HILLARY IGBINOWAYA v. THE STATE
(2019)LCN/12832(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/B/361CA/2016
RATIO
CRIMINAL LAW: WAYS TO PROVE AN OFFENCE
“It is a trite law that there are three ways to prove the commission of a criminal offence to wit:- (a) By testimony of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s).
(b) Through confessional statement voluntarily made by the accused.
(c) Through circumstantial evidence which clearly point to the fact that the accused and no other person committed the offence charged.
See Ibrahim Kamila v. The State (2018) LPELR-43603; Emeka v. The State (2001) 6 SCNJ 267. The prosecution in discharging the burden of proof placed on him, which must be beyond reasonable doubt must ensure that any or all of these modes are employed in proving the ingredients of the offence which the accused was charged with in order to establish his guilt.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
CRIMINAL LAW: INGREDIENTS OF ARMED ROBBERY
“It is an essential duty on the Prosecution at trial to prove the ingredients of the offence of armed robbery wherein the Appellant was charged and these are:-
a. That there was a robbery or series of robberies;
b. That the robbers were armed with offensive weapons; and
c. That the accused was among the robbers.
These three ingredients must co-exist and they must be proved beyond reasonable doubt. See Sunday Ehimiyein v. The State (2016) LPELR-40841 SC; Ogudo v State (2011) 18 NWLR (Pt. 1278) 32; Bozin v The State (1985) 2 NWLR (Pt. 2) 378.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT OF AN ACCUSED PERSON
“It is a settled law that a Court can convict on the confessional statement of an accused person alone without any corroboration. See Ogudo v. State (supra). The Supreme Court in Odeh v. FRN (2008) 13 NWLR Pt. 1103 Pg 1, per Musdapher JSC (as he then was) stated thus:
‘The law is fairly settled that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction and generally without any need of other corroborative evidence so long as the Court is satisfied with its truth.’ See Fabiyi v. State (2015 LPELR-24834 (SC); Ikpasa v. State (1981) 9 SC 7; Achabua v. State (1976) 12 SC 63.”PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
EVIDENCE: VERIFICATION OF A CONFESSIONAL STATEMENT
“There is no doubt that a Court is obliged to be careful in convicting an accused person based on a retracted or resiled statement. The Court must consider carefully the evidential value to place on such statements.
In Ogudo v. State (Supra), the Supreme Court reiterated six tests for the verification of confessional statements before any evidential weight can be attached to it as follows:-
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is it 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 Pg. 978; Nwachukwu v. The State (2007) 12 SCM Pt. 2 Pg. 447 at 455.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
HILLARY IGBINOWAYA Appellant(s)
AND
THE STATE Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Edo State, delivered by Honourable Justice S.A. Omonua on 21/4/2016 wherein the Appellant was convicted and sentenced to death.
The Appellant was brought before the High Court of Edo State for trial in Charge No B/91C/2010 on a two count charge of conspiracy and Armed Robbery and the trial commenced on the 21st day of January, 2013.
The counts are set out below:-
COUNT 1
That you Hillary Igbinowaya (m) and Ehis Eragha (m) on or about the 30th October, 2008 at about 12:15 hours. At Welder Street, Urura Quarters, Benin City in the Benin Judicial Division conspired among yourselves to commit felony to wit: Armed Robbery and thereby committed an offence contrary to Section 6(b) Punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Laws of the Federation of Nigeria, 2004.
COUNT 2
That you Hillary Igbinowaya (m) and Ehis Eragha (m) on or about 30th October, 2008 at about 12:15 hours at Welder Street, Urura Quarters, Benin City in the Benin Judicial Division did rob the following: (1) Nokia handset valued at N6, 000.00 (2) Recharge cards valued at N15, 000.00 (3) physical cash N4, 000. 00 total valued N25, 000. 00properties of one Miss Osolaese (F) and as at time of the offence you were armed with offensive weapon to wit: broken bottle and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act, Laws of the Federation of Nigeria, 2004.
The Appellant pleaded not guilty to the two counts.
In proof of its case, the Prosecution now Respondent called the Investigating Police Officer (IPO) from Ikpoba Hill Division, Emmanuel Bauta as PW1 and the Investigating Police Officer from the State Anti-Robbery Section (SARS), Sergeant Bukola Akinola as PW2. Exhibits A-G were also tendered in support of the Prosecution’s case.
An attempt to tender in evidence an extra-judicial statement credited to the Appellant by the Respondent’s counsel was objected to on the ground of involuntariness of the said statement. Trial within trial was conducted but terminated as the learned trial judge observed that the Appellant only retracted the statement.
The statement was accordingly admitted and marked Exhibit C. The Appellant then gave evidence in his own defence.
Upon the conclusion of evidence in this case, parties filed their respective final written addresses as ordered by the Court and the case was adjourned to 21st of April 2016 for Judgment. The trial Court delivered judgment and found the Appellant guilty and accordingly sentenced him to death.
Dissatisfied, the Appellant filed a Notice of Appeal on 28/4/16 and amended Notice of Appeal filed on 15/9/16. Record was transmitted on 9/9/16. The Appellant filed his brief of argument on 15/9/16 and deemed filed on 1/11/16. Appellant’s reply brief was filed on 21/1/19 and deemed filed same day. The Respondent’s brief was filed on 1/11/17 and deemed filed on 21/1/19.
Mr. Olayiwola Afolabi Esq., who settled the Appellant’s brief identified two issues for the determination of the appeal to wit:
1. Having regard to the serious nature of the charge against the Appellant punishable with a death sentence whether the trial judge was right to have convicted the Appellant of the offence of conspiracy to commit armed robbery and armed robbery when the evidence adduced by the prosecution was riddled with serious material contradiction and coupled with the failure of the prosecution to call the purported victim of the alleged armed robbery
2. Whether the learned trial judge was right when he convicted the Appellant on extra-judicial confessional statement when the said statement is at variance with the police investigation report of PW1 and the evidence of the said PW1 called by the prosecution and despite the fact that the said confessional statement lacks necessary legal corroboration.
The Respondent in the brief settled by G.E. Adekanmbi Esq, Director of Public Prosecution, Edo State; Mrs. A.O. Aigbavboa Esq., Assistant Director, Edo State; Mrs. F.N. Edokpolor Esq., Chief State Counsel, Edo State and Imonitie I. Omokhodion Esq., State Counsel, Edo State identified a sole issue for the determination of this appeal to wit:-
Whether the prosecution can be said to have proved the case against the Appellant beyond reasonable doubt as required by law notwithstanding the non-availability of the Complainant to testify at the trial.
In the determination of this appeal, having read the Record and the briefs of counsel, I am of the humble view that the complaints raised by the Appellant can be determined by a consideration of the following sole issue:-
Whether in the entire circumstances of this case, the trial judge was justified to have convicted and sentenced the Appellant to death.
SOLE ISSUE
Whether in the entire circumstances of this case, the learned trial judge was justified to have convicted and sentenced the Appellant to death.
Learned Appellant’s counsel argued that in criminal matters, the Prosecution has the duty to prove the guilt of the accused person whom he accuses of committing a crime and the burden does not shift even in a situation where the accused person in his statement to the Police admits committing the offences, the prosecution is not relieved of the burden of proof placed on it. Counsel cited Edoho v. State (2004) 5 NWLR Pt. 865 Pg17 at 25; Maren v. State (2011) 3 NWLR Pt. 1181 Pg 254 at 257.
Counsel further argued that in consonance with Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 which guarantees to all persons accused or charged with criminal offence the right to be presumed innocent until he is proved guilty, the ultimate burden of proving the guilt of the accused person is placed on the Prosecution and the Prosecution must discharge this burden beyond reasonable doubt by proving every ingredient of the offence charged by credible evidence. Where at the close of evidence an essential ingredient of the offence has not been proved, a doubt would have been created as to the guilt of the accused and he shall be discharged and acquitted. Counsel cited Mustapha v. State (2007) 12 NWLR Pt. 1049 Pg. 634.
Counsel argued that to discharge the burden of proving the commission of armed robbery against an accused person, the prosecution has three major ingredients to prove and the consequence of the Prosecution’s failure to prove any one element of the offence beyond reasonable doubt even if each of the other elements were proved, entitles the Accused to a discharge and acquittal. Counsel cited Utek v. State (2010) 34 WRN 171 at 179; Majekodunmi v. The Nigerian Army (2002) 31 NWLR 138 at 147; Saidu v. State (2009) 29 WRN 89 at 124; Shande v. The State (2004) All FWLR Pt. 223 Pg. 1955 at 1968-1969
Counsel emphasized that the plea of not guilty recorded for the Appellant connotes that every allegation of fact contained in the charge are denied by the Appellant and throughout the length and breadth of the evidence of PW1 at the lower Court, the Appellant was never mentioned as the person who robbed the victim or stole the victim?s properties.
Counsel argued that from the available evidence before the lower Court as seen in the Record, the Prosecution never proved the fundamental ingredients of the offences charged beyond reasonable doubt that will require the learned trial judge to convict the Appellant and sentence him to death. Moreso there is a serious doubt on the issue of whether there was armed robbery on 31st October, 2008 as alleged.
Counsel argued that the PW1 in his examination in chief as seen on pages 61 and 62 of the records did not in any way state that the Appellant was armed with weapon when the purported victim was robbed and even under cross examination there was no arms mentioned all through.
Counsel further argued that PW1, the Investigating Police Officer who went to the scene of the incident never mentioned seeing any weapon (broken bottle) as was later adduced by PW2 and the learned trial judge never made a finding of fact in respect of the above serious conflict which bothers on the conflict in the evidence of PW1 and PW2 which goes to the root of the charge itself. Counsel added that this may be the reason why the PW1 recommended the charge of stealing and not armed robbery. Counsel cited Bakoshi v. Chief of Naval Staff (2004) 15 NWLR Pt. 896 268 at 294; Akinlemibola v. C.O.P (1976) 6 SC 205.
Counsel further argued that a party who failed, refused or neglected to call a witness whose evidence may help decide the case one way or the other is withholding useful evidence as such evidence would be detrimental to his case because he has refused to place all the cards on the legal table of the Court. Counsel cited Ogudo v. State (2012) All FWLR Pt. 629 Pg. 1111 at 1131; Opeyemi v. State (1985) 2 NWLR Pt. 5 101 at 103; Eddy Ikhimiukor v. State in Appeal No. CA/B/43C/2015 (Unreported).
Counsel contended that since there is no evidence that the nominal Complainant is dead she should have been called upon to testify to clear the doubt whether actually the victim was indeed robbed and whether the victim was even robbed with arms by the Appellant. Counsel citedMillar v. State (2003) 8 NWLR Pt. 927 Pg 236 at 239; Salawu v. State (2011) All FWLR Pt. 594 Pg. 35 at 53-54.
Counsel opined that the Prosecution indeed withheld this crucial evidence as calling her would have proved disastrous to the Prosecution’s case. Withholding evidence in this case is deliberate and the benefit of the doubt created great doubt in the Prosecution’s case and such doubt should be resolved in favour of the Appellant. Counsel cited Edet v. State (1988) LPELR (1008) Pg. 1 at 21; Orji v. State (2008) 10 NWLR (1094) 31 at 50.
Counsel emphasized that the victim of the alleged robbery, Mrs Tina Osalaese is a vital witness as PW1 testified that the Appellant only snatched the bag and recommended a charge of stealing whereas PW2 testified and tendered Exhibit ‘F’- broken bottle and as a result preferred charge of armed robbery and it is only the testimony of the victim that can resolve this logjam in evidence of PW1 and PW2. Counsel cited Ogudo v. State (2012) All FWLR Pt. 629 Pg. 1111 at 1131; The People of Lagos State v. Umaru (Supra).
Counsel argued that where there is doubt in the case of the Prosecution, the doubt should be resolved in favour of the accused person. Counsel cited Aigbadion v. State (2000) 7 NWLR Pt. 666 Pg. 686 at 704; Almu v. State (2009) 10 NWLR Pt. 1148 Pg. 31; Osumare v. People of Lagos State (2014) ALL FWLR Pt. 757 Pg. 605 at 624.
Counsel submitted that the evidence of PW1 and PW2 are at best hear say evidence because the Court never heard from the mouth of the victim whose name is in the charge and who claimed she was robbed with arms. Counsel cited Ogudo v. State (supra).
Counsel argued that confessional statement to be relevant and therefore admissible for conviction of an accused person, must be direct, positive and unequivocal in the sense that it points irresistibly to the guilt of the accused or leaves no reasonable doubt in the mind of the Court or reasonable persons that the accused committed the offence. Counsel cited inSalawu v. State (2011) All FWLR Pt. 594 Pg. 35.
Counsel argued that the confessional statement which the learned trial judge relied on cannot stand and pass the six acid tests which is the condition to be observed before the Court can base conviction solely on a confessional statement of an accused. Counsel cited Rabiu v. State (2010) 10 NWLR Pt. 1201 Pg. 127 at 133.
Counsel submitted that the victim whose evidence would have corroborated the purported confessional statement was not called. The absence of the victim nullified the first three acid tests as stated in the case of Rabiu v. State (supra) and in view of that, the remaining ingredients falls like a pack of cards. Counsel cited Macfoy v. UAC (1962) 3 AER 1169 at 1172.
Counsel argued that the learned trial judge while convicting the Appellant used the other statement of the Appellant at the Divisional Police Station to find corroboration and that legal procedure adopted by the trial judge was fatally and legally wrong in view of the decision of the Court in Salawu v. State (2011) All FWLR Pt. 594 Pg. 35.
Counsel further argued that there was nothing outside the signed confessional statement that corroborated the offence with which the Appellant was convicted and even most of the evidence in the said confessional statements of the Appellant as it relates to the main charge remained unproven in view of the absence of independent witness to corroborate the main charge upon which the Appellant was charged and in view of the evidence of PW1. Counsel cited Ogunye v. State (1999) 5 NWLR Pt. 604 Pg. 548 at 576; Obue v. State (1976) 2 SC 141; Salawu v. State (2011) All FWLR Pt. 594 Pg. 35 at 38.
Counsel opined that the trial judge was wrong in the way and manner he purportedly found solace in the statement of the Appellant at the Divisional Police Station to rely on same as corroborative evidence and this is because the statement made by the Appellant at the Divisional Police Station is total denial and not confessional.
Counsel submitted that the evidence of PW1 under the heat and fire of cross examination has totally destroyed the worth of the said confessional statement and the learned trial judge never made a finding of fact on this crucial evidence coming from PW1 as the evidence given by PW1 a police officer is at variance with the charge of armed robbery.
Learned counsel to the Respondent contended that from the totality of evidence before the Court, the Prosecution did prove its case against the Appellant beyond reasonable doubt as required by law in Section 135 (1) of the Evidence Act, 2011. Counsel cited Adeyemi v. State (1991) 1 NWLR Pt. 170 Pg. 679; Onyenye v. State (2012) Vol. 212 LRCN 107 at 112.
Counsel argued that the evidence of the Prosecution established all the required ingredients/elements to prove its case despite the absence of the Complainant during the trial.
Counsel argued that the testimony of PW1 and PW2 as well as the confessional statement of the Appellant which was admitted in evidence as Exhibit C showed that there was an arm robbery and it was clear that the Appellant participated in the arm robbery.
Counsel further argued that once an accused person makes a statement under caution, saying or admitting that he committed the offence charged, the said statement in effect becomes a confessional statement and as such becomes relevant to the proceedings, moreso the statement was dully admitted in evidence as a voluntary statement of the Appellant after a trial within trial. Counsel cited Emeka v. State (2001) 14 NWLR Pt. 734 Pg. 666; Akinmoju v. State (2000) 77 LRCN 885; Asimiyu Alarape & 3 Ors. v. State (2001) LRCN 600 at 623; Gira v. State (1996) 37 LRCN 688 at 693.
Counsel emphasized that an extra judicial statement made by an accused person is admissible in evidence at the trial of the accused person if it reveals that the statement was voluntarily made. Counsel cited Sunday Amala v. The State (2004) 119 LRCN 4439.
Counsel submitted that the purpose of a trial within trial is to test the voluntariness of the statement of the accused person and where a statement is admitted as voluntary after trial within trial, such statement becomes admissible and becomes part of the case of the Prosecution. It is sufficient to ground a conviction of the accused person on the offence charged. Counsel cited Emeka v. The State (2005) 4 LRCNCC Pg. 197; Nwangbomu v. State (1994) 2 NWLR Pt. 327 SC; Daniel Nsofor & Anor v. The State (2005) All FWLR Pt. 242 Pg. 397; Moses Jua v. State (2010) 4 NWLR Pt. 1184 Pg. 249; Nwachukwu v. The State (2007) LPELR 8075 SC.
Counsel further argued that circumstantial evidence established and ascertained the truth of the confessional statement made by the accused. There existed evidence of the Appellant being caught at the scene of the crime and there was evidence of the robbed items being recovered from where they were hidden by the Appellant and the 1st accused. These and the clear evidence of PW1 and PW2 corroborated the confessional statement.
Counsel opined that the confession is consistent with the evidence led by the Prosecution and Exhibit C is sufficiently explicit as to who the Appellant robbed, what weapon was used to facilitate the robbery and what they robbed the victim of.
Counsel argued that the evidence that the Appellant was caught at the scene of crime with the robbed items that were recovered by the police from where they were hidden by the Appellant and the 1st Accused person are evidence of positive and cogent surrounding circumstances linking the Appellant to the offence charged and irresistibly pointing to the guilt of the Appellant.
Counsel argued that the case of R v. Skyes 8 C.A.R, APP has laid down principles in guiding the Courts of the desirability to have outside the confession, some material evidence further justifying the conviction of the accused. Counsel relied on Nwaebonyi v State (1994) 17 LRCN, 103.
Counsel further argued that the Court was not bound to abide by the findings of the Police Investigation when Exhibit D the clear and voluntary statement of the Appellant before the Court established how the Appellant and the 1st Accused armed themselves with broken bottles to rob one Tina Osalaese on 30th of October, 2008.
Counsel emphasized that the duty of the Court is to make use of cold facts of a case as presented by the parties in open Court in reaching a decision. Cases are decided by facts and nothing else. Counsel cited Attorney General of Abia State & Ors v. Attorney General of the Federation & Ors. (2000) 7 SCJN 1; Adisa v. State (1991) 1 NWLR Pt. 168 Pg 498.
Counsel argued that there is no discrepancy in the testimony of PW1 and PW2 but the evidence of the two witnesses corroborated themselves and also corroborated the confessional statement of the Appellant which is Exhibit C. The broken bottle referred to by the Appellant was recovered by PW1 and tendered by the Prosecution through PW2 and marked Exhibit F which was before the Court.
Counsel further argued that the practice of taking persons who confessed to the commission of serious offences before a superior police officers for confirmation of the voluntariness of the confession is not a requirement of law. It is just a commendable practice that has been developed by the Police. Counsel cited Stanley Idigun Egboghonome v. The State (2001) 2 ACLR 262.
Counsel emphasized that the absence of the signature of an attesting officer on a voluntary confessional statement does not invalidate or make inadmissible the said statement. Counsel cited Silas Ikpo & Anor. v. The State (1995) SIC 9 NWLR Pt. 421 Pg. 540; Bassey Eyop v. The State (2012) LPELR 20210 CA; Edhigere v. The State (1996) 8 NWLR Pt. 464 Pg 1 at 7; Friday Smart v. State (2012) LPELR 8026 CA.
Counsel opined that in order to justify the conviction of an accused person for an offence charged, the ingredients of the said offence must be proved against the accused person which the Prosecution has done. The absence of the victim as a witness for the Prosecution is not fatal to the case of the Prosecution. Counsel citedEmmanuel v. The State (1995) 5 NWLR 660.
Counsel submitted that in any criminal trial, the burden of proof on the Prosecution is proof beyond reasonable doubt and not beyond all shadow of doubt. Counsel cited Akinyemi v. State (2001) 2 ACLR 32 at 44; Bakare v. State (1987) 1 NWLR Pg. 51; Musa v. The State (2012) Vol 10 LRCNCC 255 at 262; Miller v. Minister of Pensions (1947) 2 All E.R 372.
OPINION
It is settled that the legal and evidential burden of proving the guilt of an accused person is placed on the Prosecution and the Prosecution must discharge this burden beyond reasonable doubt by proving every ingredient of the offence charged by credible evidence. That burden does not shift.
It is a trite law that there are three ways to prove the commission of a criminal offence to wit:-
(a) By testimony of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s).
(b) Through confessional statement voluntarily made by the accused.
(c) Through circumstantial evidence which clearly point to the fact that the accused and no other person committed the offence charged.
See Ibrahim Kamila v. The State (2018) LPELR-43603; Emeka v. The State (2001) 6 SCNJ 267.
The prosecution in discharging the burden of proof placed on him, which must be beyond reasonable doubt must ensure that any or all of these modes are employed in proving the ingredients of the offence which the accused was charged with in order to establish his guilt.
It is an essential duty on the Prosecution at trial to prove the ingredients of the offence of armed robbery wherein the Appellant was charged and these are:-
a. That there was a robbery or series of robberies;
b. That the robbers were armed with offensive weapons; and
c. That the accused was among the robbers.
These three ingredients must co-exist and they must be proved beyond reasonable doubt. See Sunday Ehimiyein v. The State (2016) LPELR-40841 SC; Ogudo v State (2011) 18 NWLR (Pt. 1278) 32; Bozin v The State (1985) 2 NWLR (Pt. 2) 378.
In proof of the ingredients, the Respondent called two witnesses who were the Investigating Police Officers Corporal Emmanuel Edute attached to the Ikpoba Hill Police Station as PW1 and Sergeant Akinola Bukola attached to the Special Anti-Robbery Section, State Criminal Investigation Department as PW2 and tendered in evidence Exhibits A-G in proof its case.
On Pages 61-63 of the Record, the testimony of the PW1 was to the effect that he was instructed by his Divisional Police Officer (DPO) to mobilize men and send to Urora Quarters at Welder Street to find out what was happening and on getting there they sighted a crowd and discovered two boys had been accused of robbing a girl, they had been caught and beaten up by this crowd. He took them for medical treatment. He also testified that after he took their statements the following day, the Appellant led his team to an uncompleted building in the bush where they recovered a bag containing recharge cards and one Nokia Phone.
Let us critically examine the evidence of PW1, the first Police Officer at the scene of crime. While being led, he stated as follows on Pg. 62 of the Record:-
After the statements, I asked Hilary for the bag and handset he snatched from the girl. He led us to an uncompleted building in the bush where we recovered a bag containing recharge cards and one Nokia 1100. We executed a search warrant in the house of the accused persons. Nothing incriminating was found. That very day, the D.P.O instructed me to transfer the case to Headquarters.
Under cross-examination, PW1 conceded as follows at Pg. 62-63 of the Record:-
It is correct that the matter I investigated happened in the day time. It is correct that the complainant had a commercial call booth in the area. It is correct that the accused persons told me that they wanted to make phone call but my investigation showed that they pretended to make a call. It is correct that the 1st accused only said he snatched a bag of the victim, not that he robbed her. It is correct that I wrote a Police Investigation Report before I transferred the case. It is correct that I wrote in the report that the accused persons stole the contents of the bag. I recommend a charge of stealing and conspiracy. It is correct that Exhibit ?B? was not signed.
From the above, it can clearly be seen that the first Police Officer who responded to the scene of the incident did not see any weapon of any sort, whether broken bottle or not. No broken bottle as a weapon was given to him or shown to him. That was on 30/10/08. Please see line 18 of Pg. 61 of the Record. The broken bottle issue surfaced with PW2, a Sergeant at SARS to whom the case was transferred on 3/11/2008, four days later. Please see line 5-8 of Pg. 64 of the Record.
At line 8 of Pg. 64, PW2 stated categorically on oath that the broken bottle was one of the Exhibits transferred to SARS by the IPO from Ikpoba Hill Station, while the IPO from Ikpoba Hill, PW1, did not swear that he recovered a broken bottle from the scene of crime or transfer such an object with the Appellant and other Exhibits to SARS.
From my own reading and understanding of the Record, I cannot agree with the finding of the learned trial judge on Pg. 124 of the Record that the Appellant at any time used a broken bottle to threaten and then rob the victim. His Lordship stated inter alia on Pg. 124 of the Record as follows:-
On the whole, I find as a fact and on the evidence that the two accused persons snatched the bag of recharge cards and phone of one Miss Osolaese by threatening her with a broken bottle on 30/10/08.
The learned trial judge considered the various Exhibits tendered in this case. In Exhibit A, the first statement made by the Appellant at Ikpoba Hill Division, the Appellant admitted unequivocally to having snatched the bag of the victim and that he attempted to make away with it.
He did not admit to threatening her in broad day light with a broken bottle. It was after the case was transferred to SARS when the broken bottle magically appeared that the stealing metamorphosed into a case of armed robbery.
I have read Exhibit A and C, the supposed confessional statements made by the Appellant on 31/10/2008 and 6/11/2008.
On Pg. 54 of the Record, the learned trial judge had admitted Exhibit C made by the Appellant at SARS and terminated the trial within trial of that document since the Appellant did not complain of involuntariness but that he never signed it at all. The Court only has to consider the weight to be attached to the statement.
Where a confessional statement which was retracted at trial on the basis of involuntariness was admitted in evidence by the trial judge, the Defence has two choices on appeal. The first is to appeal specifically against the decision arrived at after the trial within trial which found the statement admissible. That will be by way of a specific ground of appeal for which leave would be sought and obtained not being part of the final and substantive judgment of the trial Court but an interlocutory one made during trial. The second choice for the Defence is to argue that even though the statement had been admitted, the trial judge was wrong to have attached any material weight to it in support of the Court?s finding to convict the accused. In this case, by Ground 4 of the Amended Notice of Appeal, the later option was taken by Appellant?s counsel. The complaint of the Appellant?s counsel is that the statement was not corroborated by the victim on oath and that it did not meet the test laid down by a long line of authorities that would convince the Court of the veracity of the contents of the statement.
It is a settled law that a Court can convict on the confessional statement of an accused person alone without any corroboration. See Ogudo v. State (supra).
The Supreme Court in Odeh v. FRN (2008) 13 NWLR Pt. 1103 Pg 1, per Musdapher JSC (as he then was) stated thus:
‘The law is fairly settled that a free and voluntary confession which is direct and positive and properly proved is sufficient to sustain a conviction and generally without any need of other corroborative evidence so long as the Court is satisfied with its truth.’ See Fabiyi v. State (2015 LPELR-24834 (SC); Ikpasa v. State (1981) 9 SC 7; Achabua v. State (1976) 12 SC 63.
There is no doubt that a Court is obliged to be careful in convicting an accused person based on a retracted or resiled statement. The Court must consider carefully the evidential value to place on such statements.
In Ogudo v. State (Supra), the Supreme Court reiterated six tests for the verification of confessional statements before any evidential weight can be attached to it as follows:-
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is it 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 Pg. 978; Nwachukwu v. The State (2007) 12 SCM Pt. 2 Pg. 447 at 455. Also in Ikpo v. State (1995) 9 NWLR Pt 421 Pg. 540 at 554, the Supreme Court held as follows:
It is desirable to have outside the accused person;s confession, some corroborative evidence no matter how slight, of circumstances which make it probable that the confession is true and correct as the Courts are not generally disposed to act on a confession without testing the truth thereof. See Achabua v. The State (supra); Jafiya Kopa v The State (1971) 1 All NLR 150.
From the word go, the Appellant admitted in Exhibit A made on 31/10/08 before he was transferred from Ikpoba Hill Station to SARS on 3/11/08 that he in fact snatched the bag from the victim and made away with it but was caught by the people around at the time of the incident. The statement he made to PW1, Exhibit A admitted to stealing and not armed robbery.
Let me address the last point of the test to find out whether his latter confessional statement, Exhibit C made to PW2 at SARS is consistent with other facts which have been ascertained and which have been proved. This leads me to an examination of the probative value to be placed on the said statement by the Court bearing in mind the fact that the Appellant had resiled from making the statement.
The most important difference between the confession of stealing in Exhibit A to the confession of Armed Robbery with a broken bottle in Exhibit C is that it was made after the Appellant was transferred from Ikpoba Hill Police Station to SARS. The contradiction between the evidence of PW1 who did not recover any bottle at the scene of crime where the Appellant was caught red handed and the evidence of PW2 who swore that a broken bottle was brought along with the Exhibits from Ikpoba Hill Police Station is very material. That contradiction is the significant difference between life and death. A mere case of stealing is quite different from a case of Armed Robbery which carries the death sentence.
I cannot say that Exhibit C is consistent with other facts that have been ascertained and proved in the circumstances of this case due to the material contradiction in the evidence of PW1 and PW2 which must be resolved in favour of the Appellant. See Usen v. State (2012) LPELR- 20063 (CA); Amadi v. State (1993) 11 SCNJ 68; Nasamu v. State (1979) 6-9 SC 153; Nwosu v. State (1986) 2 NWLR Pt. 61 Pg. 364; Opayemi v. State (1985) 2 NWLR Pt. 5 Pg. 101.
It is settled that material inconsistencies in the evidence of a prosecution witness goes to the credibility of that witness. The significance does not end there. The Court is not allowed to pick and choose between two versions of the evidence of a witness. The several versions must be rejected and none can be taken as the truth after any form of rationalization by the Prosecution or the judge. Doubt as to the veracity of a statement of a material witness must be resolved in favour of the accused. Also where two witnesses for the prosecution give contradictory evidence on material issues, the Court cannot choose who is telling the truth and must reject the evidence of both witnesses.
On the other hand, an accused in a criminal trial may throw up several versions of the incident and several defences. That is not to say that the Court would reject any plausible story on which a defence is based just because the Accused had told an inconsistent one in the course of the proceedings.
The attitude of the Courts to the different or inconsistent evidence of the Accused is quite different from the attitude of the Court to the contradictory evidence or discrepancies in the evidence of Prosecution Witnesses. Of course the different contradictions or discrepancies in the evidence of the Accused goes to his credibility but the Court can take and accept a version or the more truthful version of the story in order to arrive at a finding on the innocence or guilt of an accused. Since a lie by the accused cannot relieve the prosecution of its duty to prove the offence. See Ogidi v The State (2005) 1 SCNJ 67; Okpere v. The State (1971) 1 All NLR 1 at 5; Woolmington v. Director of Public Prosecutions (1935) AC 462. The inconsistency rule is restricted to witnesses as said earlier. It is not applicable in respect of the evidence of an accused vis-a-vis his extra judicial statement. See Ogudo v. The State (supra).
In Akpan v. State (2014) LPELR-22741 (CA) this Court held as follows:
In Ogidi v The State (2005) 1 SC Pt. 1 Pg 98, the Supreme Court, per Oguntade, JSC said:
it is to be said here that the trial; judge held that because the 2nd-4th appellants had lied in parts of their evidence they were to be convicted as robbers but as was held in Haruna & Anor v. The Police (1967) NMLR 145 at 153:
although a man may lie because he is guilty, he may just as well lie because he is stupid or afraid or both and whether he is guilty of not.
And also in Okpere v. The State (1971) 1 All N.L.R 1 at 5 this Court per Coker JSC observed:
‘it has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person has told lies relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond all reasonable doubts See Woolmington v. Director of Public Prosecution (1935) A.C 462’
See also John Agbo v. State (2006) 1 SC Pt. 11 Pg. 73. Therefore in spite of the obvious inconsistencies and conflicting testimony of the Appellant, the prosecution still had the duty or burden to prove the offence as charged beyond reasonable doubt.
In the instant case, the testimony of the PW1 and PW2 on oath, and the extra judicial complaint of the victim (which cannot be used to corroborate the confessional statement of the Appellant) that is the only evidence outside the Appellant?s confession.
The learned trial judge in his findings observed on Pg. 119- 120 of the Record as follows:-
Quite interesting, except that I do not have any such evidence on Record as flowing from the Prosecution witnesses who, as was observed by the learned defence counsel, were only IPO’s rather than eye witnesses.
I confess with all my heart that I do not know where the learned ACSC got his evidence from.
From the evidence of the 1st and 2nd Prosecution witnesses as I have it on record, none of them gave evidence that somebody was robbed, what weapon was used or who robbed the person/ victim.
I therefore cannot understand how the learned trial judge having reasoned thus above held as follows on Page 124 of the record:
I consequently disbelieve the denial on oath of each of the accused persons while believing the evidence of the 1st PW that the 1st Accused had taken the Police the place in the bush where he threw the items robbed and that they were recovered at the place.
In the event, I accept the prosecution’s case as it was amply corroborated by the extra judicial confessional statements of the accused persons themselves.
Apart from the retracted extra judicial statement of the Appellant and that of the 2nd Accused person, there was no other existing evidence the Respondent relied on to corroborate the fact that the Appellant in fact robbed the victim.
I am not unaware of the fact that the Court can convict an accused on a direct, unequivocal confessional statement. However, such confessional statement must be tested with the available facts. As I highlighted earlier, there are ways of testing the truth or otherwise of such confessional statement. The Rule that the confessional statement must be tested as to its truthfulness is made for just such occasions. I cannot agree with the learned trial Court that the extra judicial statement of the Appellant passed the six tests of the credibility of a confessional statement sufficient to ground a conviction of armed robbery. A confessional statement upon which the Court wants to solely base the conviction of the Appellant must have been evaluated and properly assessed by the trial judge in the con of the evidence adduced.
Where that has not been done, then the Court of Appeal will be at liberty to interfere with the findings that have been thrown up. See Kesena v. State (supra); Ogudo v. State (2011) LPELR-860 (SC) 1.
I am amazed at the failure of the learned trial judge to appreciate the difference between the offence of stealing and the offence of Armed Robbery. The evidence of threat with a dangerous weapon must be strong, direct and positive.
In the circumstances of this case, the hearsay evidence given by PW1 and PW2 as regards whether the Appellant threatened the victim with a broken bottle could not have been admissible even if indeed the existence and chain of custody of the broken bottle were not suspected.
Only the victim or an eye witness to the crime could have given such a testimony for it to be credible. However the situation would be different if indeed harm was inflicted on the victim by any weapon and the victim through serious injury or death was not able to give direct evidence of the Armed Robbery. The fact that dangerous weapons were used in the course of the robbery can be rightly deduced from the injury to the victim(s) which would be part of the evidence tendered by the prosecution in the proof of their case against the accused.
I am convinced that the learned trial judge made an erroneous finding of Armed Robbery against the Appellant in the circumstances of this case. I find that indeed the Appellant confessed to the crime of stealing. I substitute a finding and conviction of stealing against the Appellant. I set aside the finding and conviction of Armed Robbery made by the learned trial judge in the judgment of 21/4/16. I also set aside the sentence of death. I substitute a sentence of two (2) years imprisonment. In view of the fact that the Appellant has been in custody since he was arrested on 30/10/08 and he has thus spent 10 years in jail, I am of the humble but strong view that he has paid his debt to the society for an offence he committed at the age of 18. I order his discharge forthwith. The judgment of Hon. Justice S.A. Omonua of the High Court of Edo State delivered on 21/4/16 in Charge No. B/91C/10 convicting the Appellant of the offence of armed robbery and sentencing him to death is hereby set aside. Appeal Allowed. ?
PHILOMENA MBUA EKPE,J.C.A.: I had the opportunity of leading in draft, the lead Judgment just delivered by my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA.
The Appellant was charged with the offence of conspiracy and Armed Robbery before the trial Court at the age of 18. He was found guilty based on his confessional statement and was sentenced to death. It is however on record that the Appellant resiled from his statement.
A Court is bound to exercise a certain degree of caution in convicting an accused person based on a confessional statement which he had resiled from. See THE STATE V. JAMES GWANGWAN (2015) LPELR 2483.
I am in total agreement with the reasoning and conclusion of my learned brother in the lead Judgment that the trial Court failed to make a distinction between the offence of stealing and the offence of Armed Rubbery
I too set aside the sentence of death and substitute it instead with a two year sentence of imprisonment. I am also aware of the following facts;
a. The Appellant was 18 years old when the offence was committed.
b. The offence of Armed Robbery had not been proved against the Appellant by the trial Court.
c. The Appellant had spent 10 years in jail prior to his conviction by the trial Court.
Accordingly, I too order that the Appellant be discharged and the Judgment of the trial Court delivered on 21/4/2016 set aside. Appeal allowed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA, just delivered.
The sole issue for determination therein was subjected to an exhaustive and adequate consideration and I am inclined to endorse the conclusion reached therein. I adopt same as mine and have nothing extra to add except for the admonition that trial Courts should cautiously and meticulously examine confessional statements to ensure that they are in tandem with the offence or offences charged before they convict on them. This is to avoid a situation where an accused person will be wrongly convicted for an offence he did not actually confess to, such as in the instant case where the Appellant confessed to stealing but was convicted for the serious charge of armed robbery.
This would have no doubt led to a grievous and unpardonable miscarriage of justice. For example, a confessional statement should indeed be worth its appellation before a conviction should be judiciously based on it.
For this and the fuller reason given in the lead judgment, I too hold that this appeal is meritorious, and it is accordingly allowed. I abide by the consequential orders wisely detailed in the lead judgment including the order setting aside the conviction and sentence of the Appellant by the High Court of Edo State in charge No. B/91C/10.
Appearances:
E.O. Afolabi Esq. with him, W.E.K. Adun Esq., S.O. Atoe Esq., A. Afemefuna Esq. and S.U. Enyawule Esq.For Appellant(s)
F.N. Edokpolor Mrs. (Chief State Counsel, Edo State Ministry of Justice)For Respondent(s)
