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MIRACLE v. STATE (2022)

MIRACLE v. STATE

(2022)LCN/17100(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, April 06, 2022

CA/PH/57CR/2018

Before Our Lordships:

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Olabode Abimbola Adegbehingbe Justice of the Court of Appeal

Mohammed Lawal Abubakar Justice of the Court of Appeal

Between

JOSHUA MIRACLE APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE POSITION OF LAW WHERE AN OBJECTION IS RAISED AGAINST THE ADMISSIBILITY OF AN ALLEGED CONFESSIONAL STATEMENT

It is trite law that where an objection is raised in a criminal proceeding against the admissibility of an alleged confessional statement, the trial Judge ought to immediately conduct a trial within trial, in order to properly determine the voluntariness or otherwise of the making of the confessional statement. See the provision of SECTION 29(1)–(3) of the EVIDENCE ACT, 2011. PER KOLAWOLE, J.CA.

WHETHER OR NOT PARTIES ARE BOUND BY THE RECORD OF PROCEEDINGS

It is trite that parties are bound by the record of proceedings and so also is an appellate Court bound by the record of appeal as compiled and transmitted to it and therefore, cannot go outside the contents of the record of appeal to decide on issues in contention in the appeal between the parties before it. See the decisions in GLOBAL FLEET OIL & GAS LTD v. ALLEN (2021) LPELR-54583(CA); AGBEOTU v. BRISIBE (2005) 10 NWLR (Pt. 932).
This Court is indeed bound by the records of appeal, as it was not physically present during the trial at lower Court, and thus can at best only rely on the records as compiled and transmitted to it. This Court cannot go outside the records to import facts, or alleged interactions between the learned trial Judge and the Appellant, when they do not exist in the record. It will also be wrong for this Court to rely on statements made by the trial Judge that happens to be within the confines of his personal knowledge alone, and which he seeks by some cloistered method to add to the body of evidence before him. See the case of OBI v. ATTORNEY GENERAL, IMO STATE (2016) (supra). PER KOLAWOLE, J.CA.

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

The law is clear and well established on the ingredients that must be proved to be able to sustain a conviction of armed robbery, they are as follows:
a) That there was a robbery
b) That the robbery was carried out with the use of offensive weapons
c) That the accused person participated in the robbery.
It is imperative to say that all the above requirements must be consecutively proved beyond reasonable doubt before a conviction can be sustained based on the indictments in the Information filed. See the decision in the case of EHIMEN ESE v. STATE (2017).  PER KOLAWOLE, J.CA.

WHETHER OR NOT THE PROSECUTION CAN WITHHOLD VITAL EVIDENCE OR WITNESS TESTIMONIES

​It is trite in law, that the prosecution has a solemn obligation as a minister in the temple of justice to the trial Court to place all available relevant evidence and witnesses before the trial Court in order to aid in the resolution of any vital point that such a witness or evidence may help resolve or settle. In sum, the prosecution must not withhold vital evidence or witnesses whose testimonies may lead the Court to a just determination of the vital issues in contention. See the case of IBRAHIM v. STATE (2015) ALL FWLR (PT. 779) P. 1149 at PP. 1175 paras D-E, G-H. PER KOLAWOLE, J.CA.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal brought by the Appellant to challenge the correctness of the judgment of Hon. Justice L. M. Boufini of the High Court of Bayelsa State, Yenagoa Judicial Division in Suit No. YHC/167C/2016 delivered on 9th October, 2018, wherein the Appellant, Joshua Miracle, was found guilty of conspiracy to commit armed robbery and armed robbery, and consequently sentenced to death by hanging.

The jurisdiction of this Court was invoked when the Appellant filed his Notice of Appeal on 5th November, 2018. It contains five grounds with detailed particulars.

The Appellant’s brief which was settled by O. A. Nelson, Esq. was dated and filed on 25th January, 2019, whereas, the Respondent’s brief was settled by its learned counsel, E.T. Boatman, Esq. and was filed on 22nd May, 2020. The Appellant’s Reply brief on the other hand, was filed on 30th June, 2020.

THE BRIEF FACTS OF THE APPEAL:
​The Appellant was charged before the lower Court by an Information filed on 26th September, 2016 on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Section 6(b) and Section 1 (2) (a) of the Armed Robbery & Firearms (Special Provisions) Act, Cap R11, LFN, 2004.

The Respondent as the Prosecution at trial called three witnesses and tendered EXHIBITS A, A1, and B also an ID which is a bond containing recharge cards released to the complainants by the police.

It was the summary of the Prosecution’s case at trial, that on the 11th July, 2016, the Appellant in company of two others now at large namely, Daniel and Tino, armed with a shotgun and a dagger knife, successfully robbed PW1 in front of his shop of a bag containing recharge cards of various denominations worth two million, one hundred naira only and physical cash of two hundred and twenty-three thousand naira only, and fled. That upon boarding commercial tricycle (keke-napep) going to Opolo, they were intercepted at Otiotio junction, by men of the Operation Doo Akpor, who conducted a search on their persons and belongings found in their possession. In the process of the said search, Daniel and Tino fled the scene and the Appellant was detained.

​The next day, PW3 in company of the Appellant visited the scene of the robbery, and was properly identified by PW1 as one of the armed robbers who carried out the attack on him the previous day.

A search warrant was executed and his private residence searched by PW3. However, PW3 recorded the Appellant’s confessional statement under caution, wherein he admitted to the crimes.

​On the other hand, the Appellant’s case can be summarized thus:
The Appellant is a welder apprentice, and that on 11th July, 2016, at about 7pm after he had closed from his place of work, he was going to his house in the company of his colleague named Daniel Rufus at Tombia, and a van containing some unknown people blocked his vehicle and whisked him away to Door Akpor, and then to SARS. While there, they were informed that there was a robbery. During the investigation, the officers took him to his dad’s house to search the place, in search of what he did not know anything of. He did not make any statement at SARS, but was forced to sign an already written statement. At the proceedings during the trial, when the Respondent sought to tender EXHIBIT B, learned Counsel to the Appellant objected to its admissibility, stating that the Appellant was forced to sign EXHIBIT B, he was however overruled by the lower Court.

ISSUES FOR DETERMINATION:
Learned Appellant’s Counsel in his brief of argument, formulated and canvassed two issues for determination to wit:
i. Whether the trial Court was right to have relied on involuntarily made alleged confessional statement of the Appellant without conducting a trial within trial to have convicted the Appellant for the offence of armed robbery and conspiracy to commit armed robbery? (Grounds 1, 2, and 3).
ii. Whether considering the evidence before this Court can it be said that the prosecution proved beyond reasonable doubt the alleged offence of Armed Robbery and conspiracy to commit armed robbery, for the trial Court to have convicted the Appellant of same without proper evaluation of the evidence before the Court? (Grounds 4 and 5).

​On the other hand, Counsel to Respondent formulated two issues for the determination of this appeal.
i. Whether the learned trial Judge was wrong to have convicted the Appellant for the offences of armed robbery and conspiracy having taking into consideration the evidences of the prosecution witnesses and having found the confessional statement of the Appellant (Exhibit B) to be voluntarily made?
ii. Whether the learned trial Judge was wrong in admitting the extra-judicial statement of the defendant without conducting a trial within trial?

SUBMISSIONS OF COUNSEL:
On the first issue raised and argued by the Appellant’s counsel, he submitted that the learned trial Judge overlooked the evidence as shown before it and seemingly imported totally different evidence, as it were, into the proceedings.

He submitted further, that there is nowhere in the entire proceedings of the Court that the Appellant admitted making and signing the alleged confessional statement, EXHIBIT B, without being coerced.

He noted instructively, that the learned trial Judge erred in omitting or ignoring the relevant averments of PW2 on this point at page 64 of the records of appeal.

​He vehemently submitted that the admission in evidence of the alleged confessional statement of the accused person as EXHIBIT B even when an objection to its admissibility on the ground that it was not voluntarily made by the Appellant was raised timeously by the Appellant’s Counsel, tantamount to affront to justice. In reliance of his proposition, he cited the decisions in OLAYINKA v. STATE (2007) 9 NWLR (PART 1040) P. 561 AT Pp. 577 paras. C-E; paras. E-F; STATE v GWANGWAN (2015) ALL FWLR (PART 801) p. 1470 at pp. 1500-1501 paras D-H, paras A-B.

He submitted that by the unequivocal and combined intendment of the case laws and statutory provisions mentioned above is that the alleged confessional statements in EXHIBIT B is an inadmissible document and having been wrongly admitted was liable to be expunged from the record.

​It was contended that the learned trial Judge heavily relied on the alleged confessional statement of the Appellant to convict and sentence him for the offence of armed robbery and conspiracy to commit armed robbery even though the Appellant challenged the voluntariness of the alleged confessional statement, the learned trial Judge failed to conduct a trial within trial in order to test its veracity according to the law.

​He further submitted that the evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from its record.

He urged upon this Court to expunge EXHIBIT B the legally inadmissible alleged confessional statement of the Appellant and all the findings thereof made by the lower Court which were heavily relied on by the trial Judge to convict and sentence the Appellant for the offence of armed robbery and conspiracy to commit armed robbery.

He further urged this Court to resolve issue one in favour of the Appellant and overturn the decision of the lower Court, discharge and acquit the Appellant.

On the second issue, it is the submission of Appellant’s Counsel that even though the alleged confessional statement of the Appellant was properly admitted in evidence, that because an accused person’s extra-judicial statement is evidence of the fact that it was made but being an extra-judicial statement, it is not evidence of the truth of its contents. In reliance the Appellant’s learned counsel cited of STATE v. OBOBOLO (2018) 4 NWLR (PT. 1615) P. 428, PARA G; 429, PARA A.

​He went further in his submissions to argue that the prosecution did not prove beyond reasonable doubt all the ingredients of the offence of armed robbery and conspiracy to commit armed robbery as contemplated by the law, yet the learned trial Judge convicted the Appellant by relying solely on the inadmissible admitted alleged confessional statement of the Appellant to convict and sentence the Appellant.

He submitted again, that the law does not impose an obligation on the Appellant to absolve himself of guilt, but rather it imposes an obligation on the prosecution to prove the guilt of the Appellant beyond reasonable doubt, and that to do this, the prosecution must prove the ingredients of the offence(s) charged as required by law and to the satisfaction of the Court. He reiterated the position of the law as enunciated by the Supreme Court in its decision in the case of EHIMEN ESENE v. STATE (2017) LPELR-41912 (SC).

The Appellant’s counsel further argued that the learned trial Judge, did not properly evaluate all the evidence canvassed by the prosecution witnesses before arriving at his decision to convict and sentence the Appellant for the offence of armed robbery and conspiracy to commit armed robbery and argued that the prosecution has an obligation to place all available relevant evidence before the trial Court, and that where there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called. He cited the decision in IBRAHIM v. STATE (2015) ALL FWLR (PT. 779) P. 1149 AT pp. 1175 paras. D-E, G-H in support of his proposition.

Learned Appellant’s Counsel again submitted in relation to the provision of Section 4 of the Police Act. Cap. P19 LFN 2004 that the in the absence of the report of police investigation report reduced the case to that of a civil nature where it is always the words of the parties against the other.

He argued that although the police investigation report is not binding, in a criminal trial, but it is of great value to the Court in the evaluation of the prosecution’s case before it arrives at a decision on the guilt or innocence of the accused person and also find that the without such evidence of police investigation report, it would be doubtful if such charge could be filed against the accused persons. He cited the case of ONONUJA v. STATE (supra) AT page 1226 paras E-H; 1227 paras A-E in support of his proposition.

It was further contended that the reliance on the uncorroborated ipse dixit of PW1, the inadmissible alleged confessional statement of the Appellant, failure to call PW1’s girlfriend and failure to call any of the police officers from operation Dooakpor, ought to have been applied to cast doubt on the guilt of the Appellant in the mind of the Court below.

He again submitted that the fulcrum of the apex Court’s decision in the case of OLAYINKA v. STATE (supra) at p.575. Paras. D-F, is that once the prosecution evince that the alleged weapons used in committing an alleged armed robbery is recovered, it behooves on the prosecution to tender same. He contended that the refusal of the prosecution to tender the alleged recovered weapons used by the Appellant in the alleged armed robbery as stated in the proof of evidence speaks volume, to wit, that there were no weapons recovered from the Appellant and that the alleged allegation was a trumped-up charge by PW1, being the only eye witness of the alleged armed robbery.

It was further argued that the evidence of the Appellant was never contradicted and/or rebutted by the prosecution during cross examination.

He added that it is trite law that facts not disputed are taken as admitted and/or established, as they need no further proof. In further reliance on this statement of law, the Appellant’s learned counsel cited again the decisions in EHIMEN ESENE v. THE STATE (supra) Pp. 23-24 paras F-A Pp. 40-41; OLAKUNLE v. STATE (2018) 6 NWLR (PT. 1614) p.91 AT pp 110 para. B.

He finally submitted that from the foregoing, that in all ramifications, the prosecution has not proved any of the ingredients of armed robbery against the Appellant which must be proved beyond reasonable doubt in order to ground a conviction against the Appellant.

In their response to the arguments canvassed by the Appellant in his brief of argument, the Respondent argued the two issues already formulated in the Respondent’s Brief of argument.

​In arguing his first issue on whether the learned trial Judge was wrong to have convicted the Appellant for the offences of armed robbery and conspiracy having taking into consideration the evidences of the prosecution witnesses and having found the confessional statement of the Appellant (Exhibit B) to be voluntarily made, Respondent learned Counsel submitted that it is the position of the law, that the moment the proof tendered by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the perpetrator of the mens rea or actus reus or both, the prosecution has discharged the burden placed on it by law. In support of this proposition, he cited ADELEKE v STATE (2014) ALL FWLR (PT. 722) PG. 1655 AT PG. 1673, PARAS B-D.

The Respondent’s learned counsel argued that the law has abundantly provided that in proving the guilt of an accused, the prosecution can do so by any these methods: (a) direct evidence (b) circumstantial evidence (c) confessional evidence and submitted that proof of at least one of these is sufficient to secure a conviction. He cited the decision in FRN v. BARMINAS (2017) ALL FWLR (PART 882) PG. 1256 AT PG. 1277, PARA A-B and then contended that the trial Judge was right in convicting the Appellant for the offences upon which he was charged, seeing that neither of the prosecution witnesses nor exhibits A, A1, B or B1 was impeached during cross-examination and adding that the position of the law remains that unchallenged or uncontradicted evidence is the safest to rely on.

He further submitted that contrary to the arguments of Appellant’s Counsel, he argued that the Court did not rely solely on EXHIBIT B to ground the conviction, but rather, on the combined evidence of the prosecution witnesses is corroborative enough to convict the Appellant. In reliance of this proposition, the Respondent’s counsel cited the cases of YAHAYA v. STATE (2016) LPELR-40254 (CA) (P49, PARAS A-C).

The Respondent’s Counsel urged this Court to discountenance the arguments of Appellant’s Counsel in paragraphs 5.7-5.13 on the ground that they are not issues emanating from the judgment of the trial Court being complained against. He added that an appeal is not a ground for rearguing the case of the Appellant, rather what an Appellant’s Counsel can do is to provide authorities to convince the appellate Court that the trial Court erred in law to have arrived at the decision appealed against. In reliance, he cited the decision in OREDOYIN v. AROWOLO (1989) 4 NWLR (PT. 114) 172; TARHEME ABE & ANOR v. GABRIEL DAMAWA & ANOR (2011) LPELR-5007 (CA).
He further submitted, that the trial Court was right to have convicted the Appellant for the offence of conspiracy, as from the evidence available to the lower Court there was clearly the ingredients of conspiracy therein.

On the second issue, he submitted that by virtue of the implication of Section 29(1) and (2) of the Evidence Act, 2011, where an objection is raised as touching the voluntariness or otherwise of a confessional statement, the law requires the Court to conduct a trial within trial in order to test the voluntariness or otherwise of the extra judicial statement.

He however contended, that the law did not foreclose the trial Court from inquiring from taking a look at the statement to see whether there is need for trial within trial or not.

​He further submitted that an objection as to the admissibility of a confessional statement is not an outright condition for trial within trial, as a trial Judge is required to examine the contents of a statement before ordering for the trial within trial and where he is satisfied, such objection can be overruled. He cited the decision in DARE JIMOH v. STATE (2014) LPELR-22464 (SC).

He submitted that the trial Judge was right in admitting the extra-judicial statement of the Appellant as exhibit, this he reasoned also because as he observed, the Appellant when inquired by the learned trial Judge admitted making the statement.

He further argued that it was the duty of the Appellant and not his Counsel to raise the issue of involuntariness of a confessional statement and in support of this proposition, the Respondent’s counsel relied on FRN v. BABALOLA (2015) ALL FWLR (PART 785) 227 AT 247, PARAS. D-E.

In his conclusion, he urged this Court to discountenance the submissions of the Appellant, dismiss the appeal and to uphold the verdict and the sentence imposed by the lower Court.

The Appellant’s Counsel in his Appellant’s Reply brief, made some rebuttals to the Respondent’s brief and submitted that the burden of proof in a criminal trial remains on the prosecution throughout and does not shift, as the burden is only discharged by leading cogent and credible evidence to establish all the essential elements of the charge against the defendant.

​In support of statement of law, he cited the decisions in the cases of JATO v. STATE (2019) 8 NWLR (1674) 317 at Pp. 325-326, paras. F-A; EHIMEN ESENE v STATE (2017) LPELR- 41912 (SC).

He submitted further, that the prosecution at the trial hearing, did not prove the offence of armed robbery against the Appellant beyond reasonable doubt, as the only evidence that tends to link the Appellant to the alleged offense is the uncorroborated ipse dixit of PW1.

On why the Appellant failed to cross-examine PW2 at trial, he submitted further that the evidence of PW2 was a mere hearsay and thus was inadmissible in law and cannot be used as corroboration to the ipse dixit of PW1.

He argued, that the statement of PW2 as contended by the prosecution, cannot be corroborative evidence because it is not a fresh and independent statement, rather it is a repeat of what he was told by PW1. In reliance he cited the decisions in ITODO v. STATE (2020) 1 NWLR (PART 1704) 1 AT Pp. 29-30 paras. H-G; P.40, paras A-H and STATE v. YAHAYA (2019) 13 NWLR (PART 1690) P. 397 AT p. 428-429 paras H-B.

​He further argued that even though the Appellant’s Counsel dutifully objected to the admissibility of the alleged confessional statement on the ground that it was not voluntarily made, the trial Judge overruled this objection on the pretext that the trial Judge inquired from the Appellant on the same issue, and he received an answer in the affirmative.

He contended that the personal knowledge of a Judge cannot take the place of evidence in matters placed before him, and that it does not lie with a trial Court to help out the prosecution to buttress its case against an accused person. In support of this proposition, he cited the decision in OBI v. ATTORNEY GENERAL, IMO STATE (2016) 3 NWLR (PART 1500) P.11 paras E; F-G.

He equally countered Respondent’s Counsel’s contention that it was Appellant’s Counsel and not the Appellant that objected to the admissibility of the alleged confessional statement, by citing the case of EKWURUEKWU v. STATE (2020) 4 NWLR (PART 1713) P. 114 AT P. 134 paras D-F, wherein the Supreme Court opined that it is the duty of the learned Counsel to raise an objection to confessional statement that was being tendered on the ground that the statement was not voluntary and that trial within trial would then become necessary in order to determine voluntariness or otherwise of the making of the statement.

In sum, he urged upon this Court, to accede to the reliefs sought by the Appellant in allowing this appeal, and overturning the conviction and sentencing of the Appellant and discharge and acquit the Appellant.

RESOLUTION OF ISSUES:
Having taken quality time to study the two issues respectively formulated and canvassed by both parties in their respective briefs of argument, and having seen that they are substantially the same, I will therefore advisedly adopt the two issues raised by the Appellant for the due and just determination of this appeal.

The first issue can be gleaned, perhaps extrapolated from the first three grounds of appeal, and bothers on whether the trial Court was right to have relied on the involuntarily made alleged confessional statement of the Appellant without conducting a trial within trial to have convicted the Appellant for the offence of armed robbery and conspiracy to commit armed robbery.

​It is trite law that where an objection is raised in a criminal proceeding against the admissibility of an alleged confessional statement, the trial Judge ought to immediately conduct a trial within trial, in order to properly determine the voluntariness or otherwise of the making of the confessional statement. See the provision of SECTION 29(1)–(3) of the EVIDENCE ACT, 2011.

​In the instant case, the Appellant’s Counsel having objected to the admissibility of the EXHIBIT B, the alleged confessional statement made by the Appellant in the course of investigation, but was summarily overruled by the trial Judge, and same was admitted as an exhibit. The trial Judge in page 51 of the records gave his reasons for the admittance of EXHIBIT B, the alleged confessional statement, despite the objection of the Appellant’s Counsel. In his own words, he stated thus:
 “…On the 2/2/2017 when PWs sought to tender the extra judicial statement of the accused person, the defense Counsel raised an objection on the grounds that the statement was not voluntarily made, the accused contrary to the objection of the defense Counsel admitted signing the statement without being coerced and on the face of it, there was no indication that the accused was forced to make the statement, the accused did not deny the said statement, on that note, I admitted the statement as EXHIBIT B.”
In explaining the rationale for his decision, the learned trial Judge recorded why he admitted EXHIBIT B, the learned Counsel to the Respondent, referred this Court to the case of DARE JIMOH v. STATE (2014) LPELR-22464 (SC), wherein the apex Court opined accordingly:
“a trial is said to be necessary when the voluntariness of the making of the confessional statement by an accused person is in issue or raised by an accused person is in issue or raised by an accused person. In other words, where the accused person admits making the statement but contends or asserts that he did not make it voluntarily but under duress or some alleged influence or torture, then a trial within trial will be conducted in order to determine whether or not the statement was voluntary. However, when the trial Court is satisfied that the statement was voluntarily made, the Court is entitled to admit it as an exhibit in evidence before the Court,”

​Learned Counsel to the Respondent contended further that by virtue of the word “HOWEVER” in the above dictum, it is an indication that an objection for the admissibility of a statement is not an outright condition for trial within trial, for a trial Judge is required to examine the contents of a statement before ordering for the trial within trial and where he is satisfied, such objection can be overruled.

This submission of learned Counsel to the Respondent has in my view, pushed forward one question to answer and it is “why did the trial Judge overrule the objection of the Appellant’s Counsel?”

Graciously, the answer to this germane question has already been answered above, when the trial Judge said “…the accused contrary to the objection of the defense Counsel admitted signing the statement without being coerced and on the face of it, there was no indication that the accused was forced to make the statement, the accused did not deny the said statement, on that note, I admitted the statement as EXHIBIT B.”

​This reason given by the learned trial Judge, further led this Court to dig into the records as it’s the only guide for the events that transpired in the proceedings in the trial Court.

By the record of proceedings, particularly at page 51, there is no where contained therein where the trial Judge made any inquiry to the Appellant and he answered the trial Judge in the affirmative. From the records before us, such an interaction was not borne out of the record of the proceedings in relation to Exhibit B that was used and relied upon by the trial Judge. No place in the entire length and breadth of the records does that particular interaction or conversation featured between the Court and the Appellant whilst standing trial. How the learned trial Judge came about such a “finding” of fact still remains an unresolved puzzle.

It is trite that parties are bound by the record of proceedings and so also is an appellate Court bound by the record of appeal as compiled and transmitted to it and therefore, cannot go outside the contents of the record of appeal to decide on issues in contention in the appeal between the parties before it. See the decisions in GLOBAL FLEET OIL & GAS LTD v. ALLEN (2021) LPELR-54583(CA); AGBEOTU v. BRISIBE (2005) 10 NWLR (Pt. 932).
This Court is indeed bound by the records of appeal, as it was not physically present during the trial at lower Court, and thus can at best only rely on the records as compiled and transmitted to it. This Court cannot go outside the records to import facts, or alleged interactions between the learned trial Judge and the Appellant, when they do not exist in the record. It will also be wrong for this Court to rely on statements made by the trial Judge that happens to be within the confines of his personal knowledge alone, and which he seeks by some cloistered method to add to the body of evidence before him. See the case of OBI v. ATTORNEY GENERAL, IMO STATE (2016) (supra).

My noble Lords, given the circumstances of the obvious and wrongful omission by the learned trial Judge to conduct a trial within trial when same is required by law, the apex Court has most recently made a pronouncement in its decision in the case of STATE v. SADIQ(2021) LPELR-56660(SC), thus:
“… His only objection was that he was forced to thumb print on the statement, which objection automatically pulled a cloak of involuntariness over the statement. Having successfully cast doubt on the voluntariness of his thumb print on the statement, the learned trial Judge ought to have conducted a trial within trial to ascertain the voluntariness of the endorsement on the statement. Admitting the confessional statements and marking them as exhibits without testing their voluntariness in a mini-trial, was in my humble view, fatal to this case. The Court below was therefore on sound wicket when it expunged exhibits A and A1 from record for having been wrongly admitted. I so hold.”
Following this judicial statement, this Court also most recently held in the case of MOHAMMED v. KANO STATE (2021) LPELR-54801(CA) that: “Failure to conduct the trial-within-trial, when necessary, renders the statement inadmissible, and if wrongfully admitted, should be expunged from the record or discontented. It should be un-relied upon. See also EHOT v. STATE (1993) 4 NWLR (PT 290) 644 AT 673 C, OGU v. C.O.P (2018) 8 NWLR (pt 1620) 134”.
​It should naturally follow that only lawful and proper order for this Court to give after resolving this issue against the Respondent in favour of the Appellant, will be to expunge completely from the records, EXHIBIT B as a product of unlawful extraction of a confessional statement from the Appellant contrary to the provision of the Evidence Act, supra and the Constitution as a fundamental right from self incrimination pursuant to Section 36(11) of the Constitution, 1999 As Amended, and the alleged confessional statement was in utter violation of the Appellant’s right to fair trial as the trial Judge erred in law by refusing to test the veracity of the voluntariness of the contents of exhibit B without conducting a trial within trial and acted in my view, without jurisdiction to assume that the statement was made voluntarily as the trial within trial was meant to unearth the factual circumstances under which the confession was allegedly made by the Appellant. I so hold.

The second issue raised by the Appellant flows from the fourth and the fifth grounds of appeal, and it bothers on whether considering the evidence before this Court can it be said that the prosecution proved beyond reasonable doubt the alleged offence of Armed Robbery and conspiracy to commit armed robbery, for the trial Court to have convicted the Appellant of same without proper evaluation of the evidence before the Court?

As EXHIBIT B, the alleged confessional statement of the Appellant has been expunged from the records, it will be curious to see if the other pieces of evidence placed before the learned trial Judge were enough to ground a conviction of conspiracy and armed robbery against the Appellant.

The law is clear and well established on the ingredients that must be proved to be able to sustain a conviction of armed robbery, they are as follows:
a) That there was a robbery
b) That the robbery was carried out with the use of offensive weapons
c) That the accused person participated in the robbery.
It is imperative to say that all the above requirements must be consecutively proved beyond reasonable doubt before a conviction can be sustained based on the indictments in the Information filed. See the decision in the case of EHIMEN ESE v. STATE (2017).

​From the evidence given by PW1 who happened to be the only eye witness fielded by the prosecution, he brought the following facts:
i. The PW1 was not alone at the time of the robbery, but rather was in the presence of his girlfriend.
ii. The Appellant was the member of the gang of 3 robbers that pointed a gun at him, the other robbers wielding knives.
iii. That the Appellant has been a frequent visitor of the recharge card shop, where he used to come and see one Tega Moses who was PW1 sales girl and allegedly the Appellant’s girlfriend.
iv. That PW1 and the Appellant have been previously well acquainted before the day of the robbery.
v. That the PW1 only knew that the Appellant was among the alleged armed robbers in the morning when the accused person was brought by the police; despite PW1 allegedly flashing him torch light during the alleged robbery.
vi. Finally that the said Tega Moses made a statement to the police and that the said statement was in the case file and that he also prepared a police investigation report which was also in the case file.

​It is trite in law, that the prosecution has a solemn obligation as a minister in the temple of justice to the trial Court to place all available relevant evidence and witnesses before the trial Court in order to aid in the resolution of any vital point that such a witness or evidence may help resolve or settle. In sum, the prosecution must not withhold vital evidence or witnesses whose testimonies may lead the Court to a just determination of the vital issues in contention. See the case of IBRAHIM v. STATE (2015) ALL FWLR (PT. 779) P. 1149 at PP. 1175 paras D-E, G-H.

It is disturbing to think that the prosecution conveniently omitted to call Tega Moses who was supposed to be a key witness, neither did they deem it fit to tender her extra judicial statement made to the police before this Court, more over seeing that she was allegedly the informant of the Appellant. It is equally disturbing that the prosecution failed to call the second eye witness, one Mercy, the girlfriend of PW1 who according to the evidence of PW1, was present at the time of the alleged robbery.

Neither did the prosecution deem it fit to tender in evidence, the police investigation report in accordance with SECTION 4 of the POLICE ACT. CAP. P19 LFN 2004.

​It is only natural and logical for this Court to presume that any evidence which could have been tendered but was not produced for whatever reason, would if produced, be unfavourable to the person who withholds it. See SECTION 167 of the EVIDENCE ACT, 2011, and the decision in ONONUJA v STATE (supra).

The suppression of the aforementioned pieces of evidence is bound to naturally cast doubts on the mind of this Court on the guilt of the Appellant.
I see no reason why Mercy, the girlfriend of PW1 a fellow eye witness, whose account could have helped facilitate the determination of the Appellant’s guilt will be left out, neither do I understand the suspicious suppression of vital and relevant evidence by the prosecution in this case.
This Court is now weary of accepting hook, line and sinker, the scanty and largely unconvincing evidence produced by the prosecution in criminal matters such as in the instant case and beside this, is the fact that no evidence has irrefutably confirmed the existence of the three ingredients of armed robbery all linked to the Appellant.
As simply as it would have been to tender the recovered weapons used in the alleged armed robbery, the prosecution also failed to do this.
​With these overwhelming lapses on the part of the Respondent, one can only imagine and surmise from two opposite spectrums, the one being that the prosecution was grossly negligent in the prosecution of this case, or the other being that indeed the evidence not produced were deliberately suppressed because they either did not exist or they would have led to proving the innocence of the Appellant.
Furthermore, it is abundantly evident, that the prosecution relied very heavily on EXHIBIT B, the alleged confessional statement of the Appellant, which has now been expunged from the records.
It is clear to see that without EXHIBIT B, the alleged confessional statement of the Appellant, the case of the prosecution against the Appellant is shallow and weak and is grossly insufficient to ground a conviction.
As we know, in serious offences carrying the death penalty, a high degree of proof is necessary to secure conviction. The law is also trite that in a criminal trial, if the totality of the evidence causes the Judge to entertain any scintilla of doubt, then the benefit of such doubt must be resolved in favour of the accused person by virtue of the constitutional presumption of innocence vide Section 36 (5) of the Constitution, 1999 as amended. It will be fatal to the course of justice for this Court to fall into the same error as the lower Court as I am compelled to resolve issue two in favour of the Appellant. Having dispassionately, perhaps painstakingly dealt with the issues formulated and canvassed above, it is clear that the Respondents have failed to prove the guilt of the Appellant beyond reasonable doubt, as a consequence of the overwhelming lapses and loopholes in their case against the Appellant.
​In addition, the deliberate suppression of evidence by the prosecution, the failure of the trial Judge to conduct a trial-within-trial following the objection raised by Appellant’s Counsel to the admissibility of the alleged confessional statement, and the failure of the prosecution to prove to this Court that the ingredients of armed robbery are present in this case, makes it judicially risky for this Court to uphold the conviction of and sentence imposed by the lower Court. The prosecution has failed to successfully discharge the burden of proof that is legally placed on it in criminal trials, as it’s elementary and almost axiomatic by our adversarial mode of jurisprudence that he who asserts must prove and in a criminal trial, beyond reasonable doubt as is the case in criminal trials. There was yet a reasonable doubt in the mind of this Court.
I hereby overturn the conviction and sentencing of the Appellant by the lower Court and discharge and acquit the Appellant. Consequently, the Appellant having been discharged and acquitted, shall be released forthwith in the place he has been held by reason of the judgment of the lower Court, High Court of Bayelsa State sitting in Yenagoa delivered by Hon. Justice L.M. Boufini on 9th October, 2018 which is hereby set aside. The appeal succeeds.

OLABODE ABIMBOLA ADEGBEHINGBE, J.C.A.: My very brother, Gabriel Omoniyi Kolawole, J.C.A., graciously allowed me to read in the draft, the judgment just delivered by him. I agree with his reasoning, conclusion and Orders made therein.

I wish to add that the law is sewed that in a criminal trial, it is the duty of the prosecution to prove its case beyond reasonable doubt, and a general burden to rebut the presumption of innocence constitutionally guaranteed to the citizen. The burden on the prosecution is only discharged when the essential ingredients of offence charged have been established and accused person is unable to bring himself within the defences or exceptions allowed under the law generally or the statute creating the offence. See Oteki v. Attorney-General of Bendel State (1986) 2 NWLR (Pt. 24) 648. 

The verdict of guilt on a suspect can only be sustained upon evidence which establishes beyond reasonable doubt the guilt. Where there is the slightest doubt in the evidence so adduced as to the guilt of the suspect, that doubt must be resolved in his favour. See Shekete v. Nigerian Air Fore (2000) 15 NWLR (Pt 692) 868 at 880-881.

In this appeal, the lower Court admitted the extra-judicial statement of the Appellant in evidence, as exhibit B, despite protestations to its voluntariness and admissibility, by Appellant’s counsel, at the trial. It was imperative that a trial-within-trial should have been conducted before the document was admitted in evidence. We have to be reminded that a trial Court has the duty to consider all defence possible or available to an accused person or an Appellant in a criminal case, even though such defences may appear stupid, improbable or ungrounded. The defences which the Court has the duty to consider on behalf of the accused person or an Appellant are defences that appear or are contained in the evidence in the record of proceedings of the Court even if the accused person did not specifically raise them. See Annabi v. State (2008) 13 NWLR (Pt. 1103) 179 at 200.

Having wrongfully admitted and acted on the extra-judicial statement, the action of the lower Court cannot be allowed to stand. Evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been tendered and admitted. The Court cannot rely on such evidence in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse. Furthermore, an appellate Court faced with such situation has a duty to intervene. See Agbaje V. Adigun (1993) 1 NWLR (Pt. 269) 261. Furthermore, when a finding of fact is based on inadmissible evidence (Oral or documentary) the finding is perverse and an appellate Court has a duty to interfere with the finding of fact and set it aside. See State v. Emine (1992) 7 NWLR (Pt. 256) 658 and Asanya v. State (1991) 3 NWLR (Pt. 180) 422.

​The name of a vital witness also came up at the trial. The prosecutor failed to call or account for that witness or person. The fact that the prosecution failed to call a vital eyewitness should have been followed by the lawful consequence of such abstinence. In the case of Oduah v. FRN (2020) 12 NWLR (Pt. 1737) 16 at 32-33, the Court put out education about what should follow, where a vital witness is not called at a criminal trial, by the prosecution. While it is true that the prosecution is not obliged to call all listed witnesses or to call a host of witnesses to get a conviction, where, however, there is a vital witness whose evidence is very crucial and important to the case of the prosecution in the proof of the guilt of the accused person, such a witness must be called; and failure to so call him would be fatal to the proof of the charge as it would produce the presumption of withholding evidence suggestive of the fact that if that evidence were produced, it would work against the prosecution and favour the accused person. Where a party to a case has failed, refused or neglected to call a vital witness whose evidence may help decide the case one way or the other, it will be presumed that had that witness been called, his evidence would have been unfavourable to party who called him. See Onah v. State (1985) 3 NWLR (Pt. 12) 236.

In sum, I agree that the appeal has merit. This appeal is allowed. The judgment of the High Court of Bayelsa State, under the hand of Justice L. M. Boufini, dated 01/10/2018, is hereby set aside. The conviction and sentence of the Appellant is hereby set aside. The Appellant is discharged and acquitted. The Appellant shall be released from his current place of detention, immediately.

MOHAMMED LAWAL ABUBAKAR, J.C.A.: I have the privilege of reading in its draft form, the lead judgment just delivered by my learned brother, Gabriel O. Kolawole JCA where he allow the instant appeal for being meritorious and set aside the decision of the lower Court. I agree with him and have nothing to add. The Appellant is discharged and acquitted.

Appearances:

A. N. OTTAH, ESQ. For Appellant(s)

T. E. BOATMAN, ESQ. For Respondent(s)