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TSUMBA v. STATE (2021)

TSUMBA v. STATE

(2021)LCN/15676(CA)

In the Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, September 22, 2021

CA/MK/18C/2020

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

TERUNGWA TSUMBA APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

In determining this Issue, it is important to say that for the Prosecution to succeed in a Charge of Armed Robbery he must as a matter of fact prove his case beyond reasonable doubt and in doing so, he must establish the essential ingredients of Armed Robbery as enumerated in the cases of Ikemson vs. The State (1989) Vol.1 CLR 80 at 108; Bozin vs. State (1998) Vol.1 ACLR 1 at 11 thus:-
“(a) That there was robbery or series of robberies.
(b) That each robbery was an Armed Robbery.
(c) That the Accused person or Appellant was one of those who took part in the Armed Robbery.”
Accordingly, in discharging this, onus or the burden of proof, there are basically four ways to prove the commission of a crime which are as follows: (1) By the evidence of an eye Witness or Witnesses; (2) By the Confessional Statement of the Accused person(s); (3) By Circumstantial evidence where Direct or Confessional Statement are lacking and (4) By admission by conduct of the Accused person(s) or Appellant (as this case). See the authorities of Moses vs. The State (2003) FWLR (Pt.141) 1969 at 1986; Emeka vs. The State (2001) FWLR (Pt.66) and Dapara Gira vs. The State (1996) 4 SCNJ 95 at 106.
PER AGUBE, J.C.A.

ESSENTIAL CONDITONS FOR THE CONDUCT OF AN IDENTIFICATION PARADE

The Apex Court in Nwaturuocha vs. State (2011) 6 NWLR (Pt.1242) 170 at 190 paras. A-D; set out the essential conditions for the conduct of an identification parade as follows:-
“(a) Where the victim did not know the Accused before and his acquaintance with him was during the commission of the crime.
(b) Where the victim or Witness was confronted by the offender for a very short time.
(c) Where the victim due to time and circumstances might not have had full opportunity of observing the features of the Accused.”
The Supreme Court in Osuagwu vs. State (2013) 5 NWLR (Pt.1347) 360 at 381-382 paras. H-B; opined thus:-
“In the following situation, an identification parade must be conducted. The purpose being to search for the truth; that is to identify who committed the offence. An identification parade should be conducted:
(a) when the offence was committed in the dark and the victim only has a fleeting encounter with the robber. 
(b) when it is clear that the victim was traumatized when the offence was committed. 
(c) where the eye witnesses/victim fails at the earliest opportunity to name the person known to him whom he claims committed the offence. 
(d) when the robber was not arrested at the scene of the robbery, but arrested after the robbery.”
PER AGUBE, J.C.A.

THE POSITION OF THE LAW WHERE A PARTY FAILS TO ADDUCE EVIDENCE BY WITHHOLDING EVIDENCE 

It is trite that the rule under Section 167(d) applies to where a party fails to adduce evidence by withholding evidence which could have been but was not produced. See Onwujuba vs. Obienu (1991) 4 NWLR (Pt.183) 16 SC. Notwithstanding, the law is also settled that the Prosecution is not bound to call a particular Witness where his case can otherwise be proved, see Archibong vs. The State (2006) 14 NWLR (Pt.839) 138; Shurumo vs. The State (2010) 12 SCNJ 47; but where he fails to adduce evidence which is placed at his disposal as in the instant case which he is supposed to adduce amounts to withholding of evidence. See Emeka vs. Chuba Ikpeazu & Ors.(2017) LPELR-41920 (SC).
​Undoubtedly, the Prosecution has a duty to tender any Statement made by an Accused person during the investigation of the crime with which the Accused is charged whether or not it was in his favour. However, before the presumption under the said Section of the Evidence Act can operate, it must be shown and established that (a) such evidence exist, (b) that it could be produced; (c) that it has not been produced and (d) that it has been withheld by the person who could produce it, as held in Musa vs. Yerima (1997) 7 NWLR (Pt.511) 27 per Ogundare, JSC. 
PER AGUBE, J.C.A.

 

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the decision of the High Court of Benue State sitting in Makurdi delivered on the 4th day of March, 2009 by Honourable Justice Tine Tur (of blessed memory) whereof the Appellant and one Terhile Achihi were convicted and sentenced to death for the offence of Conspiracy and Armed Robbery. Dissatisfied with the Judgment, the Appellant filed a Notice of Appeal dated 26th of September, 2018 predicated on Seven (7) Grounds of Appeal which are reproduced hereunder albeit without their respective particulars:-
“GROUNDS OF APPEAL:
GROUND ONE:
The Judgment of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced.
GROUND TWO:
The learned trial Judge erred in law when he convicted and sentenced the Appellant (3rd Accused at the Trial) on the Ground that evidence of PW2 on having identified the 3rd Accused person to be the Appellant at identification parade at Makurdi Police Headquarters was not challenged and this occasioned a miscarriage of justice.
GROUND THREE:
​The learned trial Judge erred in law and this occasioned a miscarriage of justice when he found and held thus: “This piece of evidence remained unchallenged. I find that PW1 identified the 1st Accused from among many suspects that the D.P.O. paraded at the Police Station, Gboko. PW1’s Testimony that “those that came to me are the ones I identified namely, 1st and 3rd Accused persons” were not disparage under cross-examination.”
GROUND FOUR:
The learned trial Judge erred in law and this occasioned a miscarriage of justice when he held thus: “The Prosecution was compelled to close her case since the IPO and other Police Officers listed as potential Witnesses did not have their Statements in the proofs of evidence at the time the learned State Counsel sought leave to prefer the charges against the Accused persons. This was either of mistakes, inadvertence or default. At the time the Prosecution sought to introduce the Statements of the Police Officers, I held that it was too late hence the IPO and other Officers could not testify. This is not therefore a question of the Prosecution deliberately withholding the Statements of the Accused persons, which forms part of the Prosecution’s case… I think the failure to tender the Statements of the Accused persons in the circumstances is not fatal to the case of the Prosecution.”
GROUND FIVE:
The learned Trial Judge erred in law and this occasioned a miscarriage of justice when he convicted and sentenced the Accused person/the Appellant as charged when the Prosecution failed to tender any of the proofs of evidence attached to the Application to prefer charge against the Accused persons. 
GROUND SIX:
The learned Trial Judge erred in law and this occasioned a miscarriage of justice when he held thus: “There is no evidence that PW1 and PW2 were tutored or aided by the Police to identify the 1st and 3rd Accused as their attackers on the morning of 27th November, 2005. Their identity has not been in doubt. There is no defence of alibi nor any that I can fathom for the Accused persons. In this case the onus was on the defence to cross-examine the PW1 and PW2 to discredit their testimony that under the circumstances, regard being had to what happened on 27th November, 2005 in the morning hours it was impossible for them to have identified beyond reasonable doubt the 1st and 3rd Accused as their attackers or to have called evidence to disparage the identification or visual observation of the 1st and 3rd Accused by PW1 and PW2 or that they raised alibi as a defence.”
GROUND SEVEN:
The learned Trial Judge erred in law and this occasioned a miscarriage of justice when he convicted the Appellant for Conspiracy and Armed Robbery and sentenced him to death notwithstanding that no firearms or offensive weapon was tendered before the Court in proof of the crime.
RELIEFS SOUGHT FROM COURT OF APPEAL:
(a) To allow the Appeal and set aside the Judgment of Benue State High Court delivered on the 4th March, 2009.
(b) To discharge and acquit the Appellant.”

STATEMENT OF FACTS:
The summary of the facts of the case is that on the 27th day of November, 2005 at North Bank, Makurdi, Lafia Road, the 3rd Accused person (now Appellant) conspired with others and at gun point, robbed one Abdulmalik Mohammed and Zainab Abdulmalik of their Peugeot 406 Salon Car with Registration No.KDGH-161 including other valuables which include: One Black Bag containing cloths, one brief case containing valid documents, 3 handsets belonging to them, a bag containing gold necklace and Rings, a cash sum of N15,000.00 (Fifteen Thousand Naira) and a Carton containing provisions.

The Appellant was subsequently arrested with the other Accused persons and arraigned before the Trial Court on the 15th day of February, 2007, on a Two (2) Count Charge of Criminal Conspiracy and Armed Robbery contrary to Sections 5(b) and  1(2)(a) of the Robbery and Firearm (Special Provisions) Act, 1990. Each of the Accused pleaded not guilty and the case was adjourned to the 12th day of March, 2007 for hearing. On that 12th March, 2007, the Accused persons were absent and the case was further adjourned to the 25th of April, 2007 and subsequently to the 12th of November, 2007 last time for hearing.

​In proof of their case, the Prosecution on that 12th November, 2007 called Two (2) Witnesses who testified as victims of the crime and thereafter filed Motion No.MHC/867M/2007 to include Two (2) additional Witnesses to testify in support of their case but the Application was refused by the Court upon being opposed by the learned Counsel to the Accused on the ground that the said Witnesses were not listed in the proof of evidence. The Prosecution was therefore compelled to close their case since the IPO and the other Police Officer listed as potential Witnesses did not have their Statements in the proof of evidence at the time the Prosecution sought leave to prefer the Charge against the Accused persons. See pages 91-105 of the Records.

On the 21st day of January, 2009, the learned Counsel for the Accused Mrs. Nezam, Esq. rested their case on that of the Prosecution. See page 121 of the Records. At the close of evidence, the Trial Court found that the Prosecution had proved their case beyond reasonable doubt and went further to convict and sentence the Accused/Appellant accordingly. Aggrieved by the Judgment, the Appellant therefore filed this Appeal.

​In the Appellant’s Brief of Argument settled by Edwin O. Okoro, Esq., dated 12th of October, 2020 and filed on the 14th day of October, 2020 but deemed properly filed and served on the 17th day of February, 2021, Three (3) Issues were distilled for determination to wit:-

“ISSUES FOR DETERMINATION:
(a) Whether the Trial Judge was right to have convicted the Appellant on the evidence of PW1 and PW2 that the Appellant was among the robbers who attacked them notwithstanding that they both made it clear that it was only the 1st Accused they identified at the purported identification parade at Gboko Police Division and Police Headquarters at Makurdi (Grounds 1, 2 and 3).
(b) Whether the Trial Court was right when it held that the failure of the Prosecution to tender Statements of both the IPO and the Accused persons (sic) do not amount to withholding evidence under the Evidence Act in the circumstances of the case and if the answer is in the negative whether the failure did not substantially affect the case of the Prosecution (Grounds 4 and 5).
(c) Whether the Trial Court was right when it held that the Prosecution proved its case against the Appellant and that PW1 and PW2 properly identified the Appellant as one of the people that robbed them (Grounds 6 and 7).”

Upon receipt of the Appellant’s Brief, E.O. Kpoijime, Esq. who settled the Respondent’s Brief of Argument dated 30th of November, 2020 and filed on the 1st day of December, 2020 but deemed properly filed and served on the 17th day of February, 2021, formulated a Sole Issue for determination to wit:-
“ISSUE FOR DETERMINATION:
(a) Whether the Lower Court properly evaluated the evidence in this case to warrant the conviction of the Appellant and sentencing him to death for the offence of the Criminal Conspiracy to commit Armed Robbery.”

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER ONE:
In canvassing this Issue, the learned Counsel for the Appellant submitted that from the evidence of PW1 and PW2, it was clear that none of the robbers were arrested at the scene of crime and that the 1st Accused person referred to by PW1 is by name Terhile Achihi and not the Appellant. He maintained that PW1 and PW2 never mentioned that they identified the Appellant in any Police Station but only the 1st Accused person. The learned Counsel for the Appellant further submitted that since the Appellant was never identified by PW1 and PW2 in any identification parade, the consequence is that the Appellant ought to have been discharged and acquitted. 

​Again, it was his argument that the attention of the Trial Court was drawn to the fact that there was no identification parade in relation to the Appellant and in this respect he referred us to page 115 of the Records. It was further posited that it was necessary for the Prosecution to conduct an identification parade on the Appellant because PW1 was not a Witness of truth. According to him, PW1 told the Court that after reporting the crime at the nearest Police Station at North Bank, they were called at the Police Headquarters that one of the suspects had been arrested at Gboko and that PW1 further painted the picture to the Trial Court that it was the same day of the robbery that the 1st Accused was arrested at Gboko. On this score, he referred us to page 85 lines 21-24 of the Records. 

​It was his further contention that the above piece of evidence shows that it took the Police 35 days from 27th November, 2005 to 2nd January, 2006 to apprehend one of the suspects whom PW1 and PW2 told the Court that it was the 1st Accused and that an identification parade was conducted and they identified the 1st Accused, but that there was no evidence that the Appellant was arrested on the day the alleged offence took place or that he was arrested before the 1st Accused.

Relying on the authorities of Mustapha vs. State (2007) 12 NWLR (Pt.1049) 637 at 660 paras. F-G; Nwangu vs. Queen (1986) SCNLR 69 at 72; Atiku vs. State (2010) 9 NWLR (Pt.1199) 241 at 280, paras. A-B; Nwaturuocha vs. State (2011) 6 NWLR (Pt.1242) 170 at 190, paras. A-D; Osuagwu vs. State (2013) 5 NWLR (Pt.1347) 360 at 381-382 paras. H-B; the learned Counsel for the Appellant further submitted that identification parade was essential and necessary in the circumstances of the case and that having not been conducted, the Prosecution’s case against the Appellant is liable to fail. 

Citing the cases of Agbo vs. State (2006) 6 NWLR (Pt.977) 545 at 575, paras. B-C and Ojogbue vs. Nnubia (1972) 1 All NLR p.664 at 669, he submitted that the Court must at all times demonstrate a full dispassionate consideration of all issues raised and same must be reflected in the result.

Accordingly, the learned Counsel for the Appellant urged the Court to resolve this Issue in favour of the Appellant.
ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBERS TWO AND THREE:
“(b) WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE FAILURE OF THE PROSECUTION TO TENDER STATEMENTS OF BOTH THE IPO AND THE ACCUSED PERSONS (SIC) DO NOT AMOUNT TO WITHHOLDING EVIDENCE UNDER THE EVIDENCE ACT IN THE CIRCUMSTANCES OF THE CASE AND IF THE ANSWER IS IN THE NEGATIVE, WHETHER THE FAILURE DID NOT SUBSTANTIALLY AFFECT THE CASE OF THE PROSECUTION (GROUNDS 4 AND 5).
AND
(c) WHETHER THE TRIAL COURT WAS RIGHT WHEN IT HELD THAT THE PROSECUTION PROVED ITS CASE AGAINST THE APPELLANT AND THAT PW1 AND PW2 PROPERLY IDENTIFIED THE APPELLANT AS ONE OF THE PEOPLE THAT ROBBED THEM (GROUNDS 6 AND 7).”

On these Issues, the learned Counsel for the Appellant contended that the Prosecution attached the Statements of PW1, PW2, the Appellant and the co-Accused to the Charge against the Appellant and that he also listed 3 Police Officers who were involved in the investigation of the alleged crime at Gboko and Makurdi but in the course of trial according to him, the Prosecution did not call any of the Police Officers and did not tender the Statements of any of the Four (4) Accused persons including that of the Appellant.

​Relying on the case of State vs.  Azeez (2008) 14 NWLR (Pt.1108) 439 at 475 paras. A-B; the learned Counsel for the Appellant contended that it is settled that in criminal trial, the Prosecution is not bound to call a lot of Witnesses, and that however, he has the duty to establish its case beyond reasonable doubt and where he fails to call a Witness or Witnesses whose evidence is material, it will surely create doubt in the Prosecution’s case.

It was the argument of the learned Counsel for the Appellant that in the instant case, the Prosecution listed 5 Witnesses but only called the husband and wife who were the victims of crime and that the Police Officers who were listed were not called neither did they give any evidence during trial. He maintained that any evidence adduced by the 1st Accused person is at best hearsay. He referred us to Sections 38 and 126 of the Evidence Act, 2011 to buttress his argument.

​Still on the above score, he contended that PW1 and PW2 were referring to what the Police told them while testifying and that it was the 1st Accused that gave information that led to the arrest of the other Accused persons including the Appellant. According to him, PW1 and PW2 were not the ones who arrested the Appellant neither did they receive any information from the 1st Accused and therefore, the evidence of the Police Officers were vital and material. He referred us to the case of State vs. Nnolim (1994) 5 NWLR (Pt.345) 394 at 406 paras. C-D; to buttress the above contention. In the light of the foregoing, the learned Counsel for the Appellant therefore submitted that the mere fact that the Appellant did not testify but rested his case on that of the Prosecution does not in any way make inadmissible evidence admissible for evidence worthy of challenge is the one that is material and admissible. 

​Arguing further, he maintained that the Appellant did not fall from the sky and became the 3rd Accused person at the trial and that there must be a foundation on how the 3rd Accused person was arrested, who arrested him and where he was arrested before the evidence of PW1 and PW2 would be said to be relevant to the fact in issue. He therefore urged this Court to hold that Section 149(d) of the Evidence Act now 167(d) of the Evidence Act, 2011 should be invoked against the Prosecution for failing to produce the Statements of the Accused persons including that of the Appellant. He again referred us to the case of Ogudo vs. State (2011) 18 NWLR (Pt.1278) 1 at 33 paras. E-F; to strengthen his argument.

Placing reliance on Section 4 of the Police Act Cap. P19, Laws of the Federation of Nigeria, 2004, the learned Counsel for the Appellant contended that the Police are empowered to apprehend offenders, investigate crime amongst other powers and that in the instant case, the Appellant was not arrested by PW1 and PW2 at the scene of the crime for it is evident that the 1st Accused person was arrested at Gboko, three Weeks after the alleged robbery as adduced by PW1 and PW2.

The learned Counsel for the Appellant argued that for the Prosecution to succeed in his case, he must prove the ingredients of armed robbery beyond reasonable doubt and that he must also produce enough evidence to justify the charge. He cited the cases of Bozin vs. State (1985) 2 NWLR (Pt.8) 465; Alabi vs. State (1993) 7 NWLR (Pt.307) 511; to buttress his argument.

​According to the learned Counsel for the Appellant, apart from the evidence of PW1 and PW2, that they were robbed on the 27th November, 2005, there is nothing on record to establish that the robbery actually took place as there is no evidence that such robbery was reported to the Police; that the Police investigated the crime; that the Police made an arrest and that the Accused person made a Statement to the Police. 

Again, he contended that the ingredient relating to the fact that the robbery was carried out with offensive weapons was not established beyond reasonable doubt and there was no evidence that the Appellant was arrested with any offensive and incriminating weapon or participated in the robbery.

On another score, the learned Counsel for the Appellant contended that the evidence of PW1 and PW2 were contradictory to the extent that a reasonable man would not believe their story when put together and therefore according to him, the contradictions in their evidence were material to the extent that they cast serious doubt in the minds of reasonable persons. For this submission reference was made to Eke vs. State (2011) 3 NWLR (Pt.1235) 589 at 605 paras. A-C.

In concluding his argument on two Issues argued together, the learned Counsel for the Appellant further submitted that the contradictions in the evidence of the Prosecution’s Witnesses were material and glaring and that the Court ought not to have relied on them. He therefore urged us to resolve Issues Numbers Two (2) and Three (3) in favour of the Appellant and against the Respondent; allow the Appeal, set aside the Judgment of the trial Court and discharge and acquit the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON THE SOLE ISSUE:
“(a) WHETHER THE LOWER COURT PROPERLY EVALUATED THE EVIDENCE IN THIS CASE TO WARRANT THE CONVICTION OF THE APPELLANT AND SENTENCING HIM TO DEATH FOR THE OFFENCE OF THE CRIMINAL CONSPIRACY TO COMMIT ARMED ROBBERY.”
The learned Counsel for the Respondent answered the question posed above in the affirmative that from the evidence before the Trial Court, the Prosecution proved their case beyond reasonable doubt and that every ingredients of the offence of Criminal Conspiracy and Armed Robbery punishable under Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 515, Laws of the Federation of Nigeria, 2004 were proved. He maintained that the Trial Court was right when it found the Appellant guilty, convicted and sentenced him accordingly. 

It was the argument of the learned Counsel for the Respondent that the offence of Conspiracy was proved beyond reasonable doubt at the Lower Court and that the circumstances which led to the commission of the offence points to the fact that the Appellant conspired with others to commit the offence. He referred us to pages 77, 83-86 of the Records for the above submission.

Again, it was his contention that the vivid account of the incident by PW1 before the Trial Court which was further supported by the evidence of PW2 go a long way to show that the Appellant and his gang were working with a common intention to commit the offence. He referred us to pages 117, 119 and 120 of the Records and further cited the cases of Abdullahi vs. The State (2010) Vol.8 LRCN page 32 at 47, paras. P-U; Kayode vs. State (2016) Vol.38 EJSC at page 24 at 30 para. 10.

​Still on the above score, the learned Counsel for the Respondent argued that in conspiracy theory, the act of the Accused persons are done in pursuance of a Criminal purpose held in common between them and that the evidence of PW1 was clear to the effect that the Appellant and his gang acted together, took and snatched PW1’s Car at gun point, fled together with it and were arrested shortly after, point to the facts that the Appellant and his cohorts acted in common.

Relying on the authority of Imodavid Idiok vs. The State (2010) 8 LRCN page 96 at 102 para. 9; the learned Counsel for the Respondent submitted that the evidence of PW1 and PW2 which stand unchallenged established the offence of criminal conspiracy against the Appellant without more and that the law is trite that there is no evidence as cogent and direct as that which is given by a victim of a crime who witnessed the commission of the offence.

It was the contention of the learned Counsel for the Respondent that the principle governing the proper identification parade were meant thus to substantiate this, he relied on the case of Akinrinlola vs. State (2017) EJSC at 65, paras. D-E.

On the above, the learned Counsel for the Respondent submitted that the Trial Court was prudent enough in establishing that the said identification was properly conducted and that the fact that the Prosecution did not call all the Witnesses to testify, did not damage his case as the identity of the Appellant was clearly disclosed by PW1 and PW2.

It was the further submission of the learned Counsel for the Respondent that the Trial Court properly evaluated and considered all the pieces of evidence put forward by the Respondent which the Appellant rested his case on.

Accordingly, the learned Counsel for the Respondent submitted that the offence of robbery was also proved beyond reasonable doubt and that the evidence of PW1 and PW2 shows that the Appellant and his gang robbed PW1 and PW2 at gun point.

Relying on the cases of Oseni vs. The State (2012) Vol.208 LRCN, page 515 at 166 paras. P-U; Ogudo vs. State (2011) Vol.202 LRCN page 1 at 48 paras. JJ-A; Eke vs. State (2011) 3 NWLR (Pt.1235) at 158 para. Z; he submitted that the offence of Armed Robbery was proved beyond reasonable doubt and that from the pieces of evidence presented by the Prosecution at the Trial Court which stand unchallenged, all the ingredients of the offence of Armed Robbery against the Appellant were proved. To support his submission, he cited further the case of Nwaturuocha vs. State (2011) Vol.9 LRCN page 1 at 13 paras. H-Z.

On another score, the learned Counsel for the Respondent contended that the argument of the learned Counsel to the Appellant that there were discrepancies and contradictions in the case of the Respondent was highly misconceived as the evidence of PW1 and PW2 conclusively point to the fact that the Appellant fully participated in the robbery. To this effect, he referred us to page 118 of the Records and maintained that the evidence of the Prosecution Witnesses were not challenged or controverted at the Trial Court and placed reliance on the case of the State vs. Usman Babawuru (2007) 5 All CRLR 34 at 35 lines 40-41.

Flowing from the above, he submitted that PW1 and PW2 testified that their assailants came close to them and they were afforded the opportunity to observe keenly their faces which the Trial Court believed uncontrovertedly. The learned Counsel for the Respondent further submitted that failure to tender Statements of the Witnesses or Confessional Statement of the Appellant or any Exhibit used by the Appellant was not fatal to the case of the Prosecution having regard to the evidence of PW1 and PW2 respectively and that the above, did not amount to withholding of evidence as alleged by the Appellant. Accordingly, he was of the view therefore that the Judgment of the Trial Court at pages 116-128 of the Records was legally sound and correct. He urged us to resolve his sole Issue in favour of the Respondent against the Appellant; dismiss the Appeal for lacking in merit and uphold the Judgment of the trial Court.

RESOLUTION OF ISSUES:
In the determination of this Appeal, I shall adopt the Three (3) Issues distilled by the learned Counsel to the Appellant and subsume the sole Issue of the learned Counsel to the Respondent within those of the Appellant.

ISSUE NUMBER ONE (1):
“WHETHER THE TRIAL COURT WAS RIGHT TO HAVE CONVICTED THE APPELLANT ON THE EVIDENCE OF PW1 AND PW2 THAT THE APPELLANT WAS AMONGST THE ROBBERS WHO ATTACKED THEM NOTWITHSTANDING THAT THEY BOTH MADE IT CLEAR THAT IT WAS ONLY THE 1ST ACCUSED THEY IDENTIFIED AT THE PURPORTED IDENTIFICATION PARADE AT GBOKO POLICE DIVISION AND POLICE HEADQUARTERS AT MAKURDI? (GROUNDS 1 AND 2).”

In determining this Issue, it is important to say that for the Prosecution to succeed in a Charge of Armed Robbery he must as a matter of fact prove his case beyond reasonable doubt and in doing so, he must establish the essential ingredients of Armed Robbery as enumerated in the cases of Ikemson vs. The State (1989) Vol.1 CLR 80 at 108; Bozin vs. State (1998) Vol.1 ACLR 1 at 11 thus:-
“(a) That there was robbery or series of robberies.
(b) That each robbery was an Armed Robbery.
(c) That the Accused person or Appellant was one of those who took part in the Armed Robbery.”
Accordingly, in discharging this, onus or the burden of proof, there are basically four ways to prove the commission of a crime which are as follows: (1) By the evidence of an eye Witness or Witnesses; (2) By the Confessional Statement of the Accused person(s); (3) By Circumstantial evidence where Direct or Confessional Statement are lacking and (4) By admission by conduct of the Accused person(s) or Appellant (as this case). See the authorities of Moses vs. The State (2003) FWLR (Pt.141) 1969 at 1986; Emeka vs. The State (2001) FWLR (Pt.66) and Dapara Gira vs. The State (1996) 4 SCNJ 95 at 106.

As can be gleaned from the Records, it is crystal clear that the Prosecution at the Trial Court used/relied on the evidence of PW1 and PW2 who were direct eye Witnesses to the commission of the offence of Armed Robbery. 
PW1 under examination in-chief testified inter alia:-
“…As I parked, the 1st and 3rd Accused accompanied by three others in a blue Honda Civic just pulled out of their car with their guns. The 3rd Accused came personally to me at the door and was speaking Hausa to me. He asked me to lie down and handover all I had. All of them were armed. We had no obligation and so we complied. My wife and I and my small baby were already out. My Driver was still in the Car. We were forced to lie down at gun point while my younger brother was in the Car with one of them. I cannot say whom he was. My younger brother was forced to handover the keys of the Car he was driving and his handset was collected. They collected all my money, handset, my wife’s handset and money and all the valuables. I had N15,000.00 with me, which they collected. I cannot say how much my wife had. They forced my Driver in the Car and drove away in my 406. They left me with my brother, my wife and my small baby.

They collected the keys to my brother’s Car and left with it. We were panting, looking very confused. They left with the 406 which is not seen till date… After that statement, we were invited to Police Headquarters when information got to us that one of the suspects had been arrested at Gboko. We made a statement at State C.I.D. on 31st December, 2005. I wrote the Statement myself. All my handsets were collected by the Accused. Some of the valuables are Official documents of the government with Seals. One handset was Samsung and Motorola V13. When we reached Gboko with the assistance of the Police, the DPO brought out many Accuseds, I immediately identified the 1st Accused as the one who had snatched my handset. The handset was found on him. He did not deny but was only pleading for forgiveness – that that was his first robbery. He promised to assist the Police to arrest his co-actors. The 1st Accused did everything useful to provide information for the arrest of the other Accused persons. He revealed the names of all those he had had carried out the operation with.”

Still on the above score, under cross-examination, PW1 further stated thus:-
“There were approximately five Accused but I can definitely (sic) identified the 1st and 3rd Accused. They came very close to us asking whether we were coming from Kaduna or going to Kaduna… But I remember 3rd Accused wore a Jeans and a Cap; 1st and 3rd Accused came very close to me. They pointed guns at me to lie down hence I can identify them… I do not know the number of guns each held but the closest held pistols…”

PW2 testified in-chief inter alia:-
“…They were following us with a Blue Civic Car. One of them opened the door for me. He was pointing two guns at my face. He opened my husband 406 Car – ash Colour. He demanded that I should step out of the Car and give him my handset. I was holding my baby in my arms. I obeyed and stepped aside. When we came down from the Car, the 3rd Accused came asking me who among the occupants was my husband. I was with my husband and his driver. I pointed at PW1. He picked my husband’s phone from him. Within few minutes, they vanished with the Car and all our belongings including my black veil.”

​Under cross-examination, PW2 testified as follows:-
“…3rd Accused wore a Jeans and a Shirt; I cannot tell the Colour of the Shirt… After picking handset, he left and met the 3rd Accused who was among those attacking my brother, thereafter 3rd Accused left to my place… when the 1st Accused left me, 3rd Accused came to me…”

From the evidence of PW1: “As I parked, the 1st and 3rd Accused accompanied by three others in a blue Honda Civic just pulled out of their car with their guns. The 3rd Accused came personally to me at the door and was speaking in Hausa to me.” See page 77, lines 10-13 of the Records. The evidence of PW1 supra reveals that Five (5) Accused persons came out of their car and they were all armed. 

However, under cross-examination, PW1 said:- “The 1st and 3rd Accused came close to me. They pointed guns at me to lie down, hence I can identify them. The others remained on the car.” See page 84, lines 4-6 of the Records.

​Accordingly, if only the 1st and 3rd Accused were the ones who came to PW1 and others were seated in the car, how did PW1 know that they were five under the heat of tension and all were armed? Again, this evidence also contradicted the one adduced in Chief that all of them came out during the attack and were all armed.

Still on the same score, PW1 at page 79, lines 13-17 of the Records stated that:-
“He asked me to lie down and hand over all I had. All of them were armed. We had no objection and so we complied. My wife and I and my small baby were already out. My driver was still in the car. We were forced to lie down at gunpoint while my younger brother was in the car with one of them.”

Meanwhile, PW2 testified thus:- “He picked my husband’s phone and all our belongings including my black veil. Before then my brother-in-law had driven ahead of us. Some of the robbers went towards him; they were dragging with him.”

​Looking at the evidence of PW1 and PW2, there were material contradictions and cannot be believed by the Court. This is so because, if PW2 testified that her brother-in-law had driven ahead of them before the robbery took place, how did the brother in-law come back to be part of the victim of the robbery? More so, from PW1, who testified that they were forced to lie down at gunpoint while his younger brother was in the car with one of them, the question is; which of the car? Is it their own car that was parked or that of his younger brother that was already ahead of them?

There is also another material contradiction where PW1 stated that, they were invited to the Police Headquarters when information got to them that one of the suspects had been arrested at Gboko; PW2 testified that after investigation by the Police, they were informed few weeks later that the suspects from Gboko were part of the gang that robbed them, then they went to Gboko on the 2nd day of January, 2006 whereas, under cross-examination PW2 made a u-turn that: “I was not invited to Gboko, I was only invited to Makurdi.”

The Apex Court in the case of Gabriel vs. State (1989) 12 SCNJ 33; on the nature of contradiction held that:-
“A piece of evidence is said to contradict the other when it asserts the exact opposite of what the other asserts and not when there are minor discrepancies between the two.”

On the whole, the gist of this issue is whether the 3rd Accused now Appellant was identified by PW1 and PW2 and where? There is no doubt, that from the Records, there is absolutely nowhere it was recorded that the Appellant was identified at any Police Station.
PW1: “The 1st Accused was not brought to me at Gboko before I made my second Statement. I first met him at Gboko. He was brought in a company of many other suspects. Immediately I saw him, I identified him as one of those that attacked us. There was no identification parade in the DPO’s Office. Immediately suspects were brought, I identified 1st Accused.”
PW2: “I was asked by one of the Policemen that if I see those that robbed us, can I recognize any? I said yes. I was taken to a gang of suspects and I pointed at the 1st Accused as the one who pointed a gun at me and also picked my phone.”

It is crystal clear that, there is no Statement on record tagged as “the 3rd Accused person’s Statement” which either linked him to the commission of the offence of armed robbery or the denial of his alleged criminal responsibility. Thus for the Trial Court to rely on the Confessional Statement of the 1st Accused that the 3rd Accused now Appellant was among the gang of robbers who robbed PW1 and PW2 is laughable. This is because the 3rd Accused did not adopt the Confessional Statement of the 1st Accused person.
The erudite Law Lord of the Apex Court per Kekere-Ekun, JSC in the case of The State vs. Sani Ibrahim (2019) LPELR-47548 (SC); opined that:-
“It is true that by virtue of Section 29(4) of the Evidence Act, 2011, where more than one person is charged with a criminal offence, a Confessional Statement by one of the Accused is only admissible against the maker unless any of the Accused persons in whose presence the confession was made, adopts the statement by word or conduct.”

In the instant case, the Confessional Statement of the 1st Accused person is the only Statement on record which the Trial Court relied on together with the contradictory evidence of PW1 and PW2 to convict and sentence the Appellant thus:-
“1st Accused knew the other co-conspirators. I believe PW1 that when he identified the 1st Accused at the Police Station in Gboko, PW1’s handset was found on him; that 1st Accused pleaded that this was the first robbery operation in which he had participated and he revealed the names of the other co-conspirators… where PW1’s evidence is that his handset was found on the 1st Accused who did not deny but was merely pleading and he also provided information which led to the arrest of his co-conspirators.”

It is therefore trite that apart from the ipsi dexit evidence of the PW1 and PW2, that they were robbed on the 27th November, 2005, there is nothing again on record to establish that the 3rd Accused now Appellant participated in the robbery, there is no evidence that the Police investigated the case to warrant the arrest of the Appellant or that the Appellant made a Statement to the Police neither was it on record that there was an identification parade to ascertain the identity of the Appellant. 

Again, PW1 and PW2 never mentioned that they identified the Appellant in any Police Station. Their evidence was that, they got information that one of the robbers was arrested at Gboko, they went to Gboko Police Station and identified the 1st Accused.

The Apex Court in Nwaturuocha vs. State (2011) 6 NWLR (Pt.1242) 170 at 190 paras. A-D; set out the essential conditions for the conduct of an identification parade as follows:-
“(a) Where the victim did not know the Accused before and his acquaintance with him was during the commission of the crime.
(b) Where the victim or Witness was confronted by the offender for a very short time.
(c) Where the victim due to time and circumstances might not have had full opportunity of observing the features of the Accused.”
The Supreme Court in Osuagwu vs. State (2013) 5 NWLR (Pt.1347) 360 at 381-382 paras. H-B; opined thus:-
“In the following situation, an identification parade must be conducted. The purpose being to search for the truth; that is to identify who committed the offence. An identification parade should be conducted:
(a) when the offence was committed in the dark and the victim only has a fleeting encounter with the robber. 
(b) when it is clear that the victim was traumatized when the offence was committed. 
(c) where the eye witnesses/victim fails at the earliest opportunity to name the person known to him whom he claims committed the offence. 
(d) when the robber was not arrested at the scene of the robbery, but arrested after the robbery.” Flowing from the parameters set out in the above authorities, it is clear that identification parade ought to have been conducted for the 3rd Accused now Appellant on the rationale that he was not arrested at the scene of the robbery but arrested after the robbery, thus, if the robbery incident took place on the 27th November, 2005 and the 1st Accused was identified at Gboko Police Station on the 2nd January, 2006; the implication is that it took the Police 35 days to arrest the 1st Accused and from the testimonies of PW1 and PW2, it was on that very day that the 1st Accused promised giving the Police information on the whereabouts of the other co-accused persons and the question is when was the Appellant arrested? 

There is no evidence on record on how the Appellant emerged to be prosecuted and the only identification parade alleged to have been conducted was that of the 1st Accused and not the Appellant.

​The law is settled as held by the Apex Court and this Court that where an Accused was not arrested at the scene of crime and was not named by the eye witness at the earliest opportunity as in the instant case, proper identification parade should be conducted unless the Accused voluntarily confessed to the commission of the crime. See Adeyemo vs. State (2010) LPELR-3622 (CA).

Accordingly, it is my considered view that the Trial Court was wrong to have convicted and sentenced the Appellant on the evidence of PW1 and PW2 which were not reliable and consistent. This is because, the Court cannot pick and chose which piece of evidence to rely on. Coupled with the fact that there was/is nothing on record to show how the Appellant was arrested and identified to warrant his Prosecution. Therefore, on this firm belief, I resolve this first Issue in favour of the Appellant against the Respondent.

RESOLUTION OF ISSUES NUMBERS TWO (2) AND THREE (3):
“2. Whether the Trial Court was right when it held that that failure of the Prosecution to tender Statements of both the IPO and the Accused persons do not amount to withholding evidence under the Evidence Act in the circumstances of the case and if the answer is in the negative whether the Failure did not substantially affect the case of the Prosecution? (Grounds 4 and 5).
3. Whether the Trial Court was right when it held that the Prosecution proved its case against the Appellant and that the PW1 and PW2 properly identified the Appellant as one of the people that robbed them (Grounds 6 and 7).”

The learned Counsel to the Appellant made a heavy weather of the failure of the Prosecution to tender the Statements of the 3rd Accused (now Appellant) and that neither did he call any of the Investigating Police Officer (IPO) to testify at the trial. However, the law is trite that the Prosecution has a duty to tender any Statement made by the Accused during the investigation of the offence with which he is charged whether or not it is in his favour. The Prosecution must come clean; he must act fairly, professionally and with a mind of having no other desire than to ensure that justice is done according to law. See Ogudo vs. State (2011) LPELR-860 (SC).
Now, it is settled that in every criminal proceeding, the suspect is either invited by the Police or other Security Agencies or better still arrested and upon his arrest or invitation, he is brought to the station for questioning or explanation with regard to the complicity of such an alleged criminality. This is followed by an interview or interrogation session and then the recording of Statements of the suspects.
Consequently, it behoves on the Prosecution to tender in evidence all the Statements made by the Accused in a criminal trial, be they Confessional or exculpatory. This is because, it is the very foundation of his defence; hence the Prosecution has a duty to make the said Statement or Statements available to the Court. The rationale is that the Accused person might have raised his defence or defences therein and the Court would have had the opportunity to examine them. Therefore, in the absence of those Statements, the Accused person cannot be said to have had a fair trial guaranteed him under the Constitution.
In Ogudo vs. State (supra), the Apex Court held thus:
“The Prosecution is expected to tender all the Statements made by the Accused person to the Police whether at the time of his arrest or subsequently. In this case, the Appellants made a Statement at Birnin Gwari Police Station (the first Station he was taken to after he was arrested). The Prosecution did not tender the Statement at (the) trial. To deprive the Appellants standing trial for an offence which carries the death penalty the use of his Statement made to the Police to my mind renders the trial unfair.”

​In the instant case, the Prosecution listed 5 Witnesses but only called 2 Witnesses who were the victims of the crime. The Police Officers who were listed as Witnesses were not called to testify, meanwhile they recorded a Statement from the Accused now Appellant and that Statement was not included in the proof of evidence at the time of seeking leave to prefer a Charge under Section 185(b) of the Criminal Procedure Code. Given that none of the Police Officers gave evidence and the Statement of the Appellant was not tendered, the following questions thus arise for contemplation: Who arrested the Appellant and where was he arrested? Upon his arrest, was he identified by PW1 and PW2? If he was so identified, who conducted the identification parade and where was the exercise carried out? Did the Appellant make any Statement to the Police and if yes, did he confess to the commission of the crime or did he raise the defence of alibi? Who investigated the case against the Appellant upon his arrest? And the last but certainly not the least, after PW1 and PW2 allegedly identified the 1st Accused (Terhile Achihi) at Gboko, where was the Appellant identified before his arraignment in Court? There is no doubt that all the above stated questions beg for answers in the form of evidence but none was available at the trial Court. This is particularly so because, the Confessional Statement of the 3rd Accused now Appellant should have served as a lead way to at least clarify the doubt.

In the light of the above, the issue then is whether the non-tendering of the Statement was fatal to the Prosecution’s case? The Appellant has called on this Court to invoke Section 167(d) of the Evidence Act, 2011 which prescribes that:-
“The Court may presume the existence of any fact which it thinks likely to have happened, regard been had to common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that:
“(d) Evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it;”
in favour of the Appellant.

It is trite that the rule under Section 167(d) applies to where a party fails to adduce evidence by withholding evidence which could have been but was not produced. See Onwujuba vs. Obienu (1991) 4 NWLR (Pt.183) 16 SC. Notwithstanding, the law is also settled that the Prosecution is not bound to call a particular Witness where his case can otherwise be proved, see Archibong vs. The State (2006) 14 NWLR (Pt.839) 138; Shurumo vs. The State (2010) 12 SCNJ 47; but where he fails to adduce evidence which is placed at his disposal as in the instant case which he is supposed to adduce amounts to withholding of evidence. See Emeka vs. Chuba Ikpeazu & Ors.(2017) LPELR-41920 (SC).
​Undoubtedly, the Prosecution has a duty to tender any Statement made by an Accused person during the investigation of the crime with which the Accused is charged whether or not it was in his favour. However, before the presumption under the said Section of the Evidence Act can operate, it must be shown and established that (a) such evidence exist, (b) that it could be produced; (c) that it has not been produced and (d) that it has been withheld by the person who could produce it, as held in Musa vs. Yerima (1997) 7 NWLR (Pt.511) 27 per Ogundare, JSC.
Accordingly, all the conditions listed supra were present in the instant case. Thus, the Statement of the Accused exists and was withheld by the Prosecution; it could be produced; but was not produced; the Prosecution who could have produced it or attached same to the proof of evidence could not produce it. It suffices to say that, the failure of the Prosecution to produce the said Statement amounts to withholding of evidence.

Again, as can be gleaned from the Records particularly at page 126, lines 21-30, the learned trial Judge held thus:-
“The Prosecution has not been in the habit of including the Statements of the Police Investigation Officers in the proofs of evidence at the time of seeking leave to prefer a Charge under Section 185(d) of the Criminal Procedure Code… In that wise I did not allow the Investigation Police Officers to testify at the Trial in view of the case of Msughter Gboko & 2 Ors. Vs. The State – CA/J/2C/2004 of 12th June, 2007 (unreported) Judgment of the Court of Appeal, Jos Division and a host of others.” Still on the same score, the trial Judge went further to hold at page 120, lines 31-38 and page 121, line 1 of the Records that:-
“The Prosecution was compelled to close her case since the IPO and other Police Officers listed as potential witnesses did not have their Statements in the proof of evidence at the time the learned State Counsel sought leave to prefer the Charge against the Accused person. This was either out of mistake, inadvertence or default. At the time the Prosecution sought to introduce the Statement of the Police Officers, I held that it was too late hence the IPO and other Officers could not testify. This is not therefore a question of the Prosecution deliberately withholding the Statements of the Accused persons, which forms part of the Prosecution’s case.”

Flowing from the above, there is no doubt that the Trial Judge jurisprudentially somersaulted when he held at one breath that the Prosecution has not been in the habit of including the Statements of the Police Investigation Officers in the proofs of evidence and immediately changed the established position by personally providing reasons for the failure where none existed on record. Thus, if the trial Court had earlier found that the Prosecution has the habit of not attaching Statements of Investigating Police Officers to the proof of evidence, it amounts to approbating and reprobating. This is so because, he cannot again hold that the failure to do so is either out of mistake, inadvertence or default.

It is trite position of law that a Court of law which is a Court of justice has no business in approbating and reprobating in its decision; for if it does so, then it would lose the confidence of the litigants and the public. See the case of the Supreme Court in Federal Republic of Nigeria vs. Faith Iweka (2011) LPELR-93550 (SC); where it was held that:-
“The Tribunal, having reached the right conclusion that those written depositions were inadmissible turns around in a most dramatic manner to rely on that which it had rejected. Just as the law frowns at a party who approbates and reprobates, the Court is not spared.”
From the summation of that which has been said above, it is my considered view that the Trial Court was wrong to have approbated and reprobated at the same time and that for the Statement of 3rd Accused person now Appellant not to be attached with the proof of evidence and be tendered in Court amounts to withholding of evidence under Section 167(d) of the Evidence Act, 2011. These Issues are also resolved in favour of the Appellant against the Respondent. 

In conclusion, it is indubitable that the Prosecution has a duty to prove their case beyond reasonable doubt in order to secure a conviction. Therefore as rightly contended and submitted by the learned Counsel to the Appellant, any piece or pieces of evidence which appear to be conflicting and unreliable cannot be relied upon. Thus, for the mere fact that the Prosecution technically refused to attach the Statement of the Appellant to the proof of evidence at the Trial Court amounts to withholding of evidence. This is so because, the Confessional Statement of the Appellant is the foundation or bedrock upon which his case ought to have been anchored and so, since there was nothing on record to show the guilt or contriteness of the Appellant and he was therefore supposed to be discharged on the basis that the Prosecution had failed to prove their case beyond reasonable doubt for there was absolutely nothing on record to prove that the Appellant took part in the armed robbery. 

Accordingly, this Appeal is meritorious and is hereby allowed. The Judgment of the Trial Court delivered on the 4th day of March, 2009 by Honourable Justice Joseph Tine Tur (of blessed memory) is set aside and the Appellant is hereby discharged and acquitted.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in advance a copy of the lead Judgment just delivered by my learned Brother Ignatius Igwe Agube, PJCA.
I totally agree with the reasoning and conclusion reached therein. I too shall resolve the sole issue and it is so resolved in favour of the appellants.

The appeal has merit and it therefore succeeds. I adopt the consequential order made in the lead judgment as mine. The judgment of the Trial Court delivered on the 14th day of March, 2009 by Honourable Justice Joseph Tine Tur (of blessed memory) is set aside and the Appellant is hereby discharged and acquitted.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I am in total agreement with the reasoning and conclusion arrived at. My Lord in succinct and concise manner resolved the issues donated for resolution in the Appeal. In criminal cases, the law places the burden of proof squarely on the Prosecution which must establish its case beyond reasonable doubt. The burden does not shift as it rests on the Prosecution throughout. 

The existence of a doubt as to the guilt of an Accused automatically entitles the Accused to a discharge. See Omiboju vs. The State(1974) 9 SC 1, Stephen vs. The State (1986) 5 NWLR (Pt.46) 978 and Ikemson vs. The State (1989) 3 NWLR (Pt.110) 455 at 466.

In the case at hand, the Appellant was arraigned for criminal conspiracy and armed robbery contrary to Section 5(b) and 1(2)(a) of the Robbery and Firearm (Special Provisions) Act, 1990 along with others. He was alleged to have, on or about the 27th November, 2005, robbed one Abdulmalik Mohammed and Zainab Abdulmalik of their Peugeot 406 Salon Car with Registration No: KDGH-161 including other valuables which include: One Black Bag containing cloths, one brief case containing valid documents, 3 handsets, a bag containing gold necklace and Rings, a cash of N15,000.00 and Carton containing provision at North Bank, Makurdi, Lafia Road. The robbers were allegedly armed with a gun. In Respondent’s bid to discharge the burden of proving Appellant guilt, it called two witnesses who testified as victims of the crime. On the 21st January, 2009, the learned Counsel for the Accused rested their case on that of the Prosecution. When the Accused person was arrested, his Statement was taken, however, it is intriguing that the Statement of Appellant recorded was not tendered in evidence. The case of People of Lagos State vs. Umaru (2014) LPELR-22466 (SC); stated the importance of tendering the Statement of an Accused person. The Apex Court held thus:-
“I think the tendering of the Accused’s Statement made to the Police (considered to be confessional) is very vital, necessary and fundamental in grounding a conviction otherwise the conviction is defective and can be quashed and any sentence premised upon it can equally be set aside. In Saidu vs. The State (1982) 4 SC 41, this Court held that a confession can support a conviction if proved to be made and that the first step in proving a confession is to properly tender it in evidence as a confession and not for identification purpose only which is of no value.” See further: Reg. vs. Chartwood (1980) 1 WLR 874; Achabua vs. The State (1976) 12 SC 63 at page 68; Yesufu vs. The State (1976) 6 SC 167 at page 173.” Per Muhammad, JSC.
The legal implications of refusing to attach the Statement made by the Accused person amount to withholding of evidence as held in Okpalangwu vs. FRN (2021) LPELR-52710 (CA); where the Court held thus:-
“…The mere fact that Accused person’s Statement to the Police was not produced at the trial, and the investigation report linking the Accused person to the offences charged, was not also tendered (and could only have been done properly by the Police that investigated the case), was sufficient in my opinion for the Court to treat the charge as a big joke. See the recent decision of this Court in the case of Okechukwu Nwokoro vs. FRN: CA/OW/123C/2020, delivered on 24/9/2020, pages 164-265 where we held: By law, where a party hoards evidence or manipulates the process, to withhold critical evidence or documents in his possession relevant to the case, from the Court, Section 167(d) of the Evidence Act, 2011 is invoked against him; the presumption being that, if the said evidence or document had been produced in Court, the same would have been unfavourable to the party that hoarded or withheld it. See the case of Azubuike vs. The State (2019) LPELR-48238 (CA); The People of Lagos State vs. Umaru (2014) LPELR-22466 (SC); Smart vs. The State (2016) LPELR-40827 (SC); Shodiya vs. The State (2013) LPELR-20717 (SC).” Per Mbaba, JCA.
​Thus, the Confessional Statement being the anchor of the Respondent’s case as required by law ought to have being tendered in evidence, however, where the Prosecution withholds such evidence, it will impeach the credibility of the case for the Prosecution.Therefore, the Court below was wrong to convict and sentence the Appellant as the Respondent failed to prove its case beyond reasonable doubt. It is in the light of above that I also agree that the Appeal is meritorious and be allowed. I also abide by the other orders made in the lead judgment.

Appearances:

E.O. Okoro, Esq., with him, K.S. Vondip, Esq. For Appellant(s)

E.O. Kpojime, Esq. (Chief State Counsel, Benue State Ministry of Justice) For Respondent(s)