FRIDAY UJEBE v. THE STATE
(2019)LCN/12879(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of March, 2019
CA/AK/105C/2013
RATIO
EVIDENCE: RETRACTION OF A CONFESSIONAL STATEMENT
“The confession of guilt if proved to be satisfactorily made, free and voluntary may be a basis for conviction, its retraction, notwithstanding… In Egboghonome V. The State (1993) 7 NWLR (Pt. 306) 383 and Nwachukwu V. The State (2007) 17 NWLR (Pt. 1062) 31 at 69, the apex Court held that a mere retraction of a confessional statement by the accused, will not make it inadmissible. It is only a question of weight to attach to same. See Abdullahi V. The State (2013) 11 NWLR (Pt. 1366) 435, Nwachukwu V. The State (2007) 17 NWLR (Pt. 1062) 31 at 69.” PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
FRIDAY UJEBE – Appellant(s)
AND
THE STATE – Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Ondo State High Court of Justice sitting at Akure in Charge No. AK/14C/2011 whereat the Appellant/Accused was found guilty of Armed Robbery and Murder and sentenced accordingly.
STATEMENT OF FACTS
The Appellant was arraigned on a two-count charge of Armed Robbery contrary to and punishable under Section 1 (2) of the Robbery and Firearms (Special Provisions) Act Cap. R11, Laws of the Federation of Nigeria (LFN), 2004 and Murder, contrary to Section 316 and punishable under Section 319 of the Criminal Code Law, Cap. 30 Vol. II Laws of Ondo State, 1978.
Briefly, the facts of the case as related by the prosecution (now Respondent) is that on the 6th day of March, 2011 at about 8pm at Italurowo in Ondo, the Appellant while armed with two cutlasses and a cut to size barrel gun robbed one Omotola Taiwo and Ambrose Taiwo of the sum of N180, 000.00 (One Hundred and Eighty Thousand Naira), two handsets, jewelries and other valuables. That, with a cutlass, the Appellant beat Ambrose Taiwo till he started foaming in the mouth after which he eventually died. On 10th March, 2011, the Appellant was apprehended by people in the community on the next street with a cut to size barrel gun, two live cartridges, a cutlass, three scissors, two torch lights, two Nokia handsets (which belonged to the victims of the crime), a net mask and the sum of N220. The Appellant made two extra-judicial statements to the police wherein he confessed to the charge brought against him. See Pages 19 to 42 of the Record.
The Prosecution called four witnesses while the Accused person (now Appellant) gave evidence in his own defence and did not call any other witness. At the trial, the following Exhibits we’re tendered by the Prosecution:
1) Exhibit P1 – Extra-judicial Statement of the Appellant at SARS, Akure dated 10/3/2011.
2) Exhibit P2 – Cutlass
3) Exhibit P3 – Black Nokia Handset
4) Exhibit P4 – Red and Black Nokia Handset
5) Exhibits P5-5A – 2 Live Cartridges
6) Exhibit P6 – Cut to size barrel gun
7) Exhibit P7 – Slim chrome torchlight
8) Exhibit P7 A – Black and chrome torchlight
9) Exhibit P8 – Medical Report
10) Exhibit P9 – Extra-judicial Statement of the Appellant at Bolorunduro Police station, Ondo dated 10/3/2011.
11) Exhibit PI0-PI2 – 3 pairs of black scissors
PW1 was Omotola Taiwo the wife of the deceased Ambrose Taiwo, who gave an eye witness account of the incident that occurred on the 6th day of March, 2011 at their residence at Holy Trinity Grammar School Area, Italurowo, Ondo. According PW1 at about 9.30 pm, having observed that there was no light on in the house and that the generator was still working, the deceased in company of his eldest child went out of the house to check the generator. PW1 testified that she heard her husband saying ‘sorry sir’ ‘sorry sir’ and went out to check on him. She stated that she saw the Appellant as he held the deceased on the neck while he kept on saying ‘sorry sir’ and led the deceased back to the house. She stated that the Appellant was armed with two cutlasses – a big one and a small one and that he also carried a gun. She stated that the Appellant used torch light to search the house and used the cutlass to beat the deceased till he started foaming from the mouth.
PW1 stated that when she saw her husband’s condition, she raised alarm by calling on neighbours for help and that was when the Appellant escaped. She stated that the deceased died by the time they got him to the State Specialist Hospital, Ondo. PW1 stated that the Appellant collected her handset, the handset of her husband, jewelries and money. According to PW1, on the third day after her husband (the deceased) was buried, the Appellant was arrested on the next street and both her handset and that of her husband were recovered from him. Under cross-examination, PW1 stated that it was not completely dark as the windows of the house were not locked to reflect the moonlight when she saw the Appellant hold the neck of the deceased. Also, the Appellant held a torch light which he shined around but did not direct it at her face. PW1 said she gave a description of the Appellant before he was arrested. PW1 further testified that she faced the Appellant during the incident and that she was the one who gave him their belongings. She stated that the Appellant told her husband and her children to lie down on the floor. She stated that there was no distance between her and the Appellant.
PW1 stated that the Appellant asked her husband for hot drink but her husband was unable to talk. She stated that she observed that her husband was foaming from the mouth and she ran out to shouting ‘thief’ ‘thief’ when the Appellant escaped. PW1 stated that the incident was reported to the Police that night. See pages 19 to 22 of the Record.
PW2 is Michael Isichel of the Special Anti-Robbery Section (SARS) Ondo State Command Akure. According him, a case of armed robbery was transferred to his section on 10th March, 2011 from Bolorunduro Divisional Headquarters. Ondo and that his team was detailed to investigate the matter. He stated that on that same day, the DPO of Bolorunduro called the Officer-In-Charge of his Section that the Appellant had been arrested at Holy Trinity Area, Italurowo and that the following items were recovered from him: a cut to size barrel gun, two Nokia Handsets, three cartridges, a cutlass, two pairs of scissors, two torch lights and a net. PW2 stated that he recorded the voluntary statement of the Appellant after the cautionary words. He stated that in the said statement, the Appellant confessed that he went to the house of PW1 and the deceased at Italurowo on 6th March, 2011 at about 8pm to 9pm and robbed them of their 2 Nokia handsets and money and in the process he hit the deceased with the cutlass that was in his hand until the deceased fell down and started foaming in the mouth. When the Prosecution sought to tender the statement, Counsel to the Appellant objected on the ground that the Appellant did not make any statement. The objection was overruled and admitted as Exhibit Pl. See pages 23 to 35 of the Record.
PW3 is Dr. Akosile Olumide, the Principal Medical Officer who performed post-mortem on the corpse of the deceased. According to PW3, the corpse of the deceased was identified by one Dr. Olola Akintimehin, the erstwhile Chief Medical Director of the State Specialist Hospital, Ondo as his cousin. PW3 testified that he found that there were blood clots on the right side of the brain and he gave the cause of death as bleeding into the skull due to injury or trauma with a blunt object.
Corporal Sooner Opara is PW4 attached to Bolorunduro Divisional Police Station. PW4 testified that he was on surveillance duty when he received a distress call directing his team to Ita Oniro popularly known as Holy Trinity in Ondo. According to PW4, the distress call was that robbers were operating in a house there. When he arrived at the scene, he saw the deceased lying on the ground in the house. He stated that he was informed that the robbers had escaped. He stated that he found the cutlass allegedly used by the robbers to beat the deceased lying on the ground. He took the cutlass to the station as an exhibit and reported the incident to the authority after which an entry was made. According to this witness, four days later, on 10th March, 2011, at about 9 – 10am, the Appellant was brought to the station by some members of the community of Italurowo where the armed robbery incident occurred. PW4 stated that the Appellant was brought to the station with the following exhibits: one black net mask, two torch lights, a short barrel gun, two Nokia handsets, two live cartridges, two pairs of scissors and N220. PW4 testified that at the station, the Appellant volunteered his statement under caution and recorded in English Language. Again, when the Prosecution sought to tender the statement, Counsel to Appellant objected on the ground that the Appellant did not make any statement. The objection was overruled and the statement admitted as Exhibit P9.
The Appellant testified as DW1. The summary of his evidence is that he was arrested on 10th March, 2011 and he did not know why he was arrested, He stated that he was in the toilet when he heard people shouting “Ole” “Ole” and that when he moved from where he was, some people gathered to beat him claiming that he was the one that they were pursuing. The Appellant denied robbing anyone since he was born and also denied making any statement to the Police at Bolorunduro or SARS.
At the close of evidence from both sides and adoption of written addresses by Counsel, the learned trial Judge in a judgment delivered on the 18th day of February, 2013 found the Appellant guilty of Armed Robbery and murder and convicted and sentenced him accordingly.
The Appellant had by leave granted him on 23/5/17 filed an Amended Notice of Appeal upon nine (9) Additional Grounds, on 29/9/16; which was deemed properly filed and served in May, 2017.
The Amended Notice of Appeal is reproduced verbatim as follows:
1. The learned trial judge erred in law in convicting the accused of Armed Robbery.
Particulars
a. One of the necessary ingredients to prove an offence of armed robbery is that the accused was one of those who took part in the robbery.
b. There was no reasonable evidence to show that the appellant was with a co-armed robber or was even the robber in this case.
2. The learned trial judge erred in law in convicting the appellant of murder.
Particulars
a. Voluntary act or omission of accused causing the death of the deceased is one of the essential ingredients of murder.
b. There was no voluntary act or omission of the accused whatsoever to cause the death of the deceased established in this case.
c. All other necessary igridents to prove murder were absent.
3. The learned trial judge erred in law in holding that Exhibits PI and P9 were the statements made by the accused and convicting him on same.
Particulars
a. The accused stated that the statements were not made by him.
b. The accused also stated that he did not make any statement at Bolorunduro Police Station and SARS.
c. He was only told to sign the statements.
d. The Court convicted the accused on a retracted confessional statement which was not properly evaluated.
e. The learned trial judge did not consider the retracted confessional statement which led to a miscarriage of justice.
4. The learned trial judge erred in law in convicting the accused of the offence charged.
Particulars
a. It is trite in any criminal trial that there must be proof beyond reasonable doubt before any conviction can be sustained.
b. No such standard of proof beyond reasonable doubt was established in this case.
5. The learned trial judge erred in law in convicting the accused when the identity of the accused was not established.
Particulars
a. The PW1 did not know the identity of the accused person because the operation was conducted at night and he was with a touch light.
b. PWI said the neighbours took the photograph of the robber which was listed as exhibit to identify the accused person.
c. She also said she did not go to the police station to identify the accused.
d. It is unknown/unclear under what circumstance the identity of the accused was gotten by the police.
6. The learned trial judge erred in law in convicting the accused while there was a contradiction and inconsistency in the evidence of the PW1 and PW2.
Particulars
a. The PW1 said the robbery happened at 9:30pm.
b. The PW2 said in the statement of the accused person, the robbery was committed between 8pm-9pm.
c. The PW4 said he received a distress call at 11pm that a robbers were operating in the house at Ita Oniro popularly known as Holy Trinity.
d. The contradicted and challenged evidence casts doubts on the prosecution’s case.
7: The learned trial judge erred in law in admitting exhibit not pleaded/omitted in the proof of evidence and convicted on it.
Particulars
a. The Court admitted the Exhibits not pleaded in the List of Exhibits.
b. Exhibits P1, P3, P4, P7, P7A, P10-P12 were not pleaded in the list of exhibits.
8. The learned trial judge erred in law in failing to consider the defence of the accused.
Particulars
a. The accused raised the defence that PWI could not describe the identity of the accused when PW2 and PW4 came to investigate.
11
b. The learned trial judge did not consider this defence despite its importance to the case.
c. All other facts of his defence were equally not considered by the learned trial judge.
d. The Court did not consider this defence raised by the accused.
e. This has occasioned a miscarriage of justice.
9. The Learned trial Judge erred in law in failing to hold that failure of the prosecution in this case to call certain witnesses was vital to the case of the prosecution.
Particulars
i. The prosecution in this case spoke of several key witnesses who they claimed were material to the case.
ii. None of the said witnesses were called as witnesses raising the presumption that their evidence was not favourable to the prosecution.
iii. The Learned trial Judge did not avert his mind to this.
Both parties filed their Briefs of Argument in this appeal with leave of Court, time having expired for the respective parties.
The Appellant’s Brief of Argument which was filed on 1/11/17 but deemed filed and served on 18/1/18 raised three (3) Issues for determination, to with;
i. Whether the prosecution have been able to prove beyond reasonable doubt showing that
it was the appellant that committed the offence of armed robbery and murder.
ii. Whether the trial Court was right to have convicted the Appellant based on the confessional statement he denied making at all.
iii. Whether the trial judge was right to have convicted the Appellant where there was contradiction and inconsistency in the evidence of the prosecuting witnesses.
On its part, the Respondent formulated the following two issues to wit;
1. Whether the Respondent proved the essential elements of the offence charged beyond reasonable doubt to warrant the conviction and sentence of the Appellant?
2. Whether the learned trial Judge was right to have convicted the Appellant despite any purported contradiction or inconsistency in the evidence of the Prosecution witnesses?
The Respondent?s issues can be merged into its issue 1 and indeed it is the same as Appellant?s Issue number one. The Appeal, being the Appellant?s, I will decide same on the basis of the Issues formulated by him, as afterall they sprout from his Amended Grounds of Appeal.
ISSUE ONE
On this issue, the Appellant argued that the prosecution failed to prove beyond reasonable doubt that it was the Appellant that committed armed robbery. After re-stating the constituents or ingredients of the offence of Robbery, the Appellant’s Learned Counsel on the third ingredient to wit; that it was the Appellant that robbed or who was in the company of persons that robbed; submitted that the prosecution has not proved at the trial that the Appellant took part in the robbery.
The Counsel argued that the evidence of PW1 and PW2 on the identity of the Appellant was such that he could not be said to be the perpetrator of the offences charged. According to the Learned Counsel, PW1 had testified that she did not know the perpetrator as the incident took place in the night and she only had a torch light. It was observed that the PW1 and PW2 did not go to the Police Station to identify the Appellant. That there was a serious doubt as to the identity of the perpetrator of the offences charged. Counsel relied on Botu V. State (2014) All FWLR Pt 741 at 1462.
As relating the offence of murder, the Appellant had argued that the following ingredients of the offence to wit;
1. That the death of the deceased; has been proved.
2. The act or omission of the Accused which caused the death.
3. That the act or omission of the accused which caused the death was intentional or with knowledge that death or grievous bodily harm was its probable consequence.
It was argued that the second ingredient to wit that the Appellant was the person who committed the offence of murder had not been proved. That no nexus was established between the Appellant and the killing of the deceased as the PW1 and PW2 could not as prosecution witnesses identify the Appellant as the person who came to their house with arms and subsequently killed the deceased. Okoh V. State (2014) All FWLR (pt 749) at 1136.
The Learned Counsel therefore, submitted that the benefit of doubt in the prosecution?s case ought to have been resolved in favour of the Appellant as Accused. Idemudia V. State (2015) All FWLR Pt. 800 at 1305 was relied upon.
ON ISSUE TWO
In respect of this issue, it is argued that convicting upon a confessional statement that had been denied was wrong. That no much weight ought to have been given to the said confessional statement.
The evidence of the Appellant line 4 of page 44 of the record, denying making the statement but that he was only called to sign a statement was referred.
That the Court ought, in the face of the retraction of the statement examine the statement in relation to other credible evidence led and determine if:
1. There is no evidence outside the confession to show that it is true.
2. Whether it is corroborated.
3. Facts in it are true as far as can be tested.
4. The Accused had the opportunity of committing the crime.
5. The accused person?s confession is possible.
6. The confession is consistent with other facts ascertained and established.
That in the instant case, the prosecution had failed to establish the aforesaid ingredients. Imasuen V. State (2015) All FWLR Pt. 765 at 371. Relied upon.
ISSUE 3
It was argued on this issue that there was contradiction and inconsistency in the evidence of the prosecution. That where there is inconsistency and contradiction, the Court was not at liberty to choose and pick which to believe or not to believe. That the Court must treat such evidence with circumspection as it is not credible. Jawando V. Bakare (2006) All FWLR (Pt. 322) 1591. Relied upon.
That there were serious contradictions in the evidence of PW1, PW2 and PW4. That whilst PW1 said that the robbery took place at 9:30pm, PW2 said it was between 8pm – 9pm.
That 8pm to 9pm and 9:30a.m are long period of time and the prosecution never said they were not certain of the time the incident happened.
The Learned Counsel said, even if the PW1 and PW2 said the incident happened at 9.30am, why then PW4 received a distress call by 11pm? That the evidence of the prosecution was not credible. The Learned Counsel contended that where a witness has given on oath, two materially inconsistent evidence, he was not entitled to the honour of credibility and should not be treated as such. Ezemba V. Ibeneme (2004) All FWLR (Pt. 233) 1793 relied upon. Upon the aforesaid, this Court has been urged to allow the appeal, quash the conviction, discharge and acquit the Appellant.
In response, the Appellant by his Issue No. One conceded that the burden is on the prosecution to prove beyond reasonable doubt, the guilt of an Accused person, in this case the Appellant.
That the burden was only beyond reasonable doubt and not ?beyond every shadow of doubt?. Refers to S. 135 (1) of the Evidence Act, 2011 and the cases of: Emoga V. The State (1997) 1 NWLR (Pt. 483) 615 at 622; State V. Danjuma (1997) 5 NWLR (Pt. 506) 512 at 529; Nwachukwu V. The State (2002) (Pt. 782) 543 at 568; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666 at 683; Lori V. The State (1980) 8 ? 11 SC 81 at 86 ? 87. Says that the prosecution must establish all the ingredients of the offence charged. Yongo V. COP (1992) 8 NWLR (Pt. 257) 36; (1992) 4 SCNJ 113; Alor V. The State (1997) 4 NWLR (Pt. 901) 512.
The Learned Counsel relies on Nwachukwu V. The State (supra); Bozin V. The State (1985) 2 NWLR (NWLR (Pt. 8) 465 and Okoh V. The State (2014) 8 NWLR (Pt. 1410) 502 at 523 to point out the ingredients or constituents of the offence of Armed Robbery.
On the score of the above, the Respondent contended that the evidence of PW1, PW2, PW3 and PW4 had shown that there was a robbery on 6th March, 2011, that was armed and the Appellant robbed PW1 and her deceased husband whilst armed with a cutlass.
That their evidence was strengthened by the extra judicial statements made to the police Exhibits P1 and P9 admitted without objection. That by Exhibits P1 and P9, Appellant had admitted being part of the robbery gang that went to the home of the deceased and PW1 to rob them and were armed with a gun and cutlass. That it was not in doubt that the deceased was killed in the process.
That the fact of retracting from the statement does not bar the Court from acting upon it and to sustain a conviction, provided independent corroboration, however slight, was sought and had; Akinfe V. The State (1988) 3 NWLR (Pt. 85) 729 at 746.
Where the statement is denied, it was still admissible and that it was only a matter of what weight to attach to it, where the Accused denies the non making thereof at the earliest possible opportunity. Abdullahi V. State (2013) 11 NWLR (Pt. 1366) 435, Nwachukwu V. State (2007) (1062) 31 at 69. That no objection was raised at the admissibility of Exhibits P1 and P9 on the grounds of involuntariness. That there was no obligation to conduct a trial within trial to ascertain voluntariness of the making; that it was properly admitted and only had the probative value thereof to be considered along with other evidence in the case. Egboghonome V. The State (1993) 7 NWLR (Pt. 306) 383; Nwangbomu V. The State (1994) 2 NWLR (Pt. 327) 380. That the trial Judge was right in finding in favour of the prosecution.
ON ISSUE TWO
Whether the trial Judge was right to have convicted the Appellant despite any purported contradiction or inconsistency in the evidence of the prosecution witnesses?
The Respondent’s counsel submitted that though argued on this issue that there are contradictions in the evidence of PW1, PW2 and PW4, the said contradictions are not material and therefore pale into insignificance and do not constitute such material contradictions that could upset the decision of the trial Court. The Learned Counsel relies on Gabriel V. The State (1989) 5 NWLR (Pt. 122) 457; Musa V. The State (2009) 15 NWLR (Pt. 1165) 467; Asariyu V. The State (1987) 4 NWLR (Pt. 67) 706.
The Counsel submitted that a piece of evidence is only contradictory to another, where it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in details between the two pieces of evidence. In effect that it is only when two pieces of evidence are themselves inconsistent; that a discrepancy occurs when a piece of evidence stops short or contains a little more than what another piece of evidence says or contains some minor differences in details. Ikuepenikan V. The State (2011) 1 NWLR (Pt. 1229) 449 at 454.
That the evidence of PW1, PW2 and PW4 are not contradictory and do not depart from the evidence that it was the Appellant who robbed the PW1 and the deceased on the 6th of March 2011 and in the process killed the deceased. That the events as narrated are the same. That the Appellant?s confession in Exhibit P1 and P9 corroborated the evidence of the prosecution witnesses.
The Learned Counsel for the Respondent, therefore, argued that the trial Judge was therefore, right in overlooking whatever alleged contradiction, inconsistency or discrepancy and on the authorities of Atano V. The State (2005) 4 ACLR 25 at 30; Ejigbadero V. The State (1978) 9 ? 10 SC 81 at 110 ? 111; Onubogu V. The State (1974) 9 SC 1 at 20.
The Learned Counsel further argued, that for there to be a reversal of a conviction, the contradiction, if any must be of such magnitude that would cause a miscarriage of Justice. Ebeinwe V. The State (2011) 7 NWLR (Pt. 1246) 402 at 414, and Abogede V. The State (1996) 5 NWLR (Pt. 448) 270 at 279 relied upon.
Having studied the record of appeal and inclusive of the Judgment based upon the evidence and the Exhibits tendered, I see this appeal as straight and lean.
The Appellants issues which I adopt will be treated in this order; Issue 2, 3 and 1 as the 1st issue indeed is the wrap and ultimate issue for determination. Indeed the Respondent?s Issues and the Appellant?s Issues speak the same language and purport on (i) whether, the Appellant was identified as being the culprit by the PW1 and PW2 (ii) Whether there was inconsistency and contradictions in the prosecution evidence and (iii) whether the Appellant had been proved guilty beyond reasonable doubt.
ON IDENTITY OF THE ACCUSED/APPELLANT
The PW1 testified clearly that she saw the Appellant who flashed a torch light on the other direction, such that the illumination was clear enough for her to see and reckon the face as one of those that went into her house armed with cutlass and gun, molested them, demanded and took money and indeed in the process hit her husband the deceased with a cutlass severally such that he fell, foaming and subsequently died in the Hospital, upon been taken there.
The PW1 testified as to the room been lit as the window was opened and moonlight illuminated the place through the open window which was not completely dark. That she had described the accused before he was caught. That it was not the first time that the Appellant was coming to their street. That people who snapped his picture are there; However that the people were not with them in their flat when the Appellant was beating the husband of the PW1 with a cutlass. That only the police came to the House and at a time she could not remember. That it could be a day or two after the incident and that was when the police took away the cutlasses that the Accused Appellant forgot in their House. That she did not go to the police to identify the Accused because it was against their tradition to go out within 3 days of the Husband’s death – At pain of madness.
Now had the Appellant been identified by PW1, The victim and complainant wife of the deceased, There is no doubt that robbery had been established by the testimony of this witness, the PW1, however the identity of the perpetrator would on the basis of the lighting of the House by moonlight as testified to and a flash of torch light by the Accused Appellant in all directions be doubtful; This is more so that the evidence of the Generator been put off, means that it was dark and light was necessary.
There was no evidence vide pictures taken of the Accused/Appellant by person(s) around and who did not testify, nor was any such picture upon which he was identified to be arrested tendered; after all, the PW1 said in her evidence in Chief that the people in the neighbourhood were not and did not go into her flat where the incident happened.
Notwithstanding the scenario above captured, the PW1 had testified in Chief that her Handset and that of her Husband the late Ambrose Taiwo, were recovered from the Accused/Appellant. This was not contradicted. Indeed, she PW1 had also testified to the forceful collection of her jewelleries and money in the threat of violence and forcing her husband and children to lie down.
The PW2 – a Police Investigator had testified relating the making of Exhibit P1, the statement of the Accused person/Appellant. This statement was retracted; it was not denied as involuntary and therefore admitted in evidence. There was the Exhibit P4 a black and Red Nokia Handset testified to by PW2 as having been transferred from the Divisional police station to SARS – along other Exhibits. The Handsets were stated by PW1 to belong to her husband and her but which were robbed by the Appellant. Barrel gun and cartridges Exhibits P5, P5A and P6 were tendered as arms or offensive weapons in addition to the cutlasses. Torchlight and scissors were also admitted as P7 and P7A and Idx1, Idx2 and Idx3, Net ? Idx4.
The monies totalling N220 were also recovered and tendered for identification in diverse denominations and the bag containing the Exhibits. The recovery of the two Handsets of PW1 and the deceased (husband) from the Appellant, and which were admitted in evidence clearly reinforces the earlier weak identification of the Appellant. The mere fact of been in possession of the stolen properties in the circumstances of their been stolen by violence and with the use of arms, had established the fact that that possession was such that the Appellant was the robber or received them with knowledge of how they were obtained. He did not rebut or explain the possession and recovery as testified to; All that his Learned Counsel sought to do unsuccessfully though is to object that the Handsets were not listed as Exhibits in the proof of evidence and thus could not be tendered and admitted. They were rightly overruled, the piece of evidence having been testified to by PW1 and its recovery shown.
Secondly, the confession of guilt if proved to be satisfactorily made, free and voluntary may be a basis for conviction, its retraction, notwithstanding. Exhibit P1 and P9 are the confessional statements of the Appellant herein which content are in all material particular in tandem with the testimonies of the PW1 and PW2. In Egboghonome V. The State (1993) 7 NWLR (Pt. 306) 383 and Nwachukwu V. The State (2007) 17 NWLR (Pt. 1062) 31 at 69, the apex Court held that a mere retraction of a confessional statement by the accused, will not make it inadmissible.
It is only a question of weight to attach to same. See Abdullahi V. The State (2013) 11 NWLR (Pt. 1366) 435, Nwachukwu V. The State (2007) 17 NWLR (Pt. 1062) 31 at 69.
The Appellant herein, by his non objection to the admissibility of Exhibits P1 and P9 on the grounds of involuntariness, had rendered the invocation of a trial within trial inapplicable and the said statements clearly corroborated by the evidence of PW1, PW2 and PW4 and the Exhibits recovered are such that commands weight and may be used as evidence of self identification.
The best evidence of identification of a culprit is his confession or admission that he committed the offence; so also the evidence corroborating. See Otti V. State (1993) 4 NWLR (Pt. 290) 675; Ikemson V. The State (1989) 3 NWLR (Pt. 110) 455.
The findings of the learned trial Judge reproduced at page 14 of the Respondent’s Brief of Argument, and which is also on pages 83 lines 23 & 39 of the record of appeal is unassailable and a correct appraisal of the evidence of identification of the Appellant, as the culprit.
Issue one of the Appellant is resolved against him and in favour of the Respondent.
ISSUE TWO
I had already in treating the question of identification of the Appellant referred to the retraction of his confessional statement. The law is well settled that a retraction does not make inadmissible an otherwise free and voluntary statement particularly where it is admitted without any objection by the Accused person.
All that a Court needs to do is to look at the entirety of the evidence outside the retracted evidence that corroborates same and if the Accused had the opportunity of committing the crime and if the confession was possible. Is the confession consistent with facts outside it that had been proved. See Kanu V. The Kinla (1952/55) 14 WACA 30; DAWA V. The State (1980) 8 ? 11 SC 236 at 267 ? 268.
The evidence of PW1, PW2, PW3 and PW4 are such that shows that P1 and P9 are probable and true. The trial Judge was right and could convict on same inspite of the retraction.
Issue 2 is resolved against the Appellant.
ISSUE THREE
On this issue whether, the trial Judge was right in convicting the Appellant where there was contradiction and inconsistency in the evidence of prosecution witnesses; I have read the submissions of both sides in this appeal and I am persuaded by the Respondent?s Learned Counsel and agree with the Learned DPP that there was infact and in law no contradiction nor inconsistency in the evidence led by the prosecution at all.
The Appellant harped on the fact that the event occurred between 8.00 and 9.30pm and yet PW4 said, it was at 11pm that a distress call was received. That it was such a long period in interval. That the time of the robbery was differentially given as 8pm , 9pm and 9:30pm.
Indeed the arguments herein is unworthy of any substance as the time lags given does not constitute a contradiction to one other in evidence of the witness. Indeed it is obvious that all the witnesses were narrating an event that took place between 8:30 p.m. In any case, the time of event is not a material particular in the offence of armed robbery or murder; it cannot, therefore, be an issue of any argument or defence.
Nonetheless, it must be stated in agreement with the Respondent?s Learned Counsel that the evidence of PW1 clearly was corroborated by the P1 and P9 and the oral evidence of the Accused/Appellant.
I fail to see why the Appellant’s Counsel will think that a distress call put through at 11pm was a period too long in the circumstance to warrant the evidence of the offence as been contradictory and inconsistent. Should the distress call have come at 8p.m or 8.30pm or 9.00pm before the narration of PW1 could be believed? It must not be and that is why the evidence of PW1 was in no way challenged.
This evidence was indeed reinforced by the PW2, PW3, PW4 and Exhibits P1 and P9. There were no contradictions in law nor even discrepancies. The Learned Counsel for the Respondents had gone extra mile to submit on the correct position of the law as to what constitutes contradiction or discrepancies in prosecution or evidence of a witness and the fact that it is only material contradictions that had adversely caused a miscarriage of justice that would upset the decision based thereon. In this appeal, from the record, I find no such contradiction, discrepancy or any such mishap that could occasion any miscarriage of Justice.
Accordingly, the Issue 3 is resolved against the Appellant that there was no contradiction let alone discrepancy in evidence of the prosecution witnesses.
The trial Court was therefore not wrong in law to have based its decision upon the evidence of those witnesses. The Appellant had testified to other earlier escapades of robbery. On the whole, the prosecution had proved the offences of armed robbery and murder beyond reasonable doubt against the Appellant, such that I find no merit in this appeal.
Appeal is dismissed and the convictions and sentences in charge number HOD/14C/2011 in the Judgment of 18/02/2013 condemning the Appellant to death and for armed robbery and murder, respectively is affirmed.
The heinousity of the offences, so horrendous but the distinct and double convictions and sentences, practically can only be served concurrently as there can be no death sentence upon another.
This is, therefore, such an instance that any alternative to the sentences in any quasi-Judicial or executive order pursuant to law, ought to treat the two convictions and sentences distinctly, so that one is not lost to the other by a sub summation, as Justice requires.
Appeal is dismissed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the privilege of reading in draft form, the lead Judgment of my learned brother MOHAMMED AMBI-USI DANJUMA, JCA. Just delivered. I agree entirely with the reasoning and conclusion that the appeal is lacking in merit and should be dismissed. I accordingly dismiss same and affirm the Judgment of the lower Court. I abide by the orders made in the lead Judgment.
PATRICIA AJUMA MAHMOUD, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, MOHAMMED A. DANJUMA, JCA. I agree with the reasoning and conclusions therein and adopt them as mine. I also agree that there is no merit in this appeal. I therefore also dismiss it.
Appearances:
Oladipo Olasope, Esq.For Appellant(s)
Adekola Olawoye, Esq. (Hon Attorney General, Ondo State) with him, Mrs. G. A. Olowoporoko (Director, Public Prosecutions), H. M. Falowo, Esq. (Assistant Chief Legal Officer)For Respondent(s)
Prosecutions), H. M. Falowo, Esq. (Assistant Chief Legal Officer)For Respondent
