OKAFOR v. STATE (2020)

OKAFOR v. STATE

(2020)LCN/15446(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Friday, November 20, 2020

CA/AW/51C/2019

RATIO

CONFESSIONAL STATEMENT: WHETHER THE CONVICTION OF AN ACCUSED CAN BE BASED EVEN ON A RETRACTED CONFESSIONAL STATEMENT

In conclusion I need to reiterate that conviction of an accused can be based even on a retracted confessional statement as held by this Court in EMMANUEL GODWIN KOFFI v. THE STATE (2015) LPELR – 40605 (CA) as follows.
“A trial Court is at liberty to base a conviction on a confessional statement even where such a confessional statement is retracted at the trial as in the instant case. This is so provided that the accused made the statement in circumstances which gave credibility to the content of the confession. See EJINIMA v. THE STATE (1991) 6 NWLR (pt. 200) PAGE 627.” Per NWOSU-IHEME, JCA.
See also SEGUN AKINSUWA v. THE STATE (2014) LPELR-23705 (CA) per DANJUMA, JCA.
In BELLO SHURUMO v. THE STATE (2010) PLELR-3069 (SC) the apex Court held thus:
“After all if a confessional statement is satisfactory, a conviction found on it, as herein, will be sustained by an appellate Court. See IDOWU v. THE STATE (2000) 12 NWLR (pt. 680) 48. Section 27 (1) and (2) of the Evidence Act provides as follows: “27(1) confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the offence. (2) confession, if voluntary, are deemed to be relevant facts as against the persons who make them only.” From the above, to amount to an admission of guilt, it must be positive, direct and unequivocal as to the commission of the offence for which an accused is charged. All the elements pervade this matter. See again PATRICK NJOVENS & ORS v. THE STATE (1973) NNLR 120 (1973) 5 SC. 17.” Per FABIYI, JSC.
See also IDOWU v. THE STATE (2000) 12 NWLR (pt. 680) 48. PER BITRUS GYARAZAMA SANGA, J.C.A.

DUTY OF COURT: WHETHER AN APPELLATE COURT CAN RE-OPEN THE ISSUES OF FACT FINALLY DETERMINED BY THE TRIAL COURT

The law is trite that it is not the function of this Court to make finding of facts especially where this has perfectly been done by the trial Court, as in the instant case, neither is it its duty to re-open the issues of fact finally determined by the trial Court even if it would have come to a different finding if it were to do so. See MOSES OGHENERUME TAIGA v. NNEKA MERCY MOSES-TAIGA (2012) LPELR-9238 (CA) per BAGE JCA (as he then was); BASSEY OKPA v. THE STATE (2017) LPELR-42205 (SC) per MUHAMMAD, JSC. Let me also cite and quote the apex Court in OKECHUKWU MARAIRE v. THE STATE (2016) LPELR-41305 (SC) per PETER-ODILI, JSC where the eminent jurist held thus:
“The findings of the learned trial Judge in regard to the confessional statement and the evaluation of that statement with the evidence proffered as affirmed by the Court below are such that there is nothing perverse and no miscarriage of justice or wrong application of law and so this Court has no business interfering with those findings. I find strength in the case of Iguh, JSC in OGUONZEE v. STATE (1998) 4 SC 100. “Before I turn to the treatment of the above findings of fact by the Court of Appeal, I think I need re-emphasize that where facts in issue, whether in a Criminal or Civil proceedings are accepted or with such findings of fact made by a trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the findings or that if the same facts were before the appellate Court, it would not have come to the same decision as the trial Judge. See IKE v. AYOOLA, supra; OGBERO EGRI v. UKPERI (1974) INMLR 22; OGUNDULU & ORS v. PHILIPS & ORS (1973) NMLR 267 etc. This, as already stated, is because finding of facts made by trial Court, are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an appellant satisfactorily proves that they are wrong. Such trial Courts saw the witnesses and heard them testify and unless the findings are perverse and unsupported by credible evidence, the Court of Appeal will not interfere with them. See ADELUMOLA v. THE STATE (1988) 1 NWLR (pt. 73) 683…” PER BITRUS GYARAZAMA SANGA, J.C.A.

COURT PROCEEDINGS: TRIAL WITHIN TRIAL

A trial within trial is a mini trial wherein the prosecution is afforded the opportunity of marshaling evidence in support of its claim that the confessional statement by the accused was made voluntarily. In the said mini trial, the accused and his witness (if any) have an opportunity of debunking the claim by the prosecution. Therefore, it is during the mini trial that the defence counsel endeavours to foreclose the admissibility of such a statement. See ADEBOWALE v. THE STATE (2013) 16 NWLR (pt. 1379) 10 4 at 126-127. In other words, a trial within trial is conducted to determine the voluntariness of a confessional statement made by an accused to the police or authority. The procedure arises when there is an objection by the accused person on the ground that he did not made the statement voluntarily. In that case, the trial Court has a duty to try the issue of whether or not the statement was voluntarily made, before proceeding to admit same in evidence. See OLAYINKA v. THE STATE (2007) 4 S. C. (pt. 1) 210 at 220; (2007) 9 NWLR (PT. 1040) 561 at 577.
Where an accused person during trial retracts or resists an extra-judicial statement he earlier made to the Police immediately after the event giving rise to the charge or arraignment against him, he owes it a duty to impeach his earlier made statement. He can do so by showing any of the following:
1. That he did not infact make any such statement presented; or
2. That he was not correctly recorded; or
3. That he was unsettled in mind at the time he made the statement; or
4. That he was induced to make the statement.
In OSETOLA & ANOR v. THE STATE (2012) LPELR – 9348 (SC), the apex Court per ARIWOOLA, JSC held as follows:
“It is already settled that where an accused person during trial retracts, denied or resists from the extra-judicial statement he had earlier made to the Police immediately after the event giving rise to the charge or arraignment against him he owes it a duty to impeach his said earlier statement. See: NWACHUKWU v. THE STATE (2007) 12 SCM (pt.2) 447, (2007) 17 NWLR (pt.1062) 31 at 69; HASSAN v. STATE (2001) II SCM 100, (2001) 35 WRN 175; (2001) 15 NWLR (pt. 735) 184. During trial, an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true or correct by showing any of the following: (i) That he did not in fact make any such statement as presented; or (ii) That he was not correctly recorded; or (iii) That he was unsettled in mind at the time he made the statement, or (iv) That he was induced to make the statement. See: HASSAN v. THE STATE (supra); FOLORUNSHO KAZEEM v. THE STATE (2009) 29 WRN 43 at 68-79. PER BITRUS GYARAZAMA SANGA, J.C.A.

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

IFEANYI OKAFOR APPELANT(S)

And

THE STATE RESPONDENT(S)

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Appellant as 2nd Defendant was charged together with: IKENNA ANIUNO (1st Defendant); UCHENNA OKPARA ORJI (3rd Defendant); OKECHUKWU OBINWA (4th Defendant); OBINNA UDEGBUNAM (5th Defendant) and OKECHUKWU ISAIAH EJIOFOR (Alias Onyeamuma 6th Defendant) before the High Court of Anambra State, Onitsha Judicial Division CHUDI NWANKWOR J., Presiding in Charge No. 0/18c/2011 with the offence of: Armed Robbery, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11, Laws of the Federation of Nigeria 2004. The particulars of the offence at page 2 of the Records is that:
“On 30th December, 2010 at Haruna by Kano Street Onitsha in Onitsha Judicial Division did armed yourselves with offensive weapon AK 47 Rifle gun did rob the sum of Fourteen Million, Two Hundred and Five Thousand, Eight Hundred and Thirty Thousand Naira property of Bernard Okeke.”

The charge was read to the accused persons in Igbo language and explained to them by the Registrar of the lower Court, they understood same and pleaded “Not Guilty”.

The case proceeded to trial where the prosecution called two witnesses, PW1 is Ibu Friday whose testimony at page 351 of the Records gave a summary of the facts of the case as follows:
“On 30/12/2010 at about 12:30pm, one Mrs Chisom Okoye came and met my master for help, my master told me to follow her and when we reach their office, she now gave me a back (sic: bag) to carry one when we were going, she now said I should be going in the front and she following me behind. When we reach Moore Street by Kano Street, two unknown men started dragging the bag from my head. They pointed gun at me, ordering me not to move and not to turn. When I tried to shout and they started shooting. One of them hit me and I fell down and they took the bag. I now ran to my Master and explained everything to him. He now told me to go to the police. I went to the Police to report the incident which I did. I made statement to the Police. When they started shooting they took their machine and went away. The shop where I stay with my master is located at No. 262 Freedom Lane, Main Market. When I left my master office I went to Ben Piece Company with Mrs. Chisom Okoye. The bag contained money I don’t know the amount of money in the bag. I did not recognize any of the robbers because they came through my bag (sic: back). We were taking the money from Sokoto Road to Main Market.”

The witness was then cross examined by learned counsel to the Defendants. On 4/3/2014 PW2 entered the witness box. He is A. P. 109 283. Inspector Johnson Owah, a Police Officer attached to the Special Anti Robbery Squad (SARS) Onitsha Unit. He is a subpoenaed witness and the Investigating Police Officer (IPO). Several documents were tendered through the witness and marked as Exhibits amongst which is a search warrant executed in the house of the 2nd Defendant/Appellant and marked as Exhibit C. The sum of 99,000.00 recovered from the house of the Appellant was marked as Exhibit ‘F’. The confessional statements of the 1st, 2nd, 3rd, 4th and 6th Defendants was tendered in evidence through this witness but the learned counsel to the Defendants vehemently objected and the learned trial Judge ordered for a trial-within-trial. Thereafter the learned trial Judge delivered his Ruling on 23/6/2016 (pages 629-645 of the Records) wherein he pronounce thus:
“In the light of the above analysis, it is my candid view and I so hold, that the prosecution has proved that the named defendants voluntarily and freely made their statements to the Police. The said defendants have not shown the Court why it should hold otherwise.”

Consequently, the statement of Ikenna Aniuno dated 3/2/2011 is admitted in evidence and marked as Exhibit J., that of Ifeanyi Okafor (Appellant) dated 3/2/2011 as Exhibit K, that of Uchenna Okparaorji dated 3/2/2011 as Exhibit L, that of Okechukwu Isaiah Ejiofor dated 11/1/2012 as Exhibit “N” (page 645 of the additional Records). Several items were also tendered in evidence through PW2 some of which are:
a. Search warrant in respect of the search of the “Armourer’s” premises was tendered and marked as Exhibit O.
b. Two investigation reports written by PW2 were tendered in evidence and marked as Exhibits P and P1.
c. K2 Rifle; 3 magazines and live ammunitions were also marked as Exhibits Q, Q1, Q2, Q3, and Q4-Q83. (Pages 559-560 of the Records).

PW2 was cross-examined by the learned counsel to the defendants and the prosecution closed its case. The defendants opened their defence. Each of the defendants entered the witness box and testified for himself as DW1, DW2, DW3, DW4, DW5 and DW6 respectively. The defence then closed its case and the learned trial Judge ordered parties to file their, Final Written Addresses. He adjourned the case to 27th April, 2017 for adoption. Judgment was delivered on 24th July, 2017. In his judgment, the learned trial Judge thoroughly and meticulously evaluated and reviewed the gamut of evidence (oral, documentary and such items like AK 47 rifle, Magazines, live ammunitions, money motorcycle etc) adduced before him and held thus:
“In the light of the above analysis, the prosecution has shown the following against the 1st, 2nd, 3rd, 4th and 6th defendants:
a. That there was robbery incident on 30/12/2010 at Haruna Street by Kano Street.
b. That the said robbery was an armed robbery in that it was carried out or executed with firearms.
c. That the prosecution has successfully linked the 1st, 2nd, 3rd, 4th and 6th defendants to the said robbery operation through their confessional statements.
d. That the said confessional statements of the named defendants were freely and voluntarily made.
e. That the said confessional statements were clear, precise, unequivocal, direct, positive and related to what the named defendants did in respect of the robbery.
f. That the said confessional statements satisfactorily passed the 6 tests required by the established principle of judicial practice to ascertain their truth before convicting based on them.
g. That the prosecution presented sufficient evidence outside the defendants’ said confessional statements such as the evidence of PW1 and PW2 and Exhibits Q-Q83 which convinced the Court that the said confessional statement were actually made by the named defendants.
h. That the said statements were adequately and strongly corroborated by other evidence before the Court.
i. That the ruling of the Court on 23/6/2016, admitting the said confessional statements in evidence was not appealed against or was not shown to have appealed against by the defendants and therefore, there is nothing preventing or stopping the Court from using or relying on the same in this judgment.
j. That the named defendants had the opportunity of committing the alleged offence and their confessions were possible.
k. That the said confessions are consistent with other facts of this case.
l. That the defendants plea of alibi which they raised belatedly at trial do not avail them as they failed to discharge the evidential burden placed on them by law to prove same.
m. That the defendants recanting or denial of their said confessional statements, in their defence, appears belated and this does not stop the Court from making use of same, once the said statement were freely and voluntarily made.
n. That the named defendants’ statements were shown to have been confirmed before a Superior Police Officer.
o. The 5th defendant’s statement was not tendered before the Court and his statement is not a confessional statement.”
(pages 623-624 of the additional record of appeal).
He concluded his judgment at pages 627-628 of the Records by pronouncing as follows:
“In the light of the above reasoning, the prosecution has succeeded in proving the charge before the Court against the 1st, 2nd 3rd, 4th and 6th defendants but has woefully failed to prove same against the 5th defendant. Consequently, I hereby accordingly convict the 1st, 2nd 3rd, 4th and 6th defendants as per the charge/information before the Court and I hereby discharge and acquit the 5th defendant as per the said charge/information.”

Thereafter the statement by the learned counsel to the convicts by way of allocutus was taken by the learned trial Judge wherein they all pleaded for leniency. The learned trial Judge then pronounced the sentence on each of the convicts as follows:
“a. The sentence upon you, the 1st defendant (Ikenna Aniuno), is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.
b. The sentence upon you, the 2nd defendant (Ifeanyi Okafor), is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.
c. The sentence upon you, the 3rd defendant (Uchenna Okparaorji) is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.
d. The sentence upon you, the 4th defendant (Okechukwu Obinwa), is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.
e. The sentence upon you the 6th defendant (Ikechukwu Isaiah Ejiofor), is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.

The 2nd Defendant was aggrieved with this decision so he filed a Notice of Appeal containing 14 grounds on 5/11/2018. (Pages 540-554 of the Records). However, the Appellant filed an Amended Notice of Appeal on 27/5/2020 containing 12 grounds of appeal. The record of appeal was compiled and transmitted to this Court on 27/5/2019. The Amended Appellant’s brief of argument filed on 27/5/2020 was settled by Tochukwu Odo Esq. Learned counsel to the Appellant also filed a Reply Brief on 6/7/2020 which was deemed as properly filed and served on 24/9/2020. The Respondent filed an Amended Respondent’s brief of argument on 15/06/2020. It was prepared by Mrs. C. V. Ononye Ekwerekwu a Principal State Counsel in the Ministry of Justice Awka.

In the Amended Appellant’s brief, learned counsel to the Appellant formulated three issues for determination as follows:
1. Whether the lower Court was right in admitting in evidence the extra-judicial statement of the Appellant Exhibit ‘K’, and heavily relying on same to convict the Appellant notwithstanding the evidence on record establishing that it was not voluntary and admissible? (Grounds 1, 4 and 6)
2. Whether from the evidence on record, the lower Court availed the Appellant the constitutional presumption of innocence, when it placed the burden of proof on the Appellant and lower the standard of proof required of the prosecution? (Grounds 2 and 5)
3. Whether the lower Court was right when it held that the prosecution proved its case beyond reasonable doubt against the Appellant? (Grounds 3, 7, 8, 9, 10, 11 and 12).

Learned counsel to the respondent reframed the three issues formulated by the Appellant as follows:
1. Whether the learned trial Judge was right in admitting the extra judicial statement of the Appellant in evidence and placing reliance on same in convicting the Appellant (Grounds 1, 4 and 6).
2. Whether the learned trial Judge availed the Appellant the constitutional presumption of innocence. (Grounds 2 and 5).
3. Whether the learned trial Judge was right in holding that the Respondent proved its case against the Appellant beyond reasonable doubt. (Ground 3, 7, 8, 9, 10, 11 and 12).

In determining this appeal, I will adopt the issues canvassed by the Appellant.

Issue 1 is:
Whether the lower Court was right in admitting in evidence the extra-judicial statement of the Appellant Exhibit ‘K’ and heavily relying on same to convict the Appellant notwithstanding the evidence on record establishing that it was not voluntary and inadmissible?

While arguing this issue, learned counsel to the Appellant submitted that the main point in issue is Exhibit ‘K’, the confessional statement made by his client. That it was involuntary, inadmissible and was wrongly admitted in evidence by the learned trial Judge. That the issue of confessional statement is as provided by Section 29 (2) of the Evidence Act. Learned counsel quoted the said section and argued that even if the confessional statement is true, if the accused states that his confession was not freely given, then the prosecution must prove beyond reasonable doubt that the confession was not obtained by:
a. Oppression of the accused.
b. Anything said or done which was likely to render the confession unreliable.

That Section 29 (2) (supra) does not require the defendant to prove that the statement was involuntarily obtained. The burden is on the prosecution to prove that it was voluntarily obtained. Learned counsel also referred the Court to Section 35 (2) of the 1999 Constitution (as amended) and Section 13 (2) of the Anambra State Administration of Criminal Justice Law, 2010 which was in force by the time Exhibit ‘K’ was made. Learned counsel quoted the two sections. That Section 29 (3) of the Evidence Act also provides thus:
“In any proceedings where the prosecution proposed to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution as the condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Subsection (2) (a) or (b) of this section.”

That the use of the word “may” in this section suggests that it gives the court a discretion. That that is not the position. That this Court in a plethora of cases held that when a statute uses the word “may” regarding the exercise of discretion by a public officer for the benefit of a private citizen, the word “may’ acquires a mandatory status and ought to be interpreted as “shall”. Cited AKAEZE CHARLES v. F. R. N. (2018) LPELR-43922 (CA); NNAJIOFOR v. F. R. N. (2018) LPELR – 43925 (CA).

That the burden of proof beyond reasonable doubt placed on the prosecution by virtue of Section 29 (2) of the Evidence Act is sui generis since it never shifts to the defendant as it derogates from the general evidential rule which requires the person who asserts to prove the said assertion. That the lower Court did not apply the principle of law enunciated above as it required the Appellant to prove that Exhibit ‘K’ was not made voluntarily. That the lower Court’s interpretation and application of the law as well as its evaluation of evidence in this regard runs counter to the law. That this resulted in a perverse and absurd decision which has occasioned a miscarriage of justice with regards to the Appellant who has been convicted and sentenced to death based on an unreliable and inadmissible confession. He urged the Court to so hold and cited the authority of MARTIN SCHROEDER & CO. v. MAJOR & CO. (1989) 2 NWLR (pt. 101) 1. That if the trial Court failed to evaluate the evidence or wrongly evaluated the evidence and thus reached a perverse decision, this Court can intervene by evaluating or re-evaluating the evidence and reverse the perverse decision by the lower court. Cited: AJAKAIYE v. ADEDEJI (1990) 7 NWLR (pt. 161) 192; AROMOLARAN v. OLADELE (1990) 7 NWLR (pt.162); OBI v. OWOLABI (1990) 5 NWLR (pt. 153) 702.

Learned counsel submitted that it is not certain that Exhibit K was not obtained by means of torture giving the non-observance of the safeguards provided under Section 13 (2) of the Anambra State Administration of Criminal Justice Law, 2010 and Section 35 (2) of the 1999 Constitution (as amended). That the absence of the video recording of how Exhibit K was made as required by Section 32 (2) of the ACJL, 2010 and the absence of a legal practitioner or a person of the Appellant’s choice as required by Section 35 (2) CFRN 1999 and Section 13 (2) ACJL, 2010 creates serious doubt as to the means by which Exhibit K was made and/or obtained. Cited: AKAEZE CHARLES v. F. R. N (supra); NNAJIOFOR v. F. R. N (supra); JOSEPH ZHIYA v. THE PEOPLE OF LAGOS STATE (2016) LPELR – 40562 and the apex Court’s decision in STATE v. ONYEUKWU (2004) ALL FWLR (pt. 221) 1388 at 1425. On method of obtaining confessional statement generally, learned counsel to the appellant cited and quoted the Supreme Court’s decision in OWHORUKE v. C. O. P. (2015) 15 NWLR (pt. 1438) 557 at 576. That the lower Court erred by considering the content of Exhibit K and the truth of its content for the purpose of determining the voluntariness of the said Exhibit K. Learned counsel urged the Court to so hold and resolve this issue in favour of the Appellant.

Learned counsel to the respondent while arguing this issue in his brief submitted that the learned trial Judge rightly admitted and placed reliance on Exhibit K as he left no stone unturned in reaching his decision. That the finding and decision by the learned trial Judge is unblemished and faultless. That this Court cannot in intervene on strong legal basis to re-evaluate the evidence led at the lower Court in respect to the confessional statement of the Appellant. That it is not the function of this Court to make findings of facts especially where this has perfectly been done by the learned trial Judge as in the instant case. That this Court cannot re-open the issues of fact finally determined by the trial Court even if it would have come to a different finding. Cited: TAIGA v. MOSES-TAIGA (2012) 10 NWLR (pt. 1308) 219 at 250; OKPA v. STATE (2017) 15 NWLR (pt.1587) 1 at 28; S. P. D. C. N. LTD. v. ORUAMBO (2012) 5 NWLR (pt. 1294) 59 1 at 615 and MARAIRE v. STATE (2017) 12 NWLR (pt. 1552) 283 at 322-323. That the Appellant’s statement was rightly adjudged as voluntarily made and there is no need to upturn that finding of fact by the lower Court. Cited: SOGUNRO v. YEKU (2017) 9 NWLR (pt. 1570) 290 at 322-323; MUHAMMED v. STATE (2017) 13 NWLR (pt. 1299) 209 at 245-246.

That the cumulative effect of the provisions of the Evidence Act especially Sections 29, 131, 132, 136, 138 and 140 is to the effect that the Respondent must prove that the statement was made by the Appellant voluntarily while the Appellant must debunk that assertion by credible evidence. Once the Respondent proved that the statement was voluntarily made then the burden shifts to the Appellant to show that the statement was not made voluntarily by him. That the respondent during trial-within-trial discharged this responsibility and the lower Court adjudged the statement as voluntarily made. That the Appellant failed woefully to show that the said Exhibit K was not made voluntarily by him. Learned counsel cited and quoted the apex Court’s decision in IKPO v. STATE (2016) 10 NWLR (pt. 1521) 501 at 520-521.

That the Appellant also testified that he signed the Attestation Form which was tendered in evidence and marked as Exhibit A1. That the Appellant’s attestation form is in the affirmative that he signed the confessional statement voluntarily. That in HASSAN v. STATE (2017) 5 NWLR (pt. 1557) 1 at 28-29, the Supreme Court held, inter alia, that a defendant who alleges that he was manhandle in making his statement need to call an additional witness. For the Court to ascribe probative value to his evidence the defendant need to call another witness and/or furnish further evidence to corroborate his denial. Cited and quoted the Supreme Court holding in HASSAN v. STATE (supra) at page 28-29.

Learned counsel urged the Court to discountenance the contention by the Appellant that he was tortured. That the fact that he has signed at various places on the said confessional statement plus the attestation form debunks his claim that he was tortured to do so. Cited IKPO v. STATE (2007) (supra) at pages 521. That in GBOKO v. STATE (2007) 17 NWLR (pt. 1063) 272 at 303-304, the Court held that it has the latitude to compare signatures, writing, seal or finger impression. That this is guaranteed under Section 101 of the Evidence Act. That in the scheme of things the Appellant cannot void the admissibility of his statement on grounds of torture and not being taken to the hospital. That he cannot do so because he has not shown how he was tortured and he never called any witness or staff of the Correctional Center or its medical staff to corroborate his allegation of torture. That he did not state any need to warrant his being taken to the hospital. That the decision by the learned trial Judge admitting the statement of the Appellant in evidence is unassailable. Learned counsel to the respondent urged the Court to so hold and resolve this issue in favour of the said respondent.
FINDING ON ISSUE 1:
Issue 1 is:
Whether the lower Court was right in admitting in evidence the extra-judicial statement of the Appellant Exhibit ‘K’, and heavily relying on same to convict the Appellant notwithstanding the evidence on record establishing that it was not voluntary and inadmissible?

In determining this issue, I will focus on the following points:
a. The essence of trial-within-trial;
b. Evaluation of evidence by the learned trial Judge.
c. The effect of the provisions of Section 35 (2) of the 1999 Constitution (as amended) and Section 13 (2) of the Anambra State Administration of Criminal Justice Law, 2010 on Exhibit K.
A. THE ESSENCE OF TRIAL-WITHIN-TRIAL:
A trial within trial is a mini trial wherein the prosecution is afforded the opportunity of marshaling evidence in support of its claim that the confessional statement by the accused was made voluntarily. In the said mini trial, the accused and his witness (if any) have an opportunity of debunking the claim by the prosecution. Therefore, it is during the mini trial that the defence counsel endeavours to foreclose the admissibility of such a statement. See ADEBOWALE v. THE STATE (2013) 16 NWLR (pt. 1379) 10 4 at 126-127. In other words, a trial within trial is conducted to determine the voluntariness of a confessional statement made by an accused to the police or authority. The procedure arises when there is an objection by the accused person on the ground that he did not made the statement voluntarily. In that case, the trial Court has a duty to try the issue of whether or not the statement was voluntarily made, before proceeding to admit same in evidence. See OLAYINKA v. THE STATE (2007) 4 S. C. (pt. 1) 210 at 220; (2007) 9 NWLR (PT. 1040) 561 at 577.
Where an accused person during trial retracts or resists an extra-judicial statement he earlier made to the Police immediately after the event giving rise to the charge or arraignment against him, he owes it a duty to impeach his earlier made statement. He can do so by showing any of the following:
1. That he did not infact make any such statement presented; or
2. That he was not correctly recorded; or
3. That he was unsettled in mind at the time he made the statement; or
4. That he was induced to make the statement.
In OSETOLA & ANOR v. THE STATE (2012) LPELR – 9348 (SC), the apex Court per ARIWOOLA, JSC held as follows:
“It is already settled that where an accused person during trial retracts, denied or resists from the extra-judicial statement he had earlier made to the Police immediately after the event giving rise to the charge or arraignment against him he owes it a duty to impeach his said earlier statement. See: NWACHUKWU v. THE STATE (2007) 12 SCM (pt.2) 447, (2007) 17 NWLR (pt.1062) 31 at 69; HASSAN v. STATE (2001) II SCM 100, (2001) 35 WRN 175; (2001) 15 NWLR (pt. 735) 184. During trial, an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true or correct by showing any of the following: (i) That he did not in fact make any such statement as presented; or (ii) That he was not correctly recorded; or (iii) That he was unsettled in mind at the time he made the statement, or (iv) That he was induced to make the statement. See: HASSAN v. THE STATE (supra); FOLORUNSHO KAZEEM v. THE STATE (2009) 29 WRN 43 at 68-79. Generally, the way to discharge the burden of establishing any of the above by an accused at the tendering of his confessional statement is by calling evidence during a trial within trial.”
This holding by the Supreme Court expressed the true position of the law that once an accused challenge the tendering in evidence of his confessional statement during trial he cannot just fold his arms and shift the burden of proving the voluntariness of the said confessional statement on the prosecution. He ought to take steps to convince the trial Court that the said confessional statement was not voluntarily made by him. Therefore the submission by the learned counsel to the appellant that the burden of proof placed on the prosecution to prove that the confessional statement was voluntarily obtained never shifts to the accused is not the correct position of the law. Once the prosecution proved that the accused volunteered the confessional statement to the Police then the accused, in his interest, ought to adduce evidence to debunk the assertion by the prosecution that he did not do so. If he alleged that he was tortured, then he is duty bound to established that allegation. I noted that during trial-within-trial, the Appellant, apart from his ipse dixit, did not call any evidence to convince the trial Court that he was tortured by the police before writing the confessional statement.
I also noted that the Appellant signed Exhibit A1, (the Attestation Form) which accompanied the confessional statement wherein he categorically admitted that he voluntarily wrote the confessional statement (Exhibit K). He was cautioned, and stated that he understood the cautionary words he then signed the cautionary words, the Attestation Form (Exhibit A1) and his confessional statement (Exhibit K). While claiming that he was tortured, the Appellant displayed to the learned trial Judge some scars he purported to be the result of the torture before making the confessional statement. Apart from the display of the said scars before the trial Court, the Appellant did not call any evidence to support this assertion. In ITOM ISHOR IKPO v. THE STATE (2016) LPELR 40114 (SC), the apex Court, per KEKERE-EKUN, JSC held thus:
“In his defence in the trial within trial, the appellant contended that he was tortured, to make the statement. He showed the Court some scars, which he alleged were the result of the beating he received. His mother who testified as T.W.T 2 testified that she witnessed her son being tortured. All the witnesses were thoroughly cross-examined. After giving careful consideration to the evidence led, the Court discountenance the evidence of the Appellant’s mother as she admitted under cross examination that she was not present when the appellant made any statement to the Police. The Court also held that there was no medical evidence as to the age of the scars the Appellant showed to the Court so as to determine whether they coincided with the time the statement was made. The Court also noted that the appellant confirmed to the superior Police Officer that he made the statement voluntarily and duly signed same. In light of these findings, the Court concluded that the statement was voluntarily made and admitted in evidence. I entirely agree.”
Upon considering this holding by the apex Court, it is obvious that there is need to have a medical evidence to show the age of the scar to demonstrate unequivocally that it coincides with the time the statement was made. It is a fact meant to be furnished by the Appellant which is conspicuously missing in this case. Also, in a similar vein, in HASSAN v. STATE (2017) 5 NWLR (pt. 1557) 1 at 28-29, the Supreme Court reiterate the need for an accused who alleges that he was tortured before making a confessional statement to call additional witness that can corroborate his assertion. The apex Court held thus:
“Since the voluntariness of the confession is challenged, the onus is on the prosecution to show that the confessional statement was voluntarily made by the accused person. So the prosecution leads evidence to show that such was the case. There after the accused person gives evidence to show that he was beaten up etc. before he made the statement. And to prove that he was beaten up, he would do well to call witnesses to support his case, and a medical doctor is usually a good witness. A trial-within-trial was held to test the voluntariness of Exhibit C. The appellant said that he was not able to withstand the beating so he signed the statement. He did not call any witness. The learned trial Judge evaluated the evidence led and delivered a ruling on 9th July, 2008 wherein he admitted the Appellant’s confessional statement as Exhibit C… The learned trial Judge in arriving at his findings has not offended any principle of law. His Lordship is correct and the Court of Appeal was right to affirm the finding that Exhibit C was voluntarily made by the Appellant.” Per RHODES-VIVOUR, JSC.
The holdings by the Supreme Court on the need for the accused person to call evidence in support of his allegation of torture underscore the provisions of Sections 29, 131, 132, 136, 138 and 140 of the Evidence Act. It is my finding on this point that the essence of conducting a trial-within-trial is for the trial Court to call upon the prosecution to adduce evidence that the accused voluntarily made the confessional statement while the accused also ought to call evidence to debunk the assertion by the prosecution. It is my finding that upon considering the record of proceedings the learned trial Judge was right in admitting the confessional statement of the Appellant in evidence on the basis that it was voluntarily made.

The next point I will consider is:
B. THE EVALUATION OF EVIDENCE BY THE LEARNED TRIAL JUDGE.
I have carefully considered the judgment by the learned trial Judge at pages 555-628 of the additional record of appeal. I also considered the evaluation of evidence by the learned trial Judge and noted the following:
1. At page 474, the learned trial Judge held as follows:
“Again, for the prosecution, relying on any or all of the above named three (3) ways or methods to prove a charge of armed robbery, it must present evidence before the Court to prove three (3) elements or ingredients as follows:
a. That there was robbery or series of robberies.
b. That the robbery was armed robbery.
c. That the accused was one of those who took part in the robbery.
See KOLAWOLE v. STATE (supra); KAYODE v. STATE (supra), BOZIN v. STATE (supra), OLAYINKA v. STATE (2007) 9 NWLR (pt. 1040) 561; ALABI v. STATE (1993) 7 NWLR (pt.307) 511 and OSETOLA v. STATE (2012) 17 NWLR (pt. 1329) 251…”
Also at pages 475, the learned trial Judge held thus:
“The defendants, in their respective testimonies before the Court, have not only denied the charge but stated that they were nowhere near the scene of the incident on the said day. They stated that they were either in their houses or in their towns or villages on the day of the incident. If they have denied the charge and also denied ever being at the scene where the incident took place, I wonder how they would know whether the incident took place or not. And if they were not at the scene, it does not lie in their mouths to say that there was no robbery incident on the day in question. That amounts to saying what they don’t know. Therefore, I believe the prosecution that there was robbery incident on 30/12/2010 as per the charge before the Court. Consequently, the prosecution has clearly proved the first element or ingredient of armed robbery, to the effect that there was a robbery incident on 30/12/2010 at Haruna Street by Kano Street, Onitsha, where the complainants and his charge was robbed of his money.”
At page 476, the learned trial Judge held thus:
“From the above definitions, I am not in doubt that what the PW1 was robbed with on the day of the robbery is not only an offensive weapon but a firearm. He was robbed with a gun. The PW2, in his evidence, told the Court that the defendants confessed to the commission of the offence and that the 6th defendant confessed that he had K2 Riffle with which they carried out the robbery and took the Police to his Armourer, one Chukwudi Chukwujindu at Atani where the said Riffle was recovered in the said Armourer’s possession or custody with a search warrant. The PW2, as I said earlier, tendered the K2 Riffle, Magazines and live Ammunition as Exhibits Q, Q1, Q2, Q3, Q4-Q83. With the evidence of the PW1 and PW2 and the said Exhibits Q, Q1, Q2, Q3, Q4-Q83, no one is now in doubt that the robbery of 30/12/2010 was an armed robbery.”

On the confessional statements by the Appellant and his co-accused, the learned trial Judge held thus:
“On 23/6/2016, the Court rendered a considered ruling and held that the prosecution proved that the named defendants freely and voluntarily made the said statements to the Police and admitted the said statements in evidence as Exhibits J in respect of the 1st defendants, Exhibit K in respect of the 2nd defendant…. It is clear as daylight that the named defendants, in their said statements, admitted or confessed to the commission of the alleged offence… I agree with the prosecution that it is the law that a confession is an admission made at any time by any person charged with a crime, suggesting that he committed the crime and that it is relevant and when it establishes one or all the elements or ingredients of the crime charged and identifies the person who committed the offence. See Section 28 of the Evidence Act. See also HENRY ODEH v. FEDERAL REPUBLIC OF NIGERIA (2008) 13 NWLR (pt. 1103) 1 and NSOFOR v. STATE (2002) 10 NWLR (pt. 775) 274…” (Pages 478-479 of the Records).

While making pronouncement on the Appellant who is the 2nd defendant the learned trial Judge held thus:
“On his own part, in the statement of the 2nd defendant Exhibit K, he talked of their robbery gang and stated that on 30/12/2020 at about 3:30pm, they robbed the complainant of a huge sum of money at Haruna Street by Kano Street, Onitsha and that he was the person that carried the 1st defendant on his motorcycle and they were monitoring the place to see if the police would come. Like the confession of the 1st defendant, his statement is clear, precise and unequivocal. It is also direct and positive and relates to what the 2nd defendant did in respect of the crime…”

Learned trial Judge also held while pronouncing on the confessional statement at page 481 of the Record, that:
“To my mind, the above excerpts from the statements of the 1st, 2nd, 3rd, 4th and 6th defendants have left no one in doubt that the said statements clearly and unequivocally satisfy the requirements of a confessional statements and I don’t think I am in error in regarding them as such in my ruling of 23/6/2016. I don’t also think I will be in error in making use of same in this judgment. See GBADAMOSI v. STATE (supra).
The learned trial Judge while making his pronouncement on the evidence adduced during trial-within-trial, held thus:
“… during trial-within-trial proceedings, what the defendants did was to assert or state or allege all manner of beatings and torture allegedly meted out to them by the Police before they made their statements, which the prosecution roundly denied. No concrete evidence was placed before the Court by them to substantiate or ground their allegation to the effect that they were tortured and beaten up before they signed their said statements, after the prosecution has shown to the Court that the defendants’ statements were voluntarily and freely made. This is because in the case of HASSAN v. STATE (2017) 5 NWLR (pt. 1557) 28, the Court held that after the prosecution has discharged the onus on it to show that the accused person’s statement was voluntarily made, the burden now shifts to the accused person himself to show that he was tortured before he made his said statement and he would do well to call witnesses to support his case and a medical doctor is usually a good witness. … In the instant case, the 1st, 2nd, 3rd, 4th and 6th defendants did not call any other witness not to talk of a medical doctor to substantiate their case that they were tortured and intimidated before they made their statements.”
“It is also the law that there is no better evidence than that which is within the knowledge of the person who testifies to the commission of an offence. It is also the law that confessional statement is the best because the information therein is within the frame of mind of the accused and could not have been formulated. See HASSAN v. STATE (supra). If the Court is satisfied that a confessional statement is safe, free, voluntary and true, it is safe for the Court to convict based on same. See EGBOGHONOME v. STATE (1993) 7 NWLR (pt. 306) 383 and OSUAGWU v. STATE (2013) 5 NWLR (pt.1347) 360. Again, it is also the position of the law that a Court can convict on confessional statement alone, without corroboration, once it is satisfied of the truth of the confession on the condition that the statement is free, voluntarily made, unambiguous, true, direct, positive and refers to the offence charged. See F. R. N. v. IWEKA (2013) 3 NWLR (pt. 1344) 213.”

I have taken the pain to quote some portions of the holding by the learned trial Judge in order to put to rest the assertion by the learned counsel to the Appellant that the learned trial Judge did not evaluate the evidence placed before him. I am of the firm view that the said learned trial Judge meticulously and thoroughly evaluated the facts and evidence adduced before him. The law is trite that it is not the function of this Court to make finding of facts especially where this has perfectly been done by the trial Court, as in the instant case, neither is it its duty to re-open the issues of fact finally determined by the trial Court even if it would have come to a different finding if it were to do so. See MOSES OGHENERUME TAIGA v. NNEKA MERCY MOSES-TAIGA (2012) LPELR-9238 (CA) per BAGE JCA (as he then was); BASSEY OKPA v. THE STATE (2017) LPELR-42205 (SC) per MUHAMMAD, JSC. Let me also cite and quote the apex Court in OKECHUKWU MARAIRE v. THE STATE (2016) LPELR-41305 (SC) per PETER-ODILI, JSC where the eminent jurist held thus:
“The findings of the learned trial Judge in regard to the confessional statement and the evaluation of that statement with the evidence proffered as affirmed by the Court below are such that there is nothing perverse and no miscarriage of justice or wrong application of law and so this Court has no business interfering with those findings. I find strength in the case of Iguh, JSC in OGUONZEE v. STATE (1998) 4 SC 100. “Before I turn to the treatment of the above findings of fact by the Court of Appeal, I think I need re-emphasize that where facts in issue, whether in a Criminal or Civil proceedings are accepted or with such findings of fact made by a trial Judge which are supported by evidence simply because there is some other evidence in contradiction of the findings or that if the same facts were before the appellate Court, it would not have come to the same decision as the trial Judge. See IKE v. AYOOLA, supra; OGBERO EGRI v. UKPERI (1974) INMLR 22; OGUNDULU & ORS v. PHILIPS & ORS (1973) NMLR 267 etc. This, as already stated, is because finding of facts made by trial Court, are matters peculiarly within its exclusive jurisdiction and they are presumed to be correct unless and until an appellant satisfactorily proves that they are wrong. Such trial Courts saw the witnesses and heard them testify and unless the findings are perverse and unsupported by credible evidence, the Court of Appeal will not interfere with them. See ADELUMOLA v. THE STATE (1988) 1 NWLR (pt. 73) 683…”

C. The third point I will consider is: THE EFFECT OF THE PROVISIONS OF SECTION 35 (2) OF THE 1999 CONSTITUTION (as amended) AND SECTION 13 (2) OF THE Anambra State Administration of Criminal Justice Law, 2010 (ASACJ) Law, 2010 ON EXHIBIT ‘K’.
I have carefully considered the provisions of Section 35 (2) of the 1999 Constitution (as amended) and Section 13 (2) of ASACJL, 2010 and it is my findings that the said sections does not nullify the contents of Exhibit K at pages 27-28 of the Records where in the Appellant state thus:
“… I am an armed robber. I belong to Isaiah alias “Onyeamuma” gang of armed robbers. I was introduced into armed robbery by Isaiah around July, 2010 at a beer parlour at Nwangele Street, Onitsha when he came out from prison… We have an AK 47 Riffle which is being handled by Isaiah. On 30/12/2010 around 3:30pm we robbed one Benard Okeke alias “Ogbuefi” of a huge sum of money at Haruna Street by Kano Street, Onitsha, but I do not know how much. Uchenna Oparaorji alias “Ati” was the person that robbery operation (sic). I was the person that carried Ikenna Aniuno on my motorcycle and were monitoring the entire area to see if the Police will come… Isaiah called us on the phone and we all met at Obosi in an upstairs which I do not know the owner but can identify the man if seen and the house. There Isaiah gave Ikenna Anionu the sum of N750,000.00… which three of us shared N250,000.00 each i.e. Ikenna Aniuno, Uchenna Oparaorji and I… I paid my own share of the money into my bank account with first bank, old market road Onisha… I use the balance to buy clothes for myself, wife and my child. Isaiah alias “Onyeamuma” fired two shots to the air to scare people away on the day of the armed robbery.”
It is worthy of note that it is as a result of this confession by the Appellant that the motorcycle used in committing the offence and the sum of N99,000.00 (Exhibit F) were recovered from the said Appellant. It is my holding on this issue that the lower Court was right in admitting in evidence the extra judicial statement of the Appellant marked as Exhibit K. It is also my holding that Exhibit K was voluntarily made by the Appellant and the learned trial Judge was right when he relied on it to convict and sentence the said Appellant. See Sections 14, 15 and 30 of the Evidence Act. See also this Court’ decision in GODWIN ELEWANNA v. THE STATE (2019) LPELR – 47605 (CA). Also in SUNDAY OKONDO v. THE PEOPLE OF LAGOS STATE (2016) ALL FWLR (pt. 851) 1308, one of the issues that arose before this Court, Lagos Division, was whether Exhibits P2 and P4 (Appellants statement to the Police) were admissible having not complied with Section 9(3) of the Administration of Criminal Justice Law of Lagos State (which is in pari materia with Section 13 (2) of the Administration of Criminal Justice Law of Anambra State) on the use of video recording of the statement of an accused or in lieu of that ensuring that the statement is recorded in the presence of a legal practitioner or a person chosen by the accused. This Court held, inter alia, that evidence is under the exclusive legislative list and not within the legislative competence of the State House of Assembly. Thus the State House of Assembly cannot make laws on evidence which is the Kernel of the provision of the ACJL on video recording. See ELEWANNA v. THE STATE (supra). In ADEYINKA AJIBOYE v. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 44468 (SC), the Supreme Court held thus:
“Taking a cue from the case of KIM v. THE STATE (1991) NWLR (pt.233) 17 at 25 paragraph 14, the Supreme Court enumerated the formal requirements of extra-judicial statement which are that:
a. It must carry the usual forms of caution.
b. Each of the words of caution must be in the language understood by the maker.
c. It must be followed by the maker’s thumbprint or signature as the case may be.
d. It must be recorded in the language understood by the maker.
e. It must be read over and interpreted to the maker in language in which it is made.
I shall refer to the case of DIBIE v. STATE (2007) 9 NWLR (pt. 1038) 30 at 64 per OGBUAGU, JSC along similar lines, thus: “It need be stressed by me and this is also settled, that there is no requirement of law in Nigeria, but that the practice of taking an accused person along with his confessional statement, to a superior officer who reads over and interprets the statement to him and he confirms it as his voluntary statement has been highly commended and a wise one as giving extra assurance of fairness to the accused person and the voluntariness of his confession… From what I can see the points of anchor against the confessional statement of the Appellant cannot sustain a rejection of the statements as involuntarily obtained. Firstly, it is not the law or practice that an accused person’s legal representation must be present before a statement from him can be accepted as voluntarily obtained nor is it also mandatory that the superior officer who before the attestation was made must be called in evidence. In effect, from the proceedings of the trial-within-trial, not only was the procedure followed, the learned trial Judge was right in his conclusion that the statement was voluntarily made and had to be admitted. See EDOHO v. STATE (2004) 5 NWLR (pt. 865) 17 at 51. Indeed the statement was properly admitted and it was sufficiently material to ground the conviction.” Per PETER-ODILI, JSC.
This issue is resolved by me in favour of the Respondent.

Learned counsel to the Appellant argued issues 2 and 3 together at pages 13 to 28 of the Amended Appellant’ brief. The two issues are:
2: Whether the learned trial Judge availed the Appellant the constitutional presumption of innocence.
3. Whether the learned trial Judge was right in holding that the Respondent proved its case against the Appellant beyond reasonable doubt.

In my finding on issue 1 above, which is based on the confessional statement of the Appellant marked as Exhibit K, I stated, inter alia, that the essence of the trial-within-trial was achieved, which is to ensure that the Appellant’s confessional statement was voluntarily made by him. I then commended the learned trial Judge for his effort in meticulously and painstakingly evaluating the gamut of evidence adduced before him. I also made my finding in respect to Section 35 (2) of the 1999 Constitution (as amended) and Section 13 (2) of the Anambra State Administration of Criminal Justice Law 2010 as it apply to Exhibit K. I held that the Section 13 (2) of ASACJ Law, 2010 being based on evidence is beyond the powers of the State House of Assembly to legislate upon. Therefore, I am of the firm opinion that my finding on issue 1 in favour of the Respondent had pull the rug underneath the feet of issue 2 and 3 (so to speak). It is obvious and clear as crystal that the Appellant was availed his constitutional presumption of innocence. The learned trial Judge was also right in holding that the Respondent prove its case against the Appellant beyond reasonable doubt, and I so hold. I also resolve issues 2 and 3 in favour of the Respondent.

It is my finding that the learned trial Judge was right in admitting the confessional statement of the Appellant in evidence (Exhibit K) and attaching weight to it. He was also right when he held that the Respondent proved the offence of armed robbery against the Appellant beyond reasonable doubt. Therefore, this appeal lacks merit and it is hereby dismissed. The judgment by the learned trial Judge in Charge No. 0/18C/2011 delivered on 24th day of July, 2017 wherein he convicted and sentenced the Appellant to be hanged by the neck until he be dead for the offence of Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap R11, Laws of the Federation of Nigeria, 2004 is affirmed by me.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother B. G. SANGA, JCA.

I agree that the appeal be dismissed and the Judgment of the trial Court sentencing the Appellant to death affirmed for the more detailed reasons contained in the lead Judgment.

RITA NOSAKHARE PEMU, J.C.A.: I had read in draft the lead judgment just delivered by my brother BITRUS GYARAZAMA SANGA, JCA.
I agree with his reasoning and conclusion.
I also dismiss the appeal.

Appearances:

TOCHUKWU ODO Esq. For Appellant(s)

MRS. C. V. ONONYE EKWEREKWU Esq. For Respondent(s)