MANGER v. C.O.P, FCT (2021)

MANGER v. C.O.P, FCT

(2021)LCN/15079(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, March 09, 2021

CA/ABJ/CR/785/2020

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Between

SOLOMON MANGER APPELANT(S)

And

COMMISSIONER OF POLICE FEDERAL CAPITAL TERRITORY (FCT) RESPONDENT(S)

RATIO

QUESTIONS TO BE CONSIDERED BY THE COURT IN DETERMINING THE WEIGHT TO BE ATTACHED TO A RETRACTED CONFESSIONAL STATEMENT

It is also settled that the Court can convict on the retracted confessional statement of the Accused Person, however, before this is done, the trial Court is enjoined to evaluate the confession of the Accused Person and his testimony at the trial, as well as, other evidence adduced. This would entail the trial Court examining the new version of events presented by the accused person that is different from his retracted confession, and satisfy itself that the statement was free, voluntary and properly taken and that it passed the six tests to be applied to a confession, as suggested by Ridley J. in the case of R Vs Sykes supra. The said tests have been adopted by this Court in a number of decided cases, including Ogudo Vs State (2011) 18 NWLR (Pt.1278) I SC, wherein this Court explained that in determining the weight to be attached to a confessional Statement, retracted or not, the Court must ask itself the following; -Is there anything outside the Confession which shows that it may be true? -Is it corroborated in anyway? -Are the relevant statements of fact made in it most likely true as far as they can be listed? -Did the Accused have an opportunity to commit the offence? -Is the Confession Possible? -Is the Confession consistent with other facts, which have been ascertained and established? In effect, although, the Court can convict only on the extra judicial confessional statement of the Accused Person, it is desirable to find independent evidence; that is to say, to have some evidence outside the confession, however slight, of circumstances which make it probable that the said confession was true, See Queen Vs Itule (supra), R Vs Kanu (supra) and Edhigere Vs State (supra) Per Augie JSC PER ITA GEORGE MBABA, J.C.A.

WAYS BY WHICH THE COMMISSION OF CRIME BY AN ACCUSED PERSON CAN BE ESTABLISHED

As rightly stated by the Respondent’s Counsel, there are about 3 different ways of establishing commission of crime by an accused person, namely: (1) By positive and direct evidence of an eye witness of the commission of the offence — Blessing Vs FRN (2013) 12 WRN 36; (2) By cogent circumstantial evidence which points directly, unmistakably and conclusively at the accused person as the one from whom the guilt for the crime can be inferred — Nasiru Vs The State (1999) 2 NWLR (Pt.589) 82 (3) By confessional statement of the accused person, adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it – Haruna Vs A.G. Fed. (2012) 32 WRN 1; (2012) 9 NWLR (Pt.1306) 419. See also the cases of Obasi Vs The State (2014) LPELR – 24013 (CA); Awo vs State (2020) LPELR – 50619 (CA); Dada vs State (2017) LPELR – 43468 (SC); Adesina & Anor Vs The State (2012) LPELR – 9722 (SC). PER ITA GEORGE MBABA, J.C.A.

WHEN IS AN IDENTIFICATION PARADE NECESSARY

See the case of Ajomayan Vs The State (2020) LPELR – 49598 CA: As rightly submitted by Counsel on both sides, an identification parade, or need to clearly identify an offender is only necessary, where and when the victim or witness did not have opportunity to see/know him, in some intimate way or at close range, to leave some lasting impression of the offender on the victim or witness. Such parade may be the case, where the victim or witness never met the offender before the attack and the attack lasted in a split movement, leaving no room for acquaintance and/or strong interaction. See the case of Ikemson Vs State (1989) 6 SC (Pt.5) 1 at 14; Auta vs The State (2018) LPELR – 44490 (CA) and Idowu vs The State (2019) LPELR – 48459 CA, where it was held: “On when an identification parade is necessary, the Supreme Court in the case of Wisdom Vs The State (2017) 7 NWLR (Pt.1586) 446 at 468 paragraph B — F held as follows: “In Akeem Agboola Vs The State (2013) 11 NWLR (Pt.1336) 619… I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time, where the victim might not have the opportunity of observing the features of the accused.” An identification would become necessary only in the following situations of visual identification: (i) Where the victim did not know the accused person before and his first acquaintance with him during the commission of the offence. (ii) Where the victim was confronted by the offender for a very short time and (iii) Where the victim due to time and circumstances, might not have had the full opportunity of observing the features of the accused. ” PER ITA GEORGE MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Federal Capital Territory (FCT) in Charge No. FCT/HC/CR/24/2017, delivered on 14th May, 2020, by Hon. Justice Sylvanus C. Oriji, whereof the learned trial Judge convicted the Appellant and his co-accused, for offence of criminal conspiracy and robbery, and sentenced each of them to 6 years imprisonment on each count, but the sentence to run concurrently, or a fine of N10,000.00 on each Count.

At the trial Court, Appellant (with the Co-accused) was charged, as follows:
COUNT 1:
“That you Solomon Manger, male, 26 Years old of Lugbe F.C.T. Abuja and you Isaac Manger 22 years old of Lugbe FCT Abuja, on or about the 23rd day of August, 2017 at about 8:00pm at New Kuruduma Road, close to Mogadishu Barracks, FCT Abuja, did commit a criminal offence to wit: Criminal Conspiracy to commit the offence of robbery, in that on the said date, time and place, both of you agreed and conspired together to rob one Mr. Julius Cyprian Ukakha of Kurudu, Abuja of his Honda Civic 2000 Model, Registration Number: AW 11 YAB, and you actually succeeded

in the robbery. You thereby committed an offence (sic) 97 of the Penal Code Law.
COUNT 2:
That you Solomon Manger, male, 26 Years old of Lugbe FCT Abuja and you Isaac Manger 22 years old of Lugbe FCT Abuja, on or about the 23rd day of August, 2017 at about 8:00pm at New Kuruduma Road, close to Mogadishu Barracks, FCT Abuja, did commit a criminal offence to wit: Robbery, in that on the said date, time and place both of you robbed one Mr. Julius Cyprian Ukpakha of Kurudu, Abuja of his Honda Civic 2000 Model with Registration Number AW 11 YAB. You thereby committed an offence (sic) 298 of the Penal Code Law.”

On being arraigned, Appellant pleaded “Not Guilty” to the Charge and the case went into hearing, whereof the Prosecution called 3 witnesses. Appellant defended himself. The prosecution tendered documents – Exhibits A to E. At the end of the trial Court, the Learned trial Judge, after reviewing the evidence and addresses of Counsel, found the Appellant guilty, as charged. The trial Judge said, on pages 205 — 206 of the Records:
“I hold the considered view that from the circumstance in which the PW1 saw the defendants, the

length of time PW1 was with defendants and interacted with them in the car, from Wuse Zone 1, Abuja to the point of the robbery, and the opportunity of close observation the PW1 had, the PW1 was in a position to recognize and identify the defendants, as he did on 25/8/2017. The Court is not persuaded by the submission that the absence of an identification parade created doubt on the identity of the defendants as the persons that robbed the PW1 on 23/8/2017. The Court is satisfied that from the evidence of PW1 and the other pieces of evidence, like the PW1’s Tecno Phone recovered from the defendants and his car that was by the Police – all of which were admitted by the 2nd defendant in Exhibit D — the prosecution proved beyond reasonable doubt that the defendants were the persons who robbed the PW1 of his Honda Civic Car on 23/8/2017…”

The trial Court, finally, held:
“In the light of all that I have said, the decision of the Court is that the prosecution has proved the ingredients of the offence of robbery under Section 296(2) of the Penal Code Law against the defendants, beyond reasonable doubt… I adopt the findings and decision

of the Court under issue 1 and hold that prosecution proved the offence of conspiracy against the defendants beyond reasonable doubt in the final analysis, the verdict of the Court is that the defendants, Solomon Manger and Isaac Manger, are guilty of the offence of criminal conspiracy in Count 1 under Section 97(1) of the Penal Code Law; and the offence of robbery in Count 2 under Section 298(a) of the Penal Code Law.” See pages 209 — 210 of the Records.

Appellant was sentenced to 6 years imprisonment on each Count, or fine of N10,000 on each Count, but the sentence to run, concurrently.

That is the Judgment Appellant appealed against, being dissatisfied, as per the Notice of Appeal filed on 7/8/2020, with 10 grounds of Appeal (Pages 178 to 190 of the Records of Appeal). Appellant filed Brief of Argument on 23/10/2020 and distilled 4 (Four) issues for the determination of the Appeal, as follows:
(1) Considering the circumstances and situation of this matter whether identification parade for PW1 to identify his assailant is necessary and where this is answered in the affirmative whether failure of the Police to conduct identification

parade was not fatal to the case of the prosecution (Ground 6)
(2) Having regards to the proceedings of the trial Court of February 11, 2019 encased between pages 110 — 113 of the Printed Record of Appeal, the ipse dixit of PW1, PW3 and the Appellant as DW1, whether trial within trial was necessary in the instant case and where this is answered in the affirmative, whether failure to conduct trial within trial occasioned miscarriage of justice on the part of the Appellant. (Grounds 1 and 2)
(3) Considering the totality of evidence adduced before the trial Court by the prosecution, whether it could be said that the prosecution has proven the offence of conspiracy to commit robbery and the offence of robbery beyond reasonable doubt. (Grounds 4, 5, 7, 8 and 9).
(4) Whether the trial Court properly considered and evaluated the totality of evidence adduced by parties at the trial before convicting and sentencing the Appellant. (Grounds 3 and 10)

The Respondent filed its brief of arguments on 17/11/2020 and appeared to have adopted the issues for the determination of the Appeal, as formulated by Appellant.

Arguing the Appeal, on 3/2/2021, Appellant’s Counsel Adeolu Salako, Esq., who settled the brief, on issue 1, said that identification parade was essential and there was no justification for the failure of the prosecution to conduct identification parade for PW1 to identify his assailant; the failure was fatal to the case of the prosecution. He relied on the case of Osuagwu Vs State (2016) 16 NWLR (Pt. 1537) 31; Ikemson Vs State (1989) 3 NWLR (Pt. 1168) 443, on the need for identification parade, to ascertain the actual accused persons.

On issue 2, Counsel said it was wrong for the trial Court to refuse to conduct trial within trial, before admitting the statement of Appellant to the Police (Exhibit D), and relying on said Exhibit D to convict the Appellant. Counsel said the Exhibit formed the substratum of the case on which the trial Court convicted the Appellant. He said that the trial Court, having acknowledged Appellant’s objection to the admissibility of the extra judicial statement, on the ground of involuntariness, had held that Appellant’s objection in the face of his (Appellant’s) testimony in Court, in support of the Exhibit, amounted to retraction of the said

statement, thereby making it unnecessary to conduct “trial within trial.” Counsel said that was a denial of fair hearing to Appellant.

Counsel said that it was wrong for the trial Judge to say that “the objection of the defence Counsel on 11/2/2019 and the testimonies of each of the defendants amounted to a retraction of the confessional statement”, as the defendant said, (when he testified in his defence) that he was tortured and forced by the Police to sign the statement; that he signed the statement, but the Police did not read it to him, or let him know the content.

Counsel referred us to page 95 of the Records, where PW1 admitted that “the police started beating them and they confessed that they are the ones that snatched the car…”

Counsel stated the conditions whereof a Court is compelled to conduct trial within trial, and the purpose of such practice — to establish the voluntariness of the alleged confessional statement. He said that, once the issue of voluntariness of a confessional statement is raised, it must be resolved or settled, one way or the other, before its admission or otherwise. He relied on the case of

Ofordike Vs State (2019) 5 NWLR (Pt. 1666) 395 SC; C.O.P. Vs Alozie (2017) 7 NWLR (Pt. 1565) 368 and other cases, to the effect that:
“A trial within trial is used to test the voluntariness of a confession, not what value or weight to attach to the evidence. In other words, the question of value and what weight to attach to a confession admitted in evidence after a trial within trial is a different matter altogether as admissibility and weight are not the same thing.” See also Kamila Vs State (2018) LPELR – 43603 SC, which said:
“… there is no getting away from it that once there is a challenge to voluntariness of a confessional statement, that the trial Court faced with this challenge is bound to conduct a trial within trial to determine the voluntariness or otherwise.”
(See Uzim Vs State (2019) LPELR-48983)

Thus, Counsel said, the trial Court was bound to conduct trial within trial on the voluntariness of the confessional statements of the Appellant, upon the challenge of the Exhibit D. He argued that the Appellant, in the instant case, had resiled from making Exhibit D, on the ground that he was made to sign vide

torture and beating by the Police. He said that the retraction was made on 11/2/2019, at the time the statement was tendered before the trial Court to be admitted in evidence. He apologized for the submission of the Accused person’s Counsel at the trial Court, who had said that Accused did not sign the extra judicial statement. Counsel urged us not to visit the sins of Counsel on the Appellant, as Counsel’s submission did not constitute evidence.

Counsel said the trial Court’s reasoning in admitting the said Exhibit was wrong, having failed to take into consideration the position of the law regarding the distinction and effect of a retraction, on the ground of involuntariness. He said that the Court was wrong in its decision, with regards to the ways which an accused person may retract or resile from his confessional statement and the implication of such retraction.

Counsel said, in the circumstances, the Exhibit D was liable to be expunged, being inadmissible, for failure of the trial Court to have conducted trial within trial on the voluntariness of same. He relied on the case of C.O.P. Vs Alozie (2017) 7 NWLR (Pt. 1565) 308; Dele Vs State (2015) 12 NWLR (Pt. 1472) 63.

Counsel argued that the decision of the trial Court was therefore, perverse, as it ignored facts and evidence led at the trial Court. Again, he urged us to expunge the Exhibit from the evidence adduced at the trial Court.

On issue 3, Counsel argued that the trial Court, apart from relying on the Exhibit D (said to have been wrongly admitted and relied upon, also relied on the oral evidence of the PW1, PW2 and PW3, to convict the Appellant. Counsel said the trial Court was wrong to say that those pieces of evidence were credible, cogent and reliable; that the Court failed to be guided by the correct principle of law for the assessment of witnesses and evaluation of evidence. He said that the Prosecution did not discharge the burden of proof as per Sections 131, 132 and 136 of the Evidence Act, 2011.

Counsel asserted, again, that the trial Court did not give due consideration to the evidence of PW1, PW2 and PW3, as the same were full of contradictions; he said that evidence of Appellant was never taken into account by the trial Court, holistically; that the trial Court’s failure to evaluate the evidence properly to

establish that the same did not establish the guilt of the Appellant beyond reasonable doubt; he said that the ingredients of the offences were not established. He relied on Aminu Vs State (2009) 10 NWLR (Pt. 1148) 31; Ani Vs State (2009) 16 NWLR (Pt. 1168) 443; Shehu Vs State (2010) 8 NWLR (Pt. 1195) 112; Kingsley Vs State (2010) 6 NWLR (Pt. 1191) 593; Nwaturuocha Vs State (2011) 6 NWLR (Pt. 1242) 170 and Section 135 of the Evidence Act, 2011.

Counsel argued that the ingredients of the offence of conspiracy was not established by the prosecution. He relied on Omotola Vs The State (2009) 7 NWLR (Pt. 1139); Yakubu Vs FRN (2009) 14 NWLR (Pt. 1160) 151; Peter Vs State (2018) LPELR – 44357 (SC); Ikemson Vs State (supra). Counsel also said that the ingredients of armed robbery under Section 298 of the Penal Code Act, were not proved by the prosecution. He argued that PW1 did not produce the registration particulars of the stolen vehicle in Court, nor the rope (weapon) used for the robbery by accused persons. He urged us to invoke Section 167(d) of the Evidence Act against the Prosecution; that if the items were produced, they would have worked against the prosecution.

Counsel said the evidence by PWs 1, 2, and 3 did not establish the material elements of the offence of robbery, and again, that there were material contradictions in their pieces of evidence, which the trial Court ignored, and which should have been resolved for the Appellant. He referred us to pages 135 and 138 Evidence Act.

Counsel referred us to the evidence of Appellant in his defence on pages 123 to 126 of the Records and said that the same was not challenged, controverted or contradicted under cross examination. Thus, the trial Court ought to have taken same into consideration in determining the credibility to be attached to the evidence of PW1, PW2 and PW3. Counsel said there was no basis for the conviction of Appellant for conspiracy or for robbery. He relied on Nwaturuocha Vs The State (2011) LPELR — 8119 SC, on the need for proper identification of the real culprit in robbery cases.

On issue 4, whether the trial Court properly considered the evidence before it, before convicting the Appellant, Counsel, again, answered in the negative. Counsel said the trial Court erred, considering the requirement for

establishing offence of conspiracy and robbery. He said that there was no evidence to sustain the charge. Counsel argued again to enforce his earlier arguments under the issues 1 — 3, and asserted that the trial Court was wrong to admit and rely on the Exhibits D, E, F & H, to convict the Appellant.
Counsel urged us to resolve the issues for the Appellant and to allow the Appeal.

Responding, Counsel for Respondent, Kelechi Nwaiwu, Esq, (who settled Respondents brief), on issue 1, answered in the affirmative, saying there was no need for identification parade in the circumstances, as the PW1 had provided direct and compelling evidence identifying the defendants with the offence. Counsel reproduced the holding of the trial Court on pages 172 — 173 of the Records and adopted it. He said that Appellant’s arguments on the point were founded on speculations.

On issue 2, whether there was need for trial within trial before admitting Appellant’s extra judicial statement, Counsel answered in the negative, and said that the trial Court was right to hold that Appellant merely retracted his said statement. He relied on Obidiozo Vs State

(1987) 4 NWLR (Pt. 748) 760; Nwangbomu Vs State (1994) 2 NWLR (Pt. 327) 380; Okoro Vs State (1993) 3 NWLR (Pt. 282) 112.

On the ingredients of offence, Counsel said the ingredients of conspiracy were satisfied; that conspiracy, punishable under Section 97(1) of the Penal Code Law, being a simple meeting of the minds of accused persons and their agreement to do something illegal, or something legal in an illegal way, had been established. Counsel said from every indication, Appellant had an agreement/understanding with his fellow convict, left their home at Lugbe to the city centre for the purpose of robbing, and PW1 eventually became the victim.

On Count 2, Counsel said the charge was equally proved beyond reasonable doubt against Appellant; that the evidence of PW1, an eyewitness, had narrated his ordeal in the hands of the Appellant and his co-conspirator, to ground the conviction.

Counsel said these ingredients were abundantly established and proved beyond reasonable doubt at the trial Court; that every one of the above ingredients was found in the testimonies of PW1, PW2 and PW3 before the trial Court, thereby making it less difficult

for the trial Judge to convict and sentence the Appellant. He argued that it was not necessary to produce the registration particulars of the stolen vehicle, nor the rope used by the accused persons; that failure to produce them was not fatal to the case.

Counsel said that, by law, the guilt of an accused can be established by confessional statement of the accused, or by the evidence of eyewitness of the Crime, or by Circumstantial evidence; that in this case the three were employed, as the PW1’s tecno phone (one of the items robbed) was found in possession of the convicts; Counsel said that pointed to the conclusion, that the convicts were those who committed the offence. Counsel said that the Appellant also made a confessional statement.

Counsel said the finding of facts, as to the credibility of evidence adduced, is that of the trial Court, exclusively, to make, having seen and heard the witnesses as they testified; that appellate Court does not interfere with such findings, unless it is shown to be perverse and occasioned miscarriage of justice.
Counsel urged us to resolve the Issue against Appellant.

RESOLUTION OF THE ISSUES

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I think the real issue thrown up for the determination of this Appeal can be summarized into two, namely;
(1) Whether, in the circumstances of this case, failure of the trial Court to conduct a “trial-within-trial” before admitting the confessional statements of the Appellant, Exhibit D was fatal to the decision of the Court; and
(2) Whether the trial Court was right to convict and sentence the Appellant for criminal conspiracy and robbery, relying on the Exhibits D and the other evidence by the Prosecution.

I think these two issues have summarized the four issues raised by the Appellant. I shall, however, take the two issues, together.

Appellant had made a heavy weather of the fact of absence of “trial within trial” by the trial Court, and of no identification parade by the prosecution. Accused person’s Counsel, at the trial Court, T. J. Aondo, Esq, had raised objection to the Admission of the extra judicial statement made by Appellant, on the allegation that the same was obtained by duress.

Pages 112-113 of the Records of Appeal carry what transpired at the trial Court. When the Prosecution applied to tender Appellant’s

statement in evidence, through PW3 the IPO, (Inspector Godwin Davidson) who investigated the case and recorded the said Appellant’s statement (Exhibit D).

Immediately, the Prosecution Counsel applied to tender the said statements, the Defence Counsel said;
“I object to the admissibility of the statements. My clients informed me that they made statements under duress. The defendants were tortured and beaten before the Police recorded the statements and they did not append their signatures to the Statements. I apply that the matter be adjourned for trial within trial.”
Of course, the Prosecution counsel replied;
“I posit that the ground raised will not necessitate a trial within trial. The effect of what defence Counsel has said amounts to denial or retraction of the statements. Retraction is not a ground from (sic) trial within trial I rely on the case of Akwuobi Vs State (2017) 2 NWLR (Pt. 1550) 421 at 425. I pray the Court to discountenance the objection and admit the statements in evidence.” See Page 145 of the Records of Appeal.”

The trial Court, in resolving the arguments, admitted the said Statements of Appellant as Exhibit D, saying:
“There is a difference between a ground of objection to the extra-judicial statement of a defendant to the effect that he did not make the statement on the one hand, and that he made the statement under duress or involuntarily, on the other. In the former case, which is retraction, the Court will admit the statement and determine the evidential value or weight to be attached to the statement at the end of the trial. In the latter case, the Court will order a trial within the trial, to determine the voluntariness or otherwise of the statement. In the instant case, the ground of the objection is that the defendants were beaten and tortured before the police recorded the statements, and the defendants did not sign the statements. To my mind, this objection is a retraction of the statements because the petition of the defendants is that they did not make the statements sought to be tendered…” See Page 146 of the Records of Appeal.

In his final judgment, the trial Court restated its decision that Appellant merely retracted his statement (Exhibit D) and so did not necessitate conducting trial within trial; the Court further said

that Appellant’s Counsel had tacitly conceded that the said confessional statements were retracted, as he referred to Exhibits D & E as “retracted statements” and “retracted confessional statement of the defendants.” See Page 197 of the Records of Appeal.

I cannot really see the fuse raised by Appellant’s Counsel about the effect of the holding by the trial Court, that Appellant had retracted or denied his statements to the Police (Exhibit D), by the challenge raised by his Counsel that he made the statements under duress, as opposed to Appellant’s demand that the trial Court should have conducted a trial within trial, to determine the voluntariness of the statements.

Even if the trial within trial were done before the statements were admitted, the fact still remained, that Appellant had disowned the statements he made, on the ground of the same having been made under duress. I think in such a situation, the Court still had to consider the said statements (the content thereof) in the light of other pieces of evidence adduced in the case, to appreciate the claims of Appellants, whether, in fact, there was any truth in the allegation of

threat to make the said statements. Thus, while treating the statements as having been retracted (or denied) by the Accused person (Appellant), the Court had to look at, and consider other pieces of evidence, to see whether the rejected (retracted) statement agreed (or aligned) with the other pieces of evidence, to establish or disprove the charge with which the accused was charged. See the case of Ayodele Ikumonihan Vs The State (2018) LPELR-44362-SC, where the apex Court said:
“Now it is well established principle that the statement of the Accused person to the Police is considered part of the case for the prosecution, whether it contains a confession or not, and whether the Accused Person resiles it at the trial or not — See Egboghonome Vs State (1993)7 NWLR (Pt. 306) 383 SC. It is also settled that the Court can convict on the retracted confessional statement of the Accused Person, however, before this is done, the trial Court is enjoined to evaluate the confession of the Accused Person and his testimony at the trial, as well as, other evidence adduced.
This would entail the trial Court examining the new version of events presented by the

accused person that is different from his retracted confession, and satisfy itself that the statement was free, voluntary and properly taken and that it passed the six tests to be applied to a confession, as suggested by Ridley J. in the case of R Vs Sykes supra.
The said tests have been adopted by this Court in a number of decided cases, including Ogudo Vs State (2011) 18 NWLR (Pt. 1278) I SC, wherein this Court explained that in determining the weight to be attached to a confessional Statement, retracted or not, the Court must ask itself the following;
-Is there anything outside the Confession which shows that it may be true?
-Is it corroborated in anyway?
-Are the relevant statements of fact made in it most likely true as far as they can be listed?
-Did the Accused have an opportunity to commit the offence?
-Is the Confession Possible?
-Is the Confession consistent with other facts, which have been ascertained and established?
In effect, although the Court can convict only on the extra judicial confessional statement of the Accused Person, it is desirable to find independent evidence; that is to say, to have

some evidence outside the confession, however slight, of circumstances which make it probable that the said confession was true, See Queen Vs Itule(supra), R Vs Kanu (supra) and Edhigere Vs State (supra) Per Augie J.S.C.

Going by the above position of the law, I think Appellant should have concerned himself as to whether the trial Court properly considered all the evidence adduced in the case, with or without the retracted statements, where there were facts in the statements capable of identifying the Appellant or giving information about Appellant, and capable of corroborating the Exhibit D in the case, to suggest its truth or relevance to the case or charge Appellant was tried on.

It was therefore absurd in my view, and unhelpful for Appellant, for his Counsel to pray that the said confessional Statement (Exhibit D) be expunged, because the trial Court failed to conduct trial within trial on it; and arguing that the same was not admissible in evidence by reason of the alleged failure. Having declared that the act of the Appellant amounted to retraction, the trial Court therefore had a duty to review the evidence, holistically, including the retracted statement, and it did.

I also observe that the attack against the said statement of Appellant was launched by his counsel, who took upon himself to fight the statement, alleging that his client told him it was obtained under duress; that Appellant was tortured and beaten before the Police recorded the statement, and that the Appellant did not sign the said Statement. I think Appellant’s Counsel should have allowed his client (Appellant) to tell the Court this story by himself, upon being shown the statement, before the Counsel could invite the Court to conduct trial within trial on it. As it were, accused person’s Counsel was giving evidence (hearsay evidence) on the allegation to the trial Court and insisting that the trial Court conduct trial within trial, based on his hearsay evidence. He even erred by saying that Appellant was tortured and beaten before the statement was recorded by the police, implying that the torture and beating did not happen at the time of taking the statements and for that purpose! Counsel also said that Appellant did not sign the statement. But the Exhibit D had the signature of the witness/accused person (See Page

13 and 14 of the Records). Of course, if Appellant did not sign the said statement, it meant that he denied making them and so, the trial Court was right to treat Accused person’s Counsel’s complaint as retraction of the said statement by the Appellant. It should be noted that Appellant had also admitted signing the statement, but said that he was forced to sign or was not allowed to read what he signed! Appellant’s Counsel in this Appeal has apologized for that immature submission by Accused person’s Counsel at the trial.

In this case, at hand, the confessional statements (Exhibit D) was not the only evidence the trial Court relied upon to convict the Appellant, as the eye witness account of the victim of the robbery, PW1, who had testified and identified the Appellant and his brother as those who robbed him of his car was before the Court. There was also the circumstantial evidence of the recovery of victim’s tecno Phone from Appellant, which Phone was stolen at the time the PW1, was also robbed of the car. PW1 had said, in his evidence in chief:
“… I know the defendants. They were the ones that snatched my car from me. On 23/8/2017, I was

using my car in the evening to do town taxi because I had no job then. On that day, I was around Wuse Zone 1, Abuja, in front of Skye Bank. I saw the 2 defendants standing near the bank at the junction, stopped and asked if they were looking for taxi. They said yes and that I should take them to an estate close to Abacha Barracks in Asokoro, Abuja. Therefore, we agreed on was N2000.00. As we were going, we were discussing in the vehicle. The 1st defendant sat in the front seat while the 2nd defendant sat at the back seat. As we were going, 1st defendant made a call. When heard his dialect, I knew he is a Tiv person. After the call the 1st defendant asked me if I will be chanced to carry one man who lives in Lugbe and always needed taxi. From the discussion I got to know their faces. When we got to Abacha Barracks, on top of the bridge, I wanted to negotiate into Abacha Barracks. The defendant said I should turn right towards new Koroduma Road. We went down the road. It was a lonely road but few vehicles were passing. 1st defendant was the one directing me. He asked me to turn to my left after the roundabout. At a point, 1st defendant said I should stop,

because we have passed the place. He said he was looking for one Berger stone. He asked me to reverse. The Berger stone is after the roundabout. At the Berger stone, there was an untarred road. 1st defendant asked me to enter the road. I entered the road a little and told them I will not go further because I did not understand the road. They persuaded me to continue. When I started the car, I had a rope around my neck from behind. The 2nd defendant at the back used the rope to start strangling me. I was begging them not to kill me. The 2nd defendant continued to tighten the rope on my neck. At that time, the 1st defendant who sat in front was busy putting his hand inside my pocket. He collected the money I had in my pocket and removed the car key. At a point, 1st defendant ordered 2nd defendant to release the rope from my neck and that I should come down from the car. I obeyed them and came down from the car. The 2nd defendant came to the front seat while 1st defendant took over the driver’s seat. They started the car and reverse to move. I pursued the car and they stopped. Both of them came down and said they will shoot me if I pursued them again. Due to the

threat, I did not pursue them. When they entered the car. They drove off. Because I had no money with me, I trekked to Asokoro Police Station, where I lodged a report. The Police asked me to make statement and I did…” See Pages 87 — 89 of the Records

He further said:
“She (DPO) ordered some Policemen to follow me to where they (defendant) collected the car from me. I took them to the place. The DPO said I should leave my phone number. She said she will track the phone since the people left with my phone. I dropped my phone number with the DPO. The next day the DPO called my younger brother’s line which I also gave to the DPO. The DPO asked me to come to the Police Station. When we got there, she said she has been tracking my number and that the people who stole my care are in Lugbe. She advised that we (i.e., my brother and I) should go to Lugbe with the IPO… We went to Lugbe but we could not find the car, till about 11pm, when the phone of the IPO rang. The IPO was told that 2 guys were arrested at the same spot where the car was snatched. When we got to the Police Station, I recognized 2 of the defendants as the same persons that

snatched my car. When I told the Police that the defendants are the ones that snatched my car, the defendants denied. When the Police collected their items and searched their pockets, they saw my phone. I identified the phone as mine. When they went through the call log of the phone, I saw my wife’s number and that of my younger brother…” See page 95 of the Records.

Of course, the evidence of the PW1 had clearly pinned the Appellant to the crime, and his narrative, clearly, corroborated the confessional statement of the Appellant in Exhibit D, wherein Appellant also gave account of how they boarded PW1’s car that night and lured him to where they robbed him of the car; how one of them, at the back of the car, used rope to strangle PW1 and made him to surrender, and they robbed him of the vehicle, his phone and money.

There are about 3 different ways of establishing commission of crime by an accused person, namely:
(1) By positive and direct evidence of an eye witness of the commission of the offence — Blessing Vs FRN (2013) 12 WRN36;
(2) By cogent circumstantial evidence which points directly, unmistakably and

conclusively at the accused person as the one from whom the guilt for the crime can be inferred — Nasiru Vs The State (1999) 2 NWLR (Pt. 589) 82
(3) By confessional statement of the accused person, adjudged voluntary, even when it is retracted, where the Court is satisfied that it accords with the other pieces of evidence before it — Haruna Vs A.G. Fed. (2012) 32 WRN 1; (2012) 9 NWLR (Pt. 1306) 419.
See also the cases of Obasi Vs The State (2014) LPELR – 24013 (CA); Awo Vs State (2020) LPELR – 50619 (CA); Dada Vs State (2017) LPELR – 43468 (SC); Adesina & Anor Vs The State (2012) LPELR – 9722 (SC).

Appellant had complained about the failure of the Police to organize an identification parade for the purpose of the accused person(s) identification by the PW1, the victim of the crime. I do not think identification parade was necessary in this type of a situation, that the victim of the crime had a long time and opportunity of interacting with those who subsequently attacked and robbed him. He saw them, clearly, as they were friendly initially, discussed with them, while in the car, and even after the robbery, he saw them come

out of the car to threaten to shoot him, if he continue to pursue them. Moreover, on being arrested, two days after PW1 could identify them and his phone, stolen by them, at the time of snatching the car; the phone was found on them. See the case of Ajomayan Vs The State (2020) LPELR-49598 CA:
As rightly submitted by Counsel on both sides, an identification parade, or need to clearly identify an offender is only necessary, where and when the victim or witness did not have opportunity to see/know him, in some intimate way or at close range, to leave some lasting impression of the offender on the victim or witness. Such parade may be the case, where the victim or witness never met the offender before the attack and the attack lasted in a split movement, leaving no room for acquaintance and/or strong interaction. See the case of Ikemson Vs State (1989) 6 SC (Pt. 5) 1 at 14; Auta Vs The State (2018) LPELR – 44490 (CA) and Idowu Vs The State (2019) LPELR – 48459 CA, where it was held:
“On when an identification parade is necessary, the Supreme Court in the case of Wisdom Vs The State (2017) 7 NWLR (Pt. 1586) 446 at 468 paragraph B — F held as

follows: “In Akeem Agboola Vs The State (2013) 11 NWLR (Pt. 1336) 619… I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time, where the victim might not have the opportunity of observing the features of the accused.” An identification would become necessary only in the following situations of visual identification:
(i) Where the victim did not know the accused person before and his first acquaintance with him during the commission of the offence.
(ii) Where the victim was confronted by the offender for a very short time and
(iii) Where the victim due to time and circumstances, might not have had the full opportunity of observing the features of the accused.”

I think in this case, at hand, the three different ways of proving the commission of the offence were employed by the prosecution. With the eyewitness account of PW1, the victim of the robbery, and the recovery of the tecno phone of the PW1 in possession of the accused persons, when they were

arrested, the confessional statement of the Appellant, simply agreed with the line of evidence, that Appellant, with his brother, conspired to rob the PW1 on 23/8/2017 and actually robbed him by snatching his car and other valuables.

I see no merit in this Appeal, and so I dismiss it, and confirm the conviction and sentence of the Appellant by the trial Court for Conspiracy and Robbery.

IBRAHIM SHATA BDLIYA, J.C.A.: I read the advanced copy of the leading judgment prepared by my learned brother, ITA G. MBABA, J.C.A. the reasoning and the conclusion arrived at are agreeable to me, that this appeal is unmeritorious and ought to be dismissed.
I too, dismiss the same, and inconsequent affirm the judgment of the lower Court.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had a preview of the judgment just delivered by my learned brother, ITA G. MBABA, J.C.A. I am in agreement with the resolution of the issues in the appeal therein.

In the main, the issues are whether the failure of the trial Court to conduct “trial within trial” before admitting the confessional statement of the Appellant “Exhibits E & G” was fatal to the

decision of the Court and whether the trial Court was right to convict and sentence the Appellant for criminal conspiracy and robbery relying on “Exhibits E & G” and other evidence adduced by the prosecution. My learned brother has meticulously and quite efficiently resolved the two issues submitted for determination of the appeal. It is not that I have any new things to say but only to make a few comments in favour of the judgment.

Going by the evidence before the trial Court, I have no iota of doubt that the Appellant and his brother did commit the offence for which he was arrested, charged, tried, convicted and sentenced.

The purposes of a trial within trial is not to determine whether the accused made the statement but it is to determine whether the statement was admissible. It has long been established as a positive rule of law as codified under Sections 28 and 29 of the Evidence Act, 2011 (as amended) that a confession made by a Defendant may be given in evidence against him so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of that provision. The conditions are stated clearly under Section 29 (2) (a) and (b) of the Evidence Act.

In the appeal at hand, the defence has not raised satisfactorily any of those conditions to warrant a trial within trial, the mere saying that the Defendant did not make the statement and not freely made is not sufficient to undertake the process of trial within trial in the circumstance of the fact of this case. To me, what the Appellant was trying to do is to renege from what he earlier told the police (Prosecutor). Put in another way retraction of Evidence. Where the statement of an accused is voluntary and is properly admitted as in this appeal, the fact that the statement was later retracted is immaterial. See ULUEBEKA V THE STATE (2000) 4 SC (Pt. 1) 203, NWACHUKWU V THE STATE (2007) 7 SC 1, OSENI V THE STATE (2012) 2 SC (Pt. 11) 51, HARUNA V A. G. FEDERATION (2012) 3 SC (Pt. iv) 40.

The evidence before the trial Court is so convincing, unequivocal, direct and overwhelming on the acts perpetrated by the Appellant and his brother when they boarded the vehicle of PW1 “TAXI” to a dictated destination. They made PW1 navigate roads leading to where they consider ideal to lunch their attack and

collected his car from him. Not only the car was recovered from the Appellant and his brother, the Techno telephone of PW1 was also found on them.

For the foregoing and the more elaborate reasoning advanced in the lead judgment, I am in complete agreement with my learned brother that the complaint of the Appellant in this appeal is untenable and is devoid of any scintilla of merit. Therefore, I adopt the more detailed reasons contained in the lead judgment as mine in coming to the conclusion that the appeal lacks merit and should be dismissed. I also dismiss the appeal and abide by the orders made therein.

Appearances:

ADEOLU SALAKO,ESQ., with him CHIAMAKA ECHEOZO, ESQ., TOLULOPE OGUNMEFUN,ESQ. AND ADEOLU OBADAIRO For Appellant(s)

KELECHI NWAIWU,ESQ. For Respondent(s)