EZE v. STATE (2022)

EZE v. STATE

(2022)LCN/16510(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, April 29, 2022

CA/K/42A/C/2020

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

CHRIS EZE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

THE POSITION OF THE LAW IN RELATION TO THE EFFECT OF A RETRACTED CONFESSIONAL STATEMENT

The trite position of the law in relation to the effect of retracted confessional statements was authoritatively stated by the Supreme Court per Rhodes-Vivour JSC in the case of Chukwuka Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1 at 26:
“The inconsistency rule does not apply to an accused person. It does not cover a case where the accused person’s extra-judicial statement is contrary to his testimony in Court. A Court can convict on the retracted Confessional Statement of an accused person but before this is properly done, the trial Judge should evaluate the confession and testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person which is different from the retracted Confession and the Judge asking himself the following questions:
a. Is there anything outside the confession to show that it is true?
b. Is it corroborated?
c. Are the relevant statement made in it of facts true as far as they can be tested?
d. Did the accused person have the opportunity of committing the offence charged?
e. Is the confession possible?
Is the confession consistent with other facts which have been ascertained and have been proved? See KANU & ANOR. VS. KING (1952)14 WACA P.30; MBENU VS. STATE (1988)3 NWLR (PT.84) P.615,STEPHEN VS. STATE (1986)5 NNLR (PT.46) P.978.”
In the light of the above, the trial Court was in palpable error to have convicted the Appellant on his retracted confessional statement without any legally admissible independent or corroborative evidence.
Issue 2 is resolved in favour of the Appellant. MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Kaduna State in the Kaduna Judicial Division delivered by Hon. Justice Darius Khobo on 7th day of March, 2019.

The Appellant was the 2nd accused amongst four (4) accused persons initially arraigned before the High Court on a two count charge of armed robbery of (1) John Fred Atanga (2) Pastor Augustine King at their residence at No. 32 Stephen Ibrahim Street, Ungwan Boro Kaduna of various valuables items which include Toyota Matrix Vehicle with registration number AG 983 ABC, Samsung LC TV, HP Laptop, Cash, Decoders, Clothes, Jewelries etc. an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 311 LFN, 2004.

In the course of the trial, the 3rd accused person absconded, leaving the Court with 1st, 2nd (Appellant) and 4th accused.

The case of the prosecution against the Appellant based essentially on his retracted confessional statement was presented by its sole witness, PW1, who testified as to how he took confessional statement from the Appellant and the two other accused persons.

He claimed that the Appellant understood English language but asked him to write a statement which the Appellant signed and was later endorsed by one of his superiors at a time when he (PW1) was not on duty. PW1 witnessed that the case file of the Appellant and the two other accused persons was transferred to his C.I.D Department from the Sabon Tasha Police Station.

The Appellant in defence claimed that he was arrested at about 10.00am on 16/8/2013 on his way to Sabo Market by policemen at Doka Street Kamanzo. That he did not know why he was arrested but that he was taken to Sabon Police Station where he made a statement which was not tendered by the prosecution. That his case was then transferred to State CID where he was beaten up and later detained in cell for two days.
“Thereafter I was produced and a prepared statement was brought to me. I did not make any statement at the State CID…”
He denied making Exhibit 3 though he signed it.

He does not know when the alleged robbery took place. He met the co-accused for the first time at the Magistrate’s Court where they were charged together, long after the alleged robbery had occurred on 8/8/2013 around 2.00am he was sleeping in his house at Kamanzou.

At the end of the trial, the learned trial Judge convicted the Appellant on the basis of the retracted confessional statement Exhibit 3 tendered by PW1.

At pages 145–146 of the Record of Appeal, the learned trial Judge concluded thus:
“In the instant case, from the above analysis of the pieces of evidence presented before this Court, this Court is satisfied as to the truth of the confessional statements made by the 1st, 2nd and 4th defendants and that the prosecution has discharged the burden of proving affirmatively beyond reasonable doubt that the said confessions were made voluntarily and the guilt of the defendants has been established.
It is my considered view therefore, that the defence put forth by the 1st, 2nd and 4th defendants in this case is not only feeble but is weak and does not impugn on the fact that the confessions made by the defendants are free, voluntary and unequivocal such that this Court can safely convict on it.
The prosecution therefore, in my view has been able to prove the offence of armed robbery beyond reasonable doubt against the defendants as required by law to warrant this Court to convict the defendants.
Accordingly, the defendants here namely Jonathan Ikechukwu, Chris Eze and Hosea Diga are hereby accordingly convicted of the offence of armed robbery contrary to Sections 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 2004.”

Dissatisfied with this judgment, the Appellant filed a Notice of Appeal containing six (6) grounds of appeal in this Court on 5/6/2019.

The Appellant’s grounds of appeal together with their particulars are reproduced below:
“GROUND ONE
The learned trial Judge erred in law when he convicted the Appellant for the offence of Armed Robbery as contained under Section 2(2)(a) of the Robbery and Firearms (special provisions) Act Cap. R11 LFN 2004 when the ingredients of the offence had not been proved against the Appellant.
PARTICULARS OF ERROR
1. No agreement to commit robbery was proved between the Appellant and the other Co-convicts by the Respondent who had the legal burden to prove same.
2. The Respondent did not prove that the Appellant took part in the robbery since he was not arrested at the scene of the crime, no weapon was discovered on him and identification parade was not conducted by the police.
3. The Respondent at the lower Court did not prove that the Appellant and his Co-Convicts used any weapon during the robbery as no weapon was tendered as evidence during the trial neither was cogent evidence adduced by the Respondent to that effect.
4. The prosecution did not call any of the Complainants who were the victims/eye witnesses to testify and identify the Appellant, neither were the statements made by Complainants tendered as even though same were in the Respondent’s custody.
GROUND TWO
The learned trial Judge erred in law in relying principally on the combined effects of all the alleged confessional statements (Exhibits 2, 3 and 5) purportedly made by the Appellant and the Co-convicts in convicting the Appellant when:
PARTICULARS OF ERROR
1. The said confessional statements were not positive, direct and consistent with the facts in evidence as adduced by PW1 who was the only witness at the trial Court.
2. There was nothing outside the confession statement to support the conviction of the Appellant on the offences charged.
3. The facts in evidence were never tested and investigated by PW1 to ascertain the truth of the purported confession of the Appellant.
4. PW1 who gave evidence did not know the police officer that investigated the crime neither did he know how the Appellants were arrested but was only told how the Appellant was arrested.
5. The Appellant denied retracted from Exhibit 3 and denied making same.
6. The Appellant made two statements but only one (Exhibit 3) was tendered before the Court. The Prosecution withheld the 1st statement made at the Sabon Tasha Police station.
GROUND THREE
The learned trial Judge erred in law when he held that Exhibit 3 was the true confessional statement that were made freely, voluntarily, and proved and same passed the required tests for confessional statements which the Appellant was safely convicted on.
PARTICULARS OF ERROR
1. The Appellant denied making Exhibit 3 and did not have any knowledge of its contents as he was only given the statement and was made to sign under duress.
2. The Appellant made two statements during the course of investigation but only one was tendered as evidence before the lower Court.
3. The statement of the Appellant was not made in the presence of his legal practitioner or reduced to video recording.
GROUND FOUR
The learned trial Judge erred in law when he believed the evidence of the PW1 and gave weight to Exhibit 3 when the PW1 did not carry out the duties of an investigating police officer thus making Exhibit 3 suspect.
PARTICULARS OF ERROR
1. The PW1 from the totality of the Respondent’s evidence only purportedly took the statements of the Appellant and Co-convict.
2. The PW1 did not give evidence showing that he visited the scene of crime, interviewed witnesses, investigated the contents of Exhibit 3 e.t.c.
3. The PW1 did not tell the Court how the Appellant was arrested.
GROUND FIVE
The learned trial Judge erred in law when he failed to relate the applicable laws of the case to the evidence of the Appellant when the said evidence was not contradicted, discredited or controverted by the Respondent, wherein the Appellant denied participating in the alleged robbery.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

PARTICULARS OF ERROR
1. There was no evidence to show that the Appellant was at the scene of the crime or even participated in the alleged robbery.
2. The Respondent failed to rebut, impeach or contradict the evidence adduced by the Appellant during cross-examination of the Appellant; hence the Appellant’s evidence remained un-impeached, uncontroverted and uncontradicted.
3. That it is to the evidence adduced by the Appellant that the trial Court should have applied the relevant laws in determining the charge.
GROUND SIX
The decision is unreasonable and cannot be supported having regard to the evidence adduced in the matter.”

Appellant’s brief of argument was filed on 19/11/2021 but it was deemed filed on 22/11/2022.
It was settled by E. E. EKHASEMOMHE Esq.

Respondent’s brief of argument was filed 24-02-2022 but it was deemed filed on 30/03/2022. It was settled by S. S. IDRIS Attorney General’s Chambers, Kaduna.

Learned counsel for the Appellant nominated three (3) issues for the determination of the appeal. They are:
a. Whether having regard to the totality of the evidence led by the Prosecution and the contents of the documentary evidence tendered, it can be said that the Prosecution has been able to prove beyond reasonable doubt the offence of armed robbery against the Appellant. (Distilled from Grounds 1 & 6 of the Appellant’s notice of appeal)
b. Whether the learned trial Judge was justified in convicting and sentencing the Appellant for the offence of armed robbery for which he was charged with when the evidence adduced by the Appellant in his defence was not contradicted, discredited or controverted by the Respondent. (Distilled from Ground 5 of the Appellant’s notice of appeal.)
c. Whether the learned trial Judge was right in convicting the Appellant for the offence of armed robbery solely on the uncorroborated and retracted Confessional Statement of the Appellant. (Distilled from Grounds 2, 3 & 4 of the Appellant’s notice of appeal)”

Learned counsel for the Respondent nominated a sole issue for determination of the appeal. It is:
“Whether having regards to the facts and circumstances of this case and the evidence adduced at the trial, the prosecution/respondent has not proved the guilt of the appellant beyond reasonable doubt to have justified the verdict of guilt against the appellant? (Grounds 1–6).”

I have carefully gone through all the processes filed in this appeal and I am convinced that Appellant’s issue Nos. 1 and 3 which I now renumber as issue Nos. 1 and 2 would suffice in the determination of the appeal.

On issue 1, learned counsel for the Appellant submitted that the evidence led at the trial fell short of the legal requirement of the offence of armed robbery under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 LFN, 2004.

He demonstrated the ingredients of the offence of armed robbery as stated in the case of Oseni v. State (2012) 5 NWLR (Pt. 1293) P. 351 at 386 as follows:
“a. That there was a robbery.
b. That the robbery was an armed robbery.
c. That the accused while with arms participated in the robbery.

On this, he also referred to the cases of Okoh v. State (2014) FWLR (Pt. 736) 44, Ibrahim v. State (2015) 11 NWLR (Pt. 1649) 188–189, Ajayi v. State (2014) ALL FWLR (Pt. 711) 1457 at 1490.

He reminded us that the prosecution must prove each of the above ingredients beyond reasonable doubt.

Learned counsel for the Appellant pointed out that the evidence of PW1 Sergeant Bot Stephen, the police officer with the State CID anti-robbery Section, Kaduna detailed to take the statement of the Appellant and the other accused persons at their office as contained at pages 82-84 of the records could be summarized as follows:
a. “That a case of criminal conspiracy and armed robbery was transferred by the D.P.O Sabon Tasha Police Station Kaduna along with the Appellant and three other accused persons with two Exhibits of HP laptops on the 24/8/13 while he was at the office, for further investigation.
b. That he was detailed to take the Statement of the Appellant and the three other accused persons at their said office at State C.I.D Kaduna under the anti-robbery section.
c. That the Appellant and the other accused persons asked him to write their Statement on the Statement Form on their behalf after each agreed that they understood English Language and volunteered their Statement. Thereafter, each of them signed the Statement and he counter-signed after reading same to them.
d. That he discovered that each Statement was confessional in nature.
e. That at the time he was about taking each of the accused persons including the Appellant to his superior officer, he was sent to Zaria on an assignment.
f. That he handed over each Statement to his team leader, Inspector Yusuf Abubakar and that on his return, he noticed that each accused person including the Appellant had already been taken before a Superior Police Officer ASP Ibrahim Kolawole by his team leader where their Statements were endorsed.
g. That the Complainant Fred Atanga, was traced and he made a Statement to that effect and was able to identify two Exhibits Laptops to be his which were eventually released to him on bond.”

He submitted that from the evidence of PW1, no eye witness or victim was called by the prosecution and no ammunition was tendered to establish the alleged act of armed robbery except the reliance on the purported confessional statements of the Appellant and his other co-accused persons.

He submitted that the evidence of PW1 did not prove beyond reasonable doubt the essential ingredients of armed robbery. It is the duty of the prosecution, said counsel, where an accused person is not arrested at the scene of the crime to conduct a proper identification. The prosecution in this case has an even greater duty to prove that the Appellant committed the crime alleged as the said robbery is alleged to have been committed at night when visibility is blurred, that is at about 2.00am.

The basis of identification evidence, said counsel is to show that the person charged with the offence is the same person who committed the offence. The only proper and valid way by which the prosecution can prove the identity of an accused person is by conducting an identification parade.

Appellant’s counsel referred to the decision of the Supreme Court in the case of Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360 pp. 381–382 to insist that an identification parade is necessary in the circumstances of this case. He submitted that the Osuagu case (supra) held that:
“it is the circumstance of a case as a whole that determines whether an identification parade is necessary. In the following situations, 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:
1) When the offence was committed in the dark and the victim only had a fleeting encounter with the robber.
2) When it is clear that the victim was traumatized when the offence was committed.
3) When the eye witness/victim fails at the earliest opportunity to name the person known to him who he claims committed the offence.
4) When the robber was not arrested at the scene of the robbery but was arrested after the robbery.”

Still on the above, he further referred to the cases of Alabi v. State (1993) 7 NWLR (Pt. 307) 511 and Nwatu Ruocha v. State (2011) 6 NWLR (Pt. 1242) 170 and submitted that the Police ought to have carefully conducted an identification parade during the investigation, for the complainant Fred Atanga or any of the other victims of the alleged robbery to identify the faces of those hey saw the very night of the robbery.

He further submitted that PW1 admitted under cross-examination that he never conducted an identification parade for the purpose of the complainant identifying the Appellant since the Appellant was never arrested at the scene of the crime and that he had never met the Appellant or any of the accused persons before they were brought to him.

The question that begs for an answer, said counsel is who identified the Appellant as one of the robbers. This, he said is important as the Appellant was not arrested at the scene of the crime and nothing was recovered from him.

Learned counsel for the Appellant further submitted that the possession and usage of arms is integral to prove the offence of armed robbery. That where there is no such proof, the case of the prosecution must inevitably fail.

He referred to the cases of Friday Micheal v. The State (2002) 1 NWLR (Pt. 749) 500 at 509–510 and State v. Ajayi (2016) 44 NWLR (Pt. 153) 196 at 234. He added that in the latter case, where the prosecution failed to provide credible evidence of armed robbery, the Supreme Court held that the failure to tender weapons was fatal to the prosecution’s case.

On the reliance by the prosecution on the Appellant’s purported confessional statement Exhibit 3 which allegedly contained a statement that the1st accused was with a locally made pistol during the operation. Counsel submitted that PW1 the sole witness for the prosecution did not give evidence at the trial that any weapon was recovered from either the Appellant or his other co-accused persons during their investigation. The prosecution did not tender any weapon during the trial.

Appellant’s counsel further submitted that the victim of the robbery was not called. That statement credited to the victim was never produced and tendered in evidence before the trial Court. It is trite, said counsel, that the victim of an armed robbery is a most vital witness in a case of armed robbery.

That failure to call such a victim to testify vitiates the case of the Prosecution, such as the Respondent herein. That it was based on this reasoning that the Supreme Court set aside the judgment of this honourable Court in Ogudo v. The State (2011) 18 NWLR (Pt. 1278) 1 at 31–32.

He further referred to the case of State v. Nnolim (1994) 5 NWLR (Pt. 345) 394 and concluded that the trial Court erred in law in convicting the Appellant where the victim of the purported robbery failed to testify before the trial Court.

In response to issue 1, learned counsel for the Respondent re-emphasised that the decision of the Court below was based on the retracted confessional statement made by the Appellant Exhibit 3, which contained the facts relating to some robbery. That for the same reason, this case is not one that required an identification parade as the Appellant’s confessional statement Exhibit 3 was sufficient to ground his conviction.

He reproduced the Appellant’s purported confessional statement Exhibit 3 thus:
“…I have embarked on series of robbery operation in Kaduna. I could remember early this month myself together with Jonathan, Lucky Hosea and Flex invaded a residential house at Unguwan Boro Sabon Tasha Kaduna. Jonathan was in possession of a locally made pistol during the operation. We attacked the occupant at gun point and robbed him of his Toyota Matrix car, HP laptop, about six handsets of different make, two strong decoder, and one startime decoder, plasma TV (Samsung) and a cash sum of N62,000. After the robbery operation we shared the money amongst which I was given the sum of N12,000. Jonathan and I tookthe Toyota Matrix to one Ben in Abuja which he promised to keep the car with him pending when we bring another (one) car for him. We sold the HP laptop to the said Ben at the rate of N20,000. My own share of the handset I sold it to one Jauro.”

He urged us to accept that the Prosecution/Respondent proved the ingredients of armed robbery against the Appellant.

In deciding Appellant’s issue 1, the question is not just the fact that an identification parade was not conducted when in fact it ought to be conducted.

Again, the question is not just that the prosecution did not recover any weapons of robbery or that none was tendered as pointed out by the learned counsel for the Appellant.

I think the big question in relation to issue 1 is whether in fact from the evidence led there was any act of robbery nay armed robbery.

It is only when the prosecution has established the offence of armed robbery as having taken place that the extra-judicial statement of an accused if any could be relevant or come into play.

In the instant case, there was/is no legal evidence that the offence of armed robbery ever took place; Not to talk of the offence been committed by the Appellant or anyone for that matter.

The evidence of PW1 the sole witness for the prosecution that a case of robbery reported at the Sabo Police Station was transferred to the State C.I.D. where he was detailed to take statements of the Appellant and some other arrested persons is at best hearsay evidence if not hearsay upon hearsay as to the fact of the commission of the offence of armed robbery.
This is because the prosecution failed and/or refused to call the victims/complainants of the said armed robbery who are vital witnesses to testify at the trial.
The learned counsel for the Appellant was right to have referred us on this point to the decision of the Supreme Court per Rhodes-Vivour, JSC in the case of Chukwuka Ogudo v. The State (2011) 18 NWLR (Part 1278) 1 at 31 – 32 to the effect that:
“…A vital witness is a witness whose evidence is fundamental in that it determines the case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case. See State v. Nnolim (1994) 5 NWLR (Pt. 345) P. 394.
Furthermore, failure to callvital witnesses raises the presumption under Section 149(d) of the Evidence Act that had he been called the evidence he would have led would have been unfavourable to the prosecution.
…
The prosecution failed to call any of the three victims of the robbery and also failed to tender their statements. These are vital witnesses for the prosecution and failure to even call one of these vital witnesses is fatal to the prosecution’s case.”
In the instant case, the failure of the prosecution to call any of the victims of the offence makes it difficult to legally come to the conclusion that there was indeed an armed robbery.
Issue No. 1 is resolved in favour of the Appellant.

On issue 2, learned counsel for the Appellant submitted that though a Court of law can convict solely on the confessional statement of an accused. In serious offences, it is desirable to have outside the extra-judicial statement, some evidence which makes it probable that the confession was true.

On this, Appellant’s counsel referred to the cases of Stephen v. State (2013) NWLR (Pt. 1355) 153,Osuagwu v. State (2013) 5 NWLR (Pt. 1347) 360,Chiokwe v. State (2013) 5 NWLR (Pt. 1347) 205.

He submitted that in the light of the retraction of Exhibit 3 by the Appellant in the course of his testimony, the trial Court ought not to place reliance on Exhibit 3 to convict the Appellant. He submitted further that having regard to the retraction of Exhibit 3 by the Appellant and in the absence of corroborative or independent evidence, it is legally wrong for the trial Court to convict the Appellant on the basis of Exhibit 3.

On this, Appellant’s counsel referred to the case of Ogudo v. State (2011) 18 NWLR (Pt. 1278) 26.

The Appellant, said counsel, testified clearly to the effect that the confessional statement Exhibit 3 was not made by him but by PW1. But that consequent on threat meted to him he signed Exhibit 3 despite his objection to its content.

Appellant’s counsel referred to the relevant portion of the Appellant’s defense on page 112 of the Record of Appeal:
“The following day I was transferred to State CID. At the State CID I was taken upstairs to one officer called Mazi-Mazi who said that if I cooperate with him he will cooperate with me. Thereafter I was beaten up at the State CID and later detained in their cell for two days. Thereafter I was produced, and a prepared statement was brought to me.
I did not make any statement at the State CID.
EXH 3 shown to the witness who denied making EXH 3. Thereafter I signed the statement (EXH 3). I was detained for over 40 days at the State CID before I was taken to Court. Nobody was shown to me as the victim of the alleged armed robbery.
I do not know when this alleged robbery took place. I met these co-accused for the first time at the Magistrate’s Court where we were charged together, long after the alleged robbery had occurred.
No lawyer was with me when the EXH 3 was being made.”

He submitted further that the trial Court relied on Exhibit 1, the Bond to produce exhibits entered into by Fred Atanga, the complainant in respect of allegedly recovered exhibits, laptops and confessional statements purportedly made by other co-accused persons as the required corroboration in convicting the Appellant for the offence of armed robbery.

He submitted with respect to Exhibit 1 that the prosecution neither called the complainant nor tendered the complainant’s statement. Exhibit 1 has no link whatsoever with the Appellant.

He concluded Issue 2 on the trial Judge’s reliance on the purported confessional statements of co-accused persons to convict the Appellant. He referred to the case of Emeka v. State (2001) FWLR (Pt. 66) 682 at 690 and submitted that there was no evidence adduced to show that the Appellant either by words or conduct adopted such statements by co-accused persons. He submitted that such statements cannot be evidence against the Appellant except adopted by him.

In the final analysis, said counsel, there is no legal basis for the findings of guilt of armed robbery against the Appellant by the learned trial Judge on the Appellant’s retracted and uncorroborated confessional statement.
He urged us to resolve the issue in favour of the Appellant.

On issue 2, learned counsel for the Respondent submitted that the learned trial Judge found rightly that the Appellant’s confessional statement (Exhibit 3) was corroborated with the two HP Laptops which each of the defendants stated in their respective confessional statements that they went away with during the robbery operation. Learned counsel for the Respondent quoted the trial Judge to have said:
“In the instant case, considering the evidence of PW1 and Exhibit 1 outlined above in relation to the confessional statements of the defendants, exhibits 2, 3 and 5 respectively, the required corroboration was found. Especially, in relation to the 2 HP Laptops which each defendant stated in their confessional statements that they carted away with during the robbery operation.
The law is settled that where an accused person makes a confessional statement and the facts therein are used to recover items stolen, it will be safe to conclude that he made the statement, his later denial notwithstanding. The reason is that such facts could only have been within the personal knowledge of the accused. See Kolawole v. State (2015) 8 NWLR (Pt. 1460) 134 at 169 – 170 paragraphs E-A SC.”

And, that the learned trial Judge went further to state that:
“It is my view therefore, that when the defendant’s confessional statements are subjected to the foregoing 6 tests of verification it is without doubt that the prosecution has proved the case of armed robbery against the defendants beyond reasonable doubt as required by law and I so hold.”
He urged us to resolve the issue in favour of the Respondent.

First, I adopt my decision to the resolution of issue 1 in the determination of issue 2. This is because it could not be said that there was an act of armed robbery in the total absence of evidence from the victim(s) of the alleged offence. The evidence by PW1 as to the event of the robbery is hearsay and not legal evidence.

Specifically on issue 2, the learned trial Judge could not possibly find corroboration in the retracted confessional statements of co-accused persons to corroborate the retracted confessional statement of the Appellant.

Having resolved the two issues formulated and/or adopted by this Court in favour of the Appellant, this appeal is meritorious and it is allowed.

The judgment and conviction of the Appellant – Chris Eze being 2nd Accused in Suit No. KDH/KAD/100c/2014 are hereby set aside.

The said Chris Eze (Appellant) is accordingly acquitted and discharged.

BITRUS GYARAZAMA SANGA, J.C.A.: I have read a draft of the judgment delivered by my learned brother Owoade, JCA. I agree with and adopt as mine the decision reached in the lead judgment that this appeal is meritorious. I also allow same and set aside the conviction and sentence of the Appellant by the lower Court in Suit No. KDH/KAD/100C/2014. In its place, I pronounced that the Appellant is discharged and acquitted.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Mojeed A. Owoade, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

E. E. EKHASEMOMHE, ESQ. For Appellant(s)

S. S. IDRIS, ESQ. For Respondent(s)