CHUKWUDI AMAMUZIA v. THE STATE
(2019)LCN/13681(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 23rd day of July, 2019
CA/B/408C/2017
RATIO
ARMED ROBBERY: THREE INGREDIENTS TO PROVE
In cases of armed robbery, there are three essential ingredients to be proved by the prosecution. They are set out as follows:
a. That there was a 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. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
IDENTIFICATION PARADE: WHERE NECESSARY
However, there are also circumstances where conducting an identification parade is essential to the prosecution?s 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.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CORROBORATIVE EVIDENCE TO SUPPORT CONFESSION OF AN ACCUSED PERSON
It is desirable to have outside the accused person?s confession, some corroborative evidence no matter how slight, of circumstances which makes it probable that the confession is true and correct as the courts are not generally disposed to act on a confession without testing the truth thereof.
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. 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 Musa v. State (2017) 5 NWLR Pt. 1557 Pg. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
CHUKWUDI AMAMUZIA 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 the Edo State High Court delivered by Honourable Justice S.A. Omonua on 13/6/2014 wherein the Appellant was convicted on a three count charge of conspiracy and armed robbery and sentenced to death accordingly.
The facts that led to this appeal are as follows:
The PW1 and PW2, a couple, were returning from the Market on 2nd December, 2010 when two boys robbed them of N51, 650.00 (Fifty One Thousand, Six Hundred and Fifty Naira Only), Handset and a handbag with a Suit and threatened to shoot them if they resisted. As soon as the robbers escaped, the PW1 and PW2 raised an alarm which attracted people who pursued the boys and caught the Appellant and was then handed over to the Police.
The Appellant was then brought before the High Court of Edo State for trial in Charge No. B/121C/11 on a three (3) Count charge of Conspiracy and armed robbery. The statements of offence are set out below: –
COUNT I
?That you Chukwudi Amamuzia (m) and others now at large, on or about the 2nd day of December, 2010, along Evbiemwen
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Street by Christ Temple Church, Benin City, in the Benin Judicial Division conspired among yourselves to commit an offence to wit: Armed Robbery and thereby committed an offence contrary to Section 6(b) and punishable under Sections 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Vol. 14 Laws of Federation of Nigeria.
COUNT II
That you Chukwudi Amamuzia (m) and others now at large, on or about the 2nd day of December, 2010, along Evbiemwen Street by Christ Temple Church, Benin City, in the Benin Judicial Division robbed one Chidi Iwunwanne of two Nokia Phone, N51, 650 cash; and at the time of the robbery you were armed with an offensive weapon to wit: gun and thereby committed an offence punishable under Sections 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R11, VOL. 14 Laws of Federation of Nigeria, 2004.
COUNT III
That you Chukwudi Amamuzia (m) and others now at large, on or about the 2nd day of December, 2010, along Evbiemwen Street by Christ Temple Church, Benin City, in the Benin Judicial Division robbed one Roseline Iwunwanne of a female Suit, a Skirt and Blouse, One wrapper, a handbag and
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a bible; and at the time of the robbery you were armed with an offensive weapon to wit: gun and thereby committed an offence punishable under Sections 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act, Cap R11 Vol14 Laws of the Federation of Nigeria, 2004.
In proof of its case against the Appellant at the trial Court, the Respondent called four (4) witnesses, tendered three (3) 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 9/7/14 and Amended notice was filed on 11/2/19. The Record of Appeal was transmitted on 12/9/17 and deemed transmitted on 7/2/19. The Appellant?s brief of argument was filed on 21/9/17 and deemed properly filed on 7/2/19. The Respondent?s brief of argument was filed on 25/3/19 and deemed filed the same day.
?
O.C.L Ofoedu (Mrs.) who settled the Appellant?s brief of Argument identified two (2) issues for the determination of this appeal
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as follows:-
1. Whether the learned trial judge was right to admit the Appellant?s alleged confessional statements exhibits ?A? and ?B? as voluntarily made and to act on them in convicting the Appellant
2. Whether the learned trial judge was right in holding that the prosecution had proved the three (3) count charge of conspiracy and armed robbery against the Appellant beyond reasonable doubt upon a retracted confessional statements, conflicting mode of arrest and faulty identification.
In the brief settled by Theresa Eghe-Abe (Mrs.) Assistant Director, Esosa Idada Esq. Senior State Counsel, and Mrs. O.N. Ilueminosen Esq., the Respondent raised two issues for the determination of this appeal to wit: –
1. Whether from the totality of the evidence, the learned trial judge rightly admitted Exhibits ?A? and ?B?.
2. Whether the learned trial judge rightly held that the prosecution proved the three (3) count charge of conspiracy to commit Armed Robbery and Armed robbery beyond reasonable doubt.
?
The issues raised by counsel are the same though couched differently, in the event, I will
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adopt the issues as couched by the Appellant in determining this appeal.
1. Whether the learned trial judge was right to have admitted the Appellant?s alleged confessional statements Exhibits ?A? and ?B? as voluntarily made and to act on them in convicting the Appellant
2. Whether the learned trial judge was right in holding that the prosecution had proved the three (3) count charge of conspiracy and armed robbery against the Appellant beyond reasonable doubt upon a retracted confessional statements, conflicting mode of arrest and faulty identification.
ISSUE ONE
Whether the learned trial judge was right to have admitted the Appellant?s alleged confessional statements Exhibits ?A? and ?B? as voluntarily made and to act on them in convicting the Appellant.
Learned Counsel to the Appellant argued that the learned trial judge was in serious error in the way and manner Exhibits A and B were admitted and acted upon in convicting the Appellant.
?
Counsel submitted that by Section 21 of the Evidence Act, the Court can admit and act upon a confessional statement made by an
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accused person voluntarily in convicting him, however, the Court must first satisfy itself that the accused person not only made the statement but did so voluntarily. Counsel cited Alarape v. State (2001) 84 LRCN 600; (2001) 5 NWLR Pt. 705 Pg. 79; Egboghonome v. State (1993) NWLR Pt. 306 Pg. 383; Ogun v. State (2013) 19 WRN 160.
Learned counsel argued that the statement accredited to the Appellant was neither made nor signed by him but the trial court termed it a retraction and admitted same as Exhibit ?A? with a view that the Court will determine at the end of the trial whether the Appellant did in fact made the statement.
Counsel further argued that the evidence of the Appellant under cross examination that he made statement at Oba Market Police Station could not mean a deviation from the retraction of Exhibit ?A? as held by the learned trial judge.
Counsel vehemently argued that it is prejudicial and presumptuous for the Court to assume that the same Exhibit A which the Appellant denied making or signing was the one he referred to under cross examination since the Appellant did not say that Exhibit A was the statement
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he made.
Counsel further argued that Exhibit A should have been shown to the Appellant to identify since the Appellant maintained that he made statement on 3/12/10 and not 2/12/10 and Exhibit A dated 2/12/10 did not bear his signature and it was not the statement he made at Oba Market Police Station.
Counsel submitted that the learned trial judge?s reliance on Exhibit ?A? in convicting the Appellant was wrong and has occasioned a grievous miscarriage of justice.
Counsel argued that the learned trial judge was in error when the Court relied on Augustine Nwagbamu v. State (2001) 2 ACLR 9 and Samson Emeka v. State (2001) 88 LRCN 2343 to place the burden of proof in trial-within ?trial on the Appellant.
Counsel submitted that the error has occasioned miscarriage of justice and must be set aside since the Appellant was wrongly called to testify first at the trial-within-trial.
Counsel emphasized that the issue of trial within trial did not even arise in the first place in the case of Nwagbamu v. State (supra) which was relied upon by the Court while the dictum of the Belgore JSC was diluted by those of Ogwuegbu JSC
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and Uwaifoh JSC in Samson Emeka v. State (supra).
Counsel submitted that the burden of proof is on the prosecution to prove all the ingredients of any offence beyond reasonable doubt and it never shifts even in trial within trial. Counsel relied on Okashetu v. State (2006) 26 WRN 1SC; Okudo v. State (2011) 3 NWLR Pt. 1234 Pg. 236; Edamine v. State (2001) 32 WRN 37 at 47; Osuagwu v. State (2013) LPELR 19823 SC; (2016) 27 WRN 80 and urged this Court to reject Exhibit B.
Counsel further argued that the Court overlooked the unchallenged evidence of the Appellant in the trial within trial that Exhibit ?B? was obtained from him through a question and answer session as he was not cross examined on this issue and the Respondent led no evidence to debunk it. Counsel cited Oforlete v. State (2000) LPELR 2270 SC (2000) 12 NWR Pt. 681 Pg. 415; Azeez v. State (2003) 33 WRN 110; Babarinde v. State (2012) 29 WRN 98; Tanko v. State (2009) 14 WRN 1; Ebeinwe v. State (2011) 7 NWLR Pt. 1246 Pg. 408. Counsel emphasized that such a statement cannot be termed voluntary in law and must be rejected and cited Namsoh v. State (1993) 5 NWLR Pt. 292 Pg. 129;
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Salawu v. State (2010) 28 WRN 149.
Learned counsel submitted that the trial judge failed woefully to examine the contents of the attestation form by way of evaluation before making the findings that the executed attestation and the evidence of PW4 CPL. Akinola Bukola that the accused admitted to the attesting officer that he made the statement voluntarily were not challeng
