EZE v. COP (2020)

EZE v. COP

(2020)LCN/14201(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, May 19, 2020

CA/A/524C/2016

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Between

IKECHUKWU EZE APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

RETRACTION OF A CONFESSIONAL STATEMENT

In Hassan Vs State (2001) 11 SCM 106, the Supreme Court held thus:
“An accused person who wishes to impeach his earlier extra judicial statement has an onerous duty to establish that his earlier confessional statement cannot be true or correct by showing any of the following four events or instances:
(a) That he was not recorded correctly; or
(b) That he in fact did not make the statement; or
(c) That he was unsettled in the mind of the time he made the statement; or
(d) That he was induced to make the statement.”
See Ibrahim Vs State (1991) 5 SCNJ 134 and Kareem Vs FRN (2002) SCM 73. PER AGIM, J.C.A.

PROOF OF THE CRIMINAL OFFENCE OF ARMED ROBBERY

The next issue is whether a case of armed robbery has been established against the four accused persons. For the prosecution to succeed, there must be proof beyond reasonable doubt of the following facts:
(1) That there was a robbery or series of robberies;
(2) That each robbery was an armed robbery;
(3) That the accused persons were among those who took part in the armed robbery or robberies. PER AGIM, J.C.A.

WHETHER OR NOT THE PROSECUTION HAS THE LEGAL BURDEN TO ROVE THE VOLUNTARINESS OF AN EXTRA-JUDICIAL CONFESSION BY AN ACCUSED PERSON

The law is settled that the prosecution has the legal burden to prove the voluntariness of an extra judicial confession by an accused, as part of its legal burden to prove the guilt of the accused beyond reasonable doubt. This duty exists and must be discharged even where the voluntariness of the confession is not challenged. The prosecution discharges this burden when it establishes by evidence that the usual cautionary words were administered by the officer obtaining the statement, that the accused understood that he had the right to write the statement himself or require some other person to write same and read it over to him, that when it was read over to him he understood the statement and that it is his exact statement, that he signed the statement, that being a confessional statement, the officer obtaining the statement took him before a senior police officer for the accused to confirm before the senior officer, that the statement is his and that he made it voluntarily and that he did so confirm the statement. PER AGIM, J.C.A.

DUTY OF THE COURT IN DETERMINING THE VOLUNTARINESS OF A CONFESSION

In determining the voluntariness of a confession, the Trial Court can consider other evidence before it outside the one obtained during trial within trial in the interest of justice. It cannot disregard evidence before it that is relevant to the issue of the voluntariness of the confession merely because it was obtained outside the trial within trial.
The decision of the Supreme Court in State v Abdullahi Sani (2018) 9 NWLR (Pt 1624) 278 at 298 -299 declaring a trial within trial a nullity for wrong procedure cannot apply here as the facts and issues are different. PER AGIM, J.C.A.

THE APPROACH OF THE TRIAL COURT IN CONSIDERING THE TRUTH OF THE CONFESSION OF AN ACCUSED PERSON

The approach of the Trial Court in considering the truth of the confessions in the light of other evidence accords with the prescription of the Supreme Court in Ogudo v State (2011) LPELR – 860 (SC) that “A Court can convict on the retracted confessional statement of an accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person, which is different from his retracted confession and the Judge asking himself the following questions: (a) Is there anything outside the confession to show that it is true? (b) Is it corroborated? (c) Are the relevant statements made in it of facts true as far as they can be tested? (d) Did the accused person have the opportunity of committing the offence charged? (e) Is the confession possible? (f) Is the confession consistent with other facts which have been ascertained and have been proved? See. Kanu & Anor v. King 1952 14 WACA p. 30 Mbenu v. State 1988 3 NWLR Pt. 84 p. 615 Stephen v. State 1986 5 NWLR pt. 46 p. 978. Though, the Court can convict only on the extra-judicial confessional statement of the accused person, but it is desirable to find some independent evidence. That is to say, it is desirable to have outside the confession some evidence, be it slight of circumstances which make it probable that the confession was true. See Queen v. Itule 1961 2 SCNLR p. 183 Onochie & 7 Ors v. The Republic 1966 NWLR p. 307 Edhigere v. State 1996 8 NWLR pt. 464 p.1.” See also Oseni v. The State (2012) LPELR – 7833 (SC). PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/524C/2016 was commenced on 18-12-2015 when the appellant herein filed a notice of appeal against the judgment of the High Court of Federal Capital Territory in criminal case No. FCT/HC/9/15/CR/05/2007 delivered on 12-10-2015 at Gudu, Abuja by A.M. Talba J. The notice of appeal contains 7 grounds for the appeal. With leave of this Court, the notice of appeal was amended. The amended notice contains 9 grounds of appeal.

Both sides filed, exchanged and adopted their respective briefs as follows – Appellant’s brief and respondent’s brief.
The appellant’s brief raised the following issues for determination –
1. Whether the learned trial Judge was correct to have held and convicted the appellant on the premise that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery in the light of the amended charge and evidence adduced before the trial Court. (Distilled from grounds 1, 2, 5 & 6 of the amended grounds of appeal)
2. Whether learned trial Judge as a Court of first instance was correct to have suo motu

struck out the four additional counts charge as undesirable in disregard to the nature of evidence led by the prosecution and admitted Exhibits L, M, N1 & 2, O1 & 2 in evidence to convict the appellant for armed robbery. (Distilled from grounds 3 & 4 of the amended grounds of appeal).
3. Whether the learned trial Judge was right in placing absolute reliance on the confessional statements of the appellant to convict him. (Grounds 7 & 8)

The respondent’s brief adopted the issues raised for determination in the appellant’s brief.
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.

Let me start with issue No. 3 which asks – Whether the learned trial Judge was right in placing absolute reliance on the confessional statements of the appellant to convict him.”

I have read and considered all the arguments of both sides on issue 3.

The Trial Court’s consideration of the evidence before it concerning the appellant and its findings thereon reads thusly- “I shall now deal with each of the available evidence to see if they are sufficient

and cogent enough to be relied upon.
To begin with the confessional statement Exhibit for Exhibit A, the confessional statement of Ikechukwu Eze, the 1st accused, which the Court conducted a trial within trial before admitting same in evidence. All the other confessional statements were retracted by the accused persons.
It is settled that retraction of a confessional statement does not render it inadmissible in evidence. Rather the Court will admit same and then determine the weight to attach to it at the end of the trial after considering other evidence before the Court. There are judicial authorities that guide the Courts in considering a retracted confessional statement. See Osakwe Vs State (supra) and Osetola Vs State (supra). I shall now look at each of the confessional statements. Exhibit A is the confessional statement of Ikechukwu Eze, 1st, accused, it reads:
“I of the above name and address voluntarily confess to state as follows; I was born at Otolo Nnewi South Local Government Area of Anambra State. I started my primary school education 1981 at Ifite Central School Ora Ifite Nnewi Local Government Area of Anambra State. I did

not go for my Secondary School education. I was employed by one Innocent Uba ‘m’ of No. 27 Lawson bustop Odoara Street Lagos State as a house boy. I stayed with him for good five years as he didn’t settle me well. That is how I left him. I left Lagos immediately in the year 1992 as my employer didn’t settle me, back to last that’s Ifite village area of Nnewi Main Market Motor cycle parts as a sales boy. I spent good four years with him that, from 1992 to 1996 where by the same Christian Obi had an accident from Enugu to Nnewi and died; that’s how I left him. I stayed for good one year in the village before I decided to go back to Lagos as trailer’s conductor at Bega Suja in Lagos. I was employed as a conductor by one Christopher second name not yet known at Savannah transport. Motor limited at Bega Suja in Lagos State. I stayed with him for good three years and after we had an accident I left him and started hawking diesel at Tin Can Island all in Lagos State. I was into the business of selling diesel till last year December 2005, I stopped. As soon as I stopped the business, I came across one Friday ‘m’

second name not yet known of the same Tin Can and asked me whether if I have money to join him to Cotonou for a business of selling jewelries and I told him that I don’t have any money, that is how I go into the business of selling tokumbo parts in the Tin Can Island, Lagos. It was there I came across one Sunny ‘m’ of Toha village across river in Lagos State. The very Sunny he is the one who introduced me to Moses after telling me that he is coming to Abuja to one big hotel and meet a friend there to get job for us, and by then he did not disclose anything to me like robbery; he only asked me to accompany him to Abuja, if I could that’s how we came to Abuja and before we came Sunny called Moses that we are on our way to Abuja and Moses said we are welcome. On reaching Abuja sometime around Easter, April 2006 Sunny took us to one Chida International hotel, Utako where Moses was working. As we reached Abuja we stopped at Utako whereby Sunny called Moses on phone that we reached Utako; in few minutes time Moses came with a motor-cycle and took us to one Chida International Hotel Utako and waited for good two hours near swimming pool inside

the hotel. I cannot remember the date and time I reached or we reached Abuja.
Moses closed duty on that day at about 2000 hours and took us to his house at Jabi and now the place was demolished. As we reached Moses room where he is residing as a tenant, Sunny introduced me to Moses in his room; that I was a friend and he should assist me to look for a job, that I can manage my life. Moses promised to get me a job due to the condition of Abuja before you have a job it will be very hard and I promised you that I will get you a job. I spent almost a week in Moses room without anything doing rather to eat and sleep. One day within the week like that Moses left me at home and at about 11:00 hours Moses came with trousers of jeans make, shirts and shoes with them N14,000 only and I asked him did you get your salary, he said no, it was middle of the month how can they pay him salary. The items he bought is for his wife not for him and I still asked him how did you get that money? He said I should forget he will tell me later. Moses took me out to a joint near his house for drink at about 19:00 hours and offer me a bottle of small stout and began to introduce

things to me that he is into the business of internet ant if you are doing it, the person closed to you would not know, that is why we call it internet business. If we reached to a certain place like company we would use hijack the guards one by one other began the operation. I still asked him if police catch us how could we do to get free? We would use the money stolen to settle ourselves. Later he said to me that even his wife did not know anything about this talk less of anybody. He initiated me into the business in May 2006 by using hot drink to pour it on ground and said the following:
(1) I should not be telling anybody about this business
(2) If we went for the business if he tell me to stay here and watch I should obey order no shaking.
I cannot remember the date and it was sometime in May 2006 at about 22:00 hours we started the business at, I don’t know the place but it was inside Abuja in one church and we did not succeed because the security man was vigilant and began to shout thief! Thief! Thief! We did not succeed; if we go to the business around 22:00 hours we used to monitor the place and the in and out of people within

like 1 – 2 hours before we started the operation; we went to the business three times inside Abuja and it was once we succeed and shared the money. Moses gave me N20,000 naira out of the money we succeeded in the operation. I don’t know the exact amount of money we got that day; it was only Chinedu and Moses that know the amount we succeeded. They shared the money according to the place I post/post you are, if succeeded they will only say to you take one by one. We were six in number namely:
(1) Moses;
(2) Chinedu;
(3) O/c;
(4) ……..;
(5) ……..;
(6) ………..;
I don’t know their names; but I remember the name of one that died; his name is Tochukwu and the res two members 4 and 6 I don’t know their names. I have never done this business except in Abuja. In Lagos there was no chance and my mind did not think of that one until I reached Abuja. I was initiated into the business by Moses, a friend of Sunny who brought me to Abuja. Sunny left Abuja to Benin after our last business which they gave me N20,000 naira only. I am expecting him this week but if Moses tell

him I believe he will not come. He stays in Daki Biyu Hotel in Jabi area. I was living in Utako village in Abuja. I don’t know where Moses is staying except those my colleagues. It was Moses that knows where Chinedu is staying in Lagos I don’t know Sunny with this business. I only know him as a bus driver, and he told me that is his own bus. I swear that is my first time of coming to Bwari for a business trip except those my colleagues and if you ask them they said I came to Bwari before let authority deal with me according to the law or shoot me directly and died. The reasoning why we called the business internet is that when we go for business we don’t kill only to loot if person shouted we would run away. We used the tools in order to frighten people, pretending and hold a chizzle or dagger like gun. We didn’t came to this business with gun only these tools and I am going to explain one by one the use of it. The following items are as follows:-
(1) One red iron cutter 18”450 we use it to cut barb-wire or keys;
(2) One saw blade green and white colour eclipse No. 40 P.C. England made used to open safe.
(3) Two

moderate iron sharp used to open door and safe
(4) Two long okewasom
(5) Long screw driver green and white metals used to open drawers.
(6) Two machetes max crocodile No. 126 England designed, used to frighten people that attack us.
(7) Tow big brown sole-tape globe tape, used for sealing the implements and mouth of people that we attack during the business.
(8) One white tissue toilet roll used to clean any anus due to the sickness that is worrying me. I want the authority to please forgive me on this illicit act and behaviour that involved myself into it and it was today I remember God and hate myself in this could I promise if the authority help me out I will not ever in my life involved myself into it again. That is all I have to say.”
Earlier in my ruling when the document was admitted in evidence, I held that I am convinced that the statement was made voluntarily. My decision is premised on the fact that it is only the accused who could give such details of his life history. There is no any evidence of duress, torture or promise when the statement was obtained.
Exhibit A is a free and voluntary confession of guilt

make by the 1st accused, Ikechukwu Eze. And it is direct and positive.
Exhibit I is also a confessional statement of the 1st accused. When the prosecution applied to tender it in evidence the 1st accused said it is not his statement. In other words he has retracted the statement. Exhibit ‘I’ reads:
“I am a native of Ojolo village in Nnewi L.G.A. of Anambra State and I only attended primary school, Ifite Central Primary School, Nnewi and I finished my primary school sometime in the 1986. Thereafter I went to serve person for five years and as at hen I used to sale motor-spare parts fairly used and the name of my master is Innocent Uba. (I am with) I was in Lagos till on the 3/9/2006 at about 0630hours when I came to Abuja and I came to Abuja through Sunny and Sunny is my friend and don’t know where the said Sunny used to stay while in Abuja. I lodged in a hotel at Utako and Moses and Sunny are the gang leaders for the operation.
On 6/9/2006 at about 0130 hours about nine of use went for Bwari Area Council where we entered and gain some amount of money which my own share is N20,000.00 that they gave me. Thereafter police

intercepted us and arrested four of us but two of us were shot dead. And I have participate in three different robbery operation and in different locations. In Abuja the first one I was given N15,000.00 and the second one there is no money while the third one is this very one at Bwari where they gave me N20,000.00 and the police man by name Emmanuel Ogboje used to follow us to the robbery operation. The sum of N105,000.00 was collected from by police at Bwari and my handset. That is all I know about the case.”
The Court is expected to test the truthfulness and veracity of the confession in the light of other credible available evidence.
PW3, David Tanko in his evidence he told the Court that on 7th September, 2006, he was on duty at Bwari Area Council with four others. At about 12 to 1:30 a.m. a gang of armed robbers broke into the Area Council. He was at the first gate and they met him at the security post. Two of them entered and collected his handset torchlight and wrist watch. They tied him up; his legs and hands. They loosed his legs and hand and they brought him out to search for other security men. They took him round for 15 minutes and

they got the civil defence officer, Isa Audu. The two of them were brought downstairs and there was light that time. It was raining so he was able to identify some of them himself and Isa Audu were taken to Fadma officer where they tied them and they sealed their mouths with selo-tape. He was able to identify the 1st and 4th accused with the other one who was killed. The two of them were left to keep an eye on them. Unknown to them, one security man, Jibrin Gimba escaped and he reported to the police.
This piece of evidence is outside the confession to show that it is true. The evidence also corroborates the confession. And the facts stated in the confession are true having regard to the evidence of PW3 confirming that the robbery took place and the 1st accused had the opportunity of committing the offence. Exhibit A which is more detailed further confirms that the accused person had the opportunity of committing the offence. The confession if possible because PW8, CSP Rabiu Sbin who was the DPO Bwari Division at time of the incidence. He told the Court how they combed the area in order to effect arrest of the hoodlums. It was raining that night. As the

rain stopped they continue with the search. A few distance away they discovered a fresh blood on the ground and foot print. Earlier he told the Court that Sgt. Garba Ishaku called him on walky talky and told him that they have shot one of them. PW8 said they continued with the search tracing the foot print until they reached uncompleted church building. Before he could realize he heard a gunshot. He was shot on the right foot and fell down. While he was lying down Ikechukwu Eze (1st accused) wanted to rush on him and he used the boot of his gun and hit him. He saw two persons rushing towards him and he shouted, calling for help. Sgt Garba (PW4) shot at them and they fell down; then Ikechukwu Eze was arrested. PW8 raised his leg to show to the Court where he was shot. This piece of evidence confirms that the 1st accused persons confession is possible hence he was arrested shortly after the crime was committed. The confession is consisted with the facts stated by the prosecution witnesses especially PW3, PW4 and PW8.
In Hassan Vs State (2001) 11 SCM 106, the Supreme Court held thus:
“An accused person who wishes to impeach his earlier extra

judicial statement has an onerous duty to establish that his earlier confessional statement cannot be true or correct by showing any of the following four events or instances:
(a) That he was not recorded correctly; or
(b) That he in fact did not make the statement; or
(c) That he was unsettled in the mind of the time he made the statement; or
(d) That he was induced to make the statement.”
See Ibrahim Vs State (1991) 5 SCNJ 134 and Kareem Vs FRN (2002) SCM 73.
The summary of what Ikechukwu Eze told the Court in his defence is that on 7th September, 2006, at about 7 a.m, four police men came to his house at Bwara and arrested him. They took him to the DPO who upon seeing him he started slapping him; calling him an armed robber. The DPO said he was the person who went to the Bwari L.G. Chairman’s house and robbed him on 6/9/2006 with his gang. He was detained in the cell. And when his neighbour, Mr Evans Ebizue (4th accused) came to bail him he was also arrested and detained on 7/9/2006 at about 11 a.m.
Now if the 1st accused was arrested by the police on 7/9/2006 at about 7 a.m. in his house. And the 4th accused

was also arrested at the police station when he went to bail the 1st accused on the same 7/9/2006 at about 11:00am. Then how come they are being accused of committing armed robbery on the same date 7/9/2006 at about 0130 hours.
The 1st accused during cross-examination, he said they are about ten families in their compound and only him was arrested. Evans (4th accused) was in the same compound with him and he went to the station to find out what happened and he was also arrested.
I have critically examined the two confessional statements i.e. Exhibits ‘A’ and ‘I’, along with the evidence before the Court both for the prosecution and the defence. I have also considered the general circumstance of this case and I am of the humble view that Ikechukwu Eze made the confessional statement in Exhibit ‘A’ voluntarily. I am also of the firm view that the denial of confessional statement Exhibit ‘I’ is only an afterthought. These exhibits were corroborated by the evidence of PW3, David Tanko, PW4 Garba Ishaku and PW8 Rabiu Sabin.
The two confessional statements had satisfied the basic fundamental of a valid

statement to wit:
(1) The cautionary word is well written and signed.
(2) The body of the statement especially Exhibit ‘A’ gives a detailed confession which shows clearly that the accused committed the offence which he is charged. The statement contains the detail historical background of the accused which includes the date he was born, the school he attended. Where he started work and how he met his friends who introduced him to armed robbery.
(3) The statement was endorsed by a superior police officer and signed by the accused.
It does not appeal to common sense to think that the police will simply arrest the accused from his house and then concoct a story involving him in a serious crime which attracts death penalty. There are ten families in the compound where the 1st accused is staying. That was what he told the Court. And apart from the 4th accused, Evans who is also in the same compound; no one else was arrested. Now if the story narrated by the 1st accused is true, one will ask what is the motive behind the arrest of the 1st accused alone in a compound of ten families. The 1st accused could not establish any motive as

such. The superior police officers who confirmed the confessional statements and endorsed same cannot play with a matter which involved life and death. We are all human beings from God. We come and to Him we shall return.
I am therefore satisfied that Exhibits ‘A’ and ‘I’ are free and voluntary, positive and proved to be true.
PW4, Sgt. Garba Ishaku told the Court that and his team were posted by the DPO to behind the Secretariat where they saw the armed robbers passing and they opened fire. They got Ikechukwu Eze, 1st accused on the leg; he was hit by a bullet. He called the DPO, PW8 and told him that they got some of the armed robbers on the leg. They met the DPO and they traced their foot print upto an uncompleted church building. While searching for the armed robbers, the DPO was hot on the leg and he fell down. The DPO called for their help as the robbers were trying to snatch his rifle. In the process of rescuing the armed robbers, they shot one of the robbers. They rushed the DPO to a private hospital and the armed robber was taken to Bwari General hospital where he later died. He said the 1st accused and the 4th

accused were arrested while the others escaped.
On the strength the confessional statements of the accused persons and the evidence of PW1, PW2, PW3, PW4 and PW8 which corroborates their confessional statement.
I hold that the offence of criminal conspiracy has been proved against the for accused persons.
The next issue is whether a case of armed robbery has been established against the four accused persons. For the prosecution to succeed, there must be proof beyond reasonable doubt of the following facts:
(1) That there was a robbery or series of robberies;
(2) That each robbery was an armed robbery;
(3) That the accused persons were among those who took part in the armed robbery or robberies.
In order to establish its case, the prosecution relied on the confessional statement of the four accused persons and the evidence of PW1, PW2, PW3, PW4 and PW8. With respect to the confessional statements I had outlined the details as to how each of the accused persons had directly and positively confessed to the crime. The facts stated in the statements accredited to the four accused persons are highly detailed. It is highly

impossible for the investigation police officer (IPO) who is not a party to the commission of the offence to manufacture the detailed facts, including the life history of each of the accused persons. The evidence of PW3, Davit Tanko who was a victim of the armed robbery provides the necessary corroboration. Likewise the evidence of PW4 Sgt. Ishaku Garba and PW8 CSP Sabin Rabiu who went to the scene at the time of the robbery to arrest the armed robbers also provided the necessary corroboration.
I am therefore satisfied that the prosecution had established beyond reasonable doubt the guilt of the four accused person. In other words, the prosecution had proved that there was a robbery on 7/9/2006. The robbery was an armed robbery hence the prosecution tendered evidence the following:
(1) Iron cutter Exhibit – L
(2) Saw blade Exhibit – M
(3) Two cutlasses Exhibit – N1 & N2
(4) Two screw drivers Exhibit – O1 & O2
These exhibits were recovered from the scene of the crime by PW1, Cpl. Ambali Mohammed. The prosecution had also proved that the four accused persons were among those who took part in the armed robbery.
In their

evidence, the four accused persons denied their confessional statements and at the same time they stated that they were tortured to make the statement. It is settled law that where an accused person denied making the statement on the one hand and alleged that he was tortured on the other. The statement is not only admissible but the facts contained in the statement is accepted as correct and if the confession is sufficient, direct and positive he can be convicted on it. The fact is that the denial of making the statement and being tortured cannot be taken together, they are two different words with clear distinction. The accused cannot both deny making the statement and at the same time claim to be tortured. The effect of this that the accused made the statement but decided or was advised to deny on realizing the consequence of his action.
On this note, I hold that the denial of making the confessional statements by the four accused persons does not render the statements inadmissible in evidence. And having tested the truth and veracity of the statements, I accept the fact that the accused persons made the statements voluntarily and the statements are

sufficient, direct and positive. And most importantly the evidence of PW3, PW4 and PW5 and PW8 had corroborated their confessional statements.
Consequently to the above findings and relying on the case of State Vs Nwokoro digest of the Supreme Court cases (unreported) 1956 – 1984 at 52 wherein the Supreme Court held that a conviction can be had solely on the evidence of confession made by an accused person.
And the case of Asimiyu Alarape & Ors. Vs The State (2001) 3 SCM 1.
“As long as the Court is satisfied with its truth a confession statement alone is sufficient to ground and support a conviction without corroboration.”
I therefore hold that the prosecution had established its case against the four accused persons beyond reasonable doubt.
I find the four accused persons guilty as charged in Court count One and Two.
Accordingly I convict the four accused persons as charged namely:
(1) Ikechukwu Eze;
(2) Emmanuel Egwaje;
(3) Chinedu Igw;
(4) Evans Ebizue.”

Learned Counsel for the appellant argued that the holding of the Trial Court that criminal conspiracy was proved is wrong

because the name of the appellant did not feature in all the names listed in all the confessional statements of the accused persons, that the appellant and the 4th accused who were outside guarding the security men held captive could not have known what the other members of the gang were doing inside the building, that in the so called confessional statements, the appellant gave a general narration about incidents of robbery and not this particular robbery, that while it is conceded that in the absence of evidence of an expressed agreement, criminal conspiracy can be inferred from a confession that is unequivocal, direct and positive, in this case there is nothing in the confession from which criminal conspiracy can be inferred, that the trial Court did not take into consideration the unimpeached evidence of the appellant denying the confessional statement, denying his participation in the said robbery and that he was arrested from his house about 7am on 7-9-2006 and taken to the police station.

Concerning the appellant’s conviction for robbery under S.1(2) of the Robbery and Firearms Special Provisions Act, Learned Counsel for the appellant argued

that the Trial Court relied on the appellant’s confessional statements and the testimonies of PW1, PW2, PW3, PW4 and PW8 to convict the appellant, that the appellant and his co-accuseds were said to carry iron cutter (Exhibit L) saw blade (Exhibit M), two cutlasses (Exhibits N1 and N2) and two screw drivers (Exhibits O1 and O2), that these evidence did not establish the case of armed robbery against the appellant, that the testimonies of PW1, PW2, PW4, PW8 are not credible as they are materially in conflict on what took place on 7-9-2006 at the scene of crime, that the trial Court cannot pick and choose which version to believe or disbelieve and disregard the material contradictions, that the decision of the Trial Court is vitiated by the said material contradictions, that the evidence of the appellant is more probable, that no staff of the cash office of Bwari Area Council testified that the sum of N2,658,000.00 or any sum was taken from the office, that PW3 testified that he never told the police officers that the robbers stole 2 million naira, that the prosecution failed to prove the ingredients of armed robbery, that the judgment of the trial Court

be set aside.

Learned Counsel for the respondent argued in reply that the evidence adduced by the prosecution proved beyond reasonable doubt that the appellant committed the offences for which he was convicted by the Trial Court, that the testimonies of the three eye witnesses of the robbery, PW3, PW4 and PW8 were corroborated by the testimonies of PW1 and PW2, the investigating police officers, that the appellant’s testimony in his defence contradicts his confessional statements, is an afterthought and is therefore unreliable, that the fact that it retracts from and contradicts his confessions does not also render the confessions unreliable as the inconsistency cannot be applied to discredit the extra-judicial statement of the accused person forming part of the evidence of the prosecution because it is controverted or denied by the accused in his defence, that the retraction is an afterthought that did not affect the weight of the appellant’s confessional statement, that the appellant stated in his confessional statement that the DPO was shot by the robbers, that the co-accuseds in their confessions clearly mentioned the appellant as a member

of the gang that carried out the Bwari Area Council Robbery, that the testimonies of PW1, PW2, PW3, PW4 and PW8 corroborated the confessional statements as true, that the appellant was arrested at the scene of crime while trying to take a gun from the DPO, that it was proved beyond doubt that the appellant and the other accused persons were armed during the robbery, that is why they were only able to shoot PW8 with a gun and the machetes, cutlasses, iron rod and other offensive weapons recovered from the appellant and other members of the robbery gang and tied the hands of the security men at Bwari Area Council, that S.11(1) of the Robbery and Firearms Special Provisions Act defines an offensive weapon to mean any article including a firearm made or adopted for use to cause injury to a person or intended to be used to cause injury to a person, that there were no contradictions in the testimonies of prosecution witnesses except some discrepancies and minor difference in details that do not affect the substance of the case, that the testimony of PW3 of the items robbed from him during the robbery remained unchallenged by cross examination or evidence in defence,

the testimony of PW8 that one of the accused persons shot him was not contradicted or challenged during his cross examination, that the conviction of the appellant on the evidence was correct.

Let me now determine the merits of the above arguments of both sides.

Let me first consider the issue of whether the Trial Court was correct to have relied on the confessional statements of the appellant to convict him.

The confessional statements of the appellant are Exhibits A and I. The Trial Court found that there is no evidence that the appellant made the statements as a result of duress, torture or promise, that the statements contained detailed narrative of events including his life history, which details can only be furnished by him, that Exhibits A and I are voluntary confessions of guilt by the appellant, that they are direct, positive and true in the light of available evidence, that they were corroborated by the testimonies of PW3, PW4, PW5 and PW8, that the cautionary words on the statements are well written and signed and that the statements were endorsed by a superior police officer and the appellant signed them, that the appellant’s

denial of the confessional statements during his testimony in Court is an afterthought.

It is noteworthy that there is no ground of this appeal complaining against any of the Trial Court’s specific findings that there is no evidence that the appellant made the confessions under duress, torture or promise, that Exhibit A contains details of his life history and other events which only the appellant can furnish, that the confessions are corroborated by the testimonies of PW3, PW4, PW5, PW8, that the cautionary words in the confessions were well written and signed and that they were endorsed by superior police officers and signed by the appellant.
By not appealing against these specific findings of facts the appellant accepted them as correct, conclusive and binding upon him. See Okotie-Eboh V Manager (2004) 11-12 SC 174 at 193 and Iyoho v. Effiong (2007) 4 SC (Pt.3) 90.
Without appealing against the above mentioned specific findings facts, the appellant’s complain in ground 7 of the amended notice of this appeal that there is nothing outside the confessions to show that they are true, and the complain in ground 8 of the amended notice

of appeal that the Trial Court erred in law when it held that the confessions were voluntarily made, were true, positive and true are not arguable. See Dabup V Kolo (1993) 12 SCNJ 1 and NBCI V Integrated Gas Ltd (2005) 1 SC (Pt.1) 133 at 140. Without appealing against the specific finding of the Trial Court that the confessional statements were corroborated by the testimonies of PW3, PW4, PW5 and PW8, the appellant cannot validly complain or argue that there is nothing outside the confessions that show that they are true. Without appealing against the specific finding of the trial Court that the appellant did not make the statement under duress, torture and promise, the appellant cannot validly complain or argue that the trial Court erred in law in holding that the appellant made the confession voluntarily. This holding is based on the said findings of the Trial Court that the confessions were not made under duress torture and promise and that the statements were endorsed by a superior police officer. Having accepted as correct the said findings of facts that formed the basis of the holding or conclusion of the trial Court complained against, the complain

lacks foundation or basis.

Learned counsel for the appellant argued that the Trial Court having dismissed the case of the prosecution during trial-within-trial because of its failure to call its witnesses to testify in proof of the voluntariness of the confession should have held that Exhibit A was not voluntarily made and not require the appellant to lead evidence in the trial within trial of the voluntariness of the said confession, that requiring the appellant to elicit evidence after dismissing the prosecution’s case in the said trial within trial is wrong and is prejudicial to the appellant as it places the burden on the appellant to prove the voluntariness of the confession and his innocence.

The law is settled that the prosecution has the legal burden to prove the voluntariness of an extra judicial confession by an accused, as part of its legal burden to prove the guilt of the accused beyond reasonable doubt. This duty exists and must be discharged even where the voluntariness of the confession is not challenged. The prosecution discharges this burden when it establishes by evidence that the usual cautionary words were administered by

the officer obtaining the statement, that the accused understood that he had the right to write the statement himself or require some other person to write same and read it over to him, that when it was read over to him he understood the statement and that it is his exact statement, that he signed the statement, that being a confessional statement, the officer obtaining the statement took him before a senior police officer for the accused to confirm before the senior officer, that the statement is his and that he made it voluntarily and that he did so confirm the statement. In our present case PW1, Cpl Ambali Mohammed, who obtained Exhibit A from the appellant testified in examination in chief thusly –
“On 7th day of September, 2006, a case was referred to me for investigation. A case of criminal conspiracy and armed robbery, which took place in Bwari Area Council in respect of Ikechukwu Eze. I obtained their statement under word of caution, which I read to them, and I asked them whether they understood or not. The 1st person, Ezechukwu Eze. I asked him if he can write he said no. He then gave his voluntary confessional statement, which I recorded. I

then read the statement to his hearing and I asked him if he understood what I wrote and he said, yes. I asked him to sign and I signed before I took him to the Divisional Crime Officer, Mr. John Ako Dep, Superintendent of police. He read the statement to the accused to his hearing and he asked him whether he understood and he said, yes. The DCO endorsed his statement, the accused signed and I counter signed. I can identify the statement through my handwriting and my signature. “

Exhibit A on its face contains at the beginning cautionary words as follows-
“I have decided to make a complaint against you before a Court. So you wish to make a statement? You are not oblige to say anything unless you wish to do so. But whatever you said will be taken down in writing and may be given in evidence
Sign… Date 7/9/06
I of the above name and address voluntarily confess to state as follows: “
It shows that the accused signed the said caution.

The endorsement by the Divisional Crime Officer, M. John Ako that the statement was read to the accused in his presence and he admitted making it is

at the end of the statement. It is signed by the said Divisional Crime Officer, the accused and PW1. So the testimony of PW1 and the confessional statement prima facie show that it was voluntarily made. The response of the defence to the application of the prosecution for the admission of the statement in evidence reads thusly-
“We object to the admissibility of the statement in evidence. There are discrepancies from the proof of evidence. We also challenge the voluntaries of the statement and we apply for trial within trial.”

The Trial Court ordered a trial of the voluntariness of the confessional. Because the prosecution kept asking for adjournments and would not bring its witnesses to testify in the trial-within-trial, the Trial Court ordered that “the case for the prosecution in the trial within trial is hereby dismissed”. Learned counsel for the appellant argued that he should not have been called upon to elicit evidence in the trial within trial since the prosecution led no evidence and their case had been dismissed, that calling him to elicit evidence in the situation placed the burden on him to prove his innocence and

that this procedure denied him his right to fair hearing and occasioned a miscarriage of justice against him. I do not think that this argument is correct. In the light of the evidence of the voluntariness of the confession elicited by PW1 before the trial-within-trial was ordered and Exhibit A which on its face shows that it was voluntarily made, the failure of the prosecution to elicit evidence in the trial within trial and the dismissal of its case in that trial within trial is of no moment, and the trial Court could not have decided that the confession was not voluntarily made and rejected its admission because the prosecution did not elicit evidence in the trial within trial. The Trial Court could not have ignored the evidence that prima facie established that the confession was voluntarily made before it ordered the trial within trial of the voluntariness of the confession. There is no doubt that the established and desirable practice is for the prosecution to elicit evidence during trial within trial to prove the voluntariness of the confession and for the defence to follow with evidence that cast reasonable doubt in the evidence of the

prosecution. The reality in this case is that the prosecution failed to elicit evidence during the trial within trial. The defence who alleged that the confession was obtained as a result of duress, torture or promise of the appellant by the investigating police officers, had the mandatory legal burden to prove the duress, torture and promise that the he alleged caused the appellant to confess. It is settled law the person who alleges the existence of any fact must prove it. The failure of the prosecution to elicit evidence in the trial within trial cannot relieve the appellant of that burden. It is glaring that the evidence adduced by the appellant during the trial within trial did not establish that the investigating police officers forced or tortured the appellant or made promises to him to confess. The evidence did not cast any reasonable doubt on the evidence of PW1 that the appellant made the confession voluntarily. In the absence of such evidence, the Court cannot rely on the failure of the prosecution to elicit evidence in the trial within trial to hold that the appellant made the confession under duress, torture or promise. Such a holding would be

speculative, perverse and in disregard of the evidence of the voluntariness of the confession given by PW1 and as shown on the face of exhibit A. In determining the voluntariness of a confession, the Trial Court can consider other evidence before it outside the one obtained during trial within trial in the interest of justice. It cannot disregard evidence before it that is relevant to the issue of the voluntariness of the confession merely because it was obtained outside the trial within trial.
The decision of the Supreme Court in State v Abdullahi Sani (2018) 9 NWLR (Pt 1624) 278 at 298 -299 declaring a trial within trial a nullity for wrong procedure cannot apply here as the facts and issues are different.
It is clear from its decision on the point, that the trial Court considered the testimony of the appellant in the trial within trial and held that it was not convinced that the appellant did not make Exhibit A voluntarily. This holding is reasonable in the light of the cautionary words in the confession signed by the appellant and the endorsement of the superior police officer on the face of Exhibit A that the appellant admitted making the

statement before him.

It is clear from Exhibits A and I which are reproduced in the judgment of the Trial Court reproduced above, that the appellant admitted all the essential ingredients of the offences in S.1(2) and S.6(b) of the Robbery and Firearms Special Provisions Act Cap R.11 LFN 2004. In those exhibits the appellant stated that one Moses, Chinedu, one Sunny, Tochukwu, Emmanuel Ewaje and others formed a gang to carryout armed robbery in Abuja, that they carried out the robbery at the Bwari Area Council and that they were armed with tools which include inter alia chizzle, “dagger like gun” and two machetes to frighten people and “two big brown sole-tape globe tape used for sealing the mouths of people that were attacked during the business”. He stated in Exhibit 1 that “On 6/9/2006 at about 0130 hours about nine of use went for Bwari Area Council where we entered and gain some amount of money which my own share is N20,000.00 that they gave me. Thereafter police intercepted us and arrested four of us but two of us were shot dead. And I have participate in three different robbery operation and in different locations. In

Abuja, the first one I was given N15,000.00 and the second one there is no money while the third one is this very one at Bwari where they gave me N20,000.00 and the police man by name Emmanuel Ogboje used to follow us to the robbery operation. The sum of N105,000.00 was collected from by police at Bwari and my handset. That is all I know about the case.”

The appellant in his testimony in Court retracted his confessions in Exhibit A and I by testifying thusly- “The facts of this case as presented by the prosecution witnesses i.e. PW1, PW2, PW3, PW4 and PW8 is that on 7th day of September 2006 the four accused persons namely: Ikechukwu Eze, Emmanuel Egwaje, Chinedu Igwe and Evans Ebizue with other gang of armed robbers now at large broke into Bwari Area Council Secretariat by cutting the barb wire from the back fence at about 12:00 – 1:30am. They entered the Area Council Secretariat; they tied up some of the security men and they collected their handset, torchlight, and wrist watch from David Tanko, PW3 also a security man at the Council Secretariat. They went into almost all the offices, they destroyed the doors, file cabinets and safe.

They stole some valuables including the sum of N2,658,000. One of the security men, Jibrin Garba was able to escape and he reported to the police.
When the report was made, the DPO, CSP Sabin Rabiu PW8 mobilized some Police patrol team. PW4, Sgt. Garba Ishaku was posted to behind the Secretariat. (And another team led by Roland Nzaoman, ASP. The DPO also moved to the scene with another team of police men. The DPO (PW8) went into the premises and he fired one gunshot. The armed robbers ran away while the security men were rescued. The team led by Sgt. Garba Ishaku shot at some of the armed robbers. Sgt Garba Ishaku called the DPO met Sgt Garba Ishaku and they combed the area to effect the arrest of the armed robbers. They saw fresh cloth of blood and foot print. As it was raining heavily, they were searching for the armed robbers. They reached an uncompleted church building where they heard a gunshot. The bullet hit the right foot of the DPO and he fell down. While he was lying down Ikechukwu Eze wanted to rush at him, but the DPO used the booth of his gun to hit him and he fell down. The DPO saw two people coming towards him and he shouted calling for

help. Sgt. Garba Ishaku shot them and they fell down. The DPO was taken to a private clinic while the armed robber was taken to Bwari General Hospital where he died. Ikechukwu Eze and Evans Ebizue were arrested while the others escaped.”

The Trial Court then considered the truthfulness and veracity of the confession in the light of other credible evidence before it and held that the confessions were free and voluntary, positive and proven to be true.

The exact text of the part of the judgment of the Trial Court that made this determination reads thus- “PW3, David Tanko in his evidence, he told the Court that on 7th September, 2006 he was on duty at Bwari Area Council with four others. At about 12 to 1:30 a.m. a gang of armed robbers broke into the Area Council. He was at the first gate and they met him at the security post. Two of them entered and collected his handset torchlight and wrist watch. They tied him up; his legs and hands. They loosed his legs and hand and they brought him out to search for other security men. They took him round for 15 minutes and they got the civil defence officer, Isa Audu. The two of them were brought

downstairs and there was light that time. It was raining so he was able to identify some of them himself and Isa Audu were taken to Fadma officer where they tied them and they sealed their mouths with selo-tape. He was able to identify the 1st and 4th accused with the other one who was killed. The two of them were left to keep an eye on them. Unknown to them, one security man, Jibrin Gimba escaped and he reported to the police.
This piece of evidence is outside the confession to show that it is true. The evidence also corroborates the confession. And the facts stated in the confession are true having regard to the evidence of PW3 confirming that the robbery took place and the 1st accused had the opportunity of committing the offence. Exhibit A which is more detailed further confirms that the accused person had the opportunity of committing the offence. The confession if possible because PW8, CSP Rabiu Sbin who was the DPO Bwari Division at time of the incidence. He told the Court how they combed the area in order to effect arrest of the hoodlums. It was raining that night. As the rain stopped they continue with the search. A few distance away they

discovered a fresh blood on the ground and foot print. Earlier he told the Court that Sgt. Garba Ishaku called him on walky talky and told him that they have shot one of them. PW8 said they continued with the search tracing the foot print until they reached uncompleted church building. Before he could realize he heard a gunshot. He was shot on the right foot and fell down. While he was lying down Ikechukwu Eze (1st accused) wanted to rush on him and he used the boot of his gun and hit him. He saw two persons rushing towards him and he shouted, calling for help. Sgt Garba (PW4) shot at them and they fell down; then Ikechukwu Eze was arrested. PW8 raised his leg to show to the Court where he was shot. This piece of evidence confirms that the 1st accused persons confession is possible hence he was arrested shortly after the crime was committed. The confession is consisted with the facts stated by the prosecution witnesses especially PW3, PW4 and PW8.
In Hassan Vs State (2001) 11 SCM 106, the Supreme Court held thus:
“An accused person who wishes to impeach his earlier extra judicial statement has an onerous duty to establish that his earlier

confessional statement cannot be true or correct by showing any of the following four events or instances:
(e) That he was not recorded correctly; or
(f) That he in fact did not make the statement; or
(g) That he was unsettled in the mind of the time he made the statement; or
(h) That he was induced to make the statement.”
See Ibrahim Vs State (1991) 5 SCNJ 134 and Kareem Vs FRN (2002) SCM 73.
The summary of what Ikechukwu Eze told the Court in his defence is that on 7th September, 2006 at about 7 a.m four police men came to his house at Bwara and arrested him. They took him to the DPO who upon seeing him he started slapping him; calling him an armed robber. The DPO said he was the person who went to the Bwari L.G. Chairman’s house and robbed him on 6/9/2006 with his gang. He was detained in the cell. And when his neighbour, Mr. Evans Ebizue (4th accused) came to bail him he was also arrested and detained on 7/9/2006 at about 11 a.m.
Now if the 1st accused was arrested by the police on 7/9/2006 at about 7 a.m. in his house. And the 4th accused was also arrested at the police station when he went to bail the 1st

accused on the same 7/9/2006 at about 11:00am. Then how come they are being accused of committing armed robbery on the same date 7/9/2006 at about 0130 hours.
The 1st accused during cross examination he said they are about ten families in their compound and only him was arrested. Evans (4th accused) was in the same compound with him and he went to the station to find out what happened and he was also arrested.
I have critically examined the two confessional statements i.e. Exhibits ‘A’ and ‘I’, along with the evidence before the Court both for the prosecution and the defence. I have also considered the general circumstance of this case and I am of the humble view that Ikechukwu Eze made the confessional statement in Exhibit ‘A’ voluntarily. I am also of the firm view that the denial of confessional statement Exhibit ‘I’ is only an afterthought. These exhibits were corroborated by the evidence of PW3, David Tanko, PW4 Garba Ishaku and PW8 Rabiu Sabin.
The two confessional statements had satisfied the basic fundamental of a valid statement to wit:
(4) The cautionary word is well written and

signed.
(5) The body of the statement especially Exhibit ‘A’ gives a detailed confession which shows clearly that the accused committed the offence which he is charged. The statement contains the detail historical background of the accused which includes the date he was born, the school he attended. Where he started work and how he met his friends who introduced him to armed robbery.
(6) The statement was endorsed by a superior police officer and signed by the accused.
It does not appeal to common sense to think that the police will simply arrest the accused from his house and then concoct a story involving him in a serious crime which attracts death penalty. There are ten families in the compound where the 1st accused is staying. That was what he told the Court. And apart from the 4th accused, Evans who is also in the same compound; no one else was arrested. Now if the story narrated by the 1st accused is true, one will ask what is the motive behind the arrest of the 1st accused alone in a compound of ten families. The 1st accused could not establish any motive as such. The superior police officers who confirmed the confessional

statements and endorsed same cannot play with a matter which involved life and death. We are all human beings from God. We come and to Him we shall return.
I am therefore satisfied that Exhibits ‘A’ and ‘I’ are free and voluntary, positive and proved to be true.”

This decision of the Trial Court is supported by the evidence and is therefore correct.

offence charged? (e) Is the confession possible? (f) Is the confession consistent with other facts which have been ascertained and have been proved? See. Kanu & Anor v. King 1952 14 WACA p. 30 Mbenu v. State 1988 3 NWLR Pt. 84 p. 615 Stephen v. State 1986 5 NWLR pt. 46 p. 978. Though, the Court can convict only on the extra-judicial confessional statement of the accused person, but it is desirable to find some independent evidence. That is to say, it is desirable to have outside the confession some evidence, be it slight of circumstances which make it probable that the confession was true. See Queen v. Itule 1961 2 SCNLR p. 183 Onochie & 7 Ors v. The Republic 1966 NWLR p. 307 Edhigere v. State 1996 8 NWLR pt. 464 p.1.” See also Oseni v. The State (2012) LPELR – 7833 (SC).
The Trial Court considered the relevant factors that justified its reliance on the retracted confessions to convict the appellant.

As the Supreme Court held in Ogudo v. The State (supra) “When a trial Judge decides in his wisdom to sentence an accused person to death solely on a retracted confessional statement the statement must satisfy the basic fundamentals of

a valid statement, to wit: 1. The cautionary words must be well written and signed. 2. The body of the statement written by the accused person or by someone usually a police officer on the accused person’s directives given a detailed confession which will show clearly that he committed the offence for which he is charged. 3. The statement must be endorsed by a superior Police Officer and signed by the accused person. Relying on an unsigned retracted confessional statement calls for extreme caution and very little or no weight should be attached to such a statement. After all an unsigned document is worthless. See Section 91 of the Evidence Act. I am firmly of the view that the Courts below were clearly in the wrong to sentence the appellant to death solely on an unsigned retracted confessional statement. If ever the need arose to find some independent evidence, outside Exhibit 1, this is the case, sadly there is no evidence other than Exhibit 1. If the law is strictly applied as it ought to in cases that carry the death penalty, these facts call for caution. The adage that it is better for nine guilty persons to go free than for one innocent person to be

sent to his grave holds very true to this day.”

In the light of the foregoing, I resolve issue No. 3 in favour of the respondent.

Let me now determine issue No. 1 which asks “Whether the learned trial Judge was correct to have held and convicted the appellant on the premise that the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery in the light of the amended charge and evidence adduced before the trial court.“

I have carefully read and considered all the arguments in the respective briefs on this issue.

The argument of learned counsel for the appellant that the holding of the Trial Court that criminal conspiracy was proved is not supported by the facts, that the name of Kingsley Ikechukwu did not feature in the names listed in the confessional statements of all the accused and that the fact that the appellant and Evans Obizue (4th accused) who were guarding the security men held captive outside show that they could not have known what other were doing inside the building, is wrong. The mere fact that the appellant and Evans Obizue were guarding the security men held captive outside and

the other members of the gang were inside the office building, inter alia, support the holding of the trial Court that the offence of conspiracy was proved against the accused persons.

As I had held herein, the appellant’s confessions in Exhibits A and I establish the conspiracy of the appellant with his co-convicts and other persons to carry out the armed robbery of the Bwari Area Council and their commission of the said robbery.

The testimonies of PW3, David Tanko, one of the security men on duty on the night of 7-9-2006 when the robbery took place and who was one of the security men who was held captive by the robbers and whose hands and legs were tied by the appellant and members of his gang corroborate the appellant’s confession in Exhibit A and I. His testimony in examination in chief reads thusly – “PW3: Adult, male, Christian, affirms, speaks English. My name is David Tanko Aja. I live at Bwari. I am a security guard attached to Bwari Area Council. I know the accused persons. On 7th September, 2007, I was on duty at Bwari Area Council with four others. At about 12 to 1:30 a.m. a gang of armed robbers broke into the Area

Council. They followed through the back fence. There was a wire. They broke the fence and they entered the premises. The four of us we shared ourselves I was at the 1st gate, my colleague Sunday James was at the security post. One Civil Defence staff was at the Council Chambers, his name is Audu Isa. The fourth person was inside one of the Council offices. His name is Jibrin Gimba. As we separated ourselves; unknown to us the gang of robbers were inside the premises. When they entered the second security post they met Sunday Jehizhi and they tied him up. They now came to my duty post. As they entered they were saying thief, thief. I was thinking it was my colleague as I got up they were at the door of my security post two of them entered and asked me my handset. They collected my handset, my torch light and they removed my wrist watch. They tied me up. They tied my legs and my hand. They asked me where are the others and I said I don’t know where they are. They loose my legs and my hand and they brought me out to search for other security men. They took me round for 15 minutes before we reached the chambers where they got the Civil Defence officer, Isa Audu.

They brought us to the down stairs myself and Isa. There was light that time and it was raining. So I was able to identify some of them. They took me with Isa Audu to Fadama office they tied us and they sealed our mouth with sellotape. I was able to identify 1st accused and 4th accused with the other one who was killed. They left two of them to keep an eye on us. Unknown to them, the other security that was in the other office, Jibrin Gimba was able to escape and he went and reported to the police. They went to the Council from one office to another, almost all the offices and they destroyed the cabinets etc. Almost 30 minutes to 1 hour, the policemen came to our rescue. The police shot a gun while coming and then as they heard the gunshot they armed robbers ran away. I heard a vehicle at the gate and they drove off with the vehicle. The time they entered I did not see them with anything. When the policemen came in the process of running they left cutlass, iron cutter, sellotape, maxing tape, saw and a lot of electrical equipment. The police discovered items and they untied us. They asked us which road they followed and the police went after them. It was in

the morning we were told that they arrested. The police called on us to go an identify them. On reaching the Police Station I saw the men who collected my handset. We were told to write our statement. I don’t know the items stolen from the Area Council. Only that some staff complained of their money missing.”

The testimony of PW8 a Police officer who arrived the scene of the crime during the robbery operation corroborates the confessions in Exhibits A and I and the testimony of PW3. His testimony reads thusly- “On the 6/9/2006 at about 1:30 hours, I was on night duty vehicle patrol. I was called by the DPO Bwari Division when I got to the office he told me that a robbery is taking place. (His name is CSP, Sabin Rabin) at the Local Government Secretariat. He posted us to where we are going to do pin down. Myself and my team were posted to go behind the Secretariat. The armed robbers were inside the Secretariat operating. The DPO and his team went through the Secretariat main gate. When the armed robbers knew that the police had taken control, they then passed to the barb wire from behind the Secretariat. They followed the road leading to the

bush at the back of the Area Council where I was posted with my team. When we saw them passing we opened five. We got Ikechukwu Eze, 1st accused on the leg, he was hit by a bullet. After that I heard a shouting and when we reached there we only saw blood as there was rainfall. I then called the OPO I told him we got some of the armed robbers on the leg. The OPO met us at that point. We started to trace their foot path until we reached an uncompleted church. On reaching the uncompleted church because of the grasses we could not see their foot path again. The next thing we heard was shooting and the DPO fell down, he was shot on the leg by one of the armed robbers. His riffle fell on the other side. The OPO was shouting after he fell down and he was calling us as the robbers were trying to snatch his riffle. In the process of trying to rescue the OPO and his riffle we shot one of them. We then rushed the OPO to a private hospital. And the armed robber was rushed to Bwari General Hospital. Later on he died at the Bwari Genera! Hospital. The 1st accused and one other were arrested and brought to the station. That is the 1st and 4th accused. The others who were

well armed, they were able to escape. One vehicle Abuja colour and some pieces of clothes and their tools were recovered. In my team, it includes ASP Roland, Cpl. Bare and the driver Abdullahi and Cpl Nuhu Labaran.
1st, 3rd, & 4th Def. counsel: Cross Examination
On 6/9/2006 I was on duty. The DPO called me to take position in the bush about 15 metres to the Secretariat. It was around 1:30 – 2 a.m. I saw the armed robbers crawling. I did not shoot the 1st accused from a distance of 15 metres. I saw the 1st accused with guns crawling. We followed them to an uncompleted church where one of the armed robbers shot the DPO. We were trying to rescue the OPO and his riffle when we shot one of the robbers. I am not aware that the 1st accused is dead. They were moving while bending down not crawling.
Court: As demonstrated by the witness.
PW4: We tried to rescue the OPO and his riffle when we shot one of them and we took him to the hospital. It was in the night and dark I cannot identify or know the kind of gun they were having. But they were shooting. I can’t remember the name of the person who died. The robbers are about eight.

2nd Def. Counsel: Cross Examination
Some other policemen also visited the scene of the crime but our team was the first to get there. No one of the policemen opened fire before the armed robbers came out of the Secretariat. I told the IPO at Bwari what happened at the scene of the crime. They later on called me at the State CID and I explained to them. There was no vehicle that drove out from the back of the Secretariat. My team only recovered the car and the pieces of clothes. I cannot identify all the accused persons that night but for the 1st accused I shot him on the leg and I carried him into the car.”

PW4, the Bwari Divisional Police Officer who led the police team that confronted the robbers at the scene of crime and who was shot in the leg by one of the robbers testified thusly-
“On 7th September, 2006 at about 0130 hours, I received a distress phone that there was a robbery at Bwari Area Council Secretariat. I then called on my patrol team. One led by Roland Nzamani, ASP and the other led by Sgt Ishaku Garba. I directed them to move down to the scene while I mobilized another team and I moved to the scene. Before reaching the

scene, I directed ASP Roland Nzanmi and Sgt. Ishaku to surround the building. While I forced myself to the entrance of the gate and I entered the premises. Immediately I entered I saw the movement of people around. Therefore I fired one gunshot. Then I saw some men climbing the wall. Thereafter I heard some noise inside the security outpost. I found three men tied with sellotape on their mouths individually. I later found that they were the security guards. They were rescued and untied. I then heard another gunshot behind the premises. At that time Sgt. Garba Ishaku called me on my walky talky to inform me that they had shot one of the hoodlums. Thereafter I rushed out of the compound and we combed the areas in order to effect arrest of the hoodlums. Unfortunately that night it was raining heavily. After some time the rain stopped. We continued with the search. A few distance away from the scene. We discovered a fresh cloth of blood on the ground and a fresh foot print. We continue to trace the foot print until we reached an uncompleted church building. Before we could realize I heard a gunshot. The bullet hit my right foot, and I fell down. While I was lying

down, Ikechukwu Eze wanted to rush on me I used the butt of my gun and I hit him. And he fell down and climbed on top of him. At that time I saw two coming towards me. I shouted and called for help from my colleagues. That was when Sgt. Ishaku shoot at them, and they fell down. Then Ikechukwu Eze was arrested with others and I was rushed to the hospital.
Court: The witness pointed at the area on his foot where the bullet entered and from where the bullet came out when he was hot.
PW8: I was taken to Bwari Medical Clinic.
1st, 3rd, & 4th Def. Counsel: Cross Examination
My name is CSP Rabiu Sabin. I am not the one who charged the accused to Court. I don’t know their offences before the Court. I heard that some other police officers from the Command took over the investigation. I know Hanbali Mohammed. I have been in the hospital for more than three Months. I was discharged so I could not stand on my foot until after a year. The crime was committed on 7/9/2006 and the accused persons were brought to Court in March 2007. The investigators visited me at the hospital and I told them that I was shot. It is not my duty to give a medical

report. We did not kill anybody at the scene of the crime. It is about one kilo from the scene of crime to where the two people were shot. I am a witness of truth. I made one gunshot. They ran up to one kilo. It took us about three hours to comb the area. Ikechukwu Eze is the one in the dock.
2nd Def. Counsel: Cross Examination
Sporadic heard a gunshot as it was at night. There was an exchange of gunshot. I told the Court I fired the first gunshot at the scene. I told the Court that one of my men called me to inform me that they shot down one of the hoodlums. It is not true that two gunshots were fired while we were at Bwari Area Council. It was at night it is only Ikechukwu Eze I was able to identify. We recovered cutlasses, door breaking implements and other gadgets. As I entered the offices we found the doors opened and we found the items on the grounds. The accused persons were not there. I know that Bwari Area Council has a works Department. I am aware that security guards use weapons other than guns.”

The testimonies of these witnesses who were also eye witnesses of the robbery corroborate the confessions in exhibits A and I and

corroborate each other on the relevant details. There were no material conflicts in their testimonies on what happened at the scene of crime and the items recovered from the scene.
The appellant’s confession in Exhibits A and I, the testimonies of PW3, PW4 and PW8 and Exhibits L to O establish that the appellant with other persons committed the offences they were charged with in counts 1 and 2. The conviction of the appellant by the Trial Court for the commission of those offences is justified by the evidence before it.
Learned Counsel for the appellant argued that the testimonies of PW4 and PW8 contradict on whether the police fired a gun shot at the robbers before they came out of the secretariat and that the testimonies of PW4 and PW8 conflict on how and who arrested the appellant. I agree with the argument of Learned Counsel for the respondent that there are no material contradictions in the testimonies of PW3, PW4 and PW8 and that the differences in details that exist in their narrative of the events are not material and are mere discrepancies that do not affect the relevant details such as the arrest of the appellant during the robbery

operation by the police, the gun shot of the appellant by the police at that night, the exchange of gun fire between the police and the armed robbers, the gun shot of the leg of the DPO by one of the robbers while pursuing the fleeing robbers, the recovery of matchets and other items the robbers left on the scene of crime while fleeing from there.
In addition to the evidence that the robbers were armed with guns for the operation, the iron cutter (Exhibit L), saw blade (Exhibit M), two cutlasses (Exhibits N1 and N2), two screw drivers (Exhibits O1 and O2) abandoned by the robbers while hurriedly fleeing from the crime scene, which were recovered by the Police from the crime scene corroborate the confessions in Exhibits A and I and the testimonies of PW3, PW4 and PW8 that the robbers were armed during the robbery. The appellant in Exhibit A stated that we used the tools in order to frighten people. The said Exhibits L to O which were admittedly also used to frighten people constitute offensive weapons as defined by S.11(1) of the Robbery and Fire Arms Special Provisions Act which defines offensive weapon “to mean any article (apart from a firearm)

made or adopted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, spear, cutlass machete, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.” See Adekoya v. State (2012) 7 NCC 1. See also Emmanuel Egwaje v. COP (CA/A/116C/2016) in which this Court on 13-12-1019 held that the 2nd accused in the trial leading to this appeal was rightly convicted by the Trial Court for the offences in counts 1 and 2 on the basis of the confessional statement of the 2nd accused, the testimonies of PW3, PW4 and PW5 and Exhibits H to O referred to above.
The evidence of the prosecution in our present case clearly establish that the appellant and other persons were members of an armed robbery gang, that there was robbery of Bwari Area Council Secretariat, that it was carried out with the use of offensive weapons and that the appellant participated in the robbery. The prosecution proved that the appellant committed the offences in counts 1 and 2. As held by the Supreme Court in Ogudo v. The State (supra)

“To succeed in the offence of armed robbery the prosecution must establish that: (a) There was a robbery; (b) It was carried out with the use of offensive weapons; and (c) The accused person participated in the robbery. All of the above must be proved beyond reasonable doubt before a conviction can be sustained. Proof beyond reasonable doubt entails the prosecution producing enough evidence to justify the charge.”
In the light of the foregoing, I resolve issue No. 1 in favour of the respondent.

Let me now consider issue No. 2 which asks “Whether learned trial Judge as a Court of first instance was correct to have suo motu struck out the four additional counts charge as undesirable in disregard to the nature of evidence led by the prosecution and admitted Exhibits L, M, NI & 2, O1 & 2 in evidence to convict the appellant for armed robbery.”

I have read and considered all the arguments in the respective briefs on this issue.

One of the arguments of Learned Counsel for the appellant under this issue is that after striking out the four counts added by the amendment of the charge, the testimony of PW2 after the

said amendment following his recall and Exhibits L to O tendered through him during his said testimony, were allowed to stand and the Trial Court relied on the exhibits to convict the appellant. I understand this argument to say that after striking out the four additional counts, the Trial Court should have equally struck out the said PW2’s further testimony and Exhibits L to O that were admitted following the amendment of the charge. Learned Counsel for the respondent did not answer this argument.
Learned Counsel for the appellant did not proffer any legal reasons for his argument. There is no law that requires that evidence led after the introduction of additional counts of offence following an amendment of a charge, must be struck out or discountenanced and not relied on if the additional counts are later struck out by the Court. In determining the case against the appellant on the existing counts, the trial Court has a duty to consider every evidence before it irrespective of the stage of the proceedings it was adduced. Evidence adduced after the introduction of additional counts that the Court has struck out, can be relied on by the Court in

determining the case pending against the appellant if they are relevant to that determination. The said further testimony of PW2 and Exhibits L to O introduced through him also concern the commission of the offences in Counts 1 and 2 of the charge and the appellant had the opportunity to cross examine and did cross examine the PW2 on his additional evidence and the Exhibits L to O that were said to have been found at the crime scene as the tools the fleeing robbers left at the scene of crime. The appellant was given the opportunity to call or recall any witness. He said he was not calling or recalling any witness.
The appellant has not shown what injustice he has suffered from the Court’s reliance on legally admissible evidence that is obviously relevant to the trial of counts 1 and 2.

The argument of Learned Counsel for the appellant that the trial Court was wrong to have suo motu struck out the four additional counts that were introduced by an amendment for being undesirable serves no useful purpose and is therefore frivolous. The parties had addressed the Court concerning the success or failure of all the counts of offences. The trial Court

in its judgment considered all the counts and found the additional four counts unnecessary and undesirable and struck them out.

In the light of the foregoing, I resolve issue No. 2 in favour of the respondent.
On the whole, this appeal fails as it lacks merit. It is accordingly dismissed.

STEPHEN JONAH ADAH, J.C.A.: I read in draft a copy of the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA.

My learned brother has adequately addressed the issues raised in this appeal. I am in agreement with the reasoning and the conclusion which I adopt as mine.

I too, do hold that this appeal is lacking in merit. It is hereby dismissed.

PETER OLABISI IGE, J.C.A.: I agree.

Appearances:

M.O. Onyilokwu, Esq. For Appellant(s)

Simon Lough ACP For Respondent(s)