COLMAN MOMOH v. THE STATE (2015)

COLMAN MOMOH v. THE STATE

(2015)LCN/7965(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 15th day of July, 2015

CA/B/166C/2008

RATIO

CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE ELEMENTS THAT MUST BE ESTABLISHED BY THE PROSECUTION IN A CHARGE OF ARMED ROBBERY

It is trite that in a charge of Armed Robbery, the following elements must be established by the prosecution beyond reasonable doubt.
1. That there was a robbery.
2. That the appellant was the robber or one of the robbers.
3. That the armed robber was armed or was in company of a person so armed.
See Bozin v. The State (1995) 2 NWLR (Pt. 8) 465; Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561; Osetola & Anor. V. The State (2012) 17 NWLR (pt. 1329) Pg 251 at Pg 275 (SC); Ogudo v The State (2011) LPELR-860 (SC); Onyenye v The State (2012) LPELR-7866 (SC). per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY TO COMMIT ARMED ROBBERY; WHAT THE PROSECUTION MUST SHOW TO PROVE THE OFFENCE OF CONSPIRACY TO COMMIT ARMED ROBBERY

To prove the offence of Conspiracy to commit Armed Robbery, the Prosecution must show that:
1. There was an agreement or confederacy between the convict and others to commit the offence.
2. That in furtherance of the agreement or confederacy the accused took part in the commission of the robbery or series of robberies.
3. That the robbery or each robbery was an armed robbery.
See Adeyemo v State (2010) LPELR- 3622 (CA), Usufu v State (Supra), The State v Salawu (2011) LPELR-8252(SC) per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: WAYS OF PROVING THE COMMISSION OF A CRIME

It is also settled that in the discharge of the burden of proof imposed on it by law, the prosecution no doubt can utilize any or a combination of the following ways of proving the commission of a crime, namely:
(i) By evidence of eyewitness otherwise referred to as direct evidence;
(ii) By confessional statement(s);
(iii) By circumstantial evidence.
See Moses V. The State [2003] FWLR Pt. 141 Pg 1969 at Pg 1987; and Joshua V. State [2009] All FWLR Pt. 475 Pg 1626. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; THE DEFINITION OF A CONFESSIONAL STATEMENT AND WHEN CAN A CONFESSIONAL STATEMENT BE ADMISSIBLE

Another way to prove a crime is through the voluntary confessional statement of the accused. A confessional statement is defined in Section 28 of the Evidence Act, 2011 as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. In Akpan v State (1992) LPELR-381 (SC); (1992) NWLR (Pt.248); (1992) 7 SCNJ 22 it was held per Karibi-Whyte:
“A confessional statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting that he committed the crime charged.” In R. v John Agagariga Itule (1961) 1 ANLR 402 (FSC) Brett, Ag CJF held that
“A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R v. Sapele & Anor (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.” See also, Oseni v State (Supra). It is trite that a confessional statement must be direct, positive and unequivocal. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

EVIDENCE: RETRACTED STATEMENT; THE TEST THE COURT MUST USE VERIFY THE TRUTH OF A CONFESSIONAL STATEMENT

A Court should however be careful in convicting an accused person based on a retracted statement. The Court must consider carefully the evidential value to place on such statements. In Diwa v. The State (1980) 8-11 SC 236, the Supreme Court in relying on the English decision in R v Skyes (1913) 18 CR App. Reports and cited in Kanu v. R 14 WACA 30 highlighted six tests for the verification of confessional statements before any evidential weight can be attached to it. Over the years, these tests have been accepted by our superior Courts. This is because the admissibility of the statement only proves it was voluntarily made, it does not prove that its contents are true. The six tests to test the truth of the statement are:
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 it consistent with other facts which have been ascertained and have been proved?
See Nwachukwu V The State (2007) 12 SCM Pt. 2 Pg. 447 @ 455. per. HELEN MORONKEJI OGUNWUMIJU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU 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

COLMAN MOMOH Appellant(s)

AND

THE STATE Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice J.O Aigbuloko Oyakhirome delivered on the 24/01/08 at High Court of Justice, Benin City, Edo State, wherein the Appellant was convicted for the Offence of Conspiracy to commit Armed Robbery and the Offence of Armed Robbery and sentenced to death by hanging.

The facts that led to this appeal is as follows:
On the 27th of June, there was an Armed Robbery incident by a gang of armed robbers at a Chuks Aghol Petrol filling station at Upper Mission Road in Benin. The armed robbers obtained money from the staff and customers, got into their vehicles and left one of their members in a bid to make a run for it. A chase ensued. Subsequently, boys in the area brought the Appellant back to the station as the armed robber that got away. The Appellant was then taken from the filling station to the Police station.

The Appellant, Colman Momoh was arraigned before the trial court upon charge sheet containing two counts:
COUNT I
THAT YOU, Colman Momoh (m) and others at large on or about 27th of June, 2006 at Upper Mission Road, Benin City in the Benin Judicial Division did conspire to commit a felony to wit: Armed Robbery and thereby committing an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act No. 6 Cap. 398 Laws of the Federation of Nigeria 1990.

COUNT II
THAT YOU, Colman Momoh (m) and others at large on or about the 27th June, 2006 at Upper Mission Road, Benin City in the Benin Judicial Division did rob Chuks Aghol Petrol Station, Upper Mission Road of the sum of N500,000. cash and at the time of the robbery, you were armed with guns and thereby committed an offence punishable under Section 1(2) of the Robbery and Firearms (Special Provisions) Act No. 6 Cap. 398 Laws of the Federation of Nigeria 1990.

The Appellant pleaded not guilty to both counts. To prove its case, the prosecution called three witnesses, and tendered six exhibits. P.W.1 is Cpl Atabo Okpanachi, the Police officer who took the statements of the complainant, his witnesses and the accused’s cautionary statement. P.W.2, is a pump attendant at the filling station who was dispossessed of the proceeds he had made that evening. P.W.3 is the Manager of the filling station. The Appellant testified on his own behalf, tendered two exhibits and called no witnesses. At the close of trial, the learned trial judge found him guilty of Armed Robbery and Conspiracy to commit the Offence of Armed Robbery. He was convicted on both counts and sentenced to death by hanging.

Dissatisfied with the decision of the trial court, the Appellant initiated this appeal by a Notice of Appeal filed on 28/1/2008 which articulated three grounds of appeal and an amended notice of appeal filed on 19/2/14 with five additional grounds against his conviction and sentence. The Appellant’s brief of argument is dated and filed on 25/2/14, while the Respondent’s brief dated 13/10/14 was filed on 14/10/14 deemed as filed on 7/5/15.

The Appellant’s counsel in the brief settled by P.I. Momodu, Esq identified three issues for determination. The issues read as follows:
1. Whether at the close of the prosecution’s case, there is legally admissible evidence sufficient to call on the Appellant to enter his defence.
2. Whether there was evidence of identification fixing the Appellant to the scene of the crime to support Appellant’s conviction.
3. Whether the conviction of the Appellant is legal in view of the overwhelming totality of the summations, guesses, speculations and assertions not supported by the evidence of the prosecution.

In the Respondent’s brief settled by V.U. Adeleye (Mrs) – Assistant Director, Ministry of Justice, only one issue was identified for determination in this appeal to wit:
Whether having regard to the totality of the evidence adduced at the trial, the prosecution can be said to have proved its case against the Appellant beyond reasonable doubt as required by law.

After careful perusal of the briefs as settled by both parties, I find that although intertwined, there is ONE SOLE issue for determination. The issue as distilled by me is as follows:
SOLE ISSUE
Whether there was sufficient legally admissible evidence to convict the Appellant of the offences of Conspiracy to commit Armed Robbery and the offence of Armed Robbery at the trial Court.

Learned Appellant’s counsel submitted that there was no admissible evidence that required the Appellant to defend himself at the close of the case for the prosecution. Counsel further submitted while referring to the evidence of P.W.1 that it is the duty of the investigating police officer at the close of investigation of any criminal matter to make out a report in writing and sign it. P.W.1 however, did no such thing in this case. Counsel submitted that this report would have given the Appellant notice of the evidence to be used against him. Counsel stated that the investigation report was made by another person, S.P. Uche and thus the evidence of P.W.1 tantamounts to hearsay. Counsel cited Sunday Ononuju v State (1976) 5 SC 1-11 at Pg. 4 para 25-30, Pg. 5 Para 1-20; Utteh v State (1992) 2 NWLR (Pt. 223) Pg. 273. Para F-G. Counsel argued that the report was offensive and against the principle of fair hearing enshrined in S.36(6)(a)&(b) of the Constitution. The evidence P.W.1 gave was not contained in the proof of evidence served before or during hearing, therefore, counsel submitted that the totality of the evidence given by P.W.1 is hearsay.

Counsel argued that evidence given by the Prosecution witnesses was marred with sharp contradictions and as such should not be believed. Counsel cited Ayanwale v Atanda (1988) 1 NWLR (Pt. 68) Pg. 22 at 35; Nwankwo v State (1990) 2 NWLR (Pt.134) Pg 627-636 para B-C, Ratio 7; Oko v Ntukidum (1993) 2 NWLR (Pt. 274) Pg. 124 at 135.

Counsel submitted that Exh A is not a legally admissible document on which any probative value could be placed to convict the Appellant. Counsel further submitted that Exh A was said to have been countersigned and since there is no such countersigning by P.W.1, it cannot be the document referred to by P.W.1. Counsel cited Lambert v Nigerian Navy (2006) 3 FWLR (Pt.328) Pg 4911 at 4940, para g-h; Ogunewe v Eze (1990) 3 NWLR (Pt.137) Pg. 242 at Pg. 254, para e-f; Trade Bank Plc v Dele Morenikeji (Nig) Ltd (2005) 6 NWLR (Pt. 921) Pg. 309 at 348, para h-b Ratio 4&6; Garuba v K.I.C Ltd (2005) 5 NWLR (Pt. 917) Pg. 160 at 176, para d-e Ratio 5; Daihatu v Turaki (2003) 15 NWLR (Pt. 843) Pg.350-351 para e-e; Cardoso v Daniel &12 Ors (1986) 2 NWLR (Pt. 20) Pg 1 at 33 para e-g ratio 18.

Counsel contended that Exh A contains similar offences alleged to have been committed by the Appellant, different from the one under investigation and for which the Appellant was charged and convicted. Counsel cited Rex v Salami Esologba & 3 Ors (1943) 17 NLR Pg. 24 at 25 lines 30-42 and urged this Court to expunge Exh A from the evidence.

Counsel submitted vehemently that Exh A is a document not admissible by law, therefore the trial court was wrong to have based its conviction on it. Counsel further stated that the Appellant had been arrested by a mob, and was put under strains and pains till he was handed over to the Police. Counsel posited without conceding that even if Appellant made Exh A, such statement cannot be admissible under such circumstances. Counsel cited Queen v Baba Haske (1961) ANLR 330 ratio 2. Counsel submitted further that since both the Appellant and P.W.1 said that both had signed Exh A but P.W.1’s signature is missing from it, Appellant’s position that Exh A is not the statement that he, the Appellant signed must indeed be true.

Counsel posited that the alleged confessional statement of the Appellant is prejudicial to the fair trial of the Appellant and needed redress. Counsel said that the Appellant’s character was not in issue and there is no need for evidence of similar offences said to have been committed by the Appellant. Counsel cited R v Knight and Thompson & Anor 31 CAR 52; R v Otedia (1959) WRNL Pg. 43. Counsel again urged this court to expung Exh ‘A’ from the record. Counsel cited Anyaebosi v R.T Briscoe Nig Ltd (1987) 3 NWLR (Pt. 59) Pg. 84 at 96 para f-g; Egbe v King -13 WACA Pg. 106 lines 33 to 39. Counsel submitted that once there is some doubt about the guilt of the Accused, it must be resolved in favour of the Accused.

Counsel further submitted that the learned trial judge considered the other alleged crimes of the Appellant contained on Exh A and made findings based on them, findings which in counsel’s opinion are not deducted from available evidence as contained on the records of appeal. Counsel cited Anthony v Governor of Lagos (2003) 10 NWLR (Pt.828) Pg.302 para d-e. Counsel contended that the trial judge should have concluded otherwise especially since the Appellant denied making Exh A at the earliest available opportunity. Counsel said it is clear that there is document being hidden from the Court. The Appellant agreed to making a statement which is not Exh A and P.W.1 says he signed the statement made by the Appellant. But Exh A does not match either testimony. Counsel submitted that the trial court erred in law in admitting such evidence. Counsel cited Onagoruwa v State (1993) 7 NWLR (Pt. 303) Pg. 49 at 95, Para e-f.

Counsel argued that although countless errors occur in the spelling of the Appellant’s name on the Record: Coolman, Colman, Coleman, there is no dispute that these refer to the Appellant. However, counsel disagreed that Koman Momoh and Coleman Momoh is the same person. That there is no evidence from any of the prosecution witnesses that the names refer to the same person and it is not the duty of the trial court or counsel to the prosecution to supply the answer.

Counsel contended that the evidence of P.W.2 does not put the Appellant at the scene of the crime. Neither was P.W.2 able to identify the Appellant as one of the armed robbers. Counsel posited that based on evidence given during cross examination, it is clear that P.W.2 did not see the face of any of the armed robbers during the course of the robbery. In fact, it was after the armed robbers had all left and the Appellant was arrested by a mob and brought to their office that he first saw the Appellant. Counsel argued that the P.W.2’s statements during examination in chief and during cross examination contradicted each other. Counsel said that when a witness makes two inconsistent statements on oath, he does not deserve to be regarded as a credible witness. Counsel cited Ayanwale v Atanda (Supra).

Counsel submitted that P.W.3 did not give evidence that the Appellant was identified as one of the robbers until the Appellant was caught and taken back to the filling station. And that P.W.3’s statement “I escaped to opposite our station and was looking at the robbers. I watched them for a while and relocated. I watched them from there and saw one of the robbers run into the office” contradicted the evidence of PW2 who had said no armed robber entered the filling station office. Counsel argued that a prima facie case had not been made out at the close of the Prosecution’s case sufficient to call on the Appellant to enter his defence. Counsel cited Okoro v State (1988) 12 SCNJ (Pt.11) Pgs 109,199,209 & 210, Ratios 3,5,11,12 & 13.

Counsel submitted that there is no evidence of identification putting the Appellant at the scene of the crime and there is need to properly examine the evidence of P.W.2 and P.W.3 as he reviewed their evidence on Record. Counsel stated that P.W.2 in his own words denied raising his face to see the robbers. How then, counsel argued, was he able to know that one of the robbers were left behind left alone which one? Counsel posited that since P.W.2 admitted to not knowing where the robber was dropped he could also not know that the Appellant was running away from the station.

Counsel further submitted that any form of identification after the duration of the robbery incident should not be regarded as evidence. Counsel said that P.W.3’s identification was based on what people told him as contained on Pg. 31 of the record and that even this hearsay does not pin the Appellant to the scene of the crime at the time of commission. Counsel cited S.77 of the Evidence Act of 1990; Okoro v State (Supra); Abieke v State (1975) 9-11SC Pg 97-106. Counsel urged this Court to discharge and acquit the Appellant.

Counsel posited that the trial Court did not consider the defence of the appellant at all nor did it grasp fully the facts of the case and made findings based solely on speculations. Counsel cited Amadi v State (1993) 8 NWLR (Pt. 314) Pg. 644 at 660 para e-f; Nwosu v State (1986) 4 NWLR (Pt.35) Pg. 348, Omohodi v Police (1961) 1 ANLR 594.

On this issue, Respondent’s counsel Mrs V.U. Adeleye submitted that from the totality of the evidence adduced at the trial, the prosecution has proved its case against the Appellant beyond reasonable doubt as required by Section 135(1) of the Evidence Act, 2011. Counsel submitted that two ingredients are necessary to prove the offence of Conspiracy to wit:
1. That there is an agreement between two or more people.
2. That the agreement is for the purpose of committing an offence.

Counsel cited Gbadamosi v State (1991) NWLR (Pt. 196) 182 CA; Erim v State (1994) 5 NWLR (Pt.346) 522 SC, and submitted that the offence of Conspiracy is committed the moment two or more persons have agreed they will do, immediately or at some future time, certain things. The conspirators may repent and stop or may have no opportunity, or may be prevented, or may fail but the offence has already been completed at the time they agreed.

Counsel argued that the fact that P.W.2 could not remember how many the robbers were under cross examination is not fatal because the Appellant himself supplied the number and even names of the other robbers in Exh A. Counsel said that this is proof that the robbers planned to rob the filling station and decided on the details as to how to go about it. Counsel stated that although none of the witnesses gave evidence of seeing or hearing the Appellant and others at large planning the robbery, the law permits that Conspiracy can be inferred from the circumstances. Counsel cited Omotola v State (2009) 2-3 MJSC, 76 (SC); Erim v State (1994) 5 NWLR (Pt.346) 522 (SC); Book of Amos Chapter 3 verse 3; Gbadamosi v State (Supra).

Counsel submitted that the fact that the Appellant rescinded his statement does not render it inadmissible, neither does it stop the Court from relying on it. Counsel posited that after the Appellant rescinds his statement, what is left for the trial Court to do is to consider the weight to attach to it but the statement will be admitted. Counsel cited Rex v Sykes (1913) 8 C.A.R 233; Kanu v The King (1952) 14 WACA 30 and that certain rules are prescribed for the weight to be attached to a confessional statement whether or not retracted, and these requirements have been met. Counsel cited Dawa v The State (1980) 8-11 SC 236 and Obosi v The State (1965) NMLR 129; Emmanuel Nwaebonyi v The State (1994) 5 NWLR (Pt.343) 138.

Counsel submitted that the Appellant gave a clear account of the crime as contained in Exh A. He insisted that it is not in doubt that the Appellant had the opportunity to commit the offence. Thus, the learned trial judge’s finding on Pages 71-73 of the record that the Appellant had the opportunity to commit the said offence, that the appellant’s confessional statement is true and that the confession is free, voluntary and duly proved should be upheld by this Court. Counsel further submitted that the learned trial judge passed Exh A through vigorous test before finding same to be true, positive and voluntary. Counsel cited Ogoala v The State (1991) 2 LRCN 66 at 684; Abacha v State (2002) 4 MJSC 1.

On count II, counsel stated that all the prosecution needs to show is that
a. There was a robbery
b. That the Appellant or one of the robbers was armed
c. That the Appellant was the robber or one of the robbers.

Counsel cited Nwanchukwu v State (1985) 11 NWLR (Pt.11) Pg. 218; Adeyemi v State (1991) 1 NWLR (Pt.170) Pg.679.

Counsel further submitted that the evidence of all three Prosecution witnesses is consistent and corroborative of one another and established all three elements of the offence of Armed Robbery and the identity of one of the armed robbers as the Appellant.

Counsel argued that it is not necessary for P.W.2 and P.W.3 to have participated in the arrest for weight to be attached to their evidence. The opinion of the Appellant’s counsel that they needed to have participated in arresting the Appellant is grossly misconceived. Counsel argued that whatever doubt Prosecution witnesses may have created has been cured by Exh A where the Appellant gave a graphic account of his arrest. Counsel cited Akpa v State (2008) 7 MJSC 77; Ogoala v The State (1991) 2 LRCN 66 at 684.

Counsel submitted that the guilt of an accused person may be proved by his confessional statements, circumstantial evidence or evidence of an eye witness of the crime, and the prosecution can rely on any of the three. Counsel cited Emeka v State (2001) 14 NWLR (Pt734) P.66: Igabele v The State (2006) 6 NWLR (Pt.915) P.100.

Counsel submitted that the prosecution has proved the count of Armed Robbery against the Appellant beyond reasonable doubt which means proof which carry a high degree of probability. The law does not require proof beyond every shadow of doubt. Counsel cited Afolalu v State (2010) 6-7 MJSC 187, Onafowokan v State (1987) SCJN Pg. 328.

Counsel argued that it is clear that the learned trial judge only considered Exh A to the extent that they relate to the charge before the Court as contained on Pg. 74 of the Record.

Counsel posited that the argument of the Appellant’s counsel as regards the discrepancies in the spelling of the Appellant’s name does not avail the Appellant because the conflict complained of is attributable to the spelling of the Appellant’s first name, and this is apparent throughout the Records and not just Exh A. Counsel argued that even Appellant’s counsel made the same error in spelling Appellant’s name as Coleman in the Notice of Appeal and Colman in the Appellant’s brief of argument. Counsel posited that if the argument of the Appellant’s counsel is to be taken seriously, then the Appellant’s brief of argument should be struck out as having no nexus with the appeal since Colman Momoh was tried and not Coleman Momoh. Counsel stated that the learned trial judge was right when the Court found that the names referred to one and the same person on Pages 83-84 of the Record.

Learned counsel argued that the argument of the Appellant’s counsel that the trial Court failed to consider the defence of the Appellant holds no water as the Appellant put up no defence at all but an outright denial of the allegation, and it is not the duty of the Court or prosecution to manufacture a defence for the Appellant. If there is a defence available to the Appellant, it should flow from the evidence before the Court. Counsel cited Ekpeyong v State (1993) CLR 6(g); SC. 148/1991.

Counsel argued that the Appellant’s counsel’s submission that Prosecution’s failure to call any of the “area boys” who pursued and arrested the Appellant is fatal, is unfounded. Counsel said all that is required is for the prosecution to call sufficient material witnesses and the Prosecution had discretion in that matter since the Prosecution is not bound to call any particular witness nor a particular number of witnesses. Counsel cited Afolaju v State (2010) 4 NSCQR 227 at 265-266; Usufu v State (2007) 3 NWLR (Pt.1020) 74; Garba v State (2006) 6 NWLR (Pt.997) 524.

Counsel submitted that there are no material contradictions as to the fact that the Appellant was pursued and arrested. He argued that no doubt exists in the prosecution’s evidence to warrant doubts that should be resolved in favour of the Appellant. Counsel cited Effia v State (1999) 8 NWLR (Pt. 613); Onogbogu & Anor v The State (1974) 1 All NLR (Pt.11) 5; Isibor v State (2002) b94 LRCN 279 at 284T & 285A.

RESOLUTION
Let us briefly review the facts of this case as remains undisputed. There was an armed robbery at a filling station on the 27th of June, 2006 by a gang of armed robbers. These armed robbers, while carting away their loot, left behind one of their members who ran after the car as they drove off. PW2 was at the filling station on the day of the incident, money was collected from him and he obediently laid down on the ground with his face to the floor. P.W.3 was the manager of the filling station who was close enough to the road to run to a nearby place where he could watch as the crime unfolded. Evidence of P.W.2 and P.W.3 are consistent up to this point. After the armed robbers had left, a group of boys brought the Appellant back to the filling station as one of the armed robbers who made a run for it after he was left behind. The Appellant was then handed over to a Police and a statement was obtained from him.

In this particular case, the Prosecution has chosen to use a combination of the three to prove its case, there is Exh A on record, the purported confessional statement of the Appellant, evidence of P.W.2 and P.W.3, eyewitnesses of the armed robbery incident and circumstantial evidence that the Appellant was seen running away from the scene of the crime and therefore committed the crime, or so the prosecution would have us think.

From the evidence of all prosecution witnesses, there was clearly an armed robbery incident on the 27th of June, 2006. There is absolutely no doubt that the armed robbery incident was perpetrated by a group of people, so it is safe to assume that these group came to the filling station with the intention to rob. Thereby fulfilling the two requirements for the offence of Conspiracy. The fact that there was indeed a robbery and the perpetrators of this robbery were armed, fulfills the first two elements required for the proof of the offence of Robbery. The third, which is crucial to this instant appeal is whether the Appellant was one of the men that committed the Armed Robbery.

In this case, PW2 and PW3 were the “eyewitnesses” to the robbery at the petrol station. PW2 said the robbery took place at 6.30 pm – at twilight. The robbers were shooting during the robbery as contained on Pg. 309 of the record. He said
“One of the gang members was left behind. That gang member is the accused person in the dock. The accused person was running out of the station when he was pursued by area boys and brought him back to the station”

Under cross examination, PW2 said inter alia
“I faced down when they started shooting. We obeyed the robbers who while shooting ordered us to lie face down. I did not raise my face to see the robbers…………After the robbery operation, all the robbers ran away from the filling station……..Some boys now asked us to sit up that the robbers were no more there. Our manager then phoned SARS Police…….I didn’t see any robber enter the office. They brought the accused person a few minutes after l entered the office. I cannot tell where the other gang members left the accused. I saw the accused person when he was brought to the filling station.”

From the above, it is clear that the witness could NOT identify the Appellant at the scene of crime when it was unfolding. His evidence is of absolutely no probative value in proving the guilt of the appellant.

The PW3 swore on Pg 31, 32-33 of the record as follows:
“I know the accused person. I knew him at Upper Mission Road, Benin City and he used to come to our filling station to buy fuel. On 27/6/06 at about 6:30pm, l was around the station selling fuel. As we were selling fuel, l heard the sound of gunfire and in order “everybody lie down”. I escaped to opposite our station and was looking at the robbers. I watched them for a while and relocated. I watched from there and saw one of the robbers run into the office. As the tension was too much for me, l ran far away where l was no more seeing anybody. I later heard some boys say the robbers have left and l returned to my station. On my way back along the street, near our station, l saw people dragging the accused as one of the robbers………

ANS: l told the police on that day the robber left behind was caught, that is what people around told me”. ANS: I m not a liar. I said l was around the filling station when the robbers came and was near the gate. I didn’t know where the robber passed. They said everybody should lie down. Heard gunshots, and since l was near the road, l ran away into the house opposite the station. I was outside of the house l ran to, not inside. As l stood there, l saw one of them enter the station, fear gripped me, and l ran from there completely”.

Because PW3 refused to say categorically that he could recognise the appellant at the scene, the prosecution wanted the court to treat him as a hostile witness. It is apparent also that PW3 never saw or positively identified the appellant as one of the robbers, even though he admitted that he knew the appellant prior to the robbery as one of the petrol station’s customers. The attendants who were actual witnesses could not state whether one of the robbers was dressed in a particular way that made him identifiable as one of the robbers or had a particular physique or feature that made him stand out. No one among the mob who “caught the appellant” gave evidence why he was singled out as one of the robbers. We cannot speculate on that. Suffice it to say, that a mob idenfication is not the greatest way to ascertain the identity of a robber. Also in this case, the eyewitnesses were very careful not to say they were able to identify the appellant at the scene. Having found the first method of proving the crime unhelpful, let us look at the second method.

In R. v John Agagariga Itule (1961) 1 ANLR 402 (FSC) Brett, Ag CJF held that
“A confession does not become inadmissible merely because the accused person denies having made it and in this respect a confession contained in a statement made to the Police by a person under arrest is not to be treated different from any other confession. The fact that the appellant took the earliest opportunity to deny having made the statement may lend weight to his denial. See R v. Sapele & Anor (1952) 2 FSC 74 but it is not in itself a reason for ignoring the statement.” See also, Oseni v State (Supra).

It is trite that a confessional statement must be direct, positive and unequivocal.

An Appellant who recants his confessional statement must do so timeously for the Court to take him with any measure of seriousness. See Oseni v State (Supra), Nwocha v State (2012) LPELR -9223(CA); Bature v State (1994) NWLR (Pt.320) Pg. 267 at 285.
In Nwocha v State it was held that:
“…the appropriate time to raise the issue of voluntariness is when the document is about to be tendered. It amounts to an afterthought if it is raised thereafter.
Where an accused claims that he did not make the statement at all but merely signed it or that he was not the signatory, it is still admissible. However, being retracted, the Court must consider the weight to be attached to such evidence. It is settled law that the Court can still convict on a retracted confessional statement as long as it is satisfied of the truth of the statement.
In Bature v State (1994) 1 NWLR (Pt.320) Pg. 267 at 285-285, the Supreme Court held that:
“where an extra-judicial confession has been proved to have been voluntarily made and it is positive and unequivocal and amounts to an admission of guilt… it will suffice to ground a finding of guilt regardless of the fact that the maker resiled therefrom or retracted it altogether at the trial, since such a u-turn does not necessarily make the confession inadmissible.”

It is clear that the Appellant can be convicted solely on his confessional statement.

The best argument of learned counsel on Exh A is not only that Exh A is inadmissible, but that no weight should be put by this Court on the veracity of Exh A which the appellant insisted he never made. The appellant admitted he made a statement which was not the one tendered in Court as Exh A. Appelant’s counsel had 3 complaints against Exh A. They are itemised below.
1. The statement was not voluntarily made because the appellant was arrested by a mob who must have beaten him before handing him over to the Police, therefore any statement made by him could not be voluntary.
2. The statement was not signed by PW1 who claimed that he recorded it, lending credence to the claim of the appellant that Exh A is not the statement HE made.
3. Exh A contained evidence of previous crimes attributed to the appellant which the learned trial Judge considered to put the character of the appellant in issue thus arriving at a decision prejudicial to the appellant.

On the first leg of the complaint, the issue of the voluntariness of the statement was not raised as required by law. The beating by the mob is not an issue here. The statement can only be adjudged involuntary if it was made by the appellant to a person in authority believing that he would avoid unpleasantness or gain an advantage by making it. The appellant never raised the issue of voluntariness at the point the statement was being tendered. All he said was that Exh A did not contain his correct name and it was not signed by the IPO – PW1. These reasons do not go to the admissibility of the statement but to the veracity of its contents. In my view, the learned trial judge was right to admit the statement and the arguments of learned appellant’s counsel in this regard is misconceived. It is immaterial whether or not the appellant claimed not to have made a statement at all or he did not sign the statement etc. What becomes relevant is the weight to be attached to the statement by the trial judge who must consider the other objections raised by the accused, then test the veracity of the statement against other evidence available.

PW1 did not indicate that he signed Exh A as the recorder which is the usual practice in cases where the IPO records the “confessional” statement of an accused in respect of an indictable and serious felony like Murder and Armed Robbery where the sanction is capital punishment. Secondly, the appellant was not taken before a senior police officer to attest to the voluntariness of the statement. I concede that there is no legal compulsion for Exh A to be signed by PW1, or that Exh B -the attestation form be signed by a superior police officer. I have always believed strongly too that where the only evidence available is the confessional statement, it is not enough for the police to wave the statement in the face of the Court and expect the Court to swallow it, hook, line and sinker which the learned trial Judge with the greatest respect, apparently did.

The persons named in the statements by the Appellant were not called to give evidence. The Appellants and the senior officer did not sign the attestation form even though an interpreter – the I.P.O. had signed it. Secondly the I.P.O in the report – Exh C reported that the Appellant had a car which was retrieved by the Police. I do not believe that without any other evidence linking the Appellant to the commission of the offence, any real probative value can be attached to Exh A.

I feel strongly that it is the duty of the Courts to hold the Police and the prosecution to the highest duty of best practices in these matters. I am fully aware of the current menace and predominance of armed robbers in the society. However, it is the duty of the Courts not to encourage jungle justice. I have read Exh A several times. This issue gave me anxious moments to decide. Exh A contains details of persons with whom the Appellant allegedly consorted as a criminal. The police report and the evidence of P.W.1, the I.P.O., was completely bereft of any effort to investigate the details. Surely it would have helped the Police to get rid of more criminals. The police arrested one Matthew Fregene and initially charged him with the Appellant. Exh A did not mention Matthew Fregene at all. There is nothing that the Police had proved outside Exh A that points to the proof of the truth of Exh A and consequently the undoubted guilt of the Appellant. I cannot approbate any probative value to Exh A and Exh B.

On the third form of proof, that is by circumstantial evidence, the learned trial Judge amazed me by holding that there was proper identification of the Appellant at the scene of crime. The scene described to the Court by P.W.2 and P.W.3 is that everybody took to their heels or lay flat on the floor when the robbers came shooting. NONE of the witnesses actually robbed could even describe any of the robbers or their clothing. P.W.2 claimed that he knew the Appellant as a customer in the area. Surely he should have been able to identify him positively as one of the robbers. Instead both he and P.W.3 said the Appellant was arrested few metres away from the scene as one of the robbers by area boys who had identified him as one of the people running away after the robbery. Let me reiterate that the prosecution wanted to make P.W.3 a hostile witness because he could not say that he recognised the Appellant at the scene. This was the witness who had the opportunity to watch from across the road where he had fled, the unfolding robbery taking place at the petrol station he managed. In Bozin v. The State (1985) 7 SC 450, 464 the Court held that the identity of an accused person must be established in accordance with the methods and procedure required and accepted in criminal trials to be acceptable by the Courts.

I cannot accept as proper identification in the circumstances, anything less than the evidence on oath of one of those who saw the Appellant during the course of the robbery, robbing or aiding the robbery and who identified him in a specific matter -through physical features or clothing, who participated in chasing and apprehending the Appellant when he ran away from the scene of crime. I am not prepared to accept the identification of a mob who were not at the scene of the robbery who brought the Appellant to the scene of crime and told the victims that he was their assailant. I have read the evidence of the Appellant on oath. It appears plausible to me that he ran when everyone ran from the scene of the robbery when everyone else ran for their lives. He claimed his vehicle broke down and he was looking for a mechanic. He claimed that a panel beater in the area who knew him saved him from the mob by calling the Police. He insisted that he is well known to P.W.2 & P.W.3 and was not the one who robbed the petrol station. The Police did nothing to actually investigate his antecedents from his home, neighbours etc to find out whether he was actually a commercial driver as he claimed. The reluctance of PW2 and PW3 to implicate cannot but stem from the fact that they did not believe in his guilt. After all they were his victims. I have great doubts that indeed the Appellant committed Armed Robbery on the day in question. This doubt must be resolved in favour in favour of the appellant. I will not be a participant to jungle justice. It is for the prosecution to prove the guilt of the appellant and not for the appellant to prove his innocence. I am of the view that the Police have failed to prove the guilt of the Appellant beyond reasonable doubt. In the circumstances, the Judgment of the trial Court in Charge No. B/17C/2002 convicting the Appellant for Conspiracy and Armed Robbery and sentencing him to death is hereby set aside. I enter a verdict of Acquittal and discharge. Appeal Allowed.

PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in draft the well articulated judgment just delivered by my learned sister H. M. Ogunwumiju, (JCA).

I too, agree that there was no proper identification of the Appellant in the circumstances. The reasons and conclusions of my learned sister are also supported by me.

I hereby set aside the judgment of the trial Court in Charge No:B/17C/2002 convicting the Appellant for Conspiracy and Armed Robbery and sentencing him to death.

The Appellant is hereby acquitted and discharged.

Appeal allowed.

HAMMA AKAWU BARKA, J.C.A.: I had been opportuned to have read in draft the judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA.

Having also studied the records in this appeal, and given a dispassionate consideration to the issues raised and argued in the briefs of learned counsel, I am in full agreement with the lead judgment that the offences of Conspiracy to commit Armed Robbery and Armed Robbery have not been made out against the accused person (appellant) as required by law.

I am of the opinion that the arrest and subsequent prosecution of the accused person was premised on suspicion which is not enough to ground nor sustain the charge. The appellant ought to have, from the evidence on record, been discharged and not subjected to the rigors of having to defend when the case has not in fact been made out against him.

For this reason, and the abler reasons stated in the lead judgment, I see merit in this appeal and the appeal is hereby allowed by me.

The decisions of the Lower Court in charge No.B/17C/2002, convicting the appellant is hereby set aside. In its place I order that the appellant be discharged and acquitted.

Appearances

Dele Adeleye for the Appellant, with him is N. EbomFor Appellant

AND

V. U. Adeleye Mrs. (Asst. Director, Civil Litigations Edo State) with her Mrs. S. E. Okojie (ADPP Min. of Justice Edo State).For Respondent