ASU ABANG v. THE STATE
(2014)LCN/7502(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of November, 2014
CA/C/53CA/2013
RATIO
EVIDENCE: CONFESSIONAL STATEMENT; WHETHER THE CONFESSIONAL STATEMENT OF AN ACCUSED ALONE CAN GROUND HIS CONVICTION
The confessional statement of an accused person is sufficient to ground his conviction. per. ONYEKACHI AJA OTISI, J.C.A.
CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE INGREDIENT OF ARMED ROBBERY
As was rightly submitted for the Appellant, the prosecution, in order to ground a conviction for the offence of armed robbery, must prove, beyond reasonable doubt, the following:
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery.
See: Bolanle vs. State (2005) 11 NLR (PT 936); Attah v. State (2010) CLR 3(t) (SC) 3(PT IV) MJSC 139; Afolabi v. State (2013) 6-7 MJSC (PT 1) 1.
In order to establish the offence of armed robbery, the pieces of evidence which need to be before the court can be grouped into three:
1. Direct evidence of an eye witness;
2. Circumstantial evidence; and
3. Confessional statement(s). See: Onyenye vs. State (2012) LPELR-7866 (SC). per. ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE: STANDARD OF PROOF; THE STANDARD OF PROOF IN CRIMINAL CASES
Although the standard of proof required to ground a conviction for the offence of armed robbery is proof beyond reasonable doubt, as rightly submitted for the Respondent, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. It simply means that there is credible evidence upon which the court can safely convict, even if it is upon the evidence of a single witness. In Afolalu v State (supra) also reported in (2010) 6-7 MJSC 187, (2010) 16 NWLR (PT 1220) 584, the Supreme Court, per Mohammed JSC said: The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of section 138(1) of the Evidence Act. Therefore if on the entire evidence adduced before a trial court, that court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. See Alonge v. Inspector-General of Police (1959) SCNLR. 576: Fatoyinbo v. Attorney-General of Western Nigeria (1966) W.N.L.R. 4 and The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512. per. ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; THE WEIGHT ATTACHED TO CONFESSIONAL STATEMENT AND THE TESTS TO BE APPLIED AND OR FOLLOWED IN DETERMINING THE ISSUE OF WEIGHT TO BE ATTACHED TO CONFESSIONAL STATEMENTS
The law is clear and settled on the point that for a confessional statement to attract and support a conviction. It must be proved to be free, voluntary, unambiguous, true, direct and positive to ground a conviction. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying:
“…the highest place of authenticity when it comes to proving beyond reasonable doubt.”
See: Mustapha Mohammed vs. State (2007) 11 NWLR (PT 1045) 303. See also: Dawa vs. State (1980) 8-11 SC 236; Osung vs. State (2012) 6-7 MJSC (PT11) 1:
Galadinma vs. State (2012) 12 MJSC (PT111) 190; Fatai vs. State (2013) 2-3 MJSC (PT1) 145. It is however, desirable to have outside the appellant’s confession at the police some evidence however slight, of the circumstances which made it probable that the confession was true. See: Emeka vs. State (2001) 14 NWLR (PT. 734) 666; Akpan vs. State (2008) 4-5 S.C. (PT. II) 1; Galadinma vs. State (supra).Such further or additional evidence are applied to determine the weight to be attached to the confessional statement.
Certain tests to be applied and or followed in determining the issue of weight to be attached to confessional statements were laid down in R v Sykes (1913) 8 Cr. App R 233 and approved in Kanu v R (1962/55) 14 WACA 30. By these tests, the judge must ask him self these questions:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is the confession consistent with other facts which have been ascertained and have been proved?
The trial judge ought to be satisfied with the answers to these questions; Mbang vs. State (2012) 6-7 MJSC (PT IV) 119 at 148; Osetola vs. State (2012) 6-7 MJSC (PT 11) 47. If the confessional statement passes these test questions satisfactorily, a conviction founded on it is invariably upheld, unless there are other grounds of objection.
If the confessional statement falls to pass the tests, no conviction can properly be founded on it. See: Edet Obosi v The State (1965) NMLR 129; Jimoh Yusufu vs. The State (1976) 6 S C 167; Egboghonome vs. State (1993) 7 NWLR (PT 306) 383; Lasisi vs. State (2013) 2-3 MJSC (PT 11) 172 at 148. per. ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE: STANDARD OF PROOF; WHEN IS AN OFFENCE PROVED BEYOND REASONABLE DOUBT
Where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. See: Osetola vs. State (2012) LPELR-9348(SC); Alabi vs. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi vs. State (2013) 2-3 MJSC (PT.1) 59. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 (formerly Section 139 of the Evidence Act, Laws of the Federation of Nigeria, 1990). per. ONYEKACHI AJA OTISI, J.C.A.
JUSTICES:
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH JUDE JELLA Justice of The Court of Appeal of Nigeria
Between
ASU ABANG – Appellant(s)
AND
THE STATE – Respondent(s)
ONYEKACHI AJA OTISI, J.C.A (Delivering the Leading Judgment): The Appellant was charged along with two other co-accused persons on an information with one count of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Cap. 11, Laws of the Federation of Nigeria, 2004 before Hon Justice B.T. Ebuta, J. of the High Court of Cross River State, Ikom Judicial Division. The Appellant was the 2nd accused person. The particulars of the offence charged read as follows:
Agim Sunday, Asu Abang and Chinedu Emeka on or about the 1st day of October, 2009 at Katabang Junction in Boki Local Government Area at about 1.00 am while armed with locally made gun, matchets and a dagger did rob Agbor Frank Ojong of the sum of N285,000.
The Appellant and the co-accused persons all pleaded not guilty to the charge. At the trial, the prosecution, now the Respondent, called two witnesses namely, Agbor Frank Ojong, the complainant, who testified as PW1 and Sergeant Okpokam Thomas, the IPO, who testified as PW2. The Respondent also tendered Exhibits marked Exhibit 1 – 5b. The Exhibits included the statements of the Appellant and other co-accused persons; a leather bag containing clothing; the sum of six thousand, six hundred Naira (N6,600); a white Qlink Motorcycle, 3 machetes and one locally made single barrel long gun.
The Appellant testified in his own defence as DW2 while the 1st and 3rd accused persons each testified in his own defence as DW1 and DW3 respectively. The 1st accused person had called on additional witness, his biological father, who testified as DW4.
At the conclusion of the trial, the Appellant and other co-accused persons were convicted by the learned trial Judge on November 7, 2012 and sentenced to death by hanging. Being dissatisfied with the said judgment, the Appellant instituted this appeal. His Notice of Appeal, dated the November 19, 2012 was filed on December 5, 2012, raising one ground of appeal.
The Appellant’s Brief of Argument was settled by Essien E. Udom, Esq. and Samuel Akpabio, Esq. on 8/10/2013, and deemed properly filed and served on 9/10/2013. The Respondent’s Brief was settled by P.S. Bisong, Esq., Director, Public Prosecution, Ministry of Justice, Cross River State, on 12/11/2013 but deemed properly filed and served on 8/5/2014. These Briefs were, respectively, adopted by S. Akpabio, Esq. learned Counsel for the Appellant; and, by P.S. Bisong, Esq., the learned D.P.P., on 22/9/2014.
From the ground of appeal, the Appellant distilled a sole issue for determination as follows:
Whether having regard to the entire evidence before the trial Court, the Prosecution had proved beyond reasonable doubt the guilt of the Appellant for an offence of armed robbery.
The Respondent adopted the sole issue as formulated by the Appellant, for determination.
It was submitted for the Appellant that the law is well settled 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 was a robbery or series of robberies;
2. That the robbery or each robbery was an armed robbery; and,
3. That the accused was one of those who took part in the armed robbery; relying on Attah vs. State (2010) 10 NWLR (PT 1201) 190; Suberu vs. State (2010) 8 NWLR (Pt.1197) 586.
The provisions of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which provides that an accused person is presumed innocent until proven guilty, shifts the onus of proof on the prosecution; and, the burden is discharged by proof beyond reasonable doubt.
Reliance was placed on Iko vs. State (2001) 14 NWLR (PT 732) 221 at 263; Isibor vs. State (2002) 3 NWLR (PT 754) 250 at 277. That, having regard to the evidence, the prosecution did not satisfy this requirement of the law as there was no credible evidence to link the Appellant to the alleged armed robbery.
The Appellant was not arrested of the scene of crime. The only evidence to link the Appellant and the co-accused persons to the crime was the evidence of PW1 who said he saw the Appellant and the 1st accused person at the scene of crime. He did not testify that he saw the 3rd accused person. PW1 testified that the crime took place at 1.00 am. He had identified the Appellant and the 1st accused person by their appearance and not by their voices. He further testified that there was a forest by the side of the rood. Learned Counsel for the Appellant questioned how a person could be recognized at that place and time of the night; and, submitted that the identification of the Appellant and the 1st accused person in the circumstance was mere suspicion, which cannot ground a conviction. He then submitted that there is no credible evidence to fix the Appellant of the scene of crime.
That considering the crime scene, which was surrounded by a forest, and the time of the night, PW1 could not have identified the robbers despite the headlights of his vehicle.
It was submitted on this basis, that the learned trial Judge came to a wrong conclusion when he held that the Appellant was identified at the scene of crime by PW1. That, from the totality of the evidence adduced by the prosecution, it was not established that the Appellant committed the crime. The three ingredients required to establish armed robbery had not been established. If one ingredient of the offence was not established, then the prosecution did not prove its case beyond reasonable doubt.
On the statement alleged to have been made by the Appellant, it was submitted that the testimony of the Appellant that he was led by the IPO to believe the document he was asked to sign was his bail bond was not contradicted. The statement cannot be relied upon to convict the Appellant. The Court is finally urged to hold that the Respondent failed to prove their case, and allow the appeal.
In reply, the learned DPP submitted for the Respondent that in establishing the guilt of an accused person in a crime of armed robbery, the prosecution has three ways of proving crime:
1. Direct evidence of eyewitnesses or victims of the robbery;
2. Confessional statement(s) of the accused admitting his involvement in the crime alleged against him; and
3. Circumstantial evidence which points irresistibly that the accused and no one else committed the crime alleged against him: relying on Igabele vs. State (2006) 5 MJSC 96 at 100
The duty of proving the guilt of the accused person lies with the prosecution; relying on Section 135 of the Evidence Act, 2011.
There was an eye witness to the crime and thus direct evidence from the scene of crime, a fortiori, the commission of the offence. The evidence of PW1 was direct, cogent, consistent, as well as unequivocal with respect to the identity of the Appellant and his participation in the crime. His evidence is sufficient to ground the conviction of the Appellant; relying on Olayinka vs. State (2007) 2 NCC 505 at 508; Afolalu vs. State (2010) 43 NSCQCR VOL. 43 pg. 227 at 230-251; Ikemson vs. State (1989) 1 CLRN 1 at 6-7.
It was submitted that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. Once proof drowns the presumption of innocence, the court is entitled to convict, though there exists a shadow of doubt. That the moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or actus reus or both, the Prosecution has discharged the burden placed on it by section 138(3) of the Evidence Act: relying on Dibie vs. State (2007) 9 NWLR (PT 1038) 38 at 56-57, per Niki Tobi, JSC.
The confessional statement of an accused person is sufficient to ground his conviction. The said statement of the Appellant was admitted in evidence as Exhibit 2 after the trial court had overruled the objection to the admissibility of the said statement, holding that the objection was not as to its voluntariness; that what was left was the issue of weight and probative value to attach to the said statement. The statement of the 1st accused person was admitted, without any objection, as Exhibit 1, while the statement of the 3rd accused person was also admitted without objection as Exhibit 3. These statements were all confessional in nature. The statements, Exhibits 1, 2, and 3 implicate the Appellant and the other accused persons. The court was finally urged to uphold the conviction of the Appellant.
As was rightly submitted for the Appellant, the prosecution, in order to ground a conviction for the offence of armed robbery, must prove, beyond reasonable doubt, the following:
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery.
See: Bolanle vs. State (2005) 11 NLR (PT 936); Attah v. State (2010) CLR 3(t) (SC) 3(PT IV) MJSC 139; Afolabi v. State (2013) 6-7 MJSC (PT 1) 1.
In order to establish the offence of armed robbery, the pieces of evidence which need to be before the court can be grouped into three:
1. Direct evidence of an eye witness;
2. Circumstantial evidence; and
3. Confessional statement(s). See: Onyenye vs. State (2012) LPELR-7866 (SC).
The testimony in chief of PW1, at page 46 of the Record of Appeal is as follows:
I saw 2nd accused person Asu Abang came (sic) with a gun and ordered my driver to bring all the money he was carrying or he will shoot him. Before I knew it, 1st accused-Agim Sunday came out with a knife and ordered me out of the car. Out of fear for them not to harm me, I brought the money N285, 000.00 I was carrying. I gave it to 1st accused…They did not know I recognized the 2nd and 1st accused persons. I grew up in Bendeghe-Ekiem and the 1st accused is from Bendeghe Ekiem, where I grew up. 2nd accused also grew up from Bendeghe Ekiem.
I rushed to Bendeghe that night and reported the matter to my friends who live in Bendeghe. They accompanied me to 2nd accused person’s father(sic) compound in the plantation. We knocked at the door at about 4am. Immediately he opened the door one of my lorry drivers(sic) by name Ifeanyi called him and said “so you are the one who did this to me”.
This is because Ifeanyi too grew up in Bendeghe.
Ifeanyi Emeka is the lorry driver. Immediately he knew we were the ones he ran into the bush.
I reported the matter to men of “Operation MESA” in Ikom. They gave me 5 soldiers who accompanied me to Bendeghe. We did not see any of them. They (sic) youth of Bendeghe Ekiem promised to bring then wherever they see them.
At about 2pm the Mesa officer called me and asked me to go to their camp that they have succeeded in arresting two of the boys. I went to the Mesa camp here in Ikom. There I saw 1st accused person. The other person was not one of the robbers...
Two weeks later the youth President of Bendeghe Ekien called me on the phone, and said they have succeeded in arresting 2nd accused, Asu Abang. I went to Area command and informed the officer in charge…
After one week they (sic) police called me again from Area command that they have arrested the 3rd accused… Police in Calabar told me that 3rd accused was the leader of the robbery team. That is all.
Under cross examination at page 48, PW1 said:
…Yes I arrived the scene at 1.am. Yes that the(sic) was the middle of the night. At that time of the night it is not true that the place is really dark as if was not dark. There is a forest by one side of the road. There was moon light and vehicle head light at that time. When the ignition key is put off, if does not put off the headlights…
I recognized the 1st and 2nd accused. I recognized them because the vehicle headlight pointed at them. I recognized their appearance and not their voices. 1st accused was wearing black shirt with white stripes. 2nd accused was wearing a dark brown shirt. The accused persons were standing behind the truck and the headlight of the small car was pointing at them…
Although the standard of proof required to ground a conviction for the offence of armed robbery is proof beyond reasonable doubt, as rightly submitted for the Respondent, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. It simply means that there is credible evidence upon which the court can safely convict, even if it is upon the evidence of a single witness. In Afolalu v State (supra) also reported in (2010) 6-7 MJSC 187, (2010) 16 NWLR (PT 1220) 584, the Supreme Court, per Mohammed JSC said:
The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of section 138(1) of the Evidence Act. Therefore if on the entire evidence adduced before a trial court, that court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. See Alonge v. Inspector-General of Police (1959) SCNLR. 576: Fatoyinbo v. Attorney-General of Western Nigeria (1966) W.N.L.R. 4 and The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512.
PW1, the complainant, was the eye witness to the incident. His testimony, which has been largely reproduced above and which was not fundamentally discredited in cross examination, would immediately reveal that he clearly recognized both the Appellant and the 1st accused person. The place was not dark.
There was a forest only on one side of the road. The moon was shinning and the car headlights were shinning directly on the Appellant and 1st accused person. PW1 had grown up in the same area as these two persons so he knew them very well.
His testimony is further that on leading a group of persons to the Appellant’s father’s compound, the Appellant escaped upon realizing he was identified. As already noted, the evidence of PW1 on these pieces of evidence was not discredited in cross examination.
The Appellant made a statement at the police station. The statement of the Appellant was admitted by the trial court in evidence as Exhibit 2. Under cross examination, the Appellant sought to deny his statement, stating that it did not bear his signature.
Exhibit 2, reproduced at pages 15-16 of the Record of Appeal was confessional in nature. The Appellant stated therein thus:
…I am a native of Bendeghe Eken clan in Etung L.G.A. of Cross River state…on the 1st October 2009, Agim father name unknown, Osuaye (AKA) Imminent Fathers(sic) name unknown, Chinedu fathers name unknown, Abii father name unknown and myself left to Katabang Junction in Boki L.G.A…all of us mentioned above left to the above Junction with matchet, one single barrel gun which Osuaye collected from one Etta Etta and gave the said Ettate Etta the sum of one thousand Naira N1,000.00. The purpose of the gun was to use it for the Robbery, which at about 01.00 A.M. We block the road at Katabang Junction Boki L.G.A… We robbed the second lorry the sum of N30, 000.00 with three handset (sic) and also robbed the Complainant the sum of two hundred thousand Naira N200, 000.00, the share of my money was N20, 000.00 Agim was also given N20,000.00 Abii was given N20, 000.00. Then Chinedu and Osuaye carried the sum of one hundred and seventy thousand naira(sic)…
The details recorded in Exhibit 2 are uncannily similar to the details of the confessions of the 1st and 3rd accused persons in Exhibits 1 and 3 respectively. Exhibit 1, the statement of the 1st accused, reproduced at pages 13-14 of the Record of Appeal also was confessional in nature. The 1st accused had stated therein thus:
…I know the complainant, I also know one Asu Abang, Osuaye Best man, Francis peter and Aniefiok Wilson.
Aniefiok Wilson was not with us when we Plan on how to Robb(sic) the complainant. It was Asu Abang, Osuaye Best man and Francis Peter that Plan on how to robb(sic) the Complainant all the Plan was done in Asu Abang (sic) room at Bendeghe Ekin Etung the Plan was done on the 20th Sept, 09. After the plans I traveled to Apiapum in Obubra L.G.A. on the 2-10- 2009, Francis Peter met me at Apiapum at about 10 Oclock (sic) in the Morning and gave me the sum of eleven thousand naira(sic) N11,000.00 and informed me that they have succeeded in Robbing(sic) the timer dealer he also told me that the N11,000.00 was my share of money… we are four in the gang.
The Robbery took place at Katabang Junction in Boki L.G.A… I am aware of the robbery plan against the complainant but did not take part in the operation because I travel (sic) on the 29th 09- 09 to Apiapum in Obubra while the robbery took place on the 1st 10 – 09 I do not know who brought the information on how to rob the complainant and can not tell if Chinedu took part in the robbery.
Exhibit 3, the statement of the 3rd accused, reproduced at Pages 17-18 of the Record of Appeal, again was confessional in nature. The 3rd accused stated therein thus:
…I was born and brought up in Bendeghe camp in Etung L.G.A…I know the complainant in this case by name Eze Ego. I also know all the suspects in this case namely (1) Asu Father name unknown (2) Agim Sunday (3) Osuaye Father name unknown. And (4) Francis father name unknown…On the 1st – 10 – 09 in the night but can not remember realy(sic) time the Four persons I mentioned above including myself all of us on one motorcycle which Asu was reader(sic) left Bendeghe Camp to Obudu L.G.A. for a burial on the way along Katabang Junction in Boki L.G.A. we stoped(sic) and block the road with Log of wood, the purpose of our blocking the road was to collect money with any driver or person that passes around the above Junction, Osuaye was holding the single barrel long gun, Asu was holding a matchet, Francis was with matchet, Osuaye was also holding a dagger and two touch light, on the process we robbed one Ifanyi Emeka, and Eze Ego who is the complainant, I cannot tell the actual amount of money that we robbed from the victims that very because Osuaye left with the whole money Osuaye promise me that the money was to be shared the following day, I then left to Ikom while at Ikom Information got to me that we are being look for over the robbery operation that we performed, there Osuaye ran with the whole money and I was not given anything money…
These very similar details could not have been made up by PW2 without information supplied by the Appellant himself and his co-accused persons.
The law is clear and settled on the point that for a confessional statement to attract and support a conviction. It must be proved to be free, voluntary, unambiguous, true, direct and positive to ground a conviction. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying:
“…the highest place of authenticity when it comes to proving beyond reasonable doubt.”
See: Mustapha Mohammed vs. State (2007) 11 NWLR (PT 1045) 303. See also: Dawa vs. State (1980) 8-11 SC 236; Osung vs. State (2012) 6-7 MJSC (PT11) 1:
Galadinma vs. State (2012) 12 MJSC (PT111) 190; Fatai vs. State (2013) 2-3 MJSC (PT1) 145. It is however, desirable to have outside the appellant’s confession at the police some evidence however slight, of the circumstances which made it probable that the confession was true. See: Emeka vs. State (2001) 14 NWLR (PT. 734) 666; Akpan vs. State (2008) 4-5 S.C. (PT. II) 1; Galadinma vs. State (supra).Such further or additional evidence are applied to determine the weight to be attached to the confessional statement.
Certain tests to be applied and or followed in determining the issue of weight to be attached to confessional statements were laid down in R v Sykes (1913) 8 Cr. App R 233 and approved in Kanu v R (1962/55) 14 WACA 30. By these tests, the judge must ask him self these questions:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is the confession consistent with other facts which have been ascertained and have been proved?
The trial judge ought to be satisfied with the answers to these questions; Mbang vs. State (2012) 6-7 MJSC (PT IV) 119 at 148; Osetola vs. State (2012) 6-7 MJSC (PT 11) 47. If the confessional statement passes these test questions satisfactorily, a conviction founded on it is invariably upheld, unless there are other grounds of objection.
If the confessional statement falls to pass the tests, no conviction can properly be founded on it. See: Edet Obosi v The State (1965) NMLR 129; Jimoh Yusufu vs. The State (1976) 6 S C 167; Egboghonome vs. State (1993) 7 NWLR (PT 306) 383; Lasisi vs. State (2013) 2-3 MJSC (PT 11) 172 at 148.
The Appellant in Exhibit 2, admitted he was a native of Bendeghe Ekem clan. PW1 who said he grew up in Bendeghe Ekiem recognized the Appellant and even knew his father’s compound. The unchallenged evidence of PW1 identifying the Appellant as a person well known to him from his place, Bendeghe Ekiem, and unequivocally placing the Appellant at the locus criminis cannot be ignored.
The statements made by the 1st and 3rd accused persons, admitted as Exhibits 1 and 3, reproduced at pages 13-14 and 17-19 of the Record of Appeal, are similar in content with Exhibit 2 and both as well implicate the Appellant as being part of the armed robbery on 1/10/2009 in which PW1 was a victim. The denial of the signature on Exhibit 2 by the Appellant, in my considered view, amounts to an afterthought and cannot be accorded any weight. The trial court was therefore right to have discountenanced this denial.
From the evidence adduced by the prosecution, including the statements, Exhibits 1, 2 and 3; and in particular the direct unchallenged eye witness account of PW1, it is evident that there was a robbery on 1/10/2009 in which PW1 was a victim.
The robbery was an armed robbery and the Appellant took part in the armed robbery. The ingredients of the offence of armed robbery were therefore established by the Respondent.
Where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt. See: Osetola vs. State (2012) LPELR-9348(SC); Alabi vs. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi vs. State (2013) 2-3 MJSC (PT.1) 59. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011 (formerly Section 139 of the Evidence Act, Laws of the Federation of Nigeria, 1990). I therefore hold that the prosecution proved the offence of armed robbery as charged, against the Appellant, beyond reasonable doubt. The sole issue raised by the Appellant for determination is resolved against him.
This appeal thus fails and is hereby dismissed. Accordingly, the conviction and sentence of the Appellant by Hon Justice B.T. Ebuta, J. of the High court of Cross River State, Ikom Judicial Division on November 7, 2012 is hereby affirmed.
PAUL OBI ELECHI, J.C.A.: I have had the privilege of reading the draft of the judgment in respect of this Armed Robbery case just delivered by my learned brother Onyekachi Aja Otisi, JCA.
The issues in this Appeal have been ably considered by my Learned brother to the extent that there is no point over labouring the obvious.
As a result therefore, I do not have anything to add but to adopt his reasoning and conclusion as mine and dismiss the appeal accordingly as lacking in merit.
JOSEPH JUDE JELLA, J.C.A.: I have had the privilege of reading the draft judgment of my brother Onyekachi A. Otisi, JCA, just delivered. I agree with his summary of facts, the reasoning and conclusion arrived at. I shall add the following comments of mine.
Learned counsel for the appellant formulated the following issue for determination namely:-
Whether having regard to the entire evidence before the trial court, the prosecution had proved beyond reasonable doubt the guilt of the appellant for an offence of Armed Robbery.
The Respondent adopted the sole issue as formulated by the appellant, for determination, I think it always help, anytime there is an allegation of lack of proof “beyond reasonable doubt” in a criminal trial to remember the principles of Criminal Law that proof beyond reasonable doubt is not proof beyond shadow of doubt.
So therefore, under the 1999 Constitution as it affects our advertorial Criminal Legal System- an accused person is presumed innocent until proved guilty by a competent court. The presumption of innocence places a burden on the prosecution to prove a case beyond reasonable doubt in accordance with section 138 of the Evidence Act. Cap 112 Laws of the Federation of Nigeria. In the process, the prosecution has to prove all essential ingredients of the offence charged, by providing as it was vital material evidence and vital witnesses to testify during the proceedings.
The essential ingredients of the offence of Armed Robbery as in decided cases are as follows:-
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 robbery.
I have already stated that for the prosecution to succeed in proof of offence of armed robbery there must be proof beyond reasonable doubt of the above listed ingredients. It is however trite that such burden which lies with the prosecution never shifts. It is held that if on the entire evidence the court is left with no doubt that the offence was committed by the accused person that burden is discharged and the conviction of the accused person will be upheld even on the evidence of a single witness. See Bozin Vs. State (1985) 2 NWLR (Pt.8) 465; Ani vs. State (2003) 11 NWLR (830) 142.
In the present case for the fuller reasons given by my learned brother Otisi JCA I too dismiss this appeal. I abide by all the orders made therein.
Appearances
Samuel Akpabio, Esq., For Appellant
AND
Peter Sunday Bisong, Esq., Director, Ministry of Justice, Calabar For Respondent
