FELIX EDODI OKA v. THE STATE (2014)

FELIX EDODI OKA v. THE STATE

(2014)LCN/7215(CA)

In The Court of Appeal of Nigeria

On Thursday, the 22nd day of May, 2014

CA/C/226C/2012

JUSTICES

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

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

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

Between

FELIX EDODI OKA Appellant(s)

AND

THE STATE Respondent(s)

RATIO

GUIDELINES A TRIAL JUDGE MUST USE WHERE A CONFESSIONAL STATEMENT IS RETRACTED

Rhodes-Vivour in the above case also stated what guidelines a trial Judge must use where a confessional statement is retracted.
“…A court can convict on the retracted confessional statement of an accused person but before this is properly done the trial judge should evaluate the confession and testimony of the 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 charge?
(e) Is the confession possible?
(f) Is the confession consistent with other facts which have been ascertained and have been proved?…
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…” PER NDUKWE-ANYANWU, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO TEST THE TRUTH OF A CONFESSIONAL STATEMENT

There is a duty on the court to test the truth of a so called confessional statement by examining it in the light of the other credible evidence before the court.
Solola v State (2005) 11 NWLR Pt 937 Pg 460, Nwaeze vs State (1996) 2 NWLR Pt 428 Pg 1 Alcumoju v The State (2000) 4 SC Pg 64. PER NDUKWE-ANYANWU, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

The burden of proof in a criminal case is on the prosecution to prove the guilt of the accused beyond reasonable doubt. If the accused gives an account which is consistent with his innocence and could be true, and is not proved to be untrue, he is entitled to be acquitted. This is because in such circumstances there must be a doubt with regard to his guilt. Christopher Okolo V. C.O.P. (1977) NWLR Pg 1, Okafor v State (2006) 4 NWLR Pt 969 Pg 1. PER NDUKWE-ANYANWU, J.C.A.

WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED BY HIS CONFESSIONAL STATEMENT

It is trite law that an accused can be convicted by his confessional statement. Although an accused person can be convicted solely on his confessional statement, it is however desirable to have some evidence outside the confession which would make it probable that the confession was true. Dibie V State (2007) 9 NWLR Pt 1038 Pg 30 Nwaebonyi V State (1994) 5 NWLR Pt 343 Pg 130. PER NDUKWE-ANYANWU, J.C.A.

THE DUTY OF THE PROSECUTION IN PROVING ITS CASE BY EVIDENCE

It is long settled that it is the duty of the prosecution to prove its case by evidence of such a quality and quantity as to leave the court in no reasonable doubt as to the guilt of the accused person. A doubt in the mind of a court presupposes that the case against the accused person has not been proved beyond reasonable doubt. Therefore, if on the whole of the evidence of both the prosecution and the defence, the Court is left in a state of doubt on any aspect, the prosecution would have failed to discharge the onus of proof which the law lays upon it; and, the accused person is entitled to an acquittal.
See: Alonge v. Inspector-General of Police (1959) 4 FSC 203; The State v. Musa Danjuma (1997) 5 SCNJ 126 at 136 – 137, 156; Udosen vs. State (2007) 1 – 2 S.C. 27; and, Ukwunnenyi vs. State (1989) 7 S.C. (PT. 1) 64. PER OTISI, J.C.A.

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Cross River State sitting in Akamkpa delivered on the 20th March, 2009. The Appellant was convicted and sentenced to life imprisonment for attempted armed robbery.

In the morning of 13 January, 2003, PW1 – John Udo Akpan, a commercial motor cyclist who plies his trade within the Akamkpa district was going about his usual business when he was flagged down by the Appellant, Felix Edodi Oka.
The Appellant told PW1 to convey him to Nsan village. On arrival at Nsan, the Appellant allegedly told PW1 to further convey him to Inwang Ekanem village. On getting to Inwang Ekanem, the Appellant told PW1 to wait for him as he (Appellant) wanted to visit someone.
Subsequently, the Appellant inquired from PW1 how much it would cost him to charter PW1’s bike. PW1 demanded for N1,000.00 but the Appellant offered to pay N800.00.
The Appellant told PW1 to convey him to Dukwe. In the course of their journey to Dukwe somewhere along Housing Road, Appellant brought out a machete and used it to inflict serious injuries on PW1’s left shoulder, left palm and his fingers. PW1 began to scream as a result of the excruciating pains he felt.
PW1’s screams caught the attention of a woman farming in the bush nearby. As she approached the scene of the incident, the appellant fled. The scream also attracted other persons who came out to render help by carrying PW1 to the hospital.
It is alleged that the Appellant inflicted the injuries on PW1 with the aim of robbing him of his motor cycle.
The Appellant was subsequently arraigned on a charge by information for the offence of armed robbery contrary to Sections 1(2)(a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11, Laws of the Federation of Nigeria, 2004 (“L.F.N.”) (“the RFSP Act, 2004”).
The Appellant’s response was to completely deny the charge. He stated that he had a quarrel with PW1 over the transport fare which eventually culminated in a fight. He said PW1 used a screw driver to stab him on his back. In turn, he picked up an iron from the ground and used it to inflict injury to PW1’s hand. See pages 42 – 45 of the Record.
Trial commenced in the Akamkpa Judicial Division of the Cross Rivers State High Court on 23 on 30 June, 2006 (see Page 28 of the Record) and ended on 23 January, 2009 (see page 45 of the Record). In proof of its case, the prosecution called two witnesses and tendered 5 Exhibits (A-E) while the Appellant testified for himself and called no additional witness.
At the conclusion of the trial, the parties addressed the court. The address filed on behalf of the Appellant is at pages 47 – 56 of the Record while that filed by the Respondent is at pages 57 – 59 of the Record. The key point of the respondent’s address is its concession that it failed to prove beyond reasonable doubt, the offence charged, which is, armed robbery. It urged the court below to convict the Appellant of the lesser offence of attempted armed robbery.
In a judgment delivered on 20 March, 2009 the learned trial Judge convicted the Appellant of the offence of attempted armed robbery and sentenced him to imprisonment for life by virtue of the provisions of Section 2 of the RFSP Act, 2004. See Pages 60-72 of the Record.
The Appellant is dissatisfied with the judgment of the lower court and has appealed to this Honourable Court via a Notice of Appeal filed on 18th May, 2009 (see pages 73 – 76 of the Record) containing four grounds of appeal.

The Appellant filed his brief on 6th May, 2013 and articulated a sole issue. It reads:
Given the evidence adduced at the trial, was the learned trial judge right to have convicted the Appellant of the offence of attempted armed robbery having found that the prosecution has failed to prove beyond reasonable doubt the offence of armed robbery for which the Appellant was charged.

The Respondent filed its Respondent’s brief on 11th of February, 2014 but deemed properly filed and served on 26th of March, 2014. The counsel to the Respondent also adopted the sole issue articulated by the Appellant.

Learned counsel to the appellant submitted that the learned trial Judge found as a fact that the prosecution did not prove the charge of armed robbery and found the Appellant guilty of attempted robbery. The learned trial Judge held thus:
“I agree that the prosecution has not proved the principal offence of armed robbery or robbery with violence but they have successfully proved another offence which is attempted armed robbery under Section 2 of the Robbery and Firearms Special Provisions Act to wit! (sic).
“2(1) Any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault, uses or threatens to use actual violence to any person or any property in order to obtain the thing intended to be stolen shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years.
If
(a) Any offender mentioned in sub section (d) of the section is armed with any firearms or offensive weapon or is in company with any person so armed; or
(b) At or immediately before or immediately after the time of the assault the said offender wounds or uses any other personal violence to any person.
The offender shall upon conviction under this Act be sentenced to imprisonment for life”.
It has been held in Ibrahim v. State (1995) 3 NWLR (Pt. 381) 35 at 46; in order therefore to constitute an attempt or assault with intent (sic) to rob, it must appear that the circumstances were such that the crime could have been fully completed, to wit, robbery the attempt been successful”.
In my view, there were clear cut acts of the accused to rob the victim John Udo Akpan and I so find.
By Section 163 of the Criminal Procedure Law Cap 17, Law of Cross River State and Oladipupo v. State (supra), the accused though charge with armed robbery, the evidence established attempted armed robbery and can therefore be convicted or having attempted to commit that offence although the attempt is not separately charged under Section 2(2)(a) of the Robbery and Firearms (Special Provisions) Act as amended. I so find.
The sentence is mandatory. I therefore find the accused person guilty of attempted armed robbery and convict him. He is sentenced to the mandatory life imprisonment” (Emphasis supplied)

Counsel argued that even though not separately charged, the offence of attempted armed robbery is a criminal offence and must also be proved beyond reasonable doubt by the prosecution. See Aruma V. State (1990) 6 NWLR Pt 153 Pg 125; Hassan V. State (2001) 6 NWLR Pt 709 Pg 246. Counsel also noted that an attempt to commit an offence is in its own right a substantive offence requiring an “actus reus” and mens rea”. See the unreported judgment of the Court of Appeal Ibadan Division delivered on 30th of March, 2011 in Appeal No CA/I/251/06 where Alagoa Justice Court of Appeal (as he then was) held:
“While I agree with that definition it should always be borne in mind that an attempt to commit an offence is in its own right a substantive offence requiring an “actus reus’ and a “mens rea’. An attempt to commit an offence while falling short of the culmination of the final act is nevertheless criminal once proved that the accused had a guilty mind. There must be an overt act in manifestation of the criminal intent”.
See also Alhaji Yakubu Sanni vs The State (1993) 4 NWLR Pt 285 Pg 99.

Counsel submitted that the finding of the trial Judge was perverse as the evidence cannot sustain a conviction from attempted armed robbery. Counsel argued that there was a disagreement between the Appellant and PW1 the complainant about the transport fare. The PW1 did not initially report a case of armed robbery but a case of wounding. The Appellant also corroborated the evidence of PW1 that there was a disagreement about fare between them was not challenged during cross-examination.

When he was carrying me back he said the fuel is finished in the tank, I gave him N10 and I will use the remaining balance of N10, to climb another machine. He refused the N10 and insisted on N20 payment. He insisted on the N10, other cyclists came and (sic) there and they asked what happened. I explained to them, and I told them that the cyclist refused the N10. That was when I left him to climb another bike. He used screw driver on me and stabbed me on my back. I then jumped down from the bike I was to climb. Two of us then started dragging and it resulted to our fighting. When I turned round I also saw something on the ground. I used a piece of iron from a Japanese (sic) workshop and injured him on his hand. He left the machine and went away. I also pick a bike and went to our broken down vehicle… When I took the cyclist, I was not carrying anything except the money for my transport. I was not with a matchet on that day. The sound (sic: wound) he had is the one that resulted out of the fight” (Emphasis supplied).
See Agbo V State (2006) 6 NWLR Pt 977 Pg 545, Okosi & Anor Vs State (1989) 1 NWLR Pt 100 Pg 642 Gaji V Paye (2003) 8 NWLR Pt 823 Pg. 583.

Counsel argues also that the Appellant’s evidence tallies with his extra judicial statements. The police at Akamkpa investigated a case of wounding as per PW2. The learned trial Judge had a different opinion when he held:
“It is also contended that the police received from the complainant PW1 a case of wounding. It is settled that the constitutional powers to commence prosecution lie squarely in the office of the Attorney General based on the facts before him. If reprint (sic) of wounding was made to the police and the Attorney General prosecutes for a different offence – so be it”.
Counsel argued that the initial report of the PW1 was of wounding immediately after the incident. This implied that the wounds came from a fight with the Appellant.

Counsel also submitted that the PW1 and the Appellant exchanged pleasantries and the appellant gave out a lot of his personal details. This counsel argued runs contrary to what a normal criminal with mens rea would do. The appellant gave details of himself that led the police to him without any difficulties. This means that the Appellant had no intention to commit any crime. See John Ido Vs State (supra).

Counsel submitted that the PW1 said he did not know whether the Appellant was carrying a matchet on his back. Counsel opined that considering the size of the matchet Exh D, it would be difficult to carry the matchet Ex D without it being seen. Counsel urged the court to hold that the Appellant was not carrying a matchet Exh D.

Counsel submitted that the trial Judge placed a lot of reliance on the confessional statements of the Appellant Exh A & C and held
“I agree that there is no independent witness account but as properly submitted by Mr. Abi, there is a confession. A 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 eyewitness because the evidence, bearing the daily axion (sic), comes out from the mouth of the horse, who is the accused person. What better evidence then? 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 Basil Akpan Vs. State (2008) 34 NSCQR (Pt. 11) 1249. I can’t agree more with his Lordship Hon, Justice Niki (sic) Tobi, JSC on this point. That is essentially the product of Exhibits, A and C in this matter, part of which I reproduced earlier in this judgment”.

Counsel called the court’s attention to the so called confessional statement with so many dates on it. Counsel wonders when this Exh C was made, and the integrity of this Exh. PW2 tried to explain the discrepancy thus:
“The attach of (sic) exhibit A was made on 28th January, 2003. The accused person signed after completion on January, 2003. When we went from (sic) attestation the officer made a mistake and stated “27/1/02″ to be the date he attested hut when he signed them he made it 29/1/03”.

The Appellant in his own evidence said
“I was taken to Akamkpa police station. The statement I made they did not accept with (sic) me. I made my one statement. I did not make two statements. They did not accept the other statement – that statement was not tendered. I did not make another statement”.

This evidence was not denied by PW2 and should be accepted as true Agbo v State (supra) see Ogudo v State (2011) 18 NWLR Pt. 1278 Pg. 1 where Rhodes-Vivour held
“In this case, the appellant made a state at Birnin Gwari Police Station (the first station he was taken to after he was arrested). The prosecution did not tender the statement at trial. To deprive the appellant standing trial for an offence which carries the death penalty the use of his statement made to the police to my mind renders the trial unfair. (Emphasis supplied).

Counsel urged the court to hold that the Appellant was denied fair hearing. Rhodes-Vivour in the above case also stated what guidelines a trial Judge must use where a confessional statement is retracted.
“…A court can convict on the retracted confessional statement of an accused person but before this is properly done the trial judge should evaluate the confession and testimony of the 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 charge?
(e) Is the confession possible?
(f) Is the confession consistent with other facts which have been ascertained and have been proved?…
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…”

Counsel conceded that though a trial court can convict on a retracted confessional statement, but there is no affirmative and independent corroboration of Exh A and Exh C. Counsel regretted that counsel that defended the Appellant did not object to the tendering of Exh A & C, see: Agbo v State (supra). However the Appellant retracted these Exh A & C during his examination in chief. The Appellant also gave a graphic account of how he was tortured by the police in Akamkpa and CID Calabar into signing both Exh A & C.
“It was after rejecting the first statement I made at Akamkpa, up to 3 to 4 days when they did not accompanying (sic) me to sign it. They brought me out of the cell and handcuffed me hands and legs. The IPO sat on the table, with 3 other policemen beating me that I must make a statement, while I was still telling them of the statement I made, they did not accept with me again and did not want to hear me again. The IPO was just there writing the statement on his own. After he finished writing and after beating me they now loosened the handcuffed in my hand and they asked to come and sign. Here they did not show me the statement and did not read it for me and they asked me to come and sign. I told them I do not have signature. The IPO asked me to write my name. I wrote my name. I was then taken back to the cell. I was transferred from Akamkpa to State CID, Calabar I was there.
After two days they brought me out for statement. They brought out matchets (sic) and metals from their cupboards. The IPO Iwera said he will have to write on me first. The matchet (sic) and fan belt were for bearing (sic). He said he wants to beat me, to work on me. After he finished beating I was under the table. He said armed robber is a goat. I was under the table while he was writing on top of the table. After he finished writing the statement he brought me out. They brought other five suspects from the cell. One of them was shot dead while others had the police started writing on them during which time he had returned to the cell. After he finished with the other suspects, he brought me back. He asked me to say my past (sic) prayer, and he took me to State CID backyard where cashew tree is standing. He asked me if I do not want to confess. He took me back to the office and brought out the statement he wrote. He told me to come and sign the statement. I told him I don’t have signature. He then asked me write my name.

Counsel submitted that the Appellant did not object to Exh A & C being tendered but retracted these statement during his defence. Counsel stressed that the step in Eke V State (2011) 3 NWLR Pt 1235 Pg 589 held that “such a procedural step must be taken at the point when the objection is. raised” Adekanbi V AG of Western Nigeria (1966) All NLR Pg 47. Counsel stressed that at any point the confessional statement was retracted the trial Judge ought to conduct a ‘trial without trial’ Nwangbomu V State (1994) 2 NWLR Pt 327 Pg. 380 where Wali JSC held.
“It is trite law that where the admissibility of a statement is challenged on the ground that it was not made voluntarily, it is incumbent on the judge to call upon the prosecution to establish that it was voluntarily made by conducting a trial-within- trial”.

Since the learned trial Judge failed to do so, Exh A & C are not therefore legally admissible evidence upon which the lower Court could act, Eke V State (supra) COP V Ude (2011) 12 NWLR Pt 1260 Pg 189.

Counsel submitted finally that all defences raised by an accused person no matter how slight, weak on stupid or fanciful must be considered by the court. Audu V State (2003) 7 NWLR Pt 820 Pg 516, Williams V IGP (1965) NWLR Pg 470, Attah vs State (2010) 10 NWLR Pt 1201 Pg 190 Nwazoke v State (1988) 1 NWLR Pt. 72 Pg. 529, Ahamba V State (1992) 5 NWLR Pt 242 Pg 450, Ogunholu Vs State (1996) 2 NWLR Pt 432 Pg 503, Oforlette V State (2000) 12 NWLR Pt. 681 Pg 415. The failure of the learned trial Judge to conduct a trial within trial vitiates the entire proceedings. Eke vs State (supra), Emeka v State (2001) 14 NWLR Pt. 734 Pg. 606, Obidiozo vs State (1987) 4 NWLR Pt 67 Pg 48.

Counsel urged the court to resolve the lone issue in favour of the Appellant and allow this appeal.

In reply, the learned counsel to the respondent submitted that the learned trial Judge was right to have convicted the Appellant of the offence of attempted armed robbery instead of armed robbery which the Appellant was charged. A person who is charged with an offence but the evidence only establishes an attempt to commit that offence; such a person will be convicted of having attempted to commit that offence even though the attempt is not separately charged. See S. 163 Criminal Procedure Law, Cap 17 Laws of Cross River State 2004.

Counsel stated that the intention of the Appellant was to rob the PW1 of his motorcycle. The quick intervention of people, who heard the screams of the PW1 came to the scene, rescued the PW1 whilst the Appellant escaped with the matchet. See Ibrahim vs State (1995) 3 NWLR Pt 381 Pg 35. Counsel submitted that “in order therefore to constitute an attempt or assault with intent to rob, it must appear that the circumstances were such that the crime could have been fully completed, to wit, robbery the attempt being successful”. Counsel submitted that the Appellant is not entitled to an acquittal as contended in Appellant’s brief. See State Vs. Oladipupo (1993) 6 NWLR Pt 298 at page 146.

Counsel urged the court to discountenance the cases cited by the Appellant’s counsel, Alhaji Yakubu Sanni Vs. The State (1993) 4 NWLR Pt 286 page 99 and John Ido Vs. The State. These case have passed the test set by law for attempted armed robbery and constitutes a separate and distinct offence.

Counsel further argued that even though the PW1 had reported a case of wounding and the Attorney General charged for armed robbery based on the facts of the case. The trial Judge so uphold this in his words
“…report of wounding was made and the Attorney General prosecuted for a different offence – so be it”

Counsel submits that there was no coercion on duress on the Appellant in making his statements which were admitted and needed no further proof. The Appellant also had with him a matchet which the PW1 saw from his rear-view mirror. Appellant had the matchet Exh D.

Counsel submits that the Appellant made confessional statements Exh A & C which were admitted in evidence without objection. The trial Judge was therefore right in placing reliance on Exh A & C. See Yahaya Ubierho vs State (2005) IWCC Pg 146, Idowu vs State (2000) 12 NWLR Pt 680 Pg 48 Dangote vs Civil Service Commission Plateau State (2001) FWLR Pt. 1639 Pg 1699. The law is clear that where there is an admission of guilt, the question of establishing the legal burden of proof no longer arises and no burden of proof rests on the accused, such burden having been discharged see also Basil Akpan vs State (2008) 34 NSCQR Pt 11 Pg 1249.

It is of no moment that the Appellant retracted his confession 5 years later. Counsel urged the court to hold that it was an afterthought on the point of the Appellant. The Appellant did not object to the tendering of Exh A & C and therefore a trial within trial could not be conducted. Counsel argued that the test in Ogudo v State (supra) has been complied with.

Counsel submitted that the guilt of the appellant can be proved by his confessional statement Asekoya vs State (2013) All FWLR Pt 662 Pg. 1632. The different dates on Exh. C have been explained by PW2.

Counsel submitted that the Respondent is not withholding any evidence. All the statements of the appellant were tendered in evidence were not withheld. The Appellant did not provide any proof that there was a statement that was not tendered in court Ogudu v State (supra). The tendering of Exh. D the matchet goes to show that the Appellant was armed and it corroborates the contents of Exh. A & C see Chiokwe v State (supra).

Counsel finally urged the court to hold that the Appellant was not denied fair hearing by denying the Appellant the use of a statement purportedly made in Akamkpa Police Station. Counsel urged the court to resolve this sole issue in favour of the Respondent.

The Appellant who was charged with armed robbery was convicted of a lesser offence of attempted armed robbery. The learned trial Judge held that the Appellant did not succeed in taking away the motorcycle, the subject matter of the robbery both the Appellant and PW1 – the complainant agreed that they had a misunderstanding as regards the amount the Appellant was supposed to pay as fee. The Appellant in his evidence in chief said he hurried the PW1 to take him to several places.

Both were having a conversation and the Appellant gave all his particulars down to his brothers. Both seem to have enjoyed each other’s company until tracers ensued.

The Appellant said it was when he refused to give PW1 money to fuel his motorcycle. He claimed he had only N10,000 left to take another bike. The PW1 said that the appellant said he was going to take his bike from PW1, PW1 also said that it was when he brought out a matchet that he jumped down from the bike.

It is difficult to believe that the Appellant would give all the details of his life to a total stranger he wants to rob. They were both struggling on the ground when the injuries were inflicted on the PW1. During Appellant’s testimony he showed where the PW1 stabbed him with a screwdriver. This evidence was not challenged by the PW1 under cross-examination.

What it means that both Appellant and PW1 sustained various degrees of injuries probably from the fight that ensued.

The prosecution failed to prove that the appellant attacked the PW1 just to rob him of his motorcycle. What I can gather from the testimonies of the Appellant and the PW1 was that there was a scuffle. Both of them gave…evidence as to the reason for the scuffle.

The PW1 in his words did not see or know that the Appellant was carrying a matchet. The size of Exh. D would it be possible not to see it with the Appellant. None of the PWs could lead evidence on how this matchet Exh. D was recovered during investigation. The appellant said he inflicted the injuries on PW1 with a piece of metal he picked in a mechanic workshop.

There was no medical report to show what the wounds inflicted was consistent with matchet cuts.

It is important to note that, the PW1 reported a case of wounding to the Akamkpa Police Station. A report of wounding would have been the most serving issue the PW1 thought of the incident that happened on that date. I would want to believe that if infact, the Appellant intended to steal his motorcycle, that would have been upper most in his mind. PW1 would have said that in the struggle to steal my motorcycle I resisted and had these wounds.

Reporting a case of wounding pre-supposes that it was the most serious thing that happened. This report was made soon after the incident even before he was rushed to the hospital.

If a man is attacked by an armed robber and he makes a report to the police. He cannot make a report of wounding. He would have been traumatized enough to remember that he was attacked by an armed robber. Not that he was wounded. The story of an armed attack was an afterthought. It may be true but the PW1 has introduced an element of doubt to the whole incident.

The Appellant in his evidence in chief stated that he made another statement in Akamkpa which was not tendered in evidence. This piece of evidence was never denied by the prosecution. See Ogudo v State (supra).
“The Appellant said he made a statement at Birnin Gwari Police Station. The same was not tendered during his trial. The prosecution has a duty to tender any statement made by an accused person during the investigation of the offence with which he was charged whether or not it is in his favour. See Majema v. The State (1967) NMLR 56. This must be so in other to avoid the invocation of the provision of Section 149(1)(d) of the Evidence Act against the prosecution which failed to tender the vital statement.

See also the holding of the court.
“In this case, the appellant made a statement at Birnin Gwari Police Station (the first station he was taken to after he was arrested). The prosecution did not tender the statement at trial. To deprive the appellant standing trial for an offence which carries the death penalty the use of his statement made to the police to my mind renders the trial unfair. (Emphasis supplied).

The Appellant was not given an opportunity to use his statement made in Akamkpa. The statement Exh. A made on 13/01/03 by the Appellant cannot be described as a confessional statement. The last line of it stated “I did not wanted (sic) stealing the machine and I did not pay the cyclist man his money, that is wrong statement”.

The so called confessional statements of the Appellant are not consistent with each other. In one on 13/01/03 the Appellant stated that he did not want to steal the motorcycle. In the statement of 18/01/03, the Appellant himself stated “I have never driven a machine before”. How does the Appellant intend to move the motorcycle if he succeeded in stealing it. Moreover there was no independent witness to corroborate the evidence of PW1.

In the present case, the Appellant retracted his statements during his exam in chief and a trial within trial was therefore not conducted. The Appellant in his evidence narrated how he was brutalized in the police station before appending his signature to the statement purported to be made by him.

Exh A & C cannot be said to be confessional statements. Both, like I said earlier are contradictory of each other. Moreso, his evidence in court is nowhere in tandem with his extra judicial statement. The conflict in the so called confessional statements of the accused /Appellant and his evidence in court is at variance. This should put the trial Judge on enquiry. There is a duty on the court to test the truth of a so called confessional statement by examining it in the light of the other credible evidence before the court.
Solola v State (2005) 11 NWLR Pt 937 Pg 460, Nwaeze vs State (1996) 2 NWLR Pt 428 Pg 1 Alcumoju v The State (2000) 4 SC Pg 64.

There is no credible evidence before the court to corroborate the evidence of this Appellant to verify his own evidence. There was no independent evidence to verify the evidence of the Appellant and the PW1 to get at the truth.
Where there is doubt as to what the truth is in a criminal trial, it must be resolved in favour of the Appeal.
The burden of proof in a criminal case is on the prosecution to prove the guilt of the accused beyond reasonable doubt. If the accused gives an account which is consistent with his innocence and could be true, and is not proved to be untrue, he is entitled to be acquitted. This is because in such circumstances there must be a doubt with regard to his guilt. Christopher Okolo V. C.O.P. (1977) NWLR Pg 1, Okafor v State (2006) 4 NWLR Pt 969 Pg 1.

The consequences of presumption of innocence in favour of an accused person is that the burden placed on the prosecution to prove the guilt of the accused beyond reasonable doubt must be satisfied. If not, a slightest doubt raised by the accused should lead the court to resolve the doubt in favour of the accused. Ifejirika vs State (1999) 3 NWLR Pt 593 Pg 59.

It is doubtful whether the fight between the Appellant and the PW1 was orchestrated by the argument about unpaid fare. On the attempt by the Appellant to rob the PW1 of his motorcycle. This doubt must be resolved in favour of the Appellant.

This sole issue is resolved in favour of the appellant. This appeal succeeds. It is allowed, decision reached by the trial judge is upturned I set aside the conviction and sentencing of the Appellant. The Appellant is discharged and acquitted.

CHIMA CENTUS NWEZE, J.C.A.: My noble Lord, Uzo I. Ndukwe-Anyanwu, JCA, obliged me with the draft of the leading judgment just delivered now. I am persuaded by the reasoning and conclusion. I abide by the consequential orders in the said leading judgment.

ONYEKACHI A. OTISI, J.C.A.: I had the privilege of reading, in advance, the lead Judgment of my learned Brother, Ndukwe-Anyanwu, JCA allowing this appeal. The issues raised herein have been completely addressed by my learned brother; and, I am in agreement with his reasoning and conclusion.

I agree that the Appellant in the circumstance of this case is entitled to be given the benefit of the doubt.

I therefore also allow this appeal and set aside the conviction and sentence of the Appellant. The Appellant is discharged and acquitted.

Appearances

Godwin Omoaka Esq.For Appellant

AND

B. U. Bassey Esq., Director Public Prosecution Min. of Justice Cross River StateFor Respondent