ADIM v. STATE
(2022)LCN/16063(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/AS/380C/2018
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
STEPHEN AMAMIFE ADIM APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE INGREDIENTS OF THE OFFENCE OF CONSPIRACY TO COMMIT ARMED ROBBERY
For the prosecution to secure a conviction for the offences of conspiracy to commit armed robbery and armed robbery, the ingredients of each of the offences must be established beyond reasonable doubt by cogent, credible and legal evidence. For the offence of conspiracy to commit armed robbery, see OKOH V. THE STATE (2014) LPELR-22589(SC) AT 24-25 (E-A) where the Supreme Court Per Kekere-Ekun, JSC stated that:
“For the prosecution to succeed in the charge of conspiracy to commit armed robbery, it must prove the following facts beyond reasonable doubt: a. That there was an agreement or confederacy between the accused and others to commit the offence. b. That in furtherance of the agreement or confederacy, the accused took part in the commission of the robbery or series of robberies. c. That the robbery or each robbery was an armed robbery. See: Usufu v. The State (2007) 3 NWLR (Pt. 1020) 94 at 113-114 H-A.”
Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances. The trial Court may infer conspiracy from the fact of doing things towards a common purpose.
For the substantive offence of armed robbery, the prosecution must prove that: a) There was a robbery. b) That the robbery was an armed robbery. c) That the accused was one of the robbers. The lower Court considered the evidence adduced by the prosecution through PW1, the victim of the armed robbery and held as follows at page 110 of the record of appeal:
“On the first and second ingredients, the PW1 testified that at 8pm on 7.12.010, two men came into his pharmacy, pretending to be customers who wanted to buy a particular drug. He testified that the men pulled out gun, ordered him and his workers to lie face down on the floor and proceeded to rob them of money and telephone handsets. The PW1 was robbed of a total sum of N46,000 and his mobile phones. The evidence of the PW1 regarding this incident was neither challenged nor controverted. The Court accepts it as true. In the light of this, the Court finds the 1st and 2nd ingredients of the offence of armed robbery in count 11 proved.” PER BOLAJI-YUSUFF, J.C.A.
THE POSITION OF LAW WHERE A PIECE OF EVIDENCE GIVEN UNDER EVIDENCE IN CHIEF ON A MATERIAL ISSUE IS NOT CHALLANGED BY THE ADVERSARY UNDER CROSS-EXAMINATION
PW1 was not asked any question on the graphic description of the robbery incident. The law is trite that where a piece of evidence given under evidence in chief on a material issue is not challenged by the adversary under cross-examination, the Court is at liberty to act on it and accept it as the truth of what it seeks to establish. See ISAH v. THE STATE (2017) LPELR-43472(SC) AT 18-19 (F-A) where the Supreme Court Per RHODES-VIVOUR, J.S.C stated the effect of failure to cross-examine a witness on a material point as follows:
“What is the effect of failure to cross-examine a witness on a material point? Where a witness testifies on a material fact in controversy, in this case, whether Hamidu Mohammed is dead, and whether it was the appellant who killed him, and the appellant if he does not accept the witness testimony as true should cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where he fails to do either the Court can take his silence as acceptance that he does not dispute the fact.”
See also OLA V. THE STATE (2018) LPELR-44983(SC) AT 22-23 (E-C). UDO V. THE STATE (2018) LPELR-43707(SC) AT 16-17 (A-A). The lower Court rightly held that the 1st and 2nd ingredients of the offence of armed robbery in count 11 were proved. PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT THERE WOULD BE NEED FOR AN IDENTIFICATION PARADE WHERE THE ACCUSED PERSON IDENTIFIES HIMSELF AS THE COME WHO COMMITTED THE OFFENCE CHARGED
It is the law that where an accused person by his confession has identified himself as the person or one of the persons that committed the crime charged, there would be no need for further evidence of identification or an identification parade. See THE STATE v. OLASHEHU SALAWU (2011) LPELR-8252(SC) AT 49-50 (G-F). MABA V. THE STATE (2020) LPELR-52017(SC) AT 26 (B-G).
However, before a Court can safely convict on a confessional statement, such confession must be free, direct, positive, unequivocal and voluntarily made by the accused person. Confession is defined in Section 27 (1) of the Evidence Act as an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime. Section 27 (2) provides that a confessional statement is relevant to the proceedings if it is voluntarily made. See STATE v. USMAN ISAH & ORS (2012) LPELR-15519(SC) AT 15 (B-D). JOHN v. THE STATE (2016) LPELR-40103(SC) AT 13 (D). Though the Court can convict an accused on his voluntary, positive and unequivocal confessional statement alone even without corroboration, it is always desirable to test the veracity and truthfulness of the confession by subjecting it to the laid down tests which are: (a) Whether there is anything outside to show that it is true. (b) That it is corroborated. (c) The accused person had the opportunity of committing the offence. (d) The facts stated in it are true as far as can be tested. (e) The accused person’s confession is possible. (f) The confession is consistent with the other facts ascertained and proved at the trial. See NALADO v. THE STATE (2019) LPELR-47626(SC) At 18-20 (C-D). It is desirable for the Court to look for some independent evidence outside the confession no matter how slight in order to determine if the circumstances made it probable that the confession was in fact true. See BASSEY v. THE STATE (2019) LPELR-46910(SC) AT 13-15 (E-B). NALADO v. THE STATE (2019) LPELR-47626(SC) AT 18-20 (C-D). PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF AN ACCUSED PERSON TO PROVE HIS INNOCENCE
The observation of the Court that the appellant did not have an alibi and did not give evidence of his activities on the day of the robbery which obviously influenced the Court’s decision to rely on exhibit B is seriously erroneous. The observation in my view is prejudicial to the presumption of innocence of the appellant. It is not the duty of an accused person to prove his innocence. By Section 36 (5) of the Constitution, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. It is the duty of the prosecution to prove the guilt of the accused person by cogent, credible and legally admissible evidence not fabricated or manufactured evidence or confession. See OKOH V. THE STATE (2014) LPELR-22589(SC) AT 43-44 (C-D). AJAYI V. THE STATE (2013) LPELR-19941(SC) AT 43 (B-B). On what the constitutional provision of the presumption of innocence of an accused in a criminal trial entails, See OGU V. C.O.P. (2017) LPELR-43832(SC) AT 44-45 (E-B) where the Supreme Court Per EKO, J.S.C held that:
“It is trite that every defence available to the accused shall be and ought to be considered. The Court is obligated, on the presumption of the innocence of the accused person, not to convict him until his guilt is certain and proved beyond reasonable doubt. On this obligation, Karibi-Whyte, JSC, in OKORO v. THE STATE (1988) 5 NWLR (Pt.94) 255 at 277, re-stated the law to the effect that: the presumption of the innocence of the accused person constitutionally also means a duty on the Court not to convict until his guilt is proved beyond reasonable doubt, and that by that duty anything that ex facie negatives the guilt of the accused person must not be gleefully swept under the carpet and ignored.” PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State in charge no. O/11C/2011. The appellant was charged with one Emeka John Nzedunor on three counts charge of conspiracy to commit armed robbery and armed robbery. The charge reads:
STATEMENT OF OFFENCE: COUNT I
Conspiracy to commit armed robbery, contrary to Section 6 (b) punishable under Section 1 (2) of the Robbery and Firearms (Special) Provision) Act, Cap R11, Volume 14 Laws of the Federation of Nigeria,2004.
PARTICULARS OF OFFENCE
EMEKA JOHN NZEDUNOR and STEPHEN AMAMIFE ADIM on or about 7th day of December, 2010 at Ogwashi-Uku within Ogwashi-Uku Judicial Division conspired with others to commit armed robbery.
STATEMENT OF OFFENCE: COUNT II
Armed Robbery punishable under Section 1 (2) of the Robbery and Firearms (Special) Provision) Act, Cap R11, Volume 14 Laws of the Federation of Nigeria,2004.
PARTICULARS OF OFFENCE
EMEKA JOHN NZEDUNOR and STEPHEN AMAMIFE ADIM on or about 7th day of December, 2010 at Ogwashi-Uku within Ogwashi-Uku Judicial Division robbed one Chidiebere Chritian Orji of one DSTV mobile phone, a gold necklace and a cash sum of N46,000 while armed with guns.
STATEMENT OF OFFENCE: COUNT III
Armed Robbery punishable under Section 1 (2) of the Robbery and Firearms (Special) Provision) Act, Cap R11, Volume 14 Laws of the Federation of Nigeria,2004.
PARTICULARS OF OFFENCE
EMEKA JOHN NZEDUNOR and STEPHEN AMAMIFE ADIM on or about 7th day of December, 2010 at Ogwashi-Uku within Ogwashi-Uku Judicial Division robbed one Peter Udegbue of one Nokia mobile phone and a cash sum of N4,780.00 while armed with guns.
Before the commencement of trial, Emeka John Nzedunor’s name was struck out from the charge. The appellant pleaded not guilty to each of the counts. The prosecution called two witnesses. The appellant testified for himself and called no other witness. When the prosecution sought to tender the appellant’s statement through PW2, the Investigating Police Officer (IPO), the appellant raised objection to the admissibility of the statement on the ground that it was not voluntarily made. The Court conducted a trial within trial. The prosecution called the IPO as its witness and the appellant testified for himself. In a considered ruling delivered by the Court on 8/5/2013, the objection was overruled. The statement of the appellant made on 28/1/2011 was admitted as exhibit B.
At the end of the main trial, parties filed and exchanged written addresses. The Court in its judgment delivered on 26/2/2014 found the appellant guilty in respect of counts 1 and 2 and sentenced him accordingly. A verdict of not guilty was entered in respect of count III as the prosecution did not lead evidence in respect of that count.
The appellant was aggrieved by the judgment. He filed a notice of appeal against the judgment on 21/5/2018 pursuant to an order of extension of time granted by this Court on 8/5/2018. An amended notice of appeal filed on 10/6/20 containing five grounds of appeal was deemed as properly filed and served on 10/2/22. The appellant’s amended brief of argument filed on 10/6/20 was settled by Mrs. Itohan Richards. The respondent’s amended brief of argument filed on 12/10/20 was settled by P. A. OKOH, Assistant Director, Ministry of Justice, Delta State. The two briefs were deemed as properly filed and served on 10/2/22.
The appellant formulated the following issues for determination:
1. Whether the lower Court rightly held that exhibit B was voluntarily made by the appellant. (Ground 1).
2. Whether the lower Court rightly held that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the appellant beyond reasonable doubt. (Grounds and 5).
The respondent adopted issue 2 of the appellant as its sole issue for determination in this appeal. I have compared the issues formulated with the grounds of appeal. Issue 1 is formulated in respect of ground 1. Ground 1 is in respect of the decision of the lower Court to admit the appellant’s statement as exhibit B after a trial within trial was conducted. This appeal is against the judgment of the lower Court delivered on 26/2/2014. There is no appeal against the ruling of the lower Court delivered on 8/5/2013 in respect of the trial within trial. In OKOH V. THE STATE (2016) LPELR-40656(SC) AT 11-12 (G-B), the Supreme Court Per NGWUTA, J.S.C stated the effect of not appealing against the admissibility of a confessional statement after a trial within trial as follows:
“Learned Counsel for appellants in the appellate Courts made it a point of duty to argue that the statement credited to the appellant was not voluntarily made. Once the trial Court had determined, through trial within trial, that the confessional statement was made voluntarily and admitted same the voluntariness vel non of the statement cannot be raised on appeal. Unless counsel has appealed against the order admitting the statement after a trial within trial, he is estopped from raising the issue on appeal as he is deemed to have accepted the order admitting the confessional statement.”
By a motion on notice filed on 18/5/2017, the appellant specifically applied for an extension of time to appeal against the judgment delivered on 26/2/2014. The application was granted on 8/5/2018. The enrolled order is on page 124 of the record of appeal. The order specified that the extension of time granted was to appeal against the judgment delivered on 26/2/2014. Therefore ground 1 of the appeal, the issue formulated in respect of that ground and the argument in support contained on pages 2-8 of the appellant’s amended brief are hereby discountenanced for being incompetent. That leaves me with grounds 2-5 of the appeal and only issue 2 of the appellant which is hereby adopted for the determination of this appeal.
On this issue, the appellant contends that the lower Court was wrong to have convicted the appellant based on Exhibit B which does not satisfy the tests laid down for testing the veracity of a confessional statement and was not corroborated as there is nothing outside the statement to show that the appellant committed the offence of armed robbery. He referred to EGBEYOM V. STATE (2000) LPELR-6790 (CA). OZANA UBIERHO V. STATE (2005) 2 SC (PT. 11) 18 AT 22 (LINES 37-43). On the identification of the appellant, counsel submitted that the procedure adopted by PW2 and his team is not in compliance with the law as no identification parade was conducted, only the appellant was brought out and shown to PW1.
On the offence of conspiracy to commit armed robbery, he submitted that the prosecution has the burden to prove not only the offence but the meeting of at least two minds with a common intention and purpose to commit the offence which the prosecution failed to do in the instant case.
He referred to IYARO V. STATE (1988) INWLR (PT.69) 256.
In response, the respondent’s counsel submitted that the lower Court rightly held that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt as the evidence of PW1 which was neither challenged nor controverted under cross-examination together with exhibit B clearly established the 1st and 2nd ingredients of the offence of armed robbery and linked the appellant to the offence. He further submitted that exhibit B is consistent with other facts which have been ascertained and found to be true thereby satisfying the conditions for veracity of a confessional statement. On the conditions for ascertaining the veracity of a confessional statement, he referred to SOLOLA V. STATE (2005) ALL FWLR (PT.209) 1751.
On the identification of the appellant, he submitted that an identification parade is only necessary when the victim did not have the earliest opportunity of observing the features of the accused person particularly when the identity of the accused person is in issue. He referred to OGOALA V. STATE (2009) 7 ACLR 375 AT 379.
On the offence of conspiracy, he submitted that a critical evaluation of exhibit B shows that he conspired with one Emeka John Ezedinor who escaped from custody, Eze and Sunday Ebube alias Leke. On how to prove conspiracy, he referred to TANKO V. STATE (2009) ALL FWLR (PT. 456) 2013 -2014 (G). He finally submitted that it is clear that the appellant acted in concert with other persons to commit the criminal act and their act was in furtherance of an agreement which is consistent between them to carry out the armed robbery. He urged the Court to hold that the prosecution proved all the ingredients of conspiracy to commit armed robbery against the appellant beyond reasonable doubt.
RESOLUTION
For the prosecution to secure a conviction for the offences of conspiracy to commit armed robbery and armed robbery, the ingredients of each of the offences must be established beyond reasonable doubt by cogent, credible and legal evidence. For the offence of conspiracy to commit armed robbery, see OKOH V. THE STATE (2014) LPELR-22589(SC) AT 24-25 (E-A) where the Supreme Court Per Kekere-Ekun, JSC stated that:
“For the prosecution to succeed in the charge of conspiracy to commit armed robbery, it must prove the following facts beyond reasonable doubt: a. That there was an agreement or confederacy between the accused and others to commit the offence. b. That in furtherance of the agreement or confederacy, the accused took part in the commission of the robbery or series of robberies. c. That the robbery or each robbery was an armed robbery. See: Usufu v. The State (2007) 3 NWLR (Pt. 1020) 94 at 113-114 H-A.”
Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances. The trial Court may infer conspiracy from the fact of doing things towards a common purpose.
For the substantive offence of armed robbery, the prosecution must prove that: a) There was a robbery. b) That the robbery was an armed robbery. c) That the accused was one of the robbers. The lower Court considered the evidence adduced by the prosecution through PW1, the victim of the armed robbery and held as follows at page 110 of the record of appeal:
“On the first and second ingredients, the PW1 testified that at 8pm on 7.12.010, two men came into his pharmacy, pretending to be customers who wanted to buy a particular drug. He testified that the men pulled out gun, ordered him and his workers to lie face down on the floor and proceeded to rob them of money and telephone handsets. The PW1 was robbed of a total sum of N46,000 and his mobile phones. The evidence of the PW1 regarding this incident was neither challenged nor controverted. The Court accepts it as true. In the light of this, the Court finds the 1st and 2nd ingredients of the offence of armed robbery in count 11 proved.”
The evidence in chief of PW1 is on pages 59-61 of the record of appeal. He described graphically how two men went into his pharmacy store around 8pm on 7/12/2010 and pretended to be customers. How they diverted the attention of the workers to the shelf on which drugs were displayed and entered the area meant for the workers, how they pulled out guns and ordered workers to lie face down on the floor. He testified that a young man armed with a gun entered his office and ordered him to face the ground. The young man asked him for money and he pointed to where the money was under the table. The man took the sum of N4,000.00 from his wife’s purse, N24,000.00 from under his own table and N18,000.00 inside the cashier’s drawer. He also took his phone, his wife’s phone and the workers’ phones which were being charged inside his office. After the two men left, they got up after a while. They locked up the shop and left.
PW1 was not asked any question on the graphic description of the robbery incident. The law is trite that where a piece of evidence given under evidence in chief on a material issue is not challenged by the adversary under cross-examination, the Court is at liberty to act on it and accept it as the truth of what it seeks to establish. See ISAH v. THE STATE (2017) LPELR-43472(SC) AT 18-19 (F-A) where the Supreme Court Per RHODES-VIVOUR, J.S.C stated the effect of failure to cross-examine a witness on a material point as follows:
“What is the effect of failure to cross-examine a witness on a material point? Where a witness testifies on a material fact in controversy, in this case, whether Hamidu Mohammed is dead, and whether it was the appellant who killed him, and the appellant if he does not accept the witness testimony as true should cross-examine him on that fact, or at least show that he does not accept the evidence as true. Where he fails to do either the Court can take his silence as acceptance that he does not dispute the fact.”
See also OLA V. THE STATE (2018) LPELR-44983(SC) AT 22-23 (E-C). UDO V. THE STATE (2018) LPELR-43707(SC) AT 16-17 (A-A). The lower Court rightly held that the 1st and 2nd ingredients of the offence of armed robbery in count 11 were proved.
On the 3rd ingredient, the lower Court after considering the evidence of PW1 on the identity of the robbers held as follows at page 112 of the record of appeal:
“It is the evidence of P.W.1 which is confirmed in his statement, that when one of the armed robbers came into his office, he asked him (PW1) to lie face down on the floor, which he did. Having regard to the testimony of the P.W.1 that it was after the robbers left that he and his workers got up to lock the door, one can draw the conclusion that the witness was in that position throughout the robbery operation. In the above scenario, one cannot but wonder what opportunity the witness had to observe the armed robber who came into his office to rob him on 7.12.2010. It appears also from the statement that when P.W.1 got to the police station at Ogwashi-Uku following a call from the police that the armed robbers had been caught, the accused person or the suspects were brought out and shown to him, as they are said to have confessed to the armed robbery. There is nothing in exhibit B to show that P.W.1 was asked to identify the suspects or that he identified the accused person to the police at Ogwashi-Uku as one of the robbers. In the light of the above facts, the Court is of the view that that the identification of the accused person by P.W.1 as one of the robbers cannot be said to be satisfactory.”
However, the Court having correctly evaluated the viva voce evidence of PW1 and his extra-judicial statement and rightly rejected same turned to the statement of the appellant and held as follows at pages 113-114 of the record:
“Though the identification of the accused person by the P.W.1 has been found to be unsatisfactory, by his confession, the accused has identified himself as one of the robbers who robbed the P.W.1 on 7.12.010. The confessional statement contains all the ingredients of the offence. I observe that the accused person does not have an alibi and did not give evidence touching on his activities on the date material to this charge. Having identified himself as a participant in the armed robbery of the P.W.1 which took place on 7.12.010, the accused person cannot turn around to deny the charge. In the light of this, the Court holds that the prosecution has proved the 3rd ingredient of the offence in count 11 of the charge beyond reasonable doubt.”
On the offence of conspiracy to commit robbery, the Court at page 114 of the record held that:
“There is evidence from P.W.1, which the Court believes that the accused person robbed P.W.1 with at least one other person, which fact the accused person admitted in exhibit ‘B’. That they acted together in the armed robbery is not coincidental but is consistent with an agreement between them to carry out the armed robbery. In the light of this, the Court also finds the offence of conspiracy proved by the prosecution beyond reasonable doubt. In the result the Court finds the accused guilty in the said count and convicts him accordingly.”
The portion of the appellant’s statement on which the lower Court relied to hold that the appellant by his confession identified himself as one of the armed robbers that robbed PW1 was reproduced by the lower Court at page 113. It reads:
“I am a member of a four man gang and they are (1) Eze ‘m’ (2) Sunday Ebube ‘m’ (3) Emeka ‘m’ and we have robbed the following places (1) Chizok Pharmacy Ogwashi- Uku and we collected the sum of N200,000 and my share was N30,000 (2) we robbed Adagor filling station and collected N40,000 and my share was N20,000. Eze is the person that always sells the handset that we robbed. The guns that we always use in the robbery operations are brought by Eze. A caught to size double barrel gun and four live cartridges and Sunday Ebube alias leke always bring the ….(unclear) gun. The only time I wanted to rape a Poly school student was at Ogbe Onicha Quarters, Ogwashi-Uku but instead I only collected her handset music express phone….”
It is the law that where an accused person by his confession has identified himself as the person or one of the persons that committed the crime charged, there would be no need for further evidence of identification or an identification parade. See THE STATE v. OLASHEHU SALAWU (2011) LPELR-8252(SC) AT 49-50 (G-F). MABA V. THE STATE (2020) LPELR-52017(SC) AT 26 (B-G).
However, before a Court can safely convict on a confessional statement, such confession must be free, direct, positive, unequivocal and voluntarily made by the accused person. Confession is defined in Section 27 (1) of the Evidence Act as an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed the crime. Section 27 (2) provides that a confessional statement is relevant to the proceedings if it is voluntarily made. See STATE v. USMAN ISAH & ORS (2012) LPELR-15519(SC) AT 15 (B-D). JOHN v. THE STATE (2016) LPELR-40103(SC) AT 13 (D). Though the Court can convict an accused on his voluntary, positive and unequivocal confessional statement alone even without corroboration, it is always desirable to test the veracity and truthfulness of the confession by subjecting it to the laid down tests which are: (a) Whether there is anything outside to show that it is true. (b) That it is corroborated. (c) The accused person had the opportunity of committing the offence. (d) The facts stated in it are true as far as can be tested. (e) The accused person’s confession is possible. (f) The confession is consistent with the other facts ascertained and proved at the trial. See NALADO v. THE STATE (2019) LPELR-47626(SC) At 18-20 (C-D). It is desirable for the Court to look for some independent evidence outside the confession no matter how slight in order to determine if the circumstances made it probable that the confession was in fact true. See BASSEY v. THE STATE (2019) LPELR-46910(SC) AT 13-15 (E-B). NALADO v. THE STATE (2019) LPELR-47626(SC) AT 18-20 (C-D).
In the instant case, the lower Court did not subject the statement of the appellant to the required tests to determine its veracity and truthfulness. PW1 stated in his statement to the police, exhibit ‘A’ that the robbers took a sum of N4,000 from his wife’s purse, N24,000 from his own table and N18,000 from the cashier’s drawer. By the evidence of PW1, the total cash taken by the robbers is N46,000 not N200,000 (two hundred thousand naira). This is the exact amount that PW1 stated in his evidence before the Court. The content of exhibit B wherein the appellant is said to have confessed that he and his gang robbed PW1’s pharmacy and took N200,000 (two hundred thousand naira) cannot be true. Secondly, PW1 stated in his statement that he reported the robbery incident to the police the next day which he confirmed in his evidence before the Court. PW2 who recorded the appellant’s statement said that he was on duty on 7/12/2010 when they received a distress call. The police team raced to the scene of the distress call at no. 86, Onitsha/Benin Road, Ogwashi —Uku, specifically, ‘Chizok Pharmaceutical Company. On getting to the scene they discovered that the place had been robbed and the occupants locked inside. They gained entrance into the building. PW1 narrated what happened to them and they took him to the station where he made a statement. If the evidence of PW1 is compared with that of PW2, there is no doubt that PW2’s evidence was fabricated. There is no atom of truth in it. PW1 who was the victim did not say that anyone called the police that evening after the robbery incident. He did not say that the robbers locked them inside the shop. The occupants of the shop and victims of the robbery got up from the floor where they laid face down a while after the robbers had left and they locked up the shop and left. PW1 did not report the incident to the police until about 9 am the next day when he went to the police station contrary to PW1’s evidence that the police took PW1 to the station where he made a statement the day of the robbery incident. The lower Court ignored or closed its eyes to blatant lies of PW1. If the Court had taken cognisance of the serious contradictions in the evidence of PW1 and PW2 and most importantly the contradiction in the amount of money the appellant purportedly confessed that he and his alleged gang took during the robbery and the amount PW1 confirmed was taken from him, it would have been clear to the Court that the confessional statement is not true. PW2 is not a credible and truthful witness. Considering the entire evidence and circumstances of this case, the lower Court ought to have been more circumspect in convicting the appellant solely on exhibit B, the so called confessional statement which in my mind was a fabrication of PW2.
The observation of the Court that the appellant did not have an alibi and did not give evidence of his activities on the day of the robbery which obviously influenced the Court’s decision to rely on exhibit B is seriously erroneous. The observation in my view is prejudicial to the presumption of innocence of the appellant. It is not the duty of an accused person to prove his innocence. By Section 36 (5) of the Constitution, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. It is the duty of the prosecution to prove the guilt of the accused person by cogent, credible and legally admissible evidence not fabricated or manufactured evidence or confession. See OKOH V. THE STATE (2014) LPELR-22589(SC) AT 43-44 (C-D). AJAYI V. THE STATE (2013) LPELR-19941(SC) AT 43 (B-B). On what the constitutional provision of the presumption of innocence of an accused in a criminal trial entails, See OGU V. C.O.P. (2017) LPELR-43832(SC) AT 44-45 (E-B) where the Supreme Court Per EKO, J.S.C held that:
“It is trite that every defence available to the accused shall be and ought to be considered. The Court is obligated, on the presumption of the innocence of the accused person, not to convict him until his guilt is certain and proved beyond reasonable doubt. On this obligation, Karibi-Whyte, JSC, in OKORO v. THE STATE (1988) 5 NWLR (Pt.94) 255 at 277, re-stated the law to the effect that: the presumption of the innocence of the accused person constitutionally also means a duty on the Court not to convict until his guilt is proved beyond reasonable doubt, and that by that duty anything that ex facie negatives the guilt of the accused person must not be gleefully swept under the carpet and ignored.”
See also COMMISSIONER OF POLICE V. AMUTA (2017) LPELR-41386(SC) AT 24-25 (C-A). AFOLAHAN V. THE STATE (2017) LPELR-43825(SC) AT 25-26 (D-B). For the above reasons, the sole issue identified for determination is resolved in favour of the appellant.
In view of the foregoing, I hereby hold that this appeal has merit. The appeal is allowed. The judgment of the lower Court delivered on 26/2/2014 in charge no. O/11C/2011 is set aside. The conviction and sentences passed on the appellant is hereby set aside. The Appellant is hereby discharged and acquitted of the charge of conspiracy to commit armed robbery and the main offence of armed robbery. JOSEPH EYO EKANEM, J.C.A.: An accused person can be convicted on his confessional statement alone where the confession is found to be direct, positive and is properly proved. See Yesufu v. State (1976) 8 SC 167, State v. Obobolo (2018) 4 NWLR (Pt. 1610) 394 and Dibia v. State (2017) 12 NWLR (Pt. 1579) 96. This is because the strongest evidence establishing the guilt of an accused person is his own confession. See FRN v. Badmus (2017) 15 NWLR (Pt. 1588) 177.
It is however desirable for the trial Court to look for independent evidence no matter how slight to corroborate the confession that it is true. See R v. Sykes (1913) 8 CR.APP.R 233, FRN v. Sani (2014) 16 NWLR (Pt. 1433) 299, Martins v. State (2020) 5 NWLR (Pt. 1716) 58, Busari v. State (2015) 5 NWLR (Pt. 1452) 343 and Alo v. State (2015) 9 NWLR (Pt. 1464) 238.
Evidence outside the confessional statement in this instance does not make it probable that the confession is true. The disparity in the amount that the appellant is recorded to have stolen (N200,000) and the evidence of the PW 1 as to the amount that was stolen (N46,000.00) is a red flag as to the truthfulness of the confession. This is worsened by the evidence of the PW2 who testified that the Police team raced to the scene of the crime on the day of the incident while the PW 1 testified that he reported to the Police on the next day.
It was therefore unsafe for the trial Court to convict the appellant on the confessional statement.
It is for the above reasons and the more comprehensive reasons set out in the lead judgment of my learned brother that I agree that the appeal has merit. I also allow it, set aside the judgment of the trial Court and discharge and acquit the appellant.
ABIMBOLA OSARUGUE OBASEKI–ADEJUMO, J.C.A.: I have read the draft copy of the judgment before now of my lord MISTURA OMODERE BOLAJI-YUSUFF, JCA and I find that the reasoning and conclusion were apt and I have no reason to deviate from the erudite well thought out process.
I too agree that this appeal has merit and accordingly allow the appeal. I abide by the consequential order(s) in the lead judgment.
Appearances:
E. N. Boniface For Appellant(s)
P. A. Okoh, Assistant Director with him O. Eyesio, Senior State Counsel Ministry of Justice, Delta State For Respondent(s)