UZOR v. STATE (2020)

UZOR v. STATE

(2020)LCN/15782(CA)

In the Court of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/E/98C/2018

Before Our Lordships:

MisituraOmodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

CHIJIOKE UZOR APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

THE ESSENCE OF AN IDENTIFICATION PARADE

THE VOLUNTARINESS OF CONFESSIONAL STATEMENT

It is also a settled law that where an accused intends to challenge the voluntariness of his confessional statement, an objection mustbe raised at the point when the prosecution seeks to tender the statement in evidence so that a trial within trial can be conducted to determine whether or not the statement was freely and voluntarily made by the accused. Allegation that a confessional statement was not voluntarily made raised after the admission of the statement as an exhibit or during the defence or at the address stage or in the brief of argument at the appellate Court will be regarded as an afterthought. See ALI V. STATE (2019) 14 NWLR (PT.1692) 314 AT 350 (G-H), TOPE V. STATE (SUPRA) AT 301 (B-D) 306 (D-G). MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

THE SETTLED LAW ON A RETRACTED CONFESSIONAL STATEMENT

THE PURPOSE AND ESSENCE OF THE DEFENCE OF ALIBI

In any case, the defence of alibi was demolished by the appellant’s confessional statement wherein he confessed to his presence at the scene of the crime and participation in the robbery. See OPEYEMI V. STATE (2019) 17 NWLR (PT. 1702) 403 AT 435 (B-D) where the Supreme Court held that:
“Alibi is not a statutory defence. It is a defence onthe facts that tend to show that at the material time the appellant was elsewhere other than the locus criminis. The purport of the defence of alibi is, therefore, only to cast reasonable doubt on the prosecution’s case. It is demolished once the prosecution adduces sufficient evidence that fixes the accused person to the offence alleged and its scene: Njovens V. The State (1973) 5 SC 17. The defence in the instant case seems to prevaricate on the defence of alibi. Exhibit J, J1 & K, which reinforce the case of the prosecution, had debunked the alibi. MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. ”

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of High Court of Enugu State delivered in charged no. E/149C/2012 on 20/10/2014 wherein the appellant was convicted for armed robbery and sentenced to death. The prosecution’s case at the Court below was that the appellant and others now at large armed with a gun and machetes invaded Amos Ogbes’ compound, UmunnajiNgedeUgwuaji about 11:45 pm and robbed Audu Emmanuel, Nwonuvu Chukwuemeka, OlovoChinonso and Ekede Emmanuel of their valuables. One of the victims of the robbery raised an alarm which attracted villagers to the scene. While the robbers were running away, the villagers pursued them and one of the robbers named ChidiebereOkoroike was caught. He mentioned the names of the other persons that participated in the robbery and their hideout. Based on the information given by ChidiebereOkoroike, the villagers arrested the appellant at Nwodo’s compound, New Garki, Enugu. Chidiebere Okorie and the appellant were handed over to the police. Chidiebere Okorie died in police custody. At the police station, the appellant made astatement wherein he confessed that he participated in the robbery.

Three witnesses testified for the prosecution. PW1 and PW2 were victims of the robbery. PW3 was a Police Officer attached to the Special Anti Robbery Squad (SARS). The appellant testified in his own defence and called no other witness. In a considered judgment delivered by C.I. Nwobodo, J. on 20/10/2014 the Court below found the appellant guilty as charged and sentenced him to death by hanging.

The appellant being aggrieved by the judgment filed a notice of appeal on 10/7/2018 time to file the appeal having been extended by the order of this Court made on 28/6/2018. The six (6) grounds of appeal without their particulars are:
GROUND ONE: ERROR IN LAW
“The learned trial judge erred in law when after discrediting the identification of the appellant as one of the armed robbers still convicted is (sic) for armed robbery instead of discharging him at that stage.
GROUND TWO: ERROR IN LAW
The learned trial Court erred in law when it held that Exhibit A was voluntarily made to DW3, the police officer at SARS Enugu and this led to a miscarriage of justice.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

GROUND THREE: ERROR IN LAW
The learned trial judge erred in law when he admitted Exhibit A as a voluntary statement of the appellant and acted on it as such inspite of the totality of the evidence by the appellant at the trial.
GROUND FOUR: ERROR IN LAW
The learned trial Court erred in law when he held as follows:
“However the defendant‘s evidence in this Court lends credence to the case of the prosecution. That Okoloike gave his name to the villager that night with which the villagers traced him to his home at Nwodo’s compound at New Garki…”
GROUND FIVE: ERROR IN LAW
The learned trial Court erred in law when it convicted the appellant based on Exhibit A without additional credible evidence in collaboration or support of the said confessional statement Exhibit A.
GROUND SIX: ERROR IN LAW
The findings of the Court are against the weight of evidence.”

The appellant’s brief was filed on 30/1/2019 and deemed as properly filed and served on 27/4/2020. The respondent’s brief was filed on 20/5/2020. The appellant’s counsel formulated the following issues for determination:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

1. “Whether the trial Court was not wrong to convict the appellant on the basis of Exhibit A even when the Court dismissed the identification of the appellant as one of the armed robbers.(GROUND 1).
2. Whether the trial Court was not in error in accepting Exhibit A as a voluntary confessional statement and convicting him on it on the ground that there were other corroborating facts which gave strength to Exhibit A. (GROUNDS 2, 3, 4 and 5).”
The respondent formulated the following issues for determination:
1. “Whether the trial Court was right in relying on the extra judicial statement of the appellant (Exhibit A) in finding him guilty of armed robbery?
2. Whether the prosecution proved beyond reasonable doubt the offence of armed robbery against the appellant?”

Having considered the judgment and the grounds of appeal against same, I am of the view that the issues formulated by counsel to both parties are subsumed into one issue which is whether the trial Court was right to accept the appellant’s confessional statement as a voluntary confessional statement and convicting him on it. The appellant’scounsel submitted that for the prosecution to succeed in proving an offence of armed robbery, it must prove all the ingredients of armed robbery beyond reasonable doubt. He referred to OSUAGWU V. STATE (2016) 16 NWLR (PT.1537) 31. He further submitted that identification of an accused is the most serious and important ingredient of the offence of armed robbery and where the Court finds that the accused person was not identified as one of the robbers, the trial Court should at that point return a verdict of not guilty unless there is another evidence which goes to show the correctness of such an identification. He referred to OSUAGWU V. STATE (SUPRA). It is the contention of the appellant’s counsel that at the point where the trial count faulted the identification of the appellant as one of the robbers that participated in the robbery, it should have returned a verdict of not guilty because the confessional statement, Exhibit A did not strengthen the identification of the appellant as one of the robbers and the evidence of PW1, PW2 and PW3 made nonsense of the whole issue of how the appellant was traced and arrested by the villagers.Counsel conceded that taking a suspect before a superior police officer for confirmation of a confessional statement is not a legal requirement, he however argued that compliance with that practice would have helped to properly determine the voluntariness of Exhibit A and the truthfulness of its content particularly in this case where the appellant is an illiterate. He conceded that the trial Court correctly stated the principle of law on requirement for corroboration of confessional statement; he however argued that the evidence of PW1 and PW2 could not provide the required corroboration because they cannot be discredited in some part of their evidence and believed in another part. He contended that the witnesses having been found not to be witnesses of truth on the issue of identification which would have completely nailed the appellant, the trial Court could not in another breadth found them to be witnesses of truth in the area of providing corroborative evidence to the confessional statement. He further contended that PW3’s evidence cannot provide the required corroboration because his integrity had been impugned by the appellant when he said PW3 drove a nail through his leg and tortured him and there was nobody with the appellant not even a legal representative when the statement was taken by PW3 when the appellant is an illiterate and his earlier statement at the Independent Layout Police Station was not tendered or given to the prosecution. He referred to OWHORUKE V. C.O.P. (2015) 15 NWLR (PT.1483) AT 576. He finally submitted that the trial Court was wrong in coming to the conclusion that Exhibit A is a voluntary confessional statement of the appellant to warrant his conviction for armed robbery.

In response, the respondent’s counsel submitted that the appellant was fully identified and linked to the armed robbery by Exhibit A and the evidence of PW1 – PW3, therefore the trial Court’s finding that an identification parade was unnecessary is correct. He referred to STATE V. SALAWU (2011) LPELR- 8252(SC) 1, ATTAH V. STATE (2010) 3-5 SC (PT.1) 1. He further submitted that the trial Court contrary to the submission of the appellant’s counsel never made a finding that the appellant was not properly identified as one of the robbers. It is also submitted that though the appellant’s confessional statement is self explanatory, the trial Court fully analyzed and subjected it to the laid down test for ascertainment of its veracity before arriving at the conclusion that the statement was actually made by the appellant.

On the ingredients of armed robbery, counsel referred to NWACHUKWU V. STATE (2007) 11 MJSC 39. He submitted that the evidence of PW1 and PW2 that the robbers came to their compound with iron rods and machetes and robbed them of their properties together with Exhibit A established the three ingredients of armed robbery. He urged the Court not to interfere with the conclusion of the trial Court that the prosecution proved its case beyond reasonable doubt as the decision has not occasion a miscarriage of justice.

RESOLUTION:
Section 135 of the Evidence Act, 2011 provides that:
“135. (1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it,whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
Thus it is trite law that in criminal cases, the burden of proving the guilt of the accused person is on the prosecution and the standard of prove is beyond reasonable doubt.

For the prosecution to secure a conviction for an offence of armed robbery, the following elements of the offence must be proved beyond reasonable doubt:
(1) That there was a robbery or series of robberies.
(2) That the robbery was an armed robbery.
(3) That the accused was the robber or one of the robbers.
See OPEYEMI V. STATE (2019) 17 NWLR (PT.1702) 403 AT 427 (E-F), PHILIP V. STATE (2019) 13 NWLR (PT.1690) 509 AT 542 (B-D).
The prosecution can discharge the burden of proof beyond reasonable doubt by (a) evidence of an eye – witness who saw the commission of the offence or (b) by voluntary confession of the accused person or (c) by circumstantial evidence. See among the plethora of authorities on this principle of law, STATE V. YAHAYA (2019) 13 NWLR (PT. 1690) 397 AT 416 (D – G) 433 (B – D). TOPE V. STATE (2019) 15 NWLR (PT.1695) 289 AT 300-301 (G-A). In the instant case, the prosecution relied on direct eye witness account of the victims of the robbery and the confessional statement of the appellant. There is no controversy on the 1st and 2nd ingredients of the offence of armed robbery. The evidence of PW1 and PW2 was clear, positive and unequivocal that on 9/7/2010 at about 11: 45 pm, some people armed with machetes, iron rod and gun entered their rooms, threatened them and robbed them of their phones and cash. The villagers who were alerted succeeded in arresting one of the robbers. Their evidence was not discredited under cross examination.
As rightly submitted by the appellant’s counsel, the identification of an accused person and his participation in the offence of armed robbery is the most important ingredient of the offence and the one that is always in contention. Proper identification of the accused as one of the persons that participated in the robbery is essential to a conviction. The Court must be satisfied that the evidence of identification proves beyond reasonable doubt that the accused before the Court was the person who actually committed the offence charged. See IKEMSON V. STATE (1989) LPELR-1473(SC) AT 42-43 (C-A), AKINRINLOLA V. STATE (2016) LPELR-40641(SC) AT 23(A-D).

An identification parade may be conducted where the only encounter the victim had with the accused is during the commission of the offence and for a very brief period. An identification parade is only one of the several ways of identifying the perpetrator of a crime. See OGU V. C.O.P. (2017) LPELR-43832 (SC) AT 29-30(A-E). Where the accused person is linked to the commission of the offence by convincing, cogent and compelling evidence, an identification parade is unnecessary. Where the accused person by his voluntary confession identified himself as the robber or one of the participants in the robbery, proper identification of the accused is no longer an issue in the trial and any doubt about the identity of the accused is destroyed. See IKEMSON V. STATE (SUPRA), ATTAH V. THE STATE (2010) 10 NWLR (PT.1201) 190 AT 200, AFOLABI V. STATE (2013) LPELR-20700 (SC) AT 20-21 (F-B), OKASHETU V. STATE (2016)LPELR-40611(SC) AT 18-19 (B-C). In AKINRINLOLA V. STATE (SUPRA) AT 25 (B-D), the Supreme Court Per OKORO, J.S.C. held that:
“As was held in Adeyemi v. State (supra), it is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. An accused person who has made a confessional statement which is accepted by the Court has indeed identified himself. To talk about any further identification is, to say the least, superfluous.”
The contention of the appellant’s counsel that the trial Court should have discharged and acquitted the appellant upon finding the evidence of PW1 and PW2 on the identification of the appellant to be unreliable is misconceived. The confessional statement of an accused person admitting the commission of a crime will make further identification evidence unnecessary. The appellant having by his own confession identified himself as one of the robbers that committed the robbery for which he was charged, the finding of the trial Court that the evidence of PW1 and PW2 on the identification of the appellant is unreliable is of no consequence. Counsel attacked the appellant’s confessional statement on many grounds. The 1st is that the appellant was not taken before a superior police officer for confirmation of his statement. However, counsel rightly conceded that the failure to observe the procedure of taking a suspect before a superior police officer for confirmation of a confessional statement does not render it inadmissible. Failure to observe the procedure without more does not prove that the statement was not made voluntarily. Observance of the procedure only makes prove of voluntariness of a confessional statement easier for the prosecution. See TOPE V.STATE (2019) 15 NWLR (PT.1695) 289 AT 301-302 (G-B).

The 2nd contention against Exhibit A is that the trial Court was wrong in its conclusion that Exhibit A is a voluntary confessional statement to warrant the conviction of the appellant. The law is settled that a free and voluntary confession of guilt by an accused which is direct and positive is sufficient to ground a conviction.

It is also a settled law that where an accused intends to challenge the voluntariness of his confessional statement, an objection must be raised at the point when the prosecution seeks to tender the statement in evidence so that a trial within trial can be conducted to determine whether or not the statement was freely and voluntarily made by the accused. Allegation that a confessional statement was not voluntarily made raised after the admission of the statement as an exhibit or during the defence or at the address stage or in the brief of argument at the appellate Court will be regarded as an afterthought. See ALI V. STATE (2019) 14 NWLR (PT.1692) 314 AT 350 (G-H), TOPE V. STATE (SUPRA) AT 301 (B-D) 306 (D-G).

It is on record that when the prosecution sought to tender the appellant’s statement through PW3, the investigating police officer who recorded the statement, the appellant’s counsel showed the statement to the appellant. The counsel reported back to the Court that the appellant said the statement was not made by him. The law is settled that where an accused says that he did not make the statement, the trial Court is entitled to admit it in evidence and decide at the end of the trial whether or not the accused made the statement and the weight to be attached to thestatement. See SALEH V.STATE(2020) 1 NWLR (PT.1705) 205. The trial Court was right to admit the appellant’s statement in evidence as Exhibit A. In compliance with the law, the trial Court in its judgment considered the issue of whether or not the appellant made Exhibit A. At pages 55 – 56 of the record the Court held that:
“The prosecution also relied on the defendant’s confession to the offence tendered by the PW3 investigating police officer Exhibit A. the prosecutor Mrs. Ani has stated that a free and voluntary confession which is direct and positive is sufficient to ground a conviction without corroborative evidence.
I believe Mrs. Ani has properly stated the legal position. When the defendant’s statement was produced by the PW3 and sought to be tendered, defendant on seeing the document had said he did not know how to write and that the signature on it was not his. Upon objection from his counsel that the document was inadmissible because the defendant said he did not make it the Court had overruled the objection since that alone did not render the statement inadmissible in evidence.
Further testifying as DW1, thedefendant stated he only made one statement to the police at the Independence Layout Police Station which he did not sign. He does not know whether he made a statement at the Special Anti Robbery Squad (SARS); he was terribly beaten and was confused. The defendant therefore never categorically denied making Exhibit A to the police officer PW3. He said he was beaten and confused. How could he then say that the signature on the document was not his on the document being shown to him? The defendant categorically say(sic) he did not make a statement to the PW3 investigating officers at the SARS; if as he said he was terribly beaten and confused; how can he now deny his signature (thumb print) on Exhibit A?
The PW3 gave evidence of how he took Exhibit A. This evidence is very clear and lucid that the defendant could not write and so he had to write for him, that defendant said he could not sign; hence only a thumb print on Exhibit A. That the statement was made in Igbo language which he took down in English and interpreted back to the defendant in Igbo language before he appended his thumb print. The opinion of this Court is that the prosecution sufficientlyproved the taking of the statement from the defendant.”

I have perused the evidence of PW3 and the evidence of the appellant on whether or not he made a statement at SARS. PW3’s evidence that the appellant made his statement to him in Igbo language and he recorded it in English language and interpreted same to the appellant in Igbo language before the appellant thumb printed same was not destroyed or discredited under cross examination. The appellant said he did not know whether he made a statement at SARS. The appellant’s evidence is not a denial that he made the statement. PW3’S evidence is a firm confirmation that the appellant made the statement. Considering the investigative activities of PW3, the fact that the appellant made a statement to him is not in doubt. The finding of the trial Court that the prosecution sufficiently proved the taking of the statement from the appellant cannot be faulted.

The law is settled that a Court can convict on a retracted confessional statement so long as it is satisfied of the truth of the statement. See STATE V. YAHAYA (2019) 13 NWLR (PT.1690) 397. To ascertain the veracity or truthfulness of the statement, the Court is enjoined to look for corroborative evidence outside the confession no matter how slight. The Court must subject the statement to the following tests: (i) Whether there is anything outside the statement to show that the confession is the true. (ii) Whether the confession is corroborated in any way. (iii) are the relevant statements made in it of facts, true as far as they can be tested. (iv) Whether the accused had opportunity to commit the crime. (v) Whether the confession is possible. (vi) Whether the confession is consistent with other proved or ascertained facts.” See ALAO V. STATE (2019) LPELR-47856 (SC) AT 13-17, SALEH V. STATE (SUPRA) AT 231-232 (F-A). In compliance with the law, the trial Court scrutinized the statement along with the entire evidence led and circumstances of the case. At pages 57-58, the Court held as follows:
“In this case the test there has to be something outside the confession to show that it is true is met with oral testimony in Court of the PW1 and PW2 who were eye witnesses as well as victims of the alleged armed robbery they said that there was armed robbery in their compound at Ugwuaji on the 9th day of July, 2010, that the robbers came with gun and machete. These were also contained in the confessional statement of the accused tendered as Exhibit A where the defendant confessed that he and his gang members went to one compound at Ugwuaji on 9th day of July, 2010 and robbed with locally made pistol and machete. That they started robbing the inhabitants of the compound one after the other which is buttressed by evidence of the PW1 and PW2. The 2nd test requiring corroboration to the confessional statement that he went to a compound at Ugwuaji to rob with some others at large with locally made pistol and machete was confirmed by the evidence of these witnesses who said it was in their compound at Ugwuaji and that robbers had gun and machete with them. The evidence that the defendant was with others is corroborated by the evidence of the PW3 the investigating police officer who said the accused took him to a block industry where he said some of the fleeing gang members could be found and that they were not found. The evidence of the PW3 is uncontradicted. That the facts in confession (sic) are true as can be tested is reflected in the oral testimony of the accused who said he was living in Nwodo compound at the time of the incident; the address contained in the statement. That his mother’s name is Josephine Uzor and his siblings OnyebuchiUzor and Ifebuche Uzor under cross-examination from the prosecution. That the accused had the opportunity of committing the offence is brought out by the fact that accused never raised any alibi to the police and he had no witnesses to show he was not at the scene of crime. Meanwhile his affirmation that he was traced to his home by villagers from Ugwuaji fixed him at the scene of crime.
That the confession is possible by the oral testimony of the accused that he was surrendered to the police by the villagers and considering that he had been named by Okoroikpe as one of the robbers and he was traced. Lastly the confession is entirely consistent with other facts that had been given by the prosecution from the evidence of the PW1, PW2, PW3 and the evidence of the defendant himself.
Concluding all the above this Court is satisfied that the confessional statement Exhibit A was made by the accused and that this confession is the best and strongest evidence in proof of the accused’s guilt in this Court by the prosecution. By it the prosecution’s case has been proved beyond reasonable doubt. This is in addition to the evidence given by the prosecution witnesses and the defendant himself in oral evidence which show that he was at the scene of the crime that day.”

The appellant’s counsel submitted that the evidence of PW1 and PW2 could not provide valid corroborative evidence because the Court cannot disbelieve one part of their evidence and believe another part. The submission is in reference to the decision of the trial Court not to act on the evidence of identification of the appellant given by PW1 and PW2 having found same to be unreliable. The submission of the appellant’s counsel is totally against the settled principle of law that the evidence of a witness can be believed or accepted in one part and disbelieved in another. See AJERO & ANOR. V. UGORJI & ORS. (1999) LPELR- 295 (SC) AT 29 (B-C), SULE V. STATE (2009) LPELR-3125 (SC) AT 25-26 (G-A). The fact that the trial Court found the evidence of identification of the appellant given byPW1 and PW2 unreliable did not preclude the Court from believing their evidence that some persons armed with machetes and gun invaded their compound at about 11:45 pm on 9/7/2010 and robbed them of their phone and cash. That part of their evidence was not discredited or destroyed under cross examination and PW3 visited the scene of the crime with the defendant. The evidence of PW2 was that when the robbers left his room, they went to another room. That evidence corroborated the statement of the appellant that they robbed in the first room and got three phones. Unknown to them someone ran out of the 2nd room and started screaming as they entered the room. The appellant’s counsel also submitted that the evidence of PW3 cannot be a corroboration of the appellant’s statement because his evidence that Chidiebere took the villagers to the appellant’s house contradicted the evidence of PW1 and PW2 that the villagers went to the appellant’s house on their own following the information they got from Chidiebere. The law is settled that for a contradiction in the evidence of a prosecution’s witness to be fatal to its case, the contradictionmust go to the substance of the case and not be of a minor nature. See SELE V. STATE (1993) LPELR-3030 (SC) AT 13-14 (E-A). A minor contradiction which does not touch a material point or substance of the case will not vitiate a conviction. In the instant case there is an overwhelming evidence of the armed robbery, the pursuit of the robbers by the villagers, arrest of Chidiebere at the scene of the robbery, the arrest of the appellant in his house and handing over of the appellant by the villagers which the Court believed, the contradiction as to how the villagers got to the appellant’s house is a trivial one which cannot vitiate the conviction.

The appellant’s counsel emphasised the fact that the appellant was an illiterate and there was nobody with him when he made the statement. He referred to OWHORUKE V.C.O.P. (2015) 15 NWLR(PT.1483) AT 576 where Rhodes-Vivour, JSC held that:
“Confessional Statements are most times beaten out of suspects, and the Courts usually admit such statements as counsel and the accused are unable to prove that the statement was not made voluntarily. A fair trial presupposes that police investigation of the crime for which the accused person stands trial was transparent. In that regard, it is time for safeguards to be put in place to guarantee transparency. It is seriously recommended that confessional statements should only be taken from suspect if, and only if his counsel is present, or in the presence of a legal practitioner. Where this is not done such a confessional statement should be rejected by the Court.”

The opinion or observation of His Lordship was a mere obiter dictum. Admissibility of the appellant’s statement was not part of the argument before the Court. The opinion or observation had no effect on the decision of the Court as the Court relied on the confessional statements of the appellant to affirm the judgment of the Court of Appeal which affirmed the judgment of the High Court. The opinion or observation was made in respect of the Court of Appeal’s remark that the defence raised by the appellant in his statements was confusing. The opinion is not a binding authority. Though Section 17(1)&(2) of the Administration of Criminal Justice Act, 2015 of Enugu State provided that:
17. 1. “Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement.
2. Such statement may be taken in the presence of a Legal Practitioner of his choice, or where he has no Legal Practitioner of his choice, in the presence of an officer of the Legal Aid Council of Nigeria or an official of a Civil Society Organisation or a Justice of the peace or any other person of his choice. Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, expect for the purpose of discharging his role as a legal practitioner.”

The law was enacted in 2015 and it has no retrospective effect. The trial and conviction of the appellant was between 2013 and 2014. In any case, no objection was raised when the statement was tendered.

The appellant in his evidence before the Court said he told the police that he slept in his house that night. Counsel submitted that the appellant may have stated in his statement made at Independent Layout police station that he slept with his mother and siblings that night. According to counsel, the statement was not tendered because the appellant did not confess to the crime and the statement would have given credence to the appellant’s assertion that he was badly tortured. The submission of the appellant’s counsel is pure speculation. The Court does not engage in speculation. The Court acts on legally admissible evidence properly presented before it.

There is nothing on record to show that the appellant raised a defence of alibi upon his arrest and immediately he was handed over to the police. The law is settled that a defence of alibi must be raised at the earliest opportunity to enable the police investigate same and not at the trial. See ESENE V. STATE (2017) LPELR-41912 (SC) AT 38 (A-C). The defence of alibi raised by the appellant at the stage of defence was raised too late in the day. In any case, the defence of alibi was demolished by the appellant’s confessional statement wherein he confessed to his presence at the scene of the crime and participation in the robbery. See OPEYEMI V. STATE (2019) 17 NWLR (PT. 1702) 403 AT 435 (B-D) where the Supreme Court held that:
“Alibi is not a statutory defence. It is a defence on the facts that tend to show that at the material time the appellant was elsewhere other than the locus criminis. The purport of the defence of alibi is, therefore, only to cast reasonable doubt on the prosecution’s case. It is demolished once the prosecution adduces sufficient evidence that fixes the accused person to the offence alleged and its scene: Njovens V. The State (1973) 5 SC 17. The defence in the instant case seems to prevaricate on the defence of alibi. Exhibit J, J1 & K, which reinforce the case of the prosecution, had debunked the alibi.”

As stated earlier in this judgment, there was no objection to the admissibility of the statement on the ground that the statement was not voluntarily made or that the appellant was tortured to make the statement when it was tendered. Where an accused person fails to raise an objection to the admission of a confessional statement at the point where it is sought to be tendered, he would be deemed to have conceded that the statement was made voluntarily and the content represents what he told the police. See TOPE V. STATE (SUPRA) AT 301 (B), 306 (D-G). The trial Court was right in accepting Exhibit A as a voluntary confessional statement of the appellant. The Court was on a form ground when it concluded that on the totality of the evidence led including the confessional statement, the guilt of the appellant was proved beyond reasonable doubt.

This appeal fails. It is hereby dismissed. The judgement of the High Court of Enugu State delivered in charge no. E/149C/2012 on 20/10/2/2014 is hereby affirmed. The conviction and sentence passed on the appellant are also affirmed.

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 MISITURA OMODERE BOLAJI-YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.

For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I hereby dismiss it.
I equally adopt the consequential orders in the lead judgment as mine.

ABUBAKAR SADIQ UMAR, J.C.A.: I had a preview of the lead judgment delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUF, JCA, and I agree entirely with his reasoning and conclusion, which I hereby adopt, as I have nothing useful that I can add to it.

Appeal is dismissed. The Judgment of the Lower Court in Charge No.: E/149c/2012 delivered on 20/10/2014 is hereby affirmed.

Appearances:

Ogochukwu Onyekwuluje For Appellant(s)

T. A Ngene, Deputy Director Legal, S. U. Madu, C. L. O of the Min. of Justice, Enugu State. For Respondent(s)