UHARA v. STATE
(2021)LCN/15757(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, September 10, 2021
CA/E/116C/2019
Before Our Lordships:
Ahmad Olarewaju Belgore Justice of the Court of Appeal
Ita George Mbaba Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Between
OBIORA UHARA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
Counsel on both sides have agreed and cited judicial authorities as to what constitutes offence and ingredients of offence of armed robbery, that it must be established that there was a robbery or series of robberies, that the robbery was done with arms, or offensive weapons, and that the defendant (or Appellant) participated in the robbery or was one of the robbers. See the case of Onyenye Vs State (2012) 15 NWLR (Pt.1324) 586; Bozin Vs State (1985) 2 NWLR (Pt.8) 465; Opeyemi Vs State (2019) LPELR – 48764 (SC); Oyebola Vs State (2008) ALL FWLR (Pt.402) 1175; Bello Vs State (2007) 10 NWLR (Pt.1043) 563.
See also the case of Ighalo Vs The State (2016) LPELR – 40840 SC, where it was held:
“Taking the yardstick on the expected standard of proof and juxtaposing it to the essential ingredients of the offence of arm robbery, to which that standard is to be met and the stated elements of the offence are thus:
(1) That there was a robbery;
(2) That the robbery was executed with the use of offensive weapons, and another way of saying so is that the said robbery was an armed robbery and;
(3) That the accused person participated in it. Those elements above, have to co-exist and established beyond reasonable doubt. See Awosika Vs State (2010) 9 NWLR (Pt.1198) 40 at 71 – 73.”
The law is also trite, that such offence and, in fact, any crime, can be established by means of direct evidence of eye witness(es), or by confessional evidence of the accused person, adjudged voluntarily and freely made, and/or by circumstantial evidence, which is cogent and credible, pointing conclusively at the accused person as one to bear the guilt for the offensive act/omission. See Amos Vs The State (2018) LPELR – 44694 (SC); Awo Vs The State (2020) LPELR – 50619 CA. PER MBABA, J.C.A.
WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON ON A RETRACTED CONFESSIONAL STATEMENT
It is also settled that the Court can convict on the retracted confessional statement of the accused person, however, before this is done, the trial Court is enjoined to evaluate the confession of the Accused Person and his testimony at the trial, as well as, other evidence adduced. This would entail the trial Court examining the new version of events presented by the accused person that is different from his retracted confession, and satisfy itself that the statement was free, voluntary and properly taken and that it passed the six tests to be applied to a confession, as suggested by Ridley J., in the case of R Vs Sykes supra. The said tests have been adopted by this Court in a number of decided cases, including Ogudo Vs State (2011) 18 NWLR (Pt. 1278) 1 SC, wherein this Court explained that in determining the weight to be attached to a confessional statement, retracted or not, the Court must ask itself the following: Is there anything outside the confession which shows that it may be true? – Is it corroborated in anyway? – Are the relevant statements of fact made in it most likely true as far as they can be listed? – Did the accused have an opportunity to commit the offence? – Is the confession possible? – Is the confession consistent with other facts, which have been ascertained and established? In effect, although the Court can convict only on the extra judicial confessional statement of the accused person, it is desirable to find independent evidence, that is to say, to have some evidence outside the confession, however slight, of circumstances which make it probable that the said confession was true. See Queen Vs Itule (supra), R Vs Kanu (supra) and Edhigere Vs State (supra) Per Augie J.S.C…” PER MBABA, J.C.A.
WHETHER OR NOT A CONFESSIONAL STATEMENT ALONE IS SUFFICIENT TO ESTABLISH A CONVICTION
We have held, several times, that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR – 9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534. PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the decision of Enugu State High Court in Suit No. HOR/9C/2014, delivered on 15/6/2019 by Hon. Justice A.A. Nwobodo, wherein Appellant was convicted of armed robbery, and sentenced to death by hanging.
At the trial, Appellant, as accused person, was charged with offence of “Armed Robbery, contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act, Cap 11 Laws of the Federation of Nigeria, 2004”; that Appellant (and others at large) on or about the 12th day of November, 2012, at Agu Achi in the Oji-River Judicial Division, within the jurisdiction, while armed with gun, robbed one Ogochukwu Maduka of his Carter Motorcycle, without registration number, valued at N103,000 (One Hundred and Three Thousand Naira) only.
Appellant was arraigned, and he pleaded, Not Guilty, to the charge, on 10/10/2014. After hearing the case and considering the evidence and addresses of Counsel, the trial Court found Appellant guilty and sentenced him, accordingly.
Dissatisfied with the verdict, Appellant filed this appeal, as per the amended notice and grounds of appeal, filed on 4/5/2020, and deemed duly filed on 5/5/2020, which disclosed five (5) grounds of appeal. Appellant filed his brief of argument on 4/5/2020, which was also deemed duly filed on 5/5/2020. He distilled three (3) issues for the determination of the appeal, as follows:
(1) Whether, having regard to the totality of evidence before the Court, a case of armed robbery was proved to have taken place, and whether the appellant was duly and properly identified as the armed robber, who robbed PW2 to warrant his conviction and sentencing to death (Grounds 1 and 5)
(2) Whether the statement procured from the appellant at Special Anti-Robbery Squad (SARS) Enugu on 23/11/2012 was made voluntarily and not under duress, to justify the admissibility of the statements against the appellant, and his subsequent conviction, and whether the trial Court was right to have preferred and accepted a latter alleged confessional statements of the Appellant to the two earlier non-confessional statements by same appellant. (Grounds 2 and 3)
(3) Whether the judgment of the trial Court delivered on 15th June, 2019 (a Saturday) being a non-working day, is valid in law. (Ground 4)
The Respondent filed brief of argument on 1/7/2021, which was deemed duly filed on 6/7/2021. It formulated five issues for the determination of the appeal, as follows:
(i) Was the judgment of trial Court delivered on 15th June, 2019 (sic) and if so whether it occasioned miscarriage of justice (Ground 1)?
(ii) Whether the trial Court was justified in holding that the prosecution proved the case of armed robbery against the defendant/appellant beyond reasonable doubt (Grounds 2, 4 and 5)
(iii) Was the trial Court justified in relying on the confessional statement of the accused/appellant in convicting him? (Ground 7)
(iv) Whether there were any material contradictions in the prosecution’s case which created doubt in favour of the defendant/appellant (Ground 3)
(v) Whether the Court is not bound to strike out grounds of appeal from which no issues are formulated?
Some of the Respondent’s issues for determination of the Appeal are at large, being not founded on any of the grounds of appeal formulated by Appellant. The issues 3 and 5 by the Respondent fall into this error, as there is no ground 7 in the Amended Notice of Appeal by Appellant, to predicate Respondent’s issue 3 and the issue 5 is not tied to any of the grounds of appeal. The said issues 3 and 5 by Respondent are hereby struck out, for incompetence.
Arguing the appeal on 6/7/2021, Appellant’s Counsel, Prince Charles Ibeh (who settled the brief of Appellant) answered issue 1 in the negative, that having regard to the totality of the evidence, a case of armed robbery was not proved, that Appellant was not properly identified as the armed robber, who robbed the PW2, to warrant his conviction and sentence. Counsel listed the ingredients of the offence of armed robbery, to say that:
“To secure a conviction for armed robbery, the prosecution must prove:
(a) That there was an armed robbery;
(b) That the accused was armed; and
(c) That the accused, while with arms participated in the robbery.” Opeyemi Vs State (2019) LPELR – 48764 (SC); Oyebola Vs State (2008) ALL FWLR (Pt.402) 1175; Bello Vs State (2007) 10 NWLR (Pt.1043) 563.
Counsel said that what took place in this case, on 12/11/2012, between one Ogochukwu Maduka (PW2) and his assailant, was not armed robbery, as it was not proved or established that arm was used in the encounter, he contested the claim that Appellant was involved in the robbery of the Motorcycle. He argued that the victim of the robbery (PW2) had made two statements to the Police, and in both, maintained that his passenger (who robbed him) had pulled out gun from the loaf of bread he was carrying, and asked him to leave his bike and run into the bush, that when he (PW2) hesitated, begging his said passenger, he (passenger) shot at him (PW2), but the gun failed to fire, where upon, there was a scuffle between them. Counsel said that based on the above account, it would be safe to conclude that the passenger who robbed PW2 was not armed with a gun, he said that PW2’s further statements and the statements of PW1 and PW5 tended to raise questions and doubts, as to whether PW2 was, actually, robbed with gun(s) at all!
Counsel referred us to pages 87 – 88 of the Records of Appeal, where PW2 said he fought with the passenger (assailant), collected the guns (two) from him and the guns dropped on the ground, but that the assailant hit him (PW2) on a sensitive part (private part) and he failed down, by which time the assailant eloped with the bike, but that with the help of others (upon his shout for help), people pursued the assailant, arrested him and recovered the motor bike and the gun. Counsel said there was no evidence as to who were the villagers, who pursued the assailant, and/or identified the accused person as the assailant, Counsel said that whoever the villagers caught (who responded to PW2’s shout) the person was not the Appellant; that Appellant was not identified or otherwise shown to be the assailant, as no villager testified or made statement to the Police that he was among those who responded to PW2’s shout for help, and subsequently pursued and arrested the assailant, identified to be Appellant.
Counsel also referred to the evidence of PW5 (statement to the Police) that he got information about the robbery on 13/11/2012 (a day after the incident) and so could not have been one of those who PW2 said pursued and arrested the assailant. Counsel said PW5 was telling a lie, when he said he visited the scene of crime and recovered the gun! Counsel wondered whether it was the same gun PW2 said he collected from the assailant and dropped on the ground and which the Police said they recovered from the scene, that PW5 was also talking about. Counsel said there were contradictions in the said evidence that under cross-examination, PW2 laid bare all his preposterous speculations, as follows:
(i) Under cross-examination, PW2 said the Civil Defence caught him (the assailant) and collected the gun from him; but that;
(ii) In his first statement to the Police at Oji River, PW2 said the villagers caught the Appellant with a gun;
(iii) In the 2nd statement to the Police, that PW2 said the villagers and a Civil Defence Officer caught the appellant with a gun;
(iv) That PW1 said he and his vigilante group caught the appellant (and not Civil Defence or Villager who PW2 said heard his shout and came to his rescue and pursued and caught the appellant with the gun);
(v) That PW5 claimed he picked the gun at the scene of crime on the second day of his visit;
(vi) That PW5 claimed he arrested the Appellant (after he had picked the gun at the scene of crime), Counsel again said.
(vii) That PW5 never said he arrested the appellant and collected the gun from him (as alleged by PW2 under cross-examination).
Counsel said the above represented the contradictions in the evidence of prosecution, that it was wrong to convict the Appellant on the basis of such evidence which he said touched on material facts on the root or essential ingredients of the offence charged. He relied on the case of Onubogu Vs The State (1974) LPELR – 2700 (SC). Counsel also relied on the case of C.O.P. Vs Amuta (2017) LPELR – 41386 SC, to say that the Court cannot pick and choose, where there are contradictions in the evidence of witnesses. He added that apart from the controversy about the gun and how it was recovered, that Appellant denied being the person in the picture, he said that there should have been identification parade for PW2 to identify the assailant. He, however, conceded that identification parade is not necessary:
(1) Where a suspect is arrested at the scene of crime;
(2) When the suspect is well known to the victim or witnesses and;
(3) When evidence adduced is sufficient to establish that the suspect, is indeed the person that committed the offence (Ifedayo Vs State (2018) LPELR – 44374 (SC); Jua Vs State (2010) 4 NWLR (Pt.1184) 217 SC…)
Counsel argued that Appellant was arrested on the basis of pure suspicion. He urged us to resolve the issue for Appellant.
On issues 2 and 3, which Counsel argued together, Counsel said the purported confessional statement of the Appellant, made at SARS, was not made voluntarily and that the trial Court was wrong to rely on it to convict the Appellant. Counsel said Appellant had said that he was tortured to make the 2nd statement at the SARS on 23/11/2012, compared to his earlier statement he made on 22/11/2012 and the one he made on 16/11/2012 at Oji River Police Station.
Counsel said Appellant’s first two statements to the Police, were in line with what transpired, when he was arrested by PW1, but that the 2nd statement at SARS, was procured by torture, that at the trial-within-trial, it was evident that Appellant had visible scars on his leg, ear, left eye and at the back, which were shown to the Court, he said that it was wrong to hold that the scars were from the injuries Appellant sustained at his fight with the PW2 (at the time of the crime). Counsel said the said confessional statement was therefore wrongly admitted and relied upon by the trial Court. Counsel argued:
“… the fact alone that the alleged confessional statement was not made in the presence of Appellant’s Counsel and not backed by a video recording, was enough to invalidate it, rendering it impotent and inadmissible. See the case of Nnajiofor Vs State (2019) 2 NWLR (Pt.1655) 157 CA…” Page 23, (Paragraph 6.4) of the Appellant’s brief.
Counsel said the trial Court was wrong to overrule the objection to the admissibility of the alleged confessional statement, without stating how it came by the ruling after conducting the trial-within-trial (Page 113 of the Records), that the Court had a duty to state the reasons for its position, after taking the trial-within-trial. He relied on Enemchukwu Vs Okoye & Anor (2016) LPELR – 40027 CA; Yahaya Vs State (2016) LPELR – 40254 (CA), among other cases. He urge us to hold that there was no evaluation of the evidence adduced at the trial-within-trial and so it was perverse, to overrule the objection and admit the document as Exhibit.
Counsel urged us to invoke the decision of the Supreme Court in Ameh Vs The State (1978) 6 – 7 SC (Reprint) 21; (1978) LPELR – 460 (SC), cited with approval in Edun & Anor Vs FRN (2019) LPELR – 46947 (SC), to the effect that when the prosecution offers and places before the trial Court two versions of the same incident/transaction: one inculpatory and the other exculpatory, prosecution would have failed to prove the guilt of the accused person beyond reasonable doubt.
He urged us to hold that the confessional statement was induced, and did not represent the true position of the Appellant that the earlier two statements of Appellant on the incident, being the first in time, represented the correct account of Appellant’s position in the case. He said that the Court had a duty to consider the circumstances which the alleged confession was made, in line with the case of Uwa Vs The State (2013) LPELR – 20329 (CA); Nalado Vs State (2019) LPELR – 47626 (SC). He listed the six principles the Court has to observe, before admitting or relying on a confessional statement, where the same has been retracted or denied, for involuntariness.
Finally, Counsel said the judgment of 15/6/2019 was delivered on a Saturday (a non-working day) and so it was not valid that the law forbids Court in Enugu State to sit on Saturdays and Sundays and on Public Holidays. He referred us to the High Court Law of Enugu State, Cap 92 Laws of Enugu State. Counsel, however, cited Anie & Ors Vs Uzorka & Ors (1993) NWLR (Pt.309) 1; (1993) 9 SCNJ 223; (1993) LPELR – 490 (SC) to concede that delivery of judgment on Saturday or Sunday may not be void, ipso facto, where the parties did not object!
He urged us to resolve the issues for Appellant and allow the appeal, and set aside the decision of the trial Court, and discharge and acquit the Appellant.
The Respondent’s Counsel, Chief M.E. Eze, Attorney General, Enugu State, who settled the brief, on Issue 1, (whether the Judgment was delivered on Saturday 15/6/2019, and had occasioned a miscarriage of justice), Counsel answered in the negative. He quickly said that the Judgment was not delivered on 15/6/2019, but on 15/7/2019, which was a Monday, and he referred us to pages 138 and 139 of the Records of Appeal, and added that, the indication on the heading of the Judgment that it was delivered on “Monday 15th Day of June, 2019” (Page 140 of the Records) was an error, as the Judge clearly signed on Pages 138 and 139 of the Records, that the Judgment was delivered on 15th July, 2019!
He said that 15th July, 2019 was a Monday, not Saturday and the judgment was delivered in the presence of Appellant and his Counsel Mrs. C.T. Aja, that it is a misconception and puerile for Appellant’s Counsel to argue, vociferously, that the judgment was delivered on a Saturday – 15/6/2019! Counsel said that, even if the judgment was delivered on a Saturday (which was not conceded), that cannot vitiate the decision, going by the case of Anie & 3 Ors Vs Uzorka & Ors (1993) 8 NWLR (Pt. 309) 1; Williams Esq & Anor Vs Adold/Stamm Int. Ltd (2013) LPELR – 20356 (CA); Obodo Vs Olomu (1987) 3 NWLR (Pt.59) 11; Eseigbe Vs Agholor (1990) 7 NWLR (Pt.161) 234.
Counsel also relied on the case of Azabada Vs State (2014) LPELR – 23017 (SC) to the effect that: “It is settled law that it is not every error committed by the law Court that would result in the decision being set aside by the Appellate Court. For an error to qualify as one that will inevitably lead to setting aside of the decision/judgment, it must be substantial in nature and must have resulted in a miscarriage of justice to the Appellant…” See also Saliu Vs State (2014) LPELR – 22998 (SC).
On issue 2, whether the trial Court was right to hold that the case of armed robbery was proved against Appellant, Counsel answered in the affirmative. He admitted that the burden of proof is always on the prosecution to establish the commission of the offence, beyond reasonable doubt, but added that proof beyond reasonable doubt is not, proof beyond all iota of doubt, or proof to the hilt. See Osetola Vs State (2012) 17 NWLR (Pt.1329) 251; Emmanuel Eke Vs The State (2011) 45 NSLQR (Pt.2) 652.
Counsel submitted that the prosecution had established the ingredients of the offence of armed robbery:
(a) That there was robbery or series of robbery;
(b) That the robbery was with arms or offensive weapons;
(c) That the defendant took part in the robbery (Onyenye Vs State (2012) 15 NWLR (Pt.1324) 586; Bozin Vs State (1985) 2 NWLR (Pt.8) 465).
He added that the ingredients of an offence can be proved by eye witness account, by confessional statement of the accused, or by circumstantial evidence. Counsel said that the Respondent had satisfied the three modes of proof in this case, beyond reasonable doubt, that PW2, who was the victim of the armed robbery had given clear and vivid account of how his Motorcycle was snatched by the Appellant (Pages 87 – 88 of the Records of Appeal), that the PW1 also said, on Page 86 of the Records:
“We also discovered that the accused came to our area in a bike. The bike the accused came in did not belong to him. The sister of the accused came. The top he was wearing was somehow torn.”
The PW4 (IPO) had also told the Court that the motorcycle belonged to PW2 and that they (Police) returned the recovered motorcycle to the real owner (PW2), as per Exhibit H.
PW4 also tendered the confessional statement by Appellant (Exhibit C) wherein he admitted that:
(1) He ordered PW2 to come down from his motorcycle, but he proved stubborn;
(2) He shot at PW2, but the gun refused to fire, so he and PW2 started fighting;
(3) He over powered PW2 and zoomed off with the motorcycle.
Counsel said the trial Court had found as a fact and held that:
“The ingredient to be proved is that there was a robbery. The PW2 who is the victim of the alleged robbery gave evidence that on the 12th of November, 2012, he was robbed of his motorcycle at Enugu Agu Achi by the Defendant. The PW1 gave evidence that the Defendant was found with a motorcycle, which did not belong to him. While PW4 gave evidence that one Carter Motorcycle with fake Registration Number QS 109 ENU, recovered from the defendant was released to the owner, that is, PW2, on bond. I am therefore satisfied that the prosecution has proved that the complainant was robbed.” (See Pages 148 – 149 of the Records of Appeal)
Counsel said the ingredients of the offence were proved, as there was evidence of use of a gun at the robbery. He said that, apart from the direct evidence of the PW2, as eye witness and victim of the robbery, the Appellant had made a confessional statement, admitting the crime, and the motorcycle was recovered, as well as the gun!
He urged us to resolve the issues against Appellant and to dismiss the appeal. He relied on several authorities, including the case of Bille Vs State (2016) LPELR – 40832 (SC); Adeyemo Vs State (2015) 4 SC (Pt.11) 112; Osetola Vs State (2012) 17 NWLR (Pt.1329) 251.
On the confessional statement, Exhibit C, Counsel said the same was enough to lie the conviction, as it is trite law, that Appellant can be convicted solely on his confessional statement, if free and voluntary. See Asimi Vs State (2016) 12 NWLR (Pt.1527) 414; Olanipekun Vs State (2016) 13 NWLR (Pt.1528) 100. Counsel said the allegation that the confessional statement was obtained by undue influence, was debunked as the trial Court had conducted a trial within trial, to disprove that allegation, before admitting the Exhibits B and C. He said that the trial Court had found that the confessional statement was not only direct and unequivocal, but was also amply supported by other pieces of evidence before the Court. He referred us to Pages 151 – 152 of the Records, where the trial Court said:
“… Where a confessional statement had admitted all the essential ingredients of an offence, and shows, unequivocally, direct and positive involvement of the defendant in the commission of the crime alleged, the Court can rely on it to convict the defendant. See Odua Vs FRN (2002) NWLR (Pt.761) 615.”
Counsel concluded that in addition to the evidence of PW1 and PW2, that the confessional statement of Appellant had admitted all the essential ingredients of the offence of armed robbery, he said that the decision of the trial Court was unimpeachable, and that there was no material contradictions in the evidence of the prosecution.
Appellant had filed a reply brief, raising some issues of confusion by Respondent’s Counsel as to the number of grounds of appeal by Appellant, which confusion also affected the way Respondent formulated issues for determination. I think I have earlier taken care of that confusion, raised in the reply brief which led to my striking out the issues 3 and 5 by the Respondents, for incompetence.
RESOLUTION OF ISSUES
I think the relevant issue for the determination of this Appeal is whether the trial Court was right to hold that the offence of armed robbery was established against Appellant in this case, and that Appellant was properly identified as the person who robbed the PW2 of the motorcycle.
Counsel on both sides have agreed and cited judicial authorities as to what constitutes offence and ingredients of offence of armed robbery, that it must be established that there was a robbery or series of robberies, that the robbery was done with arms, or offensive weapons, and that the defendant (or Appellant) participated in the robbery or was one of the robbers. See the case of Onyenye Vs State (2012) 15 NWLR (Pt.1324) 586; Bozin Vs State (1985) 2 NWLR (Pt.8) 465; Opeyemi Vs State (2019) LPELR – 48764 (SC); Oyebola Vs State (2008) ALL FWLR (Pt.402) 1175; Bello Vs State (2007) 10 NWLR (Pt.1043) 563.
See also the case of Ighalo Vs The State (2016) LPELR – 40840 SC, where it was held:
“Taking the yardstick on the expected standard of proof and juxtaposing it to the essential ingredients of the offence of arm robbery, to which that standard is to be met and the stated elements of the offence are thus:
(1) That there was a robbery;
(2) That the robbery was executed with the use of offensive weapons, and another way of saying so is that the said robbery was an armed robbery and;
(3) That the accused person participated in it. Those elements above, have to co-exist and established beyond reasonable doubt. See Awosika Vs State (2010) 9 NWLR (Pt.1198) 40 at 71 – 73.”
The law is also trite, that such offence and, in fact, any crime, can be established by means of direct evidence of eye witness(es), or by confessional evidence of the accused person, adjudged voluntarily and freely made, and/or by circumstantial evidence, which is cogent and credible, pointing conclusively at the accused person as one to bear the guilt for the offensive act/omission. See Amos Vs The State (2018) LPELR – 44694 (SC); Awo Vs The State (2020) LPELR – 50619 CA.
In this case, the prosecution appeared to have relied on the three modes of proof of the crime, when they produced the PW2, the victim of the robbery, to give detail account of how he was robbed of his motorcycle, the prosecution also relied on the Exhibit C (confessional statement of Appellant), which, though seriously contested and retracted as not having been made voluntarily, the Court adjudged admissible, dismissing the objection and claim of being made under duress. The said motorcycle, snatched from PW2, was also recovered from Appellant and produced in evidence, together with the gun (arm), allegedly used for the robbery.
In such circumstances, Appellant really had herculean task trying to fault the decision of the trial Court convicting him, founded on such evidential proof by the multiple sources. In the case of Solomon Manger Vs C.O.P. FCT (2021) LPELR – 53466 CA, it was shown that where the three modes of establishing commission of the crime coalesce, to establish conviction, it becomes difficult to dislodge.
Appellant’s Counsel had attacked the evidence that suggested Appellant was the passenger which PW2 carried on his motorcycle, who turned out to rob PW2 of the bike. He argued that identification parade was not conducted for the proper identification of the accused person. He also argued strongly that the villagers who responded to PW2’s shout for help (and who arrested the accused (fleeing robber), were not called to give evidence and to identify Appellant as the said robber. Counsel also argued that there was conflict in the evidence, as to the gun(s) recovered at the scene of crime by the prosecution. In that case of Solomon Manger Vs C.O.P. (supra), this Court held that identification parade is not necessary, where the accused was clearly known. We said:
“Appellant had complained about the failure of the Police to organize an identification parade for the purpose of the accused person(s) identification by the PW1, the victim of the crime. I do not think identification parade was necessary in this type of a situation, that the victim of the crime had a long time and opportunity of interacting with those who subsequently attacked and robbed him. He saw them clearly as they were friendly, initially, discussed with them, while in the car, and even after the robbery, he saw them come out of the car to threaten to shoot him, if he continue to pursue them. Moreover, on being arrested, two days after, PW1 could identify them and his phone, stolen by them, at the time of snatching the car, the phone was found on them. See the case of Ajomayan Vs The State (2020) LPELR-49598 CA. As rightly submitted by counsel on both sides, an identification parade, or need to clearly identify an offender is only necessary, where and when the victim or witness did not have opportunity to see/know him, in some intimate way or at close range, to leave some lasting impression of the offender on the victim or witness. Such parade may be the case, where the victim or witness never met the offender before the attack and the attack lasted in a split movement, leaving no room for acquaintance and/or strong interaction. See the case of Ikemson Vs State (1989) 6 SC (Pt. 5) 1 at 14; Auta Vs The State (2018) LPELR – 44490 (CA) and Idowu Vs The State (2019) LPELR – 48459 CA, where it was held: “On when an identification parade is necessary, the Supreme Court in the case of Wisdom Vs The State (2017) 7 NWLR (Pt. 1586) 446 at 468 paragraph B – F held as follows: “In Akeem Agboola Vs The State (2013) 11 NWLR (Pt. 1336) 619… I had opined that an identification parade only becomes necessary where the victim did not know the accused before his acquaintance with him during the commission of the offence, where the victim saw the offender for a short time, where the victim might not have the opportunity of observing the features of the accused.” An identification would become necessary only in the following situations of visual identification: (i) Where the victim did not know the accused person before and his first acquaintance with him during the commission of the offence. (ii) Where the victim was confronted by the offender for a very short time and (iii) Where the victim due to time and circumstances, might not have had the full opportunity of observing the features of the accused.”
I do not think Appellant can successfully fault the admission of his confessional statement in evidence, and the reliance on same by the trial Court, when the trial Court had duly conducted the trial-within-trial and was convinced Appellant made the said statement, voluntarily; as it was obvious that the injuries and wounds which Appellant sought to rely on as evidence of torture to confess, could have as well been the proof of his fight with the PW2, at the point of snatching the motorcycle from PW2.
PW2’s evidence, on pages 87 to 88 of the Records, had said:
“I told him to leave what he was about doing, that I am a prophet, that he should take the N5000 with me and leave the motorcycle. As I was talking to him he shot me, but the gun did not fire. At this point, I pounced on him and fought him. I collected the two guns from him and dropped them on the side of where we were fighting. The accused hit me on my private part and I fell down. The accused now started the motorcycle and drove off. At this point I shouted for help…”
PW1 had said:
“We also discovered that the accused came to our area in a bike. The bike the accused came in did not belong to him. The sister of the accused came. The top he was wearing was somewhat torn.” (Page 86)
Both PW1 and PW2 had opportunity to see and interact with the robber (accused person) closely to be able to know and identify him, subsequently, especially as PW2 had carried him as a passenger and was said to have bitten him at the ear. I do not think there was need to conduct any identification parade by the Police, in the circumstances, to identify Appellant, as the assailant, who snatched the motorcycle. It is also obvious that the confessional statement by Appellant (Exhibit C) had agreed with the other pieces of evidence. See again the case of Manger Vs State (supra), on the consideration of a retracted confessional statement:
“… Appellant had disowned the statements he made, on the ground of the same having been made under duress. I think in such a situation, the Court still had to consider the said statements (the content thereof) in the light of other pieces of evidence adduced in the case, to appreciate the claims of Appellants, whether, in fact, there was any truth in the allegation of threat to make the said statements. Thus, while treating the statements as having been retracted (or denied) by the accused person (Appellant), the Court had to look at, and consider other pieces of evidence, to see whether the rejected (retracted) statement agreed (or aligned) with the other pieces of evidence, to establish or disprove the charge with which the accused was charged. See the case of Ayodele Ikumonihan Vs The State (2018) LPELR-44362SC, where the apex Court said: “Now it is well established principle that the statement of the accused person to the Police is considered part of the case for the prosecution, whether it contains a confession or not, and whether the accused person resiles it at the trial or not – See Egboghonome Vs State (1993) 7 NWLR (Pt. 306) 383 SC. It is also settled that the Court can convict on the retracted confessional statement of the accused person, however, before this is done, the trial Court is enjoined to evaluate the confession of the Accused Person and his testimony at the trial, as well as, other evidence adduced. This would entail the trial Court examining the new version of events presented by the accused person that is different from his retracted confession, and satisfy itself that the statement was free, voluntary and properly taken and that it passed the six tests to be applied to a confession, as suggested by Ridley J., in the case of R Vs Sykes supra. The said tests have been adopted by this Court in a number of decided cases, including Ogudo Vs State (2011) 18 NWLR (Pt. 1278) 1 SC, wherein this Court explained that in determining the weight to be attached to a confessional statement, retracted or not, the Court must ask itself the following: Is there anything outside the confession which shows that it may be true? – Is it corroborated in anyway? – Are the relevant statements of fact made in it most likely true as far as they can be listed? – Did the accused have an opportunity to commit the offence? – Is the confession possible? – Is the confession consistent with other facts, which have been ascertained and established? In effect, although the Court can convict only on the extra judicial confessional statement of the accused person, it is desirable to find independent evidence, that is to say, to have some evidence outside the confession, however slight, of circumstances which make it probable that the said confession was true. See Queen Vs Itule (supra), R Vs Kanu (supra) and Edhigere Vs State (supra) Per Augie J.S.C…”
There are many other pieces of evidence in this case to support the conclusion that Appellant made the confessional statement, voluntarily, particularly the recovery of the motorcycle from him.
Appellant’s Counsel had argued, strongly (and beautifully) to suggest that Appellant was not the passenger PW2 carried on the bike, who turned out to rob PW2, he said that Appellant was not the accused person identified with the crime. All that argument, in my view, amounted to only empty advocacy and academic exercise, in the face of the confessional statement (Exhibit C) by the Appellant, which admitted, as follows:
“… I told him to stop and pretend to be bringing out money to pay him, but I brought out… gun from the loaf of bread and pointed it at him and ordered him to come down from the motorcycle. The man proved stubborn and didn’t want to leave the motorcycle. I then fired at him but the gun refused to fire. We started fighting which process he gave me human bite. I was able to overpower him and I zoomed off with the motorcycle…” Pages 38 and 39 of the Records.
We have held, several times, that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR – 9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted.
See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.
Appellant had raised the issue that the judgment was delivered on a Saturday, 15th June, 2019. That was not an honest submission, in my opinion, as Appellant’s Counsel knew, or should have known, that the judgment was delivered on Monday, the 15th day of July, 2019, not the alleged “Monday 15th June, 2019”, erroneously typed on the heading of the judgment, on Page 140 of the Records.
Pages 138 and 139 of the Records of Appeal shows that the trial judge signed off the judgment on 15/7/2019, after taking the Allocutus by defence Counsel (Mrs. Aja), as follows:
“RESUMED ON MONDAY THE 15TH DAY OF JULY, 2019…
ALLOCUTUS:
The defence Counsel has pleaded with the Court to tamper justice with mercy.
Mrs. Edemba says that it is a case of mandatory sentence.
COURT: Mr. Obiorah Ubara, the sentence of this Court upon you is that you shall be hanged by the neck until you are dead. May the Lord have mercy on your soul. Signed Judge 15/7/2019.”
I hold that the judgment was delivered on Monday, 15th July, 2019, not on Saturday 15th June, 2019.
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The law is also trite that even where a judgment is delivered on Saturday or any public holiday, the same cannot be vitiated or nullified, merely for that reason, especially where the parties consented to the delivery. See the case of Anie & Ors Vs Uzorka & Ors (1993) NWLR (Pt.309) 1; (1993) 9 SCNJ 223; (1993) LPELR – 490 (SC).
In these era of time bound cases, particularly, in election related cases, no date or day is sacred, anymore, to outlaw or prohibit the delivery of judgment by Court in Nigeria. Even in ordinary cases (outside election matters), where a Court runs the risks of flouting the constitutionally stipulated 90 days for delivery of judgment, after final addresses (Section 295(1) of the 1999 Constitution), I do not see any impediment in delivering a judgment on Saturday or Sunday, or any public holiday, whether Civil or Criminal, to save the judgment from lapsing.
I see no merit in this appeal as I resolve the issues against Appellant and dismiss the appeal.
AHMAD OLAREWAJU BELGORE, J.C.A.: I agree
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered herein by my learned brother ITA GEORGE MBABA, JCA and I totally endorse the reasoning and conclusion therein.
I equally find no merit in this appeal and I therefore dismiss it. I adopt the consequential orders in the lead judgment as mine.
Appearances:
PRINCE CHARLES IBEH For Appellant(s)
CHIEF M.E. EZE, A.G. ENUGU STATE (who settled the brief) with him S.U. MADU (MRS.) (CLO ENUGU STATE) and I.U. UMEOBIKA (MRS) ACLO ENUGU STATE) For Respondent(s)