INEMIEBI v. STATE (2022)

INEMIEBI v. STATE

(2022)LCN/16868(CA)

In the Court of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, March 10, 2022

CA/K/264/C/2016

Before Our Lordships:

Abubakar Mahmud Talba Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

MELI INEMIEBI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT RETRACTION OF A CONFESSIONAL STATEMENT RENDERS THE STATEMENT INADMISSIBLE IN EVIDENCE

Retraction or resiling from a confessional statement or denial by an accused person of having made such a statement as in this case does not ipso facto render it inadmissible in evidence. See EGBOGHONOME VS. STATE (1993) 7 NWLR (PT. 306) 383 AT 431. Therefore, the Appellant’s resiling from making Exhibits 3 and 5 or even denial during cross-examination does not render it unreliable for the purpose of convicting the Appellant. PER IDRIS, J.C.A.

WHETHER OR NOT THE TRIAL COURT CAN ADD OR ALTER THE CHARGE OF AN ACCUSED PERSON

That having been said, by virtue of Section 208 of the Criminal Procedure Code, the trial Court is empowered to alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused which was what happened in the case at hand. There is no evidence from the Appellant to show how the Appellant was prejudiced by the substitution of the criminal charge against him, and I so hold. See also the case of THE STATE VS. OLATUNJI (2003) 14 NWLR (PT. 839) 138 AT PP. 163 – 164.
Also, the Appellant’s Counsel’s argument was not backed by even a single legal authority in support. The authority on double jeopardy which the Appellant cited, does not in any way apply to this case. The principle of double jeopardy as provided by Section 36(9) of the Constitution of the Federal Republic of Nigeria (1999) as amended states thus:
“No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal or a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.” (Emphasis Mine). PER IDRIS, J.C.A.

MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant along with one Michael Okeke were jointly charged before the trial Court in Charge No: KTH/33C/08 dated 6th June, 2008 for the offence of armed robbery punishable under Section 1 (2)(b) of the Robbery and Fire Arms Act Chapter R11 Laws of the Federation of Nigeria, 2004. Both of them pleaded not guilty to the one count charge.

Before the filing of the charge under reference, an earlier Charge No. KTH/18C/07 dated 8th October, 2007 was filed against the two accused persons, which said charge was substituted for the present charge. In the said former charge before it was substituted, the prosecution called (Five) 5 witnesses which include:
PW1 – Inspector Kasim Idris
PW2 – Chales Ahason
PW3 – Sgt. Moh’d Usman
PW4 – Inspector Yunusa Adamu
PW5 – Ogachukwu Ifounu

After the former charge was substituted with the present charge, hearing commenced afresh. The prosecution called Ogachukwu to testify as PW1, Moh Usman as PW2, Kassim Idris as PW3, Inspector Yunusa Adam as PW4 and Chales Ahson as PW5 in the trial.

The prosecution tendered 6 (Six) exhibits admitted in evidence as follows:
EXHIBIT 1 – a Knife
EXHIBIT 2 – a Knife Constructed like a pistol
EXHIBIT 3 – Statement of the Appellant recorded at Katsina State C.I.D.
EXHIBIT 4 – Statement of the Co-accused recorded at Katsina State C.I.D.
EXHIBIT 5 – Statement of the Appellant recorded at Sabon Gari Divisional Police Headquarters, Katsina).
EXHIBIT 6 – Statement of the Co-accused to the Appellant recorded at Sabon Gari Divisional Police Headquarters Katsina.

The Appellant on the other hand testified for himself and called one other witness. The Appellant did not tender any exhibit in the course of trial at the trial Court. The Appellant closed his case on the 12th day of May, 2011 and the matter was adjourned to the 7th day of June, 2011 for continuation of defence.

The other accused person also called 2 (two) witnesses and no exhibit was tendered. The said accused closed his case on the 7th day of June, 2011 and the case was adjourned to the 11th day of July, 2011 for address.

At the close of hearing, the parties addressed the Court and the case was adjourned for judgment. On the 2nd day of November, 2011, the learned trial judge, Honourable Justice Sada Abdulmumini delivered judgment in the Charge No: KTH/33/2008, found the Appellant guilty as charged, convicted and sentenced him accordingly.

Dissatisfied with the said judgment of the lower Court, the Appellant filed a Notice of Appeal dated the 22nd day of January, 2012 comprising of Nine (9) Grounds of Appeal. The Appellant later filed an Amended Notice of Appeal on the 30th day of May, 2017 comprising of 12 Grounds of Appeal.

The Appellant also filed his Appellant Brief of Argument dated the 9th day of May, 2017 and filed on the 30th day of May, 2017 which was settled by his Counsel J. J. Usman, Esq., wherein Seven (7) issues for determination were distilled as follows:
1. Whether the lower Court lacked the jurisdiction to entertain the matter. (Distilled from Ground 10 of the Notice and Grounds of Appeal)
2. Whether it is not fundamentally fatal for the trial Court to neglect or refuse to comply with the post amendment requirements of charges as stipulated or provided by law. (Distilled from Ground 11 of the Notice and Grounds of Appeal)

3. Whether a judgment that is unsigned is not a nullity. (Distilled from Ground 1 of the Notice and Grounds of Appeal)

4. Whether the learned trial judge was right when his Lordship held that the Prosecution has proved its case beyond reasonable doubt against the Appellant. (Distilled from Grounds 6, 8 and 9 of the Notice of Appeal)
5. Whether the defence of alibi raised by the Appellant was sustainable. (Distilled from Grounds 2, 3 and 4 of the Notice and Grounds of Appeal)
6. Whether the learned trial judge was right when his Lordship admitted and relied on Exhibit 4 and 6 being the purported confessional statement of the Appellant to hold that the Appellant has confessed committing the offence, thus, convicted and sentenced the Appellant for the offence of armed robbery. (Distilled from Grounds 5 and 7 of the Notice and Grounds of Appeal)
7. Whether the learned trial judge was right when his Lordship granted the Respondent’s application for substitution of charge after calling 5 witnesses. (Distilled from Ground 12 of the Notice and Grounds of Appeal)

On the other hand, the Respondent on its part filed its Brief of Argument dated the 18th day of November, 2021 and settled by Abu Umar, Esq raising two issues for determination thus as follows:
1. Whether the trial Court (lower Court) had not complied with Sections 185 and 269 of the Criminal Procedure Code, Cap. 37, Laws of Katsina State, 1991 warranting this Honourable Court to set aside the decision of the lower Court.
2. Whether going by the totality of evidence led by the prosecution (Respondent) before the lower Court, the Respondent had proved its case beyond reasonable doubt against the Appellant.

One issue one, the Appellant’s Counsel has argued that where a charge is preferred against an accused person but not by the Attorney General, then leave is a condition for assumption of jurisdiction of the Court. Counsel cited the case of BATURE VS. STATE (1994) 1 NWLR (PT. 320) 267 AT 290 – 292 PARAGRAPHS G – E, per Ogundare JSC.

The Appellant’s Counsel further submitted that the law is now firmly settled that where the Court holds that the trial of the Appellant was based on a null and void charge, the Appellant is entitled to a discharge and acquittal. On this point, counsel referred to the case of BAGUDU DANGANA VS. THE STATE, APPEAL NO: CA/A/562C2/2015 delivered by Honourable Justice Moore A. A. Adumein, JCA on the 22nd day of July, 2016, Court of Appeal, Abuja Division (UNREPORTED).

Based on these arguments on this issue, the Appellant’s Counsel urged the Court to resolve this issue in favour of the Appellant.

In response to the arguments of the counsel to the Appellant, the Respondent’s Counsel submitted that going by the provisions of Section 185 of the Criminal Procedure Code (CPC), Cap 37, Laws of Katsina State, 1991, the leave of the High Court Judge was not necessary and thus the case of BATURE VS. STATE (1994) 1 NWLR (PT. 320) 267 AT 290 – 292 PARAGRAPHS G – E, per Ogundare JSC cited by the Appellant is not relevant to this case at hand as it was not decided based on the Criminal Procedure Code, Cap. 37, Laws of Katsina State, 1991 under which the Appellant in this case was tried and is still the relevant law applicable in Katsina State.

On issue two, the Appellant’s Counsel has argued that the learned trial judge erred when he continued with the matter, conducted trial and convicted the Appellant after the amendment of the Charge without taking the fresh plea of the Appellant after the amendment as provided for under the Criminal Procedure Code and this has thus rendered the entire trial a nullity. Counsel further argued that it was imperative for the trial Court to have taken the following steps:
a. The amended charge must be read and explained to the accused person. On this point, counsel cited Section 208(2) of the Criminal Procedure Code and the case of BASSEY VS. THE STATE (2012) 12 NWLR (PT. 1314) 209 AT 229 PARAGRAPH A – F (SC).
b. The plea of the accused must be taken after the amendment of the charge. On this point, counsel cited the case of AMAKO VS. THE STATE (1995) 6 NWLR (PT. 399) 11 AT 25 PARAGRAPHS C – D.

The Appellant’s Counsel submitted that there is nothing on the face of the record of proceedings of the trial Court to show that any of the above was done and so counsel urged this Court to allow the appeal.

In Response to this argument, the Respondent’s Counsel argued that the proceedings of 24th February, 2009 to 24th March, 2009 was misconceived and that on the 2nd day of February, 2009, the Respondent’s Counsel informed the trial Court that the Prosecution filed a Motion on Notice dated the 25th day of November, 2008 seeking for permission to include on the list of exhibits an item i.e. a toy pistol thereby seeking to amend the list of exhibits and not the charge, and that the application was granted and there was no need to take a fresh plea of the Appellant.

The Respondent’s Counsel also submitted that as to what transpired on the 14th day of August, 2008 when the lower Court granted the application of the Respondent where Charge No: KTH/18C/07 was substituted with Charge No: KTH/33C/08, on the 21st day of October, 2008, the Respondent following the said amendment, applied for the fresh plea of the Appellant to be taken on the same date. Counsel referred this Court to pages 55 – 57 of the Record of Appeal.

On issue three, the Appellant’s Counsel has argued that it is mandatory for the judgment of Court to be signed and dated at the time of delivery and an unsigned document is a worthless piece of paper. On this point, counsel cited the case of AWONIYI VS. ALESHINLOYE (1998) 9 NWLR (PT. 564) 71 AT 76 PARAGRAPHS C – D.

The Appellant’s Counsel further submitted that in this case, the judgment of the learned trial judge does not have his signature which automatically renders the judgment and by implication, the whole proceeding a nullity.

In response to this argument by the Appellant’s Counsel, the Respondent’s Counsel argued that after carefully perusing page 131 of the Record of Appeal, it is clear that what was there was “SIGNED HON. JUSTICE SADA ABDULMUMINI JUDGE 02/11/2011” and that it was in compliance with Section 269 of the CPC.

On issue four and six, the Appellant’s Counsel has argued that none of the prosecution witnesses mentioned the name of the Appellant for taking part in the robbery, and that none of the said witnesses established a case of armed robbery against the Appellant which is very fatal to the case of the Prosecution. On this point, counsel referred the Court to the case of OPAYEMI VS. STATE (1985) 2 NWLR (PT. 5) 101. Counsel also argued that the only reason adduced by the learned trial judge in upholding the guilt of the Appellant is that the Appellant was present when the robbery took place.

The Appellant’s Counsel submitted further that apart from the PW1 who mentioned the name of the Appellant, no other witness did and thus it suffices to say that the Respondent did not establish by credible evidence the involvement of the Appellant neither did the trial Court rely on any evidence other than the mere presence of the Appellant at the scene of crime which is not sufficient to render a person guilty. On this point, counsel cited the case of ORJI VS. STATE (2008) 10 NWLR (PT. 1094) 31 AT 54, PARAGRAPHS E – F AND PAGE 55 PARAGRAPH B.

The Appellant’s Counsel under issue six, argued that there is nothing outside the confessional statement of the Appellant to show that it is true and that there is no corroboration since there is a violent conflict between the evidence of PW1 – PW5 and that of the Appellant.

The Counsel to the Appellant further argued that if Exhibits 3 and 5 are removed from the record, the trial Court would not have arrived at the same judgment. The learned Appellant’s Counsel then urged this Court to set aside the judgment of the trial Court. Counsel also cited the case of STATE VS. OGBUBUNJO (2001) 2 NWLR (PT. 698) 576 AT 599 PARAGRAPHS D – E.

On the other hand, the learned Counsel for the Respondent in response to the argument of the Appellant’s Counsel, argued that from the testimony of the PW1 contained at page 64 lines 8 – 14 of the Record of Appeal, the prosecution was able to prove that there was a robbery and that the testimony was corroborated by Exhibits 3 and 5 which are the confessional statements of the Appellant.

The Respondent’s Counsel also argued that PW2 and PW3 vividly informed the Court of how they recorded the statement of the Appellant and that two knives were tendered through PW4 and were admitted and marked Exhibits 1 and 2 without any objection from the defence. The Respondent’s Counsel cited Section 1(2)(b) of the Robbery and Fire Arms (Special Provisions) Act.

The Respondent’s Counsel also argued that from the testimony of PW1, it is clear that the Appellant was the one who robbed the victim (PW1) and that the Appellant in his confessional statements confessed that he was the one who committed the alleged offence.

Counsel cited the case of HASSAN VS. STATE (2001) 15 NWLR (PT. 735) 184 AT PP. 199 – 202 PARAS F – C.

The Respondent’s Counsel also submitted that the nature of corroborative evidence required does not need to be a direct evidence linking the accused person to the commission of the offence and that it is sufficient even if it is only circumstantial and connects or leads to connect him with his commission. On this point, counsel cited the case of DURUGO VS. STATE (1992) 7 NWLR (PT. 225) P. 525 AT PARAS C – D.

On issue seven, the Appellant’s Counsel submitted that the Respondent had already called 5 (Five) witnesses and closed his case when he brought an application to substitute the charge and that the trial Court ought not to have allowed the substitution of the charge as the substitution was prejudicial to the Appellant and amounted to double jeopardy. On this point, counsel cited the case of NIGERIAN ARMY VS. AMINUN KANO (2010) 5 NWLR (PT. 1188) 429.

The Appellant also filed an additional authority in the case of OKEKE VS. STATE LPELR – 48974 (CA) which I have taken cognizance of.
RESOLUTION OF ISSUES
Having summarized the processes filed by the parties herein, this Court shall adopt the issues formulated for determination raised by the Appellant and address same as argued by the parties apart from issue five which was not addressed by the Appellant in his brief of argument. I shall therefore re-number the issues and address them hereunder.

ISSUE ONE
Whether the lower Court lacked the Jurisdiction to entertain the matter.

It is clear that the arguments of the parties herein borders on the jurisdiction of the trial Court to have entertained the charge before it as the case was said not to have been initiated by due process.

I have taken a careful look at the case and I have seen that the substantive Charge No: KTH/33C/08 which substituted the original Charge No. KTH/18C/07 was by an order made pursuant to Section 207 of the Criminal Procedure Code (CPC), Cap 37, Laws of Katsina State, 1991 and the Constitution of the Federal Republic of Nigeria. Following the pattern of this case also, I have noticed that the Respondent’s Counsel had placed reliance on the Criminal Procedure Code (CPC), Cap 37, Laws of Katsina State, 1991 and thus I do not have any doubt that the charge upon which the accused persons were brought before the Court was brought pursuant to the Criminal Procedure Code (CPC), Cap 37, Laws of Katsina State, 1991 just as the Respondent’s Counsel has argued.
By the provisions of Section 185 of the said law, the Respondent does not need the leave of the Court to prefer a charge. The said Section 185 which I have looked at provides thus:
“185. No person shall be tried by the High Court unless–
(a) A charge is preferred against him; or
(b) A charge of contempt is preferred against him in accordance with the provisions of Section 314 or Section 315.”
From the above provisions which the Respondent’s Counsel had also reproduced in his Brief of Argument, it is clear that no leave is required to prefer a charge in the High Court of Katsina State and thus the failure to seek leave to prefer the charge at the High Court does not affect the validity of the charge at all. Therefore, the case cited by the Appellant’s Counsel does not apply in this instant case. In this regard, it is my humble view that the charge was initiated by due process thus, the lower Court had the jurisdiction to entertain the matter and I so hold. This issue is thus resolved in favour of the Respondent.

ISSUE TWO
Whether it is not fundamentally fatal for the trial Court to neglect or refuse to comply with the post amendment requirements of charges as stipulated or provided by law.

An amendment of a charge pursuant to the provisions of Section 208 of the Criminal Procedure Code may be at the instance of either the prosecution or, suo motu by the Court. However, once the charge is amended, a host of rights inure to the accused person as carefully laid down therein and all of which prescribes the necessary procedure a Court shall adopt on granting the amendment of a charge which must be strictly complied with. These to a large extent are to ensure that the accused person is neither prejudiced nor suffers any injustice by virtue of the amendment. These procedures which inter alia include the reading and explaining of the amended charge to the accused person, the taking of his plea thereto and finding out from the accused person whether he is ready to proceed with his trial on such amended charge immediately or whether he would thereby be prejudiced in which case the trial shall be adjourned and granting the accused person and indeed the prosecution the opportunity to recall any witnesses who may have testified for further examination or cross-examination in the light of such amended charge must be strictly complied with. The provisions are mandatory and failure to comply with same will render any judgment delivered thereon void. See the case of PML (NIG) LTD VS. FRN (2017) LPELR – 43480 (SC) PG 90.

That being said, it is time for me to take a careful look at the record of appeal once again to see whether the Appellant did or did not take a fresh plea to the Amended Charge No: KTH/33C/2008.

Looking at the record of appeal, it is clear that trial had commenced in the Charge No: KTH/18C/07 before the Prosecution, now Respondent in this appeal, applied by a Motion on Notice dated the 9th day of June, 2008 and filed on the 10th day of June, 2008 to substitute the said charge with Charge No: KTH/33C/2008 and the application was granted by the trial Court on the 14th day of August, 2008. See pages 50 – 52 of the Record of Appeal.

On the 21st day of October, 2008, the Respondent’s Counsel applied to the trial Court that the charge be read to the accused person. See page 53 of the record of appeal.

On page 54 of the Record of Appeal it is clear that the charge was then read to the accused persons, they understood same and then took their plea thus:
“Court: In the circumstances, I will order that the charge be read and explained to the accused persons.
Charge No. KTH/33C/2008 Robbery S.1(2)(a) of the Robbery and Firearm Act read and explained to the accused persons
1st: I understand the charge I am not guilty of the offence.
2nd Accused: I understand the charge I am not guilty of the charge…”

However, another look at the Record of Appeal particularly pages 8, 60, 61 and 62 shows that the Respondent filed another motion dated the 25th day of November, 2008 applying for leave of the trial Court to include another item in its list of exhibits after the Appellant took his plea to the charge against him. The application was heard by the Court on the 24th day of February, 2009 and the trial Court gave its ruling granting the said application on the 24th day of March, 2009.
To my mind, the application to add an item on the list of exhibits does not warrant the taking of another plea by the Appellant after he had taken the plea in the substantive charge and the failure to do so did not in any way prejudice him. There is also no material placed before this Court by the Appellant showing that he was prejudiced by the said application or the subsequent order made by the trial Court for the addition of the stated exhibit to the list of exhibits which was already a part of the substantive charge. Also, any party during the subsistence of a matter, can make an interlocutory application which the Court is likely to grant or refuse and again, to my mind, this is clearly the situation in the instant case as it relates to the said application.
It is therefore my view that the trial Court did not neglect or refuse to comply with the post amendment requirements of charges as stipulated or provided by law.

This issue is therefore resolved in favour of the Respondent against the Appellant.

ISSUE THREE
Whether a judgment that is unsigned is not a nullity. The question that comes to my mind now is what is a signature? A signature is simply someone’s name or writing expressed in a unique manner consistently to identify the person and signify his consent to a document. The Court has defined it in accordance with the Black’s Law Dictionary to mean a person’s name or mark written by that person or at the person’s direction. See the case of MOHAMMED VS. MARTINS ELECTRONICS COMPANY LTD (2009) LPELR – 3708 (CA); AKINSANYA & ANOR VS. FMFL (2010) LPELR – 3687 (CA).
From the above authority, it is a signature of a person, when he authenticates a document by writing his name in the body. In this case, the full name of the learned trial judge was written thus: ”HON. JUSTICE SADA ABDULMUMINI”. I think more is not necessary.
It is therefore my view that the learned trial judge signed the judgment and he identified himself by his full name in the body of the judgment contained at page 137 of the record of appeal. By identifying himself in this manner, the learned trial judge demonstrated that he intended that the decision contained in his judgment be relied on. I hereby hold that the judgment of the trial Court was signed and thus not a nullity.

This issue is thus resolved in favour of the Respondent against the Appellant.

ISSUES FOUR AND FIVE
Whether the learned trial Judge was right when his Lordship held that the Prosecution has proved its case beyond reasonable doubt against the Appellant.
AND
Whether the learned trial judge was right when his Lordship admitted and relied on Exhibit 4 and 6 being the purported confessional statement of the Appellant to hold that the Appellant has confessed committing the offence, thus, convicted and sentenced the Appellant for the offence of armed robbery.

Looking at these issues four and five raised and argued by the parties, this Court is of the view that they can be considered together and the answer to one can result in the answer to the other or better still flow into the answer of the other.

In proving that a robbery has occurred, all the prosecution has to prove are that:
(a) There was a robbery or series of robberies
(b) The robbery or each robbery was an armed robbery
(c) The accused was one of those who took part in the armed robbery.

See ATTAH VS. STATE (2010) 10 NWLR (PART 1201)190, SUBERU VS. STATE (2010) 8 NWLR (PART 1197) 586.

At page 64 of the Record of Appeal, the PW1 gave evidence of how the robbery incidence took place. In his testimony, the PW1 narrated how the Appellant and another person came into the shop on the 11th day of June, 2008 while him and his brother were about to close the shop for the day and how the Appellant brought out a knife pistol and told him and his brother to lie down. The PW1 also gave evidence that the Appellant packed all the money in the locker where they kept it in the shop and then the Appellant stabbed him with a knife in the middle of his head. The PW1 also testified that the Appellant was later caught and another knife was found on him and afterwards, the two knives were handed over to the police.

This series of events from my view, did not only give the PW1 the ample time to recognize the Appellant but it also show that the Appellant threatened the PW1 and his brother with a knife and thus enabled him and his accomplice to part with the money from the locker and that the Appellant in carrying his threat further, stabbed the PW1.
During cross-examination, the PW1 reiterated that two knives were recovered from the Appellant and it was later handed over to the police.

The PW2 also confirmed in his testimony contained at page 65 of the record of appeal that the Appellant was brought into the Sabon Gari police station by one Chales Ahson together with his sales agent, Peter and the PW1 with two knives, one shaped like a military gun and the other a military knife.

The PW4 also testified in his evidence contained at page 70 of the Record of Appeal to receiving some items for registration as exhibits in connection with the case of robbery against the Appellant and the 2nd accused among them was a military knife and a knife constructed as a pistol. The military knife and the knife constructed as pistol were tendered through the PW4 and were admitted in evidence and marked as Exhibits 1 and 2 without any objection from the Appellant.

From the evidence as I have taken time to bring out carefully, it is clear that the testimonies of the Respondent’s witnesses were not discredited by the Appellant’s witnesses. Even the defence of alibi raised by the Appellant’s witnesses did not suffice as the Appellant failed to give sufficient particulars as to where he was on that day other than the place where the crime was committed at the earliest opportunity to at least enable the Respondent investigate. Instead, the Appellant’s witnesses raised this defence at the trial Court for the first time not giving time for the Respondent to investigate.

The above summary and circumstance of what transpired at the trial Court which I have been able to reproduce from the evidence of the parties at the trial Court clearly shows the presence of the ingredients of the offence for which the Appellant was charged and thus I can safely say that the Respondent was able to prove its case beyond reasonable doubt and I so hold. At this point, I need not say more on this issue because not only did the Respondent prove the case of Armed Robbery against the Appellant beyond reasonable doubt, the trial Court sufficiently x-rayed the evidence of the Respondent’s witnesses to show that the Respondent indeed proved the case against the Appellant beyond reasonable doubt. See pages 135 – 137 of the Record of Appeal.
On the other hand, the Appellant objected to the tendering of his confessional statements on the ground that it was not made voluntarily and thus a consolidated trial within trial was conducted. See Pages 76 – 96…

During the trial within trial, the PW1 and PW2 gave evidence as to the situation in which the Statements of the Appellant were taken and voluntarily too. On the other hand, the Appellant gave evidence as contained in page 89 of the Record of Appeal that he was given a statement written by Sgt Moh and forced to sign the statement as he was beaten up and taken to the General Hospital for the beating he received. However, there is no evidence by the Appellant showing that it was indeed the act of the Respondent that landed him at the hospital and that he actually went to the hospital as a result of the beating by the Respondent forcing him to sign the statement. I think in this particular scenario, medical evidence would have done much good.

The Court rightly admitted the statements of the Appellant in evidence and held that the weight to be attached will depend on the circumstance of the case. In my view, the admission of the statements of the Appellant in evidence at this point was rightly done and as seen during the trial within trial, the Appellant retracted the statement and all that was left was for the Court to determine the weight to be attached to them.

Retraction or resiling from a confessional statement or denial by an accused person of having made such a statement as in this case does not ipso facto render it inadmissible in evidence. See EGBOGHONOME VS. STATE (1993) 7 NWLR (PT. 306) 383 AT 431. Therefore, the Appellant’s resiling from making Exhibits 3 and 5 or even denial during cross-examination does not render it unreliable for the purpose of convicting the Appellant.

In giving his evidence in the substantive trial as contained at page 98 of the Record of Appeal, the Appellant stated that he was attacked, sustained some injury, lost consciousness as a result and recovered at the General Hospital, Katsina. This happened before he was brought to the station to take his statement and thus this evidence to my mind disqualified his evidence in the trial within trial that he was beaten and forced to sign the statements which were also not made by him and thus affected the weight that could have been attached to them. I do not think that the trial judge was wrong in relying on Exhibits 3 and 5 which confession to me was corroborated by the unchallenged evidence of the PW1 – PW5 which evidence was also supported by Exhibits 1 and 2 and which was not objected to by the Appellant upon tendering same.

Having the totality of evidence in mind, it is my view that the trial Court was not wrong to have admitted Exhibits 3 and 5 which I think the Appellant made reference to in their argument under issue five of their argument and not Exhibits 4 and 6 which is the co-accused’s statements. Conclusively therefore, I hereby hold that the learned trial judge was right to have admitted and relied on Exhibits 3 and 5 being the confessional statements of the Appellant to hold that the Appellant has confessed to committing the offence thus convicting and sentencing the Appellant for the offence of Armed Robbery.

This issue is thus resolved in favour of the Respondent against the Appellant herein.

ISSUE SIX
Whether the learned trial Judge was right when his Lordship granted the Respondent’s application for substitution of charge after calling 5 witnesses.

Generally, the aim of every established Court is to promote justice and fairness among litigants. In so doing, the Court accommodates mechanism and ideas that are fair and necessary in order to arrive at justice. One among the many mechanisms put in place by the Court is the power of the Court to amend processes at any time before judgment is delivered.
In that sense, nothing shall prohibit a trial Court acting within the ambit of the law to arrive at a just conclusion of a case including the power to amend a criminal charge.
That having been said, by virtue of Section 208 of the Criminal Procedure Code, the trial Court is empowered to alter or add to any charge at any time before judgment is given or verdict returned and every such alteration or addition shall be read and explained to the accused which was what happened in the case at hand. There is no evidence from the Appellant to show how the Appellant was prejudiced by the substitution of the criminal charge against him, and I so hold. See also the case of THE STATE VS. OLATUNJI (2003) 14 NWLR (PT. 839) 138 AT PP. 163 – 164.
Also, the Appellant’s Counsel’s argument was not backed by even a single legal authority in support. The authority on double jeopardy which the Appellant cited, does not in any way apply to this case. The principle of double jeopardy as provided by Section 36(9) of the Constitution of the Federal Republic of Nigeria (1999) as amended states thus:
“No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal or a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.” (Emphasis Mine)
From the above, it is clear that the principle of double jeopardy does not apply at all to this case. A charge that has been substituted or altered or amended does not amount to a new or different criminal proceeding. It is thus on the above finding that I am of the opinion that the learned trial judge was right when he granted the Respondent’s application for substitution of the charge after calling 5 witnesses because he is empowered to do so at any stage of the criminal proceeding provided there is no proof of miscarriage of justice on the Appellant.

This issue is thus resolved in favor of the Respondent against the Appellant.

On the whole therefore, it is my view that this appeal filed by the Appellant herein lacks merit and same is accordingly dismissed. I uphold the judgment of the trial Court in respect of the Appellant and also the conviction and sentence of the Appellant by the trial Court. I make no further order as to cost.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA and I entirely agree with his reasoning and conclusions that the appeal lacks merit and same is dismissed.

I abide by the consequential order(s) in the lead judgment.

KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA. This appeal is lacking in merit and hereby dismissed. I also affirm the conviction and sentence of the Appellant by the lower Court.