BELLO ABUBAKAR v. THE STATE (2014)

BELLO ABUBAKAR v. THE STATE

(2014)LCN/7332(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/B/58C/2014

RATIO

EVIDENCE: PROOF BEYOND REASONABLE DOUBT; WHETHER PROOF BEYOND REASONABLE DOUBT DOES NOT ENTAIL PROOF BEYOND ANY SHADOW OF DOUBT AND THE EVIDENCE REQUIRED TO PROVE THE INGREDIENT OF THE OFFENCE ALLEGED

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED CAN BE CONVICTED SOLELY ON HIS CONFESSIONAL STATEMENT
Indeed it is trite 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: Ikpo vs The State (1995) 33 LRCN 587 at 601. The law goes further to assert the desirability of the courts to find corroboration, outside the confessional statement, no matter how minimal. per. HAMMA AKAWU BARKA, J.C.A.

EVIDENCE: CORROBORATION; THE DEFINITION OF CORROBORATION
In this situation I find the definition of the word corroboration, in Jibrin Okabichi and Ors vs The State 1975, LPELR 2406, appropriate,
“We hold that evidence in corroboration, must be independent testimony which affects the accused by connecting or tending to connect him with the crime”.
The Hon. Justice Niki Tobi (J.S.C), clearly and in his characteristic manner said,
“Corroboration entails the act of supporting or strengthening a statement of a witness by fresh evidence of another witness. Corroboration does not mean that the witness corroborating must use the exact or very like words, unless the matter involves some arithmetic’s: Sale Dagayya vs The State (2006) 7 NWLR (pt.980) 637“. per. HAMMA AKAWU BARKA, J.C.A.

JUSTICES:

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

Between

BELLO ABUBAKAR – Appellant(s)

AND

THE STATE – Respondent(s)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State, Asaba Division, delivered on the 17th of December 2013, in suit no. A/15c/2013. By the said judgment the Lower Court convicted the appellant on three of the five counts of the charge, of kidnapping, stealing, and demanding with menace, contrary to Sections 364, 390, and 406 of the Criminal Code Cap. C21, Vol.1 Laws of Delta State 2006, and sentenced, him to six years, five years, and two years respectively. The charge against the accused person, reads as follows:-
Particulars of offence, Count I
Bello Abubakar (m) on or about the 2nd of September 2012 conspired with others now at dead to commit a felony to wit kidnap.

Particulars of offence, Count II
Bello Abubakar (m) on or about the 17th of May 2012, at Anwai Road in the Asaba Judicial Division unlawfully imprisoned one Dr Hyginus Opara in a manner that made it impossible for anyone to discover the place he was imprisoned.

Particulars of offence, Count III
Bello Abubakar (m) on or about the 17th of May 2012 at Anwai Road within Asaba Judicial Division stole the sum of three million naira property of one Dr Hyginus Opara.

Particulars of offence, Count IV
Bello Abubakar (m) on or about the 17th of May 2012, at Anwai Road within Asaba Judicial Division demanded the sum of N50,000,000 (fifty million naira) from one Mrs Opara Hyginus with the threat of killing her husband Dr Hyginus Opara if the said demand was not complied with.

Particulars of offence Count V
Bello Abubakar (m) on or about the 17th of May 2012, at Anwai Road in the Asaba Judicial Division robbed one Dr Hyginus Opara of his I. D card, ATM card and wedding ring.

The appellant pleaded not guilty to all counts of the charge read to him. The prosecution in proving the case, called three witnesses, and tendered exhibits, the alleged confessional statement of the accused person, Exhibit A, and Exhibits 81 to 84, the statements of Mohammed Mamudu, Hammadu Audu, Ikechukwu Ikani, and Monday Chukwudebe respectively. It should be mentioned that, when the prosecution, sought to tender Exhibit A, the alleged statement of the appellant, objection was raised to the effect that he was not the maker. The objection was over ruled, and the statement admitted in evidence. At the close of the prosecutions case, the appellant made a no case submission, which was over ruled. The appellant later gave evidence in his defence, and closed his case. At the end of trial, the court, acquitted the appellant on counts 1, and 5, but found the appellant guilty, on counts 2, 3, and 4, and sentenced him according to law. The appellant being dissatisfied with the judgment of the Lower Court, filed two notices of appeal, the one filed on the 21/1/2014, contained the omnibus ground, while the notice filed on the 7/2/2014 contained nine grounds of appeal.
In his brief dated the 19th of February 2014, and filed on the 20th of February 2014, settled by Ekeme Ohwovoriole, of counsel to the appellant, five issues were formulated thus:-
“1. Whether the Lower Court denied the appellant fair hearing and occasioned a miscarriage of justice by failing to consider and pronounce on the appellants submissions which urged the court, not to attach any weight to the alleged confessional statement of the accused person in Exh. A, which was said to have been recorded by PW2 even before he arrested the accused person.
2. Whether the Lower Court was not wrong to rely on the alleged confession in Exh. A as proof of the appellants’ guilt when the document did not pass the tests laid down in a plethora of cases for its veracity.
3. Whether having regard to the evidence on record, the identity of the appellant as the person who kidnapped PW3 was established beyond reasonable doubt.
4. Whether the Lower Court was right in holding that the prosecution had established its case beyond reasonable doubt, when the evidence of the prosecution witnesses, are unreliable, unconvincing, and fall far short of the standard required to establish proof of guilt in a criminal trial.
5. Whether the Lower Court rightly held that the prosecution proved the offence of demanding with menace from an alleged victim who was not called by the Prosecution.
The respondent’s brief, dated and filed on the 31st of March 2014, settled by Enenmo O. F. Deputy Director Public Prosecution, Delta state, of learned counsel for the respondent, proposed two issues in the settlement of this appeal, viz:
“1. Whether the learned trial judge was right in law when he held that the prosecution proved the case of kidnapping,stealing and demanding with menace against the appellant beyond reasonable doubt.
(Grounds 3, 5, 7 and 8).
2. Whether the learned trial judge was right in law, when he relied on exhibit A, the confessional statement of the appellant in convicting him. (Grounds 1, 2, 4 and 6).”
On the 13th of May 2014, the scheduled date for the hearing of the appeal, both counsel adopted their briefs of argument.
The facts leading to the present appeal, from the records, is that sometimes on the 2/9/2012, one Mrs Victoria Ngozi Ofor, on her way to church, was about to be kidnapped by unknown persons, when her son in law Jude Molokwu, came to her rescue. In the process, the kidnappers, pushed Jude Molokwu in their car, and sped away. She reported to the police at Issele-Uku Police Station. On the 4th of September, 2012, Miss Juliet Ogbe, reported the same matter to the Special anti-kidnapping squad of the Delta State police command, and PW2, Sgt Julius Robinson and his team were assigned the case for investigation. The kidnappers opened communication with the family of their victim demanding five million naira, and with the help of a tracking device, two suspects, Amadu Audu and Ifeanyi were arrested, at the point the family were about to pay the ransom amount. Under interrogation, the suspects took the team to their hideout, a forest behind the Delta State University Anwai Campus. The police now set out on a rescue mission, and in the process, a gun duel ensured, two other suspects, Ikechukwu Ikanu, and one Friday were arrested, and the victim rescued. At the station, the four suspects were cautioned, and their statements taken, wherein they mentioned the name of the accused person as one of their members, who supplied the pump action the gang was using. One of the suspects, mentioned the address of the accused person/appellants shop. Curiously the four suspects were taken to hospital, where they later died of gun wounds sustained during the operation to rescue the kidnapped victim. The prosecution, through PW 2, continued the story from here, and said he alone now, booked and went to the shop of the appellant, and effected his arrest, and took him to the police headquarters. There, he (PW 2) cautioned and recorded appellant’s statement, wherein he (the appellant) denied being a member of the gang that kidnapped Mr. Molokwu, but made other confessions of other kidnappings, he participated, with the said gang. In particular, he mentioned the kidnap of one Dr Hyginus Opara of the FMC Asaba, kidnapped on the 17/5/2012, where they demanded the sum of three million. The house was traced, the doctor identified the accused, and the appellant begged for forgiveness from the doctor. The other victim is one Mr Chukwudime, who identified the appellant as a member of the gang that once kidnapped him and demanded one million, five hundred thousand naira. That subsequently, appellant took the team to the house of another victim, a pregnant woman, Mrs Victoria, who was kidnapped by the gang, and the sum of two million collected as ransom. It is worthy of note that when the prosecution, sought to tender the statement of the appellant through PW2, the defence objected on the ground that the document was not made by the appellant, and when the defence equally sought to tender the statements of the four deceased suspects, the prosecution objected. The statements were however all admitted by the court. Based on the aforesaid, the appellant was taken to court, convicted and sentenced accordingly. The appellant has a different story. After denying all the charges levelled against him, he denied being the maker of exhibit A. That as at the 17/5/2012, he travelled to Northern Nigeria for ramadhan, and left one Mohammed Adamu, in charge of his laundry business. That upon his return, he had to sack the worker, having failed to remit any money to him for the period he travelled, and the said Mohammed Adamu told him that since the appellant has sacked him, he will have problems, and that this worker, was the one who instigated the PW2, to arrest, and frame him with a criminal charge.
Learned counsel for the appellants, submission on the issues is at pages six to twenty seven of the brief.
Learned counsel submits that the Lower Court denied the appellant the right of fair hearing when it failed to consider the appellants submission not to attach any weight to the alleged confessional statement of the accused person. He argues that ex. 1 was recorded even before the appellant was arrested, and that the trial judge relied heavily on it to convict him. It is his contention that from Exh. A, the accused was cautioned on the 9th of September 2012, as against the 7th of September 2012. Counsel submits that the issues of doubt arising from when the exhibit was made was not considered, and though counsel by written addresses tried to show that Exh. A was not made by the appellant, by drawing doubts, the trial court failed to consider and to examine the defence. He cites the case of Olayinka vs. The State (2007) 9 NWLR (Pt.1040) 561 at 586-587, to support his contention.
It was thus submitted that the Lower Court relied heavily on the alleged confessional statement in convicting the appellant, when the document was not subjected to the judicial test in ascertaining its veracity. He argues that the appellant having denied being the maker of the document, the judge was duty bound to test the veracity of the statement and to arrive at a finding. To support this proposition, counsel cited Musa Vs. The State (2013) (LPELR) 19932, and Kazeem Vs The State (2009) All FWLR (pt 455) 1749. He considered the entire evidence on record as against the veracity of Exh. A, the evidences of PW1 – PW3 in respect of the six way test, and submits that the entire prosecution was initiated by the PW2, and founded on lies. He submits further, citing copiously from the contents of the record that the evidence of the appellant to the effect that he travelled to the northern part of the country on the 17th, being the date of the alleged incident was not cross examined nor controverted, and by the authority of Moghalu Vs. Ude (2000) 4 WRN 13 at 23, ought to be regarded as the truth.
He contends further that, the trial judge relied on Exh. A, because the personal details of the appellant, were captured in the statement, and argues that the bio data could have been obtained from other sources, and the trial judge, should have gone further to test the authenticity of the statement. He referred to the evidence of the accused, when he said he gave his statement to a female officer and not to PW2, and curiously, counsel argues, the alleged statement was not taken for attestation before a superior police officer.
As to whether from the evidence on record, the identity of the appellant as the person who kidnapped PW 3 could be said to have been established, counsel contends that the court relied on the statement of the accused person as well as the evidence of the PW3 in that regard. He argues that the application of the case of State Vs. Salawu (supra) ought to have gone in favour of the accused person, as the Supreme Court stated emphatically that the confessional statement has to be assessed and evaluated in the light of the evidence placed before it. He referred to the evidence of PW3, where he said it was the police who told him (PW3) that the accused was his kidnapper, and that the failure of the prosecution to conduct an identification parade was fatal to the prosecutions case: Ochuba Vs. The State (2011) 17 NWLR 1277; Eyisif Vs. The State (2000) 15 NWLR (697) 555, and Nwaturuocha vs. state (2011) 6 NWLR (pt.1242) 170, submits that identification parade is a sine qua non, especially as the accused was not apprehended at the scene of crime, and In the instant case, the offence took place four months before the arrest of the accused person, and the victim prior to the incident never knew the accused. He commends the case of Peter Vs the State (2013) LPELR 20302 at p.30; Ndidi Vs. The State (2007) 13 NWLR (Pt.1052) 633 at 653, and Hausa vs. The State (1994) 6 NWLR (pt 350) 28, concluding that the identity of the accused person was not proved as required by law.
The learned counsel for the respondent in his brief submits that the trial court was right to rely on the confessional statement of the accused person in convicting him. He states that though the statement was objected to as not having been made by the accused person, the trial judge rightly admitted the statement, and at the end made a finding to the effect that the statement was that of the accused person. Counsel referred to page 119 of the record where the judge, relied on the biodata of the accused in his alleged statement as well as evidence in court corroborating each other, and contend that the trial judges finding is supportable. Counsel concedes that though it is true that the date of the confessional statement predates the date of arrest, it cannot be used to set the accused person free. He argues further that failure by the trial court to make any finding as to the discrepancies in the dates did not breach the appellants right to fair hearing. As to whether the court can convict on the accused persons confessional statement without more, counsel argues that an accused person can be convicted on the accused person’s confession alone, and cited the case of Mansuru Solola Vs. The State (2005) 127 LRCN p. 1091, and Stephen Vs. the State (2013) 233 LRCN (pt. 2) 215, at 228. He submits further that failure to subject the statement to further tests is not a ground for setting aside the decision. Counsel relied on the case of the State vs. Salawu and submits that it is not necessary to conduct any identification parade in this case as the accused person by his confessional statement has identified himself.
Issues 1, 2 and 3, raised by the appellants are similar to issue 2 raised for the respondent, while issues 3 and 4 raised by the appellant and issue 1 raised by the respondent are also similar. It is my considered view, that the issues raised are all inter twined, I shall therefore consider all the issues at the same time.
The offences alleged against the accused person are for kidnapping, stealing and demanding by menace. To secure a conviction, it lies on the prosecution to prove each of the counts of the charge beyond doubt. Where the court has any doubt, it must be resolved in favour of the accused person. The law is so in view of the constitutional proviso, to the effect that an accused person is presumed innocent unless proven guilty.

It is the law that proof beyond doubt does not entail that the proof must be beyond any shadow of doubt. Moses Vs. State (2010) 43 WRN 1 at 24, Bolaji Oreno vs. state suit No. CA/B/311C/2013. The proof required, is for the prosecution by credible and admissible evidence prove the ingredients of the offence alleged. The law is settled that the evidence required could flow in one or more of the following,
i. Direct evidence of witnesses,
ii. Circumstantial evidence
iii. By admission and confessions of the very people accused of the crime.
Stephen Vs. State (2013) 223 LRCN (pt.2) 215; Ogunzee Vs. State (1998) 58 LRCN 3512 at 3551; Edamine Vs. State (1995) 3 NWLR (pt.58) 530.
It is clear from the width and breath of the evidence adduced that there is no direct evidence of the commission of the offences by the accused person. This is because the prosecution’s case is that one Mr Molokwu was kidnapped by a gang of kidnappers. In the process of rescuing the victim, four of the suspected kidnappers were shot by police, who later died on admission at the hospital. Before the suspects death however, they gave the police statements, maintaining the accused person as a member of the gang as well as his address. The accused was arrested, and made a statement before the police, and in the confessional statement he denied being a member of the gang that kidnapped Mr. Molokwu, but that he had been a member of an earlier kidnapping of one Dr. Opara Hyginus. This piece of evidence is from PW2, the investigating police officer, and also contained in the alleged confessional statement. Looking at the evidence adduced by the witnesses who gave evidence for the prosecution, it can be clearly seen that PW1 Mrs Victoria Ngozi Ofor, does not know the accused person. Sgt Julius Robinson gave evidence, to the effect that a case of kidnapping was referred to his team, for investigation. The entirety of his evidence relates to how the kidnap victim was rescued, and the arrest of the appellant, as well as to how he recorded a statement from him. This witness also recorded other statements marked B1- B4 respectively. PW3, Dr Hyginus Okpara is the victim of the kidnapping of 17/5/2012. He narrated how he was kidnapped and subsequently rescued, and on the 9/9/2012, what happened, when the appellant was brought to him for identifications.
Looking at the entire circumstance of the case it would appear that the learned trial judge based his decision almost entirely on the confessional statement of the accused person. At page 119 – 120 of the record, the Lower Court stated;
“The court will attach probative value on Exh. A, the statement, of the accused person. The statement is a confessional statement. It contains all the ingredients of kidnapping, stealing and demanding with menace.
This confessional statement alone constitute enough evidence to convict the accused person for the offences of kidnapping and stealing as the court can convict alone on a confessional statement of an accused person once it is direct positive and unequivocal about his committal of the offence, so long as the court is satisfied with the truth of such confession. The court can therefore convict on his confessional statement.”
Indeed it is trite 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: Ikpo vs The State (1995) 33 LRCN 587 at 601. The law goes further to assert the desirability of the courts to find corroboration, outside the confessional statement, no matter how minimal.
The appellant now impeaches the retracted statement allegedly made by him, stating that while he was arrested on the 9/9/2012, the statement was said to have been recorded on the 7/9/2012, two clear days before his arrest. He complains also that his submission that the exhibit ought not to have been admitted, in view of the lapses pointed out was not considered.
The law is that,
“Where an accused person resiles his statement, on the ground that he did not make the statement, confessing to the crime charged, it is a question of fact which the trial court must decide, it does not make the statement inadmissible, it must be considered along with the entire evidence and circumstance of the case, for the weight to be attached to such statement”. Nwangbomu v. State (1994) 2 NWLR (pt.327) 380; Iregu v. State (2013) 12 NWLR (Pt.1357) 92 at 118.
In view of the above cited case law, the Lower Court rightly applied the law in admitting the statement. What remains is the fact to be decided by the court, whether the statement was indeed made by the appellant, and to ascribe the weight the statement should carry, based on certain basic principles laid down.
One fundamental issue raised by the appellants, which cannot be glossed away, pertains to the discrepancy on the date the accused was arrested, and when the statement was taken. The respondent counsel, though conceding to the fact that the statement preceded the date of accused person’s arrest, submits that it is a mere discrepancy which does not affect the substance of the case. I am unable to agree with the learned counsel in view of the doubt being cast on the authenticity of the document. A finding as to when the accused was arrested, and when his statement was recorded is vital, as the statement of an accused person cannot be taken before his arrest. I do agree that once an issue is placed before a court, that court is duty bound to determine it one way or the other, failing which, a miscarriage of justice would certainly without doubt be said to have occasioned. See the case of Brawal Shipping v. Onwudikoko (2000) 6 SCNJ 508 at 532.
I view learned appellants Counsel’s argument therefore that, the statement ought to have been subjected to the six way test as laid down through the cases as well founded. That is, that the statement be weighed against the following questions;
i. Is there anything outside the confession to show that it is true?
ii. Are the statements of fact made in the confession true as far as they can be tested?
iii. Did the accused person have the opportunity to commit the offence?
iv. Is his confession probable?
v. Is the confession consistent with other facts which have been ascertained and proved at the trial? Musa v. The State (2013) LPELR- 19932; and Kazeem v. The State (2009) All FWLR (Pt.465) 1749; Osetola v. The State (2012) All FWLR (Pt.694) 1020 at 1040.
The Lower Court at page 120 – 121 of the record, considered the above laid down principles, and concluded as follows:-
“In the instant case the needed corroboration is found in the evidence of PW 2 and PW3.”
The learned Judge made reference to the evidence of PW1, and concluded that the statement of the accused person is on all fours with the evidence of the investigating police officer (PW2) and the victim (PW3).
With due respects to the learned trial judge, I think the trial court failed to give serious consideration to some basic issues in arriving at his decision that exh. A, was indeed the confessional statement of the appellant. Exhibit A was recorded by PW2, whose evidence is a repeat of the contents of the appellant’s alleged statement. The courts reliance on the biodata of the appellant was done inspite of the fact that appellant stated that he made a statement upon his arrest to a police woman, and the possibility, of the biodata there from being used cannot be ruled out.
In this situation I find the definition of the word corroboration, in Jibrin Okabichi and Ors vs The State 1975, LPELR 2406, appropriate,
“We hold that evidence in corroboration, must be independent testimony which affects the accused by connecting or tending to connect him with the crime”.
The Hon. Justice Niki Tobi (J.S.C), clearly and in his characteristic manner said,
“Corroboration entails the act of supporting or strengthening a statement of a witness by fresh evidence of another witness. Corroboration does not mean that the witness corroborating must use the exact or very like words, unless the matter involves some arithmetic’s: Sale Dagayya vs The State (2006) 7 NWLR (pt.980) 637“.
The evidence of PW2 which the learned Judge relied on is no more than a recital of the contents of the statement which seeks corroboration, and if corroboration entails fresh evidence, the evidence of PW2 cannot qualify. This is more so, when the contents of Exhibit 81 to 84, fail to support PW 2’s, statement that the name and address of the appellant was mentioned. This leads to the evidence of PW3. The relevancy of the evidence of this witness, borders on his identification of the appellant. The evidence is captured at pages 66 – 69 of the record. I reproduce his evidence on the appellant’s identification, at page 68,
“I was driving to church with my family, when at the junction where I was kidnapped, I saw a police patrol van approaching, they stopped by me and confirmed my identity by asking my name, which I concurred to a man in their custody was subsequently brought out from the van, and I was asked if I knew him. I said no, they now asked the man, is this the person you kidnapped and the man said yes. I noted that I didn’t doubt that he was the one based on his voice which is a northern accent, and his statute, because the person that pointed the gun at me when I was kidnapped had a northern accent with this stature before I was blindfolded”.
He continued at page 69, on being examined.
“I was blindfolded throughout on the date the police stopped me on the way, they asked the accused if this was the man you kidnapped, he said yes, before the police told me this is your kidnapper”.
The law is that, the identification of an accused person must be very carefully conducted, and it is very wrong to point out the suspected person, as is the case in the instant matter, and to ask, “is that the man” the usual and proper way is to place the suspected person with a sufficient number of others and to have the witness pick out the accused without any assistance. It is highly improper to invite a witness(es) to identify the appellant not mixed up with other people:
Samuel Bozin vs The State (1935) 2NWLR (pt 8) 465.
The logical inference from such identification is that it is faulty and unsatisfactory, consequently of no evidential value.
Quite apart from the issue of identification, there is nothing in Exhibit B1 – B4, supporting the assertion by PW2, that his information about the appellant being one of the members of the gang that kidnapped PW3.
Having painstakingly perused the evidence led by the 1st, 2nd and 3rd prosecution witnesses, it is glaring, that the alleged statement of the appellant, has not been corroborated in any material particular, in support of the trial courts finding that the statement was indeed that of the appellant. The finding not having support from the evidence adduced, it is perverse, having been wrongly admitted. This court therefore has the duty and the power to exclude or expunge the wrongly admitted evidence. Haruna vs A.G. of the Federation (2012) 209 LRCN 70.
The inevitable conclusion is that the Lower Court was wrong to have relied on the purported document, which is inadmissible in the first place to convict and to sentence the appellant. It is clear that the identity of the appellant was defective, not in consonance with the tenets of the law.
Regrettably, there is evidence that Pw3, Dr Hyginus Opara, of the Federal Medical Centre Asaba was kidnapped on the 17/5/2012. The word kidnap means “to seize and take away a person by force or fraud with or without a demand for ransom”. See, Edet vs. The State (2013) LPELR 21410. The onus of proof is on the prosecution, to lay cogent admissible evidence, in support of the charge. In the instant case, the trial court wholly relied on the purported and discredited statement of the appellant, to convict the appellant. The statement having been expunged, the case against the appellant collapses as there is no evidence left to sustain it. The conviction under that head of the charge having not been proved, the appellant is entitled to a discharge and acquittal.
Without the discredited statement, the conviction of the appellant as regards to the offences of stealing, and demanding with menace, cannot stand, without proof. This is because the ingredients of the offence that needs to be established, includes, a) that there was a demand, (b) that the demand was made with a threat, and (c) that the demand was made with the intent to steal. The prosecution as usual dwelt on the alleged confession of the appellant. The woman, to whom the threat was made to, being a material witness was not called, and consequently the vital evidence as to whether the appellant stole the money was not properly proved as required by law. The prosecution, and the Lower Court, having relied on the alleged statement of the appellant, which was discredited, the charge against him cannot also stand.
In conclusion, the trial court having acted on inadmissible evidence to convict and to sentence the appellant, the said conviction and sentence cannot be allowed to stand. This appeal therefore succeeds, and it is hereby allowed by me. The conviction and sentence of the High Court of Justice, No. 5 Asaba, in suit no.A/15C/2013 decided, on the 17th of December 2013, is hereby set aside.
The appellant is discharged and acquitted.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having read, before now, the Judgment in draft, just delivered by my learned brother, H. A. Barka, JCA, I cannot but concur with the reasoning and conclusion reached therein, to the effect that the instant appeal is meritorious. Hence, I hereby equally allow the appeal and set aside the conviction and sentence passed upon the Appellant by the High Court of Delta State, Coram M. O. Omovie J. on 17/12/13, in Charge No.A/15C/2013. The Appellant is accordingly discharged and acquitted by me.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother, HAMMA AKAWU BARKA JCA, I am in agreement with the manner in which the issues identified for the determination of the appeal were resolved given the exposition of the law on those issues. I have nothing more useful to add to the lucid lead judgment.
In the circumstances, I do, find this appeal successful, and it is hereby allowed by me. The conviction and sentence of the High Court of Justice, No.5 Asaba, in suit No.A/15C/2013 decided on the 17th of December 2013, is hereby set aside. The appellant is discharged and acquitted.

Appearances

E. O. Ohwovoriole Esq., with Anyasi (Mrs), I. Igbinigie (Miss) For Appellant

AND

O. F. Enenmo Esq., Deputy Director for Public Prosecution, Ministry of Justice, Delta State with O. Ajuwaghan For Respondent