Joseph Amoshima V. The State (2008)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

This appeal is against the judgment delivered on 19/7/2005 by the High Court of Niger State, Minna Judicial Division (Coram Hon. Justice Amina A. Wambai). The Appellant and four others were charged with the offences of conspiracy to commit the offence of armed robbery; and armed robbery; respectively, under the Robbery and Firearms (Special Provisions) Decree No. 5 of 1984. The learned trial Judge in the judgment being appealed against sentenced the Appellant and two others to death after finding each of them guilty of the offences preferred against them. The criminal proceeding against the Appellant and others tried along with him was initiated by the Attorney-General of Niger State through one of the officers in his Department. The Appellant was arrested several weeks after the occurrence of the crime he was charged with and though he made a confessional statement to the police, he retracted the same during trial.

The Appellant being dissatisfied with his conviction and sentence appealed to this Court by a Notice of Appeal filed on 9/8/2005. The said Notice of Appeal contained nine grounds. This Court on the 6th of November, 2006, granted the Appellant orders to amend his Notice of Appeal and deeming the Amended Notice of Appeal filed on 20th October, 2006 already filed and served, to have been properly filed and served. The Amended Notice of Appeal contains eight grounds of appeal and the said grounds without their particulars read thus: –

“GROUND 1

The learned trial court erred in law when it convicted the Appellant for conspiracy and Armed Robbery punishable with death without considering the fact that the Appellant was never identified by any of the prosecution witnesses.

GROUND 2

The Hon. Trial court erred in law when in contravention of Section 1 (3) of the Robbery and Firearms (Special Provisions) Act; it sentenced the Appellant to death by hanging stating that it has no discretion on terms of sentence.

GROUND 3

The Hon. Trial court erred in law when it assumed jurisdiction in the trial of the appellant under the Robbery and Firearms (Special Provisions) Act when the same was not properly brought before it.

GROUND 4

The learned trial Court erred in law when it heavily relied on the retracted confessional statement of the Appellant to convict and sentence the Appellant.

GROUND 5

The learned trial court erred in law when it did not test the truthfulness of the purported confessional statement of the Appellant before relying solely on it to convict the Appellant.

GROUND 6

The learned trial court erred in law when it held that the offence of conspiracy has been proved against the appellant there been (sic) no evidence supporting that conclusion.

GROUND 7

The trial court erred in law when it held that the prosecution has proved his case beyond reasonable doubt.

GROUND 8

The learned trial court erred in law when it held that the offence of conspiracy has been proved when there is no evidence supporting that conclusion.”

The appeal was heard on 8th April, 2008. At the hearing of the appeal, learned lead counsel for the Appellant, Chukwuma-Machukwu Ume, in urging the Court to allow the appeal relied on and adopted the Appellant’s brief dated 6th November, 2006 and filed on 7th November, 2006. He also commended to the Court, the List of Additional Authorities which he filed on 8th April, 2008; the very day of hearing of the appeal.

Saba Aliyu, (SSC, Ministry of Justice, Niger State), in urging the Court to dismiss the appeal, relied on and adopted the Respondent’s brief dated 5th December, 2007 which was deemed to have been properly filed and served on 8/4/2008 pursuant to the Order of the Court in that respect.

The five Issues for determination in the appeal as formulated in the brief of the Appellant are as follows:-

“ISSUE NO. 1

Whether the Hon. Trial court was right to have convicted the Appellant without any evidence of identification since he was not arrested at the scene of crime. (Ground 1)

ISSUE NO. 2

Whether, considering the provisions of the Robbery and Firearms (Special Provisions) Act and the evidence before the court, the Hon. Trial court was right to have sentenced the Appellant to death and in ordering how the sentence of (sic) should be executed. (Ground 2)

ISSUE NO.3

Whether, the trial, conviction and sentencing of the Appellant under the Robbery and Firearms (Special Provisions) Act were not nullities, the criminal proceeding having not been instituted in accordance with the Constitution of the Federal Republic of Nigeria, 1999. (Ground 3)

ISSUE NO. 4

Whether, considering that the purported confessional statement was retracted by the appellant, the Hon. Trial court was right to have relied heavily and solely on the said retracted statement to convict the Appellant in the absence of any corroboration by another witness. (Grounds 4 – 5)

ISSUE NO.5

Whether considering the circumstances and evidence before the Hon. trial court, the court was right to have held that the prosecution proved her case beyond reasonable doubt (Grounds 6, 7, 8)”

In the brief of the Respondent, five Issues were likewise formulated for determination in this appeal. The Issues read thus: –

“1. Whether there was need for identification parade in this case.

2. Whether the trial courts (sic) discretion in sentencing the appellant for the offence (sic) of conspiracy and armed robbery punishable with death was exercised in accordance with Law.
3. Whether the initiation of the prosecution of the appellant by the Attorney-General of Niger State for an offence under the Robbery and Firearms (Special Provisions) Act No. 5 1984 (being a Federal Offence) does not render the whole trial a nullity.
4. Whether the trial court was right to have relied on Exhibit ‘B’ in convicting the appellant.
5. Whether the prosecution proved its case beyond reasonable doubt.”

The Issues as formulated in the brief of the Appellant and the corresponding Issues as formulated in the brief of the Respondent would be considered together seriatim, as they relate to the same ground(s) of appeal in the Amended Notice of Appeal.

ISSUE 1

Appellant’s counsel in dwelling on Issue 1, as formulated in the brief of the Appellant, submitted that there was no properly conducted identification parade in the instant case even though this was vital having regard to the circumstances of the case. To buttress the submission that the conduct of an identification parade was necessary in this case, reference was made to the evidence of PW9 at pages 91 and 93 of the Record. The evidence of PW9 at page 91 is to the effect that on 30/5/96 the witness was detailed to accompany one Sgt. Tinke Jackson to Suleja ‘A’ Division to take over Uche Agere who had been arrested by the police in connection with a case of armed robbery committed by him together with the accused persons before the court. That Uche Agere upon interrogation confessed knowing of the crime committed along with one ‘Joseph Ede’, ‘Ikechukwu Okoh’, ‘Joseph Amoshima’ (Appellant herein) and ‘Ekemka Chuckwu Emeka’. That the said Agere led them to Panteke market Abuja where Joseph Edeh was arrested. The evidence of the witness at page 93 is to the effect that the accused persons were not arrested at the scene of the robbery that occurred on 6/4/96. That they were arrested more than a month after the incident and that no identification parade was held.

Appellant’s counsel cited the cases of Isibor v. State (2002) 3 NWLR (Pt. 754) 250 at 283; Okeke v. State (1995) 4 NWLR (Pt. 392) 676; Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Alabi v. State (1993) 7 NWLR (Pt. 307) 511; and Orimoloye v. State (1984) 10 SC 138; as stipulating the circumstances when it is essential to hold an identification parade. The circumstances as set out in the Appellant’s brief are: (a) where the accused was not arrested at the scene of the crime and he denied taking part in the crime; (b) where the victim did not know the accused before; (c) where the victim was confronted by the accused for a very short time; and (d) where the victim due to time and circumstances might not have had full opportunity of observing the features of the accused.

Appellant’s counsel submitted to the effect that evidence of identification was vital as the Appellant was not arrested till several weeks after the incident and as none of the prosecution witnesses mentioned him as being among the perpetrators of the alleged robbery. That as the identity of the Appellant was very much in issue, it was wrong of the trial court to have dismissed the same with a wave of the hand relying on the “so called confessional statement” which was duly retracted and ought not to have been given relevance and weight. The failure to conduct an identification parade in the case, it was again submitted made the trial, conviction and sentence of the Appellant a shamble, outrageous and very improper. The case of Okeke v. The State (supra) at page 688 was cited in aid. Still on the issue of identification and in addition to the cases earlier cited, reference was made to the case of Ajibade v. The State (1987) 1 NWLR (pt. 48) 205 at 210 as deciding to the effect that in a capital case the Police should exercise extreme care and diligence before bringing an accused person to trial. That where the offence of robbery has been committed and the offenders were not apprehended at the scene of the crime, prudence demanded that the usual and proper way of identification be followed. For this purpose, the suspected persons should be placed with a sufficient number of others and the identifying witness invited to pick out the accused without assistance. In rounding up on the Issue, Appellant’s counsel submitted that the trial court misunderstood the evidence of identification which is very crucial in a capital trial like the one at hand and this Court was urged to hold that this has most probably led to a miscarriage of justice and to accordingly discharge and acquit the Appellant. The case of Lado v. The State (1999) 9 NWLR (pt. 619) 369 at 373 was referred to in this regard.

In dwelling on Issue 1 as formulated in the brief of the Respondent, Respondent’s counsel submitted to the effect that the conduct of Identification parade is not necessary in all cases in criminal trials. The need to conduct an identification parade, it was submitted depends on the facts and circumstances of each case. While conceding the fact that the Appellant was arrested about five weeks after the incident, and that none of the prosecution witnesses mentioned him as being among the gang of robbers, Respondent’s counsel however submitted to the effect that an identification parade was not imperative in instant case, as the Appellant upon his arrest and during police interrogation, neither denied his involvement in the crime nor raised any suspicion about his involvement in the crime. The case of Adamu v. State (1991) 6 SCNJ 339 was cited in aid. Respondent’s counsel accordingly urged the Court to dismiss the ground of appeal relating to the issue of identification parade.

The issue of identification evidence was extensively considered in the case of SUNDAY NDIDI V. THE STATE [2007] All FWLR (Pt. 381) 1617. In the leading judgment in the case, Aderemi, JSC; made the point that in criminal cases, generally, the crucial issue is not ordinarily whether or not the offence was committed. That more often than not, the controversy always rages over the identification of the person or persons alleged as the actual perpetrators of the offence charged. It therefore follows that identification evidence is that evidence which tends to show that the person charged is the same as the person who was seen committing the offence. To ascribe any value to the evidence of an eye-witness identification of a criminal, the courts in guarding against cases of mistaken identity must meticulously consider the following issues:

(1) Circumstances in which the eye-witness saw the suspect or defendant.

(2) The length of time the witness saw the subject or defendant.

(3) The lighting conditions.

(4) The opportunity of close observation.

(5) The previous contacts between the two parties.

It was stressed that whenever the case of an accused person depends wholly or substantially on the correctness of his identification which the defence alleges to be mistaken, a trial Judge must warn himself of the special regard for caution and should weigh such evidence with others adduced by the prosecution before convicting the accused in reliance on the correctness of the identification. The locus classicus on the issue of identification His Lordship further said is the English case of R v. Turnbull & Ors. (1976) 3 All ER 549 – a decision of the Court of Appeal (England) Criminal Division presided over by Lord Widgery CJ and written by him. This decision, our courts have not only cited with approval over the years, but was approved by the Supreme Court in Ikemson v. State (1989) 6 SC (pt. 5) 114.

Another case on identification evidence is that of SEGUN BALOGUN V. ATTORNEY-GENERAL OF OGUN STATE [2002] 6 NWLR (pt. 763) 512.

Dwelling on the principles governing the need for identification parade in the said case, the Supreme Court per Uwaifo, JSC; made it clear at page 534 that an identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witness’s power of recognition based on the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubt as to who was seen in connection with the offence to require identification parade. An identification parade, His Lordship further disclosed was absolutely unnecessary, when the witness claims to have seen a familiar or definite person whom he perhaps names or knows his abode or family connection. In such a situation, it is the credibility of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect.

It is in my view most clear from what has been said above in relation to identification parade, that it is not conducted in vacuo or for no cause at all. Before the conduct of an identification parade is embarked upon in the course of police investigation, the need for the same must have arisen from information given to the police by an eyewitness to the commission of the crime showing that he had some encounter no matter how brief with the perpetrator(s) of the crime (who the eye-witness did not know before); and who the eye-witness must have at least told the police he could identify if seen again or must have told the police his features that he noted and which marks him out from other persons.

In the instant case, the prosecution witnesses that qualified as eye-witnesses in respect of the robbery of 6/4/96 are PW1 – Maimuna Zakari and PW2 – Gadafi Zakari. The evidence of these two witnesses can be found at pages 38-41 and 42-45 respectively of the Record. PW1 in her evidence said that the person who chased her into her room on the day of the incident was not among the accused persons in court. The witness specifically named the person in question as Uche and said that he lived in their area. Under cross-examination the witness was not asked any question suggestive of the fact that she had during police investigation claimed to be able to identify any other person among those who came to rob her husband (apart from Uche who she mentioned by name). PW2 in his evidence identified two of the accused persons as being among the robbers (about 5 in number) that invaded their house on 6/4/96. The two accused persons so identified were the 1st and 2nd accused persons who he disclosed to be his cousins. Under Cross-examination, the witness disclosed that though he saw about 5 men in the sitting room when he woke up, he however did not see their faces. In the course of police investigation the Appellant made a statement. The statement was admitted as Exhibit B. In the said statement, the Appellant fixed himself to the immediate vicinity of the scene of the crime. He said he was standing on guard outside the house where he and others went to rob. None of the prosecution witnesses testified to the effect that he/she came in contact with or encountered any of the robbers stationed outside the house of Alhaji Zakari immediately before, during, or immediately after the robbery incident.

It is settled law that identification evidence is evidence tending to show that the person charged with an offence is the same as the person who was seen committing the offence. See BASSEY AKPAN ARCHIBONG V. THE STATE (2006) All FWLR (pt. 323) 1747 at page 176; and the decision of this Court in MAIKUDI ALIYU V. STATE. (2007) All FWLR (pt. 388) 1123 at page 1147.

Given all that has been highlighted in respect of this case above, and particularly as it is glaring that the prosecution never adduced evidence through either of the two eye-witnesses to the incident of 6/4/96 tending to show that the Appellant was seen at the scene of the crime talk less of seen committing the crime, it becomes obvious in the circumstances, that the non-conduct of an identification parade in this case and consequently the lack of evidence of identification linking the Appellant to the commission of the crime with which he was charged is not vital or necessary at all. Identification parade is basically conducted to enable an eye-witness to the commission of a crime (otherwise called an identifying witness) who never knew the person accused of a crime properly before, but had some degree of encounter with the said person during the commission of the crime and/or at the scene of the crime, pick him out from amongst other people in a line up. It therefore follows, that where it is not shown that any of the eye-witnesses to the commission of a crime had encounter with the person accused of the commission of a crime at the scene or during the commission of the crime in question, then there is absolutely no basis for conducting an identification parade. And when no identification parade has been conducted, the prosecution cannot be expected to adduce evidence in respect of the same.

Appellant’s counsel in treating Issue 1 under consideration, also stated that – “Interestingly this Uche Agere who confessed to the crime and who led the police to arrest the Appellant was on the 22nd day of January, 2003 at page 117 of the Record was (sic) discharged and verdict of “not guilty” entered for him by the Hon. Trial court on a no case submission. It was on the evidence that Uche Agere was discharged that the Appellant was convicted.” I consider what Appellant’s counsel stated to be most uncharitable as it is not borne out by the Record. It is nothing short of an attempt to capitalise on the apparent mistake that the 2nd accused person in the list of accused persons as shown in the Ruling on the no case submission at page 110 of the Record is stated as “Uche Agere” instead of “Murtala Abdullahi” as shown in the Further Amended Charge at page 99 of the Record and which Further Amended Charge the accused persons set out therein, pleaded to, on 5/11/2002. Indeed, it was on the said 5/11/2002 that the counsel who represented the Appellant at the lower court argued the no case submission for and on behalf of the 3rd, 4th and 5th accused persons namely, Joseph Amoshima (Appellant), Ikechukwu Okoh and Nkemka Chukwuemeka. And it was when the case came up on 21/11/2002 that learned counsel for the accused persons at the lower court, applied that the submissions made previously in relation to the 3rd – 5th accused be extended to and adopted in respect of the 2nd accused person, namely Murtala Abdullahi; an application which was not opposed by the prosecution. See pages 103-106 of the Record. That Uche Agere was not one of the accused persons as at the time hearing commenced in the case was further made clear by the lower court in its judgment. See pages 183-184 of the Record where the trial Judge stated thus: –

“To enable the prosecution commence the hearing of the case, the Deputy Director of Legal Drafting (DDLD) prosecuting the case on behalf of the State sought and obtained leave of court to withdraw the charge against the 5th accused, Joseph Ede, being deceased.

He also sought and obtained leave of court for proceedings against the 3rd accused, Francis Amadi and the 4th accused, Uche Agere to be stayed pending the time they will be seen and brought to court.”

It is therefore most incomprehensible to me how Uche Agere who was not an accused person in the Further Amended Charge upon which this case was prosecuted (and to which charge the accused persons therein had pleaded before the no case submission was made) can be said to have been discharged by the lower court in its Ruling on the no case submission. What Appellant’s counsel stated as hereinbefore reproduced is simply preposterous.

From all that has been said before now, Issue 1 as formulated in the Appellant’s brief is accordingly resolved against the said Appellant. I agree with the submission of Respondent’s counsel that this is not a case in which identification evidence is necessary given its circumstances.

ISSUE 2

In respect of Issue 2, the Appellant submitted that the trial court exceeded its powers under the Robbery and Firearms (Special Provisions) Act, when it sentenced the Appellant to death by hanging. This, according to Appellant’s counsel, is because the Act did not give the court the power to determine the manner of execution of a sentence of death. Appellant’s counsel said it was for the Governor to decide whether the sentence of death handed down by the lower court is to be executed by hanging or by firing squad. This Court was urged to declare the sentence of death by hanging pronounced on the Appellant as null and void and of no effect as the lower court exceeded its jurisdiction in making the pronouncement.

Still on this Issue, Appellant’s counsel further submitted that the trial court was in error when it stated that “the Court has no discretion in the sentence to be passed where the law has specifically and mandatorily provided one, such as in this case”, Appellant’s counsel submitted that this was a misinterpretation of the letter and spirit of section 1(2) of the Act. According to Appellant’s counsel the words “shall be liable” used in the subsection did not remove the discretion of the trial court to pass a lesser sentence. He further said that the word “shall” does not always impose an absolute and imperative duty to do or omit the act prescribed and cited the cases of Re Davis (1947) 75 C.L.R. 409 at 418; and Amadi v. NNPC (2000) 10 NWLR (PT 674) page 76 in aid. Appellant’s counsel submitted to the effect that the meaning of the words ‘a person shall be liable upon conviction to be sentenced to death’ is that such a person is likely to suffer the maximum punishment of death and not that he must suffer death. The cases of The Heron II, Koufos v. Czarnikow, C., Ltd (1976) 3 All ER 686 at 694; Parochial Church Council v, Croxford (1935) 2 K.B. 417; James v. Young (1884) 27 Ch. D 652; as well as Stroud’s Judicial Dictionary of Words and Phrases Vol. 2, Sixth Edition page 1457; and Robbery and Firearms (Special Provisions) (Amendment) Decree No.8 of 1974; were cited in aid. To further buttress his submissions as they relate to the provisions of section 1(2) of the Act in question, Appellant’s counsel also made copious references to the pronouncements of learned Justices of the Supreme Court in the case of Ekpo v. State (1982) 1 Nigeria Criminal Law Report 34 where the Supreme Court interpreted similar words to wit: “…shall be guilty of an offence under this Act and upon conviction shall be liable to imprisonment for 21 years” as contained in section 5 of the Counterfeit Currency (Special Provisions) Act, 1975; and the case of Price Control Board v. Ezeme (1982) 1 NCR7 where the Court of Appeal interpreted the provisions of section 7(4)(a) of the Price Control, Act which states:-

“Where a person is convicted of an offence under subsection (1) of this section in respect of any controlled commodity of any description he shall in the case of an individual, be sentenced to imprisonment for not less than six months without option of fine.”

Relying on the aforementioned cases, Appellant’s counsel submitted that if the trial court had applied the Criminal Procedure Code which governed the proceedings under the Act (i.e. Robbery and Firearms (Special Provisions) Act), it would not have erroneously held that it had no discretion but to pass a death sentence. It was further submitted that to hold that section 1(2) of the Act, made it mandatory on the trial court to pass a death sentence on the convict, ran contrary to world trend regarding death sentence. Appellant’s counsel equally submitted to the effect that the trial court having noted the plea of allocutus made on behalf of the Appellant that he was a first offender, erroneously held that it had no discretion in the sentence to be passed. That the trial court thereby placed a barrier on its discretion which it was not ready to exercise in the first place.

Mandatory sentence of death it was stated in the Appellant’s brief has been declared inhuman, degrading and unconstitutional by many jurisdictions most especially the United States of America to which Nigeria owns most of her system. The case of Furman v. Georgia 408 U.S 238, 99 S. Ct 2726 33 L. Ed. 2d 346 (1972) was cited as showing that death penalty is so severe as to amount to degrading of the dignity of human beings. That it treats members of the human race as nonhumans and as objects to be toyed with and discarded. The case of Gregg v. Georgia, 428 US 153, 175, 96 S. Ct 2909, 2926, 49 L. Ed. 2d 859, 876 (1976) was cited as striking down the North Carolina and Louisiana States statutes which provided for mandatory death sentences. The case of Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed 973 (1978) was cited as showing that the constitutionality of an Ohio statute which did not permit the sentencing Judge to consider mitigating factors such as age, lack of specific intent to cause death and the role the convict played in the commission of the crime was successfully challenged. Rounding up, on the Issue under consideration, Appellant’s counsel said if the words “… the offender shall be liable upon conviction under this Act to be sentenced to death” as contained in section 1(2) of the Robbery and Firearms (Special Provisions) Act, actually removed the discretion of the court to pass a lesser sentence, then this was inconsistent with the powers of the court as imbued on it by the Constitution and was equally incompatible with the prevailing trend among civilised nations of the world on the issue of death sentence.

The Respondent responded to Issue 2, as formulated by the Appellant under its own Issue 2. In this respect, the Respondent’s counsel submitted to the effect that the word “shall” used in the provisions of section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, as amended, connotes a mandatory obligation or command of obligation and cited the cases of Ogidi v. State (2005) 5 NWLR (pt. 918) 286 at 297-298; and Alao v. ACB Ltd. (2000) 9 NWLR (pt. 672) 264 at 271. In the light of the cases, Respondent’s counsel further submitted that the word “shall” is devoid of judicial discretion and imposes a duty to do or omit the act prescribed.

Dwelling on the provisions of section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act vis-‘a-vis those of section 273 of the Criminal Procedure Code, Respondent’s counsel submitted that the provisions of section 273 of the Criminal Procedure Code gave the trial court the discretion to have stipulated the manner of execution of the death sentence passed on the Appellant. Respondent’s counsel further submitted that the fact that the trial court directed that the sentence of death passed on the Appellant should be by hanging, did not invalidate the merit of the case.

Even though the Appellant and others tried with him were charged under the Robbery and Firearms (Special Provisions) Decree No. 5 of 1984, it is indisputable that it is the said Decree that was renamed Robbery and Firearms (Special Provisions) Act, Cap. 398, in the Laws of the Federation of Nigeria, 1990. Decree NO.5 of 1984/Cap. 398 is the legislation under which the Appellant and two others were tried, convicted and duly sentenced to death by hanging. Decree No. 5 of 1984/cap. 398 in Section 1 provides as follows:-

“1. (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years.

(2) If-

(a) any offender mentioned in subsection (1) of this section is armed with firearms or any offensive weapon or is in company with any person so armed; or

(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.

(3) The sentence of death imposed under this section may be executed by hanging the offender by the neck till he is dead or by causing such offender to suffer death by firing squad as the Governor may direct.”

The law will appear to be settled as to the interpretation to be accorded the word “shall” when used in a statute or provision of the Rules of Court. In this regard, see the case of OGIDI V. THE STATE (supra) cited in the Respondent’s brief and which is also reported in [2005] All FWLR (pt. 251) 202 at pages 231-232. Indeed the Supreme Court in the case of DIOKPA FRANCIS ONOCHIE &. ORS V.FEGUSON ODOGWU & ORS(2006 ALL FWLR (Pt. 317) 544 made it clear that the word “shall” when used in a statute or rule of court, makes it mandatory that the rule or provision must be observed. In this regard reference was made to the cases of Mokelu v. Federal Commissioner for Works & Housing (1976) 3 SC 35; Madam Alake Aroyewun v. Joseph Adebanji (1976) 11 SC 33; and Amokeodo v. Inspector-General of Police & 2 Ors (1999) 5 SCNJ 71 at 81-82; as well as the meaning of the word “shall” as stated in Longman Dictionary which is that “shall” is used to express a command or exhortation, or what is legally mandatory.

See also the decision of this Court in the case of MR. EMMANUEL IMON OKON & 2 ORS V. CHIEF KENNETH BASSEY UBI & ORS [2006] All FWLR (Pt. 328) 717 where it was held to the same effect that the word “shall” when used in a statute or rule of court makes it mandatory that the rule must be observed. That the word “shall” is a word of command and denotes an obligation thereby giving up room for discretion.

The main function of a judge it has consistently been said is to declare what the law is and not what it is supposed to be. This is against the backdrop that the business of law making is that of the legislature. The Judge in the discharge of his primary duty is to give the provisions of the Constitution or statutes, where they are unambiguous, their literal, natural and ordinary grammatical meanings. That a Judge in order to do justice in the exercise of his interpretative jurisdiction must find out the intention of the legislature with regards to the relevant provisions of the Constitution or statute that call for Interpretation, demands nothing extraordinary. This is because the intention to be sought is as expressed in the words used in couching any of the provisions in question. See the case of ACTION CONGRESS & ANOR V. INEC [2007] All FWLR (pt. 378) 1012 at pages 1088-1089. See also the case of ATTORNEY-GENERAL OF LAGOS STATE V. EKO HOTELS LIMITED & ANOR [2006] All FWLR (pt. 342) 1398 where the Supreme Court per Tobi, JSC; dwelling on the interpretation of constitutional provisions stated at pages 1471-1472 to the effect that words in a Constitution bear their ordinary grammatical meaning, when the intention of the maker of the Constitution is clear and can be captured at a glance of the language used. That it is when the meaning is not directly obvious on the face of the language, that the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention.

Guided by the principles of interpretation enunciated in the cases cited above, I am of the firm view that the mandatory punishment prescribed for the offence of “robbery” by the use of the words “shall” and “not less than” respectively in section 1(1) of the Decree NO.5 of 1984/Cap. 398 (which have been re-produced hereinbefore) is a minimum term of imprisonment of 21 years. It is in my view further clear from the precise, clear and unambiguous wording of the provisions of section 1(2)(a) & (b) that when the offence of “robbery” metamorphoses into “armed robbery” then the mandatory punishment is sentence of death.

Appellant’s counsel in submitting that the trial court had the discretion to have pronounced a lesser sentence cited the cases of Ekpo v. State; and Price Control Board v. Ezeme (both supra). I cannot but say that the cases do not help the Appellant at all. What the Supreme Court dwelled on as glaringly revealed in the pronouncements of the learned Justices re-produced in the Appellant’s brief were the words “…shall be guilty of an offence under this Act and upon conviction thereof shall be liable to imprisonment for 21 years”. The provision considered in the Ekpo case is clearly not in pari materia with those of Decree No. 5 of 1984/Cap. 398 under consideration in the Instant appeal. It is also clear from the pronouncements of the learned Justices of the Supreme Court, that the trial Judge was held to have discretion to exercise in the sentence of imprisonment imposed because the sentence of 21 years was not mandatory (i.e. it was the maximum sentence permissible). As for the inapplicability of the case of Price Control Board v. Ezeme; to the case on appeal, I cannot but say that apart from the fact that the case relates to the exercise of discretion by a trial court to grant an option of fine; it would also appear that the learned Justice of the Court of Appeal whose pronouncement Appellant’s counsel relied on, only restricted himself to the provision of section 382(1) of the Criminal Procedure Law and did not give any consideration to the provision of subsection (5) of the said section 382. The provision in question reads:-

“382 (5) – The provisions of this section shall not apply in any case where a written law provides a minimum period of imprisonment to be imposed for the commission of an offence.”

The Criminal Procedure Code has corresponding provision in its section 23(5).

See also the case of ADENIYI KAYODE & 2 ORS V. THE STATE (2008) All FWLR (pt, 402) 1014. Tijani Abdullahi, JCA; in interpreting the clear and self explanatory provision of section 11(1) of the Secret Cults and Secret Societies in Educational Institutions (Prohibition) Law, 2004 which reads: –

“Any student or person who contravenes the provisions of section 6(1), 7 and 9 of this Law shall be guilty of an offence and shall be liable on conviction to ten years imprisonment and to a fine of fifty thousand naira (N50,000,00) said at page 1037 thus: –

“The law gives the trial Judge specific mandate to impose both the term of imprisonment and fine. I am of the considered view that the law provides ten years imprisonment and fifty thousand naira fine. ‘And’ as used in the section is conjunctive and I hold that the trial court has no discretion in the sentence passed after convicting the appellants”.

I believe that the point need be made that a person charged with the offence of robbery upon being found guilty in respect of the said offence is to be punished by being sentenced to a minimum term of imprisonment for 21 years. It is therefore clear that a sentence of imprisonment for a period which is certain or determinable is the punishment prescribed by law for robbery. On the other hand, there is no minimum or maximum term of imprisonment stipulated or prescribed by law for the offence of armed robbery. The only punishment stipulated or prescribed for the offence of armed robbery is that the offender upon his conviction shall be liable to be sentenced to death.

The ordinary meanings of “death sentence” and “death penalty” can be found in any standard dictionary. Oxford Advanced Learners Dictionary (6th Edition) gives the meaning of: –

“Death sentence” as – “the legal punishment of being killed for a serious crime”; while “Death penalty” is stated to mean – ”the punishment of being killed that is used in some countries for very serious crimes.”

‘Death sentence’ or ‘sentence of death’ therefore in my view is a separate and indeed a distinct type or form of punishment vis-‘a-vis sentence of imprisonment. I know of no parameter by which a death sentence can be converted to a period of imprisonment for a minimum or maximum number of years. There is no provision in Decree NO.5 of 1984/cap. 398; Criminal Code; Criminal Procedure Act; Penal Code; and/or the Criminal Procedure Code; that has remotely suggested or set out the criteria for arriving at a lesser punishment for the sentence of death where it has been mandatorily stipulated by statute. The bottom line is that I do not see how the lower court having found the Appellant guilty of the offence of armed robbery, could have properly exercised any discretion in the punishment prescribed therefor and which is death sentence in the light of the provision of section 1(2) Decree No. 5 of 1984/Cap. 398; talk less of converting the death sentence so prescribed, to imprisonment for any number of years, or fine, or any other kind of lesser sentence imaginable; not even sentence of life imprisonment. Sentence of life imprisonment, it must be appreciated, is specifically prescribed by Decree NO.5 of 1984/Cap. 398 in respect of some other offences and the lower court definitely cannot proceed to sentence the Appellant who was found guilty in respect of the offence of armed robbery under provisions relating to the offence(s) that attract the punishment of life sentence without finding him guilty in respect of same. “Sentence of death” as it appears in section 1(2) of Decree No.5 of 1984/cap. 398 is a punishment on its own and it does not admit of the dichotomy of “minimum” and “maximum” which allows for exercise of discretion. Indeed the case of SEGUN BALOGUN V. ATTORNEY-GENERAL OF OGUN STATE (supra) further reinforces the view that the mandatory punishments prescribed or stipulated under Cap. 398 are not subject to the exercise of discretion by the court.

This was clearly brought out in the lead judgment delivered by Uwalfo, JSC. At pages 537-540 thereof, the question of the sentences passed on the appellant therein by the court below after the conviction for armed robbery had been substituted with one for attempted armed robbery was considered. It was the Supreme Court itself that drew the attention of both counsels in the appeal to the said issue. After hearing the submissions of both counsel, it was held to the effect, that sentencing the appellant to 20 years in hard labour (I.H.L) on the Count of Attempted armed robbery, was a slip as the court below apparently did so under the provision of section 2(1) of the Robbery and Firearms (Special Provisions) Act, Cap. 398. And having also held that the Supreme Court pursuant to its powers in any event can impose the appropriate sentence; the mandatory sentence of life imprisonment was imposed in respect of the two counts. In doing this, Uwaifo, JSC; observed that the statute in recognition of the seriousness of attempted armed robbery and conspiracy relating thereto had imposed a mandatory sentence of life imprisonment for the offence of attempted armed robbery and that any reduction cannot be justified under whatever circumstances. It is to be noted that all the learned Justices In the panel that entertained the appeal, were unanimous on the issue. The point is, if the court is duty bound to impose the mandatory sentence of life imprisonment in respect of attempted robbery, where then is the discretion to impose anything less than the mandatory sentence of death upon conviction for the actual offence of armed robbery? Suffice it to say that I do not see where a court can be said to derive such discretion.

From all that has been said, I hold that the trial court having found the Appellant guilty of the offence of armed robbery had no discretion in the sentence to be passed on him; the trial court was duty bound to pass the sentence of death on the Appellant and this the said court did.

The Appellant’s counsel also raised the issue that it was not within the province of the trial court to have specified the manner of execution of the sentence of death it passed on the Appellant. One of the Decrees promulgated at the twilight of the Federal Military Government in 1999, was the Tribunals (Certain Consequential Amendments, Etc) Decree No. 62 of 1999. By virtue of sections 2 and 4 of the said Decree, the High Court of a State became vested with the jurisdiction to entertain charges preferred under Decree NO.5 of 1984/Cap. 398 and for this purpose such charges are to be tried under the appropriate provisions of the relevant High Court Law of the State concerned, and the rules of procedure made there under. It is to be noted that prior to the coming into force of Decree No. 62 of 1999, prosecution of offences under Decree NO.5 of 1984/Cap. 398 was the exclusive preserve of Robbery and Firearms Tribunals. Even when it was a Judge (serving or retired) that sat alone to entertain the trial of offenders, such a Judge still sat as a Judge of the Tribunal set up under the provisions of Decree No. 5 of 1984/Cap. 398; and not as a Judge of the High Court. The Judge of the lower court that entertained the case on appeal, having regard to the Record definitely sat as a Judge of the High Court of Niger State and not as a Judge serving on the Robbery and Firearms Tribunal of Niger State which stood dissolved by operation of law on the coming into force on 28th May, 1999 of Decree No. 62 of 1999. It is indisputable that the rules of procedure applicable to criminal trials in the High Court of Niger State are as contained in the Criminal Procedure Code. Indeed the Appellant’s counsel said this much in the Appellant’s brief. It is clear from section 185 of the Criminal Procedure Code (hereinafter simply called “CPC”) that a criminal trial commences by the filing of the originating process in respect of any particular case, taking of evidence from the prosecution; and the accused person (if he does not elect not to give evidence); and ends with the delivery of judgment. The provisions of the “CPC” relating to each of the steps in criminal proceedings as highlighted above, were therefore applicable in the charge preferred against the Appellant under Decree NO.5 of 1984/cap. 398, by virtue of the amendment introduced therein, by Decree No. 62 of 1999. Section 273 of the “CPC” specifically deals with death sentence. It provides thus: –

“273 – When a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead.”

This was exactly what the lower court did after the Appellant had been convicted for the offences of conspiracy to commit armed robbery and armed robbery respectively, and which offences both carry the mandatory sentence of death as punishment. From all that has been said so far, I am therefore of the settled view that the lower court by virtue of the provisions of Decree No. 62 of 1999 which made the provisions of the “CPC” applicable to the proceedings involving the Appellant, was eminently vested with the jurisdiction to have pronounced that the said Appellant be hanged by the neck till he be dead upon his conviction for the offences of conspiracy to commit armed robbery and armed robbery respectively.

I am not unaware of the case of ALBERT IKEM V. THE STATE (1985) 1 NWLR (pt, 2) 378 in which Coker, JSC, at page 393 in passing, observed to the effect that it was wrong for the trial court to have passed the death sentence on the appellant in accordance with the provisions of section 367(2) of the Criminal Procedure Law Cap. 49 Laws of Bendel State as it was His lordship’s view that the duty of directing the mode of execution did not lie with the trial Judge but with the Governor of Bendel State under section 1(2)(3) of the Robbery and Firearms Decree No. 47 of 1970. Relying, on the case of Anthony Okobi v. The State (1984) 7 5C 62 at page 63 where the Supreme Court said that a person charged under the Robbery and Firearms Decree cannot be convicted and punished under the Criminal Code, His lordship said that as the Robbery and Firearms Decree specifically provided that the execution of death shall be as directed by the Military Governor of the State the trial Judge had no power to have made an order as to the mode of the execution of the death sentence he passed. I must however say that the observation made above, is not applicable in the instant case given the amendment introduced into Decree NO.5 of 1984/cap. 398, by Decree No. 62 of 1999. The amendment as earlier said made the provisions of the “CPC” applicable to the case on appeal. May I also say, that even if there was no amendment that made the provisions of the “CPC” applicable to the case on appeal, the mere fact that the trial Judge ordered the manner of execution of the sentence of death pronounced on the Appellant would not by itself result in the trial, conviction and sentencing of the Appellant being declared as nullities as submitted by Appellant’s counsel. This is because in such a situation, this Court acting pursuant to its powers under Section 24 of the Court of Appeal Act, Cap. 75, LFN, 1990 can properly alter the sentence of death as pronounced by the lower court to comply with that prescribed in section 1(3) of Decree No. 5 of 1984/Cap. 398 just as the Supreme Court did in the case of Balogun V. Attorney-General Ogun State (supra).

In conclusion, I therefore do not find the lower court to lack the jurisdiction to have pronounced the death sentence passed on the Appellant in the form it did as the same was in total compliance with the provisions of the “CPC” relating to the manner in which death sentence is to be pronounced by a Judge of the High Court sitting as such.

The last point raised by Appellant’s counsel under Issue 2 that requires consideration is the contention that if the provision of section 1(2) of Decree No. 5 of 1984/Cap. 398 removed the discretion of the court to pass a sentence lesser than that of death, then this is inconsistent with the powers imbued in courts by the Constitution and equally incompatible with the present trend among civilised nations of the world on the issue of death sentence. As it can, be seen from the review of the arguments of Appellant’s counsel on this point, he relied in the main on the fact that mandatory sentence of death have been pronounced as being degrading to the dignity of the human person in some States in the United States of America to which Nigeria owns most of her own system. I do not consider it necessary to enter into any discussion as to whether or not Nigeria owes most of her own system to the United States of America. Suffice it to observe however, that Nigeria is a sovereign independent country with its own Constitution and that the said Constitution has not made Nigeria an appendage or colony of the United States of America.

Section 33 (1) of the 1999 Constitution guarantees the right to life of every person. The provision of the section however permits the deprivation of life of any person in the execution of the sentence of a court of law in respect of a criminal offence for which he has been found guilty in Nigeria. In the case of ONUOHA KALU V. THE STATE (1988) 11-12 S.C. 4 the Supreme Court (sitting as a Constitutional Court) extensively considered the provisions of section 30(1) of the 1979 Constitution relating to right of persons to life and some other related sections. The provision of section 33(1) of the 1999 Constitution referred to hereinbefore, it should be noted, is in pari materia with that of section 30(1) of the 1979 Constitution considered in KALU V. THE STATE (supra). In the leading judgment delivered in the case by Iguh, JSC; (and with which all the other six learned Justices that were in the panel agreed), His Lordship, held to the effect that death sentence was not unconstitutional and that to argue otherwise will tantamount to embarking on an exercise aimed at defeating the clear provisions of the Constitution. Iguh, JSC; also considered whether death penalty amounted to torture, inhuman and degrading treatment and must ipso facto be unconstitutional. His lordship, in doing this, gave in-depth consideration to the Constitutions of some other countries including that of the United States of America. His lordship made the point that in the jurisdictions where death sentence had been held to be constitutionally invalid, it was because the right to life as provided for, under their Constitutions was unqualified. With specific reference to the United States of America; Iguh, JSC; said that the Fifth Amendment refers in specific terms to capital punishment and thereby impliedly recognises its validity. And also that the Fourteenth Amendment which obliges the States, not to deprive any person of life, liberty or property without due process of law impliedly recognises the right of States to make laws for such purpose. His Lordship further expressed the opinion that as it was plain that the right to life in the Constitution of the United States of America is qualified, the U.S. Supreme Court has repeatedly ruled that death penalty was not intrinsically unconstitutional. The very case of Gregg v. Georgia 428 U.S. 153, 176-178 (1976) (cited by Appellant’s counsel) and two other cases were cited in aid. The point was made that the central focus in the jurisprudence of the United States in relation to death penalty is to mount substantive and procedural safeguards against arbitrariness and discrimination in the imposition of or withholding of death penalty. It was stressed that the Federal constitutionality of the death sentence for murder as a legitimate form of punishment in the United States of America is now settled having regard to the qualified nature of the fundamental right to life, in its Federal Constitution.

Given all that was said in the lead judgment in the case of KALU V. THE STATE (supra) as highlighted above, and having also earlier said that the provision of the 1979 Constitution relating to right to life is in pari materia with that of section 33(1) of the extant Constitution, it is accordingly my conclusion that the provision of section 1(2) of Decree No.5 of 1984/Cap. 398 which mandatorily provides for the punishment of death sentence is not inconsistent with the Constitution which has imbued the courts with the powers that they possess and is neither incompatible with the present trend among civilised nations of the world. Indeed I cannot end the issue better than by quoting from the concurring judgment of Belgore, JSC (as he then was) in the case of KALU V. THE STATE (supra) at page 52 where His Lordship said:-

“…The sentence of death is fully recognised and approved by the Constitution and this could be found in the provisions of Section (sic) 213(2)(d), 220(1)(e). Nigeria is not peculiar in its Constitution and provisions of death sentence therein and in other statutes. Not up to ten per cent of the sovereign nations of the world abolished death sentence. Abolition of death sentence is not an indication of civilisation, rather in some cases is based on historical circumstances of some countries. At any rate in this country, due to our Constitution, it is not the function of courts of law to abolish the sentence of death the responsibility is on the legislative body.”

In conclusion Issue 2 as formulated in the Appellant’s brief is resolved against him.

ISSUE 3

Under this Issue, the Appellant raised the question as to whether or not his trial, conviction and sentence under the Robbery and Firearms (Special Provisions) Act were not nullities as the criminal proceeding against him was not initiated in accordance with the Constitution of the Federal Republic of Nigeria. In arguing the Issue, Appellant’s counsel in the main submitted that the offence of robbery as created and punishable under Decree No. 5 of 1984/Cap. 398 is a Federal offence. In this regard he referred to Section 286(3) of the Constitution and the cases of A.G. Benue State vs. Ogwu (1983) 1 NCR 113 at 120; and Adewunmi v. A.G. Fed. (2002) 9 NWLR (pt. 772) 222 at 271. Relying on section 174(d) of the Constitution, Appellant’s counsel submitted to the effect that it Is the Attorney-General of the Federation by himself or through any officer in his department that has the power to institute and undertake criminal proceedings against anybody under Decree NO.5 of 1984/Cap. 398. Appellant’s counsel submitted to the effect that the Attorney-General of Niger State or any of his officers cannot institute or undertake criminal proceedings against anybody in any court in respect of the offence of robbery under Decree NO.5 of 1984/Cap. 398; but that he can do so in respect of the offence of robbery under the Penal Code which is a State Law. The provision of section 211 of the Constitution was relied upon in this regard; and it was further submitted that the institution of the criminal case now on appeal against the Appellant by the Attorney-General of Niger State or his officer was a clear usurpation of the powers of the Attorney-General of the Federation whose consent or authority was not obtained. Appellant’s counsel submitted that the issue of competence to institute a criminal action is a vital one that rendered the entire trial a nullity if it is shown that such competence was lacking and cited the case of Chike Onwuke v. The State (1970) ANLR 164 at 168 in aid. He accordingly urged this Court to hold that the trial, conviction and sentence of the Appellant were nullities. Other cases cited in relation to the point are, Yakasai v. Nigerian Air Force (2002) 15 NWLR (Pt. 790) 294 at 301; Onyeukwu V. State (2000) 12 NWLR (Pt. 681) 256 at 266; James v. Nigerian Air Force (2000) 13 NWLR (Pt. 684) 406 at 410; Owoh v. Queen (1962) 2 SCNLR409 at 411; and A.P. Anyebe v. The State (1986) 1 SC87 at 88.

Dwelling on the Issue under consideration, Respondent’s counsel submitted that the offence of armed robbery was a residual matter within the legislative competence of the House of Assembly of a State as it is not one of the items contained in the Exclusive List in Part I of the Second Schedule to the Constitution and/or Concurrent List in Part II of the said Second Schedule. Respondent’s counsel submitted to the effect that Decree NO.5 of 1984/Cap. 398 as amended, is therefore a state Law. He further submitted to the effect that as Decree No. 5 of 1984/Cap. 398 was considered to be a State Law, in so far as armed robbery is concerned, the Attorney-General of Niger State by virtue of section 211(a) & (b) of the Constitution and section 143 (c) of the “CPC” has the competence to institute and undertake criminal proceedings relating to armed robbery there-under. It was further submitted that the deletion of section 9 of Decree No. 5 of 1984/cap. 398 effected by Decree No. 62 of 1999, did not alter the position, as the High Court was still conferred with jurisdiction to try armed robbery offences. This is because if it had been the intention of the makers of the law to take away the power of the State Attorney-General to institute proceedings for armed robbery under Decree No.5 of 1984/Cap.398, this would have been done by express words withdrawing the power and not by the mere deletion of section 9. The case of Emelogu v. The State (1988) 5 S.C.N.J. 79 was cited in support of the submissions.

I have read the cases (including those contained in the List of Additional Authorities filed by the Appellant) relied on by both counsel in aid of their respective submissions in relation to the Issue under consideration and I am in no doubt that the case of EMELOGU V. THE STATE (supra) cited by Respondent’s counsel is most apposite to the situation at hand in the instant appeal. The said case is equally reported in [1988] 1 NSCC 869. In the case of Emelogu v. The State (supra) the Supreme Court sat as a constitutional court and the three issues for determination set out in the brief of the learned Attorney-General of the Federation and which issues Eso, JSC; who delivered the lead judgment adopted are as follows: –

“1. Whether at the time (that is 29th April, 1982) when the Appellant herein allegedly committed the offence of armed robbery, for which he (together with one other person) was charged, tried and convicted by the High Court of Imo State of Nigeria, the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970, as amended by various other enactments, including the Constitution of the Federal Republic of Nigeria (Certain Consequential Repeals) Act, No. 105 of 1979 was a Federal law or whether it should be regarded as a State enactment.

2. Whether the Attorney-General of Imo State was competent to institute the criminal proceedings which he instituted against the Appellant (as accused) in charge no. HIN/14C/82 filed in the High Court of Imo State of (sic) 14th July, 1982.
3. Whether the use of the Criminal Procedure (Miscellaneous Provisions) Law (otherwise known as Edict No. 19 of 1974 of East Central State of Nigeria) made (Sic: use of) by the Imo State High Court in the trial of the Appellant (as Accused) in the charge mentioned in (2) above was in order and valid or whether it was otherwise, and, therefore, rendered the trial a nullity.”

It is worthy to note that in dwelling on the issues re-produced above, the status of Decree No. 47 of 1970 upon the coming into force of the 1979 Constitution was extensively considered. The Supreme Court unanimously held as follows in the case under reference: –

(i) That by virtue of section 274(4)(b) of the 1979 Constitution, the Robbery and Firearms (Special Provisions) Act, No. 47 of 1970, became an existing Law of the State and “Robbery” per se a residual matter, while the Act as amended was deemed to have been made by the State House of Assembly and that in view of this, offences under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 are not Federal but State Offences.

(ii) That by virtue of section 191 of the 1979 Constitution, the power to institute prosecution of criminal cases is vested in the State Attorney-General and because the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 operated as a State Law in so far as Armed Robbery is concerned, the Attorney-General for Imo State had the locus standi as at the 14th day of July 1982 and the question of delegation of authority does not arise.

(iii) That even though the provisions of section 6 of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 has been repealed by the Federal Republic of Nigeria (Certain Consequential Repeals etc) Decree No. 105 of 1979, by virtue of section 239 of the 1979 Constitution, the Criminal Procedure (Miscellaneous Provisions) Edict, 1974 of the East Central State became an existing law of Imo State on the 1st of October, 1979, therefore the provisions of the Criminal Procedure (Miscellaneous Provisions) Edict, 1974 is the applicable law to the trial of offences under the Robbery and Firearms (Special Provisions) Act No. 47 of 1970.

Now, In the Emelogu case, it was observed by Eso, JSC; that: –

“…At the end of the year 1983, there was another military putsch. The Constitution (Suspension and Modification) Decree No. 1 of 1984 was passed. The Robbery and Firearms (Special Provisions) Decree No. 5 of 1984 was enacted. It was later amended by Decree No. 21 of 1984. What happened? There was a return to Tribunals. The 1984 Decrees were in essence in pari materia with the 1970 Act No. 47 as subsequently amended. The old order which was changed by the 1979 Act No. 105 and the 1979 Constitution has again been reverted to…”

Decree No. 5 of 1984/cap. 398, as already stated are the same legislation. The change in nomenclature from “Decree” to “Act” came to be as a result of the compilation of the 1990 Edition of the Laws of the Federation. The Robbery and Firearms (Special Provisions) legislation as can be seen, has again run the exact course that Decree No. 47 of 1970 ran prior to the coming into force of the 1979 Constitution. On the basis of the 1979 Constitution, the Supreme Court sitting as a constitutional court held that the said Decree No. 47 of 1970 was a State Law given its tenor and reliance was also specifically placed on the provisions of section 274(1)(b); and (4)(b) of the said Constitution. The 1999 Constitution has corresponding provisions to those of section 274(1)(b) and (4)(b) of the 1979 Constitution. The provisions in this regard are contained in section 315(1)(b) and 4(b) of the said 1999 Constitution.

Applying the authority of EMELOGU V. THE STATE (supra) to the case on appeal, (particularly as “Robbery” per se remains a residuary matter under the 1999 Constitution) I accordingly and comfortably too, hold that Decree NO.5 of 1984/Cap. 398 became a State Law upon the coming into operation of the 1999 Constitution on 29th May, 1999. This being the case, the question that the Attorney-General of Niger State or officers of his department had no locus standi to have instituted the case on appeal against the Appellant as the offences with which he was charged are Federal offences has no basis. The 1999 Constitution in section 211 eminently invests the Attorney-General of Niger State with power to institute and undertake criminal proceedings against any person before any court of law in Nigeria (other than a court-martial) in respect of any offence created by or under any law of the House of Assembly such as Decree NO.5 of 1984/Cap. 398, now is. May I also say that on the basis of the decisions of the Supreme Court in the cases of ATTORNEY-GENERAL, ONDO STATE V. ATTORNEY-GENERAL FEDERATION & 35 OTHERS (2002) 6 SC (pt. I) ATTORNEY-GENERAL LAGOS STATE V. ATTORNEY-GENERAL FEDERATION (2003) 6 SC (pt. 1) 24 and ATTORNEY-GENERAL ABIA STATE & 2 ORS V. ATTORNEY-GENERAL, FEDERATION & 35 ORS (2006) 28 NSCQR 161.

I find it difficult to agree with the submission of Appellant’s counsel that the National Assembly under its seeming omnibus power under Section 11 of the 1999 Constitution to make law for any part of the Federation, can properly legislate on any offence that is constitutionally within the exclusive domain of a House of Assembly.

May I further say that even if Decree No. 5 of 1984/cap. 398, survived as or remained a Federal Law upon the coming into operation of the 1999 Constitution on 29th May, 1999 as argued by Appellant’s counsel (despite the fact that “Robbery” is a residuary matter), it is still my firm view that the Attorney-General of Niger State had and still has the power to institute proceedings under the legislation in question without seeking for and/or obtaining the consent of the Attorney-General of the Federation. In this regard, it must first be appreciated that prior to the coming into force of Decree No. 62 of 1999 on 28/5/99, offences under Decree No. 5 of 1984/Cap 398, were being prosecuted exclusively before Tribunals and the power to prosecute offences before the Tribunals was unconditionally vested in the Attorney-General of a State or the Solicitor-General or any officer in the Ministry of Justice of the State as may be so authorised. See Section 9(2) of the aforementioned legislation. It is only in respect of the prosecution of offences under the legislation as they relate to the Federal Capital Territory, Abuja that the Attorney-General of the Federation is specifically conferred with power of prosecution. See Section 13. Therefore, the argument of Appellant’s counsel, to the effect that the Attorney-General of the Federation has unfettered powers to initiate prosecution for offences committed under Decree NO.5 of 1984/Cap. 398, throughout the length and breadth of the Federation is a total misconception of the provisions of the legislation in question. It is therefore indisputable that at all material times prior to 28/5/99, when Decree No. 62 of 1999 came into force, the Attorney-General of Niger State pursuant to the provision of section 9(2) of Decree No. 5 of 1984/Cap. 398 had the unfettered power to prosecute offenders under the legislation in question.

Now, did the amendments which were introduced into the legislation in question by Decree No. 62 of 1999 in any manner take away or modify the unfettered power of the Attorney-General of Niger State in this regard? As already stated, Decree No. 62 of 1999 came into force on 28th May, 1999. The said Decree vested the High Court of the States and the Federal High Court with jurisdiction in respect of diverse offences which were before then, being tried or triable before different Tribunals. Section 8 of Decree No.5 of 1984/Cap. 398, was amended to read:

“Offences under this Decree shall be triable in the High Court of the State concerned.”

Also sections 9, 10, 11, 12 and 14 of Decree No.5 of 1984/Cap. 398 were deleted. Section 15 was likewise amended by deleting the definition of “tribunal”. As have earlier been stated in this judgment, Decree No. 62 of 1999 equally made the provisions of High Court Laws of the respective States and the rules of procedure made thereunder applicable to the trial of offences in respect of which the Decree had invested the High Court with jurisdiction. In other words, the amendment introduced by Decree No. 62 of 1999 having incorporated into Decree No.5 of 1984/Cap. 398, the criminal procedure rules of a State which made the Attorney-General of the State the alpha and omega of criminal prosecutions in his State, it would have been a tautology to retain any specific or particular provision conferring the same Law Officer or any of his subordinates with the power of prosecution as was done when the criminal procedure rules of States were not countenanced by the said Decree NO.5 of 1984/Cap. 398. It therefore cannot be said that Decree No. 62 of 1999 stripped the Attorney-General of Niger State of the unfettered power he hitherto had to prosecute offenders under Decree No.5 of 1984/Cap. 398 talk less of having now conferred the Attorney-General of the Federation only, with power in that regard. The Attorney-General of the Federation had no position of pre-eminence under Decree No.5 of 1984/Cap. 398 and the amendment introduced into the said legislation by Decree No. 62 of 1999 also never gave that Law Officer (i.e. A-G, of the Federation) any pre-eminence over the Attorney-General of a State. From all that has been said, I therefore find the Attorney-General of Niger State not only to possess the locus standi but also to have competently Initiated the proceedings against the Appellant In respect of offences under Decree NO.5 of 1984/Cap. 398 before the lower court; inasmuch as the “CPC” made applicable to trial of offences under Decree NO.5 of 1984/cap. 398, by Decree No. 62 of 1999, undoubtedly conferred the said Attorney-General with power in that regard in his own right.

Issue 3 is accordingly resolved against the Appellant given all that I have said before now and particularly having concluded (i) that Decree NO.5 of 1984/Cap. 398, became a State Law upon the coming into force of the 1999 Constitution and that the Attorney-General of Niger State pursuant to the provision of section 211 of the same Constitution is invested with power to undertake the prosecution of offences created by a State Law; and (ii) that the said Attorney-General of Niger State by the amendment introduced into the aforementioned Decree No. 5 of 1984/cap. 398, by Decree No. 62 of 1999 also has unfettered power to have initiated criminal proceedings against the Appellant pursuant to his powers under the “CPC” made applicable to proceedings under Decree No.5 of 1984/Cap. 398.

ISSUES 4 AND 5

Issues 4 and 5 set out in the Appellant’s brief will be considered together in this judgment. The two Issues are in my view intertwined. The Appellant by Issue 4 questions the reliance by the lower court on his confessional statement in convicting him. Issue 5 complains about the finding of the lower court that the prosecution proved its case beyond reasonable doubt.

The complaint in Issue 4 is that the lower court was wrong to have relied heavily and solely on the purported confessional statement of the Appellant which was retracted and to have convicted the said Appellant on the same in the absence of any corroboration by another witness.

Appellant’s counsel on this Issue in the main submitted that the lower court was wrong to have made use of the purported confessional statement of the Appellant which was retracted or from which the Appellant had resiled and to have convicted him on the same. This was particularly so, as the confessional statement was not corroborated. Appellant’s counsel submitted that the Appellant impeached the purported confessional statement when he stated in his evidence that “I did not write or sign any statement to the police. Exhibit B was written by the police”. The case of Onwumere vs. State (1991) 4 NWLR (Pt. 186) 428 at 431 was cited in aid. Appellant’s counsel submitted that the trial court did not test the truthfulness of the retracted confessional statement as required by law. That if the trial court had done this, it would not have ascribed disproportionate weight to it, but would have seen that the statement did not qualify as a confessional statement as it did not admit all the ingredients of the offence charged. The cases of Nwobe v. State (2000) 11 NWLR (pt. 678) 271 at 279; Daniels v. State (1991) 8 NWLR (Pt. 212) 715 at 730-731; and Chukwu Nwanjoku v. The Queen (1963) 1 SCNLR 370 at 373 were cited in aid. The Appellant’s counsel submitted that the trial court did not ascertain that the retracted confessional statement satisfied the conditions required of it by law but engaged itself in the determination of its voluntariness. That the said court allowed the fact that there was no objection to the admissibility of the confessional statement to affect the statutory requirement of testing its truthfulness and making a finding one way or the other. Appellant’s counsel submitted that non-objection to the admissibility of the confessional statement at the point of tendering should not have prejudiced the Appellant as the law did not expect an accused who wanted to deny making such a statement to take any other approach and cited the case of Eguabor v. Queen (No.1) (1962) 1 SCNLR 409 at 413 in aid. The cases of Obisi v. Chief of Naval Staff (2002) 2 NWLR (pt. 751) 400; Uluebeka vs. State (2000) 7 NWLR (Pt. 665) 404; and Ekure v. State (1999) 13 NWLR (pt. 635) 456 were also cited as setting out the conditions which a retracted confessional statement must satisfy before it could be of any use, particularly in a trial for an offence carrying the mandatory punishment of death. The trial court was accused of not considering the retracted confessional statement and the evidence of retraction to decide where the truth laid. This approach, Appellant’s counsel submitted has caused a miscarriage of justice. Appellant’s counsel further said that it was manifest from the Record that the confessional statement was taken in the presence of the other accused persons. The Supreme Court it was said, has not only seriously deprecated this practice but also held that this rendered such confessional statement invalid, void and of no weight. The case of Mika v. Queen (1963) 2 SCNLR54 at 58-59 was cited in aid.

The Respondent treated the complaints raised in relation to the Appellant’s confessional statement and the use to which the same was put by the trial court under the Issue – “Whether the trial court was right to have relied on Exhibit ‘B’ in convicting the Appellant”. Dwelling on the Issue, and relying on the provision of Section 27(1) of the Evidence Act, Respondent’s counsel in the main submitted that the trial court being satisfied with the truth and voluntariness of Exhibit ‘B’ (which is the confessional statement of the Appellant) properly relied on it. It was further submitted that the retraction by the Appellant of the said confessional statement did not render the same inadmissible and the case of Nwachukwu v. State 17 NWLR (pt. 902) 262 at 265 was cited in aid.

The complaint in Issue 5 is whether it was right for the lower court to have found the case of the prosecution proved beyond reasonable doubt.

Dwelling on Issue 5, Appellant’s counsel submitted that the trial court was wrong to have found the offences of conspiracy and armed robbery preferred against the Appellant, proved beyond reasonable doubt by the prosecution. The case of Nwosu v. The State (1986) 4 NWLR (pt, 35) 348 at 359 was cited in aid. The defects in the evidence adduced by the prosecution in the proof of its case as catalogued in the Appellant’s brief include (i) lack of evidence showing that the Appellant used a knife despite the fact that the amended charge alleged that Alhaji Zakari was robbed of his video machine with a knife resulting in his death. Appellant’s counsel said no knife was tendered in evidence and that the Appellant never admitted using a knife in his confessional statement; (ii) that the prosecution did not prove that the weapon with which the Alhaji Zakari was robbed was not an ordinary one but an offensive one and the case of Ibrahim v. State (1991) 4 NWLR (Pt. 186) 399 at 417 was cited in this regard; (iii) that the prosecution specifically alleged that the victim of the robbery was attacked with a knife and yet none was recovered and tendered; (iv) that the items recovered at the scene were not tendered and no explanation was given for this; (v) that there was no evidence that the cut allegedly sustained by the victim was consistent with one made by a knife; (vi) that there was no evidence that the Appellant conspired with anybody to do an unlawful act and that his confessional statement or any evidence did not disclose any unlawful act the Appellant allegedly conspired to commit and the case of Chianugo vs. State (2002) 2 NWLR(Pt. 750) 225 was cited in aid.

The trial court was accused of not heeding the admonition of the Supreme Court in Obiakor v. State (2002) 10 NWLR (Pt. 776) 612 at 628-629 by not taking care in considering the evidence relating to conspiracy. Appellant’s counsel submitted to the effect that the prosecution neither proved conspiracy to commit armed robbery nor the commission of the offence of armed robbery by the Appellant and that the trial court ought not to have found otherwise.

In respect of this Issue, Respondent’s counsel submitted that the prosecution proved its case beyond reasonable doubt. Elaborating on the submission, Respondent’s counsel said it was not in dispute that a knife was used during the armed robbery and that this led to the death of Alhaji Zakari. The evidence of PWs 1-4 and 6 was referred to in this regard. It was also stated that the Appellant admitted holding a stick during the robbery and which evidence was corroborated by PWs 1 and 2 as well as Exhibit D. Respondent’s counsel submitted to the effect that the failure to tender the knife and stick In evidence did not defeat the case of the prosecution as there was cogent, reliable and authentic evidence which the court admitted and believed. The case of Gbadamosi v. State (1991) 6 NWLR Pt. 196 p. 182 at 192 was cited in aid. Respondent’s counsel likewise submitted that failure of the prosecution to tender the items treated as exhibits by the police in the course of investigation into the case did not in any way prejudice the Appellant’s case or occasion any miscarriage of justice.

The offences for which the Appellant and 4 others were tried before the lower court having regard to the Further Amended Charge at pages 99-100 of the Record are (i) conspiracy to commit the offence of armed robbery and (ii) the offence of armed robbery, both punishable under sections 5(b) and 1(2)(a) respectively of Decree NO.5 of 1984. What are the ingredients of the offences? The ingredients of the offence of armed robbery as stated by this Court in DIBIE V. STATE (2005) All FWLR (pt. 259) 1995 at page 2011 applying the decision in the case of Bozin v. The State (1985) 2 NWLR (pt 8) 465 are (i) there must be a robbery; (ii) the robbery must be an armed robbery; and (iii) the accused persons must be among those who took part in the armed robbery. Again this Court in the case of UMORU USUFU V. THE STATE (2008) (pt. 405) 1731 considered the provisions of sections 402(2)(a) and 403(A) of the Lagos State Criminal Code law, 1973 which are similar to the provisions of Decree No, 5 of 1984 under which the Appellant and 4 others were charged. The Ingredients of the two offences as stated in the case under reference at page 1748, are (i) that there was an agreement or confederacy between the convict and others to commit the offence of robbery; (ii) that In furtherance of the agreement or confederacy the accused took part in the commission of the offence of robbery or series of robberies; and (iii) that the robberies or each robbery was an armed robbery.

The law is settled that the guilt of an accused person may be proved by confessional statement(s); circumstantial evidence; or direct evidence from eye-witnesses to the commission of the offence. See NIGERIAN NAVY & 2 ORS V. LT. COMMANDER S.A. IBE LAMBERT (2007) All FWLR (Pt. 398) 574 at 585-586.

It is not in doubt that the lower court in coming to a decision as to whether or not the prosecution proved its case beyond reasonable doubt made use of Exhibit B – the confessional statement of the Appellant. Appellant’s counsel has even submitted that the said statement is not confessional in nature as it did not admit all the ingredients of the offences the Appellant was charged with. Section 27 of the Evidence Act; deals with “confession”. What qualifies as confessional statement has equally been judicially defined in many cases. In the case of ANTHONY NWACHUKWU V. THE STATE [2007] All FWLR (Pt. 320)1380 at 1404 it was held to the effect that by virtue of section 27(1) of the Evidence Act, cap. 112 LFN, 1990, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. In the same case it was held that a free and voluntary confession of guilt whether judicial or extrajudicial, if direct and positive and properly established, is sufficient to sustain a conviction.

I have painstakingly read Exhibit B and in my view it is a most direct and positive acknowledgment by the Appellant that he participated in a robbery operation at a house in Suleja in the month of April, 1996 and that in the operation a video player was stolen. He also disclosed that he was armed with a stick for the purpose of the robbery.

The confessional statement of the Appellant admitted and marked Exhibit B was tendered through PW 8 who testified that he recorded the said statement and disclosed what he did before doing this. There was no objection whatsoever to the admissibility of the said statement. Also learned counsel for the Appellant at the lower court never cross-examined PW 8 at all; talk less of doing so in respect of Exhibit B which was tendered as the statement made to the police by the Appellant. See pages 79-82 of the Record. True it is that the Appellant while testifying in his own defence said: “I did not write or sign any statement to the police. Exhibit B was written by the police”. The laws however is that the retraction by an accused of his confessional statement in his evidence on oath during trial does not adversely affect the situation once the court is satisfied of its truth. The court can rely on such confessional statement to ground a conviction. See GOLDEN DIEBE & ORS V. THE STATE [2007] All FWLR (Pt. 363) 83 at 114-115 confirming the decision of this Court delivered in the same case on 28/6/2004 and reported in [2005] All FWLR (pt. 259) 1995.

Indeed in the decision of this Court in the Diebe’s case (supra), the test for determining the truth or weight to attach to a confessional statement as enunciated in some earlier cases were set out. They are (i) is there anything outside the confession to show that it is true?; (ii) is it corroborated?; (iii) are the relevant statements of fact made in it true as far as can be tested?; (iv) was the accused one who had the opportunity to commit the offence?; (v) is the confession possible?; (vi) is it consistent with other facts which have been ascertained?

I have scrutinised the Record and I am in no doubt that the lower court was very much aware of what was required of it by law as itemised above, before it could attach any appreciable weight to Exhibit B and duly compiled. In this regard see pages 193-230 of the Record. Suffice it to also say that I cannot fault the finding of the lower court that Exhibit B was voluntarily made by the Appellant and the decision of the lower court to rely on it, in the light of the various facts which the evidence adduced by the prosecution established. It is a serious misconception on the part of Appellant’s counsel to say that the lower court relied solely on Exhibit B in convicting the Appellant. The law is that a confessional statement once admitted becomes part of the case of the prosecution which the lower court was duty bound to consider in determining the probative value of the totality of the evidence adduced by the said prosecution. See NWACHUKWU V. THE STATE (supra), at page 1410.

This, the lower court again did and correctly found the evidence adduced by the prosecution of sufficient probative value for it to act upon. In the circumstances I find the reliance placed by the lower court on Exhibit B In convicting the Appellant to be proper. Issue 4 is accordingly resolved against the Appellant.

The defects in the evidence adduced by the prosecution in the proof of its case which Appellant’s counsel relied upon in support of his submission that the prosecution did not prove Its case beyond reasonable doubt have earlier been highlighted in this judgment. The law would appear to have been made clear by the Supreme Court that there is no principle of law requiring the tendering of the weapon used in the commission of an alleged robbery. Whether or not the prosecution needs to tender the weapon by which an accused allegedly committed robbery would depend on the character and circumstances of the case.

See the case of FATAI OLAYINKA V. THE STATE [2007] All FWLR (Pt. 373) 163 at 173-174. Similarly, this Court has made it clear that it is the use made of an object and the manner it was made use of; that qualifies the object as an offensive weapon. See DIBIE V. STATE (2005) All FWLR (Pt. 259) 1995 at 2014.

It is clear from the evidence of PWs 1 and 2, that Alhaji Zakari was discovered soaked in his own blood immediately after the robbers that invaded their house bolted away upon the raising of the alarm as to their presence. PW 6 is the doctor that attended to the said Alhaji Zakari upon his admission for treatment in respect of the injuries which he sustained from the robbers that invaded his house. The evidence of the witness can be found at pages 60-65 of the Record. Therein the doctor gave a thorough description of the state in which he found Alhaji Zakari, the nature of wounds he saw on the said Alhaji Zakari and the treatment he carried out. The witness also said in his evidence that the injuries were consistent with those caused by sharp object. The offence of armed robbery is different from that of murder or unlawful homicide where the prosecution must prove amongst others, the particular act of the accused that directly resulted in the death of the victim. In a charge of armed robbery, what the prosecution is required to prove amongst other in order to sustain a conviction is that at the time of the commission of the offence of robbery, the offender was armed with an offensive weapon or was in the company of any person so armed.

In Exhibit B the Appellant not only admitted that he was one of the robbers that carried out a robbery operation in a house at Suleja in April, 1996 but also stated therein the role he played – he was one of the robbers on guard outside the house where they operated. By Exhibit B the Appellant therefore placed himself as being in the company of the robbers who went into the house to rob. When the testimonies of PWs 1, 2 and 6 which were not successfully challenged under cross-examination are considered together, the prosecution in my view definitely adduced credible evidence that the victim of the robbery (who was in good condition prior to the incident) was found immediately thereafter wounded by the invading robbers and that the wounds given their degree/nature could have only been caused by a weapon that qualified as an offensive one. The principle of law basically is that the proof of the weapon of an alleged robbery is not necessary to establish the guilt of the accused; the non-tendering of any piece of wood or stick in my view is therefore manifestly irrelevant in the instant case particularly as the Appellant never claimed in Exhibit B that he had any contact with the victim of the robbery, talk less of having struck him with anything at all. This in my view equally clearly shows that the non-tendering of the items which the police treated as exhibits in the course of their investigation into the case by any stretch of imagination could not be remotely required to establish the offence of armed robbery in the circumstances of this case.

Proof beyond reasonable doubt, decided cases have consistently held, does not mean proof beyond any shadow of doubt. Once the proof of a case as offered by the prosecution drowns the presumption of innocence of the accused, the court is entitled to convict him although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on part of the accused useless and pins him down as the owner of the mens rea or actus reus or both, the prosecution has discharged the burden placed on it by section 138(3) of the Evidence Act. See, DIBIE V. STATE (supra) at 108.

A confessional statement where available, no doubt plays no small role in the proof of a case beyond reasonable doubt by the prosecution. This is because a confessional statement is the best evidence in our criminal procedure. It is an admission of guilt by an accused person and the court must admit it in evidence unless it is contested at trial. See NWACHUKWU V. THE STATE (supra) at page 1410. Indeed this is what the Supreme Court per Tobi, JSC; had to say on confessional statement in the case of MONSURU SOLOLA &. ANOR V. THE STATE (2005) All FWLR (pt, 269) 1751 at 1782: –

“Before a confessional statement could result in the conviction of an accused, it must be unequivocal in the sense that it leads to the guilt of the maker. Where a so-called confessional statement is capable of two interpretations in the realm of guilt and non-guilt, or wayward, a trial court Judge will not convict the accused but give him the benefit of doubt. But where a confessional statement is unequivocal, as it is in this case, a trial Judge can convict on it. After all, there cannot be a more appropriate human being to give evidence of the guilt of the accused more than the accused himself. Therefore, if an accused says he committed the offence and the court comes to the conclusion that he made the statement in a stable mind and not under duress, the accused must be convicted. That is what the trial Judge did in this case and I cannot fault him.”

From a painstaking perusal of the totality of the evidence adduced by the prosecution and which includes the confessional statement of the Appellant, I am of the firm view that it would have been perverse if the lower court had found the prosecution not to have proved its case beyond reasonable doubt. This is particularly so as the lower court not only correctly found Exhibit B to have been voluntarily made by the Appellant but also found the confession of the Appellant to be true from the other circumstances of the case as disclosed in the evidence of witnesses called by the prosecution. In conclusion, I endorse the finding of the lower court that the prosecution proved the offences for which the Appellant was charged against him beyond reasonable doubt and hold that the said Appellant’s conviction and sentence in respect of the said offences were proper. Issue NO.5 is accordingly resolved against that Appellant.

Having resolved all the five Issues formulated for the determination of this appeal in the Appellant’s brief against the said Appellant, this appeal in the circumstances is bound to fail and accordingly fails. The appeal is dismissed and the conviction and sentence passed on the Appellant by the lower court are affirmed.

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Other Citations: (2008)LCN/2826(CA)