Adewale Adedara V. The State (2009)

LawGlobal-Hub Lead Judgment Report

IGNATIUS IGWE AGUBE, J.C.A.

This appeal challenges the conviction and death sentence imposed on the Appellant by Honourable Justice Kayode Bamishile then sitting at the Ekiti State High Court, Ado- Ekiti and before whom the appellant was arraigned along with four others on a two count charge of conspiracy and armed robbery contrary to section 5(b) and punishable under section 1(2) (a) of the Armed Robbery and Fire Arms (Special Provisions) Act, Vol. XXII, Cap. 398, Laws of the Federation, 1990; for that on or about the 28th day of July, 1996, he and his co-accused persons robbed one Sunday Onomejoh of the sum of N300,000.00 (Three Hundred Thousand Naira) while armed with offensive weapons to wit: guns. The said judgment was delivered on the 18th day of June, 2002. The Appellant had earlier pleaded not guilty on the 25th of April, 2001 when he was so arraigned.

To prove its case, the prosecution called three witnesses and tendered the statement of the Appellant which was admitted as Exhibit E and the Attestation to the said statement before a superior police officer (Exhibit J). Other Exhibits tendered were Exhibits F, G1 and G2 and H1, H2 and H3 (three double barrel shot guns and three cartridges) said to have been recovered from the 1st Accused in the course of investigation.

The Accused/ Appellant on the other hand testified on oath retracting the confessional statement allegedly made to the PW1 and PW2 and subsequently called his mother who testified as DW4 in support of his case. According to him, on the 10th day of October, 1996, he came from Lagos to attend their new yam festival at Ibulosoro via Akure on 12/8/96 and on 13/8/96; he went to greet his mother at Akure to tell her that he was going back to Lagos on 14/8/96. On 13/8/96, in the evening, he was to go and see his friend and on getting to the junction of Sabo at Old Garage, one police officer by name Waidi arrested and took him to C.I.D office around 9.00 pm and detained him there at behind the counter. The said Waidi brought out a boy from the cell to look at him (the Appellant) and the boy nodded at the Appellant. There and then, a mobile policeman behind the Appellant started to fight him (Appellant) and so did Waidi who also joined in the fight after which the Appellant was subsequently rushed into the cell.

At 12.00 midnight Appellant was asked about Dele Ariyo, Deji Kayode,Felix Ogunleye but he told his tormentors that he did not know the persons. He also disclosed to the police officers his occupation which was wheel balancing and alignment and that his mission was to attend their new yam festival. The officers however told him that he was not ready to tell the truth and he was accordingly hung on the ceiling fan and he started crying. Waidi, then shot him on the leg and he became afraid. He was further questioned as to whether he went to Ise-Ekiti and he replied in the affirmative adding in the first instance that the two of them and later that Six of them went to Ise-Ekiti. He was then handcuffed and put in the cell.

The following day his (Appellant’s) people came and after they had left, the police again brought him out in company of two accused persons and one Sakora was killed because the police had been looking for him for a long time. As a result of that killing, he then confessed that it was true that he went to Ekiti to rob. The following day his statement was taken and when the police got to a certain stage, they stopped as according to them, he was not prepared to talk and he was remanded in the cell again.

Subsequently on the 2nd of October, 1996, Dele Gabriel was brought from another police station. The 2nd accused was brought out of cell but the said accused could not walk as he had blood over his body but managed to walk back to the cell. On the 4th day of October, 1996 he was called out with three other suspects, their photographs taken and they were subsequently taken to Magistrate’s Court 5 and from there to the prison yard Olokuta, Akure. He was later charged to the High Court at Ekiti in the company of the 1st and 2nd Accused persons.

Under cross-examination, the appellant denied knowing the PW1 but said he only saw the said PW1 when they were taken to the Magistrate’s Court 5. He admitted knowing the PW2 at the S.E.B, Akure but denied ever being involved in any case pertaining to the PW1 and PW2. He further stated that all the things that the PW1 and PW2 had said in the case about him were all lies but would not know the reasons why they should tell lies against him.

As for his educational status, the Appellant stated further that he attended Primary School at Ilesha, Osun State and also attended Secondary School up to Class two in Ilesha. Before he was arrested he was engaged in wheel balancing, alignment and vulcanizing, having trained on the job in Lagos. He added on further cross-examination that he was in Lagos in July, 1996 and did not come to Akure during that month. As for the confessional statement, he denied signing same as well as the Attestation (Exhibits ‘E’ and ‘J’). He disclosed that the said statement is written in English and the content as regards his father’s name is correct. He denied knowing Ise-Ekiti adding that he had never been there before.

The Appellant further stated under cross-examination as follows:

I. That as at 4/10/96 he was already at the police station and left that place that day.

2. That the two other accused persons were brought to him while in custody.
3. That he was not there when the two accused persons said that he (Appellant) was a member of their armed robbery gang.
4. That Exhibit F looked like a gun but it was not and does not belong to him.
5. That the 1″ Accused told lies against him when he said that he (Appellant) was the owner of Exhibit F one of the guns tendered in Court..
6. That he had not been at Ise-Ekiti before even though the police alleged that he was involved in a robbery at Ikere and at Ise.
7. That he thumb-printed the statement after he had been informed of the offence he allegedly committed.
8. That he does not know how to sign.
9. That he was shot but still walked with his leg; and finally
10. That the 1st and 2nd Accused persons are not his friends.

It would be recalled that in spite of the fact that the prosecution alleged that the Appellant and other Accused persons, took them to the scene of crime at Ise-Ekiti where they demonstrated in the house of Sunday Onomejoh and before the said Sunday how the robbery operation was carried out, neither the said Sunday Onomejoh nor John Unuafeh, his servant who both witnessed the commission of the offences, were called.

At the close of the case for the prosecution and defence, counsel on both sides addressed the Court and in his judgment the learned trial judge held thus: “(similarly, 3rd Accused is found guilty on counts 1 & 2 and I convict 1st, 2nd and 3rd Accused accordingly”. His Lordship subsequently pronounced the death sentence on the Appellant as follows:

3rd accused Adewole Adedara having been found guilty of armed robbery with the 1st and 2nd accused persons as stated above is sentenced to death by hanging by the neck till he be dead.

Dissatisfied with the judgment of the Lower Court, the 3rd Accused/Appellant filed a Notice of Appeal with five (5) Original Grounds on the 10th day of September, 2002 and with leave of this Honourable Court, eleven (11) Additional Grounds were filed as Amended Notice and Grounds on the 2nd day of November, 2006. By a motion dated 22nd day of April, 2008, and filed on the 24th day of April, 2008, leave was further granted the Appellant to file Further Amended Notice of Appeal with twelve (12) new grounds on the 22nd day of May, 2008, bringing the total number of the grounds of appeal to seventeen (17).

In accordance with the rules of this Court, parties exchanged their respective briefs which were adopted on the 17th of November, 2008 when the appeal was subsequently heard. In the brief of Argument settled by Chino Edward Obiagwu Esq. of counsel for the Appellant, seven issues were distilled out of the seventeen further amended grounds of Appeal which are reproduced here under as follows:

1. Whether the conviction of the Appellant based on Exhibit E, his confessional statement to the police was justified?
2. Whether the failure of the learned trial judge to evaluate the evidence of the Appellant and to make clear findings on them occasioned a miscarriage of justice?
3. Whether the prosecution proved beyond reasonable doubt that the Appellant robbed Sunday Onomejoh on 28th July, 1996?
4. Whether Exhibit E, the statement of the Appellant was confessional statement admitting the offence with which he was charged in other words, was the conviction of the Appellant on the Exhibit E justified?
5. Whether the failure of the prosecution to tender the statement made by the Appellant at Ala Police Station left a gap in the prosecution’s case and occasioned a miscarriage of justice against the Appellant?
6. Whether the prosecution proved beyond reasonable doubt that there was agreement, between the Appellant and other co-accused to justify his conviction for conspiracy to commit armed robbery?
7. Whether the imposition of the mandatory death sentence on the Appellant by the Lower Court under section 1(2)(a) of the Robbery and Fire Arms (Special Provision) Act Cap. 398, Laws of the Federation of Nigeria, 1990 was unconstitutional. In other words whether section, 1(2)(a) of the Robbery and Fire Arms (Special Provisions) Act, Cap. 398, Laws of the Federation of Nigeria, 1990 to the extent that it prescribes mandatory sentence of death on anyone convicted of armed robbery is contrary to the provisions of the constitution of the Federal Republic of Nigeria 1999, and the African Charter on Human and People’s Right (Ratification and Enforcement) Act Cap. 10, Laws of the Federation of Nigeria, 1990; and international treaties that Nigeria has ratified.

The Respondent, on the other hand, in the brief settled by Gboyega Oyewole Esq. the Learned Attorney-General of Ekiti State, formulated three issues as arising for determination which I also reproduce here under as follows:

1. Whether the prosecution proved armed robbery against the Accused/Appellant beyond reasonable doubt?
2. Whether the learned trial judge failed to evaluate the evidence adduced by the Appellant in his defence and made a clear finding on it and thereby occasioned a miscarriage of justice?
3. Whether the imposition of the mandatory death sentence on the Appellant was unconstitutional?

Upon a careful perusal of the issues formulated by learned counsel on both sides, I am of the candid view that the three issues formulated by the learned Attorney General are sufficient to dispose of this appeal and accordingly, I hereby adopt them since most of the issues formulated by the learned counsel for the Appellant can be subsumed within the Respondent’s issues. I am also of the candid opinion that Issue Number 5 of the Appellant is incompetent as it does not arise from the facts of this case since there is no evidence from the printed records that the Appellant made any statement at Ala Police Station. The issue is therefore struck out.

ISSUES FOR DETERMINATION

“(I) WHETHER THE PROSECUTION PROVED THE CHARGE OF CONSPIRACY AND ARMED ROBBERY AGAINST THE ACCUSED/APPELLANT BEYOND REASONABLE DOUBT? (GROUNDS 1, 2, 3, 4, 5, 6, 7, 8, 12, AND 13 OF THE FURTHER AMENDED NOTICE OF APPEAL).”

This Issue is in pari materia with Issue Number 3 of the Appellant which according to Appellant’s counsel, is distilled from Grounds 3, 5, 7, and 8 of the Further Amended Notice of Appeal. I shall also incorporate Issues 1 and 4 of the Appellant and consider them together since they touch on the proof of evidence and the basis upon which the Appellant was convicted.

Arguing this Issue, the learned counsel for the Appellant submitted that for the prosecution to sustain the conviction of the Appellant for the offence of robbery, it has to prove the essential elements as contained in section 1(2) (a) of the Robbery and Fire Arms (Special Provision) Act 1990. He relied on the case of Adeosun vs. The State (2007) 46 W.R.N 1 at 72 per Ogunwumiju, J.C.A, where the essential ingredients of the offence of Armed Robbery were enumerated and submitted on the first ingredient that apart from Exhibit E, the confessional statement of the Appellant (which was retracted), there was no independent and direct evidence to establish the alleged robbery except the hearsay evidence of the PW1 and that on the authority of Subramanian Vs. Public Prosecution (1956) 1 WLR 965 at 969; Utteh Vs. State (1992) 2 N.W.L.R (pt. 223) 257 per Nnaemeka-Agu, J.S.C at page 273, paras F-G, on hearsay evidence; and Okhuarobo Vs. Aigbe (2002) 9 N.W.L.R (Pt. 771) 29 at 70 para B – C; the PW1 did not testify that he was one of the police officers who took the Appellant to the house of the complainant, Sunday Onomejoh and as such was not giving evidence of facts within his knowledge and his evidence was therefore inadmissible in proof of the robbery. Citing again the case of Jolayemi Vs. Alaoye (2004) 12 N.W.L.R (Pt. 887) 322 S.C. and Kala Vs. Potiskum (1998) 3 N.W.L.R (pt. 540) 1 S. C., he maintained that the absence of direct evidence outside the retracted confessional statement raised doubt as to the case of the prosecution which doubt should be resolved in favour of the Appellant.

On the second ingredient which is that the accused persons /Appellants were armed with offensive weapons, during the robbery, the learned counsel for the Appellant submitted that there is no evidence apart from the retracted confession to prove that the Appellant participated in the robbery and was armed with such weapon. Moreover, he further submitted, the fact that the prosecution contended that it recovered Exhibits F, G1 – G3 and H1 to H3 from the 1st Accused persons and that the Appellant and Co-Accused admitted in the retracted confession that they used the Exhibits to rob people in the area, did not prove that they used the weapon to rob Sunday Onamejoh on 28th July, 1996.

On the third ingredient which in that the accused took part in the said robbery, it was submitted by the learned counsel for the Appellant that the mere fact hat the Appellant admitted or the prosecution led evidence to show that the Appellant used the ammunition recovered from one of them to rob “people” did not prove that he robbed Sunday Onomejoh unless the evidence proved clearly that he did so on the particular day stated in the charge which was 28th July, 1996. He placed reliance on the cases of Alor Vs. State (1997) 4 N.W.L.R (pt. 501) 511 at 517 paras B-C on proof beyond reasonable doubt and not on suspicion or speculation that the Accused committed the offence as postulated by Adio J.S.C; Abieke vs. The State (1975) 9-11 S.C. at 97 and Akpan Vs The State (1999) 3 N.W.L.R (pt. 182) 646, to submit that the failure to call any of the victims of the robbery, or anyone with personal knowledge of the commission of the offence was fatal to the prosecution’s case as the evidence of the PW1 who was not the policeman who directly investigated the case and in whose presence Sunday Onomejoh confirmed the robbery incident in his house on 28/7/96 could not be such cogent, credible and admissible evidence.

On the issue whether Exhibit E, the Statement of the Appellant was confessional and whether the conviction of the Appellant on the said statement was justified, the learned counsel for the Appellant answered the questions in the negative and defined what is a confession submitting further that a general admission of guilt to the class of offence or description of facts that fits the offence charged does not constitute valid confession in the context of criminal trial, where the burden of proof is beyond reasonable doubt.

Learned counsel made references to the charge against the Appellant and the reliance placed by both the prosecution and the Court on the said Exhibit E to convict the Appellant and particularly the findings of the Trial Court at pages 65 lines 13 – 14; 68 lines 1 – 22, the contents of Exhibit E at page 15 of the Records to reiterated that:-

1. The statement does not positively admit that he robbed Onomejoh;
2. The description of the robbery at Ise-Ekiti in Exhibit E, is not a confession of robbery of Sunday Onomejoh of the sum of N300,000,00 at Ise-Ekiti on 28th July, 1996;
3. There is no other evidence of robbery at Ise-Ekiti except the hearsay evidence of the PW1 which suggests that the robberies described in Exhibit E were the robbery of Sunday Onomejoh, as charged;
4. The statement did not admit the elements of the offence charged as follows:-

(a) The confession was not specific on the venue and place of the operation.

(b) The confession was not specific on who was the victim(s) of the robbery; submitting on the authority of Alor Vs The State (Supra), that it is the duty of the prosecution to prove that the facts contained in the statement were indeed admission of guilt of the offence allegedly committed and that where as in this case, the statement is not direct positive and unequivocal admission of guilt, the prosecution must establish by evidence other than the statement of the Appellant, the guilt of the Accused/Appellant. Learned counsel asserted that this has not been done and the evidence of PW1 being hearsay as well as the evidence of the other co-accused persons against the Appellant is inadmissible.

It was further contended that there is no other evidence outside the confession to support and show that the retracted confessional statement was true as Exhibits F, G1, G2 and H1 – H3 were all part of the confessional statement. For this submission he cited Nsofor Vs. The State (2004) 18 N.W.L.R (pt. 905) 292, per Oguntade J.S.C, at pages 310-311 paras F-B; which set down the test to be applied in the ascription of probative weight to a retracted confessional statement and the cases of The Queen Vs. Obiasa (1962) 2 S.C.N.L.R 402; (1962) ALL N.L.R 651; Edet Obosi Vs The State (1965) N.M.L.R 307; Ebhomien vs. The Queen 2 SCNLR 322, (1963) 1 ALL N.L.R 365; Paul Onochie & 7 Ors Vs. The Republic 1 S.C.N.L.R 204 and Obue Vs The State (1976) 6 S.C 167 which all decided that before a retracted confessional statement is admitted, it must pass through the tests (the six conditions) laid down in Nsofor’s case (Supra) and the conditions must be proved cumulatively. In this case, the learned counsel for the Appellant argued, the conditions were not met.

On the first condition which is outside evidence to show the truth of the confession, the learned counsel for the Appellant referred to the holding of the trial judge at page 70 lines 25 – 30 of the records and submitted on the authorities of Nwachukwu vs. The State (2002) 12 NWLR (Pt. 782) 543 and Edamine vs. The State (1996) 3 NWLR (Pt.438) 530, that the Exhibit which the learned trial judge used as outside evidence were part and parcel of the confession and therefore were not evidence outside the confession.

On the second condition which is whether the confessional statement was corroborated, the learned counsel for the Appellant cited the case of Ugheneyovwe vs. The State (2004) 12 NWLR (Pt.888) 634 on the definition of corroboration and the nature of corroborative evidence needed to confirm the confession and submitted again that in the instant case, the evidence used by the learned trial judge as corroboration is not capable of implicating the Appellant because they are not independent of the confession and have not been proved to have emanated from the Appellant.

Furthermore, the learned counsel argued, there is no independent testimony to establish the offence of robbery more so as the three Accused persons were transferred from ‘B’ Division of S.E.B and the three policemen who investigated the case there at were not brought before the Court to testify as to how they came by the guns neither were the vital eye witnesses to the robbery called.

On the third condition as to whether there are relevant statements in the confession which are facts true as far as they can be tested, the learned counsel for the Appellant referred to the following pieces of evidence as elicited by the Appellants that:-

1. Appellant claimed he was beaten, tortured and shot by the police on the leg during interrogation which forced him to confess to all allegations made by the police so as to save his life, as a fellow suspect was shot dead in his presence,
2. Appellant insisted he did not make the statement tendered as Exhibit E, as he did not volunteer nor sign any confessional statement for the police.
3. Appellant is not literate enough to have signed the said statement and that at the trial, Appellant testified in Yoruba, which shows clearly that he was not literate in English and so his claim that he could not sign but thumb-impressed the statement he made to the police was not controverted or discredited as Exhibit E was made in English language.
4. There were discrepancies in the evidence of the policemen (prosecution witnesses) who took the statement and attested to it.
5. The Judge’s Rules were not followed in obtaining the statement of the Appellant which although not a rule of Law, compliance thereof goes to strengthen the veracity and voluntariness of the confession; all factors which coupled with the fact that there was no independent evidence outside the confession according to counsel, raised doubt that the confession contained facts that are true and such doubt ought to be resolved in favour of the Appellant.

On the condition whether the Appellant was one who had the opportunity of committing the offence, it was submitted by the learned counsel for the Appellant that the Appellant could not have had the opportunity of committing the offence and the prosecution did not prove that he did, outside the said confessional statement that was retracted. He referred to the evidence of the Appellant at page 44 lines 7 – 8 of the Records where he stated that he did not know the town called Ise-Ekiti before. Learned counsel further posited that in the absence of further evidence from the prosecution to show that the confession was probably true, or that the Appellant had the opportunity to commit the offence, it would be unsafe to sustain the conviction of the Appellant on the retracted statement.

On the condition whether the confession is possible, it was submitted that the learned trial judge should have looked at all the circumstances of the case, especially whether there is corroborating evidence as well as the circumstance under which the statement was made. He maintained that an essential factor in ascertaining the possibility of confession is whether the confession is consistent with other evidence in the case, including earlier extrajudicial statement of the Appellant.

On the sixth and final condition, the learned counsel for the Appellant asserted that there is no other evidence in the case which is consistent with proved facts aside from the retracted confessional statement particularly, when Appellant in his evidence on oath claimed that he was forced to confess to all the allegations leveled against him but that in the evaluation of evidence by the learned trial judge, he did not consider that aspect of the Appellant’s evidence so did he not consider the assertion by the Appellant that he did not sign or make the statement (Exhibit E).

The learned counsel for the Appellant insisted that although the learned trial court could rely on the confession of the Appellant to convict him, it is unsafe to rely on a retracted confessional statement to so do when the essential elements above stated have not been proved by the prosecution to support the confession.

He referred again to the holding of the learned trial judge at page 70 lines 29-30 of the Records, submitting that the finding was erroneous and not borne out of the records more so, as the evidence of the PW3 was to the effect that Exhibits F, G1 – G3 and H1 -H3 were recovered from the 1st Accused person, and not from the Appellant in this appeal. Page 31, lines 13-23 of the records referred.

Reacting to the above submissions the learned Attorney-General on behalf of the Respondents contended that by virtue of section 138(1) of the Evidence Act, the prosecution bears the onerous responsibility of proving alleged Crime(s) against an accused person beyond reasonable doubt by adducing cogent, credible and compelling evidence to substantiate or prove the elements of the offences alleged. He numerated the essential ingredients of the offence of armed robbery under section 1(2) (a) of the Robbery and Fire Arms (Special Provisions) Act, 1990 which ingredients have been stated in numerous cases by our Superior Courts the notable ones which are Bozin V. The State (1985) 2 N.W.L.R (pt. 8) 465 at 469; and Nwachukwu Vs The State (1986) 2 N.W.L.R (pt. 25) 765 at 776.

He submitted further that the elements of an offence can be proved by three different methods

(a) By direct evidence;

(b) By circumstantial evidence; and

(c) By confessional evidence

References were made to the cases of Emeka Vs The State (2002) 14 N.W.L.R (pt. 734) 666 at 683 and in particular Adio Vs. The State (1986) 5 S.C 194 at 219-220 per Oputa, J.S.C, to argue that in the present case the prosecution employed the three methods in varying degrees to prove the charge against the Appellant.

As regards direct evidence, the learned Attorney-General conceded that the prosecution did not call any direct eye witness at the trial as the victim and eye witnesses Sunday Onamejoh and John Unafeh were not available. According to the learned, Attorney the evidence of PW1 Corporal Ojo Adekola explaining the non-availability of the said complainant and John at pages 21 lines 22 to 27, 23 lines 1-3 and 28 lines 4 to 8 of the Records was not challenged and on the authority of Amadi vs. Nwosu (1992) 5 N.W.L.R (pt. 241) 273 at 284 where the Appellant’s counsel failed to either cross examine the PW1 or show that he does not accept the evidence on this material fact, the Court should take the Appellants’ silence as acceptance that the party does not dispute the fact.

The Learned Attorney General further referred to the finding of the learned trial judge hence there was no way the prosecution could have called him and urged this Court not to disturb that finding which was predicated on the evidence properly adduced and admitted before it. He further cited the case of Ugwu Vs. The State (1998) 7 N.W.L.R (pt. 558) at 408

to buttress the submission that even though it is desirable, it is not compulsory to call an eye witness to give evidence at the trial of a case and also that the prosecution is not bound to call all the witnesses listed in proof of its case but he only needs to call vital or material witnesses.

It was posited by the Respondent that the prosecution nevertheless called direct evidence of the PW1 and PW3 who were investigating police officers in the case. References were made to pages 22 -24 of the records on the evidence of the PW1 that he was the main investigating officer of the case at the Special Enquiry Bureaul (S.E.B) of the Police Headquarters Akure, in 1996 and he arrested charged and cautioned the Appellant who volunteered his confessional statement as to his membership of the armed robbery gang responsible for the series of armed robberies within Ondo State. Also, the PW1 testified how the Appellant and other Accused persons took him (the PW1) to the house of Sunday Onomejoh at Ise-Ekiti and in the presence of the said Sunday, demonstrated how the robbery operation was carried out and he further took the Appellant to D.S.P. Akano (the PW2) who confirmed the statement by attesting to same in the presence of the said PW1. Furthermore, the Appellant identified Exhibit F as the particular gun they used for the robbery of Sunday Onomejoh at Ise-Ekiti on 28th July, 1996, to him (the PW1) and in this regard the learned trial judge in his judgment at page 67 lines 32 to 33 of the Records made the appropriate finding. It was then submitted from the foregoing that the oral evidence of the PW1 constitutes direct evidence by virtue of section 77 (a) and (b) of the Evidence Act and that the evidence were information within the personal knowledge of the witness and cannot be construed or rightly labeled as hearsay evidence.

Citing again Ajiboye Vs The State (1994) 8 N.W.L.R (pt.364) 600 at 593 and Okosi Vs. The State (1989) 1 N.W.L.R (Pt.100) 642 at 657 S.C. he asserted further that the testimonies of investigating police officers are material evidence in proof if a crime and do not amount to mere hearsay and that since the Appellant did not deem it fit to challenge the extensive incriminating and damaging evidence of the I.P.O. during cross-examination the trial court was right in relying on the PW1’s evidence to convict the Appellant

On proof by circumstantial evidence, the learned Attorney-General submitted that for circumstantial evidence to ground a conviction, it must be strong, cogent, compelling, and unequivocal and must point irresistibly to the guilt of the Accused person. Peter Vs The State (1997) 12 N.W.L.R (pt. 531) 1 at 19 was referred to submit that the evidence of the PW1, PW2 and PW3 on their investigation activities as contained in pages 21 to 24, 28 to 30 and 30 to 31 of the Records which were not challenged, controverted or discredited, constituted circumstantial evidence from which a reasonable inference as to the guilt of the Accused person could be drawn by the Lower Court.

The learned law officer again cited the cases of Adepelu Vs The Stale (1988) 9 N.W.L.R (pt. 266) 185 at 207; Fatilewa Vs The State (2007) A.C.L.R. 607 at 619 – 634 per Odili, J.C.A, to buttress his contention that it is trite that where direct eye witness is not available, the court may infer from facts proved, the existence of other facts that may logically tend to prove the guilt of the Accused person.

On confessional statement, the learned Attorney-General referred to Section 27(1) of the Evidence Act on the definition of confession and Agenu vs. The State (1992) 7 N.W.L.R (pt.256) 749 at 764 on the position of the law that a confession could be oral or in writing and that the mere fact that a confession is oral does not render it inadmissible or unreasonable provided that it is voluntary and is a positive admission of the guilt of the offence. Relying again on the cases of Yusufu Vs The State (1976) N.S.C.C 307 at 310 – 311 and Aehabua Vs The State (1976) N.S.C.C 714 at 717, it was submitted further that a conviction could be based on a confessional statement alone without any corroborative evidence so long as the court is satisfied that the confession is true.

The learned Attorney, however, conceded to the submission by the learned counsel for the Appellant on the need for the court seeking to rely on a confessional statement to convict an Accused to look for evidence outside the confessional statement however slight of the circumstances making it probable that the confession is true. He then referred to the Six tests laid down in the case of R Vs Sykes 8 CR. App. Rep. 223 which was followed in the Nigerian cases of Ikpo Vs The State (1995) 9 N.W.L.R (Pt. 421) 540 at 555 and Nsofor vs. The State supra cited by learned counsel for the Appellant submitting that at the trial before the Lower Court, the prosecution tendered Exhibit E, the extrajudicial Statement of the Appellant to the police which statement was confessional admitting all the agreements of conspiracy and armed robbery. Nwobe Vs The State (2000) 11 N.W.L.R (pt. 678) 627 at 279 where confessional statement was defined was cited to contend that the court below applied the test laid down in R Vs Sykes (supra) to the confessional statement and held that they satisfactorily passed the test and therefore rightly relied on it to convict the Appellant notwithstanding the retraction by the Appellant.

On the contention by the Appellant that the Lower Court wrongly convicted him based on the confessional statement, as there was no evidence outside Exhibit E to support the confession, the learned counsel for the Respondent drew the court’s attention once more to the evidence of the PW1 that the Appellant told him that Exhibits F, G1 – G2 and H1 – H3 were the weapons and ammunitions used for the robbery of Sunday Onomejoh at Ekiti which constituted evidence outside the confessional statement showing that it was true. Also, the evidence of the PW1 that the Appellant took him to the house of the said Onomejoh at Ise-Ekiti on 10/10/96 and demonstrated how the three of them carried out the robbery of 28/7/96 constituted evidence outside the confessional statement and lastly, the evidence of the PW2 and Exhibit J to the effect that the Appellant was brought before him by the PW1 with Exhibit E and that the Appellant admitted making Exhibit E voluntarily without any intimidation, threat or duress constituted evidence outside the confessional statement showing that it was true. He referred to the case of Kim Vs State (1992) 4 NWLR (pt. 233) 17 at 41 and the findings of the learned trial judge at pages 67 at 68 of the Records which he described as apposite.

On the submission that there was no corroborative evidence to buttress the retracted confession, the learned Attorney again argued on the contrary that there was abundance of corroborative evidence for the Appellant’s statement as rightly found by the learned trial judge. For this contention, he placed reliance on “Stroud’s Judicial Dictionary”, 2000 6th Edition at page 550-551 on the definition of “Corroborative Evidence”, to submit that on the authorities of Njoku Vs State (1992) 8 N.W.L.R (pt.262) 714 at 725; Iko Vs State (2001) 14 N.W.L.R (pt.732) 221 at 254; Utteh Vs State (1992) 2 N.W.L.R (pt 223) 257 at 273- 274 S.C; Queen Vs Onovo (1958) N.S.C.C 76 – 77, corroboration does not need to be direct evidence but could consist of any material in the proceedings which could come from the maker of the confession himself or by way of conduct or demeanour before or at the trial. Also, admission of the offence to other persons would amount to sufficient corroboration.

Thus according to the learned counsel for Respondent, the conduct of the Appellant in taking the PW1 to the house of the complainant on 10/10/96 and admission of participating in the robbery sufficiently corroborates the confessional statement. Furthermore, Exhibits F, G1- G2 and H1 – H3 the guns and cartridges recovered from the Appellant and other Accused persons are not documentary evidence and cannot be labeled as part and parcel of the confessional statements as argued by the Appellant. For this proposition he relied on the case of Kareem Vs F.R.N No. 1 (2002) 8 N.W.L.R (pt.770) 636 at 654 – 655 positing again that apart from the Appellant’s confessional statement being sufficiently corroborated, the relevant statements made in it are facts true as far as they can be tested as PW1 investigated, confirmed and testified that there was indeed a robbery incident at Ise-Ekiti on 28th July, 1996 and that there was a victim of the robbery, Sunday Onomejoh who complained that he was robbed of N300,000.00 on the said date.

On whether the Appellant had opportunity of committing the robbery, the learned Attorney answered the question in the affirmative as according to him, the Appellant claimed at pages 41 to 44 that he knew Arakale Street, Akure, Ondo State where the robbery was hatched at a beer parlour located thereat.

On the possibility of the confession of the Appellant, the learned Attorney-General again insisted that the Appellant’s evidence before the lower Court that he was taken into police custody on the 13/10/96 and knew PW1 and PW2 as the Investigating Police Officers in the case and further that he volunteered a statement to the police and the statement was recorded by the police which is Exhibit E as confirmed by the PW2 in October, 1996.

It was also submitted that the confession by the Appellant that he conspired with the other Accused persons to carry out the armed robbery at Ise-Ekiti without more is sufficient to prove the charge of conspiracy preferred against him. Placing relevance on the cases of Balogun Vs A.G. Ogun State (2001) 14 N.W.L.R (pt.733) 331 at 353 and Oduneye Vs State (2001) 2 N.W.L.R (pt.697) 311 at 329, he asserted that in a charge of conspiracy to commit armed robbery, direct proof is not required as the existence of conspiracy between the Accused persons is a matter to be inferred from the acts of the parties and directed towards the realization of the common intention or mutual purpose of agreement. According to the learned counsel for the Respondent, it was in the light of the above that the learned trial Judge held as he did at page 72 of the Record of Proceedings that the prosecution had proved its case beyond reasonable doubt as stated in Section 138 of the Evidence Act. He then urged this Court not to disturb the findings of the Lower Court but resolve the issue against the Appellant.

I have taken the time to consider the copious submissions of counsel on this issue of whether the prosecution proved the charge of conspiracy and armed robbery against the Appellant beyond reasonable doubt. Now, as was rightly submitted by the learned Attorney-General on behalf of the Respondent, by virtue of Section 138(1) and (2) of the Evidence Act, 2004, the prosecution bears the onerous burden of proving alleged commission of any offence(s) against an Accused person, beyond reasonable doubt. This burden can only be discharged by the prosecution eliciting cogent, credible and compelling evidence. The provisions of Section 138(1) and (2) are encapsulated in Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 which provides that:-

“Every person who is charged with a criminal offence shall be presumed innocent until proved guilty “. See Section 33(5) of the 1979 Constitution which was in force as at when the offence was allegedly committed in 1996.

These Statutory and Constitutional provisions regarding the presumption of innocence and burden of proof have been given judicial interpretation by English Courts and followed in a long line of Nigerian cases by the Superior Courts of the land. In the locus classicus of Woolmington Vs Director of Public Prosecutions (1935) A.C 42, 462, Lord Sankley of the House of Lords, while enunciating the common law position aptly put it so succinctly thus:-

“Throughout the web of English Criminal Law, one golden thread is always to be seen that It is the duty of the prosecution to prove the prisoner’s guilt subject to what I have said as to the defence of insanity and subject also to any statutory exceptions”. See Section 141 of the Evidence Act.

The West African Court of Appeal in the celebrated case of R Vs Buddy Edem Eka 15 W.A.C.A 32 had also approved of the dictum of Lord Sankley when it held thus:-

“It is fundamental that in a criminal trial, the onus is upon the prosecution to prove all the essential elements which go to make up the offence charged. If it fails to prove any of them, the Accused is entitled to an acquittal and if in-spite of that he is convicted, he is entitled to have the conviction quashed on appeal”.

See Oguntade, J.S.C in Onachukwu Vs The State (1998) 4 S.C.N.J 36 at 49 paras 3 – 11; R Vs Lawrence (1932) 11 N.L.R 6 at 7 (P.C), per Lord Atkin and Areh Vs. COP (1959) W.R.N.L.R. 230 at 231.

What emerges from the decisions of all the cases cited is that it is not the duty of the Accused to prove his innocence but that of the prosecution to prove his guilt. See Kinnami Vs Bauchi N.A (1957) N.R.N.L.R 42. The Supreme Court in the case of Obiode & Ors Vs The State (1970) 1 ALL N.L.R 35 re-echoed the dictum of the House of Lords in the Woolmington Vs D.P.P case, where Lord Sankley again held that:-

“If at the end of and on the whole case, there is reasonable doubt, created by the evidence given by either the prosecution and the prisoner, as to whether the prisoner killed the deceased with malicious intentions, the prosecution has not made out the case and the prisoner is entitled to acquittal. ”

In other words, where at the close of the case for both the prosecution and defence, there is doubt as to whether the evidence elicited by the parties can sustain the charge against the Accused person; such doubt should be resolved in his favour. Against this background we shall now proceed to resolve the first issue. The Appellant was alleged to have conspired with four others to commit armed robbery and allegedly robbed one Sunday Onomejoh of the sum of N300,000.00 (Three Hundred Thousand Naira) while armed with offensive weapons to wit: guns. For the avoidance of doubt, Section 5 of the Armed Robbery and Fire Arms (Special Provisions) Act; Cap.398, Laws of the Federation, 1990, stipulates as follows:-

“5. Any person who:

(a) aids, counsels, abets or procures any person to commit an offence under Section 1, 2. 3, or 4 of this Act: or

(b) Conspires with any person to commit such an offence, whether or not he is present when the offence is committed shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act “.

For a fuller understanding of the purport of the above section, it is necessary to have recourse to the provisions of Section 1 of the Act which creates the offences and punishments there for as enumerated in Section 5(a).

Now Section 1(1) of the Act provides inter-alia:-

“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 (21) years.

By Section 1(2)(a) under which the Accused/Appellant was charged:-

“(2) If-

(a) any offender mentioned in subsection (1) of this Section is armed with any fire arms or any offensive weapon or is in company with any person so armed: or

(b)….

The offender shall be liable upon conviction under this Act to be sentenced to death.”

As I said elsewhere, the offence of armed robbery is heinous and attracts the ultimate and supreme price of death sentence and accordingly, in order to convict an Accused person, the trial court ought to be circumspect and must ensure that the totality of the evidence elicited by the prosecution’s witnesses and indeed the Accused is microscopically scrutinized in the interest of fair hearing and justice. Now considering the totality of the evidence placed before the court below, can it be said with definitive certainty that the prosecution did prove the offences with which the Appellant was charged beyond reasonable doubt?

Beginning with the count of conspiracy to commit armed robbery, the Act does not define the offence but text writers and judicial authorities have agreed that Conspiracy as an offence, is the manifestation of consensual intent between two or more persons to effect an unlawful purpose or some otherwise legal act with an illegal means. The offence is consummated once the parties are ad idem on the manifestation of such intent even if on the long run the conspirators reneged in the pursuance of their agreement. Thus in Onochie Vs The Republic (1966) N.M.L.R 307, The State Vs Haruna (1972) N.M.L.R at 174 and R vs. Aspinall (1876) 2 Q.B.D 48 at 58 – 59, it was variously held that direct evidence is not indispensable and it is open to the trial Court to infer compliancy from the fact of doing things towards a common end.

Moreover, where prima facie grounds have been shown for believing in the existence of a conspiracy, things done by one conspirator in furtherance of the common intention are evidence against the other co-conspirators. See Section 516 of the Criminal Code and the cases of Nwankwoala Vs The State (2006) 14 N.W.L.R (pt.1000) 663 at 683 – 684 paras. C – E per Tabai J.S.C; Waziri Vs The State (1997) 3 N.W.L.R (pt.496) 689 at 723 to 724 paras. H – B per Oguntade, J.C.A (as he then was).

In order therefore to convict the Appellant on the count of conspiracy to commit armed robbery, the prosecution must have proved that the Appellant entered into an agreement with his Co- Accused persons to commit or cause to be committed armed robbery in the house or premises of the complainant Sunday Onomejoh. What then is the evidence from which conspiracy could be inferred? As the learned counsel for the Respondent has ably argued, there was no direct eye witness evidence at the trial as the eye witnesses and victims of the crime were not available. Thus, the Court relied on the confessional statement of the 3rd Accused/Appellant and the evidence of PW1 and PW2 to convict the said Appellant.

It would be recalled that the 3rd Accused/Appellant averred in the purported confessional statement thus:-

“I know Sesan Owoyemi, Abayomi Siji, Olufemi 1, Segun Artillery, Sanya Afolabi, Dele Gabriel, jossy sometimes ago, I went in company of the aforementioned group at Ise-Ekiti where we carried out a robbery operation. I was the person that brought a short double- barrel gun which we used during the operation. It was Dele that (brought) led us to the operation. The sum of N235,889.00 was realized from the operation – while I was shared only N51,000.00. The gun I took to the operation was owned by Uncle. We are only eight that attended the operation. ”

As for the evidence of the PW1, he purported to be the main Investigating Police Officer (I.P.O) in the case and that he charged and cautioned the Appellant who volunteered his confessional statement to the effect that he was a member of the armed robbery gang/syndicate that has been responsible for the series of armed robbery cases within the then Ondo State. Furthermore, the Appellant allegedly took him (PW1) in the company of other Co- Accused persons to the house of Sunday Onomejoh at Ise-Ekiti and demonstrated before the said Sunday how they carried out the armed robbery operation in his house on the 28th July, 1996. Appellant also was said to have identified Exhibit F – the gun allegedly used for the operation – to the PW1.

PW2 also testified that the PW1 brought the Appellant along with his said confessional statement (Exhibit E) for endorsement as a superior police officer in line with the Judge’s Rules and that after confirming from the Appellant that the said statement was voluntarily made, and without any duress or promise of any advantage, he the said PW2 filled the Attestation Form which the Appellant, PW1 and himself signed’ The said Attestation Form was tendered admitted and marked Exhibit J.

Ordinarily, with these pieces of evidence, the offence of conspiracy on the authorities already cited would have been established against the Appellant. See further the cases of Oduneye Vs The State (2001) N.W.L.R (pt.697) 311 at page 322; and Willes J. in Mulcahy vs. R (1868) 3 HL at 317 who stated the principle of law as far as conspiracy is concerned inter alia;-

“A conspiracy consists not merely in the intention of two or more but in the agreement to do an unlawful act, or to do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself. And the act of each of the parties, promise against promise, actus contra actum, capable of being enforced “if lawful, punishable if for a criminal object or for the use of criminal means.” See Njovens & Ors Vs The State (1973) N.S.C.C 280 per Coker J.S.C.

Where as in this case, the Appellant purportedly admitted that he was a member of the gang of armed robbers who robbed Onomejoh of his money and that one of the guns (Exhibit F) with which the robbery was effected belonged to his uncle and also that he shared in the booty of the robbery, he ought to be convicted for conspiracy since he agreed with others to effect an unlawful purpose by an illegal means to wit: armed robbed. Thus, the holding by the learned trial Judge at pages 61 lines 6 to 8 and 66 lines 11 to 17 that;

“There is evidence that there is agreement between the 1st, 2nd and 3rd Accused persons and that each of the 1st, 2nd and 3rd Accused persons participated in the conspiracy;” and that “the confessional statements made by the 1st, 2nd and 3rd Accused persons is direct and positive not equivocal”, would have been tenable but for some inherent flaws in the prosecution’s case and the general conduct of the case by the learned trial Judge.

In the first place, the confession made by the Accused persons particularly the 2nd 3rd cannot be said to be direct and positive when their purported confessional statements were retracted. As the learned counsel for the Appellant has rightly submitted, since the Appellant retracted his so-called confessional statement, the court ought to have sought for corroborative evidence outside the confessional extra-judicial statement as was decided in a long line cases. See per Oguntade. J.S.C, in Nsofor Vs The State (2004) 18 N.W.L.R (pt. 905) page 292 who cited with approval the dictum of Obaseki, J.S.C in Dawa Vs The State (1980) 8 – 11 S.C. 236 on the issue of the weight to be attached to a retracted confessional statement and the six tests to be applied which must be satisfactorily established before a confessional statement can found a conviction. See also the cases of The Queen Vs Obiora (1962) 2 S.C.N.L.R 402; Edet Obosi Vs The State (1965) N.W.L.R 307; Ebhomien Vs Queen (1963) ALL N.L.R 365; Onochie Vs Republic (1966) S.C.N.L.R 204 and Obue Vs The State (1976) 6 S.C 167 all cited by the learned counsel for the Appellant.

Furthermore, the learned trial Judge erroneously based his conviction of the Appellant on Exhibits F, G1, G2 (the three guns), and the cartridges (Exhibits H1 -H3) as corroborative evidence outside the confessional statement and I agree with the submission of the learned counsel for the Appellant that the said Exhibits are part and parcel of the confessional statement and therefore not extraneous of the said statement. Again, the contention of the learned Attorney-General and indeed the holding of the lower Court that the testimonies of PW1 and PW2 were direct and corroborative evidence to the confessional statement of the Appellant, in that the Appellant along with the other co-Accused persons took the PW1 and other police investigators to Ise-Ekiti and demonstrated in the house of Sunday Onomejoh how they committed the robbery in the presence of the said Sunday and PW1, have been completely debunked by the testimony of the 2nd Appellant, which was never challenged, that on the said 10th of October, 1996, he was in the hospital as a result of the gun shot unleashed on him by one Sgt. Omitusi the original investigator of his case. There is no evidence from either the PW1 or PW2 that the Appellant took the PW1 and other investigators to Ise-Ekiti in the house of Sunday Onomejoh on a date other than the 10th day of October, 1996, as the 2nd Accused/Appellant who purportedly went along with the 3rd Accused/Appellant had stated without any contradiction from the prosecution that between the 8th and 15th October, 1996, he was hospitalized as a result of the gunshot wound inflicted on his leg by Sgt Omitusi.

To worsen the case of the prosecution, the Appellant in his evidence -in- chief, said that on the 13th of August, 1996, when he was arrested by one Waidi, a police officer, at 9 o’clock in the night and taken to the state C.I.D., he was beaten up and brought out at 12 midnight by policemen and interrogated about his co-Accused persons and he told them he did not know them. According to the Appellant:

“They said I was not ready to speak the truth. I was hung on the ceiling fan. I started crying. Waidi shot at my leg. I became afraid. They said did I go to Ise-Ekiti I say yes they said how many of us I said two, I was beaten then said six. I was handcuffed with my hand backward and put inside the cell.

The following day, my people came. When they left in the … they brought me out in the company of other two Accused persons Sakora was killed because they have been looking for him for a long time I then confessed that it is true that I went to Ise-Ekiti to rob. The following day they took my statement when they reached certain stage they said I was not ready to say the truth they took me back to the cell again. ”

To confirm that the 2nd Accused/Appellant was shot on the leg and that he and the 3rd Accused/Appellant were not taken to Ise-Ekiti on the 10th of October, 1996, in the house of Onomejoh to demonstrate how they carried out the robbery, as purported by the PW1, this Appellant finally stated in his evidence-in-chief thus:-

“They brought out 2nd Accused person he could not walk; he had blood over his body he manage to go back to the cell.

On 4-10-96 I was called out with three other suspects, they took our photograph and took us to Magistrate Court 5 in Bus vehicle from the Court I was…. taken to the Prison Yard Olokuta Akure.

Later I was charged to court in Ekiti in company of 1st and 2nd Accused persons. “See pages 37 and 38 of the Record of Proceedings.

It is pertinent to note that the Appellant was not cross examined on this damning and damaging evidence given against the prosecution and indeed when half-heartedly cross  examined by the Prosecuting Counsel, the Appellant unequivocally stated at page 39 of the record thus:-

“I did not know PW1.

“I saw PW1 when we were taken to Magistrate Court 5.

“I know PW2 at SEB Akure.

“I know that both of them are police officers. I am not related to any of them. ”

It would be recalled that the PW2 had testified along with PW1 that the Appellant was brought with his signed confessional statement to him; and that the Appellant confirmed the voluntariness of Exhibit E before the three of them attested to Exhibit J but this piece of evidence has again been denied under cross examination by the Appellant where he stated at page 40 as follows:-

“I have never been involved with either of them (PW1 and PW2) in any case.

“They have no grudge against me.

“Everything PW1 & PW2 said in this court about me were lies.

“I do not know the reason why PW1 & PW2 told lies against me.

“I attended primary school at Ilesha Osun State, I also attended secondary school in Ilesha .

“I read up to class 2. Before I was arrested I am doing wheel balancing alignment and forcanicer (read vulcanizer). I trained for this job, Lagos.

“I cannot read and I cannot write I do not understand English

“I did not sign Exhibit E.

“I did not sign exhibit J.

“Exhibit E was written in English”,

From the foregoing averments which were also not challenged and considering the fact that the Appellant testified in Yoruba as submitted by the learned counsel for the Appellant, (even though the learned trial Judge failed to record the language with which the Appellant testified), it is clear that the so – called confessional statement was not voluntarily made and was concocted on behalf of the Appellant in order to nail him for conspiracy to commit armed robbery.

I shall reflect in fuller detail on the legal implications of the procedure adopted by the court at the trial when considering the substantive count of armed robbery. For now, I am of the considered view that the Appellant ought to be found guilty of conspiracy because the confessional statement by him that he belonged to the armed robbery gang and owned one of the guns (Exhibit F) with which the robbery was committed had been retracted and infact recanted as being involuntary and without subjecting same to the necessary scrutiny as laid down by judicial authorities, or seeking the necessary corroboration from evidence outside the confession, the learned trial Judge went on to erroneously find the Appellant guilty and convicted him on the spurious and concocted evidence of the PW1 and PW2. Accordingly, I hold that the Appellant ought not to have been found guilty and should have been discharged and acquitted.

As for the substantive offence of armed robbery, it is committed where at the time of the robbery the accused is armed with fire arms or an offensive weapon or is in company of with any person so armed, within the meaning of Section 1(2)(a) of the Robbery and Fire Arms Act. See Ikemson Vs. The State (1989) 3 N.W.L.R. (Pt. 1100) 455 Per Karibi-Whyte J.S.C. see further Nwachukwu Vs, The State (1985) 3 N.W.L.R. (Pt.11) 218, Okosun Vs, A.G Bendel Stale (1985) 3 N.W.L.R. (Pt.12) 283.

Thus, as was rightly submitted by counsel on both sides, for the Appellant to be convicted for armed robbery, the prosecution must prove beyond reasonable doubt the following essential ingredients:-

1. That there was robbery;
2. That the Accused person took part in the robbery
3. That at the time of committing the robbery he was armed with fire arms or an offensive weapon or was in the company of a person who was so armed. See Adeosun Vs. The State (2007) 46 W.R.N. I at 72 Per Ogunwwniju J.C.A (a recent decision of this court); Bozin Vs. State (1985) 2 N.W.L.R (pt. 8) 465 at 469; and Nwachukwu Vs. The State (1986) 2 N.W.L.R (pt 25) 765 at 776, cited by learned Attorney- General on behalf of the Respondent.

It is pertinent to note that whereas the learned counsel for the Appellant submitted that there was no direct and independent evidence from the prosecution’s witnesses to establish the alleged robbery except the purported confessional statement of the Appellant (Exhibit E) which was retracted, and the hearsay evidence of the PW1I; the earned Attorney-General on the other hand contended that the elements of the offence I can be proved by direct, circumstantial and confessional evidence. He cited Emeka Vs The State (2002) 14 N.W.L.R (Pt. 734) 666 at 683 and in particular Adio vs. State (1986) 5 S.C 194 at 219-220 where Oputa JSC held inter-alia:-

“A case is proved by direct oral evidence if the testimony of the witness who saw and heard them are believed, there will be proof beyond reasonable doubt … the local case of Joseph Ogunbadejo Vs. the Queen (1954) 14 W.A.C.A 458 (otherwise known as Apalara’s case) is an excellent example of proof beyond reasonable doubt based purely on inference from circumstantial evidence but far above these two methods of proof is voluntary confession of guilt by an accused person if it is direct and positive and satisfactorily proved should occupy the highest piece of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further consideration to warrant a conviction unless the trial court is satisfied that the case has not been proved beyond reasonable doubt,” to submit that in the present case the prosecution employed the three methods in varying degrees to prove the charge against the Appellant.

However, in the consideration of the various methods of proving the charge, he conceded that the eye witnesses and victims of the crime – Sunday Onomejoh and John Unuafeh were not called and that PW1 Corporal Ojo Adekola’s explanation as to the where about of the said eye witnesses was not challenged and that such evidence should be deemed to have been admitted by the Appellant. He cited Amadi Vs. Nwosu (1992) 5 N.W.L.R (Pt.241) 273 at 284; Ugwu Vs. The State (1998) 7 5 N.W.L.R (Pt. 558) at 408, to submit that there is no rule compelling the complainant to adduce evidence personally in proof of his complaint as the prosecution is not bound to call all the witnesses listed in the proof of evidence. He subsequently submitted that the evidence of PW1 that he was the main investigating Police Officer at the S.E.B (Special Enquiry Bureau) of the police headquarters and that he arrested the Appellant who volunteered his confessional statement under caution and the Appellant and other accused persons took him (P.W.1) to the house of Sunday 0nomejoh at Ise-Ekiti and in the presence of the said Sunday Onomejoh confessed and demonstrated how they carried out the robbery operation on 28th July, 1996, and stole the sum of N300.000.00(Three Hundred thousand Naira) from the victim’s house, constituted direct evidence by virtue of section 77(a) and (b) of the Evidence Act.

There is no doubt as the learned Attorney-General has submitted relying on all the authorities cited that it is not compulsory that a complainant must testify in proof of his complaint. In the recent case of Olayinka Vs. The State (2007) N..L.R (Pt.1040) 561 at 576 paras D – E and 584 paras A – B, the Supreme Court per Tabai and Tobi J.J.S.C held relying on Alabi v. The State (1993) 7 N.W.L.R (Pt. 307) at 511; Okonofua Vs. The State (1979) 6 – 9 S.C. 18; that there is no obligation on the prosecution to call a host of witnesses in a criminal trial because what really matters is not the number of witnesses called by the prosecution but the quality of the evidence adduced by the witnesses.

In that case, the evidence of the PW3 was that the Appellant and two others who were at large had robbed Mr. and Mrs. Masha of their property and that the Appellant was identified by the couple as one of the robbers who robbed them. The Supreme Court held that in the circumstance of the case the evidence of Mr and Mrs Masha was very vital to the case of the prosecution and the inability to call either Mr. or Mrs. Masha was fatal to the prosecution’s case.

In our instant case, Sunday Onamejoh and John Unuafeh were the only eye witnesses and victims of the purported robbery and their evidence was material to the determination of the guilt of the Appellant. Assuming but not conceding to the contention by the prosecution and the finding by the learned trial judge that the evidence of the death of Onomejoh was not challenged and that since the said Onomejoh was dead the prosecution could not have called a dead person; there is no explanation as to why Unuafeh who was alive and who purportedly informed the PW1’s attendance of the burial of Onamejoh, could not be called. I reiterate as was held in Appeal No. CA/IL/C.31/2006 that no death certificate of the said Onamejoh was tendered; and that if Unuafeh were to be called by the prosecution, his evidence would have been detrimental to the case of the prosecution. See Section 149(d) of the Evidence Act.

As for the submission that the evidence of the IPO is direct and the authorities of Ajiboye Vs The State (1994) 8 N.W.L.R (Pt. 364) 600 at 593; and Okosi Vs The Slate (1989) 1 N.W.L.R (Pt. 100) 642 at 657; cited by the learned Attorney-General, these cases may have been decided on sound legal principles but in the context of the present appeal, the oral testimonies of the Appellant which were also not challenged as well as that of the second Accused/ Appellant as earlier highlighted that as at the 10th day of October, 1996, the Appellant had already been charged to the Magistrate’s Court 5 on 4th of day October, 1996 and subsequently remanded in the prison yard Olokuta-Akure. The Appellant had also testified and this evidence was unchallenged that he only met the PW1 at the Magistrate’s Court 5 when he was taken to Court and that PW1 and PW2 had never been involved in his case. Rather it was one Waidi a Police Officer who arrested him and subjected him to the ordeal he passed through before his so- called confessional statement was taken from him. Above all, the second Appellant sealed the doom of this case when he testified unchallenged that between the 8th and 15th of October, 1996, he was hospitalized as a result of the gunshot wound inflicted on him by Sgt. Omitusi and as such he could not have accompanied the 1st and 3rd Appellants to Ise-Ekiti in the house of Onomejoh to demonstrate before the said Onomejoh and the PW1 how they robbed the said Onomejoh of the sum of N300,000.00 (Three Hundred Thousand Naira) on the 28th of day July, 1996.

What emerges from the totality of the evidence of the 2nd and 3rd Appellants is that the PW1 had no business with the investigation of this case as he was a mere busy body used by both the prosecution and the Court below to secure the conviction of the Appellant by all means as has been demonstrated in the conduct of the entire case. I am afraid that section 77(a) and (b) of Evidence Act, cited by the learned Attorney-General in support of the submission that the Evidence of PW1 is direct, with the greatest respect, is unfounded in both law and fact. Rather, I agree with the learned counsel for the Appellant on the authorities of Subramanian Vs. Public Prosecution (1956) 1 WLR 965, 969 and Utteh Vs. The State (1992) 2 NWLR (pt. 223), 257 per Nnaemeka -Agu J.S.C that the evidence of PW1 that Sunday Onomejoh and John Enuafeh confirmed that the Appellant robbed the said Sunday which the court upheld, is mere hearsay and not admissible in law to prove the fact that the Appellant was guilty of the offences charged.

On proof by circumstantial evidence, the learned Attorney-General submitted that for circumstantial evidence to ground a conviction, it must be strong, cogent, and compelling and must point irresistibly to the guilt of the Accused person. Peter Vs. The State (1997) 12 N.W.L.R (pt. 531) 1 at 19 was referred to submit that the evidence of the PW1, PW2 and PW3 on their investigation activities as contained in pages 21 to 24, 28- 30 and 30 to 31 of the record which were not challenged, controverted or discredited, and/or constituted circumstantial evidence from which a reasonable inference as to the guilt of the Accused person could be drawn by the lower Court.

The learned law officer again cited the cases of Adepetu Vs State (1988) 9 N.W.L.R (Pt. 2660) 185 at 207 Fatilewa vs. The State (2007) A.C.L.R 607 at 619 634 per Odili J.C.A to buttress his contention that it is trite that where direct eye witnesses is not available, the court may infer from facts proved, the existence of facts that may logically tend to prove the guilt of the Accused person.

I am afraid again that the evidence elicited by PW1 and PW2 have been debunked by the Appellant and second Accused/ Appellant whose evidence as to the investigations activities have not been challenged. Apart from the fact that the PW1 to PW3 never took the Appellant to Ise-Ekiti where he confessed and demonstrated how he committed the armed robbery, the evidence by the prosecution witnesses as to the taking of the voluntary statement of the Appellant has been vitiated by the testimony of the Appellant that he was beaten up, hung on the ceiling-fan, shot on the leg and witnessed the killing of Sakora his Co-Accused and as such his confessional statement could not have been voluntary. The cases cited by learned Attorney-General can therefore not be applicable to the circumstances of this case as there is no other circumstantial evidence cogent, compelling and unequivocal which irresistibly point to the guilt of the Appellant so as to warrant his conviction for the offence of armed robbery.

On proof by confessional statement which to my mind is the crux of this matter since it has been held earlier that there was no direct or circumstantial evidence from the prosecution’s witnesses to ground the conviction of the Appellant counsel on both sides have in my candid opinion rightly stated the correct position of the law citing Nsofor Vs. The State (2004) 18 N.W.L.R (pt 905) 292, where per Oguntade JSC at page 310 -311 paras. F – G particularly in paras. C – E at page 311 quoted with approval the dictum of Obaseki JSC in Dawa Vs. The State (1980) 8 – 11 S.C. 236 at 267 to 268 that:-

“Since Kanu Vs. King (supra) authorities abound in this country where the highest court, the Supreme Court decreed that a free and voluntary confession alone properly taken, tendered and admitted and proved to be true is sufficient to support a conviction provided it satisfies the 6 test enumerated above. Among the long line of authorities may be mentioned:

1, The Queen Vs. Obiasa (1965) 2 S.CNL.R 402; (1962) 1 All NL.R 651.

2. Edet Obosi Vs. The State (1965) NML.R 119
3. Paul Onochie & 7 Others Vs. The Republic (1966) 1 SCNL.R 204; (1966) NML.R 307
4. Obue Vs. The State (1976) 2 SC 141
5. Jimoh Yesufu Vs. The State (1976) 6 SC 167
6. Ebhomien & Ors Vs. The Queen (1963) 2 S.C.N.L.R. 332; (1963) 1 All N.L.R 365.”

Thus, it is correct as the learned Attorney-General has also submitted that a conviction could be based on confessional statement alone without any corroborative evidence so long as the court is satisfied that the confession is true. The learned Attorney has however conceded to the submission by the learned counsel for the Appellant on the need for courts seeking to rely on confessional statement to convict an accused person, to look for evidence outside the confession however slight, of the circumstances making it probable that the confession is true.

Learned counsel for the Appellant has rightly submitted in my view that the Appellant retracted his confessional statement at the trial and that the learned trial judge ought to look for corroborative evidence outside the confessional statement which shows that the confession is probably true. In Dawa Vs. The State earlier cited, Obaseki J.S.C who was cited by Oguntade J.S.C in Nsofor Vs. The State (Supra) at pages 310 – 311 paras F – B had this to say on the weight to be attached to a retracted confessional statement as in this case thus:

“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R Vs. Sykes (1913) 8 CAR Appeal Report 233 and approved by the West African Court of Appeal in Kanu Vs The King (1952/55) 14 W.A.C.A 30 and I regard them as sound and golden. The questions a judge must ask himself are:

1, Is there anything outside the confession to show that it is true?

2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the murder?
5. Is his confession possible?
6. Is it consistent with other facts which have been ascertained and have been proved?

If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the conviction cannot properly be founded on it on appeal, it will be hard to sustain.”

Now, going by the evidence elicited in this case and the judgment of the lower Court, can it be said that the Court below applied the tests as enumerated above to the confessional statement before finding the Appellant guilty and convicting him notwithstanding its retraction by the Appellant?

Whereas learned counsel for the Appellant has submitted that the conditions were not met, the learned Attorney-General on the other hand, argued per contra that the conditions were met by the court below. On the first condition, the learned trial judge held at page 70 lines 24 – 33 thus:-

“Apart from Exhibits “A”, “B”, “C”, “D”, “E”, “J”, “K”, & “L” which are confessional statements and attestation of 1st, 2nd and 3rd accused persons, this court has some evidence outside the confession like Exhibit F, G1& G2 i.e the three guns used for the operation, so also the three cartridges recovered from 2nd & 3rd accused persons and tendered as Exhibits H1, H2 & H3. The guns and the cartridges recovered from 1st, 2nd & 3rd accused persons make it probable that the confession,  was true see the cases of Olusegun Olufale and others v The State 1968 N.M.L.R. Page 261; Sule Iyanda Salawu V The State (1971) N.M.L.R. page 249.”

In Nwachukwu Vs The State (2002) 12 N.W.L.R (pt.782) 543 at 572 paras. F – H, the Supreme Court per Iguh J.S.C; when confronted with a situation similar to the one in this case where the Appellant retracted his confessional statement held as follows:-

“The fact that the Accused did subsequently retract his confession does not mean that the court cannot act on it and convict him accordingly as the cases justify it. See Nkwuda Edamine Vs The State (1996) 3 NWL.R (pt. 438) 530; Dapere Gira Vs The State (1996) 4 N.W.L.R (pt. 443) 375 at 388. It is however, desirable particularly if the confession is subsequently retracted that there should be some corroboration, no matter how slightly, but a conviction will not be quashed merely because it is based entirely upon the evidence of a confession by the Appellant. See R. Vs Ajayi Omokaro supra. ”

In the above cited case, the apex court and indeed Iguh J.S.C, found out from the judgment appealed against that the learned trial Judge enquired most carefully into all the circumstances surrounding how the confessions were made by the Appellant. He also tested the truth of the confessions and was satisfied with the genuineness and veracity and came to the conclusion of the truth and was also satisfied that the Appellant physically partook in the killing of the deceased. However, in our instant case, the learned trial Judge abdicated his responsibility of subjecting the confessional statement to the necessary scrutiny required by law and particularly failed to carefully consider the circumstances under which the statement was purportedly made in the light of the un-contradicted evidence of the Appellant that he was hung on the ceiling, tortured and shot on the leg and indeed his co-Accused person (one Sakora), was brought out along with him and shot dead in Appellant’s presence, before he confessed to partaking in the robbery.

I have read through the entire gamut of the judgment of the lower court and am of the view that the learned trial Judge appeared to have swallowed whatever the prosecution’s witnesses told him hook, line and sinker, just because the law permits him to convict on the confessional statement of an Accused alone. I am afraid that Exhibits F, G1 – G2 and H1 – H3 were part and parcel of the confessional statement and the evidence of PW1 and PW2 did not help matters particularly as the complainant and John Unuafeh who were eye witnesses were not called.

For whatever it was worth, the learned trial Judge ought to have subjected the confession to the appropriate test of its genuineness and veracity by seeking material evidence outside the said confession to corroborate it. Having not done this, I agree with the learned counsel for the Appellant that the learned trial Judge did not comply with the first test as laid down in Sykes ease and followed in the Nigerian eases also cited by learned counsel for the appellant and the Respondent.

On the second condition which is whether the confessional statement was corroborated, the learned trial Judge had held at page 67 lines 26 -33 to page 68 lines 1 – 4 thus:-

“I also note that before a conviction can be properly founded on such a retracted confession, it is desirable to have some evidence outside the confession which will make it probable that the confession was true. Three guns and cartridges were recovered from 1st, 2nd and 3rd Accuse persons which they confessed were used for the operation.

Also the Accused persons took the I.P.O. to the scene of the incident and they told the police the role each of them played. Each of the three Accused persons confessed that they went to Ekiti and that they were armed with a gun. The fact that they went with Exhibit F.”

At page 68 lines 12 and 13, the learned trial Judge confirmed rather the submission by learned counsel for the Appellant that Exhibits F, G1 – G2 and H1 – H3 were all part and parcel of the confessional statement which ought to be corroborated by independent evidence outside the confession.

I have already held that the holding by the Court that the evidence of the PW1, that the Appellant and his co-Accessed persons took him and other policemen to Ise-Ekiti in the house of Sunday Onomejoh and demonstrated in the presence of the said Onomejoh how they robbed the complainant of the sum of N300,000.00, supplied the necessary corroboration was unfounded in law and in fact particularly with the evidence of the 2nd Accused/Appellant that on the said 10th of October, 1996 when they allegedly took the PW1 thereto he was in the hospital until 15th of October, 1996. Also apart from that piece of evidence being unchallenged, the evidence by the 3rd Appellant that on the 4th day of October, 1996, he had already been charged to court and remanded in prison custody before being subsequently arraigned at the Ekiti High Court and that he had never been to Ekiti was also not challenged.

Beside all these pieces of evidence, the original investigating police officers who arrested the Appellant with the guns and cartridges before handing them to the PW1 at the S.E.B Police Headquarters, Akure and who would have constituted the independent witnesses to corroborate the confessional statements of the Appellants were not called at least to tell the court how they came about the said guns and ammunitions. Thus, I agree into to with the submissions of the learned counsel for the Appellant that apart from the vital eye witnesses to the offence not being called, there was no independent witness to corroborate the confessional statement.

I disagree with the submissions of the learned Attorney-General that the evidence of the PW1 – PW3 had not been challenged and that the Court below was right in relying on the discredited evidence of the PW1 to convict the Appellant. There is no doubt that STROUD’S JUDICIAL DICTIONARY, 2000, 6th Edition at page 550 to 551 defines “Corroborative Evidence” as a “testimony which confirms in some materials, particular not only the evidence that a crime has been committed but that the defendant had committed it.”

I am also not oblivious of the statements and positions of the law as enunciated in the cases of Njoku Vs The State (1992) 8 N.W.L.R (Pt. 262) 714 at 725; Iko Vs The State (2001) 14 N.W.L.R (732) 221 at 254; Utteh Vs The State (1992) 2 N.W.L.R (Pt. 223) 257 at 273 – 274 (S.C) and the Queen Vs Onovo (1958) N.S.C.C. 76 – 77 e.t.c. For instance, in Iko vs. The State (supra) Kalgo J.S.C. quoting from Lord Morris’ statement of the law on the purpose of corroboration, in D.P.P Vs Hoster (1972) 57 C.R.A.R. 212 at 229 posited that:-

“The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and credible, and corroborative evidence will only fill its role if itself is completely credible evidence.” See Okafor Vs The State (1990) 1 N.W.L.R (pt.128) 614; Onwumere Vs The State (1991) 4 N.W.L.R. (428) followed in Audu Vs The State (2003) 7 N.WL.R (PT.516) 550 – 551.

In the instant case, the evidence used as corroboration of the confessional statement is not completely credible as the 2nd and 3rd Appellant have testified without any contradiction that they never took the PW1 to the house of the complainant – Sunday Onomejoh at Ise-Ekiti to demonstrate how they committed the armed robbery.

As regards Utteh Vs The State and Sections 75 and 76(b) of the Evidence Act, whatever the PW1 heard concerning the confession to the commission of the offence of armed robbery by the Appellants have been rendered inadmissible in view of the fact that his evidence has been completely discredited by the testimonies of the 2nd and 3rd Appellant and accordingly, they cannot pass as corroborative evidence of the confessional statement of the 3rd Accused/Appellant.

As regards the case of Queen Vs Onovo (1958) N.S.C.C 76 – 77; since it has also been shown that the Accused persons never took the PW1 to Ise-Ekiti where the armed robbery was allegedly committed and neither Sunday Onomejoh nor John Uhuafeh who witnessed the commission of the crime, not to talk of the original policemen who recovered the guns with which the robbery was purportedly committed were called, the above authority is with the greatest respect not applicable to the particular circumstance of this case.

On Exhibit F, G1, G2, H1 – H3, there is ample evidence even from the PW1 and PW2 that the said guns were purportedly recovered from the 1st Accused who in any case denied ever knowing the 3rd Accused/Appellant in the cell. With the greatest respect, there is no corroborative evidence as the learned trial Judge did not subject the statement to any test inspite of its retraction by the Appellant and the evidence of the PW1 and PW2 as to the circumstances under which the Appellant made the statement have been recanted and indeed the voluntariness of the statement had been called to question. Kareem Vs F.R.N (No.1) (2002) 8 N.W.L.R (pt. 770) 636 at 654- 655 does not apply as the money allegedly stolen from the complainant on 28/7/96 was never recovered from the house of the Appellant and his said house was never searched in the course of investigation.

On the third test or condition as to whether there are relevant statements in the confession which are facts true as far as they can be tested, it is pertinent to have recourse to the testimony of the Appellant as earlier reproduced as the pieces of evidence as highlighted by the learned counsel for the Appellant that:-

1. Appellant claimed that he was beaten up, tortured, hung on the ceiling and further that he was shot by the police on the leg and that he had to confess to the commission of the offences after he witnessed the killing of Sakora his co-Accused.
2. Appellant insisted he did not make the statement tendered as Exhibit E, as he did not volunteer nor sign any confessional statement.
3. Appellant testified in Yoruba (although the learned trial Judge did not bother to record the language in which he testified.) which goes to confirm that he could not have volunteered his statement in English language or signed same as purported by the PW1 and PW2 as that piece of evidence was never challenged.
4. There were discrepancies in the testimonies of the witnesses as from whom (the gun) (Exhibit F) was recovered. Whereas the PW1 and PW3 testified that the gun was recovered from the 1st Accused, the confessional statement purported that the Appellant confessed being the owner of Exhibit F and that he identified same as the gun he wielded in the course of the robbery at Ise-Ekiti in Sunday Onomejoh’s house.
5. Although the PW1 and PW2 purported that the Judges’ Rule was followed, the fact that the statement was made after the Appellant was tortured by the police has not been challenged by the prosecution.

I therefore, agree with the learned counsel for the Appellant that the fact that all these flaws were inherent in the evidence of the prosecution’s witnesses raised doubt that the confession contained facts that are true and such doubt ought to have been resolved in favour of the Appellant.

On the condition whether the confession is possible, the learned counsel for the Appellant had held the view that the learned trial Judge should have looked at all the circumstances of the case, especially whether there was corroboration as well as the circumstances under which the statement was made as the essential factor in ascertaining the possibility of the confession is whether the confession is consistent with other evidence in the case including earlier extra-judicial statement of the Appellant.

The learned Attorney-General on the other hand, had submitted that the Appellant testified that he knew PW1 and PW2 as the investigating police officers in the case and further that he volunteered his statement to the police and the statement was recorded as Exhibit E as confirmed by PW2 in October, 1996. Furthermore, the confession by the Appellant that he conspired with the other Accused persons to commit the armed robbery at Ise-Ekiti without more is sufficient to prove the charge of conspiracy and armed robbery.

I must remark as I had already done that the Appellant may have confessed in his extra-judicial statement that he conspired to commit the offences with which he was charged but he denied same in his statement on oath. He also denied that the PW1 and PW2 had anything to do with his case. Rather, one Waidi was the police officer who arrested him. He only met the PW1 while in the Magistrate Court 5. As for PW2, he admitted knowing him at the S.E.B. Akure but denied ever being involved in any case involving the PW1 and PW2, adding that all that the PW1 and PW2 said about him were lies.

The court below ought to have tested the confessional statement to verify its genuineness and veracity or seek corroboration but nothing was done in this direction. Rather, he held at page 71 lines 11- 16 that:-

“The evidence led by the prosecution showed clearly that the three Accused persons had the opportunity of committing the offences of conspiracy and armed robbery and the confessional statement of the 1st, 2nd, and 3rd Accuse persons were consistent with other facts, which had been ascertained and proved. See the case of R Vs Chukwuji Obiora (1962) WN.L.R page 354, see also case of R Vs Sykes (1913) 8 Cr. App. Report 233. ”

With the greatest respect, there is no rational basis for the findings of the court in the absence of subjecting the confessional statement to the tests laid down in R Vs Sykes supra and followed in the Nigerian cases earlier cited. Besides, the only purportedly proved facts which would have been consistent with the confessional statement ought to have been supplied either by Onomejoh or Unuafeh since the evidence by PW1 that the Appellant and other Accused persons took him and other policemen to Ise-Ekiti to demonstrate in Onomejoh’s house how they robbed the victim of N300,000.00 has been discredited. Besides, even if we agree that Onomejoh died as the court believed, no reasonable explanation has been offered for the inability of the prosecution to call John Uuuafeh who is still alive and also witnessed the commission of the crime nor the original policemen who investigated the case at the state C.I.D. Akure.

On the whole, I am tempted to agree with the submissions of the learned counsel for the Appellant that the Appellant could not have had the opportunity of committing the offences as the prosecution did not prove that he so did, outside the confessional statement of the Accused and Exhibits F, G1- G2 and H1 – H3 which were incorporated in the confessional statement. The Appellant had given unchallenged evidence on oath that he never knew Ise-Ekiti and did not take the police thereto to demonstrate how they carried out the robbery.

Even in his so-called confessional statement (Exhibit E), he never admitted meeting the other co-accused persons at a drinking parlour at Arakale and the mere fact that he admitted Knowing Arakale very well as an indigene of Akure, does not necessarily warrant the inference drawn by the learned Attorney-General that he had met with his co-conspirators at the drinking parlour at Arakale. It is pertinent to note that the Appellant had testified as follows:-.

“I was in Lagos in July 1st 1996 I did not come to Akure during the month of July, I know Arakale street very well.

“My mother lives at Arakale, I know the place very well.

“I have never lived with my mother; ” which pieces of evidence his mother confirmed but the court erroneously dismissed on the ground that the mother did not make any statement to the police; the Accused has not been living with his mother and that the mother could not remember the month and year the Appellant started living and doing his alignment and wheel balancing business in Lagos. Also, the court below held that the Appellant did not raise the defence of alibi at the earliest opportunity as he did not tell the police that he was in Lagos when the robbery took place. I am of the firm and considered opinion that, in view of the hostile atmosphere under which the Appellant’s statement was taken even if he raised the alibi at the earliest opportunity, the police or even PW1 (assuming he was the I.P.O) would not have recorded any statement that would have extricated him from being nailed as an armed robber. There being no extraneous evidence to show that the confession is true, it was unsafe as the learned trial Judge did, to have convicted the Appellant solely on it.

On the last condition or question as to whether there was any other evidence consistent with proved facts which the court below answered in the affirmative, I also agree with the submissions of counsel for the Appellant that the court as in grave error to have so held considering the fact that he did not evaluate the aspect of the contention by the Appellant that he was tortured and shot and his co-Accused killed and he was forced to confess to the commission of the offence.

What then is the effect of the retraction of the Appellant’s statement on the ground that he was shot on the leg and tortured before making the confession? Section 27(1) of the Evidence Act, 2004 defines confession and when it is relevant against an Accused person thus:-

“27(1). Confession is an admission made at anytime by a person charged with crime, stating or suggesting the inference that he committed the crime. “By Subsection (2) of the above Section, “Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”

On the effect of confessions on co-Accused; Section 27(3) further provides that:-

“where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said Statement by words or conduct”

From the provisions of Sections 27(1) and (2), it is clear that an extra-judicial statement like Exhibit E may pass as a Confessional Statement whether made orally or in writing. See Otufale & Ors Vs The State (1968) N.W.L.R 261 cited by the learned trial Judge and Uche & Anor Vs R (1964) 1 ALL N.L.R 195. Also, the authorities are settled that for a confession to be relevant, admissible, or ground a conviction, there must be the elements of voluntariness, positivism and un-equivocation See Afolabi vs COP (1961) 1 ALL N.L.R. 654 (F.S.C); R Vs Jonah & Ors (\944) 2 W.A.C.A 120; Patrick Njovens & Ors Vs The State (1973) 5 S.C 17 and R Vs Essien (1939) 5 W.A.C.A. 20, where it was variously held that a general statement amounting to implication of crime cannot be regarded as confession.

Also, as was rightly submitted by the learned Attorney-General and upheld by the court, the fact that the Appellant, as in this case, denied making the confession does not necessarily render it inadmissible for as was decided by Brett Ag C.J.F. in Rex Vs ltule (1961) 1 ALL N.L.R 462 (F.S.C) cited by learned Attorney-General and approved by the learned trial Judge:-

“A confession does not become inadmissible merely because the Accused person denied having made it and in this respect a confession contained in a statement made to the police by a person under arrest cannot be treated differently from any other confession. The fact that the Appellant took the earlier opportunity to deny having made the statement may lend weight to his denial, but it is not itself a reasons for ignoring the statement. ”

The above position of the law notwithstanding, it is clear from the provisions of Section 27(2) of the Evidence Act that unless a confession is voluntary, it is not relevant and admissible and there are authorities galore to the effect that the prosecution carries the onerous burden of proving affirmatively and without any reasonable doubts that a confession was made voluntarily. See Adekanbi Vs Attorney-General of Western Nigeria (1966) 1 ALL N.L.R 47; R Vs Martin Priestly (1966) 50 Cr. App. R. 183 at 188, Paul Ashake Vs The State (1968) 2 ALL N.L.R 198 cited by the learned trial Judge in his judgment and Auta Vs The State (1975) N.N.L.R 60 at 65 (S,C).

This position of the law in Nigeria is akin to that in England under the Common Law where Parke B. in the case of R Vs Baldry (1852) 2 Den. 430; 5 COX C.C 523 held that: –

“in order to render a confession admissible in evidence it must be perfectly voluntary; and there is no doubt that any inducement in the nature of a promise or of a threat held out by a person in authority vitiates a confession.” See R Vs Thompson (1893) 2 Q.B 12; D.P.P. Vs Pong Lin (1975) 3 ALL E.R 175 (H.L) and the Nigerian cases of Dawa & Anor Vs The State (1980) 8 – 11 S.C 236, 258; Ikpasa Vas The State (1981) 9 S.C 7 at 29 and Saidu Vs The State (1982) 4 S.C 41.

The above decisions are consistent with section 28 of the Evidence Act which states as follows:-

“28. A confession made by an Accused person is irrelevant in a criminal proceeding, If the making of the confession appears to the court to have been caused by inducement, threat or promise having reference to the charge against the Accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the Accused person grounds which would appear to him reasonable for supposing that by making it he would gain advantage or avoid any evil of a temporal nature.”

Where as in this case the Appellant had in his evidence on oath as highlighted earlier testified that he was beaten up by policemen, hung on the ceiling-fan, shot on the leg and brought in the midnight along with Sakora his co-Accused who was shot dead and these dastardly acts of the police officers instilled fear on him to confess that he committed the offence, then definitely, the voluntariness of the confession would have been called to question.

In this case, there was not only threat but a actual bodily harm to the person of the Appellant proceeding from police officers or even the PW1 and PW3 as they were persons in authority and the Appellant would have had the reasonable apprehension that by making the confession, he would secure an advantage of temporal nature (being alive or avoiding being killed like his co-accused person (Sakora).

I am not oblivious of the holding by the Court citing Egboghonome V:s The State (1993) 7 N.W.L.R 383 S.C per Olatawura, J.S.C of blessed memory, that once a confessional statement is admitted in evidence it becomes part of the case for the prosecution and as such the judge is bound to consider its probative value. There is also the holding at page 69 lines 12-39 that it is trite that where an Accused makes a statement to the police and in his evidence in court he gives something contrary, such testimony is usually treated as unreliable and is therefore ignored. The case of Oladejo Vs The State (1987) 3 N.W.L.R (pt. 6) 364 at 427 was cited to dismiss the evidence of the Appellant as mere afterthought.

The learned trial Judge also alluded to the practice which has developed in this country where an Accused person who has made a confessional statement to the police is given the opportunity to deny or admit it before a superior police officer. According to my Lord, the opportunity was given to the 1st, 2nd and 3rd appellants and they confirmed their confessional statements. He cited the case of R vs Sapele (1957) 3 F.S.C 24 to hold that the fact that the Appellants retracted their statement did not render them inadmissible. See page 70 line 1 – 22. There is no doubt that these holdings ought to be well founded as they represent the true position of the law in the peculiar circumstances of each of the cases cited. However, the law as far as this case is concerned, is as stated in R Vs Middleton (1974) 2 ALL E.R 1190 which was followed in Ovie Vs The State (1985) 4 S.C 1 at 27 per Karibi-Whyte, J.S.C that:-

“It is well settled that where the objection to the admissibility of an Accused person’s statement is merely that it was not read over to him, and on the ground that he did not make it, but not that it was not voluntarily made, and that he was coerced, or induced to make it, the statement is voluntarily made and admissible.” See also Chan Wei-Keung Vs R (1967) 2 W.L.R 552.

In this case, the grouse of the Appellant is that he did not voluntarily make the confessional statement because he was threatened, coerced and induced with beatings, torture and infliction of gunshot wound and the killing of his co-accused Sakora. See R Vs Thompsom (1783) 1 Leach 291; R Vs Coley (1868) 10 COX C.C. 536; and the Nigerian cases of R Vs Baba Haske (1961) ALL N.L.R 330; R Vs Bodom (1935) 2 W.A.C.A 390 and The State Vs Mati Audu (1971) N.N.L.R 91. The Court therefore, had the duty to subject the statement to the tests laid down in Syke’s case and the Nigerian case of Nsofor Vs The State (supra) and others. How then would the learned trial judge have done this? It has been held that in order to determine where the truth lies, the court will have to scrutinize the whole statement, both the incriminating part and the excuses or explanations. See Said vs. The State (1982) S.C 41 as Oluhu Vs The State (1980) 1 N.C.R 309 which decided the contrary that only the confessional part is admissible has been overruled.

In R Vs Agagariga Itule (1961) ALL N.L.R the Supreme Court held that the whole statement should be taken together and that the admission of a fact disadvantageous to an Accused cannot be received in evidence without receiving at the same time his contemporaneous assertion of a fact favourable to him not merely as evidence that he made such an assertion, but admissible evidence of the matter thus alleged by him in his defence.

Where, as in this case, the Appellant denied the voluntariness of the statement and the fact that he thumb-impressed but did not sign the statement he being an illiterate, who even testified in Yoruba at the trial court, and that the statement was obtained by torture and coercion or force, the learned trial Judge should have held a trial within trial.

In this case, the court did not record whether the Appellant retracted the statement as not being made or on the ground of involuntariness. The learned trial Judge simply admitted the statement of the Appellant without recording the reaction of either his counsel as to whether he objected to the statement being tendered and admitted or not. However, the learned trial Judge reflected at page 70 lines 11 – 14 of the record that the 1st, 2nd and 3rd Accused persons denied making the confessional statements and had earlier held at page 65 lines 12 – 16thus:-

“These statements are confessional, and the court is satisfied that, the statements were made voluntarily and was not prompted by any promise or inducement or threat or by actual violence, hence they were admitted by the court as Exhibits.”

Pray the court, how did he arrive at these findings and what reasons informed his proceedings he did not show where he conducted a trial within trial. He did not also tell us whether he examined the Appellant’s leg and did not see any bullet wound or scar to debunk the assertion that he was shot on the leg. In any case, the prosecuting counsel never cross-examined the Appellant on these damaging pieces of evidence.

In the recent case of Olayinka Vs The State (2007) 9 N.W.L.R (Pt. 1040) 561, Tabai and Tobi J.J.S.C. at pages 577 paras. C – E d at 586 paras. E – F deprecated the procedure adopted by the learned trial Judge when he refused to subject the confessional statements of the Appellant which as in our instant case was retracted on the ground of want of voluntariness when they said:-

“At the trial on 12/7/84, when the confessional statement of the Appellant was sought to be tendered through the PW2, learned counsel for the Appellant, Miss Idowu, objected to its admissibility on the ground that it was not voluntarily made. The learned trial Judge however proceeded to admit same in evidence without any attempt to try this issue whether it was voluntarily made. With the greatest respect, this approach is wrong. ”

On the propriety of this approach, the erudite Justices quoted with approval the dictum of Oguntade, J.C.A, who presided and read the lead judgment of the Court of Appeal from where the case emanated thus:-

“I think that the lower Court was mistaken in its approach. Where there is a dispute as to whether or not an Accused made a statement voluntarily to the police, an issue as to admissibility is raised and the duty of the trial Court is to try the voluntariness of the statement. ”

The lower Court with the greatest respect adopted this wrong procedure in the instant case and apart from not conducting a trial within trial, relied on evidence which had been discredited to found corroboration of the Confessional Statement.

Accordingly, I am of the candid view that the findings and holding of the learned trial Judge at page 72 lines 2 – 11 that “the circumstances under which the confessions heavily relied on in this case, by the prosecution have been proved and the formal requirements of the procedure of taking confessional statements of the 1st, 2nd, an 3rd Accused persons as laid down by the Supreme Court in the case of Kim Vs The State (1992) N.W.L.R (pt. 235) at 17 (S C) has been followed consequently the prosecution has proved its case against 1st, 2nd and 3rd Accused persons in count 1 and 2 respectively beyond reasonable doubt as stated under Section 138 of the Evidence Act”; are not only erroneous but not borne out of the totality of the evidence before the court.

On the contrary, I hold that the prosecution failed to prove the charge of conspiracy and armed robbery beyond reasonable doubt and the conviction based on the confessional statement of the Appellant is not justified. Issue Number 1 of the Respondent which incorporates Issues Number 1, 3, 4 and 6 of the Appellant is resolved in favour of the Appellant.

ISSUE NUMBER 2:- “WHETHER THE LEARNED TRIAL JUDGE FAILED TO EVALUATE THE EVIDENCE OF THE APPELLANT AND MAKE CLEAR FINDING ON IT AND THEREBY OCCASIONED A MISCARRIAGE OF JUSTICE?”

This Issue incorporates Issue Number 2 of the Appellant and in an attempt to resolve same, it must be noted that the evaluation of evidence and ascription of probative value and credibility to the testimonies of witnesses is the primary function and within the exclusive preserve of a trial Court which had the peculiar advantage and opportunity to hear and watch the demeanour of the witnesses during trial. Accordingly, it is trite that in criminal cases, an Appeal Court will not allow any appeal merely because the verdict reached by the trial Court is challenged on the ground of its being contrary to the weight of evidence. See Aladesuru & Ors Vs R.(l955) A.C. 49. The Appeal Court can only allow an appeal or intervene if it can be shown by the Appellant that the judgment or the verdict of the trial Court is unreasonable, unwarranted and unsupportable having regard to the totality of the evidence. See Adi Vs R (1955) 15 WA.C.A. It has also been held that where a Judge has properly directed himself, the Court of Appeal will not reverse the verdict after such a direction, unless there was no evidence to support it. See Wattab vs. I.G.P. (1956) W.N.L.R. 24; R vs. Aina (1953) 14 W.A.C.A. 310; R vs. Olagunu (1961) 1 All NLR 21 and Gwawoh vs. COP (1974) 1 All NLR (Pt.2) 396.

However, in the evaluation process, the trial Judge must give consideration to all the evidence elicited in the case as a whole, as it is not enough for the court to simply say “I believe or I do not believe this evidence “. In Oladehin Vs Continental Textile Mills Ltd. (1978) 2 S.C 23, the Supreme Court held that the above rule of the evaluation of evidence applies both to criminal as well as civil cases. See also Nwoke & Ors. Vs Okere & Ors (1994) 5 N.W.L.R 159 at 175 where the apex Court again laid it down that in the appraisal of the evidence of the parties, a trial Judge must give reasons for believing or disbelieving a witness and that where the trial court appropriately evaluates the evidence and appraises the facts, it is not the business of an Appellate Court to substitute its views for those of the trial court. However, where the trial court fails in its duty to evaluate the evidence or properly appraise the facts before it based on the evidence, the Appellate Court is in as good a position to review the evidence and proceed to draw the necessary inferences there from. See Mogaji Vs Odojin (1978) 4 S.C 91 at 93 -94; Olubode Vs Salami (1985) 2 N.W.L.R 282; Onwuchuruba Vs Onwuchuruba (1993) 5 N.W.L.R 185 at 199 – 200.

In the recent case of Abdulahi Vs The State (2008) 17 N.W.L.R (pt. 1115) 203 at 219 paras A – C; Mohammed, J.S.C in his concurring judgment of the Supreme Court succinctly stated the position of the law thus:-

“The law is trite that where a trial court has drawn a conclusion from accepted or proved facts, and which facts do not prove the prosecution’s case, an Appellate Court has the duty to interfere with such findings because they are perverse. See Okolo vs. Uzoka (1978) 4 S.C 77; Fatoyinbo Vs Williams (1956) S.C.N.L.R 274; Adio Vs The State (1986) 2 NW.L.R (pt. 24) 581; and Dare Kada Vs The State (1991) 8 NW.L.R (pt. 208) 134 at 146.”

The above analyses and the authorities cited set the pace for a consideration of the submissions of the respective learned counsel on the resolution of the issue in question. The learned counsel for the Appellant has submitted that the lower court did not properly evaluate the evidence adduced by the Appellant in his defence in that the Appellant in his evidence on oath denied being literate and indeed testified in Yoruba language and told the Court that he thumb-printed the statement he made and did not sign same. In other words, Exhibit E -the confessional statement- attributed to him was not his but that the learned trial Judge did not make any finding on this vital part of the Appellant’s defence.

Apart from denying making this statement, the Accused also stated that he never took any police officer to the house of Sunday Onomejoh on the 10th day of October, 1996 and that he did not know the other Accused persons with whom he was alleged to have ganged up and conspired to rob the said Sunday on the 28th of July, 1996; the learned counsel further submitted.

Learned counsel for the Appellant has cite Karibo Vs Grend (1992) 3 N.W.L.R (pt. 230) 426 at 643 paras F – G where the Supreme Court held that it is the duty of the trial court to make findings of fact on material evidence or issue adduced before it and also Morenikeji vs. Adegbosin (2003) 8 N.W.L.R (pt. 823) where the apex court held that where a trial court fails to make findings on material evidence and important issues of fact or approaches the evidence called by the parties wrongly, the Appellate Court will have no alternative but to allow the appeal.

He has further cited Kalio Vs Woluchem (1985) 1 N.W.L.R (Pt. 4) 610 at 622; Obiaso & Ors Vs Okoye & Ors (1989) 5 N.W.L.R (pt. 119) 80; to submit that even though the above cases were on civil matters by which the evidential burden is discharged on the balance of probabilities, the same requirements, if not heavier judicial and judicious burden or obligation, is required in criminal cases.

He maintained that where the evidence adduced and admitted in a case is capable of deciding the case one way of the other and the trial court fails to make a clear finding on that fact through proper evaluation of evidence, the Appellant submit that the entire decision of the lower court should be set aside.

The learned counsel finally submitted that where the Appellant testified that he could not have made Exhibit E because:-

1. He could neither read nor write English language and the statement was made in English.
2. He did not know the other Accused persons before they were detained together in prison custody and as such the facts contained in the Confessional statement that all of them conspired to commit armed robbery in Sunday Onomejoh’s house on 28th July, 1996 could not be correct; and that
3. He did not take any of the policemen to Sunday Onomejoh to confirm that he robbed him; these are all the defences that the court below ought to consider, evaluate and make clear findings one way or the other and give reasons for such findings. Rather than do this, the learned trial Judge proceeded to consider the confession as if there was no retraction and thereby occasioned a miscarriage of justice against the Appellant as the main plank of his defence was not considered, learned counsel for the Appellant submitted. He finally urged us to hold that the conviction of the Appellant was based on confession and associated evidence and therefore cannot stand.

On his part, the learned counsel for the Respondent took the view that the lower court properly evaluated the totality of the evidence adduced by the Appellant in his defence to the charges against him. He countered that in evaluating evidence in criminal matters, there is no such burden on him to give reasons as to why he believed one piece of evidence or not as in civil matters, but the court is only bound to consider the substantiality of evidence. He cited the case of Okoro vs. The State which held that the evaluation of evidence in criminal cases is different from civil cases and in particular lbrahim Vs The State (1991) 1 N.S.C. 587 at 602 where the differences were enunciated.

The learned Attorney-General placed reliance again on Adio Vs The state (1986) 2 N.W.L.R (pt. 24) 581 at 589 where the Supreme Court on the two questions that should be asked where several persons are charged and convicted and a complaint on the conviction is made as in this case to humbly submit that the learned trial Judge gave consideration to the defence of the Appellant before making the finding of guilt against him based on the evidence adduced by the prosecution.

He made references to pages 62, 67 lines 21 to 25 of the Records, 68- 69 lines 10 – 11, 71 lines 1 – 3, and 11 -15 where the learned trial Judge made his findings and conclusions which according to him are borne out of the totality of the evidence adduced by the prosecution and the defence and urged that this court should not disturb the findings. The learned Attorney-General contended that without conceding that the evaluation of evidence was improperly done by the lower Court, it is trite that it is not every error or slip on the part of the lower Court that will vitiate a judgment but only where the error is fundamental as to occasion a miscarriage of justice.

It was finally submitted that the style adopted by the trial Judge in evaluating evidence of parties in the judgment and making appropriate finding therein was proper. He then urged the Court to resolve the issue against the Appellant.

I have carefully considered the submissions of the respective counsel for both the Appellant and the Respondent on this vexed issue of evaluation of evidence and whether the trial judge gave consideration to the case of the Appellant. There is no doubt that all the authorities cited by the learned counsel for the Appellant are all on civil matters and the Supreme Court in Oludehin vs Continental Textiles Mills (supra) had held that the rule that the Judge must give consideration to and evaluate all evidence led in the case as a whole and that it is not enough for the Court to hold that “I believe this evidence” or “I do not believe that evidence”, applies to both criminal and civil cases.

This fact is buttressed even by the authority of Ibrahim Vs The State supra at page 602 lines 42- 53 where Nnaemeka-Agu, J.S.C in his dissenting judgment attempted to distinguish the evaluation of evidence in civil matters and criminal matters; where the learned Law Lord stated in respect of criminal cases thus:-

“But in criminal cases, the issue of preponderance of evidence does not really arise. The question is whether there is evidence of such quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial judge, that is the end of the matter, provided of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defence. He need not weigh it.”

From the foregoing dictum of the emeritus Supreme Court Justice which to mind is the state of the law even now, emphasis is on the “quality of evidence” elicited by the prosecution on “every material ingredient or issue in the case that it ought to be believed.”

Secondly, it must manifest from the Record of Proceedings that the learned trial Judge gave due consideration to the evidence of the defence or on his behalf. Again, it seems to me that from the plethora of authorities in both Criminal and Civil cases, the Court must give reasons for believing or not believing and/or rejecting or accepting the evidence of a witness (in this case the Appellant). See Nwoke Vs Okere (1994) 5 N.W.L.R. 159 at 175 S.C. See also Ajilore & Anor Vs The State (1993) 4 N.W.L.R. 572, 595 C.A. There is no doubt that where there is evidence on a material point which is credible and stands un-contradicted by any other evidence, the trial Court can accept same and convict upon it even if it is uncorroborated.

Going by these authorities and the earlier ones cited while laying the foundation for the consideration of the submissions of respective counsel for the parties in this case vis- a -vis the findings and conclusion by the Court that the prosecution had proved its case beyond reasonable doubt, can we with certainty say that the learned trial Judge gave consideration to the case of the Appellant and adduced any reasons for rejecting the evidence of the Appellant as mere after thought?

I had earlier reproduced almost verbatim the testimony of the Appellant on oath, but for the purpose of this issue, let me recall in sum that:

1. The Appellant stated on oath that he did not understand and speak English and infact during trial, testified in Yoruba Language.
2. He could not have given his statement and signed same in English language but that he thumb-impressed same.
3. The statement he made was in Yoruba but the one tendered was made in English Language.
4. He was tortured, hung on the ceiling and shot on the leg before being taken out in company of his co-Accused (one Sakora) who was shot dead and because of the fear; he was forced to confess that he belonged to the armed robbery gang that robbed Sunday Sunday Onomejoh.
5. He did not take the PW1 and other police officers to Ise-Ekiti to demonstrate how they robbed Sunday Onomejoh in his house.
6. He did not know the other co-Accused persons before they were detained In prison.

I do not subscribe to the submission by the learned counsel for the Appellant that the learned trial Judge rather made findings concerning voluntariness of the confession which was not an issue before him. With the greatest respect to the learned counsel, the question of voluntariness of the confessional statement was before the Court and he (counsel for the Appellant) had copiously addressed that point while considering Issue Number One on whether under the atmosphere in which the Appellant made the statement, the statement could have been voluntary.

The Court appropriately in my view, performed its bounding duty to make such findings but the question now is whether he gave reasons for same. It would appear that he rationalized the basis for the findings when at page 69 lines 12 – 24 he cited Oladejo Vs The State (1987) 3 N.W.L.R (pt. 6) 364 and 427 to hold that when an Accused makes a statement on oath which is contrary to his extra judicial statement to the police, such a testimony in Court is always treated as unreliable.

However, apart from the fact that Oladejo vs. The State has been overruled by Egboghonome vs. The State (1993) 7 N.W.L.R. 385; the dictum of Onyeama J.S.C. in Agwu vs. The State (1965) N.W.L.R 18, 20 following the English cases of R. vs Harris (1927) 20 Cr.App.R. 144; R. vs. Golden (1960) 3 ALL E.R. 475, that:-

“if it appeared that a witness had formerly said or written the contrary of what he later swore in evidence unless the reason for his having done so was satisfactorily accounted for), his evidence should not have much weight “, appears to be more in accord with current judicial thinking and the interest of justice particularly where the voluntariness or retraction of a confessional statement is in issue, as in this case.

Going by this authority, the Appellant has sufficiently accounted for the disparity in his so called confessional statement Exhibit E (assuming that was actually the statement he made after being subjected to torture and dehumanization). Unfortunately, the learned trial Judge did not consider these questions of torture or the fact that he did not make the statement in English language; that he made the statement in Yoruba language and indeed testified in that language; that he did not know the other co-Accused persons before they were detained in prison custody and as such the statement that they all belong to an armed robbery gang who robbed Sunday Onomejoh at Ise-Ekiti could not be true. As for his holding that apart from Exhibits “A”, “B”, “C”, “D”, “E”, “J” and “L”, the confessional statement of the Accused persons/ Appellants, their respective attestations, and hibits “F”, “G”, “G 1”, “G2” and “H1”- “H3” the guns and cartridges recovered from the 1st Accused, makes it probable that the confession was true, this finding is erroneous in that the said Exhibits F- H3 were part and parcel of the confessional statement and cannot corroborate the said confessional statement. See Section 92(2) of the Evidence Act and the case of R Vs Sekun & Ors (1941) 7 W.A.C.A 10; where it was held that:-

“In most cases where the question of corroboration arises the question is “is there independent testimony which affects the Accused by tending to connect him to the crime?

……………

See Latifu Saraki vs. R (1964) N.M.L.R. 28; R vs. Micahel Omisade 91964) N.M.L.R. and R. vs. White-head (1929) 1 K.B. 99 at 102 where Lord Hewart C.J. stated the position of English Common Law which has also been adopted in Nigeria that:-

“in order that evidence may amount to corroboration, it must be extraneous to the witness who is to be corroborated, and that a person cannot corroborate himself”,

Furthermore, evidence of one requiring corroboration, cannot serve as corroboration to the evidence of another requiring corroboration. Again, Exhibit “J”- the so- called attestation has been rendered in-consequential particularly with the un-challenged evidence of the 2nd and 3rd Appellants that they did not take the PW1 -the so- called Investigating Police .Officer to Ise -Ekiti where they confessed before Onomejoh and PW1 that they robbed the said Onomejoh.

In the absence of any independent witness, the holding of the Court that the defence of the Appellant was an afterthought without proving the confessional statement and subjecting the evidence to the test laid down in Sykes and Nsofor supra, fell short of expectation since the Court also failed to give reasons for so rejecting the defence proffered by the Appellant.

In line with decided cases, the refusal of the Court to properly evaluate the evidence and the fact that the judgment of the trial Court was unreasonable, unwarranted and cannot be supported having regard to the totality of the evidence particularly that of the prosecution which has been discredited by the Appellant and 2nd Accused, more so as the only independent witnesses to the case were not called, I am bound to conclude that the findings of the Court were not only perverse, but occasioned a miscarriage of justice to the Appellant. This is therefore a proper case for this Court in its appellate jurisdiction to intervene and I so do and set aside the findings of the trial Court which were based solely on the confessional statement of the Appellant.

Throughout the gamut of the judgment, it does not appear that there is any evidence of such quality to establish every material ingredient of the offences of Conspiracy and Armed Robbery except the confessional statement of the Appellant which the Court should believe and even if believed, it failed to adduce any rational basis for such belief. Again, it is clear from the conduct of the learned trial Judge that he did not give due consideration to the evidence of the Appellant especially to his retracted confessional statement and evidence on oath.

Also, there was no evidence which stood alone nor were there any facts which have been ascertained and proved that were consistent with the confessional statement as purported in the submissions of the learned Attorney-General and held by the Court. On the whole, I agree completely with the submissions of the learned Counsel for the Appellant that the learned trial Judge did not properly evaluate the evidence of the Appellant or make clear and appropriate findings on same, thereby occasioning grave miscarriage of justice.

Before rounding up on this issue, I must re-echo the immortal entreaties of Pats-Acholonu, J.S.C of blessed memory on the need for High Court Judges who try facts, since we have no jury system, to systematically and scrupulously subject extra-judicial statements made to police as well as statements made on oath by Accused persons to microscopic scrutiny, especially in cases of this nature where the life of a citizen of this nation is on the firing line or at the behest of the hand man’s noose.

Nigerian human rights record is now the subject of international search light and the snippets we have read and watched over the print and electronic media in recent times are rather too embarrassing for a nation that professes to be the bastion of democracy. Without mincing words, the procedure adopted by the learned trial Judge at the trial of the Appellant who was allegedly hung on the ceiling fan, tortured and shot on the leg and infact witnessed the extra-judicial execution of Sakora, his co-Accused, yet the learned trial Judge did not care a hoot about his defence, surely leaves a sour taste in the mouth. There can never be the much vaunted entrenchment of the rule of law and the eternal growth and development of our jurisprudence if our High Courts persist in these un-wholesome practices of condemning Accused persons on pre-conceived ideas or idiosyncrasies.

On the whole, I resolve Issue Number 2 in favour of the Appellant and hold that the conviction and imposition of death sentence on the Appellant is totally unwarranted and unreasonable and should not stand.

This brings me to issue Number 3 of the Respondents which is the same with Issue Number 7 of the Appellant which questions: “WHETHER THE IMPOSITION OF THE DEATH SENTENCE ON THE APPELLANT UPON HIS CONVICTION BY THE LOWER COURT WAS UNCONSTITUTIONAL?”

On this Issue, the learned Counsel for the Appellant has submitted that the application of the death sentence or penalty on the Appellant by the lower Court was unconstitutional, because Section 1(2)(a) of Armed Robbery and Fire Arms (Special Provisions) Act, 1990, under which the Appellant was sentenced, is contrary to the 1999 Constitution and the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, 1990, otherwise referred herein as “The African Charter on Human and Peoples’ Rights.” He has advanced four alternative grounds in support of his proposition which grounds are stated here under as follows:-

1. The mandatory death penalty constitutes inhuman and degrading punishment in breach of Section 34(1)(a) of the Constitution and Article 5 of the African Charter on Human Rights.
2. It amounts to arbitrary deprivation of life in breach of Section 33 of the Constitution and Article 4 of the African Charter on Human and Peoples’ Rights.
3. Its application gives rise to denial of fair hearing in breach of Section 36(4), of the Constitution and Article 7 of the African Charter on Human and Peoples’ Rights.
4. It amounts to usurpation and ouster of the inherent sentencing power of the Court contrary to Section 4(6) of the constitution and thereby deprives the judiciary of an essential inherent judicial function in violation of the Constitutional principles of the Separation of Powers. It also impugns the independence of the judiciary in violation of the Constitution and Article 26 of the African Charter on Human and Peoples’ Rights.

To buttress the above proposition, the learned Counsel has proffered legal arguments spanning over forty pages and unleashed on us an avalanche of judicial authorities mostly from foreign jurisdictions like the Privy Council, Commonwealth countries and the United States which share similar Constitutional history with Nigeria. Of particular interest to me, is the Nigerian case of Ogugu Vs The State (1994) 9 N.W.L.R (pt. 366) 1 S.C where it was held that the Supreme Court has over the years taken inspiration from comparative jurisprudence in the interpretation and application of the Constitution and will continue to do in so far as there is no domestic precedents. The question now is whether there is no domestic precedent on the interpretation of the provisions relating to the imposition of the death penalty vis-a-vis the fundamental rights provisions of our Constitution.

It is gratifying that the learned Attorney-General has graciously provided us with the answer when he submitted at page 26 of the Respondent’s Brief, citing Nnamah Vs The State (2005) 9 N.W.L.R (pt. 929) 147 at 165 and Onuoha Kalu Vs. The State (1998) 13 N.W.L.R (pt. 583) 531; that the Constitutionality of death penalty or otherwise in Nigerian Criminal Statutes has been laid to rest by the Supreme Court and that as regards capital offences like Murder or Armed Robbery, where the mandatory death penalty is provided in the Statutes creating the offences; the trial Judge had no option or discretion than to toe the line and impose the sentence as prescribed by law where the Accused is found guilty.

Indeed in Onuaha Vs. The State (supra), a similar question as posed by the learned Counsel for the Appellant herein, arose in the Supreme Court although the African Charter on Human and Peoples’ Rights Act and other international treaties entered into by Nigeria was not in issue. There, the Appellant was tried and sentenced to death for murder of which the Statute creating the offence, prescribes the death penalty and his appeal to the Court of Appeal was dismissed. On further appeal to the Supreme Court, Appellant sought leave to raise the issue of Constitutionality of the imposition of death sentence in Nigeria, just as the Appellant in this case has done .

A full complement of the Supreme Court coram Uwais, C.J.N (Presiding), with Belgore, Wali, Kutigi, Ogundare, Ogwuegbu and Igu J.J..S.C; in their resolution of the issue copiously considered provisions of the 1979 Constitution which are in pari materia with Sections 33, 34(1) (a), 36 (4) and 4 (6) of the 1999 Constitution now in contention. For instance, section 33(1) of the 1999 Constitution which provides that:- “Every person has a right to life, save in the execution of the sentence of a Court in respect of criminal offence of which he has been found guilty in Nigeria”, is the exact replica of Section 30(1) of the 1979 Constitution.

Again Section 34(1)(a) of the 1999 Constitution is replicated from Section 31(1)(a) of the 1979 Constitution which states that every person shall be entitled to respect for the dignity of his person shall and accordingly no person all be subjected to torture or degrading treatment.

Section 36(4) of the 1999 Constitution deals with fair hearing which is not relevant here as a trial must have been conducted before conviction and except where the trial as in the case at hand does not conform with laid down procedures or tenets for the hearing of Criminal trials, Section 36(4) of the Constitution cannot be invoked to set aside a conviction and sentence of death. I cannot also see my way though the relevance of Section 4(6) of the 1999 Constitution which provides that the legislative powers shall be vested in the House of Assembly of the State.

Talking about proposition Number 4, the judicial powers of the Federation have been vested in the Federal Courts by Section 6(1) and those of the States are guaranteed by Section 6(2) of the 1999 Constitution. Above all, the extent of the powers of the Courts as enshrined in the Constitution have been spelt out in Section 6(6)(a) – (c) and in particular, subsection 6(a) states unequivocally that the judicial powers so vested:-

“(a) Shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law. ”

With the greatest respect to the learned Counsel for the Appellant, imposition of the death penalty is the exercise of the Court’s inherent powers to mete out sanctions. It is therefore the height of illogicality to postulate as the learned counsel has done that the imposition of the death sentence tantamount to a deprivation of the inherent function of the court, violation of the Constitutional principle of separation of powers and that it impinges on the independence of the judiciary, not talk of Article 26 of the African Charter on Human and Peoples’ Rights. Nothing can be further from the truth.

Be that as it may, the eminent jurists of the Apex Court in the Onuoha Kalu case had held on Section 30(1) of the 1979 Constitution that the passing of death sentence is an exception to the general rule that no man should be deprived of his life. On Section 31(1) (a) which relates to torture and inhuman and degrading treatment, their Lordships also held that the passing of death sentence does not amount to degrading and in human treatment and therefore not inconsistent with section 31(1)(a) of the 1979 Constitution. On the citation of foreign authorities Uwais, C.J.N came out clearly at page 604 paras. C- D of the Report to say that:-

“Useful as those decisions might be as persuasive authorities, with respect, I do not find them applicable to the present case. The position in Nigeria is very clear. Death sentence is a reality. It is provided for in our Criminal laws including Section 319 Subsection (1) of the Criminal Code of Lagos State. Our Constitution also recognizes the death sentence – see in particular Sections 31(1), 213(1) (d) and 220(1)(e) thereof Therefore, the sentence of death in itself cannot be degrading and inhuman as envisaged by Section 31 subsection 1(a) of the Constitution . The Constitution is not to approbate and reprobate. Were it to be so, we are to interpret it in such a manner that its objects and purposes should not be defeated. See Nafiu Rabiu Vs. The State (1980) NSCC 291; (1981) 2 NCLR 293”.

1 adopt the dictum of the emeritus Chief of Justice of Nigeria mutatis mutandis in this appeal and would only wish to add that in line with the above decision, section 1(2) (a) of the Armed Robbery and Fire Arms (Special Provisions) Act, does not violate sections 4(6), 33, 34(1) (a), and 36(4) of the 1999 Constitution as in particular section 33(1) recognizes the sanctity and inviolability of the human person by providing that no person shall be deprived intentionally of his life, save in execution of a sentence of a court of law in respect of a criminal offence of which he has been found guilty. The power to impose sanction has been guaranteed by section 6 (6)(a) of the same Constitution.

Also section 34(1) (a) can never be violated by such sentence since the imposition of death sentence as can be seen from the decision of the Supreme Court in the case above cited cannot amount to torture, degrading and inhuman treatment. I am a strong advocate of the imposition of death sentence where, for instance, a person intentionally takes another’s life in the course of armed robbery. Therefore, armed robbery per se without the taking of the victim’s life or inflicting grievous bodily harm on the victim should not ordinarily attract the death penalty. Care must however be taken not to equate Nigeria with countries of different cultural, sociological and sophisticated back grounds as reflected in the foreign authorities like Nigeria, their national philosophy and sociological peculiarities dictate the nature of legislation enacted for their people and the nature of sentence provided for in fair respective criminal legislation.

For now, I am of the candid opinion that Nigeria is not ripe for the total abolition of both sentence as provided for under the Armed Robbery and Fire Arms Act. Let the human rights advocates engage themselves in more serious ventures like the improvement of the squalid state of our rural dwellers and the scandalous poverty of the masses of this country in the midst of plenty while a few individuals who have cornered the wealth of this nation through political and economic patronage and corruption are swimming in affluence with their families and cronies.

The various criminal laws of the land have provided adequate safeguards for mitigation of even the death sentence where life is taken by another in unforeseen circumstances like accidents, mistakes or other involuntary acts. In any case, apart from the fact that the Supreme had given the final say on the efficacy of the death sentence, the question of its abolition vel non is both political and Constitutional and the debate is ongoing in the academia and Human Rights fora.

As I said in Appeal No. CA/IL/C.31/2006, this is an appellate court which is not seised with the original jurisdiction to pronounce on the constitutionality vel non of the imposition of death sentence by the Armed Robbery and Fire Arms Act, and/or the violation thereof nay the African Charter on Human and Peoples’ Rights or other International Treaties entered into by Nigeria. Learned Counsel may do well to initiate proceedings in the High Court to challenge the offensive provisions of Cap. 398 Laws of the Federation 1990 and if the court gives its opinion, we can be availed of same either by way of Appeal or case stated or in the alternative proceeds to the National Assembly with a bill to that effect. See sections 46 and 240 of the Constitution which respectively provide for the Special Jurisdiction of the High Court to hear allegations of the breach of any of the provisions of Chapter IV of the Constitution dealing with Fundamental Rights and the exclusive jurisdiction of the Court of Appeal to hear and determine appeals from the High Courts and other courts of concurrent jurisdictions.

Of particular importance to this case, is section 241(1) (a)-(e) of the Constitution which states that an appeal shall lie as of right in the cases enumerated in the sub-paragraphs of subsection (1) (a) – (e) which include final decisions of a High Court sitting alone in Criminal proceedings where the ground of appeal involves questions of law; decisions in any civil or criminal proceedings; decisions in any civil or criminal proceedings on questions as to the interpretation of the Constitution; decisions in any civil or criminal proceedings on questions as to whether any of the provisions of chapter IV of the Constitution had been, is taking or is likely to be contravened in relation to any person; and decisions in any criminal proceedings on questions which the Federal High Court or a High Court has imposed a sentence of deed as in this appeal).

From the foregoing provisions, it is clear that the original jurisdiction of this Court is expressly ousted in criminal proceedings on the question as to the interpretation of the Constitution which the Learned Counsel for the Appellant has called on us to so exercise. Thus as was rightly decided by Iguh J.S.C. in his contribution to the Judgment in Onuoha Kalu vs. The State (supra) at page 597 of the Report.

Although the arguments against capital punishment may be proper basis for legislative abolition of death penalty the authority for any action abolishing the death penalty is clearly not a matter for the law courts. Nor have I found myself able to hold that this court is entitled to repeal or revoke laws ostensibly based upon notions of public policy or sanction simply because such laws, for one reason or the other, are said to be unacceptable to a group of persons or a section of the society. Such repeal or revocation is within the exclusive jurisdiction of the legislature except; of course; such laws are attacked by due process of law on grounds such as unconstitutionality, illegality or the like.

It is submitted that even if such laws are attacked on grounds of unconstitutionality, illegality or the like, this is not the appropriate venue for the appellant to commence such attack in view of the provisions of the Constitution. In this respect I agree with the submissions of the Learned Attorney General on behalf the Respondent that the issue of Constitutionality of the death penalty as provided by the Armed Robbery and Fire Arms Act, 1990 and the perceived violation of the fundamental rights of the Appellant and the African Charter on Human and Peoples’ Rights was wrongly raised in this Court for the first time. Also since the issue was never raised before the trial court which is the appropriate court vested with original jurisdiction as provided by Section 46 of the Constitution, the jurisdiction of this court cannot be extended to accommodate the determination of this issue.

As was rightly held by Adio J.S.C. in Ogugu Vs. The State (1994) 9 NWLR (Pt. 366) 1 at 48 – 49; if the law provides for the commencement of certain proceedings in respect of a particular cause of action in a particular manner and from a particular court, it would be wrong as the Appellant has done in this appeal to commence such proceedings by any other method or any other court, It is also trite that the legal consequence of commencing proceedings in a wrong venue is that the court in which such proceedings was commenced is without jurisdiction and the proceeding is null and void no matter how well conducted. See Madukolu Vs. Nkemdilim (1962) 2 SCNLR 341 and Niger Care Dev. Co. Ltd. Vs. A.S.W.B. (2008) 9 NWLR (Pt. 1093) 498 at 521.

Now, all authorities are expected to enforce the provisions of the African Charter on Human and Peoples’ Rights. However, the legal position is that such an action ought to be commenced by way of the Fundamental Rights (Enforcement) Procedure either in the appropriate State High or Federal High Court, by virtue of sections 33, 34(1)(a), 36(4) and 46 of the 1999 Constitution and Article 26 of the African Charter (supra), Ogugu v. The State (1994) 9 NWLR (pt. 366) 1 at 48 – 49 or by way writ of summons or indeed, through any NLR 351.

Finally, the Learned Counsel for the Appellant has invited this court to declare Section 1(2) (a) of the Robbery and Fire Arms Act, 1990, unconstitutional and the death sentence passed on the Appellant as invalid. We refuse to attend to such invitation as we have no such powers. We also do not have powers to commute the death sentence to ten years imprisonment as the exercise of such powers will be null and void and un-constitutional.

On the whole I resolve this issue against the Appellant. In essence this appeal shall succeed in part. I therefore order as follows that:-

The charge is accordingly dismissed and Appellant is hereby discharged and acquitted.

The Judgment of Ekiti High Court per Honourable Justice Kayode Bamishile sitting at Ado-Ekiti which Judgment was delivered on the 18th day of June, 2002, is hereby set aside.

The death sentence passed on the Appellant is hereby set aside and I enter a verdict of not guilty of the charge of conspiracy and Armed Robbery against the said Appellant.

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Other Citations: (2009)LCN/3118(CA)