CHUKWUMA AUGUSTINE IKECHUKWU v. THE ATTORNEY- GENERAL OF IMO STATE (2014)

CHUKWUMA AUGUSTINE IKECHUKWU v. THE ATTORNEY- GENERAL OF IMO STATE

(2014)LCN/7364(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of July, 2014

CA/PH/87C/2009

RATIO

EVIDENCE: CONFESSIONAL STATEMENT; WHAT IS A CONFESSIONAL STATEMENT AND WHEN IS A CONFESSIONAL STATEMENT MADE BY AN ACCUSED PERSON IRRELEVANT IN A CRIMINAL PROCEEDING
A confessional statement by an Accused is therefore a direct acknowledgement of commission of the offence for which he was arraigned and admission of all the elements or ingredients of the offence charged. A free and voluntary confession is the best evidence eagerly sought after and always by the prosecution to rely upon to establish the guilt of an Accused person. See NNAMDI OSUAGWU VS THE STATE (2013) 5 NWLR (PART 1347) 360 at 387 B – E where RHODES-VIVOUR JSC, said:-
“Now, what was the prosecution’s case? The confessional statements of the Appellant, Exhibits E and F. section 27(1) of the Evidence Act states that: –
A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. See IGBINOVIA VS. STATE (1981) 2 SC P.A, YUSUF vs. THE STATE (1976) 6 SC p.167.
A confession is a voluntary admission or declaration by a person of his participation in a crime. It becomes a confession when in some way, it amounts to an acknowledgement of guilt. A confession must either admit the elements of the offence of all facts which constitutes the offence. Once a court is satisfied with the genuiness of a confession, a conviction can be based entirely on it and such a conviction would not be disturbed by an Appellate court. See R. VS. Sykes (1913) 8 C.A.R. 233 R. V. AJAYI ONIKORO 7 WACA P. 146.”

APPEAL: INTERFERENCE; WHETHER AN APPELLATE COURT WILL NOT INTERFERE WITH FINDINGS OF FACTS AND ASSESSMENT OF WITNESSES IN A TRIAL WITHIN TRIAL TO DETERMINE ADMISSIBILITY OF CONFESSIONAL STATEMENT OF THE TRIAL COURT UNLESS IT IS PERVERSE

An Appellate court will not interfere with findings of facts and assessment of witnesses in a trial within trial to determine admissibility of confessional statement unless an Appellant can show that the findings of the trial court is perverse.
NNAMDI OSUAGWU vs. THE STATE (2013) 5 NWLR 960 at 389C to 390A per RHODES-VNOUR, JSC who held:
“There is a clear distinction in finding of fact based on credibility of witnesses and finding of fact based on evaluation of evidence. In the latter case an appeal court is in the same position as the trial court and so it can proceed to examine the evidence and come to a different finding from that of the trial court. This is not the case with finding of fact based on credibility of witnesses. The trial Judge Sees and hears the witness, he and he alone is in the best position to comment on the demeanour and credibility of a witness. After the learned trial Judge watched the demeanour of the Appellant and listened to his evidence he did not believe him for good reasons in my view. The finding by the learned trial Judge cannot be faulted and tremendous weight must be given to his findings. I am firmly of the view that exhibit E, the Appellant’s confessional statement was made voluntarily, it is direct, positive, and true. The learned trial judge was right to admit it in evidence and act on it and the court of Appeal was correct to confirm the judgment of the trial court.
A trial within trial is a mini trial that must be conducted when an accused person says that his confessional statement was not made voluntarily. It is the duty of the prosecution to read evidence to show that the statement was made voluntarily, while the accused person and his witnesses are to prove the opposite. This is a trial where the credibility of witnesses, demeanour is very important.
Now, in such a trial credibility of witness is based on demeanour. An appeal court cannot or ought not to interfere since it never had the advantage of seeing the witnesses. It can only interfere if the findings were based on inference drawn from evidence. See Omoregie v. Idugiemwwanye (1985) 2 NWLR (Pt.5) pg. 41, Ugwu v. Ogbuzuru (1926) 10 SC Pg. 191, Olatunji v. Adisa (1995) 2 NWLR (Pt.376) pg.167, Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) Pg. 373. per. PETER OLABISI IGE, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN A CRIMINAL PROCEEDING AND HOW THIS BURDEN IS DISCHARGED BY THE PROSECUTION

The law needs no restatement that before an accused can be convicted of any offence the ingredients of the offence must be proved against Accused and shown to have fallen with the four walls of such ingredients of offence charged. In the case of SEBASTIAN S. YONGO & ANOR vs. COP (1992) I NWLR (PART 257) 36 at G, KUTUGI JSC (later CHIEF JUSICE OF NIGERIA Rtd) said:
“In criminal proceedings the onus is always on the prosecution to establish the quilt of the Accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence.”
My Lord, OLATAWURA J.S.C. said similar thing in the case of M. O. AMADI & ORS vs. THE STATE (1993) 1 NWLR (PART 314) 644 at 633 H to 664A THUS:
“It is unsafe to base a conviction on speculative findings. Such findings are no longer findings of facts. Quite apart from this before a trial court comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that the act of the accused come within the confines of particulars of offence charged.”

In effect the court will not begin to inquire whether an accused is guilty of a crime until it has been established that a crime has been committed. See The State vs. OMADA ODOBOR (1975) 9-11 SC 69 at 78. He must also be proved that he participated in the crime. See also OLAYINKA AFOLALU vs. THE STATE (2010) 16 NWLR (PART 1220) 584 at 612-613. per. PETER OLABISI IGE, J.C.A.

CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE ELEMENT OR INGREDIENT OF OFFENCE OF ARMED ROBBERY

The elements or ingredients of offence of Armed Robbery have been stated and restated in numerous cases. See
1) OLAYINKA AFOLALU vs. THE STATE (2010) 11 SCM 1 at 13 G-H, 17 F-G and 21 D-F.
2) STEPHEN JOHN & ANOR vs. THE STATE (2011) 12 (pt.2) SCM 238 at 251 D-F where my NOBLE LORD MUKHTAR, JSC (now CJN) said:
“The Appellants were charged and convicted of the offence of ‘armed robbery, and the law is settled that to ground a conviction, the following ingredients must be established by the prosecution. The ingredients are:
1. That there was robbery.
2. That the Accused persons committed the Robbery.
3. That at or immediately before or after the Robbery the Accused persons wounded or used personal violence to any person. per. PETER OLABISI IGE, J.C.A.

EVIDENCE STANDARD OF PROOF; THE STANDARD OF PROOF IN A CRIMINAL PROCEEDING

The settled law is also that to ground a conviction of any offence in the land the prosecution must prove its case beyond reasonable doubt as required by Section 138 of the Evidence Act Cap 112, Laws of the Federation of Nigeria 1990″ per. PETER OLABISI IGE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

CHUKWUMA AUGUSTINE IKECHUKWU Appellant(s)

AND

THE ATTORNEY-GENERAL OF IMO STATE Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned and charged with Armed Robbery at the then Imo State Armed Robbery Tribunal in 1998. The charge against the Appellant reads:

“STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act – Cap. 398, Vol. XXII, Laws of the Federation of Nigeria, 1990.

PARTICULARS OF OFFENCE
CHUKWUMA AUGUSTINE IKECHUKWU and three others at large on the 20th day of August, 1997 at No. 11 Echina Road, Oguta in the Oguta Judicial Division while armed with a toy pistol, or wise an offensive weapon robbed CHARLES UDOM of his properties valued N250,000.00 (Two hundred and fifty thousand Naira) as well as N1,750.00 (one thousand, seven hundred and fifty Naira) belonging to the said CHARLES UDOM.”
The plea of the Appellant was taken on 1st day of September; 1999. He pleaded Not Guilty to the charge. The prosecution called four witnesses in support of its case while the Appellant testified in his own behalf and called one witness.

At the end of trial and the addresses of Learned Counsel to the parties, the Learned Trial Judge gave a considered judgment in the matter on 31st day of March, 2004 wherein he made the following findings viz:

“Accused person denied going to the scene with a gun in his testimony in court but in his statements to the police Exhibits ‘C’ and ‘D’, he stated that they had a clay gun which was in the possession ‘of one Ralph. This corroborates P.W.1’s evidence that when Accused person was searched, pieces of the gun recovered from the scene fell off from Accused person’s clothing. Prosecution witnesses 1 and 3 are agreed that Accused person and his colleagues had gun with them. However, they are not agreed on the number of gun. Accused person in his statement stated that his colleague and partner in the robbery had a gun but a mere clay gun. I do not regard this disparity as a material contradiction. It is enough that the robbery was with arms. Whether they had one gun or two or clay gun is immaterial. As the Learned prosecuting counsel rightly observed, it is not necessary in every armed robbery case to recover the weapon of operation. It is not enough if there is evidence that the operation was with arms or dangerous weapon. See the case of
Alor v. The State (1998) 1 A.C.L.R. at 662 Ratio 11
Issue of dangerous weapon depends on the impression or effect the object has on the victim at the time of the crime. If it is a toy gun unknown to the victim but known to the Accused person, it meets the standards of offensive weapon.
Besides, P.W.1 testified that when the tumbler with which he gave accused person and his friend’s water broke, they took the pieces and threatened to cut his throat with it if he did not co-operate with them. Broken bottle also qualifies as an offensive weapon. See the case of
Ibrahim v. State (2003) 3 A.C.L.R. 479 – Ratio 11.
This is neither here nor there since the charge did not state that the weapon used is a broken glass. I believe the prosecution witnesses that the robbery was with arms. I am satisfied that on the day of incident, Accused person and his friends went to the scene armed with a clay gun, whether accused person was the one handling the gun, is immaterial, It is enough that he was in the company of a person so armed. See Ikemson v. State (1998) 1 A.C.L.R. 86 Ratio 23,
P.W.1: testified so. Accused person did not deny being at the scene of crime to “pressurize” P.W.1 to bring money. Accused person did not deny having been arrested at the scene of crime. Prosecution in my view has proved the case against Accused person beyond reasonable doubt. I arrived at this conclusion after carefully evaluating the evidence of prosecution witnesses. See
Muka V. State (1998) 1 A.C.L.R. 141
I have above treated issues Nos. 2 and 3 formulated by the defence in the course of evaluating evidence before me.
VERDICT:
I hereby find Accused person guilty as charged
I hereby convict him accordingly.
SENTENCE:
I sentence Accused person to death by hanging by the neck till he be dead or to suffer death by firing squad as the Governor of Imo State may direct.
Accused person has a right of appeal within 30 days of delivery of this judgment.
HON. JUSTICE F. I. DUROHA-IGWE
(JUDGE)
31/03/2004″

The Appellant was dissatisfied with the judgment and he filed Notice and Grounds of Appeal containing five grounds on 19th day of April, 2004. The Notice and Grounds of Appeal was dated the same date. The grounds of the aforesaid appeal with their particulars are as follows:-

“GROUND ONE – ERROR IN LAW
That the Learned Trial Judge erred in law in admitting in evidence the purported confessional statements of the accused, that is to say, Exhibits C, D and E and heavily relied on them.

PARTICULARS
(a) The accused timeously contended that he made the statements under most inhuman torture.
(b) During the trial within trial, he gave ample evidence of this.
(c) This was corroborated by the wounds of which he had on which the Court saw xxxxxxxxxx and recorded it.
(d) This was further corroborated by the evidence of DW1 who not only saw the torture but also requested the police to be allowed to take Accused/Appellant to the hospital. When the police refused, she went and bought drugs penicillin procaine et cetera, of which she used in treating the accused and gave it to the police for continued administration on the accused.

GROUND TWO – ERROR IN LAW
The Learned Trial Judge erred in law when he admitted in evidence as Exhibit A, a statement, confessional in nature purportedly written by the accused from prison custody while on remand.

PARTICULARS
(a) This document was made after the circumstances leading to this case have happened.
(b) This document was made after the Accused/Appellant has been charged to the Court and remanded in prison custody.

PARTICULARS
GROUND THREE – ERROR IN LAW
The Learned Trial Judge erred in law in finding the accused guilty of armed robbery.

PARTICULARS
(a) The information was that the Accused/Appellant was armed with a toy pistol.
(b) Toy pistol is neither a “fire arm” nor an “offensive weapon.”
(c) The evidence of the prosecution was that some pieces of gun was recovered.
(d) Whatever that was recovered as a gun or a piece of it was neither tendered nor attempted to be tendered in Court.
(e) The evidence of PW1 was that two of the robbers had a gun while the PW111, who was purportedly held be the same circumstances never mentioned any gun.

GROUND FOUR – ERROR IN LAW
The Learned Trial Judge erred in law in relying on and refusing to expunge the evidence of P.W.IV – the investigation police Officer (IPO).

PARTICULARS
(a) The I.P.O. commenced his evidence in Chief as P.W.IV.
(b) Midway when he wanted to tender the purported confessional statements Exhibits C, D & E, objection was raised by the defence as to the voluntariness of the statement which are confessional in nature.
(c) This then resulted in a trial within trial in which the I.P.O. gave evidence as P.W.1
(d) That after the trial within trial he absconded, not making himself available for the conclusion of his evidence in Chief and for cross-examination.
(e) On application that his evidence be expunged, the Court refused.
(f) The court then imported his evidence during trial within trial as his evidence and relied on same.

GROUND FIVE
The judgment is unwarranted and unreasonable having regard to the evidence.
More Grounds will be filed upon the receipt of record of proceedings.

RELIEF SOUGHT
To set aside the judgment of the Lower Court dated 31/3/2004 and the sentence and discharge and acquit the Accused/Appellant.”

The Appellant’s Brief of Argument dated the 2nd day of November 2012 was filed on the same date but was deemed filed on 28/11/2012.
The Respondent’s Brief of Argument dated the 21st day of February; 2013 was filed on 22nd day February, 2013 and deemed properly filed on 14th day of March, 2013.

The appeal was heard on 26th day of May 2014 when the Learned Counsel to the Appellant and the Respondent adopted their Briefs of Arguments. The Appellant’s Learned Counsel Harold Opara Esq. distilled two issues for determination of this appeal as follows: –
1. Whether the confessional statement was voluntary and if the answer is in the affirmative then whether there is anything outside the confessional statement to show that the confessional statement was true, direct and positive to ground a conviction based on the said confessional statement.
2. Whether in the totality of the evidence adduced before the court, the Learned Trial court was right in holding that the prosecution proved the case of armed robbery against the Appellant beyond reasonable doubt.
The Respondent adopted the two issues formulated by the Appellant.
I will therefore consider the merit of this appeal on the two settled issues for determination:-

ISSUE 1
Whether the confessional statement was voluntary and if the answer is in the affirmative then whether there is anything outside the confessional statement to show that the confessional statement was true, direct and positive to ground a conviction based on the said confessional Statement.
It is the submission of Harold Opara Esq. for the Appellant that the decision in this case revolved on the admissibility and weight placed on the alleged confessional statements of the Appellant. He submitted that the said statements were not voluntarily made as according to him there is nothing outside the confessional statements to show that they were true, direct and positive to ground conviction. That a statement can only be confessional if it is made voluntarily retying on sections 27 and 28 of the Evidence Act Cap 14 now Section 28 of the Evidence Act 2011 (as amended). On what the court must took for in determining the truth or otherwise of a confessional statement he referred to the cases of UBIERHO vs. THE STATE (2005) 7 MJSC 16 at 188 – 189 G – H and the case of EMMANUEL NWAEGBONYI v. THE STATE (1994) 5 NWLR (PT.343) 138 at 150 where the factors were stated. That if the principles in the said cases are applied to Exhibits A, C, D, and E, they cannot qualify as voluntary statements and could not solely ground a conviction for what Learned counsel called “obvious reasons”.

That Exhibit ‘A’ which was a letter written by the Appellant, from Prison custody which was addressed to Late Justice IfunanyaUdom who was then Administrative Judge of High Court of Imo State, and immediate elder sister to PW1. That the plea therein was not a confessional statement. That it was only seeking intervention of the late Judge.

That another peculiar factor about the said Exhibit ‘A’ was that the prosecution maintained that it was using it to show that there was a similarity in the hand writing of the accused with the handwriting on the confessional statements Exhibits C, D and E. The Learned Counsel to the Appellant saw this as misplaced as according to him the Appellant’ did not deny making Exhibit C, D and E, but that he made them under duress.

That the big question to be asked is about the failure of the prosecution to tender the letter said to have been written by the Reverend Father though listed as Exhibit. That the prosecution cannot withhold the evidence. That the evidence of Appellant being in possession of arm was contradictory that the particulars given by the confessional statement concerning one MESIKE a Uniport student and cousin of PW1 and one Ofili were not verified outside of the confessional statement. That the police did not go to Imo State University to verify the story. That the trial Judge said he saw triangular scar on the leg of the Appellant, that this alone should render Exhibits A, C, D and E inadmissible. He relied on the case of THE STATE VS. SALAMI (2012) AFWLR (Pt.614) 1 at 22 – 23 PER NGWUTA JSC. That the Police cannot presume that the stories in the alleged confessional statement about club or cult or leaving one club for the other, that the Police Officer who gave evidence during trial within trial said he obtained statement from Appellant on 3/9/97. That “obtain” means demand and that according to the Supreme Court that vitiates a confessional statement. That introduction of gun came as an amendment. He urged the court to hold that there was no ingredient of offence of armed robbery established. He acknowledge the position of the law that an Appellate Court will not ordinarily disturb the findings of a trial court unless they are perverse or not supported by evidence. He relied on the case of AWOYOOLU VS. ARO (2006) 4 NWLR (Pt. 971) 497 A – B, 502 G – H and Cooper vs. Oguntola (1985) 2 NWLR (Pt. 5) 87. That the evidence of PW1 in the trial within trial as to the voluntariness of the Appellant at Oguta is not admissible because according to the Learned Counsel the PW in the -trial within trial was not at Oguta. That the evidence of PW1 with regard Exhibit ‘C’ is at best hearsay. He submitted that the additional evidence of PW2 in the trial within trial suffers the same fate. That if Inspector Ebute, the IPO at Oguta was indisposed certainly according to Appellant that Inspector did not investigate case of armed robbery alone. That the Officer at Oguta, who counter signed the alleged confessional statement could have been called.

That the finding of the Trial Judge on page 145 line 23 of the record relying on PW4 is evidence (he testifies as PW1 in trial within trial) that the finding cannot be supported. That the investigating Police Officers ought to have been called to throw light on facts of investigation. He relied on the case of INUSA SAIDU vs. THE STATE (1982) 4 SC 41 AT 56. That failure to call am investigating police officer concerning the confessional statements as to their voluntariness should attract invocation of Section 149(d) of the Evidence Act and rendered the statement inadmissible. He relied on the case of AMACHREE vs. NIG ARMY (2003) 2 NWLR (PR 807) 506; OMISADE vs. QUEEN 1 ALL NWL 233 (Sic).

That the evidence of the DW2 ought to be believed on the issue. He invited this court to disturb the Lower Court’s findings as according to him there were no facts or evidence outside the alleged confession upon which the conviction was based.
In reply to the above submissions the Learned Director of Public Prosecutions Imo State, stated that the Learned Trial Judge duly conducted trial within trial to determine the admissibility of Exhibits C, D and E. That two witnesses were called by the prosecution namely SGT BODE and DSP SYLVESTER ALIGBE. He relied on the ruling of the Learned Trial Judge on pages 88 – 94 on the admissibility of the confessional statements. He relied on the case of NWACHUKWU vs. THE STATE (2007) 31 NSCQR 312 at 352 PER OGBUAGU JSC. That Learned Trial Judge cannot be faulted. He relied on the evidence of PW2 in the trial within trial DSP SYLVESTER ALIGBE. That the findings of the Learned Trial Judge on the admissibility of the statements made by Appellant and confirmation of same as finding of facts which are not perverse. That Exhibit ‘E’ was voluntarily made and supported by the evidence used at the trial. He submitted that the judicial consensus is that an Appellate Court should not interfere with findings of fact. He relied on the case of OYAKHERE vs. STATE (2005) 15 NWLR (PT 947) at 181 D. That there is overwhelming evidence that Exhibits C, D and E were voluntarily made and properly admitted. He also relied on the evidence of PW1, PW2 and PW3 and Exhibit ‘A’ written by Appellant seeking for forgiveness. That it is true that it is desirable to have some corroborative evidence outside a confessional statement. He relied on NWACHUKWU vs. THE STATE 31 NSCQR 132 at 35. He submitted that the Appellant and the others had the opportunity to commit the crime. That the Appellant was arrested while trying to escape from the compound of the PW1 and being inside the compound the Appellant had opportunity to commit crime. That the confession of Appellant is true in that he mentioned guns in Exhibits C, D and E which was actually recovered from him. That outside the confession is also PW’s evidence, That the evidence is consistent with the Confessional Statements of Appellant. He relied on OYAKHERE VS. THE STATE supra P.181 and the case of AKALONU vs. THE STATE 10 NSCQR 1252 at 1262.

Mr. Akowundu submitted that Exhibits C, D and E are free and voluntary, direct and positive. That they properly established the guilt of the Appellant. He urged the court to resolve issue No. 1 against the Appellant.
I think I should start by restating the well settled principles of law concerning “Confession” and its connotations in criminal law and procedure.

Section 27 (1) and (2) of the Evidence Act 2004 Cap 814 Laws of the Federation of Nigeria now repealed and applicable to this case as at the time judgment was rendered by the Lower Court defined and stated its effect thus:
“A confession is an admission made at any time by a person charged with a crime stating or suggesting the inference, that he committed the crime.
(2) confession if voluntary are deemed to be relevant facts as against the persons who make them only.”
A confessional statement by an Accused is therefore a direct acknowledgement of commission of the offence for which he was arraigned and admission of all the elements or ingredients of the offence charged. A free and voluntary confession is the best evidence eagerly sought after and always by the prosecution to rely upon to establish the guilt of an Accused person. See NNAMDI OSUAGWU VS THE STATE (2013) 5 NWLR (PART 1347) 360 at 387 B – E where RHODES-VIVOUR JSC, said:-
“Now, what was the prosecution’s case? The confessional statements of the Appellant, Exhibits E and F. section 27(1) of the Evidence Act states that: –
A confession is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. See IGBINOVIA VS. STATE (1981) 2 SC P.A, YUSUF vs. THE STATE (1976) 6 SC p.167.
A confession is a voluntary admission or declaration by a person of his participation in a crime. It becomes a confession when in some way, it amounts to an acknowledgement of guilt. A confession must either admit the elements of the offence of all facts which constitutes the offence. Once a court is satisfied with the genuiness of a confession, a conviction can be based entirely on it and such a conviction would not be disturbed by an Appellate court. See R. VS. Sykes (1913) 8 C.A.R. 233 R. V. AJAYI ONIKORO 7 WACA P. 146.”

It must however be made clear that where an alleged confessional statement is shown to have run foul of Section 28 of the said Evidence Act, the alleged confessional statement becomes irrelevant and would be excluded or expunged from the evidence by the trial court. The aforesaid section 28 of the Evidence Act 2004 Cap E14 provides:
“A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person proceeding from a person in authority and sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid evil of a temporal nature.”
Thus where as in this case the Appellant contended that his statements particularly Exhibits C, D and E were not voluntarily made the Learned Trial Judge did the right thing by proceeding to trial within trial to determine if the statements of the Appellants were freely or voluntarily made. See
(1) EKPO OBONGHA MBANG VS. THE STATE (2013) 7 NWLR (PT.1352) 48 at 71 A – D per CHUKWUMA-ENEH; JSC.
(2) THE STATE VS. AHMED RABIU (2013) 8 NWLR (PART 1357) 585 at B – E PER ALAGOA, JSC.

Notwithstanding that the trial court conducted trial – within – trial before coming to the conclusion that the statements made by the Appellants were voluntary, the Appellant accused the trial judge of relying on the evidence of Sgt Joel Bode, who the Appellant said was not the person that took Exhibits C and D from him but one Inspector Ebuba who PW1 (Joel Bode) said was critically ill when he testified in the trial within trial. I am of the solemn view that since the statements made at Oguta Division of the Nigeria Police Imo State were obtained from the Appellant by one Inspector Ebuba, the PW1 in the trial within trial was not in a vintage position to Vouch for those statements as to whether they were voluntarily made or not.. The evidence of PW1 at the trial within trial concerning statements made at Oguta Divisional Police Station by Appellant in the trial within trial was hearsay. The reason is not farfetched. The said witness agreed under cross examination that he was not present. The pieces of evidence given by Sgt Joe Bode on the aforesaid statements of Appellant at Oguta Police as to its voluntariness or otherwise are inadmissible for being hearsay as he did not speak from his own personal knowledge concerning that aspect of how the statements were obtained from Appellant.
See: VIVAN ODOGWU vs. THE STATE (2013) 14 NWLR (PART 1373) 74 at 103 H – 104 A PER NGUTA JSC who held: –
“the evidence of PW3 and PW4 is largely hearsay evidence. In the leading English authority on hearsay, Subramanian v. Public Prosecutor 1956 1 WLR 956 AT 969 it was held that:
“Evidence of a statement made to a witness by person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to prove the truth of the facts asserted by the statement. It is not hearsay and is admissible when it is proposed to establish by evidence not the truth by the statement but the fact that it was made.”
The hearsay evidence was given and received not for the purpose establishing the fact that the statements were made or that the facts were stated. The purpose of the evidence was for the trial court to draw inference that the Appellant killed the deceased and that purpose was achieved.”
See also the case of FERDINAND ABADOM vs. THE STATE (1997) 1 NWLR (PT 470) 1 at 24, judgment of this court per UBAEZONU, JCA. I agree with the Appellant only to the extent that Exhibits ‘C’ and ‘D’ made at Oguta Police Station have not been proved to have been voluntarily made. They are to be excluded from the record and evidence before the trial court. They are inadmissible. See ABOLADE AGBOOLA ALADE vs. S. J. OLUKADE (1976) 1 SC 183.

Exhibits ‘C’ and ‘D’ are hereby excluded. The Appellant however has nothing to jubilate about here. This is because there is the evidence of the victim of the crime and that of his sister PW1 and PW2 coupled with the evidence of PW3 who were eye witnesses and who actually testified as such fixing the Appellant at the scene of crime and showing positively he was arrested while trying to jump the fence and runaway. He did not deny that he in company of those who went to rob PW1 neither did he deny that part of the victims money he stole was found with him. The Appellant did not deny writing Exhibit ‘A’ while in prison custody. The Learned Counsel to him made strenuous effort to argue that the Exhibit cannot amount to confession to the crime of Armed Robbery for which Appellant was charged and that Exhibit ‘A’ which evidence on record shows was written by the Appellant could not qualify as confessional statement. To me Exhibit ‘A’ contained facts that suggest that the Appellant committed the offence and therefore the Lower Court was perfected justified in its holding that the Appellant could not have been remorseful and pleading for merry if he was not on a robbery operation in the house of PW1. See section 29 of the Evidence Act 2004 now Section 30 of Evidence Act 2011 which provides:
“29 where information is received from a person who’ is accused of an offence, whether such person is in custody or not and as a consequence of such information any fact is discovered the discovery of that fact together with evidence that such discovery was made in consequence of the information received from the accused, may be given in evidence where such information itself would not be admissible in evidence.”
The Lower Court therefore made proper use of Exhibit ‘A’. There is also the evidence by PW1 in the trial within trial who testified that the Appellant made the statement Exhibit ‘E’ to him and when he discovered, it was confessional he took it to his superior office, a DSP, who counter signed Exhibit ‘E’ as confessional statement. The Lower Court rightly admitted Exhibit ‘E’ as a Confessional Statement written in Appellants own hand writing.
The Learned Trial Judge listened to the witnesses for prosecution and the Appellant and his witness before coming to the conclusion that the statement Exhibit ‘E’ was voluntarily made. An Appellate court will not interfere with findings of facts and assessment of witnesses in a trial within trial to determine admissibility of confessional statement unless an Appellant can show that the findings of the trial court is perverse.
NNAMDI OSUAGWU vs. THE STATE (2013) 5 NWLR 960 at 389C to 390A per RHODES-VNOUR, JSC who held:
“There is a clear distinction in finding of fact based on credibility of witnesses and finding of fact based on evaluation of evidence. In the latter case an appeal court is in the same position as the trial court and so it can proceed to examine the evidence and come to a different finding from that of the trial court. This is not the case with finding of fact based on credibility of witnesses. The trial Judge Sees and hears the witness, he and he alone is in the best position to comment on the demeanour and credibility of a witness. After the learned trial Judge watched the demeanour of the Appellant and listened to his evidence he did not believe him for good reasons in my view. The finding by the learned trial Judge cannot be faulted and tremendous weight must be given to his findings. I am firmly of the view that exhibit E, the Appellant’s confessional statement was made voluntarily, it is direct, positive, and true. The learned trial judge was right to admit it in evidence and act on it and the court of Appeal was correct to confirm the judgment of the trial court.
A trial within trial is a mini trial that must be conducted when an accused person says that his confessional statement was not made voluntarily. It is the duty of the prosecution to read evidence to show that the statement was made voluntarily, while the accused person and his witnesses are to prove the opposite. This is a trial where the credibility of witnesses, demeanour is very important.
Now, in such a trial credibility of witness is based on demeanour. An appeal court cannot or ought not to interfere since it never had the advantage of seeing the witnesses. It can only interfere if the findings were based on inference drawn from evidence. See Omoregie v. Idugiemwwanye (1985) 2 NWLR (Pt.5) pg. 41, Ugwu v. Ogbuzuru (1926) 10 SC Pg. 191, Olatunji v. Adisa (1995) 2 NWLR (Pt.376) pg.167, Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.104) Pg. 373.

The learned trial Judge admitted exhibit E as voluntarily made by the appellant. This was based on the finding of fact by the trial court based on credibility of witnesses after watching their demeanour. An appeal court would not upset such findings. If I may add it is during a trial within trial that the defence counsel must ensure that the confessional statement is not admitted in evidence and not on appeal”
See also the case of THE STATE vs. AHMED RABIU (2013) 8 NWLR (PART 1357) 585 at 604 G to 605 E per ALAGOA, JSC who said:
“One just at this stage stop and ask the question again whether the court below made a pronouncement that the finding of fact of the learned trial Judge was perverse or occasioned a miscarriage of justice? The answer is in the negative. On the proper attitude of an appellate court to findings of fact by the trial court, this court per Belgore, JSC (as he then was) in Amos Bamgboye & Ors. v. Raimi Olarewaju (1991) 4 NWLR (Pt.184) 132 at Pg. 145 paras. B-C held as follows:
“Once a court of trial has made a finding of fact, it is no more within the competence of the appellate court to interfere with those findings except in certain circumstances. The real reason behind this attitude of appellate court is that the court hearing the appeal is at a disadvantage as to the demeanour of the witnesses. In the Lower Court as they are not seen and heard by the appellate court. It is not right for the appellate court to substitute its own eyes and ears for those of the trial court which physically saw the witnesses and heard them and thus able to form opinion as to what weight to place on their evidence.”
See also Chief Victor Woluchem v. Chief Nelson Gudi & Ors (1981) 5 SC 291 at 291; Awote v. Owodunni (1986) 5 NWLR (Pt.46) 941. What appeared to have weighed very heavily on the mind of the Lower Court were the gory details of violence and torture which the respondent said he suffered. The evidence on this was placed before the trial court which soberly considered same made its findings of fact. The sole purpose behind the conduct of a trial -within trial is to ascertain whether the statement made by an accused person was voluntarily made should not have been upset by the Lower Court, same not having been found by the court below to be perverse or to have occasioned miscarriage of justice.
The Lower Court was clearly in error to have substituted its own findings for the findings of the trial court.”

There is ample evidence outside the Appellant’s confession in Exhibit E that proved beyond reasonable doubt that the Appellant fully participated in the robbery incident (in the (PW1’s house) on 20th day of August, 1997. The evidence of PW1, PW2 and PW3 sufficiently provided the needed evidence outside the confession Exhibits A and E which confirmed and corroborated that the confessional statement Exhibits “A” and “E” are true. See IRENE NGUMA (ALIAS IRENE OKOLI vs. ATTORNEY GENERAL OF IMO STATE (2014) 7 NWLR (PART 1405) 619 at 158 B-E per PETER ODILI, JSC who said:
“Some conditions must play out for any evidence to be taken as corroborative of the other especially a confessional statement as in this instance. For such evidence it must be an independent testimony, not only that an offence has been committed. The other way to define corroborative evidence is to say that it is that evidence which tend to confirm, support and strengthen other evidence sought to be corroborated. It is not expected that it would be tantamount to a confirmation of the whole evidence given by a witness, rather it must be such as corroborates some material aspects of the charge. I refer to Ogunbayo v. The State (2007) 146 LRCN 696, (2007) 8 NWLR (Pt.1035) 157.”

ISSUE 1 is hereby resolved against the Appellant.

ISSUE 2
It is the submission of the learned counsel to the Appellant that the totality of the evidence of the prosecution in the entire case could not reasonably ground a conviction as the prosecution, according to him did not prove the case beyond reasonable doubt. He relied on the Investigation Report on pages 14-16 from Oguta police Investigating Officer Inspector George Ebute who appellant said wrote that he searched PW1 house and no gun was found. That another Police Report came in 1998 stating that a gun said to be a toy, mud moulded in the shape of gun was mentioned. That no firearms was tendered and that there was no basis for the conviction of the Appellant, That there were material contradiction in the evidence of PW and his statement. That the burden of proof is on the prosecution and whether an accused introduces a defence or a doubt, the prosecution must discharge that doubt. He relied on the case of the STATE vs. SALAMI supra.

The learned Director of Public Prosecutions Imo State C. N. AKOWUNDU, Esq., submitted that the learned trial Judge was right in holding that the prosecution proved its case against the Appellant beyond reasonable doubt. That the ingredients of the offence of Armed Robbery were proved against the Appellant. He relied on the case of ADEKOYA vs. THE STATE (2012) MSCJ Vol. 11 Pg. 20-21 A-H and on the evidence PW1. He also drew attention to the findings of the learned trial Judge on pages 146 and 148 of the record. He also relied on page 149 of the record on the finding of the trial Judge on the third ingredient of Armed Robbery. He relied on the case of OYAKHERE vs. THE STATE (2005) 15 NWLR (Pt.947) 159 at 180 E-F to contend that PW1 was a victim and an eye witness of the Armed Robbery and that his evidence is the best evidence in this matter.

On the meaning of proof beyond reasonable doubt and what it entails, the learned DPP relied on the case of NDIKE vs. THE STATE (1994) 8 NWLR (Pt.336) 33 at 45 D, That the Appellants confession in Exhibits C, D and E were also quite direct and positive enough to warrant a conviction relying on the case of OLALEKAN vs. THE STATE (2001) 18 NWLR (Pt.746) 824. He finally urged the court to dismiss the appeal.

There is no dispute from the evidence from the prosecution witnesses and even from the evidence of the Appellant that there was armed robbery committed on and in the house of PW1 at 11 Echina Road Oguta Imo State on 20th day of August 1997. The Accused statement Exhibit E bears eloquent testimony to the incident of that robbery.
There is evidence from prosecution witnesses and the Accused statement Exhibit E that he participated in the robbery and that PW1, PW2 and PW3 were brutalized by the Appellant gang. There is also evidence on record that the robbers including the Appellant went there with gun. Whether the gun is toy gun or make belief gun moulded by mud is immaterial. Suffice that it was part of the threat meted upon the victim(s) of the robbery. It is also not material whether the gun was produced at the trial once there was believable evidence of the fact that the robbers were so armed.

The learned trial Judge made adequate findings on all the ingredients of the offence charged and those findings were amply supported by oral and documentary evidence on the printed record. I have earlier on reproduced same in this judgment. There is no reason for me to interfere with the judgment of the Lower Court. The trial court saw and heard the witnesses testified.
It is the learned trial Judge that can properly assess and evaluate the evidence of the witnesses and their demeanour. The Appellant has not alluded to any cogent or plausible reason or reasons making it expedient to interfere with the aforesaid findings of the Lower Court. The Lower Court did not misuse the opportunity. He properly utilized same in arriving at his decision. See IRENE NGUMA CALIAS IRENE OKOLI VS. ATTORNEY-GENERAL OF IMO STATE (2014) 7 NWLR (PART 1405) 119 at 140 E-H per M. D. MUHAMMED, JSC who held thus:
“Firstly, the decision of the voluntariness or otherwise of appellant’s Confessional statement, exhibit “7”, unarguably requires the trial court’s assessment of the credibility of the witnesses who testified on the matter. The principle has not changed from what the Lower Court in its foregoing finding holds it to be.
It was the trial court that saw the witnesses during trial and heard their testimonies. This afforded the trial court the opportunity of observing the demeanour and” idiosyncrasies of the witnesses. In evaluating the evidence of the witnesses, the trial court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the course of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable tribunal in that circumstance will arrive at. It remains within the purview and competence of the trial court, therefore, for obvious reasons, to first evaluate evidence of witnesses. The trial court does not share this jurisdiction with the appellate court and where its evaluation is borne out from the evidence on record, an appellate court cannot interfere in such circumstance even if the appellate court concludes that the trial court should have evaluated the evidence of the witnesses differently. Where however, the trial court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the appellate court is competent to re-evaluate the evidence on record in order to obviate miscarriage of justice. See IWUOHA v. NIPOST (2003) NWLR (Pt.822) 308, 343-344; ADEYE V. ADESANYA (2001) 6 NWLR (Pt.708) 1 and IRAGUNIMA V. R.S.H.P.D.A. (2003) 12 NWLR 834) 427.
In the instant case, as rightly held by the Lower Court, the trial Court’s decision that the extra judicial statement of the Appellant, exhibit “7” is voluntary, having been borne out of the evidence on record remains unassailable. It is the principle that neither the Lower Court nor this Court can interfere with same.”
I am of the firm view the case against Appellant was proved beyond reasonable doubts.
The inevitable conclusion I have reached is that the Appellants appeal ought to be dismissed. The Appellant’s appeal is hereby dismissed in its entirety as lacking in merit.
The conviction of the Appellant by the Lower Court stands. The sentence imposed upon the Appellant by the Lower Court is hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Peter O. Ige, JCA, just delivered and I agree into with his reasoning and conclusion that this Appeal be dismissed for want of merit.
My learned brother has exhaustively and dispassionately dealt with all the issues for determination in this appeal and there is nothing useful for me to add than dismiss the Appeal also for lacking in merit.
The judgment of the Lower Court and the conviction and sentence imposed on the Appellant is hereby affirmed.

ITA G. MBABA, J.C.A.: I have read, in advance, the draft of the lead Judgment, just delivered by my learned brother, Peter O. IGE JCA and I agree, completely, with his reasoning and conclusion, that the appeal lacks merit. I dismiss it and abide by the consequential orders in the lead Judgment.

Appearances

S. C. Ifeakor Esq.For Appellant

AND

Respondent’s Counsel Absent.For Respondent