EKONG AKPAN THOMAS V. THE STATE (2013)

EKONG AKPAN THOMAS V. THE STATE

(2013)LCN/5911(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of February, 2013

CA/C/206C/2010

RATIO

CONFESSION: WHAT IS A CONFESSION

A confession is an admission made at any time by a person charged with a crime stating or suggesting by inference that he committed that crime. Gira v. State (1996) 4 NWLR Pt.443 Page 375.PER UZO I. NDUKWE-ANYANWU J.C.A

CONFESSION AND ADMISSION: THE STRONGEST EVIDENCE

CONFESSION: A FREE AND VOLUNTARY CONFESSION IS SUFFICIENT TO SUSTAIN A CONVICTION
A free and voluntary confession, which is direct and positive and properly proved is sufficient to sustain a conviction without any corroborative evidence, so long as the court is satisfied with the truth. There is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before it.
Solola v. State (2005) 11 NWLR Pt.937 page 460: Nwaeze v. State (1996) 2 NWLR Pt.428 page 1: Akinmofu v. The State (2000) 4 SC Pt.1 page 64.PER UZO I. NDUKWE-ANYANWU J.C.A

CONFESSION:TRIAL WITHIN TRIAL: WHEN THERE IS AN OBJECTION AS TO THE INVOLUNTARINESS OF A CONFESSION THEN A TRIAL WITHIN TRIAL WILL TAKE PLACE

If there had been any objection during the tendering of Exhibit “G” the court would have conducted a trial within trial to verify the voluntariness of the confession. Nwosu v. State (1998) 8 NWLR Pt.562 Page 433; Idowu vs. The State (2000) 7 SC Pt.II page 50; Ihuebeka v. The State (2000) 4 SC Pt.1 page 203.PER UZO I. NDUKWE-ANYANWU J.C.A

CONFESSION: DENIAL OR RETRACTION OF CONFESSIONAL STATEMENTS DOES NOT RENDER IT INADMISSIBLE

A confessional statement to the police does not become inadmissible because the accused denies making it or retracts it. Mere denial does not make the confession unreliable, it only affects the weight to be attached to it. Dibie v. State (supra); Oche v. State (2007) 5 NWLR Pt.1027 Page 214: Ukpong v. Queen No.1 (1961) 1 SCNLR page 53.PER UZO I. NDUKWE-ANYANWU J.C.A

IDENTIFICATION PARADE: IDENTIFICATION PARADE NOT ALWAYS NECESSARY IN ALL CASES

IDENTIFICATION PARADE: WHETHER AN IDENTIFICATION PARADE IS THE ONLY WAY BY WHICH THE IDENTITY OF AN ACCUSED CAN BE ESTABLISHED
Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused, a parade is not necessary. Recognition of an accused may be more reliable than identification. See Eyisi v. The State (2001) 8 WRN page 1.PER UZO I. NDUKWE-ANYANWU J.C.A

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

EKONG AKPAN THOMAS Appellant(s)

AND

THE STATE Respondent(s)

UZO I. NDUKWE-ANYANWU J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Robbery and Firearms Special Tribunal sitting at Ikot Ekpene, Akwa Ibom State delivered on 28th day of May, 1999 convicting and sentencing the appellant and his co-accused to death for the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No.5 of 1984.
Being dissatisfied, the Appellant appealed against his conviction and sentencing. Briefly, the prosecution, alleged that at about 2:00am on 17th day of December, 1995, the appellant with others attacked one Archibong Sam Mkpek in his home with guns and matchet of Omong Village in Etinan Local Government Area of Akwa Ibom State. The robbers threatened Pw1 with a gun and even matcheted him on his right hand. He lost consciousness during the robbery from bleeding. His wife who was with him at the time also gave evidence that the robbers took away money, household items and clothing. The accused persons were thereafter arrested and arraigned. The prosecution in proof of their case called five witnesses and tendered ten exhibits. The appellant and his co-accused testified in their defence and called no other witness.
At the end of their trial the Tribunal found that the prosecution had proved its case beyond reasonable doubt and convicted and sentenced them to death. Being dissatisfied, the appellant appealed against the conviction and sentence. The appellant filed a notice and four grounds of appeal. The appellant filed his brief on 8th day December, 2011 and articulated three issues for determination follows:
“1. Whether the Tribunal below was right in relying upon the alleged confessional statement of the appellant to convict him? (Distilled from ground 1).
2. Whether the Tribunal below was right in holding that the prosecution had proved the appellant’s guilt beyond reasonable doubt especially having regard to the manner the appellant was identified by Pw1? (Distilled from ground 2).
3. Whether there were manifest contradictions and inconsistencies in the prosecution’s case, which could have created doubt in favour of the appellant? (Distilled from additional grounds 1 and 2).”

The respondent filed his brief on 15th day of March, 2012 but deemed properly filed and served on 21st March, 2012. The respondent also articulated three issues for determination as follows:
“1. Whether the Tribunal was right in relying upon the appellant’s confessional statement to convict the appellant.
2. Whether the Tribunal was right in holding that the prosecution had proved the appellant’s guilt beyond reasonable doubt.
3. Whether there were manifest contradictions and inconsistencies in the prosecution’s case which could have created doubt in favour of the appellant.”

ISSUE 1:
“Whether the Tribunal below was right in relying upon the alleged confessional statement of the appellant to convict him?”
Counsel submitted that the prosecution tendered and relied on the alleged confessional statement of the appellant Exhibit “G” and that The Tribunal also relied on it to convict the appellant. The Tribunal held as follows:
“Besides, the accused persons in their Statements, Exhibit “A”, “D”, “F” and “G” and Exhibit “G1” and “G2” and “H” have been able to make a clean breast of the whole matter.”
Counsel submitted that the court have laid down the following test of veracity which on alleged confessional statement must pass. The test is as follows:
“(a) Whether there is evidence outside the confessional statement to show that it is true.
(b) Whether the confessional statement is in fact corroborated.
(c) Whether the statement of facts made in the confessional statement could be tested as true.
(d) Whether the accused really had the opportunity of committing the offence charged.
(e) Whether in the surrounding circumstance of the case, the confessional statement of the accused was possible, and
(f) Whether the confession was consistent with other facts ascertained and proved of the trial. Please see Shande v. The State (2005) 1 NWLR (Pt.907) 218 at 240-241 “H” – “C”.”
Counsel submitted that there was no reliable evidence outside the alleged confessional statement to support the statement. The appellant as Dw1 stated as follows:
“I did not commit the offence for which I am charged.” (See page 34 of the record).
Counsel submitted that this denial of criminal liability by the appellant is a negation of the alleged confession. Counsel urged the court to resolve this issue in favour of the appellant.
In answer, the respondent’s learned counsel submitted that a confession if voluntary is deemed to be relevant facts as against the persons who made them only. See Shande V. The State (2005) 12 NWLR Pt. 939 page 301. Counsel recounted that:
“The appellant herein, after he was arrested by the police in connection with this case made a voluntary confessional statement admitting that he committed the offence in question. The said confessional statement contained detailed facts on how the crime was plotted and executed including the appellant’s role in the crime and his share of the booty which was N500.00 and a long-sleeve shirt. During the trial, the said confessional statement was tendered and admitted as Exhibit “G” without any objection whatsoever. Also tendered in evidence were the attestation by one Supol Udensi (a superior police officer) and the confessional statement from which were admitted as Exhibit “G1” and “G2″ respectively.
All were tendered and admitted without objection by the appellant. See Page 17 of the Record of Appeal.”
After this the appellant resiled from his confessional statement during his evidence in chief as Dw1 and the Tribunal had this to say:
“It is trite law that resiling from a confessional statement by an accused person will not preclude the court making use of it provided, the statement was made voluntarily. There was no evidence that any of the accused persons made their confessional statement under duress. See the case of Edhigere v. State (1996) 42 LRCN 1802 at 1804.”

Counsel argued that the above holding of the Tribunal is in line with the case of Nwachukwu v. The State (2007) 17 NWLR Pt.1062 page 31 where Ogbuagu, JSC stated thus:
“It need be stressed and this is also firmly established that the retraction of the confessional statement by an accused person in his evidence on oath during the trial is of no moment as it does not adversely affect the situation once the court is satisfied as to its truth and it can rely solely on the confessional statement to ground a conviction.”
See also Shande v. The State (supra) where the Court of Appeal hold as follows:
“The learned counsel for the appellant tried to make a heavy weather out of the fact that the appellant had retracted her own confession. From the evidence adduced in the case, it is clear that the appellant had admitted making the confession. A written confession of an accused is relevant and should not be discarded or ignored simply because the accused had later retracted it or resiled from that voluntary statement. Once a confessional statement is proved to have been made voluntarily, as in this instant case and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground a conviction regardless of the fact that the maker resiled therefrom or retracted the same completely at the trial, as such retraction does not make it inadmissible or that the trial court should not act on it.”
In Sule vs. The State (2009) 17 NWLR Pt. 1169 page 33, the Supreme Court held that the failure to object to the admissibility of a confessional statement and its later retraction cannot vitiate the proceedings. See also Akpa v. The State (2008) 14 NWLR Pt.1106 page 72. The Supreme Court per Tobi, JSC held:
“Appellant told a pathetic and sorrowful story of the role he played in the killing of Ikechukwu in Exhibit “3” and there was no need to call a large number of witnesses to testify against him. Confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused person. What better evidence than that? He knows or knew what he did and he says or said it in Court. Is there need for any further proof? I think not.”
See also Okeke v. The State (2003) 15 NWLR Pt.842 page 25 where Tobi, JSC also held that:
“That confession of an accused person to the commission of a crime plays a major part in the determination of guilt of the accused person and a court of law is entitled to convict on the confession if it comes to the conclusion that the confession is voluntary. This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility in terms of mens rea and actus reus.”
Counsel submitted that the appellant’s argued that there was no other reliable evidence outside the confessional statement of the appellant to support a conviction. This is not so as the Tribunal considered other evidence when it held as follows:
“Apart from the identification of the accused persons as some of the robbers who robbed them, PWS 1 and 3 were consistent that there was robbery incident at their home on 17th December, 1995 and that the robbers which included the accused persons were armed. Besides, the accused persons in their statements, Exhibit “A”, “D”, “F” and “G” and Exhibit “G1” and “G2” and “H” have been able to make a clean breast of the whole matter. Again, Exhibit “E”, the polo shirt was identified by Pw2 as his property stolen on the date of the incident. Dw1 admitted Exhibit “E” formed part of his share of the booty. Even if the Dw1 had not confessed to the crime, he still would have been caught by Section 149(a) of the Evidence Act on the doctrine of recent possession. I agree with the learned prosecuting counsel that the Dw1, the 1st accused person did not deny on oath that the polo shirt, Exhibit “E” was the property of Pw2 and that the said Exhibit “E” was one of the items stolen from the house of Pw1 on the 17th December, 1995.”
Counsel submitted further that this was not a proper case for the Tribunal to have conducted a trial within trial as the appellant did not object to the tendering of the confessional statement during trial. See Mohammed vs. State (2007) 13 NWLR Pt.1050 Page 186 where this Court held that:
“It should be made abundantly clear that the mere fact that the appellants denied their statement in their evidence in chief does not call for trial within trial. Such is only conducted where an accused person alleges that he made the statement under inducement, threat or promise. And usually, such is always at the point when the statement is being tendered.”
Counsel argued finally that the appellant did not allege any threat or inducement before this confessional statement Exhibit “G” was made. Counsel therefore urged the court to resolve this issue against the appellant.

A confession is an admission made at any time by a person charged with a crime stating or suggesting by inference that he committed that crime. Gira v. State (1996) 4 NWLR Pt.443 Page 375.

The courts have held that there is no evidence stronger than a person’s own admission or confession. Such a confession is admissible in evidence. Although an accused person can be convicted solely on his confessional statement, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. Dibie vs. State (2007) 9 NWLR Pt.1038 Page 30, Nwaebonys v. State (1994) 5 NWLR Pt.343 Page 130.
The appellant was arrested wearing the long sleeve polo shirt Exhibit “E” stolen from the victim’s home on the day of the robbery. The appellant then made confessional statement giving details of his role and his share from the proceeds of the crime. The appellant during trial did not object to the tendering of Exhibit “G” the confessional statement. He only resiled from the confessional statement Exhibit “G” during his own testimony.
A free and voluntary confession, which is direct and positive and properly proved is sufficient to sustain a conviction without any corroborative evidence, so long as the court is satisfied with the truth. There is however a duty on the court to test the truth of a confession by examining it in the light of the other credible evidence before it.
Solola v. State (2005) 11 NWLR Pt.937 page 460: Nwaeze v. State (1996) 2 NWLR Pt.428 page 1: Akinmofu v. The State (2000) 4 SC Pt.1 page 64.
The Tribunal examined the confessional statement and matched it with the evidence of Pw1 and Pw2. Their evidence corroborated the confession of the appellant. The appellant soon after the robbery was seen wearing the long sleeve shirt he said was his share of the booty. What can be more convincing than the confession which was voluntarily given and so, admissible. The appellant did not allege nor prove that the confession was co-erced, or gotten under any form of duress.
What is more, there was no objection from the appellant during the tendering of his confessional statement. If there had been any objection during the tendering of Exhibit “G” the court would have conducted a trial within trial to verify the voluntariness of the confession. Nwosu v. State (1998) 8 NWLR Pt.562 Page 433; Idowu vs. The State (2000) 7 SC Pt.II page 50; Ihuebeka v. The State (2000) 4 SC Pt.1 page 203.

No statement of an accused is admissible in evidence against him unless it is shown by the prosecution that it was a voluntary statement. Saidu v. State (1982) NSCC Vol.13 Page 70.

If a confessional statement is involuntarily made, it would not be admitted in evidence. If it is admitted without a trial within trial, it should be expunged as inadmissible. See Ekure v. State (1999) 13 NWLR Pt.635 page 456.
Appellant’s confessional statement was rightly admitted by the Tribunal. The Pw1 and Pw3 corroborated the confession of the appellant. The long sleeve shirt Exhibit E also corroborated the confession of the appellant. I therefore hold that the Exhibit “G” was rightly admitted in evidence against the appellant and relied upon to convict and sentence the appellant. This issue is therefore resolved against the appellant.

ISSUE 2:
“Whether the Tribunal below was right in holding that the prosecution had proved the appellant’s guilt beyond reasonable doubt especially having regard to the manner the appellant was identified by Pw1?”
Counsel for the appellant submitted that the appellant was arrested on 23rd day of January, 1996. The son of Pw1, Otobong Archibong Samuel alerted the police when he saw the Appellant wearing the long sleeve shirt stolen from his house. There was no other identification parade for the purpose of identifying the Appellant. Counsel referred the Court to the case of Archibong v. The State (2006) 5 SCNJ page 202 where Musdapher, JSC as he then was held that:
“Whenever the case against an accused person depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the court must closely examine and receive with caution the evidence alleged before convicting the accused on the correctness of the identification. See Eyesi v. The State (2000) 15 NWLR (Pt.691) 555 at 557. Identification in this connection means a whole series of facts and circumstances for which a witness or witnesses associate an accused person with the commission of the offences charged. It may consist of or include evidence in the form fingerprints, handwriting, voice, identification parade, photographs, identity, of the recollection of the features of the culprit by a witness who saw him in the act of commission of a crime or combination of two or more of these. See State v. Aigbanbee (1988) 3 NWLR Pt. 84 Page 548: Anyanwu v. State (1985) 15 NWLR (Pt.43) 612.”
Counsel argued that Pw1, Pw2 and Pw3 were unable to state any distinct features that aided them in identifying the appellant. In Indidi vs. The State (2007) 5 SCNJ page 274 Aderemi, JSC held as follows:
“To ascribe any value to the evidence of an eyewitness re-identification of a criminal, the courts in guarding against cases of mistaken identity must meticulously consider the following issues:
1. Circumstances in which the eyewitness saw the suspect or defendant.
2. The length of time the witness saw the suspect or defendant.
3. The lighting condition.
4. The opportunity of close observation.
5. The previous contacts between the two parties.
Where the case of an accused persons depend wholly (as this case) or substantially on the correctness of the identification of the accused or defendant which the defence alleges to be mistaken, a trial judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance on the correctness of the identification; the locus classicus on the issue of identification is the English case of R v. Turnbull & Ors. (1976) 3 All E.R. 549.”
Aderemi, JSC in conclusion held:
“…an identification parade is only essential in the situations enunciated in R vs. Turnbull & Ors. (1 976) 3 All E.R. 549 of 555. These are cases where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstances he might not have had full opportunity of observing the features of the accused. In such a situation, a proper identification parade will take into consideration the description of the accused given to the police shortly after the victim had for observing the accused and what features of the accused noted and communicated to the police marks him out from other people.”

Counsel submitted that the PWS did not know the appellant prior to the robbery and that the purported identification of the appellant was irregular in the absence of an identification parade. That an identification parade involving only one suspect is alien to our criminal justice. See Okozi v. The State (1990) All NLR Page 94 where Belgore, JSC held that:
“The best identification of an accused person is identification by the victim of the crime or a witness of the crime and once there was a proper identification parade conducted by selecting persons of similar physical stature of the accused line up with the accused before the victim of the crime or witness of the crime is brought out to identify the criminal and there is no evidence of the accused ever being shown before hand physically or by photograph or any visual means, that identification parade is proper and evidence based on it is admissible.”
Counsel urged the court to hold that the identification parade involving only the appellant was irregular and the evidence founded on such identification is also irregular and therefore inadmissible. Counsel urged the court to resolve this issue in favour of the appellant.
The learned respondent’s counsel submitted that Pw2 saw the appellant on 23rd January, 1996 near Etinan Park wearing Exhibit “E”. Pw2 quickly alerted the police who arrested the appellant even though he took to his heels. Pw2 identified Exhibit “E” as his long sleeve Polo shirt stolen from his house on the day of the robbery. Pw1 and Pw3 also gave evidence as to the physical structure of the three men that broke into their home on the day of the robbery.
Pw1 and Pw3 identified the appellant as one of the robbers who attacked them on the night of the robbery. They also testified that the robbers were not masked and there was a well lit lamp in their room during the robbery. Pw1 and Pw3 were able to identify the appellant from the people arrested in connection with the robbery. Pw2 also corroborated the question of identification by saying “I saw when Pw1 identified the 1st accused (i.e. the appellant). He pointed at him among other people in the station. See Page 9 of the Record of Appeal.
This piece of evidence was not challenged by the Appellant and goes to show that Pw1 identified the appellant from other suspects. Pw3 in her evidence testified that:
“They hit our door and the door opened and I saw three men inside our house, since there was a lit lantern. I was able to see those who came in… At Ikot Akpan Abia, I was able to identify the 1st accused person.”
Pw4 also gave evidence that after the arrest of the appellant, the Pw1 was invited to Etinan Police Station where he identified the appellant as one of the robbers who came to his house on 17th day of December, 1995.
Counsel also reminded the court that the Pw1 had seen the robbers very well before he fell unconscious as a result of the matchet cut inflicted on him by the appellant. Pw1 and Pw3 were able to describe the features of the robbers who robbed them: as follows.
“Pw1 stated in his statement to the police made on the 17th day of December, 1995 that one of the robbers is slim tall, and black in complexion. In his statement of 24th January, 1996 he restated that one of them who cut him with matchet on his hand is tall, slim and has an open teeth and that he can identify him if seen. Pw3 also said during cross-examination that in her statement, she described to the police that one of the robbers was tall with an open teeth while the other two were short. See page 11 of the Record of Appeal.”
Apart from the review of the identification of the appellant, there was of course the evidence of Exhibit “E” the long sleeve Polo shirt belonging to the Pw2. The appellant neither denied that the polo shirt was that of the Pw2 nor that it was his own share of the booty. Counsel then drew the court’s attention to the holding of the
Tribunal on pages 32-33 of the Record of Appeal that:
“Even if the Dw1 had not confessed to the crime, he still would have been caught by Section 149(a) of the Evidence Act on the doctrine of recent possession.”
Counsel to the respondent finally submitted that:
“We submit that from the direct and positive evidence of identification of the appellant and the very strong and convincing circumstantial evidence, such as the long sleeve polo shirt found on the appellant which he admitted formed part of his share of the booty, the appellant was properly identified as one of the robbers that robbed Pw1 on the 17th day of December, 1995. The third ingredient was therefore proved.”
Counsel therefore urged the court to resolve this issue against the appellant.

It is not in every case that identification parade is necessary. Archibong v. State (2004) 1 NWLR Pt.855 page 488; Aladu vs. State (1998) 8 NWLR Pt. 563 page 618; Igbi vs. State (2000) 2 SC page 67.
Identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused, a parade is not necessary. Recognition of an accused may be more reliable than identification. See Eyisi v. The State (2001) 8 WRN page 1.
In the instant case, the Pw1 and Pw3 identified the appellant in the police station from other suspects. The appellant was seen wearing his share of the booty i.e. Exhibit “E” which the Pw2 identified on the appellant. It would be recalled that the Pw2 alerted the police when he saw the appellant wearing his long sleeve polo shirt stolen from his house. The appellant also in his confession gave the details of the robbery and the polo shirt Exhibit “E” as part of his own share of the booty from the robbery. In totality, there was a positive identification of the appellant by Pw1 and Pw3. The evidence of Pw2 and Exhibit “E’ which were not denied by the appellant. Pw1 and Pw3 were positive in their identification of the appellant as they testified that on the night of the incident they saw the three robbers who broke into their room. They saw them clearly as there was a well lit lamp in their room. They knew one of the robbers was tall, slim and dark in complexion whilst the other two were short. Pw1 also gave further details that the tall, slim black one had an open teeth. This was also confirmed by Pw3 in her statement to the police.
However in this case, the appellant by his confession has identified himself, there would be no need for any further identification parade. The identity of the appellant was not in doubt as there was a positive identification by Pw1 and Pw2. The Exhibit “E” found on the appellant also positively identified him as one of the robbers. His own confession also pinned him to the robbery. The identity of the appellant was not in doubt as regards to the robbery. The prosecution therefore proved the appellant’s identity beyond reasonable doubt. The Tribunal was indeed right to have held that the prosecution positively tied the appellant to the robbery. This issue is therefore resolve against the appellant.

ISSUE 3:
“Whether there were manifest contradictions and inconsistencies in the prosecution’s case, which could have created doubt in favour of the appellant?”
Counsel to the appellant submitted that the onus of proof in a criminal case is always on the prosecution, and the standard of proof is beyond reasonable doubt. If there is any doubt it must be resolved in favour of the accused, see Onubogu v. The State (1974) 9 SC page 1. Counsel referred the court to the contradictions in the prosecution case:
“1. That the appellant was accused of stealing a long sleeve shirt valued of N500.00 whilst during trial it was described as a long sleeve polo shirt tendered and marked as Exhibit “E”.
2. That Pw1 in his statement to the police never mentioned seeing a gun with the robbers. It was only of the trial he mentioned he was robbed with a gun which has an after thought.
3. That Pw3 stated that the robbers hit the door and it opened. She thereafter in her testimony in Court stated that the robbers damaged the door to the house.”
The learned counsel referred the court to Onuchukwu v. The State (1998) 4 NWLR Pt.547 page 16-17 where the Supreme Court per:
“Where there are such contradictions and inconsistencies in the evidence before a criminal court, such as to cast reasonable doubt upon the guilt of the accused person, such accused person should be given the benefit of the doubt and not be convicted on the basis of such unreliable evidence.”
Also Musa vs. State (2007) 11 NWLR Pt.1045 page 202 per Muhammed, JCA as he then was held that:
“Where there are material contradictions and inconsistencies in the evidence of the prosecution, the accused is entitled to be given the benefit of doubt so created as a result of the inconsistencies.”
Counsel submitted finally that these inconsistencies call to question the veracity of the prosecution witnesses and created a doubt that must be resolved in favour of the appellant. Counsel therefore urges the court to resolve this issue in favour of the appellant.
In response learned counsel to the respondent stated that the contradictions referred to in paragraph 6.3, 6.4 and 6.5 by the appellant’s counsel were not material.
Counsel submitted that in the charge, it read long sleeve shirt and more particularly described in Exhibit “E” as a long sleeve polo shirt. Both descriptions are not of variance with each other and the Tribunal rightly admitted and relied upon it.
It is not true that the Pw1 and Pw3 never mentioned the use of a gun in the robbery in their statement. Pw1 in line 13 of his statement on 17th day of December, 1995 stated that, “they came with gun.” Pw1 under cross examination stated that he mentioned that the robbers were armed with guns. See lines 20-21 of Page 7 of Record of Appeal.
Pw1 on 24th day of January, 1996 in lines 9-10 of his statement stated as follows:
“They were not masked but they were all armed with short guns.”
Pw3 in her evidence in chief said that the robbers hit their door and it opened but during cross examination she gave a detailed evidence of how the robbers came into the room where she and her husband Pw1 were sleeping. She said as follows:
“There are up to 14 rooms in our house. The robbers came in from the frontage of our house. They damaged two doors before reaching our room. From the parlour to our room is the second door damaged by the robbers. We showed the damaged door to the police.” See lines 13-14 of Page 10 and lines 7 -11 of Page 11 of the Record of Appeal.
Counsel urged the court to hold that there was no contradiction in the evidence of the prosecution witnesses. Even if there were contradictions it ought to be material for it to be fatal to the prosecution’s case. For a contradiction to be regarded as material, it must go to the root of the charge before the court. It must be one that touches an important element of what the prosecution needs to prove in the case. See Dibie vs. The State (supra). Counsel submitted that the ingredients that the prosecution needs to prove to sustain a charge of armed robbery were all proved without any contradiction whatsoever. Counsel urged the court to resolve this issue against the appellant.
This third issue bothered on whether there was material contradiction that would vitiate the conviction of the appellant. For contradiction to be fatal to the prosecution’s case it must be material and substantial.
It is not everything inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and this necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit therefrom. Theophilus v. State (1996) 1 NWLR Pt.423 page 139; Chukwu v. State (1996) 7 NWLR Pt.463 Page 686. The inconsistencies the appellant complained about are nothing serious. A shirt was described as a long sleeve shirt and as a long sleeve polo shirt. The latter is a more detailed description of the shirt. The important thing is that Pw2 the owner of the shirt identified the shirt on the body of someone. He alerted the police who arrested the man. There was no mistake as to the shirt stolen from the house on the day of the robbery. It was this same shirt that the appellant claimed was his share of the booty. During the evidence of Pw2, the appellant did not challenge his testimony as to the shirt Exhibit ‘E’. Neither the appellant nor the Pw2 were confused about the identity of the shirt. Exhibit “E’ is the shirt that was stolen from the house on 17th day of December, 1995 the day of the robbery.
The 2nd contradiction was whether the robbers were armed with guns. The Pw1 in his first statement to the police on 17th day of December, 1995 the day of the robbery said that they came with gun (see line 13 of that statement). This was the same day of the robbery when everything was still fresh. On the 24th day of January, 1996 Pw1 made a more comprehensive statement, stating in much more details the robbery of 17th day of December, 1995. He stated, “They were not masked but they were all armed with short guns” (line 9 of the statement).
It would be recalled that on the 17th day of December, 1995, Pw1 was matcheted on his right hand by the appellant. He became unconscious after reporting to the police station and was rushed to the hospital where he was treated and discharged. A medical report was issued as to the injuries sustained by him.
On this issue Pw3, the wife of Pw1 also in her statement made on 24th day of January, 1996. She stated thus: “I saw three men with short gun” (see line 7 of her statement).
The two, Pw1 and Pw3 were consensus ad idem about the robbers robbing with guns. They had both heard gunshot outside their house before three robbers barged into their bedroom wielding guns. It would also be recalled that the Pw1 sustain a matchet cut inflicted on him by the appellant. It was from this cut that he became unconscious and was admitted and later discharged. The eye witnesses Pw1 and Pw3 were consistent in their sstatement that the robbers robbed them with guns. There was therefore no contradiction in their statement and evidence in court.
The third inconsistency identified by the appellant was as to the evidence as to the door in the house of Pw1 and Pw3. The robbers did not open the doors with any key whatsoever but they forcefully gained entrance to their bedroom. Whether the door was hit or damaged, the robbers forcefully gained entrance into their bedroom. The type of force that can open a door without a key must damage the door to open. Pw1 and Pw3 heard the robbers hit their door and it flung open. By whatever method it was forceful and thereby damaged the door. What is inconsistent in this statement?
There is no inconsistency in this statement. The Pw1 and Pw3 gave in details what they heard and saw when the robbers barged into their bedroom. Their story to the police in their statement was consistent to what they said during their testimony in court. There was no inconsistency in their testimony. I therefore resolve this issue against the appellant.

The three issues articulated by the appellant have all been resolved against him. The appeal is unmeritorious and therefore dismissed. I hereby affirm the conviction and sentence of the appellant by the Tribunal.

JOSEPH TINE TUR, J.C.A.: I read an advance copy of the judgment of my Lord, Uzo I. Ndukwe-Anyanwu, JCA dismissing this appeal with which I concur. I shall add a few comments of mine.
The first comment concerns the issue of a learned trial Judge relying on the extra judicial confessional statement of an accused to convict and sentence him to death or terms of imprisonment without setting down verbatim the six questions that he considered or agitated his mind in convicting the accused. In Rex v. Skye’s (1913) 8 CR App. Report 233, Ridley J, pronounced six questions that a trial Judge should consider before conviction. These were cited with approval in Philip Kanu & Ors. v. The King (1952) 30 at 32 as follows:
“The case is undoubtedly peculiar, and requires consideration because it consists of two halves, neither of which would be sufficient alone to justify a conviction. It would have been unsatisfactory to convict on the evidence had it not been assisted by the confession, and probably it would have been unsatisfactory if the conviction rested on the confessions only without the circumstances which make it probable that the confessions were true,” and further on the learned Judge suggests the tests to be applied to a man’s confession – is there anything outside it to show it is true? Is it corroborated? Are the statements made in it of fact, true as far as they can be tested? Was the prisoner one who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved?”
Ridley J., took into consideration the undoubted peculiarity of the case; that the evidence standing alone would have been unsatisfactory to convict the accused. But the accused’s confessional statement assisted to render the evidence adduced by the prosecution to be probable that he committed the offence. Alternatively, it would not be safe to convict on the confessional statement standing alone without independent evidence to render the confession probable that the accused had committed the offence. In Edet Obosi vs. The State (1965) NMLR 119 Brett J.S.C held at page 122 that:
“In Skye’s case the Court of Criminal Appeal was not itself laying down a model direction to a jury but was approving the direction given at the trial as appropriate in the circumstances of that case.”
In other words, the test propounded by Ridley J., in Rex vs. Skyes (supra) are not to be blindly adhered to without taking into consideration the peculiar circumstances of the particular case that renders a confessional statement alone not reliable to secure a conviction, or when without corroborative extra-judicial confessional statement it would be unsafe to rely on the evidence alone to convict. For in Philip Kanu & Ors. v. The King (supra), Coussey, J.A., held at page 32-33 having regard to the peculiarity of that case that:
“It has been observed already that the learned Judge found that the statement were made voluntarily and later confirmed by each appellant. In our view these statements were not merely lawfully obtained but obtained in entire accordance with the spirit of the Judge’s Rules. Corroboration by an eye-witness cannot be obtained in all cases of murder. A voluntarily confession of guilt, if it be fully consistent and probable, is justly regarded as evidence of the highest and most satisfactory nature wherever there is independent proof that a criminal act has been committed by someone…
Considering the confessions, then, together with all the other evidence in the case, they are in my opinion consistent with and not contradicted or discredited by other evidence; responsibility of the appellants for the death of the deceased. For these reasons the appeal must be dismissed.”

The learned authors of Black’s Law Dictionary, 9th edition page 636 define “Corroborative evidence” as that which “differs from but strengthens or confirms what other evidence shows.” In my humble view the failure of a learned trial Judge to set down in the record in black and white the questions propounded by Ridley J., in Rex vs. Skyes (supra) per se, ought not to be a ground for annulling conviction and sentence of an accused charged with murder or armed robbery as seems to be argued by learned counsel to the appellant. Commenting on Rex v. Skyes (supra), Brett, JSC held in Edet Obosi vs. The State (supra) at page 123 as follows:
“The credibility of evidence of any kind is a question for the jury or where there is no jury for the judge as a judge of fact, and we think it would be wrong to elevate the words approved in Skye’s case into a rule that a retracted confession can never be acted on unless it is corroborated in the sense in which that term is used in relation to the evidence of a witness. It does not appear that Skyes is regarded as an authority of particular value in England; the English and Empire Digest Replacement volume 14, 1956, does not show that it has been referred to in any subsequent case, and it is not mentioned in Archbold, 35th edition, or in Cross on Evidence or in the 3rd edition of Halsbury’s Laws of England, Phipson on Evidence, 9th edition, page 266, mentions it as one of a number of authorities on the corroboration of confessions and Roscos’s criminal Evidence, 16th edition, page 38, merely refers to Phipson.”
I am also of the humble view opinion that when an accused has retracted his extra-judicial confessional statement, depending on the reasons proffered, the issue becomes one of credibility. The learned trial Judge is the best person to determine or assess the credibility and demeanour of the witness. See Customs & Excise Board vs. Barau (1982) NCR (Pt.2) 1 where the Supreme Court held at page 21 per Fatayi-Williams C.J.N. that:
“…Having made his findings, correctly in my opinion, on the basis of the evidence adduced before him, and bearing in mind that he was the only person in a position to assess the credibility of the respondent from his demeanour in the witness box and otherwise, it is not open to the Federal Court of Appeal to substitute its own assessment of the respondent’s testimony for that of the learned chief Judge. The Federal Court of Appeals certainly in error in so holding.”
Again in Clarke vs. Edinburg & District Tramways Co. Ltd. (1919) A.C. 36 at 37 Lord Shaw stated that:
“…witnesses without any conscious bias towards a conclusion may have in their demeanour, in their manner, in their position, in the nuance of their expressions, in even the turn of the eyelid, left an impression upon the man who saw and heard them which can never be reproduced in the printed page.”
From the evidence adduced by the prosecution in the court below the defence counsel did not raise any objection to the identification of Pw2’s shirt (Exhibit “E’) and the extra judicial statements (Exhibits “G”, “G1” and “G2” respectively. Indeed when Exhibit “E” was tendered through pw2 for identification the only questions put to the witness by the defence Counsel were as follows:
“Cross Examination by Mr. Uwah: I left home for Uyo in January, 1996, but I cannot remember the actual date. I returned to Etinan from Uyo on 23/1/1996. I made a statement to the police on 23/1/1996. I bought my polo shirt at the Uyo main market. Since this incident, I have not seen any other person with this type of polo shirt. The polo was not specially designed for me, I bought it in the market.
I don’t know if any other person could buy a similar polo shirt in the market. I only told the police what they asked me. What they did not ask me is not in my statement. At the time I went to call my father, the 1st accused person was behind the counter at the police station. He was still there when I returned from calling my father. I told my father at home my encounter with the 1st accused person.”

When Pw4 tendered the appellant’s extra-judicial statement of 23/11/996 which was admitted as Exhibit ‘D,’ and the shirt (Exhibit “E”) the defence counsel cross-examined him as follows:
“Cross-Examination by Mr. Uwah I did not carry out full investigation in this matter because the matter was more serious for Etinan Police Station. I took statements from Pws 1, 2, and 3. I took statement from Pw3 when I visited their compound on 17/12/1995.”
The prosecution put in the extra-judicial statements of the appellant (Exhibit “G”, “G1” and “G2”), through Pw5. The only questions asked Pw5 under cross examination ran thus:
“Cross Examination by Mr. Umoh for himself and Mr. Uwah for both accused persons. I went to Oniong on 24/1/1996 in the course of my investigation. I obtained statements from Pws 1 and 3. I also inspected the damaged door through which the robbers entered. I also saw the boxes from where the money was stolen. The boxes were not damaged because the Pw3 said she showed the robbers where the money was kept and they removed them. I was shown only one box.
The 2nd accused person has a big head. Apart from the head, the 1st accused person mentioned his name, Essien Ibok Essien, before the 2nd accused person was caught. I was guided too by the 1st accused person’s statement
Re-examination: Nil.
That is the case for the prosecution.”
The appellant testified as Dw1 as follows:
“Dw1 – sworn on the Bible and states in Ibibio language. My names are Ekong Akpan Thomas. I live at Idak Okpo in Etinan. I am a Dry Cleaner.
I did not commit the offence for which I am charged. It was in December, 1995, I was with my relation, Bassey. I used to stay with him in the Northern part of the country and assist him in washing clothes. I visited home for Christmas and went to visit my sister around the Etinan circus. I was arrested and taken to Etinan police station. The police asked me questions and I gave answers which were recorded. I was later taken to the police headquarters, Ikot Akpan Abia. I was also asked questions and I gave answers to the police at Ikot Akpan Abia.
Cross Examination – Nil.”

From the evidence adduced it can be seen that apart from bare denial that the appellant did not commit the offences as charged, the appellant did not contest the voluntariness of his extra-judicial statements (Exhibits “G”, “G1” and “G2”) nor retract same. The appellant did not deny that he was never wearing Exhibit “E” at the time he was spotted by Pw2, and pursued and eventually arrested toward Hospital Road near Ekona Hotel where he had ran into the bush on sighting the Pw2 and the police. The appellant’s extra-judicial statement of 23rd January, 1996 reads as follows:
“I the above named person and address having been duly caution in English language that I am not obliged to say anything in answered to the charge unless I wish to do so what ever I said will be taken down in writing and be given in evidence. Ekong Akpan Thomas.
I know Oniong village in Etinan Local Government Area. Before 16th December, 1995, I have been in Etinan village. I have never gone to Oniong village as alleged by the complainant. The shirt which the Sen or the complainant is claiming to be his is never, it is my shirt, which I bought at Lagos while I was there. I was living with a policeman called Francis Olide a husband to my sister. I left to Lagos on April, 1995, and came back on October, 1995. I do not know anything about the Burglary incident in Oniong village. However I know Oniong village. I know one Ikpe from hospital road Etinan. I have no other friend than that Ikpe. We always move out together and do thing in common. Ikpe father’s name is Udo Eba who is now in prison custody over a case of robbery.
Statement recorded by me read over to the maker he signed as being correct while I countersigned as the recorder. Sgd. 23/1/1996.
Statement recorded by me read over to the maker he signed as being correct while I countersigned as the recorder. Sgd. 23/1/1996.

Pw1, Pw2 and Pw3 who were victims of the armed robbery lived at Oniong, Iman, Etinan Local Government Area where the armed robbery took place at about 2:00 of 17th December, 1995 while the appellant denied ever going to Oniong village as alleged by the prosecution witnesses on the night of 17th December, 1995 in his statement dated 23rd January, 1996, on the next day been 24th January, 1996 the same appellant made the following confessional statement to the police which reads as follows:
“My names are Ekong Akpan Thomas (m). I am a native of Adaha Akpo St. No. 3 Etinan. I am an Auto-Electrician. It was around 16th December, 1995 that one Essien Ibok Essien (m) and Aniedi Sampson Bassey (m) alias “Ikpe” met me at circus at Etinan around morning time. Aniedi Sampson Bassey asked me if I will like to follow him to collect debt for him at from somebody at Oniong Iman village, Etinan, I told him I will follow him. Essien Ibok Essien told me that if I follow them they will find something for me. Ikpe then told me that I should wait for them at the circus by 4pm. Ikpe rode on a motorcycle and backed Essien Ibok Essien and both of them rode away. At around that 4pm I went to the circus and waited for them. Both of them came on that same motorcycle Ikpe asked me to join them on the motorcycle and three of us rode towards Ekpene Ukpa Road to Oniong village. At Oniong village Essien Ibok Essien asked me to come down and I did. Essien showed me a place in the bush near swamp to wait for them this was around 5 o’clock and I did and waited for them while both of them dove away on the motorcycle. I was in the bush waiting for them whom both of them returned on foot and meets me. Both of them were coming matchets in their hands I did not see gun with them. The three of us trekked from the bush to one compound in Oniong Iman village, Etinan. Essien told me to wait for them outside the compound and to watch to inform them when any body will come. Ikpe and Essien went into the house, Ikpe used his leg to break the door by hitting it and the door was forced open. Both of them went inside the house with their matchets and torch lights. While I remain outside watching. They stayed long in the house and I heard the owner of the house shouting Iyaemo! Iyaemo! Iyaemo!, by that time nobody came out. When Ikpe and Essien came out from the house they carried one bicycle, one radio, one bag containing cloths. The bag containing cloths and the radio were tied on the bicycle and Essien rolled it and we trekked to near swamp where I hid. While there Essien gave me the sum of N500.00 and long sleeve polo shirt I was not allowed to see the contents of the bag. The two of them carried the bicycle, the bag and the radio and both of us went home. I carried my house that night before day break. I used the N500.00 to feed. Yesterday, I move the long sleeve polo shirt and I was trekking along hospital road, Etinan. One policeman stopped me and called on me and arrested me and told me I was wanted at the police station, Etinan the Police man carried me on his motorcycle to the police station. At the police station the police asked me where I got the polo long sleeve shirt I was warring. I told them it was shared to me by Essien and Ikpe. I made statement to the police at Etinan. By the time I went for the Robbery I did not carry torch light it was Essien and Ikpe into carried torchlights. I have not gone for robbery before this is my first time. When i was outside watching, i over heard a man crying i don’t know who among Essien and Ikpe wounded the man. Ikpe and Essien did not tell me how much to took from the man’s house. Before I was arrested yesterday Ikpe told me if i allowed myself to be arrested by the police, i will answer the case alone because he himself will run to Cammeroun. He said that Essien has already left to Lagos. We did not tell me the address. Ekong Akpan Thomas. 24/1/1996.
Statement recorded by me in English language read over to the maker he said it is true and correct and signed while I also signed as the recorder. Sgn. 24/1/1996.”

Though standing out the house as a security the appellant described how he heard the cries of the victims as they were being robbed, beaten and stabbed by his co-accused persons within the house. The appellant also gave evidence as to how much was his share of the booty and the fact that the shirt Pw2 claimed to be his which he wore on that fateful day of his arrest was one of those removed from Pw1’s house. The evidence of the appellant corroborated the evidence of Pw1 and Pw2 that indeed armed robbery took place in his house; that he and Pw3 were beaten, stabbed and their money and clothes stolen. That Exhibit “E” was Pw1’s shirt.
The extra-judicial statements can only be used against the appellant and not the co-accused. See Chuka V. The State (1988) 7 SCNJ 226; Atanda v. Attorney-General Western Region (1965) NMLR 225; Otufale v. The State (1969) NMLR 261 and Mumuni vs. The State (1975) 6 SC 79. At no time did the defence counsel attempt to disparage the evidence of the prosecution witnesses through cross-examination nor impugn the voluntariness of the extra-judicial statements of the appellant. My humble view is that the learned trial Judge acted rightly in law and in fact when held at page 32 tines 29 to page 33 lines 1-18 as follows:
“Besides, the accused person in their statements, Exhibits “A”, “D”, “F” and “G” and Exhibits “G1” and “G2” and “H” have been able to make a clean breast of the whole matter. Again, Exhibit ‘E”, the polo shirt was identified by Pw2 as his property stolen on the date of the incident Dw1 admitted Exhibit E’, formed part of his share of the booty. Even if the Dw1 had not confessed to the crime, he still would have been caught by section 149(a) of the Evidence Act on the doctrine of recent possession. I agree with the learned prosecuting counsel that the Dw1, the 1st accused person did not deny on oath that the polo shirt, Exhibit “E” was the property of Pw2 and that the said Exhibit “E” was one of the items stolen from the house of Pw1 on the 17/12/1995. It is trite law that resiling from a confessional statement by an accused person will not preclude the Court making use of it provided, the statement was made voluntarily. There was no evidence that any of the accused persons made their confessional statements under duress. See the case of Edhigeere v. State (1996) 42 LRCN 1802 at 1804.
I have come to the conclusion from the evidence, which I accept, that the prosecution has proved beyond reasonable doubt that the accused persons committed the offence as charged on the information. I find the accused persons guilty of the offence of armed robbery as charged on the information and I convict them accordingly.”

The above holding is supported by the evidence on record. For this and the fuller reasons given in the lead judgment, I also dismiss this appeal and affirm the judgment of the Tribunal.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in draft, the Judgment just delivered by my learned Brother, Ndukwe-Anyanwu JCA, and I completely agree with the Judgment. The issues raised for determination have been exhaustively resolved, and I wish to only add a few words on confessional Statements.
The law is fairly settled that a free and voluntary confession of guilt, whether judicial or extra judicial, which is direct and positive and properly proved is sufficient to sustain a conviction, so long as the court is satisfied with its truth. See: Odey vs. Federal Republic of Nigeria (2008) 3-4 5. C. 147: Silas Ikpo vs. the State (1995) 33 LRCN 587 at 587: Akinoju v. The State (2000) NSCQR, Vol. 2 Part 1, page 90 at page 93.
A confessional statement can still ground a conviction regardless of the fact that the maker resiled therefrom or retracted some of the trial. Such retraction does not necessarily make the statement inadmissible. The confessional statement remains admissible and relevant. It will be for the trial court to determine what weight to attach to such confessional statement. The confessional statement must therefore be considered alongside the entire evidence adduced: and, in the light of the circumstances of the case for appropriate weight to be attached to the statement. See Queen v. Itule (1961) 1 All N. L. R. 462; Ikemson v. State (1989) 6 .5.C. (PT 1) 114, (1989) 2 NSCC 471.
Where an accused retracts a statement on the ground that it was not voluntarily made, it becomes incumbent on the trial court to conduct a trial within trial in order for the prosecution to establish that the statement was voluntarily made. Upon holding a trial within trial, the prosecution has opportunity to prove that the statement was voluntary, while the accused has opportunity to prove that it was not. See:
Nwangbomu v. State (1994) 23/24 LRCN 163 at 186: Shande v. State (2005) 22 NSCQR (Pt. 2) 756 at 765-766; Ike v. State (2010) 5 NWLR (Pt. 1186) 41 at 55-56.
However, such retraction must be made at the time the statement is tendered to be admitted as evidence. A retraction made after a statement has been tendered without objection, and admitted as evidence is, at best, an afterthought. Indeed, a challenge or retraction presented after the statement has been admitted in evidence and perhaps the witness for the prosecution discharged cannot be taken seriously.
In Mustapha Mohammed v. State (2007) 30 NSCQR (Pt 1) 364 at 380, the Supreme Court per Tobi JSC said:
“It is important to say that when the confessional statements of the appellants were tendered, there was no objection, and so there was no trial within trial. In the absence of objection, this court can come to the conclusion that the statements were made voluntarily by the appellants.”
See also: Osung vs. State (2012) 6 – 7 MJSC (Pt. 11) 1 of 19 – 21.
There was no objection from the appellant when his confessional statement, Exhibit G, was tendered. If there had been objection, it would be incumbent on the trial court to conduct a trial within trial. The appellant gave no evidence of coercion or intimidation before the confessional statement was made by him. The mere fact that he retracted the said statement without more did not make it inadmissible.
Moreover, the trial court did not just act on the confessional statement, Exhibit G. There were other pieces of evidence which corroborated the confession. These include the evidence of PW1 and PW2 the long sleeve shirt of the appellant, Exhibit E. The statement, Exhibit G, was therefore rightly admitted by the Tribunal.
The other issues raised for determination have been exhaustively resolved by my learned brother, and I have nothing further to add.
I abide with the Order, dismissing the appeal, and affirming the conviction and sentence of the appellant by the Tribunal.

Appearances

O. UKPONG Esq.For Appellant

AND

S. AKPABIO Esq.For Respondent