Ikechukwu Okoh 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 Justice, Niger State, Minna Judicial Division (coram Hon. Justice Amina A. Wambai). By the Further Amended Charge at pages 99-100 of the Record, 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. The Appellant filed an Amended Notice of Appeal pursuant to the order of Court granted in that regard on 7th November, 2006. The Amended Notice of Appeal contains seven grounds of appeal and the said grounds without their particulars read thus: –

“GROUND 1

The Hon. Trial court erred in law when it tried, convicted and sentenced the Appellant on a charge under the Robbery and Firearms (Special Provisions) Act not signed and preferred by the Attorney General of the Federation.

GROUND 2

The learned trial court erred in law when it convicted the Appellant solely on the retracted confessional statement of the Appellant uncorroborated with any reliable independent evidence.

GROUND 3

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 4

The learned trial court erred in law when it convicted and sentenced the Appellant for conspiracy and Armed Robbery in the absence of properly conducted identification parade and proper evidence of identification.

GROUND 5

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

GROUND 6

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.

GROUND 7

The Hon. Trial court erred in law when it sentenced the Appellant to death by hanging stating that it has no discretion in the term of sentence.”

The appeal was heard on 14th May, 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 12th October, 2006 and filed the same day. He also commended to the Court, the List of Additional Authorities dated 7th April, 2008 and which he filed on 9th April, 2008.

Muazu Shehu (DDLD, Ministry of Justice, Niger State), in urging the Court to dismiss the appeal, relied on and adopted the Respondent’s brief dated 2nd April, 2007 and deemed to have been properly filed and served on 3/4/07 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 attorney General (sic) of Niger State has the powers to institute criminal proceeding under the Robbery and Firearms (Special provisions) (sic) Act having regard to the Constitution of the Federal Republic of Nigeria, 1999 (Ground 1)

ISSUE NO. 2

Whether, considering that the purported confessional statement was retracted by the appellant the Hon. Court was right to have relied heavily and solely on the said confessional statement to convict the Appellant in the absence of its truthfulness being corroborated by any other witness (Grounds 2-3)

ISSUE NO.3

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 4)

ISSUE NO.4

Whether considering the circumstances and evidence before the Court, the Court was right to have held that the prosecution proved her case beyond reasonable doubt (Grounds 5-6)

ISSUE NO.5

Whether, considering the provisions of the Robbery and Firearms (Special Provisions) Act, the Hon. Trial Court was right to have imposed the sentence of death on the Appellant and how the sentence of death should be executed. Ground 7”

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

“1.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.

2. Whether the trial court was right to have relied on Exhibit “D” in convicting the Appellant.
3. Whether there was the need for an identification parade in this case.
4. Whether the prosecution proved its case beyond reasonable doubt.
5. Whether the trial court’s discretion in sentencing the appellant for the offence (sic) of conspiracy and armed robbery punishable with death was exercised in accordance with Law,”

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

Dwelling on this Issue, Appellant’s counsel submitted to the effect that the Attorney-General of Niger State has no authority either by himself or officers of his department to institute and undertake any criminal proceeding against anybody under the provisions of the Robbery and Firearms (Special Provisions) Act. section 174(1)(a) of the 1999 Constitution was cited in aid. Appellant’s counsel further said that the Act is one enacted by the National Assembly and the offence created therein, a Federal offence. He stated that ‘robbery’ as constituted under the Robbery and Firearms (Special Provisions) Act, is not the same as robbery under the Penal Code and Criminal Code enacted by various States as State Laws and in respect of which a State Attorney-General has the power to institute and undertake criminal proceedings against anybody in court. 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 officers 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.

Appellant’s counsel referred to Section 286(3) of the Constitution as defining “Federal offence”. He also made reference to Sections 4, 11 and 14(2) of the Constitution in respect of the constitutional basis for the National Assembly to make laws on ‘Robbery’. The cases of A.G. Ogun State vs. A.G. Federation (1982) 2 NCR 174; A.G. Benue State vs. Ogwu (1983) 1 NCR 113 at 120; Okobi vs. The State (1984) ANLR 356 at 367; A.G. Ondo State vs. A.G. Federation (2002) 9 NWLR (pt. 772) 271 were relied upon by Appellant’s counsel to buttress the submission that the Robbery and Firearms (Special Provisions) Act is an Act of the National Assembly and thereby created robbery as a Federal offence.

Appellant’s counsel further submitted that the Constitution did not permit the delegation by the Attorney-General of the Federation of his powers to institute criminal proceedings in respect of offences created by an Act of the National Assembly to the Attorney-General of a State and that the Attorney-General of a State therefore cannot prosecute offences under federal law. He cited in aid of the submission the cases of Owoh VS. Queen (1962) 2 SCNLR 409 at 411; A.P. Anyebe VS. The State (1986) 1 SC 87 at 88; Onyeukwu V. State (2000) 12 NWLR (Pt. 681) 256 at 266; James V. Nigerian Air Force (2000) 13 NWLR (pt. 684) 406 at 410; Yakassi vs. Nigeria Air Force (2002) 15 NWLR (Pt. 790) 294 at 301. To bring out the point more clearly, Appellant’s counsel submitted to the effect that just as it would have been absurd to see a State Attorney-General Instituting and prosecuting offences relating to corruption which had been made a Federal offence by the enactment of the Corrupt Practices and other Related Offences Act 2000, it would equally be absurd to see a State Attorney-General do the same under the Robbery and Firearms (Special Provisions) Act by which robbery has been made a Federal offence. In conclusion Appellant’s counsel urged the Court to hold that the institution of the instant criminal action by the Attorney-General of Niger State was a nullity thus rendering the trial, conviction and sentence of the Appellant to be nullities.

Dwelling on the Issue under consideration, Respondent’s counsel relying on the Second Schedule (Parts 1 and 2) to the 1999 Constitution; section 211 of the same Constitution, Decree No. 62 of 1999, and section 143(c) of the Criminal Procedure Code; submitted to the effect (i) that the Robbery and Firearms (Special Provisions) Act No.5 of 1984 as amended is a State Law as the offence of armed robbery not being 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 was thereby a residual matter within the legislative competence of the House of Assembly of a State; (ii) that as the Robbery and Firearms (Special Provisions) Act No. 5 of 1984 as amended was considered to be a State Law in so far as 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 Criminal Procedure Code therefore has the competence to institute and undertake criminal proceedings relating to armed robbery; and (iii) that the deletion of section 9 of Act No. 5 of 1984 effected by Decree No. 62 of 1999, did divest the Office of the State Attorney-General of the power to institute criminal proceedings for offences of armed robbery under the Act as the said Decree No. 62 of 1999 still conferred the High Court with jurisdiction to try armed robbery offences. The point was made that 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 Act No.5 of 1984, this would have been done by express words withdrawing the power and not by merely amending section 9 of the principal law. The case of Ishmael Emelogu vs. The State MAY S.C.N.P. 79 was cited in support of the submissions.

I have read the cases 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 vs. 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…”

The observation of Eso, JSC; quoted above, in my view clearly shows that the Robbery and Firearms (Special Provisions) Decree NO.5 of 1984 was enacted after the military putsch at the end of 1983. A perusal of the Robbery and Firearms (Special Provisions) Act, cap. 398, LFN, 1990 and the Robbery and Firearms (Special Provisions) Decree No. 5 of 1984, in my view clearly shows that they are one and 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 said Robbery and Firearms (Special Provisions) Decree No.5 of 1984 cap. 398, LFN, 1990 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. 1) 1; 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 NSCOR 161; I find it difficult to agree with the submission of Appellant’s counsel that the National Assembly pursuant to 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 in his own right, had and still has the power to Institute proceedings in respect of offences under the legislation committed within Niger State. In this regard, it must first be appreciated that prior to the coming into force of The Tribunals (Certain Consequential Amendments, Etc) Decree No. 62 of 1999 on 28th May, 1999, 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. So too is the submission to the effect that the Attorney-General of a State cannot institute criminal proceedings under the legislation because it is a Federal one. The legislation not only expressly empowers the Attorney-General of a State, Solicitor-General or any designated officer in the Ministry of Justice to undertake the prosecution of offences under the Decree/Act committed in their State but also does not require that the consent of the Attorney-General of the Federation be sought and obtained for this purpose. The submissions of Appellant’s counsel simply runs contrary to two related principles of interpretation, namely, (i) that to state one thing expressly ends the possibility that something inconsistent with it is implied; and (ii) that to express one thing Is impliedly to exclude another, which, is an aspect of the latter. See ATTORNEY-GENERAL OF ABIA STATE V. ATTORNEY-GENERAL OF THE FEDERATION AND 35 ORS [2005] All FWLR (pt. 275) 414 at 452. 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 triabal 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”. 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 1 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 2

Dwelling on this Issue, Appellant’s counsel in the main submitted that the lower court was wrong to have used 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. The Appellant was said to have impeached the purported confessional statement in a manner acceptable in law when he denied making the same to the police in his evidence at pages 132-133 of the Record and the case of Onwumere vs. State (1991) 4 NWLR(pt. 186) 428 at 431 was cited in aid. The trial court was accused of not testing the truthfulness of the retracted confessional statement as required by law. Appellant’s counsel further submitted that if the trial court had done this, it would not have ascribed disproportionate weight to it, and indeed would have seen that the statement was not confessional as it did not admit all the ingredients of the offence charged. The cases of Nwobe vs. State (2000) 11 NWLR (pt. 678) 271 at 279; Daniels vs. State (1991) 8 NWLR (pt. 212) 715 at 730-731; and Chukwu Nwanjoku vs. The Queen (1963) 1 SCNLR 370 at 373 were cited in aid. 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 failed to consider both the retracted confessional statement and evidence given in respect of its retraction for the purpose of deciding where the truth laid and that the failure in this regard caused a miscarriage of justice.

Appellant’s counsel submitted that nothing outside the confession corroborated it. That the relevant statements of fact made therein are not true as far as they can be tested and that no other facts consistent with the said confessional statement were ascertained and proved. Appellant’s counsel further said to the effect 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 seriously deprecated this practice and Appellant’s counsel submitted that the statement made by the Appellant was invalid, void and of no effect. The case of Mika vs. Queen (1963) 2 SCNLR 54 at 58-59 was cited in aid. The trial court was accused of not stating in any part of its judgment that the Appellant actually made the confessional statement and that the court allowed the fact that the statement was not objected to at the point of tendering to affect its satisfying the statutory requirement of testing its truthfulness and making a finding one way or the other in that regard. 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 vs. Queen (NO.1) (1962) 1 SCNLR 409 at 413 in aid. Appellant’s counsel submitted that the non objection to the tendering of a piece of evidence cannot be allowed to prejudice the Appellant’s case because an appellate court can always disallow any evidence admitted in error whether or not it was objected to. In rounding up on this Issue, Appellant’s counsel urged the Court to disallow the conviction and sentence of the Appellant based on his retracted, unverified and uncorroborated purported confessional statement.

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 ‘D’ in convicting the Appellant”. Relying on the provisions of Section 27(1) of the Evidence Act, Respondent’s counsel submitted that Exhibit ‘D’ suggested the involvement of the Appellant in the crime for which he was charged. An analysis of the said Exhibit was undertaken to justify the submission. Respondent’s counsel further submitted that the trial court not only tested the voluntariness of Exhibit ‘D’ to determine whether or not it was admissible in law but also that the trial court was satisfied with its truthfulness and voluntariness before admitting it in evidence. The reasons for the submission were set out in the brief. The cases of Amala vs. The State 12 NWLR PT. 888 P. 520 at 526; and Emeka vs. The State 14 NWLR PT 734 P. 666 at 671 were cited in aid of the submissions that Exhibit ‘D’ is admissible since it had been shown to be free and voluntary; and as the said Exhibit together with the corroborative evidence of the prosecution witnesses confirmed that the Appellant was one of those who committed the crime. 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 vs. State 17 NWLR (pt. 902) 262 at 265 was cited in aid.

Respondent’s counsel submitted that the statement of an accused person can be taken by the IPO In the presence of other accused persons provided the provisions of section 27(3) of the Evidence Act or the Rules of Criminal Procedure(Statement of Police Officers) Rules Cap. 30 of the Laws of Northern Nigeria 1963 applicable to Niger State were not contravened. Respondent’s counsel similarly submitted that the omission of the trial court to specifically state that the Appellant made Exhibit ‘D’ did not in any way affect the merit of the case. This is particularly so as the issue is not a vital one that is capable of flawing the judgment of the trial court but an inconsequential one. Respondent’s counsel concluded by urging the Court to dismiss the ground upon which the Issue under consideration is premised (i.e. Grounds 2 and 3).

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 concerning the guilt of the Appellant in respect of the offences for which he was charged made use of Exhibit ‘D’ – 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. 390) 1380 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 extra-judicial, if direct and positive and properly established, is sufficient to sustain a conviction. I have painstakingly read Exhibit ‘D’ 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 Angwan Dutse area of Suleja on the 6th April, 1996 and that in the operation a video player was stolen. He not only disclosed that he and some others; all armed with sticks stood guard outside the house where they went to operate but also that his share from the sale of the video stolen during the operation was N350.00.

The confessional statement of the Appellant admitted and marked Exhibit ‘D’ was tendered through PW 9 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. See pages 90-94 of the Record for the evidence of PW9 in-chief and under cross-examination. True it is that the Appellant while testifying in his own defence and under cross-examination denied making any statement to the police but the law is settled that the retraction of a confessional statement (such as Exhibit ‘D’ is) by an accused in his evidence on oath during trial does not adversely affect the situation once the court is satisfied of its truth.”The court is entitled to 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. Furthermore the case of OZANA UBIERHO V. THE STATE [2005] All FWLR (pt. 254) 804 at 814; is instructive on the principles which are to guide the courts in assessing the quality of a confessional statement, whether retracted or not. They are – (i) Is there anything outside the confession which shows that it may be 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? Indeed, in the case of DANIEL NSOFOR &. ANOR V. THE STATE [2005] ALL FWLR (Pt. 242) 397 at page 410, the Supreme Court succinctly put it that if an accused person never contended that he was forced to make a confessional statement, such statement was admissible and all that remained for the trial Judge to do at a later stage in the proceeding was to determine whether it was the accused person that made the said confessional statement. I have painstakingly scrutinized the Record. The learned trial Judge embarked on the appraisal of the confessional statements tendered during the hearing of this case from 194. The learned trial Judge having given consideration to the evidence of the prosecution as to how each of the confessional statements, namely Exhibits ‘C’; ‘B’; and ‘D’ ascribed to the 1st, 3rd and 4th accused persons respectively (and the 4th accused it should be noted is the Appellant herein) came to be made and the evidence of each of the accused persons in retraction and which was a mere denial of the making of the statements; concluded at page 198 of the Record thus – “there is therefore, in this case no challenge to the voluntariness of exhibits C, B, and D and the prosecution having adduced sufficient evidence to prove that exhibits C, Band D were voluntarily made, same are considered relevant against the makers from which Inferences of conspiracy may be drawn,” The conclusion of the trial court in this regard, in my view is sufficient finding that each of the accused persons made the confessional statement ascribed to him by the prosecution and particularly as it relates to the Appellant, that he made Exhibit ‘D’, I do not think it is only when a court specifically says to the effect that “it is therefore my finding that so and so is the case” that a finding on the issue will be said to have been made as Appellant’s counsel would appear to be postulating. A finding on a specific issue can always be inferred or deduced from a conclusion reached by a court.

The principles which are to guide the courts in assessing the quality of a confessional statement as stated in the case of OZANA UBIERHO V. THE STATE (supra) have earlier been set out and I am also in no doubt that the lower court was very much aware of what was required of it by law in this regard before I could attach any appreciable weight to Exhibit ‘D’ 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 ‘D’ 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 ‘D’ in convicting the Appellant without its truthfulness being corroborated. 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. Corroborative evidence can be provided by some other evidence be it oral, documentary and/or real, properly admitted in the case. In the circumstances of the instant case on appeal, I find the reliance placed by the lower court on Exhibit ‘D’ in convicting the Appellant to be proper. Issue 2 is accordingly resolved against the Appellant.

ISSUE 3

Appellant’s counsel in dwelling on Issue 3, 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. According to Appellant’s counsel the need for evidence of identification was very vital in view of the fact that the Appellant was not arrested till over a month after the incident and as none of the prosecution witnesses mentioned him as being among the robbers. The lower court was said to have been wrong in dismissing the question of the identity of the Appellant which was very much in issue with a wave of the hand relying on his confessional statement which he had duly retracted and therefore ought not to have been given undue relevance and weight.

Appellant’s counsel cited the case of Okeke v. The State (1995) 4 NWLR (Pt. 392) 676 at 688 in aid of the submission that the failure to conduct an identification parade in this case rendered the conviction and sentence of the Appellant a shamble, outrageous and very improper. Also cited on the same issue were the cases of Madagwa v. The State (1988) S NWLR (Pt. 92) 60 and Alabi vs. The State (1993) 7 NWLR (Pt. 307) 511. furthermore the case of Ajibade vs. The State (1987) 1 NWLR (Pt. 48) 205 at 210 was cited on the need for the conduct of identification parade in capital cases and that of Isibor v. State (2002) 3 NWLR (Pt. 754) 250 at 256 as to the procedure and manner of conducting an acceptable identification parade. In rounding up on the Issue, Appellant’s counsel submitted that the trial court misunderstood the evidence of identification which was very crucial in the instant case 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 3 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, never denied his involvement in the crime. That it was if the Appellant had denied his involvement in the crime or raised some suspicion about his involvement in the crime at the time of his arrest, that it would have been imperative to hold an identification parade. 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 at 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 ‘D’. 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. 381) 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 robbery 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 crime either 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.

From all that has been said before now, Issue 3 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 4

The Appellant’s complaint under this Issue simply put is that the lower court was wrong in holding that the prosecution proved its case beyond reasonable doubt given the evidence before it and the circumstances of the case.

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 vs. 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 actually 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 which the lower court heavily relied on; (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 vs. 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/or 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 PW6; and pages- 16 and 64 of- the Record were referred to in this regard. It was submitted that the fact that the Appellant did not admit using a knife did not exonerate him from being liable as he was in the midst of those holding knife and the case of Alor vs. The State July 1998 Vol. 1 Law Report of Court of Nigeria 125 at 127 was cited In aid. 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 vs. State (1991) 6 NWLR PT 196 182 at 192 was cited in aid. Respondent’s counsel likewise submitted that the prosecution was not bound to tender in evidence all exhibits recovered in the course of investigation. That the prosecution has discretion in this regard and which discretion depended on the facts and circumstances of the case.

In any event it was submitted that the failure to tender the exhibits recovered in the police in the course of investigation in this 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. The ingredients of the offence of armed robbery as stated by this Court in DIBIE v. STATE [2005] All FWLR(pt. 252) 1995 at page 2017 applying the decision in the case of Bozin VS. 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.

It has already been said that 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 and the case of NIGERIAN NAVY &. 2 ORS V. LT. COMMANDER S.A. IBE LAMBERT [2007] All FWLR (Pt. 398) 574 at 585-586 (supra) was cited in aid.

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 lakari 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 administered. 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 ‘D’ the Appellant not only admitted that he was one of the robbers that carried out a robbery operation in a house at Suleja on the 6th April, 1996 but also stated how he came to participate in the robbery operation and the specific role which he played – he was one of the robbers on guard outside the house where they operated. By Exhibit ‘D’ 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 as earlier said 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 knife, or piece of wood or stick in my view is therefore manifestly irrelevant in the instant case particularly as the Appellant never claimed in Exhibit ‘D’ 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 ‘D’ 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 4 is accordingly resolved against that Appellant.

ISSUE 5

In respect of Issue 5, Appellant counsel 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; R vs. Garth (1984) 82 L. S. Gaz 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 urged this Court to quash the death sentence passed on the Appellant on the strength of the decisions in Ekpo Vs. State and Price Control vs. Ezeme both supra.

The Respondent responded to Issue 5, as formulated by the Appellant under its own Issue 5. 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 vs. State (2005) 5 NWLR(pt. 918) 286 at 297-298; and Alao vs. 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. The Court was urged to discountenance the ground of appeal upon which the Issue under consideration was predicated.

I have earlier stated in this Judgment to the effect that the Robbery and Firearms (Special Provisions) Act, Cap. 398, LFN and the Robbery and Firearms (Special Provisions) Decree No.5 of 1984 are one and the same legislation. That 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 said Robbery and Firearms (Special Provisions) Decree NO.5 of 1984/Cap. 398, LFN, 1990 under which the Appellant and two others were tried, convicted and duly sentenced to death by hanging 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 be 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. FERGUSON 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 HASSEY 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 EWLR (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 the provisions of 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” transforms 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). Indeed he urged the Court to quash the death sentence passed on the Appellant on the strength of the said cases. I however 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) 1019. 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 minimum 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 Learner’s 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 therefore and which is death sentence in the light of the provision of section 1(2) of Decree NO.5 of 19M/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 19M/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 Uwaifo, 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. The Tribunals (certain Consequential Amendments, Etc) Decree No. 62 of 1999 has earlier been referred to in this Judgment. It is one of the Decrees promulgated at the twilight of the Federal Military Government in 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 thereunder. 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 whim 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 [1905] 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 SC 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. Appellant’s counsel also- submitted that it will be contrary to worldwide trend regarding death sentence if it is held that section 1(2) of the Robbery and Firearms (Special Provisions) Act makes it mandatory on the trial Judge to pass a sentence of death on the Appellant.

The case of ONUOHA KALU V. THE STATE (1988) 11-12 S.C. 4 decided by the Supreme Court (sitting as a Constitutional Court) would appear to render the submission of Appellant’s counsel in this regard to be of no consequence. In the said case the Supreme 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 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). Section 33 (1) of the 1999 Constitution while guaranteeing the right to life of every person 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 leading judgment delivered in the KALU’S 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 African countries. Even that of the United States of America was considered. 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. I am of the settled view that inasmuch as the Constitution of this country has given constitutional approval to death sentence, what has been expressly legitimized in that regard by our organic law cannot be reversed by worldwide trend which the makers of the Constitution never considered worthy of countenancing in the first place. Indeed this view was expressed most aptly in the concurring judgment of Belgore, JSC (as he then was) in the said case of KALU V. WE STATE (supra) at page 52 when 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 percent of the sovereign nations of the world abolished death sentence. Abolition of death sentence is not an indication of civilization, 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 5 as formulated in the Appellant’s brief is resolved against him.

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/2879(CA)