ISIAKA ADEYEMI & ORS V. THE STATE (2011)

ISIAKA ADEYEMI & ORS V. THE STATE

(2011)LCN/4492(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of April, 2011

CA/I/139/05

RATIO

BURDEN OF PROOF: ON WHOM RESTS THE BURDEN OF PROOF IN CRIMINAL CASES

TRIAL WITHIN TRIAL: WHAT IS “TRIAL WITHIN TRIAL”

What is a trial within trial? It simply connotes a process in court where an accused person facing a criminal trial in court protests to the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him having been obtained under duress or some threat of whatever nature or actual physical torture to his person. The main action in the court may abet to subject the accused to face a mini trial within the context of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to the police was voluntarily made or not. The procedure is similar to that of the main trial as witnesses are called to give evidence and are subjected to cross-examination by the other side. The court proceeds to write a ruling either admitting the statement of the accused or, rejecting same after which the normal trial temporarily suspended continues. PER SIDI DAUDA BAGE, J.C.A.

CONFESSIONAL STATEMENT: TESTS THAT A CONFESSIONAL STATEMENT MUST BE SUBJECTED TO, BEFORE IT CAN BE RELIED ON IN GROUNDING A CONVICTION

The law is already trite that for a confessional statement to be relied on in grounding a conviction it must pass the six test set out in R.V. SYKES (1913) 18 CR APP. R. 233 approved and applied in Dawa V. The State (1980) 8-11 S.C. 236. (a) Is there anything outside it to show that it is true? (b) Is it corroborated? (c) Are statements made in it of fact, true as far, as they can be tested? (d) Was the prisoner one who had the opportunity of committing the offence? (e) Is his confession possible? (f) Is it consistent with other facts which have been ascertained and which have been proved? See: – Daniel V. State (1991)8 NWLR (pt 212) 715; Gbadamosi V. State (1992)9 NWLR (pt. 266) 465 at 479; Amachree V. Nigerian Army (2003)3 NWLR (pt. 807)256 at 287; Ikpo V. State (supra); Emmanuel Nwaebonyi V. State (1994) 5 NWLR (pt.343) 13 at 150. PER SIDI DAUDA BAGE, J.C.A.

CROSS EXAMINATION: EFFECT OF THE FAILURE OF A PARTY TO CROSS-EXAMINE A WITNESS ON A MATERIAL FACT IN CONTROVERSY IN A CASE, HE DOES NOT ACCEPT AS TRUE

In Waziri V. The State (1997) 3 NWLR (pt. 496) 689 at 721 the position of the law as to the failure to cross-examine a witness in a proceeding was stated as follows: – “It is an established principle of law that where an adversary or a witness called by him testified on a material fact in controversy in a case, the other party should if he does not accept the witness’s testimony as true, cross-examine him on that fact or at least show that he does not accept the evidence as true. Where as in this case he fails to do either, a court can take his silence as an acceptance that the party does not dispute the fact. After all one of the main purposes of cross-examination is to test the veracity of a witness”. PER SIDI DAUDA BAGE, J.C.A.

IDENTIFICATION PARADE: OBJECT OF AN IDENTIFICATION

The object of an identification parade is to test the ability of a witness to pick out from a group the person, if he is present, who the witness has said that he has seen previously on a specified occasion. Identification parade should be fair and should be seen to be fair every precaution should be taken to see that they are so; and in particular to exclude any suspicion of unfairness or risk of erroneous identification through the witness, attention being directed specifically to the suspected person instead of equally to all persons paraded. See: – Bosin V. State (supra) Ofala V. State (supra) and Usufu V. State (supra) Balogun V. A.G. Ogun State (supra). PER SIDI DAUDA BAGE, J.C.A.

JUSTICES;

STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

Between

(1) ISIAKA ADEYEMI
(2) TAJUDEEN LAWAL
(3) OLUWAKEMI ARO – Appellant(s)

AND

THE STATE – Respondent(s)

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Osidipe J. of the High Court of Justice, Ogun State, Ijebu-Ode judicial division delivered on the 17th July, 2003 in charge No. HOB/20/2000 Adedokun Adedeji Asegbe & 4 Ors. V. The State, in which the learned trial judge convicted and sentenced the accused persons (the three Appellants) to death, for conspiracy to commit armed robbery under Section 5(6) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of Nigeria 1990 as amended, and armed robbery under Section 1(2) (a) of the same Act Cap 398 Laws of Nigeria 1990 as amended. The three accused persons/Appellants Isiaka Adeyemi, Tajudeen Lawal, Oluwakemi Aro pleaded not guilty to the charges. The charge at the lower court as contained at page 2 of the Record of Appeal reads as follows:-
COUNT I:
That you Adedokun Adedeji Asegbe (M), Isiaka Adeyemi (M), Tajudeeen Lawal (M) and Oluwakemi Aro (M) on or about the 26th day of July, 1999, at No. 59 Egbe Road, Oke Sopin, Ijebu-Igbo in the Ijebu Division conspired together to commit a felony to wit: Armed robbery and thereby committed an offence contrary to Section 5 (6) and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended by the Tribunal (Certain Consequential) Amendments, etc Act 1999.
COUNT II:-
That you Adedokun Adedeji Asegbe (M), Isiaka Adeyemi (M), Tajudeen Lawal (M), and Oluwakemi Aro (M), on or about the 26th day of July, 1999 at No.59 Egbe Road Oke-Sopin, Ijebu-Igbo in the Ijebu-Igbo Judicial Division while armed with offensive weapons to wit guns and robbed Alhaji Mustapha Esho of his 14 Hitachi Colour Television, three in one Alba Stereo Set 2 Sonny Speaker, 1 tuner Radio, N14,000.00 cash, jewelries, clothes and shoes and thereby committed an offence contrary to section 1(2) (a) of the Robbery and Firearms (Special Provision) Act 1990 as amended the Tribunals (Certain Consequential) Amendments ETC) Act 1999.
COUNT III:-
That you, Abiodun Umaru (M) on or about 27th day of July, 1999 at Ijebu-Ode Local Government Secretariat received a Television Set, a stereo and tuner radio property of Alhaji Mustapha Esho which were obtained by means of Armed Robbery and thereby committed an offence contrary to Section 4(a) of the Robbery and firearms (Special provision) Act Cap. 478 Laws of the Federation of Nigeria 1990 as amended by the Tribunals (Certain Consequential Amendments ETC) Act 1999″.
Briefly the prosecution’s case at the High Court was that, on the 26/7/99 armed with offensive weapons to wit guns entered the house of Alhaji Musibau Mustapha Eleso PW1, who saw the 4 accused persons coming out of his house with various items. He ran into his neighbourhood for safety. When he eventually, entered his room he discovered his money, the sum of N14, 000.00 in cash, a 14 inches Hitachi Coloured Television, two sonny speakers, three in one Alba recorder were all removed and other items belonging to his wife and his mother. Mrs. Modupe Mustapha his wife (PW2) said on the fateful date she saw four hefty men who had entered into their house, the one of the four hefty men asked her to co-operate or else she would be shot. That one of them packed her clothes and jewelries and her children wears. That they left her in the room lying down and they ransacked other rooms. That she later heard gun shots. That none of her clothes and jewelries was recovered. The accused denied the charge. The case went on to be tried with the prosecution calling three witnesses, while each of the accused persons gave evidence on his behalf. At the end of the trial both counsel for the prosecution and the defence addressed court, and the learned trial judge in a considered judgment delivered on the 17th July, 2003 convicted all accused persons on three count charge and accordingly sentenced them as follows as contained at page 62 of the Record of Appeal:-
(1) The sentence of the court upon you Adedokun Adedeji Asegbe is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.
(2) The Sentence of the court upon you Isiaka Adeyemi is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.
(3) The sentence 6f the court upon you Tajudeen Lawal is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.
(4) The sentence of the court upon you Oluwakemi is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.
It is against this conviction and sentence that the accused have appealed to this court. The three Appellants filed their three Notice of Appeal dated the 16th of September, 2003. The Notices of Appeal which are identical contains three Grounds of Appeal which are reproduced below:-
GROUNDS OF APPEAL
1. The Learned Trial judge erred in Law when he held that the Exhibits the Yoruba and English translations of confessional statements of the Appellants were voluntarily made.
PARTICULARS:-
(a) The Appellant maintained that the admissibility of their confessional Statements that it was not voluntarily made which led to the conduct of a trial with trial where the Accused/Appellants testified that the statements were made under torture and duress
(b) During the trial within trial of the Appellants Mr. Ezekiel Oyeleye Dina DW1 in the trial with trial who is a Medical personel at Ijebu-Ode prison testified that when the Appellants were brought to Ijebu-Ode prisons they complained of injuries on their hands and legs which they said was sustained at the police custody which were treated based on the prescription of Mr. Julius Odion Ikpea, the superintendent in charge of Medical Centre at Ijebu-Ode prisons who examined them and prescribed drugs for their treatment.
(c) That investigating police officer Mr. Akinola Arowuiulu who also testified in the trial admitted under cross-examination that on the day the accused were arraigned in court they had injuries on their legs but denied inflicting those injuries on the accused.
(d) The trial judge in his ruling on the trial within trial failed to make any pronouncement on the Exhibits before him, the prescription chart stating the injuries observed on the Accused by the prison officials and the drug recommended.
2:- The learned trial judge erred in law when he convicted and sentenced the appellants to death based on their confessional statements.
PARTICULARS:- (a) There was no corroborative evidence to link the Appellants with the robbery incident such as to give credibility to their confessional statements.
(b) The confessional statement of the other accused cannot in law amount to corroboration as it is evidence against a co-accused.
(c) There was no evidence that the Appellants adopted statement of the other co-accused persons.
3:- The learned trial judge erred in law when he failed to consider Court of Appeal decision in Balogun V. A.G Ogun State (2001) FWLR (pt. 78) 1144 at 1160 – 1161 paragraph E – C
PARTICULARS:-
(a) That no case of stealing was established against the Appellants.
(b) That the Appellants were not identified as the alleged armed robbers.
From the three grounds of Appeal, each Appellant formulated in the respective briefs of arguments dated the 31st August, 2010 and filed on the 1st September, 2010 exactly similar three issues which are contained at page 6 of each brief of arguments. In view of the similarity of the 3 briefs of arguments of the 3 appellants and the similarity of the arguments proffered for each brief of argument, for ease of determination this court has consolidated the 3 briefs of arguments into one (1) brief of argument for the 3 appellants. The three (3) issues formulated from the three (3) grounds of Appeal are as follows: –
(1) Whether the confessional statements of the Appellants were properly admitted in evidence and heavily relied upon by the trial court in convicting the Appellants.
(2) Whether or not the Appellants were properly linked with the commission of the offence which they were charged with, when there was no evidence that they were caught at the scene of the offence and no identification parade conducted by the police.
(3) Did the prosecution prove the case of conspiracy and armed robbery against the Accused/Appellant beyond reasonable doubt having regard to the totality of the evidence before the trial court?
The Appellants by their motion on Notice dated the 10th of December, 2010 and filed same day, brought pursuant to Order 17 Rule 10 of the court of Appeal Rules 2007 and the inherent jurisdiction of this court prayed this court for an order setting down this appeal for hearing on the Appellants Brief of Argument alone, the Respondents having failed to file his brief of Argument in this appeal. The application was heard and granted on the 24th January, 2011 and with this grant the appeal became ripe for hearing based on the Appellants Brief of Argument alone.
On the 2nd March, 2011 when this appeal came up for hearing, A. Ogunsanya Esq. adopted and relied on the three (3) Appellants Briefs of Arguments now consolidated by this court as one dated 31st August, 2010 and filed on the 1st of September, 2010 and urged this court to allow the appeal and set aside the judgment of the lower court.
In arguing issue 1, which is to the effect of whether the confessional statements of the Appellants were properly admitted in evidence and heavily relied upon by the trial court in convicting the appellants, learned counsel submitted that, the basis of admitting a confessional statement made by an accused is voluntariness. Thus, it is trite law that a free and voluntary confession of guilt made by an accused person, if it is direct and positive is sufficient to warrant his conviction without any corroborative evidence see: – Corporal Jona Dawa & Ors V. The State (1980) 8-11 SC 236.
Learned counsel further submitted that where a confessional statement is tainted with involuntariness, it is in admissible, weightless, and irrelevant in the proceedings to which it relates. See: – Section 28 of the Evidence Act Also Section 27 (2) of the, Evidence Act see:-
also Jimoh Yesufu v. The State (1976) 6 SC 167 at 173; Ikemson V. The State (1989)3 NWLR (pt. 110)4; Ikpo V. The State (1995) 9 NWLR (pt 421) 540 at 554.
Learned counsel further submitted that, as in all other criminal cases, the burden of proving affirmatively beyond reasonable doubt, that a confession is voluntary is on the prosecution. See: – Ibrahim V. The King (1914) AC 599 and Adekunbi V. Attorney General of Western Nigeria (1966) All N.L.R. 47.
Learned counsel further submitted that in this case, the 1st and 2nd Accused/Appellants objected to the admissibility in evidence in their respective statements to the police contending that the police threatened, tortured and brutalized them before obtaining their statements. Sequel to the objections of the Accused/Appellants, the trial court conducted trial within trial.
Learned counsel submitted further that it is important to note that the evidence of torture given by the 1st Accused/Appellant was corroborated by the evidence of DW1 – one Ezekiel Oyeleye Jimoh Asp II in the medical section of Ijebu-Ode prisons. Also the evidence of DW2 one Julius Odon Ikepea – Superintendent in charge of a registered psychiatrist nurse.
Learned counsel further submitted that these pieces of evidence give credence to the fact that the confessional statements were obtained by threats and torture. Unfortunately, notwithstanding the glaring elements of torture and threats to the accused persons before they made the statements to the police. Exhibits 13, 16, 18 and 20 respectively, the trial court went ahead and admitted them in evidence.
Learned counsel submitted further that the trial court failed to test the truth of the confessional statements with other facts on record in its judgment; rather the trial court recounted the content of the confessional statement and concluded that the 2nd Appellant made Exhibit 18 voluntarily. In any case, there was no other thing on record to test the truth of the statement of the 2nd Appellant. Therefore the trial court ought to have rejected the statement in evidence and even when it was admitted the trial court ought to have warned itself that it is not safe to rely on it to convict the 2nd appellant.
Learned counsel further submitted that there was no contrary evidence to the causes of the wounds/injuries sustained by the Accused/Appellants other than the evidence given by the Accused/Appellants. Therefore the trial court ought to have believed the evidence of the Appellants regarding threats, torture and the use of violence by the police in obtaining their statements. See: – Section 4 of the criminal procedure law.
Learned counsel further submitted that, it is an established principle of law that in a criminal proceedings, the weight to be attached to a confessional statement would depend -on the circumstances and in particular if it is direct/positive and there is nothing on record to controvert it and this therefore makes it necessary to have other evidence and or it is desirable to have same evidence outside the confession which would make it probable that the confession was true, which is lacking in this case. See: – Olusegun Olufale & others V. The State (1968) N.M.L.R. 261; The Queen V. Obiasa (1962) All N.L.R.; Ikpo V. State (supra); Emmanuel Nwae Bonyi V. State (1994)5 NWLR (pt. 343) 138 at 150.
Learned counsel further submitted that in this case there in nothing outside the purported confessions of the Appellants that corroborated the confessions. There are rather a lot of facts that controvert the evidence of prosecution that the confessional statements were voluntarily made as can be seen from the evidence of the accused persons in trial within trial.
Learned counsel further submitted that it is the duty of the trial court to painstakingly scrutinize and evaluate the evidence of the prosecution and evidence of the accused, which is lacking in this case. If the trial court had properly appraised the totality of the evidence before it, it would have come to a different conclusion, which would have led to the rejection of the confessional statements in evidence.
Learned counsel further submitted that the prosecution failed woefully to discharge the onus of proving that that statements were made voluntarily, therefore, the confessional statements of the Accused/Appellants (Exhibits 13, 16, 18 and 20) were wrongly admitted in evidence and should be disregarded.
On issue No.2 as to whether or not the Appellants were properly linked with the commission of the offence which they were charged with, when there was no evidence that they were caught at the scene of the offence and no identification parade conducted by the police, learned counsel submitted that there must be a nexus or link between an accused and the offence he is charged with. The need for proper identification becomes much more profound if the accused person was not caught at the scene of the offence and in that case the conduct of identification parade becomes necessary, See: – Usufu V. State (2000)2 (pt, 1020)94; Alabi V. State (1986)3 NWLR (pt 32)865; Alabi V. State (1993) 7 NWLR (pt. 307); 511 at 527.
Learned counsel further submitted that it is a fact that the offence of robbery for which the Appellants were charged was committed in the night and there is no evidence that the Accused/Appellants were seen or arrested at the scene of the offence except the evidence of PW1 where he testified that he could identify one Adedokun Asegbe (deceased) as one of the persons that attacked him.
Learned counsel further submitted that, the recognition or identification of Adedokun Asegbe (deceased) as testified by PW1 was through the florescent light from his house, one wonders why PW1 could not also identify other robbers or say categorically that the 1st-3rd Appellants were among the people that he saw carrying load out from his compound. The evidence of PW1, if weighed against the evidence of PW4 the police officer that went to the scene of the incident, where he testified that there was no light at the scene of the crime, the identification of Adedokun Asegbe (deceased) becomes very poor and unreliable.
Learned counsel further submitted that the quality of identification evidence of Adedokun Asegbe (deceased) is poor in that it arose out of a glance, difficult conditions and a short period. See: – Nwabueze V. The State (1988) 4 NWLR (Pt.86) 16 at 30-31.
Learned counsel submitted further that, with respect to the 1st – 3rd Accused/Appellants, there is no form of identification linking them to the offence charged with. The only thing linking them to the offence, as it would seem, is their various confessional statements. The confessional statements do not conclusively fix the identity of the Accused/Appellants to the crime. There is nothing outside the confessional statements of the 1st – 3rd Accused/Appellants to link them to the offence, therefore, that identification parade would have been appropriate in the circumstance to determine the identity of the people that robbed PW1 See: – Bosin V. State (1983) 2 NWLR (pt.8) 465 at 471 paras. D-E; Ogala V. State (1991)2 NWLR (pt. 175) 509 at 523; Usufu V. State (supra); Balogun V. A.G. Ogun State (2002)4 M.J.S.C. 45 at 58. The failure of the police to conduct identification parade in this case was fatal to the case of the prosecution.
On issue 3, as to whether the prosecution proved the case of conspiracy and armed robbery against the Accused/Appellants beyond reasonable doubt having regard to the totality of the evidence before the trial court. Learned counsel submitted that, it is trite that in criminal cases, the burden of proof is on the prosecution who must prove its case beyond reasonable doubt. Thus, the prosecution must discharge the general duty of rebutting the presumption of innocence constitutionally guaranteed to the accused person. The onus never shifts. See: – Alabi V. State (1993) 7 NWLR (Pt. 307) 511; Solola V. The State (2005) 11 NWLR (pt. 937) 460; Alepam V. The State (1990) 7 NWLR (Pt. 160) 101. See Also in essential elements of armed robbery:- Bosin V. State (supra) Ikemson V. State (supra) Martins V. State (1997) 1 NWLR (pt. 481) 355; Ogba V. State (1992) 2 NWLR (pt. 222) 164. If the prosecution fails to prove any of the ingredients then it has not proved its case beyond reasonable doubt.
Learned counsel submitted further that the fact that an expended cartridge was found at the scene of the incident is not conclusive that there was robbery. Moreover, given the fact that there was no light in the area at the material time, it is very unlikely that PW2 could confirm positively whether or not the people that attacked her were armed.
Learned counsel further submitted that, on the ingredient that the Accused person is the robber, we hereby adopt our arguments canvassed on issues 1 & 2, that the prosecution did not discharge the burden of proving beyond reasonable doubt of fixing the Accused/Appellants with the offence.
Learned counsel submitted further that with particular reference to the 1st – 3rd Appellants the prosecution failed to prove their guilt of the offence charged. Thus, a review of the prosecution’s evidence would clearly, show that there is nothing on record outside their respective statements to police that can sustain their convictions and sentencing for the offence as charged.
Learned counsel further submitted that by virtue of Section 27 of the evidence Act, the confessional statement of Adedokun Asegbe (deceased) who was the 1st Accused at the lower court which seems to implicate the 1st – 3rd Appellants is only evidence against himself and not his Co-accused. See: – Nsofor V. State (2005)4 WRN 29 at pp 48-49 lines 25-10; Oyakhire V. State (2006)40 WRN 197 at 217 lines 35-45.
Learned counsel submitted further that the material contradiction in the evidence of the prosecution’s witnesses (i.e.) PW1 and PW4 as to whether or not some items were recovered from the house of the 2nd Appellant cannot fix him to the offence charged.
Learned counsel finally submitted that it is clear that the conviction of the 1st – 3rd Appellants was based only on their purported confessional statements, the property of which have been extensively argued on issue 1 above.
I think that a good starting point in the consideration of this appeal is to examine the offences under which the appellants were charged. The appellant were charged for conspiracy to commit armed robbery under section 5(b) of the Robbery and Fire arms (Special Provisions) Act Cap. 398 Laws of Nigeria 1990 as amended and armed robbery under section 1(2)(a) of the same Act Cap. 398 laws of Nigeria 1990 as amended. Looking at the two sections of the Act, under which the appellants were charged, it becomes incumbent to reverse the order of the issues as lined up by the learned counsel to the appellant, and to start by determining issue No.3 first, i.e. whether the prosecution proved conspiracy and armed robbery against the Accused/Appellants beyond reasonable doubt.
The charge of conspiracy which the Appellants stands convicted of, simply put, it is constituted by the agreement formed by two or more minds with the intention to do what is agreed. And where what is agreed to do is an unlawful act the parties are guilty of conspiracy. See: R V. Thompson (1966) 50 CR APP, REP. No doubt, one conspiracy may involve several overt acts, equally valid is the proposition that several acts of an accused person can be said to be in furtherance of a common purpose. See: – Amachree V. Nigerian Army (2003) 3 NWLR (pt. 807) 256 at 287 Paragraph – D.
Also the ingredients of the offence of conspiracy before an accused can be convicted of are as follows:-
(i) there must be two or more person,
(ii) They must form a common intention,
(iii) The common intention must be toward prosecuting an unlawful purpose.
(iv) An offence must be committed in the process, and
(v) The offence must be of such a nature that its commission was a probable consequence.
See: – Akinwumi V. The State (1987)1 NWLR (pt. 52) 608.

It is elementary that in criminal cases, the burden of proof is on the prosecution who must prove its case beyond reasonable doubt. The prosecution must discharge the general duty of rebutting the presumption of innocence constitutionally guaranteed to the accused person. See: Songhai Ltd. V. U.B.A. Plc. & Ors (2003)4 WRN 121; Etim Okokon Ita V. Nkoyo Ekpenyong (2001)9 WRN 147; Benignus Duru V. Jonathan Nwosu (19891)4 WNLR (pt. 113) 24; Ewo V. Ani (2004) 3 NWLR (pt. 861) 610; Trade Bank plc. V. Khaled Barakat Chami (2003)13 NWLR pt. 834) 168; Ezenwa V. Agu (2003) 33 WRN 38; Alabi V. State (supra), Solola V. The State (supra) Alepan V. State (supra) Alor V. State (supra).
From the record of Appeal before the court there is no place where the prosecution had argued any of the ingredients of the offence of conspiracy against the appellants. However at the conclusion of evidence, the learned trial judge concludes thus: – “I found that the prosecution proved robbery, and armed robbery against the 1st-3rd Accused person’s. The trial court thereby convicted the Accused/Appellants and sentenced them accordingly.
The charges for which the accused persons stood tried at the lower court were for conspiracy to commit armed robbery under section 5(b) and Armed Robbery under section 1(2)(a) of the Act. Conspiracy to commit must therefore be treated and proved disjunctively from Armed Robbery. It is the duty of the prosecution to establish the ingredients of the offence of conspiracy to commit the offence. The burden never shifts. It is not the duty of the Accused/Appellants to establish their innocence by showing that they had never conspired to commit the offence charged against them. In the absence of any proof before this court, issue No. 3 on the aspect of conspiracy alone is resolved in favour of the Appellants.
The 2nd aspect of issue No. 3 which is distinct from conspiracy is for the prosecution to prove beyond reasonable doubt armed robbery against the 1st-3rd Accused/Appellants. This court cannot however determine this aspect effectively and effectually without considering both issues No. 1 which deals with the admission of the confessional statements of the appellants at the lower court, and issue No. 2 which deals with the identification parade of the Appellants. In the determination of this appeal, this court has decided to move upward at this stage to consider issue No. 1. Issue No.1 deals with/the admission of the confessional statement of the Appellants at the lower court. From the Record of Appeal before the court each of the Appellants gave evidence in defence denying committing the offence charged. The testimonies of the Accused/Appellants were mainly a recount on how they were arrested and tortured by the police before obtaining their statements. Hence trial within trial was conducted by the trial court. The Appellants denied the voluntariness of Exhibits 13, 16, 18 and 20 respectively, but the trial court went ahead and admitted them in evidence. What is a trial within trial? It simply connotes a process in court where an accused person facing a criminal trial in court protests to the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him having been obtained under duress or some threat of whatever nature or actual physical torture to his person. The main action in the court may abet to subject the accused to face a mini trial within the context of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to the police was voluntarily made or not. The procedure is similar to that of the main trial as witnesses are called to give evidence and are subjected to cross-examination by the other side. The court proceeds to write a ruling either admitting the statement of the accused or, rejecting same after which the normal trial temporarily suspended continues. In his various rulings in the instant case, the trial court, gave the same pattern of rulings before admitting the various statements before it after conducting the trial within trial. In the ruling of the 1st appellant which was later replicated for the 2nd and 3rd appellants the trial court in its ruling at page 28 of the records stated as follows: –
“Generally any statement in which an accused admits the commission of an offence is relevant and admissible in evidence if it is made voluntarily. However, if it was made as a result of inducement, threat or promise it becomes irrelevant and in admissible. In this case the 2nd accused (1st appellant) did not show any inducement or promise or threat. All he said is that while at Eleweran P.W. 1 the I.P.O with some other policemen, chained his hands to, his legs, placed him on a drum and questions were asked to which he gave answer which the I.P.O recorded. He then alleged that matchet or cutlass was applied to his legs and was also beaten with water pipe. He showed the injuries on his legs and on inspection the wounds have healed but there are signs of bruises on his two legs but not that of matchet cuts. The wounds definitely could not have been caused by matchet as the bruises was consistent with wounds caused either by legs chains usually used on accused persons charged with violent offences or capital offences. I cannot say that the wounds on the accused were caused by the I.P.O. through matchet or cutlass. Therefore, the disputed statement cannot be said to have been obtained by any inducement, threat or promise’. The statement is relevant and admissible.”
Looking at the ruling of the learned trial judge above, would it have been safe to convict on the said confessional statements of the Appellants.
The law is already trite that for a confessional statement to be relied on in grounding a conviction it must pass the six test set out in R.V. SYKES (1913) 18 CR APP. R. 233 approved and applied in Dawa V. The State (1980) 8-11 S.C. 236.
(a) Is there anything outside it to show that it is true?
(b) Is it corroborated?
(c) Are statements made in it of fact, true as far, as they can be tested?
(d) Was the prisoner one who had the opportunity of committing the offence?
(e) Is his confession possible?
(f) Is it consistent with other facts which have been ascertained and which have been proved?
See: – Daniel V. State (1991)8 NWLR (pt 212) 715; Gbadamosi V. State (1992)9 NWLR (pt. 266) 465 at 479; Amachree V. Nigerian Army (2003)3 NWLR (pt. 807)256 at 287; Ikpo V. State (supra); Emmanuel Nwaebonyi V. State (1994) 5 NWLR (pt.343) 13 at 150. See also Section 28 of the Evidence Act.
Section 28 of the Evidence Act Provides:-
“A confession made by an accused person is irrelevant in a criminal proceeding. If the making of the confession appears to the court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.
From the law above it is the duty of the prosecution to prove the voluntariness of the confessional statement of the accused/appellants. He must prove clearly that each of the statements is positive, direct and unequivocal, and each of them amounts to an admission of guilt. After crossing the said hurdle by the prosecution then the duty returns to the court. The trial judge is to apply the six point formular set out in R.V. Skyes (Supra). Placing the said confessional statements before him. Each of the three accused/appellants maintaining their statements were not obtained voluntarily as they were subjected to torture, threat and other forms of human subjection before they were obtained. The trial judge then must maintain a balance between the position of the prosecution that those statements were voluntarily, and those of the accused as not being voluntarily. The trial judge must start looking outside for anything to show which the truth is. To see if there is any form of corroboration. Also to see whether the statement made in it is of fact, true as far as can be tested, also from the evidence before him whether the accused was one who had the opportunity of committing the offence, also to determine whether the confession is possible, and whether it is consistent with other facts which have been ascertained and which have been proved. Before going ahead to admit in evidence the confessional statements, the trial court must subject the said confessional statements to the above scrutiny before making them the basis for the conviction of the accused and the final sentencing.
In the present appeal the ruling of the trial court which this court earlier had quoted in extension at page 28 of the records the trial court in reference to the 1st appellant, which it replicated to the 2nd and 3rd appellants stated…” All he said is that while at Eleweran P.W.1. the I.P.O with other policemen chained his hands to his legs, placed him on a drum and questions were asked to which he gave answers which I.P.O. recorded. He then alleged that matched or cutlass was applied to his legs and was also beaten with water pipe. He showed the injuries on his legs and on inspection the wounds have healed but there signs of bruises on his two legs but not that of matchet cuts. The wounds definitely could not have been caused by matchet as the bruises were consistent with wounds caused either by legs chains usually used on accused person charged with violent offences or capital offences… ”
From the above, it is very clear that the trial judge had made up his own opinion. The bruises he confirmed having seen on the hands and legs of the accused/appellants he stated definitely could not have been caused by matchets, as the bruises was consistent with wounds caused by leg chains usually used on accused charged with violent or capital offences. This point is very critical to the admission of those confessional statements by the trial court. Physically the court saw elements of violence on the accused/appellants which is consistent with the position of the appellants that in the process of obtaining their statements torture was employed, yet the trial court maintained that wounds which it classified as caused by chains are normal. Can it be a free atmosphere for a person chained in hands and legs, and that person to volunteer a free statement the situation lives more questions on the part of the trial court, than answers.
In the trial within trial the accused/appellants gave evidence of torture and threat by the police through which they sustained injuries. It is also in evidence that the injuries were treated in the hospital. The medical chart was given in evidence. The medical personnel’s were also called as witnesses and they gave evidence of the treatments given to the accused persons. The evidence of the 1st accused/appellant was corroborated by the evidence of DW1 Ezekiel Oyeleye Jimoh ASP II in the medical section of Ijebu-Ode prison and DW2 Julius Odon Ikepea – Superintendent in charge of medical (a registered psychiatrist nurse) These pieces of evidence give credence to the fact that the trial judge ought to have warned himself before admitting these confessional statements of the appellants.
I agree with the submission of the learned counsel to the appellants that the learned trial judge was wrong to have speculated and acted in vain. The only evidence before the court was that the wounds sustained by the 1st appellant, by extension the 2nd and 3rd appellants was by the matchet. The prosecution did not give contrary evidence to the cause of the bruises or marks on the legs of accused/appellants.
From the records it is clear that each accused/appellants gave evidence of torture and duress meted out to them in obtaining their statements. It is also clear that there was no cross-examination of any the accused/appellant after they had given their evidence in the trial within trial proceedings. In Waziri V. The State (1997) 3 NWLR (pt. 496) 689 at 727 the position of the law as to the failure to cross-examine a witness in a proceeding was stated as follows: –
“It is an established principle of law that where an adversary or a witness called by him testified on a material fact in controversy in a case, the other party should if he does not accept the witness’s testimony as true, cross-examine him on that fact or at least show that he does not accept the evidence as true. Where as in this case he fails to do either, a court can take his silence as an acceptance that the party does not dispute the fact. After all one of the main purposes of cross-examination is to test the veracity of a witness”.
It is very surprising that there was no cross-examination of the appellants’ testimony to torture and duress perpetrated on them while obtaining their statement during the trial within trial proceedings. The learned trial judge was clearly in error to have admitted Exhibits 13, 16, 18 and 20 which are statements of the Accused/Appellants after the trial within trial proceedings issue 1 is therefore resolved in favour of the Accused/Appellants.
On issue No. 2 whether or not the Appellants were properly linked with the commission of the offence which they were charged with when there was no evidence that they were caught at the scene of the offence and no identification parade conducted by the police.
In considering this issue, it is pertinent to mention straight away that the only evidence linking the Accused/Appellants with the said robbery was the evidence of PW1, where he testified that he could identify one Adedokun Asegbe (who is now deceased) as one of the persons that attacked him. The PW1 testified that he saw Adedokun Asegbe (deceased) beside the vehicle parked near his house. Adedokun Asegbe is now dead, confirmed, any evidence led against his person or his involvement in the alleged offence of robbery on that fateful date will go to no issue. What is now left is the identification of the 1st-3rd Accused/Appellants as being part of the commission of the heinous crime on that fateful date. From the record of the court, the only thing linking the 1st – 3rd Accused/Appellants with the offence would be their various confessional statements. There is nothing outside their confessional statements to link them to the offence. I therefore agree with the submission of the learned counsel to the Accused/Appellants that there was the need for identification parade to determine their identity or the identity of the people that robbed the PW1.
The object of an identification parade is to test the ability of a witness to pick out from a group the person, if he is present, who the witness has said that he has seen previously on a specified occasion. Identification parade should be fair and should be seen to be fair every precaution should be taken to see that they are so; and in particular to exclude any suspicion of unfairness or risk of erroneous identification through the witness, attention being directed specifically to the suspected person instead of equally to all persons paraded. See: – Bosin V. State (supra) Ofala V. State (supra) and Usufu V. State (supra) Balogun V. A.G. Ogun State (supra).
Again with this court having resolved the issue No. 1 in favour of the Accused/Appellants in respect of their confessional statements, and the failure on the part of the police to conduct the identification parade of the 1st – 3rd Appellants the issue No.2 in the Appellants brief, is equally resolved in favour of the Appellants.
Turning now to the second segment of issue No.3, whether the prosecution has proved beyond reasonable doubt the offence of armed robbery against the 1st – 3rd accused/appellants which this court left in abeyance to determine issues 1 and 2 of the Appellants’ brief. Having resolved issues 1 and 2, of the appellant’s brief in favour of the 1st – 3rd appellants, the resolution of this segment of issue No.3 prove of armed robbery against the appellants becomes a mere academic exercise. Issue No.3 completely resolved in favour of the 1st – 3rd appellants.
Having resolved all the 3 issues in this appeal in favour of the 1st – 3rd appellants, the appeal succeeds and is allowed. The judgment of Osidipe J. of the High Court of Ogun State, Ijebu-Ode Judicial Division in charge No. HOB/20/2000, delivered on the 17th July, 2003 is hereby set aside. In its place I enter a judgment of not guilty of the offences charged and I hereby discharge and acquit all the accused persons.

STANLEY SHENKO ALAGOA, J.C.A.: I have had the opportunity of reading before now the Judgment just delivered by my learned brother S. D. Bage, J.C.A. I agree with his reasoning and conclusion reached that the appeal succeeds and is allowed. I also allow the appeal and set aside the judgment of Osidipe J. of the High Court of Ogun State, Ijebu-Ode Judicial Division in Charge No. HOB/20/2000 delivered on the 17th July, 2003. I equally discharge and acquit the Accused/Appellants.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in draft the thorough judgment prepared by my learned brother, Bage, J.C.A., with which I am in complete agreement. The trial within-trial conducted in the court below clearly revealed appellants were brutalized by the police before they made the confessional statements upon which their conviction and sentence were substantially hoisted. It is baffling that with the evidence of the presence of injuries on the appellants at the time the trial-within-trial was conducted and the medical evidence in support thereof, which proved the police brutalization of appellants at the time they made the confessional statements, the court below still accepted the respondent’s story that the confessional statements in question were voluntarily made by appellants. Even the unchallenged evidence of the appellants that they were torture by the police before making the statements were ignored by the court below.
In my view, the admissibility of the confessional statements by the court below violated section 28 of the Evidence Act as they were not voluntarily made by the appellants. The court below should not have accepted and acted on them to convict the appellants – see Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) 256 at 279-280 thus:
“The clamping of chains around the appellant’s legs at the interrogation and the making exhibit “A2” if anything were to strike fear and to intimidate the appellant and it was not denied nor that exhibit “A2″ was made under a friendly atmosphere… as alleged by the prosecution an answer to these acts.
The fact that the appellant was tortured came out vividly during the trial-within-trial.”
There is merit in the appeal. I hereby allow it and abide by the consequential orders contained in the judgment of my learned brother, Bage, J.C.A.

Appearances

Adewunmi Ogunsanya With;
S.C.Ukairo and E. A. Ajetumobi For Appellant

AND

Absent For Respondent