SUNDAY OSHIM v. THE STATE (2014)

SUNDAY OSHIM v. THE STATE

(2014)LCN/7233(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 27th day of May, 2014

CA/C/308C/2013

RATIO

CONDITIONS FOR A CONFESSIONAL STATEMENT TO SUPPORT A CONVICTION

“…the highest place of authenticity when it comes to proving beyond reasonable doubt.”

See: Mustapha Mohammed vs. State (2007) 11 NWLR (PT 1045) 303. See also: Dawa vs. State (1980) 8-11 SC 236; Osung vs. State (2012) 6-7 MJSC (PT 11) 1; Galadinma vs. State (2012) 12 MJSC (PT 111) 190; Fatai vs. State (2013) 2-3 MJSC (PT 1) 145. per ONYEKACHI A. OTISI, J.C.A.

WHETHER A DENIED CONFESSIONAL STATEMENT IS ADMISSIBLE IN EVIDENCE

Where a confessional statement is retracted or its making denied, the trial court is expected to admit it in evidence as an exhibit and in its judgment, decide whether or not such denial, avails the accused person. See: Kanu v. R. (supra) at 32; Dawa vs. The State (1980) 8-11 S.C. 236 at 267-268; Mills vs. The State (1985) 3 NWLR (Pt. 11) 190. But, where it is alleged that a confessional statement was not voluntarily made, the considerations are different. per ONYEKACHI A. OTISI, J.C.A

WHETHER A CONFESSIONAL STATEMENT MADE UNDER DURESS IS ADMISSIBLE

Where an accused person admits making a confessional statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial is conducted in order to determine whether the statement was voluntary or made by duress or otherwise. At the conclusion of the trial within trial, if the trial Judge is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the court. See: Auta v. The State (1975) 4 S.C. 123; Gbadamosi & Ors v. The State (1992) 9 NWLR (Pt. 266) 465 at 480, (1992) 11-12 SCNJ, 1268; Effiong v. The State (1998) 5 SCNJ, 158 at 166; (1998) 8 NWLR (Pt. 562) 3621; Madjemu vs. State (2001) 4 MJSC 113. Therefore once an objection is raised on the involuntariness of an alleged confessional statement, the trial court ought to conduct a trial within trial. per ONYEKACHI A. OTISI, J.C.A

WHETHER A CONFESSIONAL STATEMENT IS A MATTER OF FACT NOT LAW

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

SUNDAY OSHIM Appellant(s)

AND

THE STATE Respondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Cross River State High Court, Ogoja Judicial Division delivered on 20th January, 2012 in which the Appellant was convicted of the offence of armed robbery and sentenced to death.

The facts leading to this appeal, in summary, are as follows: The Appellant is alleged to have, on 27th July, 2008, while masked and armed with a locally made revolver pistol, .9mm live ammunition; a knife; and, an axe, robbed one Peter Okpini of Hilary Pharmacy Store of a Nokia telephone handset. The Appellant is also alleged to have used the axe to inflict severe bodily injuries on two of the occupants of Hilary pharmacy before he was overpowered and arrested. He was subsequently charged and tried for the offence of armed robbery contrary to Sections 1(2)(a) and (c) of the Robbery and Firearms (Special Provisions) Act CAP R11, Laws of the Federation of Nigeria, 2004.

The Appellant denied the charge. His account is that he was a staff of Hilary pharmacy but he did not enjoy a cordial relationship with PW2 and PW5. This followed a report the Appellant made to the Director over fraudulent activities in Hilary Pharmacy Store by PW2, with the connivance of PW5. His report to the Director, had resulted in PW2 being suspended from duties. The Appellant alleged that on the 27th July, 2008, there was a fight in Hilary Pharmacy store between himself and PW2. In the course of the fight, PW2 injured him with an axe belonging to PW2 and he, the Appellant, broke a bottle of lucozade boost and stabbed the PW2 on the head in retaliation. He said that PW4 also got stabbed when he came to separate them from fighting. The Appellant said that PW5 came out at that point and invited the police whom he, PW5, instructed to take the Appellant away.

At the trial, the prosecution called five witnesses and tendered 12 exhibits; while the Appellant testified for himself, tendered one exhibit and also called a witness, DW2. At the conclusion of the trial, the learned trial Judge convicted the Appellant of the offence of armed robbery and sentenced him to death. Aggrieved by his conviction and sentence, the Appellant filed this appeal.

In the Appellant’s Amended Notice and Grounds of Appeal filed on 21/10/2013, eight grounds of appeal have been raised. The Appellant’s Brief of Argument was settled by Godwin Omoaka, Esq. on 21/10/2013. The Respondent’s Brief was settled by Peter Sunday Bisong, Esq., Director, Public Prosecution, Ministry of Justice, Cross River State, on 10/12/2013. The Appellant’s Brief and the Respondent’s Brief were adopted by Counsel for the respective parties on 1/4/2014.

From the eight Grounds of Appeal, the Appellant distilled four issues for determination as follows:
(a) Were Exhibits 9 and 13 the confessional statements allegedly volunteered by the Appellant, executed by the Appellant given that there are, at the very least, three materially conflicting signatures on both documents? (“Non Execution of Exhibits 9 and 13 issue”) Ground 1.
(b) Was the learned trial Judge right to have admitted Exhibit 9 in evidence and relied on same in finding the Appellant guilty when the unchallenged evidence of the Appellant was that he did not make Exhibit 9 voluntarily. (“Trial-within-trial issue”) Ground 2.
(c) In view of the fact that Exhibit 13 was not served on the Appellant alongside the information, was it right for the learned trial judge to have relied on Exhibit 13 in convicting the Appellant? (“Inadmissibility of Exhibit 13 issue”) Ground 3.
(d) Did the prosecution prove its case beyond reasonable doubt against the Appellant? (“Proof beyond reasonable doubt issue”) Grounds 4, 5, 6, 7 and 8.

For the Respondent, two issues were raised for determination as follows:
a. Whether the learned trial judge was right in relying and acting upon the confessional statement of the appellant (Exhibits 9 and 13) in convicting the appellant.
b. Whether from the totality of the evidence adduced at the trial, the lower court is right in holding that the prosecution had proved its case beyond reasonable doubt as required by law.

The issues raised by the parties are in content the same. The issues raised by the Appellant are more comprehensive in determining his complaint in this appeal; and subsume the issues raised by the Respondent. Issues 1, 2, and 3 raised by the Appellant and Issue No 1 of the Respondent shall be considered together. Issue No 4 raised by the Appellant and Issue No 2 raised by the Respondent shall be considered together. I shall consider these issues, as indicated, as Issue No 1 and Issue No 2.

Issue No 1.
It is submitted for the Appellant that both Exhibits 9 and 13 are confessional statements, which were admitted in evidence through the IPO who testified as PW1, were allegedly volunteered by the Appellant to the police before his arraignment and subsequent trial. Exhibit 13 is the first confessional statement made by the Appellant, allegedly made either on the 27 July, 2008 or 28 July, 2008 as it had two conflicting dates, Exhibit 9 is the second confessional statement, dated 06 August, 2008, said to have been purportedly volunteered by the Appellant. It is submitted that a close scrutiny of the Appellant’s signature on both documents reveals telling differences. That it is apparent from both documents that the Appellant could not have signed both Exhibit 9 and Exhibit 13, both signatures being absolutely not the same. It is submitted that there are at least three different signatures on Exhibit 13 alone; which are all ascribed to the Appellant. It is submitted that the signatures on Exhibit 9 are also different. That given the marked discrepancies in the signatures, the Appellant’s conviction on the strength of Exhibits 9 and 13 is unsafe because the trial court ought not to have attached any weight to the said exhibits; and that these discrepancies create reasonable doubts as to whether either or both documents were actually executed by the Appellant. The Court is urged, pursuant to Section 16 of the Court of Appeal Act (as amended) and Section 101 of the Evidence Act, 2011 (as amended) to compare the signatures on both Exhibits 9 and 13; relying on Daniel – Kalio v. Daniel Kalio (2005) 4 NWLR (PT 915) 305 at 323; Akalonu v. Omokaro (2003) 8 NWLR (PT 821) 190.

It is submitted that where doubt exists in the mind of the Judge as to the guilt of an accused person, such doubt is, as a matter of law, resolved in favour of the accused; relying on Bassey Akpan Archibong v. State (2006) 14 NWLR (PT 1000) 349 at 374; Shande v. State (2005) 12 NWLR (PT 939) 301. The Court is urged to resolve the doubt in favour of the Appellant by holding that neither Exhibit 9 nor Exhibit 13; or both of them, were signed by the Appellant. It is further submitted that the discrepancies in the Exhibits 9 and 13 make them spurious, unreliable and therefore of no use; relying on Obasuyi v. Business Ventures Ltd (2000) 5 NWLR (PT 658) 668.

While testifying in chief, the Appellant stated at page 42 of the Record regarding Exhibit 9 as follows:
“After 10 (ten) days IPO took me to State CID at Calabar. Another IPO took over. After three days, I was asked to make a statement, I told him I had made my statement at Ogoja. He said if I did not make another statement to him he will kill me. He told me that many people like me have come to State CID… He started beating me and I signed the statement. I was in Calabar for two months and seven days before I was returned to Ogoja”. (Emphasis supplied).

It is submitted that from the above excerpts, the Appellant admitted to making a statement on the third day after he was transferred to Calabar. But that Exhibit 9 is dated 06 August, 2008, the same day the Appellant was taken from Ogoja to Calabar. That the Appellant’s evidence that he made a statement to the police on the third day after his transfer to Calabar, which was not challenged under cross examination or at all, should be accepted by this Honourable Court as true and correct; relying on Agbo v. State (2006) 6 NWLR (PT 977) 545 at 566, 570. That if the Appellant made a statement three days after he was transferred to Calabar, that statement could not be Exhibit 9.

PW1 had stated at page 13 of the Record that:
“This is the statement accused person made to the police. I took the statement before a SUPOL for confirmation since it was confessional in nature and that was done”.

It is submitted that there is nothing on Exhibit 9 to support the above evidence given by PW1 as there is no such endorsement on the body of the document. It is contended that the evidence of PW1 is misleading, pejorative and raises serious doubt about the credibility of PW1 and the veracity of his testimony. That the evidence of a witness who lies on oath is not to be believed; relying on Agbo v. State (supra); Asuquo Williams v. State (1975) 9-11 SC 139; Oladejo v. State (1987) 3 NWLR (PT 61) 419 at 427-428. On the whole, the Court is urged to believe that Exhibit 9 is not the statement the Appellant said he made three days after he was taken to Calabar. And regarding the discrepancies in the signature on Exhibit 9, it is submitted that the conclusion ought to be that Exhibit 9 was not signed by the Appellant.

On Exhibit 13, it is submitted that regardless of the Appellant’s admission that he made Exhibit 13, this Court should not accord any probative value to Exhibit 13 because: by Section 93 of the Evidence Act, if a document is alleged to have been signed or written wholly or in part by any person, the signature or handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. That although the Appellant admitted making Exhibit 13, there are at least three different signatures on Exhibit 13; none of which was proved to be that of the Appellant. And, the prosecution gave no explanation for the divergent signatures that are on Exhibit 13. It is also submitted that an admission is not always conclusive against the party who makes it. The circumstances under which the admission was made will be considered; relying on N.B.C.I. v. L.N.G. Ltd (2005) 9 W.R.N 1.

It is conceded that objection was not raised by Counsel that represented the Appellant at the trial as to the admissibility of Exhibit 9, on the ground that it was not voluntarily made. The Appellant in evidence in chief had stated that the said statement was not voluntarily made. It is submitted that the trial court ought to have allowed the Appellant to raise the issue of involuntariness of Exhibit 9 at any time during the trial but before address. Reliance was placed on Eke vs. State (2011) 3 NWLR (PT 1235) 589 at 603, Adekanbi vs. Attorney General of Western Nigeria (1966) ALL NLR 47; among other cases. It is submitted that since the trial court had failed to consider the voluntariness of Exhibit 9, it was not a document which the trial court could have acted upon.

It is submitted that all defences raised by an accused person must be considered by the court, no matter how slight, weak, or fanciful it is; relying on Audu vs. State (2003) 7 NWLR (PT 820) 516, Williams vs. I.G.P. (1965) NMLR 470, among other cases. It is also submitted that any defence to which an accused person, on the record, is entitled to must be considered, relying on Oguntolu vs. State (1996) 2 NWLR (PT 432) 503; Oforlete vs. State (2000) 12 NWLR (PT 681) 415 at 429-430. It is submitted that by holding that the Appellant could no longer raise the issue of involuntariness of Exhibit 9 at the stage of his defence, the lower court completely shut out a key defence of the Appellant to the offence of armed robbery. That the failure of the learned trial Judge to conduct a trial within trial vitiates the entire proceedings, relying on Eke vs. State (supra), Emeka vs. State (2001) 14 NWLR (PT 734) 666 at 681; Obidiozo vs. State (1987) 4 NWLR (Pt 67) 48.

Exhibit 13 is the first extra judicial confessional statement made by the Appellant to the police at Ogoja. Exhibit 13 was not attached to the information and was not served on the Appellant. Exhibit 13 was however tendered and admitted without objection. The Appellant admitted he made the statement. The trial Judge found that:
“In the instant case, I see that Exhibit 13 was not attached to the information and was not otherwise served on the accused person before it was tendered and admitted without objection. However, the accused person said he made the statement. I believe that the requirement of prior service of the document can be waived by an accused person…Non objection by the accused person when such document is tendered signified his waiver of the requirement of service prior to tendering, I so find and hold”

It is submitted for the Appellant that the fact that the Appellant did not object to its admissibility did not derogate from the fact that the document was written by one PC Ihezuo Ibe, the IPO at Ogoja, as stated by the Appellant at page 41 of the Record. The said PC Ihezuo Ibe was not called as witness and Exhibit 13 was not tendered through him. It is submitted that the proper person to tender a document is the maker of the document; and that if any other person tendered the document; the court should not attach probative value to the document. It is submitted, relying on Iniama vs. Akpabi (2008) 17 NWLR (PT 1116) 225 at 300, Lambert vs. Nigerian Navy (2006) 7 NWLR (PT 980) 514 at 547, among other cases, that failure to call PC Ihezuo Ibe to give evidence about the contents of Exhibit 13 and how it was made, rendered it impotent. Learned counsel referred to the evidence on the fact that the Appellant had little education and submitted that a crucial question was whether the Appellant could identify with all certainty that Exhibit 13, with three different signatures, was the statement he volunteered to the police. It is submitted that the trial court ought not to have ascribed much probative value to Exhibit 13.

For the Respondent, it is submitted that an offence committed by an accused person is proved by the prosecution in either of three ways:
a) Direct evidence of eye witness or victims of the offense.
b) Confessional statements of the accused admitting comprehensively that he committed the offence.
c) Circumstantial evidence which points irresistibly that the accused committed the crime alleged against him.

Reliance is placed on: Igabele vs. The State (2006) 5 MJSC 96 at 100; Mustapha Mohammed vs. State (2007) 30 NSCQR 304 at 379 – 380.
That in the instant case, the learned trial judge based his findings of the guilt of the Appellant on direct oral evidence of eye witnesses and on the confessional statements of the Appellant, Exhibits 9 and 13, made to the police. Learned Counsel referred to the evidence of PW1, Cp1. Anthony Idoko, who testified that after the case of armed robbery was transferred from Ogoja Division together with the Appellant and some exhibits, he was detailed to investigate the matter. He rearrested, charged and cautioned the Appellant who volunteered a confessional statement, Exhibit 9 PW1 took the statement before a superior police officer for confirmation. He further testified that he, together with a team of detectives visited the scene of crime with the Appellant and other witnesses where the Appellant demonstrated to them how he gained entrance into the shop.

Exhibit 13 was received in evidence through the Appellant during cross examination. Exhibit 9 and 13 were received in evidence without any objection as to its admissibility from the defence, and after the statements were shown to the Appellant who identified and confirmed that he made the statements.

It is submitted that the Supreme Court in the case of Ogudo vs. State (2011) 12 MJSC (Pt 11) 108 at 113 enunciated the fundamentals of a valid confessional statement of an accused person:
a) The cautionary words must be written and signed.
b) The body of the statement written by the accused person or someone usually the police officer on the accused person’s directives giving detailed confession which will show clearly that he committed the offence for which he is charged.
c) The statement must be endorsed by a superior police officer and signed by the accused person.

That flowing from the above fundamentals, it would not be unusual to have more than one signature on the confessional statements, Exhibits 9 and 13, of the Appellant. It is submitted that for the confessional statement of the appellant to be validly admitted in evidence, it must contain the signature of the officer who administered the cautionary words, the signature of the accused and the signature of the superior officer who endorsed the statement. That this fact explains the presence of three signatures or more than one signature on Exhibits 9 and 13. There was no indication whatsoever from the Appellant that he did not sign the statement when it was shown to him at the trial and before it was received in evidence.

It is further submitted, relying on Solomon Adekunle vs. State (2006) 14 NWLR (Pt 1000) 717 at 742-743 that it is the duty of counsel to promptly take objection to any perceived irregularity relating to procedure or charge. That having failed to raise any objection, it can be inferred that the signatures appearing on Exhibits 9 and 13 are those of the Appellant and other persons’ signatures as required by law.

On the contention of the Appellant that Exhibit 9 was wrongly admitted in evidence same having not been voluntarily made by the Appellant, it is submitted that the appropriate time for an accused to raise an objection on grounds of voluntariness of a confessional statement, is at the earliest opportunity given to the accused person to do so, which is at the time where the prosecution seeks to tender the statement, at the time it is shown to him; relying on Ogudo vs. State (Supra) 114; Abena Stephen vs. State (citation not supplied); Odeh vs. Federal Republic of Nigeria (2008) ALL FWLR (Pt. 424) 1590.

It is submitted that at the tendering of Exhibit 9, the voluntariness of the statement was never disputed. It was admitted without any objection after it was shown to the Appellant. It is submitted that the need for a trial within trial does not arise in this case given that the issue of voluntariness of the confessional statement of the Appellant, Exhibit 9, was raised for the first time during his testimony in chief. It is submitted that the claim of involuntariness of Exhibit 9 during the testimony of the Appellant was an afterthought and belated and could not sway the court to disregard the confessional statements of the Appellant; relying on Oseni vs. State (2012) 492 NSCQR 1190 at 1196; Ogudo vs. State (supra) at 114; Mustapha Mohammed vs. State (2007) 2 NCC 574 at 576, among other cases.

On the contention that Exhibit 13 was not regularly received in evidence, having not been served on the Appellant alongside the information, it is submitted that the Appellant while testifying in chief denied that he made Exhibit 9, but said that he made a statement at Ogoja, which he described as his true statement in this case. The prosecution then showed him the statement made at Ogoja, which he identified as the same statement made at Ogoja. The said statement was admitted in evidence without objection from the Appellant or his Counsel. The trial Judge also considered and made findings on the admissibility of Exhibit 13. It is submitted that an Appellant who acquiesced to an irregular procedure at his trial cannot complain about the irregularity on appeal if it does not lead to a miscarriage of justice; relying on Uwaekweghinya vs. State (2005) 9 NWLR (PT) 227 at 233. It is submitted that the Appellant has not shown how he has been prejudiced by the admission of Exhibit 13; and, that an objection to its admissibility is belated.

On the issue of Exhibit 13 being received in evidence through the Appellant, it is submitted that the prosecution is not obligated to call every available witness in proof of her case if the charge can otherwise be proved; relying on Ijioffor vs. State (2006) 5 LRCNCC 315 at 318. It is further submitted that Exhibit 13 was not made by PC Ihezuo Ibe. But that PC. Ihezuo Ibe was merely an instrument through which the Appellant made Exhibit 13.

It is submitted that Exhibits 9 and 13 were confessional statements upon which the trial court could convict the Appellant, relying on Sule vs. State (2009) 7 LRCNCC 1. That having failed to object to the admissibility of these statements at the trial, the Appellant cannot do so on appeal, relying on Oseni vs. State (supra), among other cases. The Court is finally urged to resolve this issue against the Appellant.

The law is quite clear and settled on the point that for a confessional statement to attract and support a conviction, it must be proved to be free, voluntary, unambiguous, true, direct and positive to ground a conviction. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying:
“…the highest place of authenticity when it comes to proving beyond reasonable doubt.”
See: Mustapha Mohammed vs. State (2007) 11 NWLR (PT 1045) 303. See also: Dawa vs. State (1980) 8-11 SC 236; Osung vs. State (2012) 6-7 MJSC (PT 11) 1; Galadinma vs. State (2012) 12 MJSC (PT 111) 190; Fatai vs. State (2013) 2-3 MJSC (PT 1) 145.

Learned Counsel for the Appellant submitted that since the trial court had failed to consider the voluntariness of Exhibit 9, it was not a document which the trial court could have acted upon. He contended that objection to the admissibility of an alleged confessional statement can be raised and, subsequently, a trial within trial ordered at any time before final addresses by counsel. That the trial court ought to have allowed the Appellant to raise the issue of involuntariness of Exhibit 9 at any time during the trial but before address. Reliance was placed on Eke vs. State (2011) 3 NWLR (PT 1235) 589 at 603, Adekanbi vs. Attorney General of Western Nigeria (1966) ALL NLR 47; among other cases.

The implication of this submission is that even after the confessional statement has been admitted as evidence without objection, as in this case, the accused person may, as if roused from unfathomable slumber, suddenly object to the statement that has already been admitted in evidence with his assent.

In Eke vs. State (supra), relied upon by the Appellant, the Supreme Court held that the procedural step of ordering a trial within trial must be taken at the point when the objection is raised. The Supreme Court, per Fabiyi, JSC said:
“It is now settled, as pronounced by this court in Nwamgbomu v. The State (supra) at page 395 per Wali, JSC, that when admissibility of a statement is challenged on the ground that it was not made voluntarily, it is incumbent on the judge to call upon the prosecutor to establish that it was voluntarily made by conducting a trial-within-trial. Such a procedural step must be taken at the point when the objection is raised. See: R.V. Francis and Murphy (1959) 43 Cr. App R. 174; R. v. Onokaro 7 WACA 146, Ogoalo v. The State (1991) 2 NWLR (Pt. 175) 509, Joshua Adekanbi v. Attorney-General Western Nigeria (1966) 1 All NLR 47; Paul Ashake v. The State (1968) 2 All NLR 198 and Auta v. The State (1975) NNLR 60 at 65.” (emphasis mine)
Similarly, the point of proceedings at which a trial within trial ought to be ordered was made clear by the Supreme Court in Okaroh vs. State (1990) 1 S.C. 169, per Nnaemeka Agu, JSC:
“… it is always for the learned counsel for the defence, in a case like this in which an accused person is defended by counsel, to raise an objection to the statement being tendered, on the ground that the statement was not voluntary, e.g. allege facts amounting to duress, before a mini-trial becomes necessary. See: The Queen v. Igwe (1960) 5 FSC 55, (1960) SCNLR 158, also Uche Obidiozo & 2 Ors. v. The State (1987) 4 NWLR (Part 67) 748.”
In Adekanbi vs. A.G., Western State (supra), also relied upon by the Appellant, the prosecution applied to put an alleged confessional statement in evidence during cross examination. Objection was taken at the point the confessional statement was sought to be tendered on the ground that the statement was not proved to have been made voluntarily.

Exhibit 9 in issue herein was tendered in evidence through PW1 who was the IPO, CPL Anthony Idoko of the State Police Headquarters, Calabar. He said:
“This is a statement accused person made to the Police. I recorded the statement. I took the statement before a SUPOL for confirmation since it was confessional in nature and that was done. Seeks to tender.
ENAMHE: No objection.
Court: EXHIBIT 9”

E.M.E. Enamhe, Esq. was Counsel for the Appellant at the trial court on the material date. See page 18 of the Record of Appeal. The said confessional statement was admitted in evidence without objection at the point it was tendered.

The Appellant was arrested in the night of 27/7/2008 by the police. During examination in chief at page 28 of the Record of Appeal, the Appellant said:
“Police took me to Police Station. The next day I was asked to make a statement. I told the IPO what the problem between me and PWs 2 & 5 was and he took it down. I returned to the cell…
After 10 (ten) days IPO took me to State CID at Calabar. Another IPO took over. After three days I was asked to make a statement. I told him I had made my statement at Ogoja. He said if I did not make another statement to him he will kill me. He told me many people like me have come to State CID and have not returned. I made a statement at State CID. IPO brought out a gun and knife to kill me. He started beating me and I signed the statement…
The IPO at Calabar was not writing what I told him. He was writing his own which he later forced me to sign.

Under cross-examination at page 29 of the Record of Appeal, the Appellant as DW1 said:
“I met the IPO at Calabar for the first time in my life the day I was taken by Ogoja Police to State CID, Calabar. He is not from my village. He did not write the statement in my presence.”

See page 29 of the Record of Appeal. At page 30 of the Record of Appeal, he further said:
“I was beaten up and (sic) State Cid (sic), Calabar. The IPO beat me with a matchet on my back and threatened to shoot me with a gun. There is no scar on my back but there is a scar on the finger on my left hand.
COURT: I have seen a finger on accused’s left hand which has a scar.”

I find the Appellant’s account contradictory. First, he admitted he made a statement at the State CID but under coercion, and that “the IPO at Calabar was not writing what I told him”; but he was compelled to sign it. And then he said under cross examination that the statement was not made in his presence. This was the Appellant’s very belated denial of a statement already admitted in evidence, in his presence and without objection.

In Okaroh vs. State (supra), the Supreme Court per Nnaemeka Agu, JSC, continued thus:
“Where as here, counsel failed to play his part and the statement was admitted, he cannot properly raise the absence of a mini trial on appeal. See Dawa v. The State (1980) 8-11 S.C. 236. In the instant case, on my above conclusions that the statement, exh. A, was duly tendered and admitted in evidence, marked and read in open court in the presence of the appellant and his counsel who not only did not raise any objection to its admissibility but also later addressed on it, there can be no question of a trial within trial.”
It was the responsibility of learned Counsel for the Appellant to have raised objection, if any, at the point of tendering the confessional statement, Exhibit 9. In my considered view, the denial of the statement during evidence in chief by the Appellant is an afterthought. The learned trial Judge was right to have discountenanced his denial.
Under cross examination at page 30, the Appellant said:
“The statement I made at Ogoja is my true statement to the Police”
He was then shown the statement he made at Ogoja, which he admitted he signed. Again, the said statement was admitted without objection by the defence Counsel. The said statement is Exhibit 13.
The said Exhibit 13 was not part of the information served on the Appellant. When the Appellant however identified the statement and his signature thereon, it was admitted in evidence, without any objection by the defence Counsel. It then became part of evidence before the trial court for its consideration. See: The State vs. Ogbubunjo (2001) 2 MJSC 145, (2001) 1 S.C. (PART I) 90; Ozaki vs. State (1990) 1 NWLR (Pt. 124) 92.

As contended by the Appellant, this procedure is quite irregular. The purpose of serving the proof of evidence on an accused person is to acquaint him with the evidence against him and enable him adequately prepare his defence. He should not be taken by surprise. However, in the circumstance of this appeal, there was no element of surprise involved. The Appellant volunteered the evidence that his statement made at Ogoja was his true statement. He never said he was compelled or coerced to make the statement. The said statement was shown to him and he identified his signature thereon. It was then admitted without objection.

It is settled that if a procedure adopted in a trial court is consented to by a party, he cannot complain or be heard to complain afterwards or on appeal, that the procedure was irregular. See: Basil Akpan vs. State (2008) 4-5 S. C. (PT. II) 1, per Ogbuagu, JSC. See also Akhiwa v. Principal Lotteries Officer, Mid-West State (1972) 1 All NLR 229. In the case of Okaroh vs. State (supra), the Supreme Court, per Nnaemeka Agu, JSC said:
“I believe it to be the correct principle that such an irregularity in procedure in a criminal proceeding will not result in an appeal being allowed unless the appellate court is satisfied that a miscarriage of justice has been occasioned.”
In Okaroh vs. State (supra), the Supreme Court, per Nnaemeka Agu, JSC, considered relevant cases in which this principle was considered: Akpan v. The State (1967) NMLR 185; R. v. Lee Kun (1916)11 Cr. App. R. 293; R. v. Banks (1916) 12 Cr. App. R. 74; Orosunlemi v. The State (1967) NMLR 278; R. v. Essien (1939) 5 WACA 70; and concluded thus:
“On a calm view of all these cases and others decided on the above provisos, one conclusion appears to me to be inevitable. It is that a convicted appellant is not permitted to hang upon a mere irregularity in procedure to gain an acquittal unless he can show that such had led to a substantial miscarriage of justice. In other words, criminal justice in our courts is a matter of substance and not one that can be achieved by striking around for any tenuous twig of irregularity or technicality.”

In my view, the learned trial Judge aptly put it thus:
“I believe that the requirement of prior service of the document can be waived by an accused person. What for instance if the document contained material favourable to the accused person, should a Court not allow it go in. Non objection by the accused person when such document is tendered signified his waiver of the requirement of service prior to tendering, I so find and hold.”

In my considered opinion, no miscarriage of justice to the Appellant in this circumstance has been shown.

DW1 had said under cross examination that he schooled at St Stephen Primary School, Wanibolo. His brother DW2, said in evidence in chief that the Appellant completed Primary School education. The Appellant was therefore not completely unlettered. I am of the firm view that the submissions of learned Counsel for the Appellant on the little education of the Appellant preventing him from properly identifying his own signature on Exhibit 13 are purely speculative.

In Amala vs. State (2004) 11 MJSC 147, the Supreme Court per Ejinwunmi, JSC said:
“It is settled law that the extra-judicial statements made by a prisoner are admissible in evidence at the trial of the prisoner, and if it is evident that they were made voluntarily by the prisoner, such evidence become admissible against him.”
The trial court therefore was entitled to accept and act on it.
Issue No 1 is therefore resolved against the Appellant.

ISSUE NO 2
The essential ingredients of armed robbery are that:
1. There was a robbery
2. The robbery was armed robbery
3. The accused person took part in the robbery.
Bozin vs. State (1985) 2 NWLR (PT 8) 465; State vs. Salawu (2011) 8 NWLR (PT 1279) 580; Bello vs. State (2007) 10 NWLR (PT 1043) 564. The prosecution is enjoined to prove these ingredients beyond reasonable doubt. It is contended that the Respondent failed to prove these ingredients beyond reasonable doubt.

The Appellant was charged with robbing one Peter Okpini (PW5) of a Nokia handset (Exhibit 7). The learned trial Judge held as follows:
“…I find and hold that there was a robbery at Hilary Pharmacy at No. 13 Mission Road, Igoli, Ogoja as charged…I hereby find and hold that the accuse person was the robber and that he stole Exhibit 7 from Hilary Pharmacy on the night”.

But, the evidence showed that PW5 was not at the scene of the alleged robbery at the material time, and could not have been robbed by the Appellant. PW5 was in his room at the material time of the alleged robbery. PW5 was only notified of the presence of the Appellant and he assisted in apprehending the Appellant. It is submitted that the finding of the trial Judge was not in accordance with the offence for which he was charged. It is further submitted that the learned trial Judge had relied on the hearsay evidence of the IPO, PW1, who was not at the scene of the incident. The case file was transferred to him about 10 days after the incident occurred. It is also submitted that a review of the evidence of the prosecution witnesses will reveal deep material inconsistencies in their evidence as to whether it was the Appellant who stole Exhibit 7 on the night of the alleged robbery incident. It is submitted that these substantial contradictions ought to have created doubt in the mind of the court, which ought to have been resolved in favour of the Appellant; relying on Ogoala vs. State (1999) 2 NWLR (PT 175) 509.

The learned trial Judge at page 72 of the Record of Appeal said:
“In the absence of any explanation coming from the accused person I hereby find and hold that the accused person was the robber and that he stole Exhibit 7 from Hilary Pharmacy on the night.”

It is submitted that the burden of proving the Appellant stole the Nokia handset lay on the prosecution. But that the trial Judge had shifted the burden on the Appellant to prove that he did not steal the handset. Reliance was placed on Idemudia vs. State (1999) 7 NWLR (PT 610) 202; Aigbadion vs. State (2000) 7 NWLR (PT 666) 686; Nwosu vs. State (1998) 8 NWLR (PT 56) 433.

It is submitted that the doubts created by the evidence of the prosecution witnesses as to whether Exhibit 7 was stolen by the Appellant that night ought to be resolved in his favour; relying on Bassey Akpan Archibong v. State (supra); Shande v. State (supra) Shekete vs. N.A.F. (2000) 15 NWLR (PT 692) 868 at 880-881.

The learned trial Judge had also relied on the contents of Exhibits 9 and 13. It is submitted, assuming without conceding that Exhibits 9 and 13 were legally admissible, it was desirable to have, outside an accused person’s confession to the police, some evidence, no matter how slight, which make it probable that the confession is true; relying on Paul Onochie & Ors vs. The Republic (1966) NMLR 307; R. vs. Kanu 14 WACA 30; among other cases. It is submitted that there is no evidence outside Exhibits 9 and 13 which are confirmatory of its contents.

It is submitted that the learned trial Judge completely ignored the evidence of the Appellant that on the night of 27 July, 2008, a fight ensued between him and PW2 as a result of a dispute over sleeping position. The Appellant had testified at page 41 of the Record of Appeal the genesis of his troubles with both PW2 and PW5. Although this evidence was not challenged under cross examination, the learned trial Judge did not accept and act on it. The trial Judge also did not give consideration to the evidence that the Appellant was still a staff of Hilary Pharmacy and therefore had a right to be there that night.

It is submitted the Respondent had failed to prove beyond reasonable doubt that there was a robbery.

On the second ingredient, the learned trial Judge had found as follows at page 64 of the Record:
“I therefore find and hold that the robber who robbed Hilary Pharmacy as per the charge was armed with Exhibits 1, 2, 3 and 4.”

Exhibit 1 is a locally made revolver pistol; Exhibit 2 is a small axe; Exhibit 3 is .9mm live ammunition; while Exhibit 4 is a dagger. It is submitted that from the apparent conflict between the extra judicial statements and the evidence of PW2, PW3, PW4 and PW5, it was doubtful whether the Appellant was armed at the time of the alleged robbery. It is submitted that the Court is entitled to examine these extra judicial statements, which were not tendered in court at trial but which are part of the information. That the court is entitled to look at documents in its file while writing its judgment or ruling, despite the fact that the document is not tendered and admitted in evidence; relying on Agbo vs. State (supra); Agabisi vs. Ebikerefe (1997) 4 NWLR (PT 502) 630; Agbahomovo vs. Eduyegbe (1999) 3 NWLR (PT 594) 170.

It is submitted that in none of these extra judicial statements made so soon after the incident did PW2, PW3, PW4 and PW5 state that the Appellant was armed with a knife, sword, dagger or had a torchlight on him, or that a black bag containing a dagger was found on the Appellant. Rather that they stated that the Appellant was armed with a gun and an axe. But that in their testimonies in the trial court about 2 years later was different, contradicting their earlier statements. It is submitted the evidence of PW2, PW3, PW4 and PW5 is unreliable and ought to be discarded by the trial Judge.

On whether the Appellant actually took part in the robbery, it is submitted that the trial Judge relied on Exhibits 9 and 13; and on the inconsistent evidence of PW2, PW3, PW4 and PW5 as corroboration for Exhibits 9 and 13. The trial Judge also failed to consider the evidence of the Appellant. It is submitted that this occasioned a miscarriage of justice as the Appellant did not take part in the alleged robbery.
The Court is urged to allow the appeal.

In reply, learned Counsel for the Respondent relied on Exhibits 9 and 13, as well as the evidence of PW2, PW3 and PW4 to submit that there was a robbery at Hilary Pharmacy and that the Appellant, by his confession had gone there with the sole purpose to rob. The Court is urged not to disturb the findings of the trial court on this issue.

It is further submitted that the evidence of the IPO PW1, could not be dismissed as mere hearsay. That PW1 had given evidence of firsthand information gathered from those directly involved and from what he perceived to be true from the investigation carried out by him. That the evidence is cogent, compelling and rightly considered by the learned trial Judge in convicting the Appellant for armed robbery.

It is submitted that in armed robbery once something capable of being stolen is taken by the accused person, proof of ownership of the thing is not material; relying on Ebeinwe vs. State (2011) 1 MJSC (PT 1) 27 at 29. That the eye witnesses, PWs 2, 3 and 4 testified that the stolen Nokia phone belonged to PW5 and was recovered from the Appellant at the point of apprehension. On the issue of contradictions or inconsistencies in their evidence, it is submitted that there are not material, relying on Salawa vs. State (2011) 7 MJSC 95 at 100; Ikemson vs. State (1989) 1 FWLR 1 at 25. It is submitted that the Appellant, who was apprehended at the scene of crime, was the robber.

On the submissions of the Appellant regarding his account of he being involved in a fight, his issues with PW2 and PW5, and that he is still working in Hilary Pharmacy, it is submitted, in line with the findings of the trial court, that the Appellant had ample opportunity to have stated this fact on Exhibit 13, which was made the day after the incident. Rather the Appellant had said in Exhibit 13 that he had been dismissed from Hilary Pharmacy. It is submitted that where an accused person has made an extra judicial statement which is inconsistent with his testimony in court, the court cannot rely on the previous statement and his evidence is unreliable; relying on Ogudo vs. State (2011) 12 MJSC (PT 1) 108 at 112.

The Court is finally urged to uphold the findings of the learned trial Judge; and to hold that the prosecution successfully proved the guilt of the Appellant.

Exhibits 9 and 13 were transmitted to this Court along with other exhibits tendered before the trial court. At this stage, it is important to examine the contents of the two exhibits, against the charge the Appellant was facing. The Appellant was charged as follows:

STATEMENT OF OFFENCE
ARMED ROBBERY contrary to Sections 1(2)(a) and (c) of the Robbery and Firearms (Special Provisions) Act CAP R11, Laws of the Federation of Nigeria, 2004.

PARTICULARS OF OFFENCE
SUNDAY OSHIM on the 27th day of July, 2008 at Hilary Pharmacy Store, No. 13 Mission Road, Igoli-Ogoja in Ogoja Judicial Division while armed with offensive weapons to wit: one locally made revolver pistol, one .9mm live ammunition, one knife and an axe did robbed (sic) one Peter Okpini of a Nokia handset.

A confession, properly so called, should confess to the offence for which the Appellant is charged. Section 28 of the Evidence Act, 2011 defines a ‘confession’ thus:
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.
The emphasis is on the words “that crime.”

What constitutes a confessional statement is always a matter of fact; and not a matter of law. A confessional statement must be clear, precise and unequivocal. In considering whether a statement qualifies as a confessional statement, a trial Judge must examine the totality of the statement. A confessional statement should be direct and positive; and, should relate to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged; see: Solomon Thomas Akpan vs. State (1992) 7 SCNJ 22, per Karibi Whyte, JSC. See also: Yusuf vs. State (1976) 6 SC 167; Yaro v. State (2007) 12 MJSC 57; Haruna vs. Attorney General of Federation (2012) LPELR-7821(SC); Igiri vs. State (2012) 6-7 MJSC (PT 111) 107 at 128-129.
Accordingly, where the explicit facts of the statement do not unequivocally satisfy the requirements of a confessional statement, a trial Judge will be in error in admitting such a statement as a confessional statement. It could however, if it has no other defects, be admitted as an ordinary statement and be relied upon as a basis for conviction; see Gbadamosi vs. State (1992) 11/12 SCNJ 268, per Omo, JSC. It follows that once an accused person makes a statement under caution, admitting the charge or creating the impression that he committed the offence with which he is charged, the statement becomes confessional.

An examination of Exhibits 9 and 13 will however reveal that these statements are not confessional of the offence for which the Appellant was charged. The Appellant was charged with robbing Peter Okpini, PW5, of a Nokia handset, while armed with one locally made revolver pistol, one .9mm live ammunition, one knife and an axe. In Exhibit 9, the Appellant admitted he entered Hilary Pharmacy with a gun and an axe. He stated thus:
“I left the village with a black bag containing that pistol that I bought with one small axe to Ogoja to rob (one) my master’s shop where I was before…I did not succeed to steal anything. I did not steal handset…”

In Exhibit 13, he stated
“While (sic) I decide to buy this gun is that since my Oga Hilary did not settle me after serving him for good three 3 years I am going to robb (sic) him… ”

The Appellant entered Hilary Pharmacy Shop stealthily, armed with offensive weapons, and, demanded for the key to the sales cash drawer from the shop staff. In struggle with the staff, he injured PW3 and PW4 before he was overpowered by them.

Clearly, taking into consideration the facts stated, neither Exhibits 9 nor 13 qualifies as a statement confessional of the offence for which the Appellant was charged. The Appellant admitted he went to Hilary Pharmacy armed with offensive weapons; and, with the intention of robbing the store of money. But, in none of these statements did the Appellant admit or confess to the commission of the offence for which he was charged. Indeed, Exhibit 9 unequivocally denies commission of the offence for which the Appellant was charged. Exhibits 9 and 13 were therefore wrongly admitted by the learned trial Judge as statements confessional of the charge which the Appellant faced.

In Gbadamosi vs. State (supra), the Supreme Court, per Omo, JSC said:
“…a statement wrongly admitted as a confessional statement can, if it has no other defects, be admitted as an ordinary statement and be relied upon as such, as a basis for conviction.”

In this circumstance therefore, Exhibits 9 and 13 will not be regarded as confessional statements made by the Appellant; but, as statements made by him, which have been admitted in evidence as such.

It is rightly submitted that the essential ingredients of armed robbery are that:
1. There was a robbery
2. The robbery was armed robbery
3. The accused person took part in the robbery.
See: Bozin vs. State (1985) 2 NWLR (pt 8) 465; State vs. Salawu (2011) 8 NWLR (PT 1279) 580; Bello vs. State (2007) 10 NWLR (pt 1043) 564; Bolanle vs. State (2005) 11 NLR (pt 936); Attah v. State (2010) CLR 3(t) (SC) 3(PT IV) MJSC 139; Afolabi v. State (2013) 6-7 MJSC (PT 1) 1. The prosecution has a duty to prove these ingredients beyond reasonable doubt.

The pieces of evidence which need to be before the court to establish the offence of armed robbery can be grouped into three:
1. Direct evidence of an eye witness;
2. Circumstantial evidence; and
3. A confessional statement. See: Onyenye vs. State (2012) LPELR-7866 (SC).

In Tanko v. State (2009) 1-2 MJSC 209, the Supreme Court, per Aderemi, JSC said:
“It has been decided through judicial authorities that the foundation of the offence of armed robbery is the existence of a clear act that amounts to stealing i.e. to convert to one’s use or the use of any other person anything other than immovable property with any of the following intents:
(a) An intent permanently to deprive the owner of the thing of it.
(b) An intent permanently to deprive any person who has a special property in the thing of such property.
(c) An intent to use the thing as a pledge or security.
(d) An intent to part with the thing on a condition as to its return which the person taking or converting it may be unable to perform.
(e) An intent to deal with the thing in such a manner that it cannot be returned in the condition in which it was at the time of taking or conversion.
(f) In the case of money, an intent to use it at the will of the person who takes or converts it.
In effect, armed robbery means simply stealing plus violence, used or threatened. See Aruna v. The State (1990) 6 NWLR (Pt.155) 125.”
Therefore before there can be a robbery, something must have been stolen. See: FRN VS. Usman (2012) LPELR-7818 (SC); Bassey vs. State (2012) LPELR-7813 (SC).

The item alleged to have been violently stolen from Peter Okpini, PW5, by the Appellant as charged, is a Nokia phone. The evidence submitted by the prosecution in proof of this allegation is as follows:
PW1, the IPO, said at page 16 – 17 of the Record of Appeal:
“The Complainant in his statement said on 27/7/2008 at about mid night he was alerted by one of his boys, Simon Ferdinand that an armed robber was in their Pharmacy Shop. When the complainant got to the shop he saw two other of his boys Simon Odo and Ulaga Gabriel struggling with the armed robber in the Pharmacy shop. The Complainant joined them and they overpowered the armed robber…
The robber had stolen a Nokia telephone handset belonging to the Pharmacy before he was caught.”

From this investigation account, the Complainant, Peter Okpini, came on the scene after the Appellant was engaged by two of the shop staff. They wrestled the Appellant down.

PW2 said in evidence in chief at page 21 of the Record of Appeal:
“In the cause (sic) of the struggle with Simon the gun and the axe dropped from the accused’s hand.
Simon told me to go and call our Manager which I ran and did…
Before then we had lost our office telephone which we recovered from the body of the accused person that night…The name of our manager is Peter Okpini.”

From this account, the Appellant was already disarmed before Peter Okpini was called out. And, the telephone set was already missing before the robbery.

PW3 in evidence in chief at page 25 of the Record of Appeal said:
“After we caught accused person we searched him and recovered the office phone that was on a table Exhibit 7 is the phone.”
From his account, the telephone was the office telephone that was on a table.

PW4 in evidence in chief at page 29:
“By the time our Manager came we had pinned accused person to the floor. We unmasked him…Accused could not gain access to the drawer because we did not give him the key but accused took a telephone handset from our shop.
Exhibit 7 is the handset”

Under cross examination at page 31 he said:
“By the time the Manager came we had held accused person and he was on the floor. The Manager called the Police.”

Still under cross examination at page 36, he said:
“I don’t know when accused stole the phone (Exhibit 7)… I cannot remember when the Manager discovered that Exhibit 7 was missing.”

From this account, the Appellant was already overpowered before Peter Okpini came on the scene.

PW5 at page 37 said in evidence in chief:
“I met the robber armed with a gun, a knife and an axe…I discovered accused had stolen my GSM telephone handset and recovered it from him.”

Under cross examination at page 37 he said:
“I did not say accused was holding gun, knife and axe in his hands…
I discovered that my phone which I left in the shop was stolen that same day. It was after I was woken up and I went the shop.”

From this account, PW5, the complainant, first said he met the Appellant armed, then said under cross examination that he did not. Then he said he discovered his phone had been stolen after he was woken up and he went to the shop.

These somewhat muddled accounts all point in one direction: The Appellant was already disarmed when the complainant PW5 came on the scene. The Appellant had no offensive weapons in his custody when PW5 arrived on the scene. He had already been disarmed. Therefore the complainant was not attacked by the Appellant with offensive weapons at all.

A crucial question is whether the Appellant did actually steal the Nokia handset? PW2 had said in evidence at page 21 of the Record of Appeal:
“Before then we had lost our office telephone which we recovered from the body of the accused person that night”

The words “Before then” create the impression that the office telephone was missing before the incident that night. Under cross examination at page 22, he now said:
“Accused was holding Exhibits 1, 2, and 7 in his hands. Accused took the office phone immediately he entered the shop. There was no light. Accused came with his own torch light”

At page 23 of the Record of Appeal, the cross examination of PW2 continued thus:
“The room was dark. Accused was holding a lit torch light. I was behind the counter very afraid…I was hiding behind the show case. The show case can hide me completely.”

In other words, according to PW2, the Appellant had, presumably, in his two hands, an axe (Exhibit 1); the gun (Exhibit 2); the telephone (Exhibit 7) and his torchlight (Exhibit 5).

PW3 said in evidence in chief at page 25:
“Accused had a gun, an axe and a dagger and a torchlight… After we caught accused person we searched him and recovered the office phone that was on a table Exhibit 7 is the phone.”

Under cross examination at page 26, PW3 said:
“The gun was in accused’s left hand Torch was in accused’s left hand. Dagger was in accused (sic) right hand. Axe was in accused’s right hand.”

PW4 testified at page 28, 29:
“accused pointed a pistol, an axe and a sword at PW2…Accused could not gain access to the drawer because we did not give him the key but accused took a telephone handset from our shop.”

Under cross examination at page 30, 33, 35, 36 he said:
“Accused had an axe, pistol. He used the axe to cut me…Accused was holding the gun in his right hand. Accused was holding the axe with his two hands. He was also holding the knife…I cannot tell which hand accused held the bag because I was lying face down…Accused recovered a key from Odo Simon. I don’t know which hand he used to search Odo Simon. I don’t know how he was holding the weapons during his search of Odo Simon…Accused pointed the gun at Odo Simon first. I don’t know when he pointed the gun at Odo Simon because it was dark…The lantern in the shop was put out the moment accused person entered the shop…I cannot remember when the Manager discovered that Exhibit 7 was missing”

I frankly do not quite know what to make of all these pieces of evidence. Was the room dark? Was the Appellant seen taking the Nokia phone?
Did he drop any of the weapons he was allegedly carrying to pick up the Nokia phone? This is important since he has only two hands, which from the evidence, was already incredibly full. Was the phone discovered on the body of the Appellant or was it missing before the incident and found on the night of the incident?

PW5 also does not seem to know exactly when his (or the office) telephone went missing. Neither do the other witnesses. None of the prosecution witnesses categorically saw the Appellant take the telephone. The Appellant, from evidence proffered, did not violently rob PW5 of the Nokia telephone handset, which is the offence for which he was charged. From these accounts, it cannot be certain that the Appellant stole the Nokia handset at all.

The Appellant confessed to going to the shop, armed with offensive weapons. But he denied stealing the telephone set. The prosecution is required to prove that he did dispossess the complainant violently of the said handset as charged. From the evidence proffered before the trial court, they failed to do so.

The learned trial Judge said at page 13-14 of the Record of Appeal:
“I believe the story given by the prosecution in this regard because along with Exhibit 7, items the accused person said on Exhibits 9 & 13, particularly on Exhibit 13, that he carried with him for the robbery were recovered from the accused person. In the absence of any explanation coming from the accused person I hereby find and hold that the accused person was the robber and that he stole Exhibit 7 from Hillary pharmacy on the night.”

Mr. Omoaka for the Appellant has rightly submitted that this conclusion is neither at all in accord with the charge the Appellant was facing; nor in accord with the position of the law in criminal trials. The Appellant was charged with robbing Peter Okpini with offensive weapons. Not with robbing Hilary Pharmacy Store. In all criminal prosecutions, except in cases of negative averment, the onus is always on the prosecution to prove its case beyond reasonable doubt, in accordance with the offence with which the accused person is charged. This burden on the prosecution never shifts. This is an established principle in all criminal cases. The prosecution must establish the guilt of the accused beyond reasonable doubt upon the established evidence before the trial Court. See: Esangbedo vs. The State (1989) 4 NWLR (Pt. 113) 57; Duru v. State (1993) CLR 3(f) (SC); Idowu v. State (2000) 12 NWLR (PT 680) 48; Ubani v. State (2003) 1 MJSC 90; Amala vs. State (2004) 6-7 S.C. 105.
An accused person cannot be punished for failing to proffer an explanation for an allegation, which by no means has been proved. The Appellant confessed that he went to Hilary Pharmacy Store intent upon robbing the place. But he did not succeed as he was overpowered by the brave young staff of the Pharmacy Store. He was however charged with robbing Peter Okpini, the Store Manager, of a Nokia handset, while armed with offensive weapons. Certainly this was not proved.

There are questions and doubts raised by the muddled and somewhat garbled evidence of the PW2, PW3, PW4, and PW5. These pieces of evidence create doubts as to whether the Appellant did actually steal any Nokia Phone from Hilary Pharmacy Shop. These questions which have been raised remain unanswered.

These inconsistencies and gaps in the evidence of the prosecution witnesses are so material that the case for prosecution is not without doubt. The proper role of the court in a criminal trial is to evaluate all the evidence before it and be sure that the case for prosecution has been proved beyond reasonable doubt. But, if there is doubt, whether based on material contradictions or lack of sufficient evidence, the benefit of that doubt must be given to the accused person. See: Ibeh vs. State (1997) 1 NWLR (Pt. 484) 632; Awopejo vs. State (2001) 18 NWLR (PT. 745) 430. The Appellant is entitled to benefit from the doubt created as to whether or not he actually stole the Nokia handset from Hilary Pharmacy during his attempt to rob the shop.

The prosecution, from the evidence submitted in proof, clearly failed to prove the charge against the Appellant beyond reasonable doubt.
Issue 2 is thus resolved in favour of the Appellant.

It is noteworthy however that the Appellant actually confessed to attempted robbery. This was not the charge he faced at the lower court; nor the conviction he was given at the lower court, which judgment is on appeal.

In the case of Henry Odeh vs. Federal Republic of Nigeria (supra), also reported in (2008) 3-4 S. C. 147, one of the issues considered by the Supreme Court was:
Whether the learned Justices of the Court of Appeal were right in law when they convicted and sentenced the appellant to 15 years imprisonment after setting aside his conviction by the trial Court (Tribunal) in Count One of the charge
The Supreme Court, per D. Musdapher, JSC (as he then was), said:
“It is the law that an appellate court can convict and impose a sentence on an appellant for lesser offence than that for which he was convicted by the trial court if from the circumstances of the case, the latter conviction should have been the proper one. See Akwule v. The Queen (1963)1 ALL NLR 193; Bande v. The State (1972) 10 SC 79; Adebayo v. The Republic (1967) NMLR 391.
Where an accused person is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence regardless of the fact that he was not charged with that particular offence. See Onogwu v. The State (1995) 6 NWLR (Pt 401) 276. In the case of Ogu v. The Queen (1963) NSCC 191 at 192 this court substituted a conviction of the appellant for culpable homicide punishable with death contrary to Section 221 of the Penal Code Law with that of screening an offender punishable under Section 167 of the same Penal Code Law. It is now settled law that an appellate court such as the Supreme Court or the Court of Appeal may where an appellant has been charged and convicted for an offence and the court that tried could on the information or charge have found him guilty of some other offence, and on the finding of the lower court, it appears to the appellate court that the lower court must have been satisfied of the fact which proved him guilty of that other offence, the appellate court may instead of allowing or dismissing the appeal, substitute for the verdict found by such court, a verdict of guilty of such other offence and pass the sentence in substitution for the offence passed at the trial as may be warranted in law. It is also settled law that an appellate court in determining an appeal before it possesses all the powers of the Court of trial. See Section 16 of the Court of Appeal Act. The mere fact that an appellate court exercised its statutory power to substitute a conviction of one offence for the other under Section 179 of the Criminal Procedure Act does not ipso facto breach the appellant’s rights to fair hearing nor does it occasion any miscarriage of justice… A trial court and an appeal court both have power under Section 179 (1) of the Criminal Procedure Act to substitute a conviction for a lesser offence on a charge for an offence containing several particulars where only such particulars as made up of the lesser offence were proved. See Queen v. Nwaugoagwu (1962) 1 ALL NLR 294, Shoshimo v. State (1974) 10 SC 91, Onasile v. Sami (1962) 1 ALL NLR 272. Wilson v. Queen (1959) 4 FSC 175.”
See also: Oladipupo v. State (1993) 6 NWLR (pt 298) 14; Udoh v. State (1993) 5 NWLR (Part 295) page 556 at 560.

Section 179 (1) and (2) of the Criminal Procedure Act, 2004 provides as follows:
179. (1) In addition to the provisions hereinbefore specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.
By the provisions of Section 179 of the Criminal Procedure Act, the conviction of an accused for a lesser offence proved need not be based on any existing charge to that effect. It however presupposes that an accused person could have been validly convicted and sentenced by the court for a lesser offence even though he was not charged with that offence. By virtue of the provisions of Section 15 of the Court of Appeal Act, 2004, this Court is empowered to exercise all the powers of the trial court in that regard.

It is well settled that an accused person can be convicted on his confessional statement alone. He may also be convicted where the confession is consistent with other ascertained facts, which had been proved. See: Ikemson v. State (1993) I ACLR 80 at 85; Idowu vs. State (2000) 7 S.C. (PT 11) 50.

The Appellant in Exhibits 9 and 13 had confessed to attempted robbery. He went to Hilary Pharmacy Store on the material night, armed with offensive weapons, with the sole purpose of robbing the Store. The evidence of PW2, PW3, PW4, and PW5; as well as Exhibit 1 (gun), Exhibit 2 (axe), and Exhibit 3 (dagger), all corroborate his confession. I therefore find the Appellant guilty of attempted robbery.

Section 2 (1) and (2) of the Robbery and Firearms (Special Provisions) Act provides as follows:
2.
(1) Any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault, uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction under this Act be sentenced to imprisonment for not less than fourteen years but not more than twenty years.
(2) If-
(a) any offender mentioned in subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any other person so armed; or
(b) at or immediately before or immediately after the time of the assault the said offender wounds or uses any other personal violence to any person, the offender shall upon conviction under this Act be sentenced to imprisonment for life.

The Appellant was about 22 years old at the time of this incident. I believe he may have acted out of misguided frustrated feelings of anger, by seeking to rob a business he claimed he had worked with for three years without being settled. However, the option of attempting to violently rob the business was a criminal option and cannot be encouraged or left unpunished. Irrespective of my personal feelings over this matter, the law must take its course.

I therefore make the following Orders: The appeal is allowed. The conviction and sentence of the Appellant in the Judgment of the High Court of Cross River State, delivered on 20th January, 2012, in HJ/10c/2009 for armed robbery is set aside.

The Appellant is upon the evidence before the Court hereby convicted for attempted robbery and sentenced to life imprisonment.

UZO I. NDUKWE-ANYANWU, J.C.A: I had read in draft form, the judgment just delivered by my learned brother, Onyekachi A. Otisi, JCA. I am in total agreement with the reasoning and final conclusions contained in the lead judgment.

The law reports are replete with case law which states that “to secure a conviction for armed robbery, the prosecution must prove the following: (a) that there was an armed robbery (b) that the accused was armed and (c) that the accused while with the arm or arms, participated in the robbery”.

It was proved that the appellant was armed with a gun and other offensive weapons, however it was not proved that he robbed PW5 – Peter Okpini.

The prosecution witnesses (PWs) were singing discordant tunes as to the where about of the Nokia phone Exhibit “7” purported to be stolen. It would be unsafe to convict the Appellant of armed robbery. The Appellant in his extra-judicial statement agreed that he did go to the pharmacy shop with the offensive weapon. He did not agree that he stole the Nokia phone Exhibit “7”. The discrepancy in the testimonies of the prosecution witnesses (PWs) as to this phone makes it difficult to ascertain the truth of this item and therefore create a doubt.

“It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to the case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and thus necessarily create some doubt in the mind of the trial Court that an accused is entitled to benefit therefrom.”
Theophilus vs. State (1996) 1 NWLR (Pt. 423) page 139; Chukwu vs. State (1996) 7 NWLR (Pt. 463) page 686.

Where ever there is doubt, it must be resolved for the benefit of the accused/Appellant. This aspect of the charge was not proved.

This appeal therefore succeeds in part. I abide by all the consequential orders contained in the lead judgment and adopt them as mine.

CHIMA CENTUS NWEZE, J.C.A.: My noble Lord, Otisi, JCA, obliged me with the draft of the leading judgment just delivered now. I am persuaded by the reasoning and conclusion. I abide by the consequential orders in the said leading judgment.

Appearances

Godwin Omoaka Esq.For Appellant

AND

Peter Sunday Bisong, Director, Public Prosecutions, Ministry of Justice, CalabarFor Respondent