Edet Asuquo Bassey V. The State (2008)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
This is an appeal against the judgment of Hon. Justice E. D. U. Idiong who was then the Tribunal Chairman sitting at the Robbery and Firearms Special Tribunal, holden at Ikot Ekpene, Akwa Ibom State. It was delivered on 26th May, 1999 convicting and sentencing the appellant to death.
The appellant was originally arraigned as the 5th accused person along with five other accused persons viz. Etim Edet Oboho, Effiong Etim Sunday, Joseph Edet Ekpo, Etim Asuquo Enobiak and Okon Dan Osung who were 1st, 2nd, 3rd, 4th and 6th accused respectively. The accused were charged with the offence of Armed Robbery contrary to Section 1(2) (a) of the Robbery and Firearms (Special Provisions Decree NO.5 of 1984 (now Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, 2004).
The charge which was later amended reads as follows:
“STATEMENT OF OFFENCE
ARMED ROBBERY contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions Decree NO.5 of 1984).
PARTICULARS OF OFFENCE
ETIM EDET OBOHO, EFFIONG ETIM SUNDAY, JOSEPT EDET EKPO, ETIM ASUQUO ENOBIAK, EDET ASUQUO BASSEY and OKON DAN OSUNG on or about the 17th day of June, 1993 at Oron in Oron Judicial Division while armed with dangerous weapons to wit-matchet and pen knife robbed Okafor Ndukwe Anya and Uche Emole Uba of the sum of N220, 284.00 (Two Hundred and Twenty Thousand, Two Hundred and Eighty-Four Naira), property of one Sunday Ikena.”
All the six accused persons pleaded not guilty to the one count charge of armed robbery.
On 19th November, 1996, it was reported to the Tribunal that the 1st, 2nd and 4th accused persons were dead and their death certificates were tendered and admitted in evidence. Consequent upon this development, the name of the 1st, 2nd and 4th accused was struck out from the charge sheet. A fresh plea was taken from the surviving accused persons and they all pleaded not guilty to the charge. Thereafter the Prosecution opened its case by calling 4 witnesses who testified. Some statements made by two of the witnesses were admitted in evidence as well as the statements of the accused. Also some motor cycles allegedly bought from the proceeds of the robbery were also tendered and admitted in evidence. Thereafter the prosecution closed its case and each of the accused testified in person. Joseph Edet Ekpo’s wife testified on behalf of her husband as DW2 while the appellant’s father gave evidence for him as DW4. The defence closed their case on 17/5/99 and in a reserved judgment delivered on 26/5/99, all the accused were found guilty of the offence of the robbery charge and sentenced to death. It is against this decision that the appellant appealed against his conviction and sentence in his Notice of Appeal dated 26th July, 2006 containing three grounds of appeal from which the following three issues were formulated for determination:
- Whether the Robbery and Firearms Tribunal was right in convicting and sentencing the appellant to death for the offence of Armed Robbery solely on the alleged confessional statement of the appellant without testing the veracity of the confessional statement.
- Whether the prosecution had proved its case beyond reasonable doubt having regard to the material contradictions in the evidence, of the prosecution witnesses in respect of the identity of the appellant.
- Whether there was proof before the Honourable Tribunal that the incident of 17/6/93 was an armed robbery incident.
The State adopted the issues formulated in the appellant’s brief. It is to be observed that the respondent erroneously stated that the Appellant formulated 4 issues for determination without identifying the 4th issue. Arguments in issue 1 were repeated in issue 2. Learned counsel for the appellant referred to Exhs. 6, 7 and 8 which were signed and the oral testimony of the appellant in which he said he thumb-printed the statement he made to the police and the Tribunal’s reliance on Exhibit ‘7’ to convict him and argued that although it is settled law that a confessional statement alone is sufficient to ground a conviction once the court is satisfied with the truth of the confession as decided in YUSUFU V. THE STATE (1976) 6 SC 167, nevertheless as a matter of practice, the court normally requires some evidence in addition to a confessional statement which makes the confessional statement probable that same is true before it can rely on it in convicting the accused. Such confessional statement must pass the following tests before it can be relied upon to convict the accused person:
a) Whether there is evidence outside the confessional statement to show that it is true.
b) Whether the confessional statement is in fact corroborated.
c) Whether the statement could be tested as true.
d) Whether the accused person really had the opportunity of committing the offence charged.
e) Whether in the surrounding circumstances of the case, the confessional statement of the accused was possible; and
f) Whether the confession was consistent with other facts which were ascertained and proved at the trial.
Learned counsel argued that there is no evidence outside Exhibits 6, 7 and 8 to show that the confession is true. He pointed to contradictions in the testimonies of the Prosecution witnesses which led to the failure of PW1 and PW2 in identifying the appellant as the robber and since the appellant is an illiterate who cannot read or write and only understands some Pidgin English, the Tribunal Chairman erred when he considered only Exh. ‘7’ in convicting him.
While agreeing with learned counsel for the appellant’s submission that a court must satisfy itself of the truth of a confession before convicting on it, learned counsel for the respondent wondered whether Exh. ‘7’ is rendered inadmissible in evidence on the mere fact that the appellant denied signing it but thumb printed the statement he allegedly made. He submitted that one of the conditions for determining the veracity or otherwise of a confessional statement have passed the test, a retraction of or denial by an accused person of his having made such a statement does not ipso facto render it inadmissible in evidence and the trial court can act on it. While conceding that the prosecution witnesses failed to identify the appellant during the identification parade, the confessional statement made by the appellant and the evidence of PW1 and PW2 fixed the appellant to be at the scene of crime and so any contradictions contained in the evidence of PW1 and PW2 regarding the identity of the appellant are not material and so do not cast doubt upon the guilt of the appellant.
The conviction of the appellant was based solely on Exh. ‘7’ which is said to be a confession. Section 27 of the Evidence Act defines a confession as “an admission made at any time by a person charged With a crime stating or suggesting that he committed the offence charged and where the confession is voluntary it is deemed a relevant fact against the person who makes it.” Exhibit ‘7’ is one of three statements which the appellant is said to have made on 4/11/93. The statement which was tendered in evidence as Exh. “6′ was recorded on 2/11/93 while Exh. ‘8’ recorded on 23/10/93 adopted another one which he made on 21/10/93 which was not tendered in evidence. Exh. ‘7’ is an additional statement to the one the appellant made on 26/10/93. That statement too is not in evidence. In Exh. ‘7’ the appellant is recorded as having stated as follows:
“In addition to my statement which I made to the police on 26/10/93, I am now saying that I took part in the armed robbery incident that happened at Oron on 17/6/93 at about 5.00p.m. I was at Aba Street, Oron, when one man whom I later know his name to be Mr. Archibong Okon invited me to his house at No. 113 Oron He started telling me that there is a business which he wants me to carry out with my friends. I went and invited Joseph Ekpo, Victor, surname unknown and it was Victor who invited Okon Dan Osung given the number four persons, we all went to Archibong’s house. As we reach he brought another hot drink for us to drink. From there he started telling us that there was a 504 Saloon that stop with Customs at Ikot Umoessin Check Point. From there heself (sic), Archibong, myself Edet Asuquo Bassey, Joseph Ekpo, Etim Enubuak and Okon Dan Osung we all went to Anwanessin Junction and wait for the vehicle. We were waiting for the vehicle when the vehicle arrived. Archibong directed us to go to the front of the vehicle that any bag we saw there that we should snatch it, it contains money. It was Joseph Ekpo who snatched the bag that contain money, we all ran away through Spring Road, Oron to Archibong’s house while Archibong join Oron Road. In Archibong’s house, we handed the bag to him after entering the bedroom and he came out and told us that the money was N150, 000.00 (One Hundred and Fifty Thousand Naira). He then gave four of us N50, 000.00 (Fifty Thousand Naira). Okon Dan Osung collected the money we went to Convent Primary School, Oron and shared the money as follows:
Myself received N10, 000.00, Joseph Ekpo, N15, 000.00, Okon Dan Osung N15, 000.00 while Etim Enubak received N10, 000.00. I used my own N10, 000.00 to obtain a shade (sic) at Ibaka Town to trade second handed cloth. I opened the shade (sic) on 24/6/93. The name of my Landlord was one Patrick Akansor. It was on 7th of July fire entered into my shade and destroyed all my goods. That is all.”
The appellant was taken to R. C. Anyanwu, ASP on 25/11/93 who endorsed the statement with a certificate that he read out the confessional statement made by Edet Asuquo Bassey an armed robbery suspect and he agreed to have made the statement.
In his evidence the appellant denied robbing Okafor Ndukwe Anya of the sum of N79,000.00.While admitting making a statement to the Police at Oron Police Station which he thumb printed he said he did not know why he was before the Tribunal. The appellant’s father, Asuquo Bassey who testified as DW4 stated that the appellant was in his (DW4’s) house on 17/6/93 when the Police arrested him and vouched that the appellant did not rob Okafor Ndukwe Anya of the sum of N79, 000.00.
In the appellant’s brief which was settled by Monday Udoh, Esq. of counsel, it was argued that since the appellant is an illiterate who cannot read and write but understood only Pidgin English, the Tribunal Chairman ought to have considered all the alleged confessional statements with a view to determining whether they were actually made by the appellant moreso since Exhs. ‘6’ and ‘7’ were written in real English while Exh. ‘8’ was written in Pidgin English. Furthermore, since appellant’s counsel objected to the admissibility of the alleged confessional statement dated 2/11/93 during trial because the statement coupled with the fact that the appellant thumb printed the one he made as he was a stark illiterate, the Tribunal ought to have concluded that the appellant did not make the alleged confessional statement because it was signed and not thumb printed as maintained by the appellant. No objection was taken on the admissibility of Exhibit ‘7’ which was recorded by Corporal Matthew Uzo. There was no allegation of the appellant being forced, threatened or induced to make Exhs. ‘6’, ‘7’ and ‘8’. I agree with the submission of Chief Victor Iyanam, Hon. Attorney-General of Akwa Ibom State that a retraction of or denial by an accused person of his having made the statement does not ipso facto render it inadmissible in evidence or that it cannot be acted upon by the court once the confessional statement has passed the veracity test laid down in R V. SYKES (1913) 8 CAR 233 which was adopted in PHILIP KANU v THE KING (1952) 14 WACA 30 and has been followed in many cases such as PAUL ONOCHIE & ORS v THE REPUBLIC (1966) NMLR 307; YESUFU v THE STATE (1976) 6SC 167; GODWIN IKPASA V. BENDEL STATE (1981) 9 SC 7; EGBOGHONOME V. THE STATE (1993) 7 NWLR (Pt. 306) 382 and EDAMINE V. THE STATE (1996) 3 NWLR (Pt. 438) 530. It is however desirable to have outside the accused’s confession to the police, some evidence, be it slight of the circumstances which make it probable that the confession was true. In EGBOGHONOME V. THE STATE supra, a full court was empanelled which reviewed and overruled the decision in ASANYA v STATE (1991) 3 NWLR (Pt. 180) 422 (also a full court) which decided following OLADEJO v STATE (1987) 3 NWLR (Pt. 61) 419 that where a witness (here an accused person) makes a statement which is inconsistent with his testimony, such testimony is to be treated as unreliable while the statement is not “regarded as evidence upon which the court can act. It was held that the inconsistency rule governs the evidence of witnesses who have made previous statement, sworn or unsworn which are contrary with evidence given at the trial but does not extend to the retracted statement of an accused who had earlier confessed to the commission of the crime in his extrajudicial statement to the police. The rational as explained by Olatawura, JSC, is that it will be an escape route freely taken by an accused person without any hindrance to escape from justice and it will not be in the interest of the society to allow a man who has confessed to his crime to walk out of court a free man simply because he had a change of mind which renders the whole trial a mockery. In his words, “it will be dangerous to apply the principle to extrajudicial confession of accused persons as it would open the floodgate of retraction of all statements made by an accused person before police officers. Karibi – Whyte, JSC, however disagreed and in his dissenting judgment on the issue was of the view that a retracted statement whether made by a witness for the prosecution or by the accused in his defence should be treated in the same way namely that the decision in ASANYA should stay. Since ASANYA was overruled and the decision said to have been reached per incuriam by the majority of members on the panel (6 – 1) the law as it currently stands is that an accused who confesses to the commission of an offence in his extra-judicial statement to the Police can still, not withstanding that he resiled from the statement in his testimony in court, be convicted on the confession, if the confession is found to be true and was not made under duress or promise as to render the statement inadmissible. Exhibit ‘7’ is a confessional statement in which the appellant admitted to have participated in the robbery. The appellant did not dispute making the statement. His only point of contention is that he thumb printed the statement. It is therefore the weight that should be attached to Exh. ‘7’ and not its admissibility. Even if there was contradiction in the evidence of the prosecution regarding the identification of the accused, this will in no way affect the admissibility of the statement.
In reviewing the evidence adduced at the trial, the learned trial Judge found that Exhs. ‘4’ ‘7’ and ‘9’ were confessional statements and there was nothing to suggest that they were not made voluntarily and so even if each of the accused persons had retracted his statement, the retraction did not make the statements inadmissible and that an accused person can be convicted on the basis of his confession alone. The learned trial judge further stated that the accused may also be convicted where his confession is consistent with other ascertained facts which have been proved. In Exh. ‘7’ the appellant stated that he used the N10,000.00 that he received in paying for a stall at Ibaka Town and deals in second hand clothes but fire gutted the stall and all the goods in it were destroyed. His father who testified as DW4 confirmed that the appellant was trading in second hand clothes and that he read up to Elementary Five. This therefore debunks the claim by the appellant that he was a stark illiterate who could only thumb print and was not capable of signing his signature. Apart from this, his comrades in the robbery used their own share of the proceeds from the robbery to buy motor cycles which were recovered during investigation. Although the recovery of the motor cycles would only count against those who bought the motor cycles, this fact will lend credence to the claim by the appellant that he used the money he got from the robbery in paying for the stall. After the recording of Exhibit ‘7’, the appellant was taken before R. C. Anyanwu A.S.P. on 23/11/93 and when the statement was read to the appellant, he agreed that he made the statement before the ASP endorsed his signature.
From all the surrounding circumstances, the Tribunal was right to hold that the accused’s denial of the offence was of no consequence. And the fact that the appellant’s confession was direct and voluntary was sufficient to warrant a conviction without any corroborative evidence. I see no reason to disturb the conviction.
The next issue is whether this was armed robbery or not. Section 1 of the Robbery and Firearms (Special Provisions) Act states-
“1(1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty-one years.
(2) If-
any offender mentioned in subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or
b) at or immediately after the time of the robbery, the said offender wounds or uses any personal violence to any person, the offender shall be liable upon conviction under this Act to be sentenced to death.
(3) The sentence of death imposed under this section may be executed by hanging the offender by the neck until he be dead or by causing such offender to suffer death by firing squad as the Governor may direct.”
The aggravated form of robbery i.e. one in which arms are used and the victim of the robbery is injured carries the death penalty upon conviction but if it is a simple case of robbery, the person convicted gets a sentence of 21 years imprisonment.
The Tribunal found that the evidence about the robbers being armed with matchets, daggers and knives was not contradicted and so accepted and believed it notwithstanding the evidence by DW1 in Exhibit ‘4’ that none of the robbers was armed. Based on this, the Tribunal held that it was armed robbery and so was left with no option but to impose the death penalty. I do not agree that this piece of evidence went unchallenged. The initial charge alleged that the 1st and 2nd accused that were reported to have died were armed with a matchet and pen knife. When PW1 gave his evidence in-chief, he said at page 8 lines 1 – 6:
“The 5th accused brought out a matchet from his back and showed me. On seeing the matchet, I released the bag to them. The boy who gave me a matchet cut and ran away with the bag is not in this tribunal. The 3rd and 6th accused then went to the front of the car and held my brother Okafor Ndukwe. By holding my brother, I mean they robbed my brother of money.”
PW 2 in his testimony at page 11 lines 12 -15 stated as follows:
“When I looked back I saw these people struggling with Uche Emole for possession of the bag. When the struggling was going on two cars came to pass and flashed their lights and so I was able to see the faces of those struggling with Uche for Uche’s bag.” He continued on the same page at lines 19 – 21 thus:
“I saw all accused persons but one holding matchets while one of them held a pen knife.”
While PW1 maintained in is statement which was recorded on 26/10/93 and tendered as Exhibit ‘1’ that “about 7 men emerged from both sides of the road with matchets and daggers in their hands and then ordered myself and my brother Okafor to surrender everything that was in our hands when I tried to resist their order one of them stab me on my face and my side of the body”, PW 2 on the other hand whose statement, Exhibit 2 was recorded on 4/11/93 said he did not see any matchet or pen knife on those who accosted them and took away their bags. This was what he stated:-
“When the driver stopped the vehicle Uche’s bag was inside the booth I asked him to go and carry the bag out of the booth for the women not mistakenly carry it away. As Uche Uba went, it was the time these seven men came and started struggling with Uche and his bag; they throw him on the ground and snatched away his bag. Three men among the same griped (sic) me and snatched my own bag, all ran away as they snatched the two bags I did not see any matchet or pen knife on them.” (underlining mine for emphasis).
Certainly the event that took place on 17/6/93 was fresher in his memory when he gave his statement on 4/11/93 than on 19/11/96 (three years after) when he testified. I find that there is a material contradiction between PW2’s statement and his testimony on the crucial point on whether the robbers were armed or not. No explanation has been given on this clear contradiction which must be resolved in favour of the appellant. While the robbery took place on 17/6/93, it cannot be said with any degree of certainty that the accused were armed with any offensive weapons. The robbery therefore was a simple robbery and not an aggravated robbery. Certainly the accused did not carry any firearms. The sentence of death passed on the appellant therefore cannot stand.
The conviction stands but the sentence is quashed. It is substituted with 21 years imprisonment from the date the appellant was arrested.
Other Citations: (2008)LCN/2844(CA)
