STEVE EMEKA IKE v. THE STATE OF LAGOS (2019)

STEVE EMEKA IKE v. THE STATE OF LAGOS

(2019)LCN/13477(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/L/1120C/2018

JUSTICES

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

STEVE EMEKA IKE Appellant(s)

AND

THE STATE OF LAGOS Respondent(s)

RATIO

WHEN AN OBJECTION TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT IS TO BE RAISED

It is however noteworthy that when an accused person alleged that the confessional statement credited to him is made under duress or not made voluntarily by him, objection must then be raised to its admission when the statement is sought to be tendered in evidence and not after they have [sic] been admitted in evidence.?
See also ISONG vs. THE STATE (2016) LPELR (40609) 1 (SC), ALO vs. THE STATE (2015) LPELR (24404) 1 at 25-26 (SC), AKPAN vs. THE STATE (2008) 14 NWLR (PT 1106) 72, MOHAMMED vs. THE STATE (1991) 5 NWLR (PT 192) 438 at 457 and OKAROH vs. THE STATE (1990) LPELR (2423) 1 at 17. PER OGAKWU, J.C.A.

THE DETERMINANT OF WHEN ACONFESSIONL STATEMENT WILL BE ALLOWED IN EVIDENCE

Let me iterate that the determinant of when a confessional statement will be allowed in evidence is as provided for in Section 29 of the Evidence Act, the enactment dealing with evidence in judicial proceedings in or before Courts in Nigeria. See the Long Title of the Evidence Act, 2011 which explains the general scope of the Act: BELLO vs. A-G OYO STATE (1986) LPELR (764) 1 at 71.
In FATOKI vs. THE STATE (supra) which was referred to by Oseji, JCA in ZHIYA vs. THE PEOPLE OF LAGOS STATE (supra), Ikyegh, JCA stated as follows:
?Section 9 (3) of the Law is thus a veritable tool in the administration of criminal justice. It will apply to voluntary confessions made by an accused as an adjunct to the relevant provisions of the Evidence Act. PER OGAKWU, J.C.A.

THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON

Our adversary criminal justice system is accusatorial. This is in tune with Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of this presumption of innocence is that the prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011. Proof beyond reasonable doubt does not mean that the prosecution must prove the case with mathematical exactitude: ADEBOYE vs. THE STATE (2011) LPELR (9091) 1. It does not mean proof beyond all shadow of doubt; so where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt. In the words of Oputa, JSC (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12 ? 13:
?Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: –
?The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence ? ?of course it is possible but not in the least probable? the case is proved beyond reasonable doubt.” PER OGAKWU, J.C.A.

MEANING OF PROOF BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. More often than not in criminal trials the crux of the disceptation is not whether the offence was committed, but whether it was the accused person that committed the offence.
There are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and OLAOYE vs. THE STATE (supra) at 13. PER OGAKWU, J.C.A.

WHETHER OR NOT CIRCUMSTANTIAL EVIDENCE IS THE BEST EVIDENCE

I iterate that there was no eyewitness testimony in this matter, so it was only on the basis of confessional statement and circumstantial evidence that the lower Court could have arrived at a conviction. The legal position seems to be that for circumstantial evidence to amount to proof of a case beyond reasonable doubt, such circumstantial evidence must prove the proposition which it seeks to establish with the accuracy of mathematics: FATOYINBO vs. A-G WESTERN NIGERIA (1966) NMLR 4 and AIGBADION vs. THE STATE (2000) 7 NWLR (PT 666) 686. In NWEKE vs. THE STATE (2001) LPELR (2119) 1 at 11, the apex Court held that:
?Circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.?
See also ADIE vs. THE STATE (1980) 1-2 SC 116 and UKORAH vs. THE STATE (1977) 4 SC 167.
In order for circumstantial evidence to secure a conviction in a criminal trial, it must be cogent, complete and unequivocal. The evidence must be compelling, conclusive and strong and it must lead to the irresistible conclusion that the accused person and no one else must have committed the crime. Indeed the facts must be incompatible with innocence of the accused person and incapable of explanation upon any reasonable hypothesis other than that of his guilt: NWEKE vs. THE STATE (supra) at 18. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The facts of this matter as narrated to the Police by the Complainant are that at about 5.00 am on 24th May 2013, the Complainant was on her way to board her office staff bus to go to work when she was accosted by three persons who snatched her handbag from her and ran away. She went back home, got another handbag and some money from her husband and left the house again to go and board the staff bus. At the bus stop, she saw one of the three persons who had snatched her bag and she raised an alarm and her colleagues helped her apprehend the person, who happened to be the Appellant herein. He was taken to the police station and in the course of investigations one other person said to be among the three persons was arrested. The third person remained at large and was never arrested. The Appellant and the said other person were arraigned before the High Court of Lagos State in CHARGE NO. ID/452C/2014: THE STATE OF LAGOS vs. STEVE EMEKA IKE & ANOR on a two count Information of Conspiracy to commit robbery and Robbery contrary to the provisions of Sections 297 and 295 (1) of the Criminal Law No. 11 of Lagos State, 2011. ?

Before the matter went to trial, the Complainant died and consequently did not testify at the trial. The Prosecution however called two witnesses, being the police officers who investigated the complaint. The statements made by the complainant as well as the confessional statements of the Appellant and the other accused person were tendered in evidence. The Appellant and the other accused person testified in their defence at the trial and retracted their confessional statements. They did not call any other witness. At the end of the trial, the lower Court held that the offences charged had been proved beyond reasonable doubt, convicted as charged and imposed a sentence of twenty-one years on each count to run concurrently. The Appellant was dissatisfied with the judgment and appealed against the same. The chafed judgment of the lower Court which was delivered on 6th June 2018 is at pages 97-113 of the Records while the Notice of Appeal is at pages 114-118 of the Records.
?
In keeping with the Rules of Court, Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged. The

Appellant?s Brief was filed on 25th September, 2018 while the Respondent?s Brief was filed on 10th January, 2019. The Appellant filed a Reply Brief on 15th January, 2019. Both the Respondent?s Brief and the Appellant?s Reply Brief were deemed as properly filed on 10th April, 2019. The Appellant distilled three issues for determination as follows:
?(i) Whether having regard to Section 9(3) of the Administration of Criminal Justice Law 2011, was Exhibit 2(a) and 2(b) admissible evidence, and sufficient to ground a conviction against the Appellant? (Ground 3)
(ii) Whether the prosecution proved the case of robbery beyond reasonable doubt against the Appellant to warrant his conviction? (Ground 1 and 4); and
(iii) Whether the trial Court was right in convicting the Appellant for conspiracy solely on the basis of his conviction of the offence of robbery? (Ground 2).?
The Respondent formulated two issues for determination, namely:
?(1) Whether the Learned Trial Judge erred in law to have admitted the confessional statement (Exhibit 2a and 2b) of the Appellant where same was not objected to by the

Defence.
(2) Whether from the facts and circumstances of this case, the Respondent has proved the guilt of the Appellant so as to warrant her [sic] conviction and sentence by the Trial Judge.?

The issues crafted by the parties flow from the grounds of appeal; however I will take the liberty to tinker with the issues in order to make for conciseness and clarity. The issues which I find apt and on the basis of which I will consider the submissions of learned counsel and resolve this appeal are as follows:
1. Whether the confessional statements of the Appellant were rightly admitted in evidence by the lower Court.
2. Whether the lower Court rightly held that the offences charged were proved beyond reasonable doubt so to warrant the conviction and sentence of the Appellant.

ISSUE NUMBER ONE
Whether the confessional statements of the Appellant were rightly admitted in evidence by the lower Court.

SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that the lower Court erred in law when it admitted his confessional statements, Exhibits 2(a) and 2(b), in evidence, when the said confessional statements were

in breach of the provisions of Section 9 (3) of the Administration of Criminal Justice Law of Lagos State. It was stated that the Records do not show that the making of the confessional statements were video recorded or made in the presence of his legal practitioner. The confessional statements it was opined was consequently inadmissible vide OLUWATOYIN vs. THE STATE (2018) LPELR – 44441.

It was argued that the defence objected to the admissibility of the confessional statements but that the lower Court overruled the objection. It was further submitted that even if an objection had not been raised to its admissibility, the objection can still be raised subsequently since the statements are inherently inadmissible. The cases of OLUWATOYIN vs. THE STATE (supra) and CHARLES vs. FRN (2018) LPELR (CA) were referred to.

SUBMISSIONS OF THE RESPONDENT?S COUNSEL
The Respondent submits that the Appellant confirmed that the confessional statements were his statements and that the said statements were tendered, demonstrated and tested in open Court as required by the cases of QUEEN vs. WILCOX (1961) 2 NSCC 274-277 and DURIMINIYA vs. COP (1961) NRNLR

70. It was maintained that the Appellant never challenged the voluntariness of the confessional statements before the lower Court and that the fact that he denied making the statements while testifying in his defence did not render the statements inadmissible. The cases of OLADIPUPO vs. THE STATE (2012) LPELR – 7965 (CA) and ALO vs. THE STATE (2010) LPELR – 3751 (CA) were relied upon.

It is the further submission of the Respondent that the law which governs evidence is the Evidence Act and in the circumstances of this matter, Section 29 (1) of the Evidence Act 2011. It was stated that Section 9 (3) of the Administration of Criminal Justice Law does not render inadmissible any statement that does not comply with its provisions or provide for any penalty for non-compliance. It was asserted that the said provision relates to admissibility of video recording facility and not the statement of a defendant. The cases of Appeal No. CA/L/1371C/2016: EMMANUEL vs. FRN (unreported) delivered on 25th April 2018 and OKONDO vs. PEOPLE OF LAGOS STATE (2016) ALL FWLR (PT 851) 1308 were cited in support. The decision of this Court in EMMANUEL vs. FRN (supra), it was

stated, was to be preferred to OLUWATOYIN vs. THE STATE (supra) since it was later in time. It was finally posited that Section 9 (3) of the Administration of Criminal Justice Law employs the word ?may?, which makes it optional for the Prosecution to tender the video recording of the making of the statement. The lower Court it was conclusively submitted rightly admitted the confessional statements, Exhibits 2(a) and 2(b), in evidence.

APPELLANT?S REPLY ON LAW
In the Reply Brief, the Appellant maintains that the Records bear out the fact that he stated in open Court that he was beaten by the Police prior to his signing the confessional statement and that the testimony was not discredited during cross examination. The Appellant stated that the case of EMMANUEL vs. FRN (supra) relied on by the Respondent was decided on the concept of waiver and that the said decision, even though later in time, did not expressly repeal the case of OLUWATOYIN vs. THE STATE (supra) and the other cases relied upon by the Appellant. It was therefore opined that the decision was reached per incuriam, since it was arrived at without due consideration of

earlier decisions on the point. The provisions of the Administration of Criminal Justice Law, it was finally contended, was the procedural law governing criminal trials for offences established under the Criminal Code Law of Lagos State and that the provision of the said Section 9 (3) was a procedural rule for the benefit of the suspect and must be construed to be imperative vide OKEGBU vs. THE STATE (1979) 12 NSCC 157, NNAJIOFOR vs. FRN (2018) LPELR ? 43925 and CHARLES vs. FRN (supra).

RESOLUTION OF ISSUE NUMBER ONE
This matter once again brings to the fore the application of the provisions of Section 9 (3) of the Administration of Criminal Justice Law in criminal trials where the confessional statement of a defendant is tendered in evidence. Since the unreported decision of this Court in APPEAL NO. CA/L/1125/2011: FATOKI vs. THE STATE delivered on 11th December, 2015, which was followed in ZHIYA vs. PEOPLE OF LAGOS (2016) LPELR (40562), wherein it was decided that the making of a confessional statement which is not recorded on video as stipulated in the said Section 9 (3) is inadmissible; the said provision has become like an albatross around

the neck of the Prosecution as the defence always resort to the same as a bulwark in contending that a confessional statement is inadmissible or ought not to have been admitted in evidence; and as the talismanic wand in seeking to expunge confessional statements that were admitted in evidence.
Before I closely consider the provisions of the said Section 9 (3), let me consult the Records and ascertain the circumstances under which the confessional statements of the Appellant were tendered and admitted in evidence. Pages 37-38 are relevant. They disclose that the following transpired during the testimony of the PW1:
?I recorded the 1st Defendant?s Statement because he stated that he could not write. I read it out to him and he understood and signed as the writer. I took him back to the cell and brought out the 2nd Defendant and followed the same procedure.
2nd Defendant stated that he could not write and that I should record for him. I read it out to him and he signed as writer.
They both made Confessional Statements, but they are 3 in a gang and carried out the operation that time.
I took the 2 Defendants to my superior

officer. They confirmed their Statements to my superior officer and he countersigned.
Yes the initial IPO from Ikotun Police Station made the handover Statements.
The Defendants also made Statements at Ikotun Police Station.
I will recognize all the Statements if shown to me. Yes these are the Statements. Yes I visited the crime scene, I did not recover any exhibits.
Prosecution: I seek to tender
Defendant Counsel: I object, the PW1 in the box does not appear to have supervised the Statement.
Prosecution: I urge Your Lordship to discountenance the submission. He is a team member.
RULING
Court: It is the testimony of PW1 that he investigated this matter and he supervised Statement taking of the 1st & 2nd Defendants. That he endorsed the Statements of the 1st & 2nd Defendants. This has not been proved otherwise.
The objections are overruled and the Statements are admissible.?
The foregoing is what transpired. Indeed an objection was raised but it was not in any way connected to the voluntariness vel non of the statements. Articulating the raison d?etre for the existence of Section 9 (3), in

OLUWATOYIN vs. THE STATE (supra) at 20, Ogbuinya, JCA, stated:
?Admirably, the Court had, in those cases, articulated the mischief and the gains that propelled/stimulated the promulgation of the provision. It is pointless recycling them. In addition, however, the provision is further aimed to curtail/minimize the incongruous situation whereby the affluent in the society, unduly influence the law enforcement agents, the police, to give credence to their frivolous and phantom allegations by intimidating innocent suspects to making confessional statements.?
Equally, in AWELLE vs. PEOPLE OF LAGOS STATE (2016) LPELR (41395) 1 at 31, Abubakar, JCA stated as follows:
?The purpose of Section 9 (3) … is to provide conducive and assuring atmosphere for persons standing trial under our criminal Justice system, to obviate incidence of abuse of human rights. I also see the provisions as a positive development in granting accused person?s assurance of fair trial. It is a provision designed to check-make [sic] abuse of human rights by overzealous security officers who by all means, must ensure that an accused person is subjected to

undue hardship and cowed to confession.?
It would appear to me from the foregoing that the Section 9 (3) stipulation is directed at ensuring that confessional statements are made voluntarily and that the suspect is not intimidated (per Ogbuinya, JCA) or ?cowed? (per Abubakar, JCA) into making the confession. It is a provision directed at promoting and ensuring that statements are voluntarily made. The objection raised to the admissibility of the statements at page 38 of the Records (which I have reproduced above) is clearly not one which raised the question of the voluntariness vel non of the statements in order for it to be an objection that would command inquiry into whether there has been obeisance to the strict requirements of Section 9 (3). Now, the said Section 9 (3) of the Administration of Criminal Justice Law stipulates as follows:
?(3) Where any person who is arrested with or without a warrant volunteers to make a Confessional Statement, the Police Officer shall ensure that the making and taking of such statement is recorded on video and the said recording and copies of it may be produced at the trial provided that

in the absence of video facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.?
When the above provision is broken down, it is limpid that it has both imperative or mandatory as well as permissive or directory components since it employs the words ?shall? and ?may? in setting out the requirements to be adhered to. Firstly, it makes it mandatory that where a confessional statement is volunteered, the making and taking of such a statement is to be recorded on video. It then makes a proviso that in the absence of video facility, the statement shall be made in the presence of a legal practitioner of the choice of the person arrested. The permissive or directory aspect of the stipulation is that the video recording MAY be produced at the trial. Unequivocally, the provision does not stipulate that the video recording must be produced with the confessional statement when it is sought to tender the confessional statement in evidence. The video recording is not a sine qua non to the tendering of the statement and so the confessional statement is not inherently inadmissible. The question

that necessarily follows is when would it be necessary to produce the video recording in evidence? The answer lies in the raison d?etre for the provision, which is to ensure that the defendant is not ?intimidated? or ?cowed? into making a confessional statement, id est, that the statement was not made voluntarily.
It is my deferential view that a judge should not be a servant of the words used. He should not be a mere mechanic in the power-house of semantics. He should be the man in charge of it. Therefore, the approach in deciding whether the provisions of Section 9 (3) have been complied with or not, should always bear in mind the mischief that necessitated the provision. So, it is only if during trial when the confessional statement is sought to be tendered and an objection is raised that it was not made voluntarily that the stipulation requiring that the video recording may be produced at the trial kicks in. Where no such objection is raised, the prosecution is not obligated to produce the video recording, since the confessional statement is not inherently inadmissible.?
By all odds, the Appellant in his testimony in

defence at page 71 of the Records stated that he was beaten tortured and threatened and that he signed the statement because he did not want to die. But it was a little late in the day when he suggested in his evidence chief in defence that the statement was not made voluntarily. It is rudimentary that an objection that a statement was not made voluntarily is to be raised when the statement is sought to be tendered in evidence, not afterwards. In OLALEKAN vs. THE STATE (2001) LPELR (2561) 1 at 14-15 it was asseverated:
?It is however noteworthy that when an accused person alleged that the confessional statement credited to him is made under duress or not made voluntarily by him, objection must then be raised to its admission when the statement is sought to be tendered in evidence and not after they have [sic] been admitted in evidence.?
See also ISONG vs. THE STATE (2016) LPELR (40609) 1 (SC), ALO vs. THE STATE (2015) LPELR (24404) 1 at 25-26 (SC), AKPAN vs. THE STATE (2008) 14 NWLR (PT 1106) 72, MOHAMMED vs. THE STATE (1991) 5 NWLR (PT 192) 438 at 457 and OKAROH vs. THE STATE (1990) LPELR (2423) 1 at 17.?
The point I have been

labouring to make is that it is only where an objection has been raised at the time a confessional statement is sought to be tendered that it was not made voluntarily, that the stipulation for the video recording of the making and taking of the statement becomes necessary pursuant to Section 9 (3) of the Administration of Criminal Justice Law. Where the objection is not raised on the said grounds and at the appropriate time, the trial Court would rightly admit the confessional statement in evidence as the stipulation does not provide or require that a video recording must be tendered with a confessional statement for the same to be admissible. In the diacritical circumstances of this matter, the lower Court was right to admit the confessional statements, Exhibit 2(a) and 2(b), in evidence since there was no objection raised that the statements were not made voluntarily, and there was nothing that would have necessitated the video recording of the making and taking of the statement to be produced at the trial when the statements were tendered.?
The matter does not end there. It remains to examine if a confessional statement that satisfies the admissibility

requirements under Section 29 of the Evidence Act, will be rendered inadmissible if no video recording of its making and taking is produced at a trial upon an objection being raised as to its voluntariness. Without a doubt, the enactment dealing with the admissibility in evidence of a confessional statement is Section 29 of the Evidence Act. It provides the circumstances in which a confessional statement shall not be allowed to be given in evidence. I have examined the stipulations of Section 9 (3) of the Administration of Criminal Justice Law in the course of this judgment; it cannot be confuted that it does not expressly provide for when a confessional statement will be admitted in evidence or when it shall not be admitted in evidence. However, judicial interpretation of the said provision has resulted in its being held that a confessional statement, the making and taking of which is not recorded on video or which in the absence of video facility is not made in the presence of a legal practitioner of the choice of the defendant, is not admissible in evidence. The precursor of these line of decisions is the unreported decision of this Court, per Ikyegh, JCA,

in APPEAL NO. CA/L/1125/2011: FATOKI vs. THE STATE delivered on 11th December 2015. The same reasoning was espoused in the unreported decisions of this Court in APPEAL NO. CA/L/1126/2011: MATTHEW vs. THE STATE and APPEAL NO CA/L/1056/2011: AKHABUE vs. THE STATE, both delivered on 11th December 2015 alongside the FATOKI case. The decision in FATOKI was followed by Oseji, JCA in ZHIYA vs. PEOPLE OF LAGOS STATE (supra). All subsequent decisions in which non-compliance with Section 9 (3) have been held to render a confessional statement inadmissible have drawn inspiration from the decisions in FATOKI and ZHIYA. This is clear from the decisions in OLUWATOYIN vs. THE STATE (supra), AGBANIMU vs. FRN (2018) LPELR (43924) (CA) and CHARLES vs. FRN (supra). The pertinent question however is whether on the peculiar facts of the FATOKI and ZHIYA cases, the application of the provision of Section 9 (3) was directly in issue. In APPEAL NO. CA/L/1173/2014: EZIKE ILECHUKWU CHIDERA OLISAELOKA vs. THE PEOPLE OF LAGOS STATE(unreported) delivered on 9th May 2018, I was privileged to state as follows:
?I have read the decisions of this court in ZHIYA vs. THE PEOPLE OF LAGOS STATE (supra)

[per Oseji, JCA] and FATOKI vs. THE STATE (supra) [per Ikyegh, JCA] and I make bold to hold that the views expressed on the effect of non-compliance with Section 9 (3) of the Administration of Criminal Justice Law vis-a-vis an objection to the voluntariness of a confessional statement were not directly in issue in the said cases. I will demonstrate. In ZHIYA vs. THE PEOPLE OF LAGOS STATE (supra) an objection was raised as to the admissibility of the confessional statement in the case on the ground that it was not made voluntarily. The Court adjourned for a voir dire to be conducted. On the date fixed for the voir dire, learned counsel withdrew his objection to the admissibility of the confessional statement and the same was admitted in evidence without objection. So the objection having been withdrawn, the admissibility of the confessional statement on grounds of its voluntariness was not in issue. In FATOKI vs. THE STATE (supra) the statement in the said case was not a confessional statement, so the question of Section 9 (3) of the Administration of Criminal Justice Law did not arise at all. With due deference it was an obiter

dictum when my learned brother, Ikyegh, JCA stated thus: ?If Exhibit D3 had been a confessional statement, the non-compliance with Section 9 (3) of the Law would have rendered it impotent; in my view.? Undoubtedly, it was held in ZHIYA vs. THE PEOPLE OF LAGOS STATE (supra) that the confessional statement which was recorded without compliance with Section 9 (3) of the Administration of Criminal Justice Law was not admissible; but as earlier stated that conclusion was not based on any voir dire at which evidence was adduced to establish if the confessional statement was obtained by oppression or in circumstances that make the confession unreliable as required by Section 29 of the Evidence Act.
In the instant case, a confessional statement was made and an objection was raised as to its voluntariness and a voir dire was conducted, which spawned this appeal. Therefore, directly in issue in this appeal is whether non-compliance with the provisions of Section 9 (3) of the Administration of Criminal Justice Law, without more, will render a confessional statement inadmissible. Let me iterate that the determinant of when a confessional statement will be

allowed in evidence is as provided for in Section 29 of the Evidence Act, the enactment dealing with evidence in judicial proceedings in or before Courts in Nigeria. See the Long Title of the Evidence Act, 2011 which explains the general scope of the Act: BELLO vs. A-G OYO STATE (1986) LPELR (764) 1 at 71.
In FATOKI vs. THE STATE (supra) which was referred to by Oseji, JCA in ZHIYA vs. THE PEOPLE OF LAGOS STATE (supra), Ikyegh, JCA stated as follows:
?Section 9 (3) of the Law is thus a veritable tool in the administration of criminal justice. It will apply to voluntary confessions made by an accused as an adjunct to the relevant provisions of the Evidence Act.?
Ipso facto, it is my informed view that the requirements of Section 9 (3) of the Administration of Criminal Law will not by itself render inadmissible a confessional statement that was not recorded in accordance with its tenets. It can only form part of the snippets on the basis of which a Court can infer, alongside other established evidence, that a confessional statement was obtained by oppression or circumstances which may have rendered unreliable any confession. The point

I seem to labour to make is that the fact that Section 9 (3) of the Administration of Criminal Justice Law was not complied with can only afford inference in support of established proof of confession obtained by oppression or in circumstances that make the confession unreliable. In the words of Ikyegh, JCA, it is an adjunct. And I add, it is an accessory. A complement. A supplement. Something added to another thing but is not essential to it.
I shudder to think that it could be the intendment of the law that once there is no video recording of the making of a confessional statement and it was not made in the presence of a legal practitioner of the choice of an accused person, such a statement will be inadmissible. No. It cannot be! Compliance with the provision can only be a fact which with other proven facts can conduce to a finding that a confessional statement was obtained by oppression or in circumstances which make the confession unreliable.
?At the risk of prolixity, I iterate that non-compliance with Section 9 (3) of the Administration of Criminal Justice Law is a fact which when established in evidence can be taken and evaluated with

other pieces of evidence to ascertain if a confessional statement was obtained by oppression or circumstances that make the confession unreliable. It is important to emphasise and underscore that the mere waving of non-compliance with Section 9(3) of the Administration of Criminal Justice Law alone is not a talisman which will inexorably lead to a determination that the statement was not made voluntarily. It can only be a fact, which based on other proven facts, an inference can be drawn that the confessional statement was not made voluntarily. It is only an adjunct, an accessory, a supplement to complement other independent proof of oppression or circumstances that would make a confessional statement unreliable.
Let me elucidate further. Where for instance an accused person is taken outside the Police Station and is threatened, intimidated and cowed into confessing to a crime; his return to the Police Station thereafter to make a confessional statement which is video recorded with a legal practitioner of his choice present as required by Section 9 (3) of the Administration of Criminal Justice Law will not eo ipso be a conclusive determinant that the

making of the statement having been video recorded was voluntary. The converse equally holds true. Where a confessional statement was made voluntarily and the statement obtained without any oppression or existence of any circumstances which make the confession unreliable, but was not video recorded or made in the presence of a legal practitioner as required by Section 9 (3) of the Administration of Criminal Justice Law; that mere fact alone will not eo ipso render the statement inadmissible where there is no other evidence on which oppression or circumstances which render the confession unreliable exist.? I still hold firmly to the views reproduced above. The absence of video recording and the fact that the statement was not made in the presence of a legal practitioner of the choice of a defendant can only be pointers, which taken along with other established evidence, can result in the inference that the statement was not voluntarily made. See EMMANUEL vs. FRN (supra) [per Nimpar, JCA] and AWELLE vs. THE PEOPLE OF LAGOS STATE (2016) LPELR (43924) 1 at 32, where Abubakar, JCA took into consideration other evidence of circumstances surrounding the

recording of the statement to hold that the statement was inadmissible. Hear my Lord:
?The Appellant said he was beaten and compelled to sign the statement prepared by the police, and PW3 said he recorded the statement for him, in the presence of other police officers. The circumstances surrounding the recording of Appellants statement created doubt as to the veracity of the statement.?
In a coda, I am not allegiant to the view that once it is shown that the making of a confessional statement was not recorded by video then it is inadmissible, notwithstanding the lack of any other evidence establishing that the statement was not recorded as required by Section 29 of the Evidence Act. Indubitably, this issue number one must be resolved against the Appellant. The confessional statements, Exhibits 2(a) and 2(b) were rightly admitted in evidence by the lower Court.

ISSUE NUMBER TWO
Whether the lower Court rightly held that the offences charged were proved beyond reasonable doubt so as to warrant the conviction and sentence of the Appellant.

SUBMISSIONS OF THE APPELLANT?S COUNSEL
The Appellant submits that the

Prosecution did not discharge the burden of proving the offences charged beyond reasonable doubt. The case of AWOSIKA vs. THE STATE (2010) 9 NWLR (PT 1198) 149 and Section 135 of the Evidence Act, 2011 were referred to. It was stated that the effect of the constitutional presumption of innocence is that where a reasonable doubt is established, the conviction must be set aside and a verdict of discharge and acquittal returned vide ALONGE vs. IGP (1959) SCNLR 576, UGO vs. COP (1972) NSCC 631 and ANI vs. THE STATE (2009) LPELR ? 488 (SC) 14-15.

The ingredients of the offence of robbery were set out and it was opined that the ingredients were not proven beyond reasonable doubt. The cases of AWOSIKA vs. THE STATE (2009) LPELR 4913 CA, BOZIN vs. THE STATE (1985) 2 NWLR (PT 8) 465 and OSUAGWU vs. THE STATE (2016) LPELR 40836 (SC) were relied upon.

It was stated the complainant whose statement was admitted in evidence as Exhibit 1(a) and 1(b) did not testify and that the prosecution witnesses did not have any first-hand account of the act of robbery as a result of which there was no direct evidence with regard to the commission of the offence. The

evidence of the prosecution witnesses, it was maintained, was inadmissible hearsay vide ODOGWU vs. THE STATE (2009) LPELR – 8506 CA and contrary to Sections 126 and 38 of the Evidence Act, 2011. The complainant, it was asserted, was a vital witness who was not called and that failure to call her vitiated the case of the prosecution. The cases of OKON vs. THE STATE (2017) LPELR – 42639 (CA) and OGUDO vs. THE STATE (2011) LPELR 860 SC were cited in support.

The Appellant further contended that it was wrong for the lower Court to have relied on the statements of the complainant, who did not testify, as the statements were not tested under cross examination and therefore had no probative value in proof of the offences charged. The cases of AGBANIMU vs. FRN (2018) LPELR ? 43924 (CA) and PETER vs. THE STATE (2013) LPELR -20302 (CA) at 18 were called in aid. It was stated that though the lower Court held that it would be wrong to use the contents of the complainant?s statements to determine the mens rea or intention of the accused persons, it contradicted itself by using the said inadmissible statements to find the Appellant guilty.

It is the further submission of the Appellant that there is no credible evidence that he took part in any robbery and that the lower Court was wrong to have relied on the complainant?s statements and the alleged confessional statement as establishing that he was one of the robbers. It was opined that since the case of the Prosecution was that some people assisted the complainant in apprehending the Appellant, at least one of the said persons should have been called as a witness; and that the presumption is that the Prosecution having failed to bring any such witness means that their testimony would have been inimical to the case of the Prosecution. The case of OSHODIN vs. THE STATE (2002) 12 NWLR (PT 726) 217 at 234 and Section 167 (d) of the Evidence Act were referred to.

The Appellant posited that given the fact that the offence was said to have been committed at about 5.00 am, it would have been appropriate to have conducted an identification parade since the Appellant denied knowing the complainant and the complainant who claimed that she knew the Appellant did not mention his name in her statement. The case of NDIDI vs. THE STATE (2007) FWLR (PT 381)

1617 was relied upon. The Appellant contended that there were material contradictions in the case of the Prosecution as a result of which he was not fixed at the scene of the crime and the lower Court was therefore wrong to have convicted since it was not for the Court to pick and choose what to believe and what not to believe vide ONUBOGU vs. THE STATE (1974) 9 SC 1 at 17-21.

The Appellant further referred to the facts to be proven in order to establish the offence of conspiracy beyond reasonable doubt and that the same can be inferred from certain proven criminal acts done in pursuance of a common criminal purpose. The cases of IYARO vs. THE STATE (1998) 1 NWLR (PT 69) [sic] 256 and OYAKHIRE vs. THE STATE (2006) 15 NWLR (PT 1001) [no page stated] were cited in support. It was submitted that the lower Court was wrong to have convicted for conspiracy based on inference from conviction for the substantive offence without evaluating the evidence to ascertain if there was independent evidence establishing the charge of conspiracy. It was maintained that there was no credible evidence on record that the Appellant agreed with anybody to commit the offence of

conspiracy to commit robbery. The cases of UGBOGBO vs. THE STATE (2016) LPELR – 42225 (CA), ODUNEYE vs. THE STATE (2001) 13 WRN 88 and NOGHEGHASE vs. THE STATE (2017) LPELR 42650 CA were called in aid.

SUBMISSIONS OF THE RESPONDENT?S COUNSEL
The Respondent submits that the Prosecution has the burden of proving the offence charged beyond reasonable doubt, but that the burden of introducing evidence on an issue may be on the prosecution or defence. It was stated that upon the Prosecution discharging its burden, the burden shifts to the defence to show the slightest doubt in the prosecution case in consonance with the Evidence Act. The cases of SMART vs. THE STATE (2016) LPELR – 40827 (SC), THE STATE vs. DANJUMA (1997) 5 SCNJ 126, ESANGBEDO vs. THE STATE (1989) 4 NWLR (PT 113) 57 and WOOLMINGTON vs. DPP (1935) AC 462 were referred to.

The Respondent maintained that it proved the offences charged beyond reasonable doubt and that the testimony of the prosecution witnesses, the investigating police officers, was not hearsay evidence but direct evidence of what they did during investigation. The cases of OLAOYE vs. THE STATE (2018) LPELR – 43601

(SC) and OBOT vs. THE STATE (2014) LPELR – 23130 were relied upon. It was argued that a statement made by a person who is dead or cannot be found or has become incapable of giving evidence or whose attendance cannot be procured without an unreasonable amount of delay or expense is admissible and can be relied upon by the Court for being an exception to the hearsay rule. Sections 39 and 83 (1) (a) & (b) of the Evidence Act and the case of IJIOFOR vs. THE STATE (2001) 4 SC (PT II) at 7-8 were cited in support. The lower Court, it was opined, was right to have placed probative value on the statements of the deceased complainant, Exhibit 1(a) and 1(b), and using the same to corroborate the evidence of the Pw1 and Pw2 and the Appellant?s confessional statements, Exhibit 2(a) and 2(b).

It was asserted that a Court can convict on the evidence of one credible witness vide OGOALA vs. THE STATE (1991) 2 NWLR (PT 175) 509 at 533 and EFFIONG vs. THE STATE (1998) 8 NWLR (PT 512) 362 among other cases. The evidence of the prosecution witnesses, it was maintained, established the offences charged as corroborated by the Appellant?s statement which led to

the arrest of one of the two other persons he operated with showing that they acted with a common intention to commit the unlawful act of robbery. The cases of KAZA vs. THE STATE (2008) 2 NCC 374 at 425, YAKUBU vs. THE STATE (2014) LPELR – 22401 (SC), USUFU vs. THE STATE (2007) 3 NWLR (PT 1020) 94, THE STATE vs. YUSUF (2006) LPELR – 11802 (CA) and ODUNEYE vs. THE STATE (2001) 2 NWLR (PT 697) 311 were called in aid.

The ingredients of the offence of robbery were set out and it was submitted that the same had been established by credible evidence and proved beyond reasonable doubt. It was posited that the identity of the Appellant was never in doubt and so it was not necessary to have conducted an identification parade vide AGBOOLA vs. THE STATE (2013) LPELR 20652 (SC) at 27-28. The contradictions raised by the Appellant, it was argued, were not material and that they did not occasion a miscarriage of justice. The case of EBEINWE vs. THE STATE (2011) 7 NWLR 402 was referred to. It was conclusively submitted that an appellate Court will not disturb the findings of a trial Court unless they are perverse, not supported by credible evidence and has occasioned a

miscarriage of justice. The prosecution evidence, it was asserted, was credible and substantial. The case of OMISADE vs. THE STATE (1976) 11 SC 75 was relied upon.

APPELLANT?S REPLY ON LAW
The Appellant?s Reply Brief in respect of the issue under consideration was a resort to didacticism, pedantry and a re-argument of the points already canvassed in the Appellant?s Brief. Since this is not the function of a Reply Brief, it will be inutile to review the submissions therein.

RESOLUTION OF ISSUE NUMBER TWO
In the prolegomenon, I set out the salient facts of this matter as narrated to the Police by the complainant. Those facts were however never testified to and tested in Court as the complainant died before she could testify. Let me hasten to state that her death was said not to be connected with the alleged robbery incident. From her narrative to the Police, which was reduced into a written statement, some of her colleagues helped her apprehend the Appellant when she raised the alarm that the Appellant was one of those who robbed her. Unfortunately, none of these her colleagues testified, so there was no direct testimony

of how the robbery incident took place or how the Appellant was apprehended. The lower Court however admitted and acted upon the extra-judicial statement [Exhibit 1(a) and 1(b)] made to the Police by the complainant and relied on the same in holding that the offences charged were established beyond reasonable doubt. The two witnesses called by the Prosecution were the Investigating Police Officers, none of whom witnessed the commission of the crime, but only became involved after a report had been made to the Police and a transfer of the investigation from Ikotun Police Station (the local police station in the area where the robbery incident allegedly took place) where the report was made, to the Special Anti-Robbery Squad (SARS) which concluded the investigation and charged the matter to Court.

has the onus of proving the commission of the crime charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011. Proof beyond reasonable doubt does not mean that the prosecution must prove the case with mathematical exactitude: ADEBOYE vs. THE STATE (2011) LPELR (9091) 1. It does not mean proof beyond all shadow of doubt; so where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt. In the words of Oputa, JSC (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12 ? 13:
?Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible

and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: –
?The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence ? ?of course it is possible but not in the least probable? the case is proved beyond reasonable doubt.”
Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. More often than not in criminal trials the crux of the disceptation is not whether the offence was committed, but whether it was the accused person that committed the offence.
?
There are three ways or methods by which the Prosecution may prove the guilt

of an accused person. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and OLAOYE vs. THE STATE (supra) at 13.

mathematics. It is no derogation of evidence to say that it is circumstantial.?
See also ADIE vs. THE STATE (1980) 1-2 SC 116 and UKORAH vs. THE STATE (1977) 4 SC 167.
In order for circumstantial evidence to secure a conviction in a criminal trial, it must be cogent, complete and unequivocal. The evidence must be compelling, conclusive and strong and it must lead to the irresistible conclusion that the accused person and no one else must have committed the crime. Indeed the facts must be incompatible with innocence of the accused person and incapable of explanation upon any reasonable hypothesis other than that of his guilt: NWEKE vs. THE STATE (supra) at 18. We will interrogate in a trice whether the Prosecution was able to establish the guilt of the Appellant through any one of the three ways or methods and if the lower Court arrived at the correct decision when it held that the offences charged had been proved beyond reasonable doubt and consequently convicted the Appellant. It has to be borne in mind that the evidence which a Court is to act upon and ascribe probative value to is legally admissible credible evidence.

Let me start by eliminating the evidence of eyewitness as a means of proof. There was no eyewitness testimony of the commission of the offence. The parties have referred to the essential ingredients in an offence of robbery. The lower Court duly considered the said ingredients in its judgment. On the ingredient of whether there had been a robbery, the lower Court reasoned and held as follows at page 105 of the Records:
?In the instant case, the first hurdle to cross is whether there was a robbery incident as alleged on the morning of 24/05/13. I will to start with the strongest evidence put forward by the prosecution, which are the testimonies of the two investigating police officers PW1 and PW2. PW2, is the initial investigating officer from Ikotun police station. He was the first officer to investigate the case. He confirmed that the complainant came into the station to report that she had been assaulted and robbed of her handbag on the morning of 24/05/13 at the Ikotun bus stop by three assailants. That she was able to recognized [sic] one [of] her assailants sometime later that morning and she raised an alarm and other commuters came to her aid arrested and the

1st defendant. In similar vein PW2, the IPO from SARS who investigated the case further confirmed that the incident took place on the early hours of 24/05/13 at about 5.30 a.m. I have no reason to disbelieve the testimonies of the two investigating officers. The complainant?s statement to the police at Ikotun police station is before the Court as Exhibit 1(a). Thereon she narrated how she was assaulted and robbed by three young men in the early hours of morning of 24/05/13 as she stepped out of her house heading for the bus stop. Her statement on Exhibit 1(a) is consistent with narration she later made to the IPO at SARs Ikeja on 31/05/13, which is before the Court as Exhibits 1(b). In the light of the above, I am satisfied that the prosecution has crossed the first hurdle to establish that a robbery incident occurred in the early hours 24/05/13 at about 5.30 am on Abiola Close, Ogunnewu Street, Ile-Epo Bus stop, Idimu Road Lagos and I so hold.?

The above excerpt makes it abundantly clear that in holding that it was proved beyond reasonable doubt that there was a robbery, the lower Court relied on the evidence of the Pw1 and Pw2, the

investigating police officers, and the extra-judicial statement of the complainant who was not called as a witness. The evidence of the Pw1 and Pw2 which the lower Court relied upon in this regard was a restatement of what the complainant had told them happened. I iterate that the Pw1 and Pw2 did not witness the commission of the crime and what the complainant told them happened is neither what the witnesses saw, observed nor actually did. It is undoubtedly hearsay. It is rudimentary law the evidence of a police witness on what a prospective witness told him in the course of investigation is hearsay and inadmissible. The admissible evidence of a police witness is the evidence of what he saw, observed and actually did in the course of his investigation. See UGWUMBA vs. THE STATE (1993) 5 NWLR (PT 296) 660 at 668 or (1993) 6 SCNJ (PT II) 217 at 224-225 and EKPO vs. THE STATE (2001) 7 NWLR (PT 712) 292 at 304. The regurgitation by the Pw1 and Pw2 of what the complainant, who was not called as a witness, told them is hearsay as it is not direct oral testimony: OPOLO vs. THE STATE (1977) 11-12 SC (Reprint) 1 at 7 and IJIOFFOR vs. THE STATE (2001) LPELR (1465) 1 at

17-19. Hearsay evidence is inadmissible and does not command any probative value: UTTEH vs. THE STATE (1992) LPELR (6239) 1 at 11, AROGUNDADE vs. THE STATE (2009) LPELR (559) 1 at 23 and FRN vs. USMAN (2012) LPELR (7818) 1 at 19-20.

I turn to the extra-judicial statements of the complainant, Exhibit 1(a) and 1(b) which the lower Court accorded probative value even though the complainant was not called as a witness. The Respondent has argued that the said statements are admissible under Sections 39 and 83 (1) of the Evidence Act. It is pertinent to state that admissibility is one thing, while the weight to be accorded to the admitted evidence is an entirely different kettle of fish. The complainant was not called as a witness, so the story in Exhibit 1(a) and 1(b) were never tested under cross examination. The law is that the evidence in chief of a witness who is not produced for cross examination cannot be acted upon by the Court: ISIAKA vs. THE STATE (2011) ALL FWLR (PT 583) 1966. It is even more so where it is an extra judicial statement made by a person who was not called as a witness, and the circumstances in which the statement was made are not such

that the known exceptions like res gestae are applicable. The veracity of the contents of Exhibit 1(a) and (b) has not been proved since the complainant was not a witness in the matter. The statements cannot be used as proof of the truth of what it contains: ADISA vs. THE STATE (1964) LPELR (25197) 1 at 6-7, KASA vs. THE STATE (1994) LPELR (1671) 1 at 18, UGBOGBO vs. THE STATE (2016) LPELR (42225) 1 at 18-23 and AGBANIMU vs. FRN (supra). In the circumstances, there was no credible evidence adduced by the prosecution which established that there was a robbery incident and the lower Court was in error when it so held.
The lower Court equally found and held at page 106 of the Records that it was established that there was an intention to permanently deprive the complainant of the thing stolen. This finding was based on the same reasoning process and evidence [testimony of Pw1 & Pw2 and the extra-judicial statements, Exhibit 1(a) & 1(b)] which informed its holding that the evidence established that there was a robbery incident. Having already held that the evidence was not credible, I equally assert that it did not establish the intention to

permanently deprive the complainant of the stolen thing, since indeed it was not established by credible evidence that there was a robbery and that anything was stolen. In considering whether there was use of violence or threats of use of violence, the lower Court stated thus at pages 106-107 of the Records:
?The third element to establish is whether the act of dispossessing the complainant of her handbag was accompanied with the use of violence or threats of use of violence on the person of the complainant or on the property stolen. Although I do not have direct eyewitness testimony, as the alleged victim is alleged to have died shortly after the incident of 24/05/13. Nevertheless her statements to the police are before the Court as Exhibit 1(a) and (b). From a plethora of case law, it is trite that the written statement of a prosecution witness is only relevant when the witness testifies and proves adverse in the witness box. Then his earlier statement to the police may be used to discredit his testimony. In other words the statement of a witness to the police is not evidence and the sole use or consequence is that of discrediting the

testimony of the witness. See OLADIRAN vs. THE STATE (2014) LPELR-22091 (CA); ATTAH vs. THE STATE (2010) 10 NWLR [Pt. 1201] @ 190 and DANLADI MUSA vs. THE STATE (2013) LPELR-21866(CA). In the instant case, the complainant made statements to the police, as in Exhibits 1(a) and (b), she was however unable to testify. It would therefore be wrong to use the contents of her statement to the police to determine the mens rea or the intention of the accused persons and I so hold. I am so persuaded because every accused person has the constitutional right to confront his accusers in a Court of law.?
Now, having correctly restated the law on the probative value of Exhibit 1(a) and 1(b), the lower Court proceeded to consider the confessional statements said to have been volunteered by the Appellant, Exhibit 2(a) and 2(b) and whether it could convict based on the said confessional statement. It does appear to me as though the lower Court failed to advert its mind to the legal position it restated in the excerpt above, when it utilized Exhibit 1(a) and 1(b) in finding established that there was a robbery incident and that there was an intention to permanently

deprive the complainant of the thing stolen. Howbeit, it is to the confessional statements that we now turn our attention to since it is one of the ways or methods of establishing the guilt of an accused person.

It is settled law that there is no evidence stronger than a person?s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 at 221, USMAN vs. THE STATE (2011) 3 NWLR (PT 1233) 1 at 11 and OSENI vs. THE STATE (2012) 5 NWLR (PT 1293) 351 at 387. The free and voluntary confessional statement of an accused person alone is enough to sustain the conviction of an accused person where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth. See YESUFU vs. THE STATE (1976) 6 SC 167 at 173, IDOWU vs. THE STATE (2000) 7 SC (PT II) 50 at 62 ? 63, DIBIE vs. THE STATE (2007) 9 NWLR (PT 1038) 30 at 51 and 636, KAZA vs. THE STATE (2008) 7 NWLR (PT 1085) 125 at 166, 194 and 195, OSENI vs. THE STATE

(supra) at 374 and EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 385.

The statements, Exhibit 2 (a) & 2 (b) are confessional statements. The Appellant retracted the said statements; however, the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20, KAREEM vs. FRN (2001) 49 WRN 97 at 111, EHOT vs. THE STATE (1993) 5 SCNJ 65, EGBOGHONOME vs. THE STATE (supra) at 431 and OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement: HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93.
But a Court cannot act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in

numerous cases including IFEANYI vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192, NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2004) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJSC 168 at 188 ? 189 and ALARAPE vs. THE STATE (supra) to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether:
1. There is anything outside the confession to show that it is true.
2. It is corroborated.
3. The facts stated in the confession are true as far as can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person?s confession is possible.
6. The confession is consistent with the other facts ascertained and proved.
The lower Court at page 108 of the Records duly referred to the test for determining the veracity of a confessional statement that is retracted and the legal requirement to seek other evidence be it slight of circumstances which

make it probable that the confession is true. However, rather than seek other evidence which makes the confession probably true, the lower Court resorted to and relied on the confession itself in accepting the veracity of the confessional statement. That is wrong. It is not what the law stipulates should be done. Hear the lower Court at pages 108-109 of the Records:
?It also needs to be pointed out that the Court may still convict on a retracted confessional statement. See: SOLOMON AKPAN vs. THE STATE (1992) NWLR [Pt. 248] COLMAN MOMOH vs. THE STATE (2015) LPELR-2541(CA); BATURE vs. STATE (1994) 1 NWLR (Pt. 320) @ 267. As stated by Iguh, JSC in ALARAPE vs. STATE (2001) 5 NWLR [Pt.705] @ 79
?The test for determining the veracity or otherwise of a confessional statement is to seek any other evidence, be it slight of circumstances, which make it probable that the confession is true.?
In the instant case, 1st defendant made statements to the police both at Ikotun police station and SARS Ikeja. On his cautioned statement to the police at Ikotun police station which is tendered as Exhibit 2(a) he not only puts himself at the locus

criminis, he thereon confirms that he had an encounter with the complainant on the morning of 24/05/13, the day of the incident, he also mentions that two boys who are known to him snatched the complainant?s bag from her. On his Exhibit 2(a) made to the police at Ikotun he states in part as follows: …
His cautioned statement to the police at SARS as shown on Exhibit 2(b) is similar in content to what he said to the police at Ikotun. He however added that it was Ebuka who threatened the complainant with a gun. And it was Ebuka and 2nd defendant who ran way with the bag. He also stated unequivocally that he was in company of the Tosin Kadri, the 2nd defendant herein and one Ebuka at the material time of the incident.?
Doubtless, there was no credible evidence, no matter how slight, on which the veracity of the confessional statement could be determined. The testimony of the Pw1 and Pw2 is hearsay, Exhibit 1(a) and 1(b) have no probative value and there were no material exhibits recovered from the alleged robbery. I therefore make bold to hold that the confessional statements, Exhibits 2(a) and 2(b) were not such on the basis of which the

Prosecution could have proved the guilt of the Appellant and the lower Court was wrong to have so held.

Now, even though the circumstantial evidence on record is not based on evidence that can be accorded probative value, the circumstantial evidence is that the Appellant was said to have been apprehended at the scene of crime. The Appellant was apprehended at a public place where the complainant had gone to board her public staff bus. The Appellant was said to have been apprehended with the help of the colleagues of the complainant. In this aspect, there was a total failure of investigation as the investigation police officers did nothing about getting any of the potential witness who allegedly assisted in apprehending the Appellant. They seemed content to regurgitate what they had heard from the complainant and no more. In the absence of any credible evidence, I do not find the circumstantial evidence compelling. It is definitely not such that proves the proposition which it seeks to establish with the accuracy of mathematics: FATOYINBO vs. A-G WESTERN NIGERIA (supra) and AIGBADION vs. THE STATE (supra).?
From the totality of the foregoing, it is

effulgent that the offence of robbery charged was not proved beyond reasonable doubt. The Appellant was entitled to the full benefit of the doubt. See OMOPUPA vs. THE STATE (2007) LPELR (8571) 1 at 45.

I turn to the charge of conspiracy to commit robbery for which the Appellant was equally convicted. Now, conspiracy is a separate and distinct offence independent of the actual offence conspired to commit. Generally, therefore since it is separate and distinct, the failure to prove a substantive offence would not make a conviction for conspiracy inappropriate. See BALOGUN vs. A-G OGUN STATE (2002) 2 SC (PT II) 89 or (2002) 2 SCNJ 196, ADOBA vs. THE STATE (2018) LPELR (44065) 1 at 16-17, OSETOLA vs. THE STATE (2012) LPELR (9348) 1 at 27-28 and KAYODE vs. THE STATE (2016) LPELR (40028) 1 (SC).
It has been held that the proper approach in considering an information containing conspiracy charge and substantive charges is to deal with the charges for the substantive offence first and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy: OSETOLA vs. THE STATE (supra). This is so because the

proof of the offence of conspiracy is generally a matter of inference and where the substantive offence is established it can then be inferred that there was a conspiracy. See ODUNEYE vs. THE STATE (2001) 13 WRN 88, SHODIYA vs. THE STATE (2013) LPELR (20717) 1 at 19, ERIM vs. THE STATE (1994) 5 NWLR (PT 346) 522 at 538 and BOUWOR vs. THE STATE (2016) LPELR (26034) 1 at 17. This was the approach adopted by the lower Court. At page 103 of the Records the lower Court, inter alia, stated:
?It cannot also be overemphasized, that the proper approach to an indictment containing a conspiracy charge and substantive offences as in the instant case, is to deal with the substantive charge first and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy. See: ODUNEYE vs. THE STATE (supra) and SEGUN BELLO VS. AG OGUN STATE (supra).?
The lower Court then proceeded to consider the substantive offence of robbery and having held that the same was established beyond reasonable doubt used the same to infer proof of the conspiracy charge. Hear the lower Court at page 112 of the Records:<br< p=””

</br<

?Having come to the conclusion that the substantive charge has been clearly established by credible and cogent evidence, the prosecution having also established that the 1st and 2nd defendants herein including a 3rd person still at large were the ones who accosted, threatened and dispossessed the complainant of her hand bag, I am satisfied that the circumstances clearly demonstrates that the defendants acted in concerted [sic] towards a common purpose and I so hold. I therefore have no hesitation in arriving that the prosecution has proved the conspiracy charge beyond reasonable doubt and I so hold.? It is lucent that there was no independent evidence adduced by the Prosecution in proof of the conspiracy charge. It is on the basis of the same evidence in respect of the substantive offence of robbery that the offence of conspiracy to commit robbery is to be inferred. In ABIOYE vs. THE STATE (1987) 2 NWLR (PT 58) 645 at 653-654, Akpata, JCA (as he then was) stated:
?…it is a general principle of law that an accused person cannot be convicted of conspiracy where he has been acquitted of committing the substantive offence …

I will like to state that it is not in every case that an accused person who has been acquitted in respect of the substantive offence must be acquitted of the offence of conspiracy…
It is not in dispute that there was no direct evidence of acts of conspiracy against the appellants. Admittedly more often than not it does not require direct evidence to establish conspiracy. The appellants were however acquitted of the charge of stealing… The offence of conspiracy cannot therefore be deduced from either of the alleged substantive offences which were not proved. In the circumstances, such as this it requires very strong evidence, if not direct evidence, which will leave no one in doubt that the appellants indeed conspired …?
The decision in ABIOYE vs. THE STATE (supra) was followed and applied by the apex Court per Onu, JSC in AMADI vs. THE STATE (1993) 3 NWLR (PT 314) 644 at 677. At the risk of prolixity, let me restate that there was no independent direct evidence of acts of conspiracy against the Appellant. It was based on the same evidence on which the lower Court convicted for robbery that it inferred and convicted for conspiracy to commit

robbery. In such circumstances, if the conviction for the substantive offence is set aside on appeal, the conviction for the conspiracy charge will equally be set aside: NJOVENS vs. THE STATE (1973) 5 SC 17, AMACHREE vs. NIGERIAN ARMY (2003) 3 NWLR (PT 807) 256 at 281, USUFU vs. THE STATE (2006) LPELR (11790) 1 at 33-35, ENAHORO vs. THE STATE (1969) NSCC 98, OSENI vs. THE STATE (2017) LPELR (42546) 1 at 60-61, IDOWU vs. THE STATE (2011) LPELR (3597) 1 at 83-84 and BALOGUN vs. THE STATE (2018) LPELR (44215) 1 at 4-5. In TEMITOPE vs. THE STATE (2010) LPELR (37521) 1 at 24, Iyizoba, JCA, stated the legal position in pungent terms as follows:
?The law is that where the prosecution did not lead evidence on conspiracy but relies on the commission of the substantive offence to infer conspiracy, the conviction for the conspiracy charge will fail if the conviction for the substantive offence is set aside on appeal… It is consequently advisable for the prosecution in cases such as this, to lead evidence of conspiracy separately so that if a conviction and sentence is secured in respect of that count, it could be saved in the event that the substantive

charge suffers the same fate as the instant appeal.?
See also FRN vs. USMAN (2018) LPELR (43894) 1 at 23-24 and LATEEF vs. FRN (2010) LPELR (9144) 1 at 22-23.
The Appellant?s appeal having succeeded in respect of the substantive offence of robbery, the concomitance is that the conviction for conspiracy to commit robbery cannot stand since there is no independent evidence in proof of conspiracy.

In conflation, the offences charged were not proved beyond reasonable doubt to warrant the conviction of the Appellant and the sentence imposed on him. This issue number two is therefore resolved in favour of the Appellant.?
The resolution of issue number two in favour of the Appellant signposts the success of this appeal. The Prosecution having failed to prove the offences charged beyond reasonable doubt, the Appellant is entitled to be discharged and acquitted. In wrapping up this judgment, it is important to state that the deceased complainant, indeed may have been robbed and her belongings stolen; but was the Appellant the perpetrator? The evidence did not establish that and it will be offending the law if the conviction of the

Appellant is allowed to stand when the doubt in the case ought to be resolved in his favour. The law is firmly settled that it is better for nine guilty persons to escape than for one innocent person to be made to suffer. Put differently, it is better to acquit nine guilty men than to convict one innocent man: UKORAH vs. THE STATE (supra) at 177, OLAKAIBE vs. THE STATE (1990) 1 NWLR (PT 129) 632 at 644, SHEHU vs. THE STATE (2010) LPELR (3041) 1 at 10, OMORUYI vs. THE STATE (2016) LPELR (40133) 1 at 60 and MUSA vs. THE STATE OF LAGOS (2018) LPELR (46037) 1 at 29.

In a summation, the appeal is meritorious and it is hereby allowed. The decision of the lower Court delivered on 6th June, 2018 embodying the conviction of the Appellant and the sentence imposed on him is hereby set aside. A verdict of discharge and acquittal is hereby returned in respect of the two count charge preferred against the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just

delivered by my learned brother UGOCHUKWU ANTHONY OGAWU, JCA. I adopt the judgment as mine with nothing useful to add.

Appearances:

Kelechi Obi, Esq. with him, Ms. C. Anyanwu, Ms. T. Oyeleke & Ms. E. OnuohaFor Appellant(s)

Dr. Babajide Martins (Director, Ministry of Justice, Lagos State) with him, Gbenga Alagbe, Esq. (Senior State Counsel)For Respondent(s)

Appearances

Kelechi Obi, Esq. with him, Ms. C. Anyanwu, Ms. T. Oyeleke & Ms. E. OnuohaFor Appellant

AND

Dr. Babajide Martins (Director, Ministry of Justice, Lagos State) with him, Gbenga Alagbe, Esq. (Senior State Counsel)For Respondent

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