INIABASI OKON UWEH v. THE STATE (2012)

INIABASI OKON UWEH v. THE STATE

(2012)LCN/5703(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of December, 2012

CA/C/40C/2008

RATIO

CRIMINAL LAW: MEANING OF A CONFESSION

Now, by virtue of the provisions of Section 28 of the Evidence Act 2011 as amended (27 (1) of the Evidence Act, 2004) a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Gira v. State (1996) 4 NWLR (443) 375; Sam v. State (1991) 2 NWLR (176) 699. For a statement therefore to be a confession in law, there must something in it which either directly admits or reasonably suggests the inference that the maker, being a person charged, accused or suspected at the time of making the statement, committed the crime he is being accused of. PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: LEGAL DUTY OF THE PROSECUTION THROUGHOUT A TRIAL

In criminal law, it is now elementary that it is the legal duty of the prosecution throughout a trial, to prove the charge against an accused person beyond reasonable doubt. The law is also known that all the essential ingredients or elements of the charge must be proved in community in order to discharge the burden of proof and secure a conviction for the charge against an accused person. What amounts to proof beyond reasonable doubt has also been firmly settled by judicial authorities such that the law is now beyond argument on the issue. See section 138 (1) and (2) of the Evidence Act, 2004 (now section 139 (1) and (2) of the 2011 Act); Bakare v. State (1987) 3 SCNJ 1; Akinfe v. State (1988) 3 NWLR (85) 729; Adisa v. State (1991) 1 NWLR (168) 490; Nwambe v. State (1995) 3 SCNJ, 77; Udo v. State (2006) ALL FWLR (337) 456. PER MOHAMMED LAWAL GARBA, J.C.A.

CRIMINAL LAW: IN WHOSE FAVOUR SHOULD THE ISSUE OF DOUBT

Another trite principle of criminal law is that any doubt which exists or is left in the evidence of the prosecution on any of the essential elements of a charge against an accused person, must be resolved in favour of the accused person. See Onuoha v. State (1998) 5 NWLR (548) 118; Baruwa v. State (1996) 7 NWLR (460) 302; Emine v. State (1991) 7 NWLR (204) 480. PER MOHAMMED LAWAL GARBA, J.C.A.

CRIMINAL LAW: ELEMENTS OF PROVING THE OFFENCE OF ROBBERY

Learned counsel for the Respondent is right that the essential elements of the offence with which the Appellant was charged, i.e. robbery, under Section 402 of the Criminal Code, Cross River State are as follows:-

a) that there was a robbery
b) that the robbery was done or committed while armed with offensive weapons and
c) that the accused person participated in the robbery or was one of the robbers.

See also the cases of Okafor v. State (2006) ALL FWLR (318) 719 and Otit v. State (1991) 8 NWLR (207) 103, in addition to the cases cited by counsel. PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

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

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

INIABASI OKON UWEH – Appellant(s)

AND

THE STATE – Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the High Court of Akwa Ibom State sitting at Uyo for a charge of robbery contrary to Section 402 of the Criminal Code, Cap 31, Vol. 2, Laws of Cross River State applicable to Akwa Ibom State. The charge alleged that on or about the 4th day of April, 1999 at No. 145, Aka Road, Uyo, the Appellant in company of other persons at large and armed with offensive weapons, to wit; local pistols, robbed Bafil Company (Nig) Ltd. of the sum of N2,184,023.00. The prosecution had called three (3) witnesses in proof of the charge and the Appellant testified and called a witness to defend the charge. At the end of the trial, the High Court found the Appellant guilty in the judgment delivered on the 31/5/2007 against which the present appeal was filed, and sentenced him to fourteen (14) years imprisonment.

The notice and grounds of the appeal dated and filed on the 24/8/07, contained four (4) grounds of appeal. With the leave of the court, an amended notice of appeal dated the 10/12/10 was deemed to have been properly filed on the 12/5/2011. The amended notice of appeal contains five (5) grounds of appeal from which the learned counsel for the Appellant had distilled three (3) issues for determination in the Appellant’s brief filed on 10/2/11 but deemed filed on the same date with the amended notice of appeal; i.e. 12/5/2011 appeal. They are as follows:

1. Whether the trial court was right in placing reliance on the confessional statement to convict the accused? (distilled from ground 1)

2. Whether the learned trial judge was right in relying upon the evidence of PW3 being hearsay evidence? (distilled from ground 2)

3. Whether the prosecution had proved the Appellant’s guilt beyond reasonable doubt having regard to the fact that the only eye witness PW2, was motivated by malice and the manifest contradictions in the evidence of the prosecution? (distilled from grounds 3, 4 and 5).

Similar issues were raised at page 3 of the Respondent’s brief filed on the 5/3/12 and deemed filed on the date of the oral hearing of the appeal; the 6/11/12. They are in the following terms:-

1. Whether the trial court was right in placing reliance on the Appellant’s confessional statement to convict the Appellant.

2. Whether or not the evidence of PW3 was hearsay evidence.

3. Whether the prosecution had proved the Appellant’s guilt beyond reasonable doubt and whether there were contradictions in the evidence of the prosecution.

At the hearing, Mr. Iniabasi Udobong, Esq. counsel who settled the Appellant’s brief adopted it as his submissions in support of the appeal and urged us to allow the appeal, set aside the decision of the High Court and enter an order discharging and acquitting the Appellant of the charge he was convicted of.

Mr. Samuel Akpabio, Esq., who appeared for the Respondent adopted and relied on the Respondent’s brief in urging us to dismiss the appeal and affirm the decision of the High Court.

Since the issues formulated by the learned counsel in their respective briefs are similar in form and the same in substance, I intend to use the ones submitted in the Appellant’s brief for the determination of the appeal.

ISSUE NO.1

The learned counsel for the Appellant had submitted on the issue that the

Appellant had at the trial, vehemently challenged the confessional statements credited to him and admitted as Exhibits 7.7a, 7b, 7c, 11, 11a,11b and J on the ground that he was shot on his feet by the police and therefore forced to sign them. That the said statements were not voluntarily made by the Appellant. Learned counsel had referred to the evidence of the Appellant at page 58 of the record of the appeal and that of PW1 under cross examination, at page 78 of the record of the appeal in support of the submission. It was his further submission that the PW1 had stated that he did not recover anything to show that the confession was true or that he investigated the truth of the confession. In further argument, counsel said PW2 who was the only eye witness did not mention anything about the other members of staff who were alleged in the Appellant’s confession to be with him at the time the offence was committed and that PW2 and the Appellant were not in good terms. According to him, the High Court despite the denial by the Appellant that the statements were not made by him, the High Court relied solely on them to convict the Appellant, relying on the finding by the court in the judgment, particularly at pages 26 and 27 of the record of the appeal and contending that the law is that an accused was to deny his statement at the defence stage. He cited the case of Eguabor v. Queen (No.1) (1962) 1 SCNLR, 409 at 410, for the argument and said the Appellant did the proper thing when he denied making the statements during his defence.

In addition, it was submitted that the High Court should have conducted a trial within trial to determine the voluntariness of the confessional statement, on the authority of Odidi Ozo v. State (1987) 2 NSCC, 1239 at 1246, 1247 and 1249 – 50, passages of which were set out by learned counsel. The case of Gbadamosi v. State (1992) 3 NSCC 439 was also cited and we were urged to hold that failure by the High Court to hold a trial within trial before admitting and relying on the confessional statements had occasioned injustice to the Appellant. Learned counsel said because the people named in the confessional statement to have participated in the robbery did not give evidence at the trial, there was no corroboration of the confession. Although conceding to the law that a confessional statement alone is sufficient to ground a conviction once the court is satisfied with its truth, as matter of practice, the courts usually require some evidence outside the confessional statement which makes it probable that it was true. He said in determining the truth and veracity of the confession, the court must be satisfied that it passes the following tests before relying solely on it to convict the accused person:-

a) Whether there is evidence outside the confessional statement to show that it is true;

b) Whether the confessional statement is in fact corroborated;

c) Whether the statement of facts made in the confessional statement could be tested as true;

d) Whether the accused person really had the opportunity of committing the offence charged;

e) Whether in the surrounding circumstances of the case, the confessional statement of the accused person was possible, and

f) Whether the confession was consistent with other facts which were ascertained and proved at the trial. See the case of Shade v. The State (2005) 1 NWLR (Pt.907) 218 at 240 paras H, A – C. See also Ikpo v. The State (1995) 9 NWLR (pt. 421) 540.

It was argued that the High Court did not test the confessional statements of the Appellant before relying on them to convict him and we were urged to resolve the issue in favour of the Appellant and quash his conviction.

For the Respondent, it was pointed out that the confessional statements by the Appellants were tendered during the trial and admitted in evidence by the High Court without any objection by the Appellant, citing pages 25 – 26 of the judgment of the High Court, an extract of which was set out in the Respondent’s brief. Pages 73 and 76 of the record of the appeal were also referred on the point and it was pointed out that it was only when the Appellant entered his defence that he in his testimony tried to impeach the statements by saying that they were not made voluntarily. The learned counsel for the Respondent had said that contrary to the argument of the Appellant’s counsel, the law is that if an accused person wishes to challenge a statement attributed to him, the proper time for him to do so is when it was sought to be tendered in evidence and not later. He cited and referred to the statement of the law on the point by the Supreme Court in the cases of Olalekan v. State (2001) 18 NWLR (746) 793 at 809;

Alarape v. State (2001) 5 NWLR (705) 79 at 100 and Nwachukwu v. State (2007) 17 NWLR (1062) 31 at 71 and submitted that the High Court was right to have relied on the confessional statement made voluntarily by the Appellant because the case of Obidiozo v. State (supra) cited by the Appellant’s counsel requires that the objection by the Appellant must be raised before the statement was admitted in evidence and not later. He said further that the Appellant’s case was not a proper one for the holding of a trial within trial since he did not object to the admission of the statement when it was tendered, citing the authorities of Nwachukwu v. State (2004) 17 NWLR (902) 262 at 273 and Mohammed v. State (2007) 13 NWLR (1050) 186 at 207 on when a trial within trial was necessary in a trial. It was also the submission of counsel that the High Court had tested the truth and veracity of the statements in line with the law at pages 23-28 of the judgment which now appears at pages 153 – 158 of the record of appeal. Furthermore, that the High Court had considered the evidence PW2 & PW3 which shows that the statement was true and we were urged by counsel to resolve the issue in favour of the Respondent.

I would pause here to consider the issue before a review of the submissions by counsel on the other issues. Now, by virtue of the provisions of Section 28 of the Evidence Act 2011 as amended (27 (1) of the Evidence Act, 2004) a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. See Gira v. State (1996) 4 NWLR (443) 375; Sam v. State (1991) 2 NWLR (176) 699. For a statement therefore to be a confession in law, there must something in it which either directly admits or reasonably suggests the inference that the maker, being a person charged, accused or suspected at the time of making the statement, committed the crime he is being accused of.

I have employed the use of the words “accused or suspected” alternatively with the words “charged” used in the Evidence Act because in practice, such statements are usually made in the course of investigation of the crime by the police and before a person suspected of the crime was actually charged before a court of law on the basis of the information gathered during the investigation which includes the statements made to the police.

A confession by a person charged with a crime before a court of law, as envisaged by the provisions of the Evidence Act may only be made to the court at the trial or after the charge was preferred before the court, when the person accused intends to surrender to the law. There is no evidence stronger or better than a person’s own admission or confession in the proof of a crime with which he was suspected and/or charged and so it is admissible in evidence if freely and voluntarily made by virtue of the provisions of sections 29(1) and (2) of the 2011 Evidence Act (28) of the 2004 Act. A free and voluntary confession which is properly proved to the satisfaction of a court is sufficient in law to ground and sustain a conviction without any corrobative evidence so long as the court is satisfied that it was true in so far as can be tested from the undisputed or uncontroverted facts before it. See Nwuebon v. State (1994) 5 NWLR (343) 130; Akpan v. State (1987) 5 SCNJ, 112; Aremu v. State (1991) 7 NWLR (201) 1; Edhigere v. State (1996) 8 NWLR (464) 1; Idowu v. State (2000) 7 SC (II) 50.

However, the law is as stated by the learned counsel for the Appellant, that as a matter of practice, the courts have over the years insisted that in cases of statement by accused persons during the investigation of the crime they were suspected of and before being charged to court, in addition to testing the voluntariness of a confession, it is desirable to have some evidence outside it which make it probable that it was true. See Nwaeze v. State (1996) 2 NWLR (428) 1; Akinmoju v. State (2000) 4 SC (I) 64; Dibie v. State (2007) 9 NWLR (1038) 30; Ada v. State (2008) 7 MJSC, 51; Timothy v. FRN (2012) 5 – 7 MJSC (I), 98 at 114.

In the present appeal, the statements attributed to the Appellant were tendered by the prosecution through PW1 in his examination in chief. The first set of the statements were tendered on 8/3/06 and the proceedings went thus:-

“PW1 contd: The accused person wrote the statement by himself, read it to me and signed it and I counter signed. He made statement 4 times all by himself. These are the statements the accused made to me. 2 of them on 12/4/99. I took the statement and the accused person before my Superior Officer and accused person read the statement before my Superior Officer and my Superior Officer countersigned all the statements.

Counsel: we seek to tender the statements as exhibits.

Counsel for the accused person: No objection.

Court: The statements of the accused person identified by him, dated 12/4/99, 16/4/99, 17/4/99 and 18/4/99 are herein admitted in evidence and marked exhibits 7, 7A, 7B and 7C respectively.

(Sgd) Ita G. Mbaba

Judge

8/3/09”

The second set of the statements by the Appellant were tendered through the same PW1, on the 18/5/06 and proceedings of the High Court which appear at pages 75 – 76 of the record of the appeal would best speak for me. They are as follows:

“PW1 contd: The statement of the accused were also sent with the case file to the SIB from the ‘A’ Division. These are the statements – 3 of them.

Counsel: we apply to tender the statements as exhibit.

Counsel for the Accused person. No objection.

Court: The statements of the accused person sent from the ‘A’ Division with the case file to SIB dated 5/4/99, 5/4/99 and 9/4/99 are hereby admitted as exhibits 11, 11A and 11B respectively.

(Sgd) Ita G. Mbaba

Judge

18/5/06”

Undoubtedly, the statements communally, are in the nature of an admission by the Appellant stating that or at least reasonably suggesting the inference that he along with others named therein, committed the offence with which he was accused and eventually charged before the High Court. They in law amount to a confession by the Appellant to the commission of the crime with which he was charged and from the unchallenged testimony of PW1, that the Appellant wrote the first set of the statements himself, i.e. Exhibits 7, 7A, 7B and 7C, and was taken to a superior Police Officer before whom he confirmed to have made them voluntarily, the said statements were made freely and voluntarily by the Appellant. In other words, the statements were free and voluntary confession made by the Appellant in respect of the crime he was charged with. It may be recalled that the complaint was that the Appellant had denied making the statements voluntarily at the trial. However as clearly demonstrated in the extracts of the proceedings during which the statements were tendered, the learned counsel for the Appellant unequivocally, stated that he had no objection to the admission of the statements in evidence.

As rightly stated by the learned counsel for the Respondent, there is a plethora of judicial authorities on the law that the proper stage at which an accused person should challenge any statement credited to him in the course of his trial, on any ground, is/was when such statement was tendered by the prosecution in evidence. In particular, where an accused person alleges that a statement which amounts to a confession to the commission of the offence he was charged with and credited to him was not made by him voluntarily and freely, the proper stage at which he or his counsel, as the case may be, should challenge the statement in the course of the trial was when the prosecution seeks/sought to tender or put the said statement in evidence as part of the evidence it intends to rely on in proving the charge against him. Only recently, the Supreme Court had in the case of Oseni v. State (2012) 2 MJSC (II) 98 at … restated the principle of law on the point as follows:

“Another principle of the criminal law which has been consistently repeated in our law reports is at what time does an accused person object to the admissibility of a statement credited to him as his confession? This court in its several decisions answered the question in the following words. “the question of the voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statements were tended (sic) without any objection from the defence. None of the prosecution witnesses were cross examined as to their involuntariness. It was not until the prosecution had closed its case and the appellants were testifying in their own defence in the witness box that the issue was belatedly raised. The trial judge was right to dismiss this aspect of the defence case as an afterthought.”

See also the cases of Alarape v. State (supra); Olalekan v. State (supra); Nwachukwu v. State (supra) where in the position of the law was affirmed by the apex court and the case of Afolalu v. State (2009) 3 NWLR (1127) 160 at 193 cited in the Respondent’s brief, in which this court followed it when it held that-

“As to the time when a voluntary statement can be retracted that is the proper time to object to its admission on grounds that it was made under duress etc, the law is clear that the objection must be made by the accused or his counsel when the statement is sought to be tendered. Any retraction by an accused at a late date or time does not affect the voluntariness. There would then be no need for trial within trial when no objection is raised at the time the statement is tendered for admission. See Monday Edhigere v. The State (1996) 9 – 10 SCNJ 36; (1996) 8 NWLR (Pt.464) 1; Asimiyu Alarape & Ors. v. The State (2001) 2 SCNJ 162 or (2001) 5 NWLR (Pt.705) pg. 79. The attempt of the appellant to retract the statement during his defence on oath was belated and the learned trial judge rightly ignored it.”

In the premise of the above extant position of the law, the High Court was, therefore on a firm terrain of the law when it stated in its judgment that:-

“It was surprising that the accused person and his counsel did not contest the veracity of the confessional statement at the time of tendering the same to be admitted as exhibit. The accused person freely and voluntarily admitted them (confessional statements) only to turn tigger at the time of his defence, and try to impeach the confessional statements! This is not proper.

It is never done that way. One who objects to the tendering of evidence (Exhibit) which he disputes, must do so at the time of tendering the document. In the case of Uluebeka v. State (supra) held 13, the Supreme Court said “where the confessional statement of an accused is voluntary and properly admitted, the fact that same is later retracted is immaterial.”

In that case of Uluebeka v. State, the Supreme Court also referred to the case of Mohammed v. Kano N. A. (1968) 1 ALL NLR 424, and noted that Exhibit 1 (confessional statement) tendered in that case was not objected to when the prosecution tendered it, and held (ratio 12) as follows:-

“… Exhibit 1 is voluntary and there was no objection when the prosecution tendered it. It is part of the evidence before the court which the trial judge considered along with other pieces of evidence before he came to the conclusion that the prosecution proved its case beyond reasonable doubt and found the accused guilty as charged”

Throughout the oral evidence of the DW1 (Accused person) in court, he never categorically or at all denied the charge, apart from what he stated in his plea. Of course, he could not have done so, with the various statements he earlier made to the police admitting the offence!

He was then belatedly, trying to distance himself from the said statements.

I think that was an after thought, schemed after the prosecution had conducted its case, and done to take the prosecution by surprise. By putting up the denial of the confessional statements at the time of defence, after the prosecution had conducted its case, I think the defence was simply embarking on a course of blackmail against the prosecution, to whip up sentiments and win some sympathy to derogate from the strength of the confessional statements. That was not a fair practice. That defence should have come at the time of admission of the confessional statements, for the court to conduct a trial without trial, to ascertain the truth of the statements, if the Accused person sincerely denied it. Olalenkan v. State (2001) 18 NWLR (Pt.746) at 793 held 8.”

It is therefore beyond viable argument that the High Court was right in the above finding that the Appellant’s denial of making the statements voluntarily while giving evidence after the prosecution had closed its case, was clearly an afterthought and I would add that it was merely made to obfuscate issues and a ploy to hoodwink the High Court to overlook a very vital piece of evidence adduced by the prosecution. It is good that the High Court through the law which is consistent saw the ploy for what it was and rejected it.

Because the allegation that the confessional statements were not made voluntarily was made after the prosecution had closed its case and when the Appellant had commenced his defence, the need to conduct a trial within a trial to determine the allegation did not arise. It must be remembered that the need for a trial within trial would arise only at the stage a confessional statement is tendered and before its admission in evidence. Since the law is that a confessional statement not freely and voluntarily made is not admissible in evidence, the object of a trial within trial is to determine whether it was made voluntarily or not where an objection was raised by an accused person that it was not when the prosecution tenders it for the purpose of admission in evidence. If no objection on the voluntariness of the confession was raised at the time it was tendered and so it was admitted in evidence, then as demonstrated in the cases cited earlier, such objection would not go to and affect the admissibility of the confession already in evidence without objection. In such a case, the court may however take it into account in the assessment of the weight to be accorded the confession in the evaluation of all the evidence adduced by the prosecution in the case. See Ukpong v. Queen (No.1) (61) 1 SCNLR 53; Oche v. State (2007) 5 NWLR (1027) 214; Dibie v. State (supra).

The learned counsel had also attacked the judgment of the High Court on the ground that it did not test the truth of the confessional statement by the Appellant. I would want to say here that the desirability of looking or requiring evidence outside a confession which makes it probable that it was true, depends on the facts and circumstances of the confession. Where it is direct and positive leaving no other possibilities that the maker did not commit the offence or crime which he voluntarily and freely admitted committing to, require other or further evidence outside the confession to test its truth, would in my view, raise the standard of proof required by law from proof beyond reasonable doubt to that beyond all or any shadow of doubt. Because the law recognizes that there is no evidence stronger or better than a person’s own admission or confession to a crime freely and voluntarily made by him, the desirability of extra evidence outside of the confession and in addition thereto, would not arise in such a situation.

In the judgment appealed against, the High Court though did not go specifically looking for other evidence outside the confession by the Appellant had stated that:

“The contents of each of the statements are consistent on how the robbery was planned and executed at the Bafil Filing Station, and the role the Accused person played, as well as other members of the gang, the money they took, and shared and the injuries inflicted on the PW2- the Security man at the station.”

In effect, the finding by the High Court in the above statement is that the confession by the Appellant was consistent on how the crime was committed even though the statements were made at different times and places, giving exact account of what actually happened and who participated in the commission of the crime. The finding is amply supported by the unchallenged evidence of PW2, an eye witness on the commission of the crime by the Appellant and the others. In fact the High Court had found as follows at page 157 of the record of appeal:-

“His confessional statements agreed substantially with the evidence of PW2 (a security man) and PW3, with regard to the account of the robbery and the events about the conduct of the accused person before the robbery and after the robbery.”

In my view, no reasonable doubt exists in the truth of the confession by the Appellant and the High Court was right to have relied on it in its decision of the charge against the Appellant. Although the learned counsel for the Appellant had said that PW2 was not in good terms with the Appellant, he did not suggest that because of that, the evidence of PW2 was not admissible or credible in law. PW2 was not a co-accused nor a tainted witness who had his own purpose or interest to serve in the case but was a victim of the crime committed by the Appellant. In the case of Oteki v. Attorney General of Bendel State (1986) 2 NWLR, 648, it was held that, “if the evidence led is true in fact, the fact that a witness has a grouse against an accused person and the fact that the trial judge did not warn himself, will not weaken its validity. It cannot be seriously contested that where the evidence is direct and unassailable, the mere fact that the witness is the accused’s mortal enemy will render his evidence unreliable.”

Since the evidence of PW2 was direct and unassailed at the trial, the fact that he was not in good terms with the Appellant, has no adverse effect on it and it goes to make the Appellant’s confession as far as the undisputed facts of the case could be tested, true. The High Court was satisfied of the truth of the confession and was right to have relied on it solely in finding the Appellant guilty of the offence he was charged with. I find no merit in the submissions of the Appellant on the issue and resolve it against him.

ISSUE 2

Whether the learned trial judge was right in relying upon the evidence of PW3 being hearsay evidence.

After defining what hearsay evidence is and that it was not admissible in law, on authorities of J.S.C. v. Omo’ (1990) 6 NWLR (157) 407 at 415 and Achora v. A.G Bendel State (1990) 7 NWLR (160) 92 at as…… as respectively, learned counsel for the Appellant had argued that the evidence of PW3 amounts to hearsay evidence and therefore inadmissible. We were urged to hold that the High Court erred in law in admitting it in evidence and because it was said to have been the basis of the conviction of the Appellant, to quash the conviction.

For the Respondent, a portion of the evidence in chief of PW3 was set out and it was submitted on the issue that his testimony was based on what he saw and not what he was told by another person. That the evidence was not hearsay but direct oral evidence of the facts which the witness saw and we were urged to resolve the issue in favour of the Respondent.

I would begin a consideration of the issue by saying that the words “hearsay evidence” only came into our Evidence Act very recently, in the Evidence Act, 2011, as amended. Hitherto, it had been a common law principle which our courts over the years had adopted and applied as a principle of our evidence law, relying on the provisions of Section 77 of the previous Evidence Act, which required that oral evidence in all cases, must be direct from a witness who saw, heard or perceived of the facts in respect of which he testifies. Speaking generally, hearsay evidence arises where a witness in his testimony before a court of law repeats or relies on a statement, written or oral made by another person in order to prove the truth of the facts stated therein. Section 37 of the Evidence Act, 2011, defines the word “Hearsay” as follows:-

“37. Hearsay means a statement-

(a) oral or written made otherwise than by a witness in a proceeding;

b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.”

Then Section 38 provides thus on the admissibility of hearsay evidence:-

“38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.”

From the above provisions, it is clear that whether the evidence of a statement oral or written, by someone other than the witness testifying in the course of proceedings before a court of law, is inadmissible as hearsay evidence, depends on the purpose for which the evidence is given or tendered by the witness. It is hearsay evidence and therefore inadmissible if tendered or given to prove the truth of the facts asserted as provided by the above provisions of the two sections of the Evidence Act. It is not hearsay and therefore admissible in evidence if it is only intended to be used to show simply, the fact that it was made. The provisions above have their origin from the common law principle applied in the famous case of Subramaniam v. Public Prosecutor (1956) 1 NWLR 956 by the Privy Council where it explained that:-

“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”

Like I said before now, our courts have over the years adopted and applied the above principle which informed its incorporation in our Evidence Act. Some of the cases in which it was applied by the Supreme Court are Ozude v. IGP (1965) 1 ALL NLR, 102 Pharmacists Board of Nig. v. Adegbesote (1986) 10 – 11, SC. 97, (86) 5 NWLR, 707; Aiworo v. State (1987) 2 NSCC, 710; Utteh v. State (1992) 2 NWLR 251; Kalu v. Potiskum (1998) 3 NWLR (540) 1; Buhari v. Obasanjo (2005) 7 SC (I) 1.

The question that needs to be answered initially in this appeal is whether PW3’s evidence is based on the statement by a person who himself was not called as a witness at the trial of the Appellant given for the purpose of proving the truth of the facts stated therein. The evidence-in-chief of PW3 is at pages 83 – 85 of the record of the appeal and it is expedient for it to speak for itself. It is thus:

“PW3 affirms to tell the truth. My name is Mr. Bassey Etim. I live at No.5 Williams Lane, Uyo. Currently I work as a member representing Uyo Federal Constituency in the House of Representative at Abuja. As at 5/4/99 I was the Chief Executive of Bafil Company Nigeria Limited. I know the accused person. I know why he is in court. On 5/4/99 in the early morning, a security man who was working with me. Edem Okon, after he had closed from work in my house, came back to me, about 30 minutes after, reporting that when he went to Bafil Filling station at 145 Aka Road, Uyo to call his colleague Edem Akpan, a security man then at the Petrol station, he met him in a pool of blood, seriously wounded. He, Edem Akpan told him Edem Okon, that thieves entered the station and wounded him, stole things from the station. I quickly followed him to the station. When I got there, I saw Mr. Edem Akpan being tied with a wrapper. He had wounds all over his body. He Edem Akpan, was shouting “Sir Iniabasi Sir Iniabasi… Sir Iniabasi anwot”. He said that Iniabasi came with some armed people and beat him with rods, tied him and put him in the serving bay. At that point I took him to the General Hospital, Anua for treatment. I left him there and returned to my station. When I got to the station I discovered that the main entrance door to the staircase was broken. I moved into where we had the strong room where we stored the safe. The entire protector and the doors were also destroyed. The safe where we normally put money was broken completely and there was no money in the safe. The entire money in the safe was removed. I sent for the Cashier. The cashier came and confirmed that a total of over 2 million Naira was taken away by the armed robbers. I went back to the police at “A” Division and reported the incident. I made the report in writing. This is the report I made to the police. Exh. 8. The matter was later transferred to the State police Headquarters at Ikot Akpan Abia. There I adopted the earlier statement I made by means of Exhibit 1. The Police later came to the station to ascertain what happened. They asked me where Iniabasi was living. I directed one of my workers who knew the place to take the police to the house of Iniabasi. The police did not see him in the house but saw the mother who said he was not in and did not sleep in the house that night. I later sent my workers to and tell the mother to call Iniabasi for me, but should not tell her what happened. Later that day at about 9.00a.m., Iniabasi came to the station. I told him what the security man told me that thieves came in the night and that he was seen with them. I told him I was going to report the matter to the police (I did not tell him I had already reported to the police); that if he can give me the money I will not report the matter. At that point he promised to take me to where the money was. While we were preparing to go to where the money was the police came back to the station. He Iniabasi, took the police round and showed them how he and others entered the station and what they used in breaking the safe. After that the police took him away. I saw what they used in breaking the safe. Exhibit ‘ shown to me is one of the instruments they used to break the safe. When he was in the police detention I went and visited him. I asked him to tell me where he kept the money, that if he did I will withdraw from the case. He told me that he gave the money to his mother. When the police got the mother, she denied and said the son was lying against her. Prior to the armed robbery incident this Iniabasi and 3 others were on suspension due to the engine oil they stole at the station. But because the mother worked at where I studied in the University of Uyo, she pleaded that I should reconsider Iniabasi to come back and work with me. The management of the company during the time was considering the letters of undertaking the mother wrote to the company. This Iniabasi on the Saturday preceding the Sunday of the robbery incident, was at the petrol station and he saw when the money was brought in bags from Port Harcourt.”

Reading the evidence carefully, it cannot seriously be disputed that its substance arose from the facts seen by the witness even though the facts came to him knowledge through the information he received from his house watchman. The whole of the evidence was not given to prove the fact that watchman informed the witness of what he saw, but in proof of the facts the witness, PW3 himself saw, what he did and what he personally perceived at the scene of the robbery and the police station after he was informed of the incident. The evidence was therefore direct oral evidence of the facts from PW3 and so cannot be classified as hearsay in the circumstances. The evidence of PW3 is not hearsay as defined and provided for by our law of evidence, both statutory and judicial. There is no merit in the Appellant’s issue 2 which I resolve against him.

ISSUE NO.3

The submissions by learned counsel for the Appellant on this issue are that the PW1 gave his evidence based on what PW2 and PW3 told him and insisted that PW2, because he was not in good terms with the Appellant, had given malicious evidence to settle old scores which he urged us to refute for being vindictive and judge, relying on a statement in the case of Aruna v. State (1998) 1 ACLR 369 at 381. It was submitted that the evidence of PW1, PW2 and PW3 were fraught with contradictions which made it extremely unsafe to rely on them. Learned counsel then verbosely, I must say, set out in about 13 pages of the Appellant’s brief (from pages 17 – 29), what he called contradictions in evidence of the witnesses and cited the case of Opara v. State (2006) 9 NWLR (986) 508 at 9517 on the treatment of inconsistent and incredible evidence of a prosecution witness. Cases including Onuchukwu v. State (1998) 4 NWLR (54) 576 at 590; State v. Ajie (2000) 11 NWLR (678) 434 at 449 and Ikemson v. State (1989) 3 NWLR (110) 455 at 459 were cited on the effect of contradictions in the evidence of prosecution witnesses in a criminal trial and the need to resolve doubt in favour of an accused person. In conclusion, learned counsel urged us to hold that the prosecution did not prove the charge against the Appellant beyond reasonable doubt, allow the appeal and set aside his conviction and sentence by the High Court.

On his part, the learned counsel for the Respondent had set out the ingredients of the charge against the Appellant which the prosecution had to prove in order to secure a conviction, relying on State v. Magic (1999) 2 LRCN 252 and Bolanle v. State (2005) 7 NWLR (925) 431 at 451, and he submitted that the evidence the witnesses had proved all of them, beyond reasonable doubt. Cases of Akalezi v. State (1993) 2 NWLR (273) 1 at 13 and Michael v. State (2004) 14 NWLR (893) 257 at 284 – 5 inter alia, were referred to on the requirement and meaning of proof beyond reasonable doubt. While conceding to the law on the effect of material contradictions in the evidence of prosecution witnesses, as set out in judicial authorities some of which he cited, counsel said the ingredients of the charge against the Appellant were proved without any contradiction through the evidence of PW2 and his own evidence. We were urged to resolve the issue in favour of the Respondent and in conclusion, to dismiss the appeal for lacking in merit and affirm the conviction and sentence of the Appellant by the High Court.

One other principle of law relevant to the issue under consideration and which is firmly established in judicial practice is that material contradictions which relate to or are in respect of the proof of an essential element of a charge against an accused would affect the credibility of the witnesses thereby creating doubt in the prosecution’s case which in turn would amount to lack of proof beyond reasonable doubt. See Asariyu v. State (1987) 11 – 12 SCNJ, 125; Uwaekweghinya v. State (supra); Egbogbonome v. State (1993) 7 NWLR (306) 383; Archibong v. State (2006) ALL FWLR (309) 1380.

a) that there was a robbery

b) that the robbery was done or committed while armed with offensive weapons and

c) that the accused person participated in the robbery or was one of the robbers.

See also the cases of Okafor v. State (2006) ALL FWLR (318) 719 and Otit v. State (1991) 8 NWLR (207) 103, in addition to the cases cited by counsel.

As may have been observed the complaint of counsel for the Appellant is that the High Court did not consider the credibility of the prosecution witnesses. In particular, he had attacked the evidence of PW2, as he did under Issue 1, on the ground that he had old scores to settle with the Appellant because the two were not in good terms. Once again, learned counsel did not demonstrate through judicial authorities that merely because he alleged that the Appellant and PW2, an eye witness and victim, were not in good terms, the uncontroverted evidence of the witness on the facts of the robbery incident in which he identified the Appellant, whom he knew and worked with before then, was not credible. Ordinarily, all that a trial court before whom such an allegation was made needed to do was to warn itself of such an allegation in the assessment of the weight to be ascribed to the evidence. However as seen in the case of Oteki v. Attorney-General of Bendel State (supra) where, as in the Appellant’s case, the evidence is true in fact and unassailed, the mere fact a witness has a grouse against or was the accused person’s mortal enemy and that the judge did not warn himself, would not weaken or render the evidence unreliable. I am unable to find any valid ground on which the evidence of PW2, being direct, positive and unassailed by the Appellant at the trial, can be described as “malicious” as was done by the learned counsel in his brief. The evidence was credible on the facts in respect of which it was given and the High Court was right to have used and relied on it as part of the evidence adduced by the prosecution, in arriving at the decision to convict the Appellant of the charge of robbery.

Learned counsel did not seriously challenge the evidence of PW3 under this issue except to ask the question of how the witness forgot to tell the police that he had confronted the Appellant on the incident and he confessed to it. All that needs be said here is that even if the witness did not tell the police that the Appellant had confessed to the robbery, the Appellant had himself done so in the statements he made to the police admitted in evidence at the trial. That the witness had said under cross examination that he did not tell the police did not show that he was not credible but rather shows that he was truthful in his testimony.

Next, I have calmly perused the catalogue of what the learned counsel set out in the brief as contradictions in the evidence of PW1, PW2 and PW3 and which according to him are material in the prosecution’s case. With respect to learned counsel, all he had done in the catalogue was to ask questions in respect of the details of the robbery incident and went ahead to provide the answers by setting out the pieces of evidence given by the prosecution witnesses without demonstrating where the material contradictions occurred in the evidence on the essential elements of the charge against the Appellant. All that can easily be noticed in the pieces of evidence of the witnesses is the different ways they gave the details of the robbery incident. Here it must be remembered that the witnesses gave account of the facts they saw or heard at different stages of the incident. PW1 was the police investigation officer, who testified as to what he did during the investigation of the robbery after it had occurred.

PW3 also gave account of what he did after receiving a report of the robbery from his house watchman. PW2, who was an eye witness and a victim of the robbery, gave a detailed testimony of the incident from the beginning to the end and which evidence remained uncontroverted throughout the trial. Differences in the manner details of an incident are recounted by even witnesses or people who witnessed or saw it at the same time are bound to occur, because of the different abilities to perceive and the memory to recount and restate the incident at a later date. Such differences are not contradictions but rather minor inaccuracies and discrepancies in the account of an incident which do not affect the essential details of the incident. In the case of Queen v. Adelabu (55 – 56) WRNLR (III), 112 it was held that:-

“The absence of any discrepancies in the testimony of witnesses is the usual accompaniment of a concocted story. Imperfection in human reflection is quite normal.”

Similarly in the case of Ikonson v. State (1989) 1 LRCN 1 at 25, the Supreme Court had put the position thus:-

“Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored and tailored witnesses. Minor variations in testimony seem to be a badge of truth.”

There is no doubt that the differences in the testimonies of PW1, PW2 and PW3 of the robbery incident in question are inconsequential discrepancies in the narration of the details thereof which do not affect the essential elements of the incident. The law is that it is not every discrepancy, inconsistency or even contradiction in the evidence of the prosecution witnesses that are fatal to the prosecution’s case. Where, as in the Appellant’s case, the conflict, discrepancy or contradictions in the evidence of witnesses for the prosecution are not material in proving or disproving the prosecution’s case or do not raise any doubt as to the guilt of the accused person, they merely amount to minor inaccuracies not fatal to the charge. See Akpueya v. State (1976) 11 SC, 269; Azu v. State (1993) 6 NWLR (299) 303; Edu v. State (1977) NCAR, 55; Theophilus v. State (1996) 1 NWLR (423) 139; Wankey v. State (1993) 5 NWLR (295) 542; Uwaekweghinya v. State (supra).

On the omnibus issue of whether the prosecution had proved the charge against the Appellant beyond reasonable doubt, I have set out the essential elements of the offence of robbery which the prosecution had the burden to prove as required by law. There is no dispute that there was a robbery incident on the 5/4/1999 at No.145 Aka Road, Uyo and so the first essential element is beyond reasonable doubt. The next element is that the robbery was done while armed with offensive weapons.

An offensive weapon under the criminal code is any article either made or adopted for use for causing injury to the person or intended by the person having it with him for such use by him or by some other person. Generally the issue of whether an article is capable of being used to cause injury to a person is a question of fact to be determined in the peculiar circumstances of a case.

In the Appellant’s case, there is the unchallenged evidence of the victim and eye witness to the robbery incident; PW2, that the people who came to the scene had warned on their arrival, that “we are armed robbers” and he was hit with an iron rod and starved with a knife. Ordinarily, a knife and iron rod are not made for the purpose of causing injury to the person but can be and were in fact adopted by the people who participated in the robbery, to cause injury on the person of PW2. In the circumstances, the knife and iron rod were offensive weapons for the purpose of the robbery incident and the criminal code. The evidence leaves no doubt therefore that the robbers committed the robbery while armed with offensive weapons, thereby satisfying the second element of the offence.

The last of the essential elements is that the Appellant committed or participated in the robbery. The High Court had relied in its judgment, on the confessional statements by the Appellant that he and other people named therein had committed the robbery. I have while dealing with the issue No.1, found that the confessional statements, were freely and voluntarily made, direct, positive and cogent and as a result sufficient without more to prove the participation of the Appellant in the robbery incident in question. In addition, under issue No.2, I have also found that the evidence of PW1, PW2 and PW3 on the essential elements of the robbery incident is credible. Put and considered together, the confessional statements of the Appellant and the evidence of the prosecution witnesses have pungently established that the Appellant had participated actively in the commission of the robbery incident in question thus proving the last element of the charge against him beyond reasonable doubt. For that reason, my answer to the issue No.3 is that the prosecution has proved the charge against the Appellant beyond reasonable doubt as required by law.

In the final result, since the three (3) issues submitted by the Appellant for determination in the appeal have been resolved against him, the appeal is accordingly wanting in merit. It is dismissed by me and I affirm the conviction and sentence of the Appellant by the High Court as contained in the judgment delivered on 31/5/2007.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Muhammed Lawal Garba, JCA.

The appellant had made several confessional statements signed by him and countersigned by a superior police officer during investigation.

During trial, these statements were tendered without any objection. The accused thereafter during his defence tried to retract these statements as having been obtained by duress.

The issue arose on appeal whether the trial Judge was right to have convicted the appellant on these confessional statements.

A free and voluntary confession of guilt whether judicial or extra-judicial, if it is direct and positive and properly established is sufficient proof of guilt and it is enough to sustain a conviction, so long as the court is satisfied with the truth of such a confession. Solola v. State (2005) 11 NWLR pt 937 pg 460. Edhigere v. State (1996) 8 NWLR pt 464 pg 1, Ihuebeko v. The State (2000) 7 SC pt 11 pg 50, Alarapa v. State (2001) 14 WRN pg 1. The Appellant made several statements all of which are direct and positive narrating how the robbery was carried out in details. He also stated the members of the gang and the injuries inflicted on PW2. The confessional statement tallied with the eye witness account of PW2 the security guard that sustained the injuries.

The Appellant did not contest the voluntariness of the confessional statements until during his defence. If an accused intends to contest, the voluntariness of his confession of statement, it ought to be at the stage, the prosecution is seeking to tender it.

In the instant case, the appellant did not object to the confessional statement being tendered. If the Appellant had objected, a trial within trial would have been conducted to test it voluntariness. Having failed to object to its tendering, it was duly and rightly accepted and received in evidence. Objecting to its voluntariness during defence is late.

Where a confessional statement is retracted timeously, a trial within trial is held to ascertain the truth of the statement. If the confession is found to be true, voluntary, direct and positive, it is admissible in law retraction is immaterial. Nwosu v. State (1998) 8 NWLR pt 562 pg 433, Idowu v. State (2000) 7 SC pt II pg 50, Ihuebeko v. The State (2000) 4 SC pt 1 pg 203.

The trial Judge tested the veracity of the confessional statements of the Appellant by the corroborative evidence of PW2 – an eye witness. The confessional statements was therefore corroborated by the eye witness account of PW2.

For this and the more comprehensive reasoning and conclusions of my learned brother, I also will dismiss this appeal. I abide by all the orders contained in the lead judgment.

JOSEPH TINE TUR, J.C.A.: I read an advance copy of the lead judgment prepared by my Lord, Mohammed Lawal Garba, J.C.A. and I concur with his reasoning and conclusions. I shall add the following comments of mine by reference to the extrajudicial statement of the appellant at pages 12 – 13 of the printed record to wit:

“SUSPECT STATEMENT:

Name: Iniabasi Okon Uweh

Address: No.98 Aka Road, Uyo

Occupation: Applicant

Religion: Christianity

Nation: Nigerian

Age/Sex: 21 Years/Male

Date: 5th April, 1999

Iniabasi Okon Uweh (M) duly cautioned in English language that I am not obliged to say anything unless I wish to do so but whatever I say will be taken down in writing and may be given in evidence.

Sdg. 5/April, 1999

On Saturday, 3rd April, 1999, the manager of Bafil Company cause the burglary proof was initially heck inside at office to be outside. He did this by inviting one welder from No. Aka Road, Uyo to change the suspstem. From there I started monitoring his activities on that Saturday evening we all met at No.3 Ikono Street Uyo being the house of Emmanuel Ita Okon. In that house we were seven in numbers. They are (1) Nyakno Akpabio (m) residing at No.4 Williams Dane Uyo, (2) Emmanuel Ita Okon the owner of the house, (3) the manager of Bafil one Augustine Edem, (4) myself Iniabasi Okon (5) the driver was driving the bus Mitsubishi bus whose name I do not know and the driver that was driving the 504 Peugeot Saloon car are the operation. Aniefiok being Depot supervision in Port Harcourt was the person who gave out information before plan was taken out for operation. One Aniekan Bassey Itang residing at Urua Afana after mechanic village also took part. The meeting took place at 8:30 at the venue aforementioned. Nyakno Akpabio was the person who provided with the red big tool used in cutting the Iron. Some of the tools came out from the 504 car. From the venue of the meeting that we moved to the Bafil office by 11:30p.m. One getting to the filling station, the bus was driven into the station while the salon car was out the station. Every other person dropped down while I was sitting on the bonnet of the car to watch the area. At the station, the bus driver called for the watch night. It was when the security went nearer that, we held him to upstair. It was Nyakno Akpabio who used the cutter to cut the security man on the head. I used knife, others also carried knife. We hit the door opened and then again entrance into the office of general administration. From general office that we damage the key because the manager had already arranged for it. The save was then dragged into the general office where it was destroyed. Emmanuel Ita Okon collected the cutter from Nyakno and aid the destroying himself. Before we went for the operation, we bought the medium bag called Ghana must go two which we put the money. The two bags were filled and put into the bus car. We left the security up being tide and dropped down. Before we started the operation, the manager told us that, the money will not be share until the depot supervisor come back being Aniefiok and the money should be kept with Nyakno because Nyakno was one of the leader for the plan. There was some money that was not wrapped but put in save. Those were the money put in a polythene bag. That was the money which we took for feeding. I personally have N750.00 while other took same. All this directives was given by the manager. The money was then kept with Nyakno Akpabio depending the returned of the Depot Supervisor. This money was suppose to share on Monday 5/4/1999 in the evening.

Aniekan Bassey Itong also took the money in the polythene bag and this was about N7,000.00. The total estimated money we carried was about N1.8m. Aniekan will come back on Thursday evening. If I see those drivers and the cars I will know. That was the operation we took. It was myself that wear the police uniform shirt only and it was the manager who gave us the uniform. Aniekan Bassey Itang also wear the uniform.

Sgd. 5/April, 1999.”

The extra-judicial statement of an accused is his immediate reaction to police inquiries upon his arrest but not necessarily the truth of the facts stated therein. See Commissioner of Police v. Oshifalujo (1983) 1 NCR 308 at 316 citing Rex v. Storey (1968) 52 Cr. App. Report 334; Kasa v. State (1994) 6 SCNJ (pt.1) 1 at 14 – 15; Sanusi v. State (1984) 10 SC 166 at, 198; Adelumola v. State (1988) 1 NWLR (pt.73) 683 at 693 and Ozaki v. State (1990) 1 NWLR (Pt.124) 92 at 113. But an accused’s defence is usually founded on his evidence supported by his extra-judicial statement(s) to the police favourable or unfavourable to him as the case may be. See Kim v. State 4 SCNJ 81 at 110. In Moses Jua v. The State (2010) 2 MJSC 152 the Supreme Court held per Niki-Tobi, JSC held at pages 177 – 178 that:

“The best evidence for the purposes of conviction is confession to the commission of the crime by the accused person. What the Court should look into is whether the confession was voluntary and accords with Section 27 of the Evidence Act and not against Section 28 of the Act.”

See also Gashi v. The State (1981) 2 PLR 343.

In my humble opinion the conviction and sentence of the appellant is supported by the weight of evidence adduced by the prosecution. The appeal is dismissed. The conviction and sentence of the appellant is upheld.

Appearances

Iniabasi Udobong, Esq.For Appellant

AND

Samuel Akpabio, Esq.For Respondent