OSAROBO PATRICK v. THE STATE (2019)

OSAROBO PATRICK v. THE STATE

(2019)LCN/13389(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of May, 2019

CA/B/411C/2017

RATIO

TRIAL WITHIN TRIAL : PURPOSE

The purpose of going through the whole process of a trial within trial is for an accused person to be treated fairly in a criminal trial. See Ibeme v. State (2013) 10 NWLR Pt.1362 Pg. 333; LPELR-20138 (SC). Therefore, once the issue of voluntariness of confessional statement is raised, it must be resolved or settled one way or the other before its admission or otherwise. The Supreme Court in Bouwor v. State (2016) LPELR-26054 expressed that it is at a trial within trial that the Appellant can effectively challenge the Prosecutor as to the voluntariness of the confessional statement tendered against him. If the confessional statement is admitted after the trial within the trial, the Appellant cannot argue that he did not make the statement voluntarily without first impugning the trial within trial.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CONFESSION: WHETHER A CONFESSION IS SUFFICIENT TO LEAD TO A CONVICTION

Generally, an Appellants voluntary confession which is direct positive and satisfactorily proved is sufficient to warrant a conviction even without any corroborative evidence so long as the Court is satisfied of the truth of the confession. See Solola & Anor. v. State (2005) LPELR-3101 (SC); Akinrinlola v. State (2016) LPELR-40641 (SC) Sunday Effiong v. The State (1998) 59 LRCN 13961 at 3975.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CONFESSION: THE POSITION OF A CONFESSION WHEN AN ACCUSED CLAIMS THAT HE DID NOT MAKE IT
It is essential to note that where an accused person claims that he did not make the statement, it is still admissible but the Court must consider the weight to be attached to such evidence. In this latter instance, the statement becomes immediately admissible.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

SIGNATURE: WHETHER A THUMB IMPRESSION HAS THE SAME EFFECT AS A SIGNATURE
The Supreme Court in Agboola v. State (2013) LPELR-20652(SC) per Nwali Sylvester Ngwuta, J.S.C. opined that a thumb impression authenticates a document as much as a signature does. Whatever is intended as a signature is valid signing, no matter how imperfect or unfinished or fantastic or illegible or even false the separate characters or symbols used may be.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

DUTY OF PROSECUTION IN CRIMINAL CASES
The legal and evidential burden of proving the guilt of an accused person is placed on the Prosecution and it must be beyond reasonable. Every ingredient of the offence charged must be proved by credible evidence. That burden does not shift. Proof of a case beyond reasonable doubt does not mean proof beyond any iota or shadow of doubt or proof to the hilt. The Supreme Court in Oseni v. State (2012) 5 NWLR Pt. 1293 Pg. 351 (SC) opined that proof beyond reasonable doubt simply means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. It means the degree of compulsion which is consistent with a high degree of probability. See Abokokuyanro v. State (2016) LPELR-40107(SC); Idemudia v. State (1999) 7 NWLR Pt. 610 Pg. 202 at 215; Esangbedo v. State (1989) 4 NWLR Pt. 113 Pg. 57.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

ARMED ROBBERY:THE INGREDIENTS OF ARMED ROBBERY THAT MUST BE PROVED BEYOND REASONABLE DOUBT

In cases of armed robbery, there are three essential ingredients to be proved by the prosecution to wit:
a. That there was robbery
b. That the robber or robbers were armed with offensive weapons
c. That the accused person(s) was the robber or one of the robbers.
See Ugboji v. State (2017) LPELR-43427 (SC); Ikaria v. State (2012) SCNJ 325 at 34; Olayinka v. State (2007) 9 NWLR Pt. 1040 Pg. 561; Sunday Ehimiyein v. The State (2016) LPELR-40841 SC; Ogudo v State (2011) 18 NWLR (Pt. 1278) 32; Bozin v The State (1985) 2 NWLR (Pt. 2) 378.
All the above ingredients must co-exist. If one or more of these ingredients has not been proved, then the offence fell short of being proved beyond reasonable doubt and therefore the Court must discharge and acquit the accused person of the offence of armed robbery. See Adeoye v. State (1999) 6 NWLR Pt. 605.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

WHETHER A RETRACTED CONFESSIONAL STATEMENT CAN LEAD TO A CONVICTION

It is trite that a confessional statement that is direct, positive and unequivocal will suffice to ground a finding of guilt irrespective of a retraction. The Supreme Court in Odeh v. FRN (2008) 13 NWLR Pt. 1103 Pg 1, per Musdapher JSC (as he then was) opined that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction and generally without any need of other corroborative evidence so long as the Court is satisfied with its truth. See Bature v State (1994) 1 NWLR Pt.320 Pg. 267; Fabiyi v. State (2015) LPELR-24834 (SC); Ikpasa v. State (1981) 9 SC 7; Achabua v. State (1976) 12 SC 63; Ogudo v. State (2011) LPELR-860 (SC).PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

CONFESSIONAL STATEMENT: HOW TO VERIFY CONFESSIONAL STATEMENTS

However, in Ogudo v. State (Supra) the Supreme Court reiterated six tests for the verification of confessional statements before any evidential weight can be attached to it as follows:-
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 Mbenu v State (1988) 3 NWLR Pt. 84 P. 615; Stephen v. State (1986) 5 NWLR Pt. 46 Pg. 978; Nwachukwu v. The State (2007) LPELR-8075 (SC); Musa v. State (2017) 5 NWLR Pt. 1557 Pg. 43.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.

IDENTIFICTION PARADE: WHEN IT WILL BE USED

See R. v. Turnbull (1976) 3 ALL ER 549, (1977) QB 224; Ikemson v. State (1989) 1 CLRN 1.”
Also, in Balogun v. A.-G., Ogun State (2002) 6 NWLR (Pt.763), Pg. 512 at 534, the Supreme Court per Uwaifo JSC held thus:

Between

Justice

OSAROBO PATRICKAppellant(s)

AND

THE STATERespondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Edo State High Court delivered by Honourable Justice J.U. Oyomire on 13/1/2017 wherein the Appellant was convicted for conspiracy to commit Armed Robbery and Armed Robbery and sentenced to death accordingly.

Below are the facts that led up to this appeal: –
On the 14th June, 2009, at about 10 p.m. some armed men stormed the PW3s residence and tried to force their way into his apartment and because he refused to open the main entrance after several threats, one of them shot at the door and the pellets hit the PW3 in 3 different places. The PW3 managed to pass them some amount of money and two handsets before they left. That same night, at about 1.30 am the PW2 was robbed in his apartment. The two robbery incidents were reported at Evbuotubu Police Station. The PW2 alleged that the Appellant was involved in the robbery incident and they (PW2 and PW3) both identified the Appellant as one of the armed robbers that came to rob them. The case was later transferred to the State Criminal Investigation Department (SCID)

for investigation.

The Appellant was then brought before the High Court of Edo State for trial in Charge No. B/152C/11 on a four (4) Count charge of Conspiracy to commit armed robbery and armed robbery itself.

The statement of offence is set out below:-
COUNT 1
That you Osarobo Patrick (m) and others now at large, on or about the 14th day of June, 2009 at No. 1 Edojawerie Street, Evbotubu Quarters, Benin City, in the Benin Judicial Division, conspired among yourselves to commit a felony to wit: Armed Robbery and thereby committed an offence, contrary to Section 6 (b) and punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap R. II, Laws of the Federation, 2004.
COUNT II
That you Osarobo Patrick (m) and others now at large, on or about the 16th day of June, 2009 at No. 393 Evbotubu Road, Benin City, in the Benin Judicial Division, conspired among yourselves to commit a felony to wit: Armed Robbery and thereby committed an offence, contrary to Section 6 (b) and punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, Cap R. II, Laws of the Federation, 2004.<br< p=””>

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COUNT III
That you Osarobo Patrick (m) and others now at large, on or about the 14th day of June, 2009 at No. 1 Edojawerie Street, Evbotubu Quarters, Benin City, in the Benin Judicial Division, robbed one Osaro Osaze (m) of a Nokia handset valued at N4,500 (Four Thousand Naira Five Hundred Naira), One visa phone valued at N2, 500 (Two Thousand Five Hundred Naira Only) and a cash sum of N8,000 (Eight Thousand Naira) and at the time of the said robbery, you were armed with offensive weapon to wit: gun and thereby committed an offence Punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R. II, Laws of the Federation, 2004.
COUNT IV
That you Osarobo Patrick (m) and others now at large, on or about the 16th day of June, 2009 at No. 393 Evbotubu Road, Benin City, in the Benin Judicial Division, robbed one Osaikhuwuomwan Godwin (m) of the sum of N18, 000 (Eighteen Thousand Naira Only and at the time of the said robbery, you were armed with offensive weapon to wit: gun and thereby committed an offence punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R. II, Laws of the Federation, 2004.

In proof of its case against the Appellant at the trial Court, the Respondent called three (3) witnesses, tendered several Exhibits and closed its case. The Appellant testified in person and did not call any witness.

In a considered judgment, the trial Court found the Appellant guilty of all the Counts of the information, convicted and sentenced him to death accordingly.

Dissatisfied, the Appellant filed a Notice of Appeal on 10/3/17 and an amended Notice of Appeal filed on 5/3/18 and deemed filed on 19/2/19. The Record of Appeal was transmitted on 12/9/17 and deemed transmitted same day. The Appellant filed amended brief of argument on 5/3/18 and deemed properly filed on 19/2/19. The Respondents brief of argument was filed on 7/3/19.

Mrs F.I. Okhae Esq., and O.T Okeke Esq., who settled the Appellants brief of Argument identified four (4) issues for the determination of this appeal as follows:-
1. whether the trial Court was not in error when the Court admitted Exhibit A (after the mini trial) in the face of the overwhelming evidence of the Appellant as regard injuries inflicted upon him by

the PW1 and others captured in his defence in the mini trial, and duly acknowledged by the trial Court as per the unexplained marks or scars on the Appellant, coupled with that errors inherent in this case?
2. whether corroboration of the purported confessional statement (that is Exhibit A) can be found in the oral testimony of its maker (the Appellant)?
3. Whether in the particular circumstances of this case, Exhibit A solely could be a safe plank to have anchored the conviction of the Appellant by the trial court)
4. Having regard to the specific findings of the Court below that the Appellant was not properly identified by the PW2 and PW3 (who were the main victims of the series of robberies) and thereby making the identification parade conducted in this case to be a mere farcical drama, the specific findings of fact of the Court below that the PW1 cannot explain how, where and when the Appellant was arrested due to the Respondents failure to call the initial IPO (one P.C Lucky Unuigbe), the Court below using legally inadmissible pieces of evidence to corroborate Exhibit A, coupled with some

other fundamental flaws inherent in this case, the Court below was justified in convicting the Appellant solely on the strength of Exhibit A and thereby arriving at the conclusion that the Respondent proved beyond reasonable doubt the alleged offences for which the Appellant was convicted.

In the brief settled by Ehi Uwaifoh, Esq., the Respondent raised two issues for the determination of this appeal to wit:-
1. At the trial Court the Appellant challenged his confessional statement on the ground that it was not voluntarily made. After a trial within trial, the Court admitted the statement as Exhibit A, holding that it was made voluntarily. Was the trial High Court right to have admitted the confessional statement as Exhibit A?
2. whether the prosecution proved the offence of conspiracy to rob and armed robbery against the Appellant beyond all reasonable doubt in view of the evidence of PW1, PW2, PW3 and the three Exhibits admitted at the trial including the Appellants confessional statement Exhibit A?

I humbly hold the firm view that the issues identified by both counsel are too verbose and not succinct enough,

therefore I will recouch the issues necessary to address the complaints raised by the Appellant and it is set out as follows:-
1. Whether the confessional statement of the Appellant, Exhibit A was properly proved and admitted in evidence by the trial Court?
2. Whether or not the Respondent proved its case against the Appellant beyond reasonable doubt to sustain the conviction of the Appellant.

ISSUE ONE
Whether the confessional statement of the Appellant, Exhibit A was properly proved and admitted in evidence by the trial Court?

Learned Appellants counsel argued that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement in the sense that it was not obtained by fear of prejudice or hope of advantage, exercised or held out to him by persons in authority. Counsel cited Dawa & Anor v. The State (1980) 12 NSCC 334 at 345; Nsofor & Anor v. The State (2004) 18 NWLR Pt. 905 Pg. 292 at 314-315, Par. G-B; C.O.P v. Alozie (2017) 7 NWLR Pt. 1565 Pg. 368 at 387, Par. B-D.

Counsel argued that the test for admissibility

of a confessional statement is its involuntariness. Once the issue is raised, it must be resolved or settled one way or the other before its admission or otherwise. Counsel cited Auta v. The State (1975) 9 NSCC 149 at 152 Lines 37-42; The State v. Gwangwan (2015) 249 LRCN 76 at 119 Par P-E at 120 Par A-k; Agholor v. Attorney General, Bendel State (1990) 6 NWLR Pt. 155 Pg. 141 at 151 Para B-C; Olabode v. The STATE (2009) 174 LRCN 86 at 155, Para P-Z.

Counsel further argued that a trial within trial is always a matter of necessity where the voluntariness of the making of a confessional statement by the accused is either in issue or raised by the accused.

Counsel argued that the reasoning behind conducting the mini trial is indeed logical, and it is to ensure that the judgment of a Court must clearly demonstrate that the conclusions arrived at in the case are not based on the intuition and whim of the judge but on the evidence before the Court which must be properly evaluated, and the law well applied. It should not be on an insistence on mere form, but should be derived from the need to ensure and demonstrate that substantial Justice had been done in

the case. Counsel cited Yekini v. Nigerian Army (2002) 11 NWLR Pt. 777 Pg. 127 at 142-143 Para G-G; The State v. Gwangwan (supra) at Pg. 119-120 Para Z-A; F.R.N v. Dairo (2015) 6 NWLR Pt. 1454 Pg. 141 at 178-179 Par.E-B; C.O.P v. Alozie (supra) at Pg. 387-388.

Counsel submitted that a trial within trial is the only process of determining the voluntariness of a confession, and it is the only process of testing the admissibility of a confession where it is challenged on the grounds of threat, undue influence, duress e.t.c. Counsel cited C.O.P v. Alozie (supra) at Pg. 389 Para B-C. Counsel argued that the irregularity in the conduct of the trial within trial can vitiate the admissibility of the confessional statement. Counsel cited Auta v. The State (supra) at Pg. 153 Lines 28-44; Gbadamosi & Anor v. The State (1992) 9 NWLR Pt. 266 Pg. 465 at 480 Par D-G at 498, Par E-H.

Counsel argued that the prosecution is to prove beyond reasonable doubt that the statement was voluntary and ought to begin by leading evidence in that regard. This burden does not shift and no burden is placed on the accused to prove that he made the statement under duress, torture,

threat, or via a promise. All that an accused person needs to do is to create doubt. Counsel cited Ebhomien & Ors. v. The Queen (1963) 3 NSCC 288 at 290, Lines 26-35; Adekanbi v. A.G. Western Nigeria (1966) 4 NSCC 46 at 47-48 Lines 33-42; Auta v. The State (supra) at Pg. 153, Lines 29-31; Obue v. The State (1976) 10 NSCC 107; (1976) 2 SC 141 at 152-153, Lines 17-30; Obidiozo & Ors v. The State (1987) 4 NWLR Pt. 67 Pg. 748 at 760-761 Par H-A; Ojegele v. The State (1988) 1 NWLR Pt.71 Pg. 414 at 421 Par. D-E.

Counsel opined that the PW1s contention that the Appellant was never forced, threatened, cajoled, or oppressed to make Exhibit A was in sharp contrast with the evidence on record.

Counsel argued that the case at hand is now that of oath against oath which the Court below ought to have resolved in favour of the Appellant since the law is that, whenever a contest becomes so indecisive or a draw-game as in this case, it should be resolved in favour of the accused person unless there are some outside evidence to corroborate one of the evidence against the other. Counsel cited Uzoka v. The State (1990) 6 NWLR Pt. 159 Pg.

680 at 682.

Counsel further argued that vital witnesses were mentioned by PW1 who witnessed the voluntary recording of Exhibit A, but no effort was made by the Respondent during the mini trial to call any of the witnesses present while Exhibit A was being recorded to give credence to the fact of absence of torture.

Counsel emphasized that failure to call a vital witness by the Respondent is fatal to the Respondents case. Counsel cited Opayemi v. The State (1985) 2 NWLR Pt. 5 Pg. 101 at 108-109, Par E-A, B-D, and E-F; Onah v. The State (1985) 3 NWLR Pt. 12 Pg.236 at 241-242, Par. F-A; The State v. Nnolim (1994) 5 NWLR Pt. 345 Pg. 394 at 406, Para C-D; Ogudo v. The State (2011) 18 NWLR Pt. 1278 Pg. 1 at 31 Par G-H.

Counsel argued that the failure to call a vital witness raises the presumption under Section 167 (D) of the Evidence Act, 2011 that had the witness been called, his evidence would have been unfavourable to the party who ought to have called him, in the instant case, the Respondent. Counsel cited Onah v. The State (supra) Pg. 245, Para F-G; Ogudo v. The State Pg. 31 Para H. Counsel opined that Respondent can then not

be said to have discharged the burden on it in this regard.

Counsel argued that the PW1 in one breath admitted that some members of his team were present in the office while the Appellants statement (Exhibit A) was recorded and he mentioned their names, while in another breath, under cross examination, he denied some names he earlier mentioned that they are no longer members of his team when Exhibit A was being recorded.

Counsel argued that no witness who has given on oath, two material inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness. Counsel cited Ezemba v. Ibeneme & Anor (2004) 14 NWLR Pt. 1244 Pg. 465 at 467, Para A-D; Mohammed v. The State (2012) ALL FWLR Pt. 621 Pg. 1564 at 1579 Par. H.

Counsel emphasized that it is the duty of the Respondent to explain such contradictions in the evidence of its witness either under re-examination of the witness or in the address to the Court after the defence had closed its case. Counsel cited Aigbadion v. The State (2000) 7 NWLR Pt. 666 Pg. 686 at 689.

Counsel argued that in the course of the mini trial,

there was nothing nowhere in the Record where PW1 stated that the marks or scars on the head and toe of the Appellant were sustained by the Appellant before the Appellant was handed over to him.

Counsel fiercely argued that the same Court that observed that there are marks or scars on the head and toe of the Appellant also observed that the Appellant did not show the Court the scars of the injuries he sustained whereas the law does not permit a Court or a Tribunal to change its decision at will in one proceedings. The Court cannot approbate and reprobate in its findings with respect to the same fact. Counsel cited Ushae & Ors. v. C.O.P (2005) 2 NWLR Pt. 937 Pg. 499 at 535 Para A; Ahmed v. Yakubu & Ors (2009) 6 NWLR Pt. 1138 Pg. 493 at 511 Par F-G.

Counsel argued that there was an unexplained inconsistency in the authentication of Exhibits A and B which also tells or affect the admissibility of Exhibit A and the Respondent never deemed it fit to use the same PW1 to offer reasonable explanation or lead evidence to clear the discrepancies. Counsel argued that this created doubt in the case of the Respondent and should

be resolved in favour of the Appellant.

Counsel submitted that since the Respondent neglected or failed to use PW1 to explain the inconsistency, between Exhibits A and B, the trial Court cannot bridge the gap in the Respondents case in order to hold the balance evenly between the parties. Counsel cited Ogheneyovwe v. The State (2004) 12 NWLR Pt. 888 Pg. 626 at 653, Par A-B; 659 Para c-d;661 Para D-H.

Counsel argued that the fact that the PW1 stated that the Appellant was given instructions to sign Exhibit A and to thumb-impress Exhibit B showed that Exhibits A and B were obtained from the Appellant under duress, order and not from his free will. Counsel argued that where an act is capable of two or more interpretations, the most favourable one to the accused person (Appellant) should be preferred or adopted. Counsel cited Anyiam v. The Quen (1961) 2 NSCC 41 at 43 Lines 48-50; Oladele v. The State (1993) 1 NWLR Pt. 269 Pg. 294 at 307, Para E-G at 310 Para F-G.

Counsel submitted that Exhibit A cannot be said to have been proved positively and affirmatively beyond reasonable doubt as required by law. The Court

below should have held Exhibit A as inadmissible evidence and marked it rejected.

Learned Respondents Counsel in reply contended that the trial Court was right to have admitted the Appellants extra judicial statement as Exhibit A at the trial within trial because the Respondent proved his case beyond reasonable doubt that the Appellant voluntarily made the statement.

Counsel argued that a trial within trial is not concerned with the truth of what is in the extra judicial statement but whether the statement was made voluntarily, meaning that the accused would have admitted the statement before he can challenge the circumstances under which he made the statement. Counsel cited Lasisi v. The State (2013) LPELR-20183 (SC).

Counsel further argued that the PW1 who was the TW1 at the trial within trial gave lucid evidence on how he recorded the Appellants statement, read it to him and he signed it after he admitted that what was recorded accorded with what he told the PW1.

Counsel opined that the Appellants claim that he was slapped and cut with cutlass by policemen could not be substantiated as he did

not show the Court the scar or marks on his face, head and toe, although the Court observed that he had scar on his head, he did not tell the Court how he got treated of the supposed wound. Counsel argued that PW1 was never at Evbuotubu Police Station, the file was only handed over to him at the SCID.

Counsel argued that the paper the Appellant alleged he was coerced to sign if any was not Exhibit A because there was no evidence at all that the Appellant was forced to sign Exhibit A.

Counsel further argued that it is not of moment whether the Appellant signed Exhibit A and thumb-printed Exhibit B since both are marks of the Appellant attesting that he made both documents.

Counsel submitted that an appellate Court is very circumspect and reluctant to reverse findings and holding of a trial Court which saw the performance of a witness in the witness box and who had the opportunity of watching the demeanor of the witness except where those findings are perverse. Counsel cited Akintola v. Adegbite (2007) ALL FWLR) Pt. 372Pg. 1891 at 1898 Par D-E, 1901 Par. E.

OPINION
The purpose of going through the whole process of a trial within trial is for an accused person to be treated fairly in a criminal trial. See Ibeme v. State (2013) 10 NWLR Pt.1362 Pg. 333; LPELR-20138 (SC). Therefore, once the issue of voluntariness of confessional statement is raised, it must be resolved or settled one way or the other before its admission or otherwise. The Supreme Court in Bouwor v. State (2016) LPELR-26054 expressed that it is at a trial within trial that the Appellant can effectively challenge the Prosecutor as to the voluntariness of the confessional statement tendered against him. If the confessional statement is admitted after the trial within the trial, the Appellant cannot argue that he did not make the statement voluntarily without first impugning the trial within trial.

at 3975.
It is essential to note that where an accused person claims that he did not make the statement, it is still admissible but the Court must consider the weight to be attached to such evidence. In this latter instance, the statement becomes immediately admissible.

In this case however, the grouse of the Appellant on appeal is founded on the admissibility of the Appellants confessional statement, Exhibit A, made at the SCID Office on 28/9/09.

First, let me address the issue of whether there was any inconsistency between Exhibit A and B only because one was signed and the other thumb-printed. Exhibit A, the Appellants confessional statement at SCID office was signed by the Appellant, while Exhibit B, attestation form attached to the statement was thumb-printed by the Appellant. The Appellants contention on this point was that the inconsistency has created doubt in the Respondents case, and the doubt should have been resolved in favour of the Appellant. I have painstakingly read the record, especially the ruling of the trial Court on the trial within trial. There was no evidence whatsoever to

show that the Appellant denied signing the document or thumb-printing the attached form. I agree with the learned trial judge on this point that a signature and a thumb-print as used by the Appellant or impression are merely marks of an individual to indicate that he or she made or authored the document.
The Supreme Court in Agboola v. State (2013) LPELR-20652(SC) per Nwali Sylvester Ngwuta, J.S.C. opined that a thumb impression authenticates a document as much as a signature does. Whatever is intended as a signature is valid signing, no matter how imperfect or unfinished or fantastic or illegible or even false the separate characters or symbols used may be. The difference in the method with which the Appellant indicated that he was the maker of the statement and its attestation cannot vitiate either of the document or affect their admissibility since the signature and thumb-print belonged to same person.

Now, to the question of whether the Appellants confessional statement was properly proved and admitted in evidence. The burden is on the Prosecution (Respondent herein) to prove beyond reasonable doubt that the statement was voluntary. He

does this by leading evidence in that regard. This burden does not shift and no burden is placed on the accused to prove that he made the statement under duress, torture, threat, or via a promise. All that an accused person needs to do is to create doubt. See Bouwor v. State (supra); Isong v. State (2016) LPELR-40609 (SC).

In the effort to establish the voluntariness of the confessional statement, the Respondent called the IPO, ASP Joseph Ailenolumaria (TW1) as its sole witness, while in contention, the Appellant testified on his own behalf but called no witness. The IPO testified that upon transfer of the Appellant from Evbuotubu Police Station to SCID Office on 26/9/09, he was detailed to investigate the case of conspiracy and armed robbery leveled against the Appellant and he recorded the statement of the Appellant on 28/9/09.

While being led during the trial within trial, the TW1 gave evidence of how he rearrested the Appellant in his office, charged and cautioned him in respect of the offences; how the Appellant voluntarily made a statement and signed it as correct in the presence of some members of his team like ASP Sunday Inerhemen, ASP Alex

Igboko, Late Samson Lawani and others; how the Appellant was taken before Late ASP Wilfred Aghahowa for the attestation of the statement. TW1 in his testimony gave evidence that the Appellant was not forced, threatened, or cajoled or oppressed to make the statement.
Under cross examination at the trial within trial, the TW1 stated on Pg. 35 and 36 of the Record as follows:
The Accused person was transferred to my office on 26/9/09. I recorded the statement on 28/9/09. I travelled out of the state to Delta State on 26th and 27th September 2009. I returned to Benin on 28/9/09. I cannot now remember if the accused person made a statement at Evbuotubu Police Station before his transfer to my office. I have not seen the case file. He made a statement at Evbuotubu Police Station. This statement is confessional and was attested to by an SPO. It is in the Evbuotubu case file.

Curiously, the PW1 with one side of the mouth said he could not remember if the accused person made a statement at Evbuotubu Police Station before his transfer to SARS office and that he had not seen the case file before, but on the other side again stated that the

Appellant made a statement at Evbuotubu Police Station, the statement was attested to by an SPO and it is in the Evbuotubu case file. That is inconsistency in my view. However, the Appellants counsel having not been able to prove that the statement made by the Appellant at Evbuotubu Police Station is vastly different from Exhibit A made at SARS, I cannot speculate that the inconsistency is material to the defence of the Appellant. The point has been made severally that to prove an inconsistency in the various extra judicial statements (or between an extra judicial statement and evidence on oath) of a witness, be it an accused or not, the counsel intending to do so must request for and obtain a copy of the original extra judicial statement made by the witness and tender the specific inconsistent portion of the statement through that witness. The specific portion which is inconsistent with another statement or the current evidence on oath must be brought to the attention of the witness to give the witness an opportunity to explain the inconsistency. In the circumstances of this case, having not followed the procedure to show that the Appellant made a

statement at Evbuotubu Police Station quite different from the later statement at SARS in order to show whether the earlier statement was not confessional or not.

In any event, as I said earlier, all an accused person needs to do as in this instant case, is to create doubt in the Respondents evidence that the Appellant made the statement voluntarily.

With the greatest respect, my humble view is that the Appellant successfully created this doubt in his defence. He even went the extra mile to prove to the Court by showing the Court scars of the wounds inflicted on him by the Police in order to force him to sign the paper brought to him. He does not even need to prove that he made the statement under duress, torture, threat, or via a promise, the whole burden is on the Respondent to discharge. On Pg. 37 of the Record, the Appellant said as follows:
Upon my arrest by the Police from Evbuotubu Police Station, a woman identified me as one of the persons that robbed her. The man was later transferred to State Criminal Investigation Department, Benin City. At about 6pm one day, I was taken to an office. My hands were handcuffed and I was

made to sit on the ground. There were 4 Police officers in the room. The TW1 was not among them. He came in later with a paper and asked me to sign it after asking me for my names, address and occupation. I asked him to read out to me what he had written. He refused. He did not ask me if I could read and write. My refusal to sign earned me a slap from one of the Police with the back of his hand. The ring on his hand injured me on my face. Another used a battle axe to inflict a cut on my head and another used a cutlass to inflict a cut on my leg. These are the scars of the injuries on my head and big toe on my left leg.

It is obvious from the defence of the Appellant reproduced herein that a doubt has been created in the case of the Respondent against the Appellant. The Appellant led evidence in rebuttal of the evidence led by the Respondent by showing the Court evident scars on different parts of his body inflicted by Police officers. The Respondent, in my view was not able to discredit this evidence under Cross examination. Under Cross Examination, the Appellant insisted that he did not confess in any statement whatsoever to the Police but was

severely beaten to sign a statement he did not make and neither did he know the content. On Pg. 38, under cross examination by the Respondent, the Appellant said as follows:
I was bleeding profusely when I signed the statement. I was not taken to any hospital for treatment. The injuries on my head and toe were not scars I got while growing up. I do not have any parent. The scars on my body are not ancient.

The oath against oath of the Appellant against that of TW1 in my humble view should be resolved in favour of the Appellant. Moreso, the Appellant was able to create doubt as required by the law which the Respondent was not able to discredit under cross examination. The Appellants testimony is clear and uncontroverted.

One thing that also baffles me is the fact that on Pg 38 line 8 of the Record, during the proceedings on the 16th of May 2014, the Court had in its records noted that there are marks or scars on the head and toe of the Accused person, however, in its ruling on 4th of November, 2014, the same court on Pg. 59 expressed thus:
In an attempt to do so, the accused person testified that he

was injured, tortured and traumatized by the Police before he signed a statement he did not make and which content was not read out to him despite his protest. The Accused person, however, did not show the Court the scars of the injuries he sustained. He did not tell the Court how he got treated and cured of the injuries. He did not tell the Court if the Injuries have healed before he was charged to Court and remanded in prison custody. I am therefore unable to believe that the accused person was tortured to sign Exhibit T1.”

In my humble view, it is not for the Court to approbate and reprobate on the same issue. It is obvious that the Court on 16/5/14 observed the scars on the Appellants head and toe after the Appellant called the attention of the Court to it. The Court made a note of that fact. However, Six (6) months later in ruling on the trial within trial, the Court made a perverse finding contrary to the Courts earlier observations on record. The perverse finding of the learned trial judge in this regard lends credence to the judicial policy entrenched in the 1999 Constitution that a decision should be rendered not more than 90

days after parties had addressed the Court. The Court clearly forgot what had happened on 16/5/14.

With all humility, I do not see how a Court will believe in the voluntariness of a confessional statement, Exhibit A in this case, without first ascertaining what led to the arrest of the Appellant, most importantly the investigation conducted to warrant the Appellants arrest at the police station even before asking him to make a statement.

In any event, I do not believe the oral testimony of the PWI (TW1) during the trial within trial. The Respondent should have realized that there is an enormous burden on it to discharge and it must be done convincingly beyond reasonable doubt, which is to prove the voluntariness of Exhibit A. I am of the view that the prosecution failed to prove the voluntariness of Exhibit A beyond reasonable doubt, I therefore hold that the confessional statement is inadmissible and it is hereby rejected.

ISSUE TWO
Whether or not the Respondent proved its case against the Appellant beyond reasonable doubt to sustain the conviction of the Appellant.

Learned counsel to the Appellant argued that it is for the

Prosecution to prove its case beyond reasonable doubt, and until that is done , the accused person has no duty to call evidence in rebuttal as there is no obligation on him in law to prove his innocence. Failure of the prosecution to do so will lead to the discharge of the accused person. Counsel cited Onubogu v. The State (1974) 9 NSCC 358; Aigbadion v. The State (2000) 7 NWLR Pt. 666 Pg. 686 at 690.

Counsel submitted that the Respondent never discharged this evidential burden placed upon it by law at the Court below to secure the conviction granted it by the trial Court. From the totality of evidence adduced at trial, there are fundamental flaws inherent in this case which created lingering doubts and ought to have been resolved in favour of the Appellant but the Court below failed to so do. Counsel cited Muka & Ors. v. The State (1976) 9 &10 SC, 305 at 325-326; Ibeh v. The State (1997) 1 NWLR Pt. 484 Pg. 632 at 636; Stephen Ukorah v. The State (1977) 4 S.C 167 at 177; Onafowokan v. The State (1987) 18 NSCC Pt. 2 Pg. 1101 at 1107; Almu v. The State (2009) 10 NWLR Pt. 1148 Pg. 31 at 53 Par G-H.

Counsel argued that the fact that PW1 could not

explain how the Appellant was arrested in the first place, as he could not ascertain how, where, and when the Appellant was arrested because it was the initial I.P.O named P.C. Lucky Unuigbe who knew these facts but was never fielded by the Respondent to testify as his evidence would have resolved the doubts.

Counsel also argued that the trial Court having found that PW2s identification of the Appellant was founded on mere suspicion and that the Appellant was not properly identified by the PW2 and PW3, the Court cannot then rely on the evidence of the same PW2 and PW3 to corroborate Exhibit A. Counsel submitted that a Court of law should lean against the acceptance of the evidence of discredited witnesses. Counsel cited Kalio v. Woluchem (1985) 1 NWLR Pt. 4 Pg. 610 at 613; Tamuno &Ors v. C.O.P (2010) ALL FWLR Pt. 538 Pg. 921 at 936-937.

Learned counsel argued that PW3 is not a reliable witness when on the one hand he admitted that there was an electric bulb that was close to the window on that fateful evening of the incidence so he was able to identify the Appellant when handing over his belongings, but on the other hand, admitted that

there was no electricity on that fateful day. Counsel cited Ezemba v. Ibeneme & Anor (supra); Ajose v. F.R.N (supra); Mohammed v. The State (supra).

Counsel emphasized that since the case against the Appellant depends wholly or substantially on the correctness of the identification of the Appellant which the defence alleges to be mistaken, the trial Court ought to have closely considered PW3s evidence with caution before convicting on same. Counsel cited Ndidi v. The State (2007) 13 NWLR Pt. 1052 633 at 651-654 Par E-E.

Counsel argued that PW1 failed woefully in carrying out vital duties as the Investigating Police Officer (IPO) in this case because he relied on the findings done by someone else in this case who was never called upon to come and testify regarding the outcome of his investigation in this case.

Counsel also argued that it is the duty of the Police to conduct proper investigation with respect to allegation of offences. Counsel cited Olatinwo v. The State (2013) 8 NWLR Pt. 1355 Pg. 126 at 141 Para B; Ajayi v. The State (2013) 9 NWLR Pt. 1360 Pg. 589 at 605 Par. B. And where the Police had failed to perform its duties in

the course of investigating alleged offences as in this instant case, doubt is created as to whether the Appellants guilt was actually established beyond reasonable doubt by the Respondent in the Court below and such doubt must be resolved in favour of the Appellant. Counsel cited Aigbadion v. The State (2000) 7 NWLR Pt. 666 Pg. 686 at 700 Para C-F; Tamuno & Ors. v. C.O.P (supra) at Pg. 925-926; Jammal V. The State (1999) 12 NWLR Pt. 632 Pg 582 at 599 Para G-H.

Counsel vehemently argued that owing to the provisions of Section 38 of the Evidence Act 2011, since PW1 was never called upon to testify to the fact that he took those investigative steps, in this case, his evidence is nothing but hearsay evidence which is inadmissible in the eyes of the law, unhelpful, worthless and should therefore be expunged from the record of the Court. Counsel cited Pharmacist Board of Nigeria v. Adegbesote (1986) 5 NWLR Pt. 44 Pg. 707 at 713-714, Par H-B; Management Ent. Ltd & Anor. v. Otusanya (1987) 2 NWLR Pt. 55 Pg. 179 at 192-193 Para H-A; Ikaria v. The State (2014) 1 NWLR Pt. 1389 Pg. 639 at 651-652 Par E-A & 664-665 Par H-D; Utteh v. The State

(1992) 2 NWLR Pt. 223 Pg. 257 at 273 Par F-G; Gabriel v. The State (supra) at Pg. 323-324 Par E-C.

Counsel opined that all other evidence led by the Respondent are in favour of the Appellant except Exhibit A and there ought not to be a conviction. Counsel cited Anyiam v. The Queen (1961) 1 SCNLR 78 at 80-81, Para F-C; The State v. Kura (1975) 9 NSCC 25 at 28.

Counsel argued on the issue of corroboration, that corroborative evidence must be independent and capable of implicating the accused person in relation to the offence charged and the evidence of a witness which requires corroboration cannot be used to corroborate the evidence of another witness. Counsel cited Al-Mustapha v. The State (2013) 17 NWLR Pt. 1383 350 at 407 Para D; Shofolahan v. The State (2013) 17 NWLR Pt. 1383 Pg281 at 314 Par D.; Ugheneyovwe v. The State (supra) at 648 Par B-C; Ogunbayo v. The State (supra) at 178 Par E-F; 179 Par B-C; The State v. Gwangwan (supra) at Pg. 108 Para. P-U.

Learned counsel submitted that it was not proper for the trial Court to use the evidence of the accused to corroborate his confessional statement, most especially when the

accused maintains a firm denial of the facts leading to his conviction as a witness cannot corroborate himself. Counsel cited Kazeem v. The State (2009) ALL FWLR Pt. 465 Pg. 1749 at 1769-1771 Par H-F; Isiaka v. The State (Supra) at Pg. 1984-1985 Par D-B; AL-Mustapha v. The State (supra) Pg. 407 Par D; Shofolahan v. The State (supra) Pg. 314 Par D.

Counsel submitted that Exhibit A was not properly taken nor satisfactorily proved to be a true confession properly taken, and fails the required test. Counsel argued that Exhibit A is standing alone bereft of any other corroborating facts outside it, which renders it doubtful.

Counsel further submitted that the lower Court was wrong to have convicted the Appellant on the evidence before it because there was nothing again outside Exhibit A linking the Appellant with the alleged offences and also because Exhibit A failed the required test for determining its truth or otherwise.

Learned Respondents counsel contended that the Respondent proved with the evidence of PW1, PW2, PW3 and Exhibit A beyond reasonable doubt that the Appellant conspired with others to rob PW2 and PW3. Counsel cited

Ushie v.The State (2012) LPELR-9705(CA); C.O.P v. Amuta (2017) LPELR-41386 (SC).

Counsel argued that the prosecution in order to prove the offence beyond reasonable doubt must prove the essential ingredients of the offences. Counsel cited Ronke v. F.R.N (2017) LPELR-43584 (CA).

Counsel argued that the evidence of PW2 and PW3 as observed by the trial Court proved that there were series of robbery and the robbers were armed and this was not disputed by the Appellant, although he claimed not to be part of the robbers. Counsel cited Bozin v. The State (1985) 2 NWLR Pt. 8 Pg. 465.

Counsel argued that PW3 earlier had a suspicion that the Appellant was part of those who came to rob him but this was substantiated when the Appellant took Policemen round to show them the window glasses that were shattered during the robbery operations.

Counsel further argued that from the evidence of the Appellant, it shows that he lived in the same area where PW2 and PW3 were robbed and that made it easier for him to identify the houses and take the policemen there.

Counsel emphasized that the statement of the Appellant in Exhibit A was materially the same with the

evidence of PW2 and PW3 at the trial Court and the extra judicial statement he made at the Police Station.

Counsel submitted that a confessional statement is the best evidence in a criminal trial and there is nothing that prevents a Court from convicting based on a confessional statement if it is positive, cogent and unequivocal. Olusola Adeyemi v. The State (2015) ALL FWLR Pt. 790 Pg. 1201 at 1223 Para D-B; 1230 Par E; Akeem Agboola v. The State (2015) ALL FWLR Pt. 795 Pg. 197 at 216-217 Par G-B.

Counsel also argued that the Appellants reference was in respect of a piece of paper he signed at Evbuotubu Police Station which was not before the Court and Exhibit A was not the piece on which his name, occupation and address were merely written.

Learned counsel opined that what the Appellant did was to retract making Exhibit A even though he purported to challenge its voluntariness, it was therefore admissible. Counsel cited Aremu v. State (1991) 7 NWLR Pt. 2011; (1991) 7 SCNJ Pt. 11) Pg. 296; Onyejekwe v. State (1992) 3 NWLR Pt. 230 Pg. 444.

Counsel argued that the case against the Appellant was not dependent on his identification

because when the Appellant was arrested, he confessed to the offence of armed robbery on PW2 and PW3 in the company of others and he was the one who took the Police to the residence of PW2 and PW3 to show the Police the houses where he and his gang robbed. Counsel cited Ukpabi v. The State (2004) 11 NWLR Pt. 884 Pg. 439; Attah v. The State (2010) 10 NWLR Pt. 1201 Pg.190 at 200; Afolabi v. The State (2013) LPELR-20700 (SC).

Counsel submitted that the issue of identification was irrelevant in determining the guilt of the Appellant in respect of the charges for which he was arraigned and stood trial.

Learned counsel argued that in charge of conspiracy, the prosecution must prove beyond all reasonable doubt that the Appellant conspire with others to do an unlawful/wrongful act or a lawful act in a wrong way. Counsel cited Chianugo v. The State (2002) 2 NWLR Pt. 750 Pg. 223; Ndewenu v. The State (2010) LPELR-4863; Oloye v. The State (2014) LPELR-22545; Babarinde & Ors v. The State (2013) LPELR-21896 (SC); Osiriejor v. The State & Anor.(2015) LPELR-25304 (CA).

Counsel further argued that from the Appellants statement in Exhibit A, it

can be inferred that there was an agreement between the Appellant and his gang members who are at large to rob PW2 and PW3. Counsel argued that because others are at large cannot defeat the offence of conspiracy. Semiu Afolabi v. The State (supra).

Counsel submitted that an appellate Court does not substitute its views for that of the trial Court which heard the witnesses and evaluated the evidence unless the exercise of that duty is shown to be perverse. Counsel cited Ndukwe v. LPDC & Anor (2007) LPELR-1978(SC).

OPINION
The legal and evidential burden of proving the guilt of an accused person is placed on the Prosecution and it must be beyond reasonable. Every ingredient of the offence charged must be proved by credible evidence. That burden does not shift. Proof of a case beyond reasonable doubt does not mean proof beyond any iota or shadow of doubt or proof to the hilt. The Supreme Court in Oseni v. State (2012) 5 NWLR Pt. 1293 Pg. 351 (SC) opined that proof beyond reasonable doubt simply means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. It means the degree of compulsion which is

consistent with a high degree of probability. See Abokokuyanro v. State (2016) LPELR-40107(SC); Idemudia v. State (1999) 7 NWLR Pt. 610 Pg. 202 at 215; Esangbedo v. State (1989) 4 NWLR Pt. 113 Pg. 57.

In this case, PW2 and PW3 were the victims of the armed robbery attacks and they testified

that there were series of robbery and that each was armed robbery. The only question remaining is whether the Appellant was one of the armed robbers. Let me briefly restate the facts of this case.

On the 14th June, 2009 at about 10 p.m., a group of men possessing dangerous weapons stormed PW3s residence and tried forcing their way into his apartment and because he refused to open the main entrance after several threat, one of them shot at the door and the pellets hit PW3 in three (3) different places. PW3 managed to pass them some amount of money and two handsets before they left. That same night, at about 1.30am, PW2 was robbed in his apartment. The two robbery incidence was reported at Evbuotubu Police Station. At Evbuotubu Police Station, the case was initially handled by one P.C. Lucky Unuigbe. However, no arrest was made until 23 of September, 2009 about three (3) months after. The Police took the Appellant in a bus to the homes of the PW2 and PW3 on the night of 23/9/09, three months after the robberies. A torch light was pointed at the Appellant by the Policeman and the PW2 and PW3 were asked if they could identify him as the robber who robbed

them. They both did. They subsequently made statements to the Police.

The case was later transferred to the State Criminal Investigation Department (SCID) for investigation. Upon transfer of the Appellant from Evbuotubu Police Station to SCID Office on 26/9/09, ASP Joseph Ailenolumaria (PW1) was detailed to investigate the case of conspiracy and armed robbery leveled against the Appellant and he recorded the statement of the Appellant on 28/9/09. Exhibit A is the Appellants Statement made at the SCID, while Exhibit B is the attestation form attached to the statement.

The PW2 testified on Pgs.62-63 of the Record that he went to the house of the Landlord of the Appellant on 15/6/09 to complain that the voice of one of the armed robbers the night he was robbed sounded like that of one of the tenants while the Police came on the night of 23/9/09, pointed a torch at the Appellant and asked PW2 to confirm if the Appellant was part of those who robbed him and he did. The PW3 on Pg. 65 also gave evidence that Policemen from Evbuotubu Police Station came to his house sometime in September 2009 at 7pm and he was told by the Police that some boys had

confessed that they were the ones who robbed and shot him. PW3 testified that he was able to identify the Appellant the night the robbery took place by the electric bulb that was on in his room that evening and which was close to the window when he gave the money and handset to the Appellant.

Let us look at the issue of the confessional statement which I have already adjudged inadmissible. This is essential because even though the statement has been rejected on a substantial point of law, in case that view is unacceptable on appeal, it is important to consider whether even if the statement were admissible, what probative value can be attached to it.

I had earlier considered the issue of the confessional statement admitted in evidence against the Appellant by the trial Court. I adjudged it inadmissible. It is essential to note that the conviction of the Appellant by the learned trial judge was solely based on the said confessional statement. Having rejected the statement as inadmissible; faulted the entire process of the identification parade and for other reasons given herein in this judgment, it then means that there is no evidence at all to prove

that the Appellant ever took part in the armed robbery. The Supreme Court in Babarinde & Ors. v. State (2013) LPELR-21896 (SC) per Onnoghen J.S.C expressed that where a conviction of an accused person is not based solely on an inadmissible or expunged confessional statement, but also on independent pieces of evidence which, in effect, corroborate the expunged confessional statement(s), the conviction and sentence can be, and is in effect sustained by the independent evidence on record. It is only where the conviction is based solely on the expunged confessional statement that the conviction and sentence is vitiated as there will be no evidence in support of the charge.

For the purposes of clarity, I will address the issue of whether in the circumstances of this case, Exhibit A was properly corroborated or on its own sufficient to justify the conviction of the Appellant.

free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction and generally without any need of other corroborative evidence so long as the Court is satisfied with its truth. See Bature v State (1994) 1 NWLR Pt.320 Pg. 267; Fabiyi v. State (2015) LPELR-24834 (SC); Ikpasa v. State (1981) 9 SC 7; Achabua v. State (1976) 12 SC 63; Ogudo v. State (2011) LPELR-860 (SC). However, in Ogudo v. State (Supra) the Supreme Court reiterated six tests for the verification of confessional statements before any evidential weight can be attached to it as follows:-
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 Mbenu v State (1988) 3 NWLR Pt. 84 P. 615; Stephen v. State (1986) 5 NWLR Pt. 46 Pg. 978; Nwachukwu v. The State (2007) LPELR-8075 (SC); Musa v. State (2017)

5 NWLR Pt. 1557 Pg. 43.

I have to reiterate that the only ingredient left to be proved is whether the Appellant was one of the robbers. Exhibit A was the confessional statement of the Appellant at the SCID, taken by the PW1 on the 28/9/09. Therein, the Appellant supposedly admitted to have robbed the PW2 and PW3 in company of some other persons.

Is the confessional statement direct, positive and properly proved and was it tested in the light of credible evidence before the trial Court?

PW1 gave evidence in Court that the case was transferred from Evbuotubu Police Station on 26/9/09 and he was detailed to investigate the alleged case of conspiracy and armed robbery. The pertinent question is why was the Appellant arrested? What were the facts elicited from informants etc that led to the arrest of the Appellant.

The Appellant when defending himself on oath insisted he was arrested while on his way home during a Police raid, detained in the cell and the following day he was taken into an office handcuffed and was advised to cooperate or he will be shot. He testified that the Police asked him his name and some other personal questions which

he gave them and then he was asked to sign.

There was nothing stated by the Respondent that links the Appellant with the crime other than the confessional statement and the identification by the victims. The Rule that the confessional statement must be tested as to its truthfulness is made for just such occasions.

Now, let us examine the nature of identification parade and when it is deemed necessary. An identification parade is the process by which an accused person is identified out of a number of people with identical features as the accused person, by a witness. It was defined in Alabi v. State (1993) 7 NWLR (Pt.307) Pg. 511 at 527 per Onu, J.S.C as follows:
Identification parade means a group of persons of identical size and common physical features assembled by the police from whom a witness identifies a suspect or suspects unaided and untutored.
Needless to say, the identity of an accused person must be established by credible evidence beyond reasonable doubt in accordance with Section 135 (1) of the Evidence Act.
It is well settled that it is not in all criminal matters that an identification parade is

necessary. There are certain circumstances where identification parade would not only be needless, but would be a complete waste of time. However, there are also circumstances where conducting an identification parade is essential to the prosecutions case. There are several judicial authorities on this point. In Aliyu v. State (2007) ALL FWLR Pt. 388 Pg. 1123 at Pg. 1147, this Court per Ariwoola JCA (as he then was) held as follows:
“An identification parade is not sine qua non to a conviction for a crime alleged, it is essential in the following instances –
a. where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
b. where the victim or witness was confronted by the offender for a very short time.
c. where the victim due to time and circumstance might not have had full opportunity of observing the features of the accused. See R. v. Turnbull (1976) 3 ALL ER 549, (1977) QB 224; Ikemson v. State (1989) 1 CLRN 1.”
Also, in Balogun v. A.-G., Ogun State (2002) 6 NWLR (Pt.763), Pg. 512 at 534, the Supreme Court per Uwaifo JSC held thus:

An identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witnesss power of recognition based upon the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubts as to who the witness claims he saw in connection with the offence to require identification parade.
See also Ukpabi v. State (2004) 11 NWLR Pt. 884 Pg. 439; Ebri v. State (2004) 11 NWLR Pt. 885 Pg. 589; Sunday Ndidi v. The State (2007) All FWLR Pt. 381 Pg. 1617; Archibong v. The State (2006) 14 NWLR Pt.1000 Pg. 349; Ogoala v. The State (1991) 2 NWLR Pt.175 Pg. 509.
Thus, an identification parade would be necessary where the accused was not arrested at the scene of the crime; the witness did not know the accused before; witness was confronted with the accused for a short time, the witness, because of the peculiar circumstances did not have the opportunity to see fully the features of the accused. The proper procedure in identification parade is to shield the accused from members of the public before the

identification parade is conducted. See Jerome Akpan & Ors v. The State (2002) 12 NWLR Pt. 780 Pg. 189. The usual way to conduct identification parade is to put the accused with other persons with the same general features for the witness to pick his assailant. The police are not entitled to assist the identification of an accused person or suspect under arrest by bringing out the accused in handcuffs. See Waidi Ajibade v. The State (1987) 1 NWLR Pt. 48 Pg. 205. An Identification parade would not be properly conducted when the witness is asked leading questions like Is this the person? or when a police officer nods in the direction of the accused person. The judge must be cautious and carefully examine identification evidence before acting on it. The parade must meet certain standards to be credible and acceptable. Where the identification parade is improper, the accused must be given the benefit of the doubt. See Ojukwu & Ors v. State (2002) 4 NWLR Pt. 756 Pg. 80. None of the best practice parameters for judging a proper, credible and fair identification parade was utilised in this case. I entirely agree with the learned trial judge on

the point that identification of a suspected person must be carefully conducted and the Police ought to be aware of the essence of identification parade and the procedure to be followed. The identification parade must consist of persons who fit the description of the offender given to the police by the Complainants shortly after the offence was committed. In this case, the description of the Appellant should have been given by PW2 who allegedly knew the Appellant well, to law enforcement immediately after the offence was committed. See Isibor v. The State (2002) 4 NWLR Pt. 758 Pg. 741.

The whole procedure adopted in the instant case, vitiates the proper identification of the Appellant. While the PW2 claimed that he reported the armed robbery to the police the day following the incidence and went to the Landlord of the Appellant to make observations that the voice of one of the armed robbers resembles that of the tenant, the said PW2 admitted under cross examination that he made no such statement at the Police station when he went to report the incidence. He did not tell the police at the earliest possible opportunity that he was able to recognize one of

the robbers by his voice and that he knew where he lived and who his landlord was. PW2 only made that statement after the Appellant was brought to him on 23rd September, 2009 about three (3) months after the robbery incidence. In fact, the learned trial Court on Pg. 90-91 of the Record agreed with the above assessment of the identification evidence when it held thus:
A parade with only the Accused Person on parade is definitely not an identification parade known to law. It is highly improper to invite the PW2 and PW3 to identify the Accused Person inside a bus when alone and not mixed up with other persons. The methods resorted to in this case make the identification of the Accused Person valueless. The Police authorities ought to know that this is not then right way to identify. The farcical drama conducted in this case fell short of the requirement of the law.

I also observed an inconsistency in the evidence of the PW3 as regards the identification of the Appellant. While being led, PW3 stated that he could recognize the Appellant as the person he handed his phone and money to while being threatened with a gun on the day of the

incident because there was an electric bulb that was on that evening beside his window. The same PW3 under the fire of cross examination stated that there was no electricity on that day but he had a lantern on by the window and it was dark in the entire area. He also never made a statement to the police that he saw the face of the Appellant before the police brought the Appellant in a bus to him and asked him whether the Appellant was the robber. In my humble view, the entire identification is fraught with abnormalities and cannot be the basis of determining whether the Appellant took part in the robberies.

It is important to bring into focus some obvious way human life has been played with in this case. At Pg 91-92 of the Record, the learned trial judge held as follows:
Now how was the Accused Person arrested in the first place? The PW1 could not explain this. He claimed that the case was transferred from Evbuotubu Police Station to SCID by P.C. Lucky Umuigbe. This initial I.P.O was not fielded by the Prosecution to testify. His evidence would have solved the riddle of how, where and when the Accused was arrested and who identified him to the

Police as one of the robbers.
The only evidence touching on the above riddle is the evidence of the Accused person in his defence in which he claimed that he was arrested in a Police raid on his way home from work. This piece of evidence remains uncontroverted, unchallenged and undisputed. It is trite law that evidence that is not controverted and contradicted can be relied upon by the Court. I therefore accept the evidence of the Accused Person as to the circumstances of his arrest.
The failure of the Prosecutor to call P.C. Lucky Unuigbe to come to testify has further cast a pall of doubt on the prosecutions evidence identifying the Accused Person as the robber.”

As I said earlier, P.C. Umuigbe Lucky, the initial IPO at Evbuotubu Police Station was not called to testify on how and why the complaint was made against the Appellant and how his arrest was effected in the first place neither was any evidence led before the Court to show that the Appellant was initially arrested for any offence and was investigated. There was no statement recorded from PW2 and PW3 when the initial report of the armed robbery incidence was reported at

Evbuotubu Police Station on 15th June, 2009. Even PW2 who claimed to recognize the Appellant as one of the assailants and gave evidence of knowing his landlord did not report him to the police until he was brought to him on 23/9/09 about three (3) months after the incident.

In my humble view, no one could say what really transpired between the 14/6/09 when the robbers invaded the victims residence and the 26/9/09 when the PW1 claimed the case was transferred to his office and he was detailed to investigate it. There are only two people whose evidence can unravel this. That is, the Appellant and the initial IPO, P.C. Lucky Umuigbe. Unfortunately, P.C. Lucky Umuigbe was not called to give his own side of the story of how and why he arrested the Appellant. The Appellant on the other hand gave evidence that on 26/9/09, he was arrested during a police general raid on his way home from work as a commercial driver. This contradicts the evidence of the Respondents witnesses that the Appellant was brought to their houses for identification on 23/9/09. In my view, the failure of the Respondent to call P.C. Lucky Umuigbe adversely affects the case

against the Appellant. The evidence available before the Court cannot be used to ascertain when the Appellant was initially arrested or how he was arrested by the Police. PW1 was not in a position to give evidence to prove that the Appellants home was searched and the scene of crime was visited by the Police, because these facts were not within his personal knowledge. This gap has created doubt that should be resolved in favour of the Appellant especially because the PW1 cannot rely on the findings made by someone else in this case who was never called upon to come and testify and whose statement or investigation report was not tendered in evidence through another officer who knew the handwriting of P.C. Lucky Umuigbe.

The PW1 was unable to tell the Court when and where the Appellant was arrested and what investigation led to his arrest. There is no doubt that the Appellant is just one out of millions of young men in Benin-City. Why was he singled out? In the absence of any contrary evidence from the Respondent, I must believe the evidence of the Appellant that the Appellant was arrested on his way home during a Police raid without just cause about

three (3) months after the alleged robbery incidence.

I find it particularly strange that the learned trial Judge went on to convict the Appellant after PW1 showed a gap in the investigation by the Police. There was no connection between the Appellant and the incident before his arrest, neither was any attempt by the witnesses to link him to the incident successful. I cannot agree with the learned trial Court that there are abundant evidence outside the confessional statement-Exhibit A to show that Exhibit A was true. It is very important that the judex must be very careful where the sanction is the death sentence not to take hook, line and sinker the contents of a so called confessional statement without considering the totality of the circumstances of the said confession even when it is not retracted.

I disagree with the learned trial Court that the extra judicial statement of the Appellant passed the six tests of the credibility of a confessional statement sufficient to ground a conviction of armed robbery. A confessional statement upon which the Court wants to solely base the conviction of the Appellant must have been evaluated and

properly assessed by the trial judge in the con Justice of the evidence adduced. Where that has not been done, then the Court of Appeal will be at liberty to interfere with the findings that have been made. See Kesena v. State (2017) LPELR-42458 (CA); Ogudo v. State (supra).

Are there any evidence outside the Statement which taken together can prove beyond reasonable doubt that the Appellant committed these offences? My answer is No. This ultimately left a wide gap or lacuna in the evidence of the Prosecution. And where there is a lacuna or the nexus between an accused and the commission of a crime is broken, such an accused person cannot be found culpable of the commission of the crime. See Olaoye & Anor v. State (2014) LPELR-22955(CA).

I cannot with the greatest humility agree that Justice has been served in this case. The Court was too anxious to convict and willfully closed its eyes to the obvious lacuna in the case of the state.

The general principle of law is that, an accused person cannot be convicted of conspiracy where he has been acquitted of the substantive offence for which he has been accused of conspiring to commit. In the

circumstances, the conviction of the Appellant is set aside. I enter a verdict of acquittal and he is hereby discharged.

The judgment of the Edo State High Court delivered on 13/1/17 by Hon. Justice J.U Oyomire in charge No. B/152C/11 is hereby set aside. Appeal Allowed.

PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the Judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA.

I am in entire agreement with the reasoning and conclusion reached at the lead judgment that the conviction of the Appellant be set aside and the judgment of the Edo State High Court delivered on 13/1/17 by Hon. Justice J.U. Oyomire in Charge No. B/152C/11 also set aside. Appeal allowed by me. I abide by the order as to costs.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading before now the draft of the judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA.

I find the reasoning and conclusion therein very sound and unimpeachable.

I also set aside the judgment and conviction of the appellant and enter a verdict of acquittal instead.

Appeal is allowed. Appellant is discharged and acquitted.
The judgment of the lower Court delivered on 13/1/17 in Charge No. B/ 152C/2011 is hereby set aside.

Appearances:

O.T. Okeke (Legal Aid Counsel)For Appellant(s)

Ehi Uwaifoh with him, Mathew IsiborFor Respondent(s)

Appearances

O.T. Okeke (Legal Aid Counsel)For Appellant

AND

Ehi Uwaifoh with him, Mathew IsiborFor Respondent