical possession of it. That concludes the point that the incident of 25/3/99 on which the charge against the accused persons is anchored was armed robbery and not one of breaking and entering simpliciter as canvassed by Mr. Orugbo for first accused. On the point that it matters not who amongst the robbers had physical possession of the gun at the material time, I need hardly state that Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, supra provides the shelter.
I am aware that each of the accused persons in the course of his testimony in defence of himself disclaimed howbeit rather tersely his extra-judicial statement. I am equally aware of the charges, using the word loosely, leveled against those extra-judicial statements by Chief Uzamere for second accused in obvious bid to pillory them. I must also call to mind the need to closely consider the relevant principles of law where the only evidence of probative value against an accused person is his own confessional statement. All of that I will now consider and in doing so, I anchor them on the question: what are the effects of Exhs. P1 and P3?
This court painstakingly reproduced the pages above, to determine whether as argued by the learned Appellant’s counsel, the learned trial Judge had performed the duty imposed upon him by law, in evaluating the evidence before him and ascribing probative values to them. This court on a careful perusal of those pages cited above, is satisfied that, the learned trial Judge, had diligently and meticulously discharged that responsibility. The law is already trite that, the duty to evaluate and ascribe probative value to the evidence is in the province of the trial court and not that of the appellate court. See the Supreme Court decisions in Eze Ibeh v. The State (1997) 1 SCNJ 256 at 271, Wali JSC (as he then was) stated as follows:-
“On evaluation of evidence, I wish to stress firstly, by saying that confirmation of the concurrent findings of facts by this court of the decisions of the two courts below is compelling in the sense that it is an avowed and age-long judicial policy in this country that the evaluation of evidence called at the trial, the ascription of probative values to them and making primary findings of them are matters within the province of the court of trial which has the singular advantage or is pre-eminently placed of hearing the witnesses testify and watching their demeanours. See Balogun & Ors V. Alimi Agboola (1974) 1 All NLR (Pt.2) 66; The Military Gov. of Western State V. Afolabi Lanibe & Anor (1974) 1 All NLR (Pt.2) 179. For this reason, there is a presumption that a trial judge’s decision on facts is correct; a presumption which must be displaced by a person who seeks to upset the decision if he can. An appellate court for its part in such a case should always be reluctant to interfere or to substitute its view of the facts for those of the court of trial. See Ajao v. Ajao (1986) 5 NWLR (Pt.45) 802; Akponugho v. Adja Kodaja (1933) 2 WACA 24.”
In the same year 1997 Onu JSC (as he then was) also pronounced on the subject of evaluation of evidence at the court of trial, in Abel Nkado & Ors V. Ozulike Obiano & Anor (1997) 5 SCNJ 33 at 54 as follows:-
“I am not aware of any rule of law which says that the court should pronounce on every and any piece of paper tendered before it even where such document has no probative value, If a document had been wrongly rejected in evidence, an appellate court could look at it, consider its purport and then order it to be admitted (if it was admissible) and send back the case for the disputed document to be admitted in evidence, before giving its judgment. In the instant case where the document had already been admitted as Exhibit ‘A’ but not pronounced upon, it is my respectful view that the obvious inference is that the court which admitted it had considered its probative value and found it worthless, and so not worth pronouncing upon. In any case the document in question being an exhibit before the appellate court, the appellate court was competent to have looked at the document evaluate it and pronounced on it as to whether it was a worthless piece of paper or not. It is our law that it is the pre-eminent duty of a trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not a Court of Appeal which neither heard witnesses nor saw them to observe their demeanours in the witness box (Ebba v. Ogodo (1984) 1 SC NLR 372). However the Court of Appeal is in as much the same position to evaluate evidence as the trial court where the trial court failed to do so. See Ajakaiye V. Adedeji (1990) 7 NWLR (Pt.161) 192 at 197; Aromolaran V. Oladele (1990) 7 NWLR (pt.182) 359; Obi V. Owolabi (1990) 5 NWLR (Pt.153) 702 at 704.” The learned trial Judge in concluding his exercise on evaluation of evidence before him, on page 285 of the printed records stated thus:
“Having come to the conclusion that each of Exhs.P1 and P3 be and is hereby accorded full weight and effect, the reason is that they each supply the missing link in the evidence of PW3 to the effect that though some robbers, with one of them armed with a gun invaded Buvel Filling Station on Murtala Muhammed Way, Benin City at the wee hours of 25/3/99, he could not however say exactly who the robbers were. Accordingly, Exhibit P1 now given full weight and effect reveals that the first accused was one of the robbers and Exh.P3 which enjoys the same status reveals that second accused was also one of the robbers. I so hold.”
In the satisfaction of the ingredients of the offence of armed robbery, the trial court had earlier on, on page 273 of the printed records stated as follows:
“From the totality of the evidence so far appraised, therefore, I make the following inevitable findings:
(1) That during the early hours of 25/3/99, some robbers invaded the premises of Buvel Filling Station on Murtala Muhammed Way, Benin City.
(2) That at least one of the robbers during the invasion had in his possession a gun with which he threatened the night guard on duty on the said premises, Thomas Iyere who testified as PW3.
(3) That the robbers broke into the Administrative Block of the station and carted away some items of property,”
This court is satisfied that, the learned trial Judge, in the satisfaction of the ingredient required in proof of the offence of armed robbery, has linked each ingredient with the evidence proffered in the case of the Appellant (accused) before him. The law is already settled that, those ingredients must co-exist in the evidence, before the court, for the prosecution to attain a proof beyond reasonable doubt. See Kalgo, JCA (as he then was) in Peter Nwomukoro & Ors v. The State (1995) 1 NWLR (Pt.372) 432 at 443.
“It is settled law and therefore trite that for the prosecution to succeed in proof of the offence of armed robbery there must be proof beyond reasonable doubt of the following:-
(1) That there must be robbery or series of robberies.
(2) That the robbery or each robbery was an armed robbery.
(3) That the accused was one of those who took part in the armed robbery.
Bozin V. State 2 NWLR (Pt. 8) 465 at 469; Amina v. The state (1990) 6 NWLR (Pt. 155) 125 of 135; Okosi V. Attorney-General Bendel State (1989) 1 NWLR (Pt. 100) 642; Nwachukwu V. The State (1985) 1 NWLR (Pt.11) 216; Ani V. The State (2003) 11 NWLR (Pt.83) 142.”
In the final analysis, this court is satisfied that the trial court, had evaluated effectively the evidence before it against the Appellant. There is no reason whatsoever to disturb the evaluation of evidence done by the trial court against the Appellant (accused person). There is no reason before this court to disturb its decision that the prosecution proved its case beyond reasonable doubt before it. I resolve issue No. 3 against the Appellant and in favour of the Respondent.
On the whole therefore, this appeal is unmeritorious and it is hereby dismissed.
The Judgment of Hon. Justice R. I. Amaize sitting at the High Court of Justice Benin City, in the Benin Judicial Division, delivered on the 16th day of June, 2006, in Charge No. 15C/2001, is hereby affirmed by this court.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned brother, SIDI DAUDA BAGE JCA. I completely agree with his reasoning and conclusion. This is a sister appeal to appeal No.CA/B/77CA/2007. I agree with my learned brother that this appeal is without merit and is hereby dismissed. I affirm the judgment of the trial court.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, SIDI DAUDA BAGE, JCA. I am in complete agreement with his lordship’s conclusion that the appeal is unmeritorious and dismissing the same.
Accordingly, I too, affirm the judgment delivered on 16/6/2006 by the lower court in Charge No.B/15C/2001.
Appearances
Chief Uzamere Esq. with S. E Ezomo & O. Omoregie For Appellant
AND
Mrs. V. U. Adeleye ADPP ESMOJFor Respondent
