MR. HENRY UBOGU v. STATE
(2018)LCN/12262(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of December, 2018
CA/AK/229C/2017
RATIO
EVIDENCE: WHETHER IT IS EVERY CONTRADICTION IN EVIDENCE THAT IS NECESSARY
“It is a settled principle of law that it is not every contradiction in the evidence of the prosecution that is relevant and material to create doubt in the case which doubt should be resolved in favour of the accused. In the case of ASUQUO V STATE (2016) LPELR 40597, the Court held that; ‘it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistency or contradictions are substantial and fundamental to the main issues in question before the Court and thus necessarily create some doubts in the mind of the Court that the accused is entitled to benefit there from.'” PER PATRICIA AJUMA MAHMOUD, J.C.A.
EVIDENCE: VOLUNTARINESS OF A CONFESSIONAL STATEMENT
“On voluntariness of the confessional statements, the indisputable position of the law as provided by SECTION 29(2) EVIDENCE ACT 2011 is that only a voluntary confession is admissible. Once the voluntariness of a confessional statement is challenged by an accused person when same is being sought to be tendered in evidence by the prosecution the trial Court’s responsibility is to conduct the trial within trial to determine the voluntariness as was done in this case. Once this is done and the Court admits the confessional statement as voluntary, the issue of voluntariness is foreclosed at the trial Court.” PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
MR. HENRY UBOGU – Appellant(s)
AND
STATE – Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of HON. JUSTICE D.I KOLAWOLE of the High Court of Justice, Akure delivered on the 7th day of July, 2017. The appellant who was the 1st defendant in the trial, was initially arraigned along with three others on a four count charge of conspiracy to commit armed robbery and armed robbery under Section 1(2)(a) and Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation, 2004. The offences were alleged to have been committed on the 7th day of April, 2010 and 26th day of April, 2010 respectively. On both occasions the victims of the robbery were Pastor Joseph Ayodele and Victor Ojo respectively. They were each robbed of a Toyota Camry car.
In proof of its case the prosecution called four witnesses and tendered six (6) exhibits, marked as Exhibits A-F. The appellant testified in his defence and called no other witness.
At the conclusion of hearing, the learned trial judge discharged and acquitted the appellant and his three co- accused on the charge of conspiracy and armed robbery of the 7th day of April 2010 but found the appellant and two of his three co-accused guilty of conspiracy to commit armed robbery and armed robbery of the 26th day of April, 2010 against one Mr. Victor Ojo and convicted them accordingly. He discharged and acquitted the 4th accused person one Manfred Aduku for want of evidence.
It is against this conviction and sentence that the appellant has by a notice of appeal filed on the 17th day of August, 2017 now appealed to this court on five (5) grounds as follows:
1. The learned trial judge erred in law when he adjudicated on the case to judgment while pending application to amend the charge by substituting a new charge dated 21st of October, 2013 with a new charge dated 5th of April, 2011 was not heard by the Honourable Court.
2. The learned trial judge erred in law which occasioned outrage on right of the appellant to fair hearing when he held that the duplicity of the charge contrary to Section 185 of the Administration of Criminal Justice Law of Ondo State, 2015 was not fatal to the prosecution’s case.
3. The learned trial judge erred in law when he treated material contradictions in the evidence of prosecution witnesses as immaterial thus occasioning miscarriage of justice.
4. The learned trial judge erred in law by admitting Exhibit F and place heavy reliance on it when the author, Mr. Ojo Victor, a material and vital witness was not called by the prosecution on flimsy ground.
5. The trial judge erred in law when he treated the challenge of the voluntariness of Exhibits A and A1 as retraction at page 21 of the judgement and proceeded to wrongfully admit same at the trial within trial without pronouncing on its voluntariness or otherwise.
Whereof the appellant urged this Court to allow this appeal and set aside the judgment of the lower Court.
In support of his appeal, the appellant filed his brief of argument through his counsel, Mr. Steve Adebowale dated the 28th day of December, 2017, filed on 25th day of January, 2018, but deemed properly filed on the 15th day of November, 2018. In it counsel raised a sole issue for the determination of this Court:
“Whether having regard to the entire proceedings leading to the conviction and the sentence of the appellant to death, it can be said that the appellant was granted fair hearing”.
From the arguements in both briefs which I find unnecessary to summarise here, I would decide this appeal on the sole issue raised by the appellant. This issue is all encompassing and has in the arguements covered the two issues raised by the respondent.
In arguing the appeal, the appellant’s counsel adopted his brief as his legal arguments in support of this appeal. His first grouse is that there were three applications in the Court’s file at the time the Court entered judgement in this matter. That this amounts to abuse of Court process and affected the competence of the judgement delivered by the trial Court. I am at a loss as to why counsel should make such a heavy weather out of pending applications before a Court. I thought apart from being trite, it is very elementary that any application pending in Court and not moved is deemed abandoned. It is never the responsibility of Court to move any application. Its duty lies in giving litigants dates to settle their disputes. This is why I do not see the relevance of the case of ABAH V MONDAY (SUPRA) cited by counsel.
There is no indication in the proceedings of the Court below that she ever refused any party from moving an application. This to my mind is when the holding in this case will become relevant. Whether or not failure to move those applications before the trial Court is an abuse of Court process is not a live issue in this appeal. This is especially so as the appellant has not tied this to a denial of fair hearing to him. How did the filling of those applications as alleged annoy the appellant? More fundamentally how did it infringe on his fundamental right to fair hearing? It is not enough to throw legal jargons into the air without tying them to the appellant’s case. I have not been shown any connection and I see none. Or perhaps I should take it that this was raised to annoy the respondent? What is more the Court below did not complain of abuse of its process and I do not see why the appellant is being a rabble-rouser. I see this point only as a nuisance value and I so hold.
On duplicity of charge, I have considered very pensively the submissions of both counsel on this matter. I do not see how any issue arises in view of the beautiful way the learned trial judge dealt with the issue at page 158, lines 26-30 of the printed records. I quote him:
“Although Section 185 of the Administration of Criminal Justice Law of Ondo State, 2015 forbids duplicity in a charge but Duplicity has not been treated as fatal to conviction especially where no miscarriage of justice has occurred. See Mohammed, JCA (as he then was) in OKUSI V BOARD OF CUSTOMS & EXCISE FCA/L/28/80 of 26th September, 1980 quoted in Orojo; Digest of Appeal cases @62. See also: OKEKE V COMMISSINER OF POLICE (1948) 12 WACA 363…”
I have nothing to add to this finding of the learned trial judge. It is instructive that in all these arguements learned counsel has not alluded to how all this has infringed any of the appellant’s right to fair hearing. This is especially so as the appellant was discharged and acquitted of the two counts of charge material to the robbery of the 7th of April, 2010. It is also for me very fundamental and as pointed out by the learned counsel to the respondent that the appellant was represented throughout the trial by counsel who never pointed out these irregularities to the Court.
He has also failed to show how such duplicity misled the appellant as to what he was charged and tried for. Counsel are first and foremost officers of the Court and they have a professional and moral responsibility to assist the Court in ensuring justice to all that come before her seeking same. It is most ignoble to say the least that where counsel fail, refuse or neglect to perform this onerous duty they turn round and profit from it. I cannot but end on this issue by adopting the holding of NNAEMEKA-AGU, JSC in the case of OKAROH V THE STATE (1990) 1 NWLR, PT 125, 128 cited by the learned counsel to the respondent in her brief, (page 5).
The appellant’s counsel does not contest the fact that what he alleges amounts to an irregularity. And the only way he can get this Court to disturb the judgement of the lower Court on this account is by satisfying her that a miscarriage of justice has been caused. Having failed to satisfy this Court of such real and not imagined miscarriage of justice, I hold that there is no substance in this submission. It is accordingly discountenanced. It is of no moment in my view as argued by counsel that the authorities cited by the trial judge and indeed this one relied on by the Court predate the Criminal Justice Law as the Law has not altered the sacrosanct principle on condonement of irregularities of procedure in a Court.
On the need to call vital witnesses, learned counsel to the appellant referred this Court to the cases of AKINLOLU V STATE (2016)ALL FWLR,PT 820, 1256 SC; NJOKU V STATE (2013)ALL FWLR,PT 689, 1072 and OSUAGWU V STATE (2013)ALL FWLR,PT 672, 1605 SC to submit that failure to call Mr Victor Ojo, the author of Exhibit F has occasioned a miscarriage of justice, that the appellant’s counsel was unable to cross examine him on the veracity of Exhibit F. Counsel further referred this Court to the decisions in SALE V STATE (2016) ALL FWLR, PT 822 SC & OPAYEMI V STATE (1985) 2 NWLR, PT 5, 101.
The learned DPP for the respondent responding on this point submitted that the prosecution has a duty to call only material witnesses that will prove its case. Counsel referred to the case of AFOLALU V THE STATE (2010) 11 SCM, 22 AT 24-25, PARAS A-B, C-E. She also referred to the SECTION 219 of the ONDO STATE ADMINISTRATION OF CRIMINAL JUSTICE LAW, 2015 which provides for lawful means to compel a witness which right is open to both the appellant and the respondent. That there was nothing stopping the respondent from calling the witness if his testimony was vital to their case. The apex Court and this Court have defined who a vital witness is in several cases. Essentially, a vital witness is one whose evidence may determine the case one way or the other. Failure to call a vital witness is fatal to the prosecution’s case. See the cases of OCHIBA V STATE (2011) 17 NWLR, PT 1277, 663; HASSAN V THE STATE (2016) LPELR-42554.
The case in the instant appeal was decided and ended in a conviction without the testimony of the said Victor Ojo, the complainant. On the strength of these authorities cited he would appear not to be a vital witness since the case was decided without his testimony. His testimony cannot therefore be said to have affected the case one way or the other. I so hold.
Indeed the arguement of learned counsel to the appellant at page 10 of his brief confirms the finding of Court that Victor Ojo is not a vital witness. This is in respect of ASP Agbor Ebutas and the refusal of Court to admit his statement in evidence. The appellant’s counsel is therefore misconceived when he submitted that Exhibit F is hearsay evidence.
The ancillary issue to this is whether Exhibit F, being the extra judicial statement of Victor Ojo is admissible in evidence. As a general rule and based on the state of decided authorities, a previous statement of a witness whether extra judicial or judicial is not admissible if it is intended as proof of the truth of what it says. See the case of ADISA V STATE (1964) ANLR, 193. It is clear from the record of proceedings that the purport of tendering Exhibit F was not to proof the fact of robbery against the appellant and his co-accused. It was merely to show that the prosecution?s effort in calling the said Victor Ojo as a witness was unsuccessful. It was also to show that the victim, Mr Victor Ojo made a report to the police that his car a Toyota Camry was robbed on the night in question.
This position finds support under SECTION 39(d) OF THE EVIDENCE ACT, 2011, read together with SECTION 47 thereof. Based on this I hold that Exhibit F was properly admitted since it sought only to establish the fact that a criminal complaint was made and not proof of the commission of the offence of armed robbery. In that connection the trial judge in my view properly acted on it as corroborative evidence to Exhibits A and A1. Even if I am wrong and Exhibit F was wrongly admitted in evidence in the instant case, I hold that such an admission is not fatal to the case of the prosecution. This is because all that will be done is to expunge the wrongfully admitted evidence. There is still legally admissible evidence upon which this case can be determined. See the case of ARCHIBONG V STATE (2006) 14 NWLR PT 1000, 349. See also the case of ESANGBEDO V STATE (1989) 4 NWLR, PT 113, 57 where the apex Court held that extra judicial statements of witnesses not tendered as exhibits do not constitute legal evidence. The Court held at page 66, PARA F of the report that they cannot:
“look at the extra judicial statement of PW1,PW2, PW4 and PW9 which were not tendered as exhibits during the trial, because those statements cannot be legal evidence. An appellate Court is bound to base its consideration of every appeal before it upon legal evidence upon which the Court below acted…”
I make bold to infer from the above decision of ESANGBEDO (SUPRA) therefore that the statement of Mr Victor Ojo, having been admitted in evidence had become legal evidence and the Court below acted properly upon it only as corroborative evidence.
On witnesses for the prosecution, the list of witnesses the prosecution intended to call is contained at page 5 of the printed records. It is well settled that where the prosecution lists witnesses it intends to call in proof of its case and for any reason they choose not to or are unable to call any of the listed witnesses they have a duty to present them for cross examination at the request of the defence. There is nothing on record to show that the defence made any such demand.
Besides as pointed out by the learned DPP, the Ondo State Administration of Justice Law now gives the defendant equal right with the prosecution to compel any witness to come to Court to give evidence. I therefore see no merit in this submission. It is also discountenanced.
On Contradictory evidence, the learned counsel to the appellant referred the Court to the cases of OKEREKE V STATE (2016) ALL FWLR, PT 828,910 SC and BOLANLE V STATE (2005) 7 NWLR, PT 925, 431 to submit that the contradictions in Exhibits A, A1 & E coupled with similar contradictions in the evidence of PW3 & PW4 as to the number of bullets in the magazine of Exhibit D are weighty and material because the appellant was alleged to have used the gun in his possession in the course of criminal transaction for which the author of Exhibit F was a victim. He made reference to the case of NAMSOH V STATE (1993)5 NWLR ,PT 292, 129 to further submit that it is not the duty of the trial Court to offer or provide solution on conflicts in prosecution’s case.
Responding on the contradictions, the learned DPP referred this Court to page 187, lines 19-31 of the printed records to contend that the contradictions alleged by the appellant’s counsel was not material. That the contradictions as to number of ammunitions recovered from the appellant cannot disturb the fact that the appellant was armed on that fateful day he committed the crime. She referred this Court to the cases of DIBIE & ORS V THE STATE (2008)6 ACLR, 307 AT 329; OGUNBAYO V THE STATE (2008)6 ACLR, 280 AT 300 and IKEMSON V THE STATE (1998)1 ACLR, 80 AT 105, PARAS 20-30.
It is a settled principle of law that it is not every contradiction in the evidence of the prosecution that is relevant and material to create doubt in the case which doubt should be resolved in favour of the accused. In the case of ASUQUO V STATE (2016) LPELR 40597, the Court held that;
“it is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only when such inconsistency or contradictions are substantial and fundamental to the main issues in question before the Court and thus necessarily create some doubts in the mind of the Court that the accused is entitled to benefit there from.”
The apex Court has also set the yard stick that not only should the contradiction be material but must lead to a miscarriage of justice. This was the decision of the Court in the case of CPL ISAH AHMED V THE NIGERIAN ARMY (2016) LPELR ? 40826 when it held that;
“For a contradiction to be material, it must not only relate to a material fact, it must in addition lead to a miscarriage of justice.”
I have considered the contention of the learned counsel to the appellant. His grouse is two fold: the contradiction in the testimony of PW3 and PW4 and Exhibits A, A1 and E. The alleged contradiction between the testimony of PW3 and PW4 is that while one said the ammunition recovered from the appellant was 20, the other said it was 21. Counsel?s contention on the exhibits is that while in one the appellant denied being given life ammunition and in the other he admitted it. Counsel has failed to explain how this so called contradiction is material or relates to a material fact in the trial and conviction which ought to have created a doubt in the mind of the Court. It is not enough in my opinion for counsel to throw up a principle of law and, cite numerable authorities but fail to tie it to the case of the litigant. This is what counsel seems to have done here and it is clearly not useful. This has not advanced his cause in any way. The main contradiction that the learned counsel made heavy weather of is the discrepancy in the quantity of live ammunitions given to the appellant, whether it was 20 or 21.
The contradictions complained about in my view are not material contradictions. The offence of armed robbery is complete once the perpetrator is armed either with a firearm or other offensive weapon(s) or in the company of one so armed. There is no doubt that the appellant, Henry Ubogu was carrying a K2 service rifle on the day of the robbery. There is also ample evidence that himself and the 2nd defendant were in Police uniform. The combination of the rifle and the uniform would put fear into the victims and it is irrelevant whether the gun was fired once, not at all or sporadically. That does not add anything to the offence. It is surplusage. It is therefore of no moment in this case. It is irrelevant whether the appellant was given life ammunition or not. It is elementary in law that it is only material contradictions in the evidence of the prosecution which goes to the root of the case as to raise doubt in the mind of the Court that will warrant such doubt being resolved in favour of the appellant. See the decision of this Court in the case of AKEREYELI V. STATE (2015) LPELR ? 25811.
Counsel contended that there was no indication as to how the prosecution identified the appellant, that the feature of the appellant was not indicated, noting that there was no report of such identification parade. He referred this Court to the cases of ATTAH V STATE (2010) ALL FWLR, PT 540, 1224; STATE V AIBANGBEE (1988) 3 NWLR, PT 84, 548 and ARCHIBONG V STATE (2004) 1 NWLR, PT 855, 488.
It is obvious that learned counsel to the appellant is leaving no stone unturned by considering every possible issue. This is to be expected as the appellant is facing the ultimate sentence. Be that as it may, it is trite that identification evidence is not the only way of establishing the identification of an accused person. See the case of EYISI V THE STATE (2001) 8 WRN 1, AT 9 -10. What is more is that as stated in the case of ARCHIBONG V STATE (SUPRA), where an accused by his confession has identified himself, there would be no need for any further identification parade. This submission is not a live issue in this case. It is accordingly discountenanced.
Counsel further contended that to convict on circumstantial evidence, such evidence must be cogent and must only lead to the guilt of the appellant. Counsel referred this Court to the cases of ABOKO KUYANRO V STATE (2016) ALL FWLR, PT 849; ILIYASU V STATE (2015) 2 SCM114 AT 136-137 and EBENEHI V STATE (2009) ALL FWLR, PT 486,1825 AT 1832 -1833
Again counsel is misconceived to suggest that the appellant was convicted on circumstantial evidence. There are undoubtedly three ways a case may be proved; direct oral evidence of the witness who saw and heard, inference from circumstantial evidence and voluntary confession of guilt by an accused person which is direct, positive and satisfactorily proved. See the case ofABIRIFON V THE STATE (2013) 13 NWLR, PT 1372, 587. The prosecution can prove its case beyond reasonable doubt using any of the three methods.
They are not expected to prove the case using all three methods. In the instant case the prosecution relied on confessional statement of the appellant. If there is any issue of circumstantial evidence that will only be in respect of corroboration of the confessional evidence. This submission again is not a live issue in this appeal.
On voluntariness of the confessional statements, the indisputable position of the law as provided by SECTION 29(2) EVIDENCE ACT 2011 is that only a voluntary confession is admissible. Once the voluntariness of a confessional statement is challenged by an accused person when same is being sought to be tendered in evidence by the prosecution the trial Court’s responsibility is to conduct the trial within trial to determine the voluntariness as was done in this case. Once this is done and the Court admits the confessional statement as voluntary, the issue of voluntariness is foreclosed at the trial Court. Page 52 of the printed records referred to by the appellant’s counsel contains the testimony of the appellant. He denied Exhibits A and A1. That is he resiled from his confessional statement.
This is what the learned trial judge referred to as retraction and he was not wrong as submitted by counsel because that is what it is. At that state it is no longer open to the appellant to challenge the voluntariness of the confessional statement. Whatever he does during his evidence in chief in denying the confession amounts to a retraction. In other words retraction simply means recanting. See the case of ZAMANI V THE STATE (2015) LPELR- 24595, where this Court defined retraction as when an accused denies making a statement to the police which the prosecution seeks to tender to form part of its case. This is when the accused person denies making the statement as opposed to when he alleges torture or inducement towards making the statement. While the former does not attract a trial within trial, the latter does. In the instant case even though the appellant only retracted the statement, the trial court still conducted a trial within trial. Retraction goes to weight to be attached to the document while voluntariness goes to admissibility of the document.
On alleged suppression of Exhibit E, I am at a loss as to what counsel means by this allegation. That a document is tendered through cross examination of the party who should have tendered it does not in any way prove that failure to tender it under examination in chief amounts to suppressing it. After all the prosecution is only entitled to tender such documents as will prove its case and no more. Like counsel reasoned the statement adds nothing to the case of the prosecution. It is not surprising that they saw no need to tender it only for this simple reason. If their intention is to suppress it they would not have made it available to the defence in the first place. I see no basis for this unnecessary accusation. It is discountenanced.
Learned counsel to the appellant also made an allusion to the failure of the superior police officer, ASP Ayinde who endorsed Exhibit A to be called as a witness to enable the appellant to cross examine him as being fatal to the prosecution’s case. The practice in Nigeria of taking an accused person along with his confessional statement to a superior police officer for endorsement, even though not having any statutory flavour or backing is a wise one and highly commendable. It gives extra assurance of fairness to the accused person and the voluntariness of his confession. However the apex Court in the case of DIBIE V STATE (2007) 9 NWLR, PT 1038, 30 has cautioned that confessional statements not so treated should not necessarily be viewed with suspicion. In that regard I find that the failure of the superior police officer, ASP Ayinde to testify and be subjected to cross examination should not be a ground to question the statement or view it with suspicion. This is so because the Court had already determined the voluntariness of the statement. It is doubtful if the cross examination of ASP Ayinde will alter that.
What remains to be determined at this point to my mind is that having admitted that Exhibits A and A1 were voluntarily made, validly admitted in evidence and that the trial Court competently based his final decision on same, did the learned trial judge submit Exhibits A and A1 to the six point veracity test as set out by the appellate Courts in the case of GABRIEL V THE STATE (2010) 6 NWLR PT 1190, 280 AT 326 PARAS A-D This six point test is:
1) Is there anything outside the confession to show it is true?
2) Is it corroborated?
3) Are the relevant statements made in it of facts true as far as they can be tested?
4) Was the defendant one who had the opportunity of committing the offence?
5) Is the confession possible?
6) Is the confession consistent with other facts which have been ascertained and have been proved?
These six points are not mutually exclusive. Indeed they are more or less different sides of the same coin. For example if there is anything outside the confession to show that it is true, is nothing short of whether the confession is corroborated, etc. In the recent Supreme Court case of OKPAKO V. STATE (2018) 9 NWLR, PT 1624, 213 AT 226 PARAS E-G, after considering the six point veracity test the Court held that:
“In the instant case the trial Court relied on the independent evidence outside the confession which corroborated the story in it.”
It follows that any one of the six points is sufficient to satisfy the test. The learned trial judge found and placed reliance on corroborative evidence.
He did not just convict the appellant on his confessional statement, Exhibits A and A1 alone. I refer to page 185 lines 10-19 of the printed records where the learned trial judge held as follows:-
“…furthermore, Mr Ojo’s statement Exhibit F was clear that he identified two persons at the ‘A’ Divison on 27th April, 2010 as part of those that robbed him and the persons were Police men. The Supreme Court in the case of ADELEKE V. THE STATE (2013) 7 SCNJ (PT III) 745 AT 770 gave a situation where the statement of an accused can be binding on his co- accused”.
The Court per ODILI JSC said as follows:
“that the evidence of a co-accused is not admissible against other accused persons is not a general rule that is taken hook, line and sinker without exception. This is because where as in this case, there is a link or nexus from the contents of the statement of a co-accused or even his extra-judicial statement with a strong connection from other independent evidence then the exception is accepted as making the general rule aforesaid give way for the reality on ground, Furthermore, Mr Ojo’s statement, Exhibit F was clear that he identified two persons at the ‘A’ Division on 27th April, 2010 as part of those that robbed him and the two persons identified were Policemen. The 1st and 2nd defendants were Policemen and they were at ‘A’ Division Akure on 27th April, 2010.”
The trial Court found two pieces of evidence to corroborate the confessional statement of the appellant. These were Exhibits B and C. It must be borne in mind that this corroborative evidence is not required to be one that establishes the guilt of the appellant beyond reasonable doubt. The requirement is to have some evidence no matter how slight outside the confession that makes it probable that the confession is true. These two pieces of evidence according to the trial judge are the testimonies of the 2nd defendant in the trial Court as contained in Exhibit B. In Exhibit A which the learned trial judge properly admitted in evidence after a trial within trial, the 1st defendant stated that:
“On 26/4/2010 at about 18.20 I went to the station officer to booked (sic) a rifle which he said he will collect his share of the deal which I took PC Bamidele Moses and pick Ige from Oda town which we move down to my girl friends moreso when I could not find her I left to Plaza area where we collected a Toyota Camry from one Mr. Ojo … The camry which expose us the role I played was that we flash with touch while the owner of the said stopped. PC Moses demanded for his particulars which I ask to open the booth which I ordered him to run away which he comply. I was in possession of K2 rifle which I fire shot into the air to scare the owner which I called the station officer on phone and he brought one life ammunition to me…”
The learned trial judge did also use Exhibit F. This is the statement of the victim, Mr. Victor Ojo. The prosecution could not trace him. So they had to tender in evidence the complaint (statement) that he made to the Police. I agree with the learned trial judge that he could properly use Exhibit F to corroborate the confessional statements of the appellant Exhibits A and A1 as earlier found in this judgement.
The issue was also raised that the appellant was not taken before a superior Police Officer with his confessional statement. Although it is not the requirement of the law in Nigeria, the practice of taking an accused person along with his confessional statement to a superior police where the accused confirms the statement has been highly commended and gives extra assurance of fairness to the accused person and the fairness to the accused person and the voluntariness of his confessional statements not so treated should not necessarily be viewed with suspicion. See the case of DIBIE V. STATE (2007) 9 NWLR, PT 1038, 30.
I find that this issue is also resolved against the appellant and in favour of the respondent.
In summary, I find that the prosecution in the Court below proved its case against the appellant beyond reasonable doubt. The conviction was based on Exhibit A and A1 the confessional statement of the appellant. They are positive of the fact that the appellant together with two others, stopped the subject vehicle under the guise that they were police officers searching particulars and while the appellant was armed with his service rifle. They robbed one Victor Ojo of his Toyota Camry vehicle. The learned trial judge conducted a trial within trial to determine the voluntariness of the confessional statements. He corroborated them with Exhibits B, C, and F. Any one of these three exhibits is sufficient to corroborate Exhibits A and A1. I am satisfied that the appellant’s counsel has failed to show a breach of the appellant’s fundamental rights throughout the hearing of this appeal. This failure is fundamental to his case.
On the whole therefore I find that the sole issue considered in this appeal is resolved against the appellant.
I accordingly dismiss this appeal. The judgement of the trial Court delivered on the 7th day of July, 2017 is hereby affirmed
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal be dismissed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the priviledge of reading before now the judgment of my brother, PATRICIA. A. MAHMOUD, JCA. just delivered. His lordship has meticulously resolved the issues in this appeal. I agree entirely with reasoning and conclusion of my learned brother that this appeal is lacking in merit and that it should be dismissed
The law is that in a charge of armed robbery, what is required of the prosecution is to prove that there was an armed robbery and the accused person was one of the robbers. The prosecution is not bound to call a host of witnesses before it can be said to have its duty of proof beyond reasonable doubt. A single credible witness can establish a case beyond reasonable doubt and a Court is entitled to act on the evidence unless where the law requires corroboration. See EFFIONG V. STATE (1998) 8 NWLR (PT. 562) 362.
In the case of ALI & ANOR. V. THE STATE (1988) 1 SC 35. His lordship Oputa, JSC stated the law on this issue succinctly, where he stated thus:
“As far back as 1848 in the case Of REG V. EDWARDS UNDERWOOD & EDWARDS (1848) 3 COX C. C. 82 the law has been that counsel for the prosecution is not bound to call all the witnesses whose names appear at the back of the bill of indictment.
In 1941 the West African Court Of Appeal in R V. GEORGE KUREE (1941) 7 WACA 175 AT P. 177 noted that the duty of the prosecution is to place before the Court all available and relevant evidence. Unless and except in cases where corroboration is needed by law or by practice one Solitary relevant and credible witness can establish the case for the prosecution on an essential point. The need to call witnesses at all arises from the duty the law imposes on the prosecution to prove the essential ingredients of the offence charged”.
With regard to the issue that the appellant was not taken before a superior police officer with his confessional statement. The attestation of an accused person confessional statement before a superior police officer is in compliance with the judge’s rule. It is not a legal requirement and noncompliance with it would not render inadmissible the confessional statement, as it is not the requirement of any law to do so. See EHIMIYEIN V. STATE (2016) 16 NWLR (PT. 1538) 173; DAIRO V. FRN (2012) 16 NWLR (PT. 1325).
It is for these and the more detailed reasoning of his lordship, PATRICIA. A. MAHMOUD, JCA that I, concur that this appeal should fail. I also dismiss the appeal and affirm the lower Court’s judgment.
Appearances:
Mr. Steve Adebowale with him, Mr. Damilola EmmanuelFor Appellant(s)
Mrs. G. A Olowoporoku (DPP, Ministry of Justice Akure, Ondo State) with him, D.C Olafimihan (ACLO)For Respondent(s)
