Ikechukwu Okoh V. The State (2014)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Abuja Division (the lower court) delivered on 11/7/2008 affirming the judgment of the High Court of Niger State, sitting at Minna (the trial court) delivered on 19/7/2005 convicting and sentencing the appellant to death for Conspiracy to commit Armed Robbery and Armed Robbery.

The appellant was initially charged before the trial court along with seven others with the offence of armed robbery, punishable under Section 1 (2) of the Robbery and Firearms (Special Provisions) Decree 1984. The charge was later amended and the accused persons were charged with criminal conspiracy and culpable homicide punishable with death contrary to Sections 97 (1) and 221 (b) of the Penal Code respectively. Subsequently the prosecution withdrew the charges against the then 5th accused, having died in prison while awaiting trial. It also obtained leave to stay the proceedings against the 3rd and 4th accused persons pending the time they could be brought to court. The charge was amended yet again and the remaining five accused persons, including the appellant herein, were charged with Conspiracy and Armed robbery contrary to Sections 5 (b) and 2 (a) of the Robbery and Firearms (Special Provisions) Act 1984. At the conclusion of the prosecution’s case, a no case submission was made on behalf of the accused persons. It was upheld in respect of the 2nd and 5th accused who were thereupon discharged and acquitted. The submission in respect of the 3rd and 4th accused was rejected. The 1st, 3rd and 4th accused were put upon their defence. The appellant herein was the 4th accused. They were all found guilty on both counts of the charge, convicted and sentenced to death.

The appellant was dissatisfied with the decision and appealed to the lower court. His appeal was dismissed on 11/7/2008 hence the instant appeal. The notice of appeal dated 26/8/2008 contains five grounds of appeal.

The parties duly filed and exchanged their respective briefs of argument in accordance with the rules of this court. At the hearing of the appeal on 16/1/2014, OLUSOLA LANIYAN ESQ, learned counsel for the appellant adopted and relied on the appellant’s brief, which was filed on 30/5/2013 but deemed filed on 16/1/2014. He informed the court that he had abandoned grounds 1 – 4 of the notice of appeal and the issues formulated thereon. He formulated a sole issue for determination from ground 5. He urged the court to allow the appeal and set aside the appellant’s conviction and sentence. OLUMUYIWA AKINBORO ESQ. adopted and relied on the respondents brief filed on 2/7/13 but deemed properly filed and served on 16/1/2014. He urged the court to dismiss the appeal and affirm the judgment of the lower court.

The appellant formulated a sole issue for determination, which was adopted by the respondent, as follows:

“Whether the learned Justices of the Court of Appeal were right in upholding the judgment of the trial court that the prosecution proved its case beyond reasonable doubt.”

Before delving into the merits of the appeal, it is appropriate at this stage to summarize the facts that gave rise thereto. The prosecution’s case was that on the 6th day of April, 1996, at Suleja in Niger State, the appellant along with the other accused persons conspired amongst themselves to rob and did rob one Alhaji Zakari Mohammed (the deceased) of his video machine, while armed with a knife, which resulted in his death.

The wife and son of the deceased testified as PW1 and PW2 respectively. They stated that on the fateful day, some people came to their house at Suleja at about 3.30 am and started beating the deceased and asking him for money. They took away their video machine. PW2 stated that one of the robbers ran to his father’s room and removed something contained in a black leather bag from a box in the room. He identified the 1st accused person who is his cousin as the person who removed the item. PW1 and PW2 testified that the deceased was injured and covered with blood with cuts on his abdomen, hand and back. He later died from the injuries sustained in the incident.

During the course of their investigation the Police arrested the appellant and the other accused persons. The appellant made an extra-judicial statement to the Police, which was tendered at the trial and marked Exhibit D. Neither the appellant nor his counsel objected to its admissibility. In his defence, the appellant testified on his own behalf and did not call any witness. His denied any involvement in the robbery incident. He also denied making any statement to the police. At the conclusion of the trial, and after listening to the addresses of counsel, the trial court, in a considered judgment found the appellant guilty of the offences charged and convicted and sentenced him accordingly.

In arguing the appeal, MR. LANIYAN, learned counsel for the appellant submitted that in criminal cases, the burden of proving the guilt of any person is always on the prosecution and never shifts. Referring to S.138 of the Evidence Act, he submitted that the standard of proof in criminal cases is proof beyond reasonable doubt. He submitted further that the burden of proof on the prosecution never shifts. He referred to S.36 (5) of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended). He submitted that proof beyond reasonable doubt means that every ingredient of the offence must be proved beyond reasonable doubt. He relied on: Ede V. Federal Republic of Nigeria (2001) 1 NWLR (Pt.695) 502 @ 511 D.

He submitted that in order to secure a conviction for the offence of Conspiracy to commit armed robbery contrary to S. 5 (b) of the Robbery and Firearms (Special Provisions) Act 1984, the prosecution must prove beyond reasonable doubt that:

(a) There was an agreement between two or more or all the accused persons to do or cause to be done some illegal act or a legal act by illegal means.

(b) That besides the agreement, some act was done by one or more of the accused persons in furtherance of the agreement.

(c) That each of the accused participated in the conspiracy.

He referred to: Kaza v. State (2008) 7 NWLR (Pt.1085) 125 @ 176 E – H; 154 C – E: Afolahan V. State (2012) 13 NWLR (Pt.1316) 185 @ 208 – 209 F – A. He submitted that for the offence of armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1984, the prosecution must prove the following ingredients beyond reasonable doubt:

i. That there was a robbery or series of robberies.

ii. Each robbery was an armed robbery; and

iii. The accused was one of those that participated in the robbery.

He referred to: Bello V. The State (2007) 10 NWLR (Pt.1043) 564 @ 588 – 589 G – A; Olayinka V. The State (2007) 9 NWLR (Pt.1040) 561 @ 582 – 583 G – A; Oladipupo V. The State (2013) 1 NWLR (Pt. 1334) 68 @ 96 A – C. He submitted further that the prosecution must prove, in addition to the above ingredients, that the accused at or immediately after, the time of the robbery inflicted wounds or used any personal violence on any person.

Learned counsel contended that the prosecution failed to prove the ingredients of the offences of Conspiracy and Armed robbery against the appellant as enumerated above. He submitted that the prosecution relied heavily on the appellant’s alleged confessional statement. He is of the view that the statement did not qualify as a confession because the appellant did not admit all the ingredients of the offences with which he was charged. He referred to: Nwobe V. The State (2000) 11 NWLR (Pt.678) 271 @ 279. He submitted that before a conviction could be founded upon a retracted confession, it is desirable to have some evidence outside the confession, which would make it possible that the confession is true. He submitted that PW1 and PW2 who were the only eyewitnesses to the incident did not identify the Appellant as one of the robbers that came to their house on that fateful night. He submitted that since the appellant denied making or signing the alleged confessional statement at the trial, the trial court ought to have looked for other evidence outside the confession, which showed that the confession was probably true. He maintained that there was none. He submitted that the prosecution was unable to link the appellant to the crime scene.

While conceding that a court can convict on the confessional statement of an accused person alone, he submitted that it would be unsafe to sustain a conviction in the absence of evidence outside it that would make it probable that the confession was true. He relied on: Akpan v. State (1992) 6 NWLR (Pt.248) 239. He referred to the guiding factors laid down in a plethora of decisions on what the court must take into account before it can convict on a retracted confessional statement. He referred to: Demo Oseni V. The State (2012) 5 NWLR (Pt.1293) 351 @ 374 C – F; Akpa V. The State (2007) 2 NWLR (Pt.1019) 500 @ 515 – 516 H – C: Uwaobue v. The State (2007) 6 NWLR (Pt.1031) 606; Dawa V. The State (1980) 8 – 11 SC 236 @ 267 – 268; Ojegele V. The State (1988) 1 NWLR (pt.71) 414 @ 425 E – G; Nsofor V. The State (2004) 18 NWLR (Pt.905) 292 @ 310 – 311 E – A; R v. Sykes (1913) 8 CAR 233; Ikpo V. The State (1995) 9 NWLR (Pt.421) 540 @ 554-555 F-A.

Learned counsel submitted that the trial court failed to test the correctness of the confessional statement before relying on it to convict the appellant and that the lower court was wrong to have upheld the judgment of the trial court based on it. He submitted that the lower court ought to have resolved the issue in the appellant’s favour. He referred to: Ikpo V. The State (1995) 9 NWLR (Pt.421) 540. He contended that there was nothing outside Exhibit “D” to show that the appellant committed any crime or conspired with the other accused persons to commit any crime. He contended that the facts contained in Exhibit D along with the testimony of the prosecution witnesses, are not true as far as they could be tested. He submitted that even though Exhibit “D” was admitted in evidence, the appellant never adopted it and in fact disclaimed it and denied making or signing any statement. He submitted that this denial by the appellant was neither contradicted, nor successfully challenged by the prosecution.

While conceding that there are two concurrent findings of fact by the two lower courts that the prosecution proved its case beyond reasonable doubt learned counsel submitted that the court could disturb the concurrent findings where such findings are perverse and based on substantial error. He maintained that the learned trial judge ought to have warned himself of the need to look for corroborative evidence outside the confessional statement in order to test the truth of the confession.

He was of the view that the lower court was swayed by Exhibit D in which the appellant claimed to have been among the robbers that carried out the robbery operation. He argued that since the appellant denied making the statement and the prosecution failed to cross examine him on the inconsistency between his evidence at the trial court and the extra judicial statement, it was not open to the trial court or the lower to rely on it without corroboration. He urged the court to resolve this issue in the appellant’s favour and allow the appeal.

In reaction to the above submissions, MR. AKINBORO, learned counsel for the respondent agreed with learned counsel for the appellant that the prosecution is bound to prove its case against the appellant beyond reasonable doubt. He however argued that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. He submitted that where the evidence is so strong against an accused person as to leave only a remote possibility in his favour, the case is proved beyond reasonable doubt. He referred to: Odili V. The State (1977) 4 SC 1; Sadau V. State (1968) 1 ANLR; Obiako V. The State (2002) 10 NWLR (Pt.776) 612. He submitted further that it is settled law that where the prosecution proves all the ingredients of the offence with which the accused is charged, it would have proved its case beyond reasonable doubt. He cited the cases of: Ekpe V. The State (1994) 9 NWLR (Pt.368) 263; Mansoh V. The State (1993) 5 NWLR (Pt.292) 129.

Learned counsel submitted that the prosecution’s case at the trial court was anchored on the appellant’s confessional statement, Exhibit D. He noted that the said Exhibit D was tendered without any objection from the appellant or his counsel. On what amounts to a confession, he erroneously referred to Section 27 of the Evidence Act 2011. The relevant section is Section 27 of the Evidence Act 2004 or Section 28 of the Evidence Act 2011. He also relied on Olalekan v. The State (2001) 18 NWLR (Pt.746) 793 @ 798 and Saidu V. The State (1982) 4 SC 41. He submitted that for a statement to qualify as a confessional statement, it must have been made voluntarily and must admit all the ingredients of the offence. He relied on: Ugboma v. State (1987) 1 SC 109; Oboh v. State (1987) 1 SC 118 @ 279 F – G. He reproduced excerpts from Exhibit D and examined them vis-a-vis the ingredients of the offences of Conspiracy and Armed robbery and submitted that it was quite clear that the appellant, his co-accused and some other persons agreed to rob the deceased. He submitted that the appellant not only admitted participating in the crime but also admitted sharing in the proceeds. He referred to lines 21 – 30 of Exhibit D at page 26 of the record and submitted that the statement is a direct, unequivocal and cogent admission of all the ingredients of the offence of Armed robbery. He reiterated the fact that the voluntariness of Exhibit D was never raised or challenged at the trial. He argued that in the circumstances and having regard to its contents, the said exhibit qualifies as a confessional statement. He referred to: Ugboma V. The State (supra); Oboh V. The State (supra) and Section 28 of the Evidence Act 2011 (or Section 27 of the Evidence Act 2004).

On the appellants alleged retraction of Exhibit D, he submitted that it is settled law that where an accused retracts or resiles from a confessional statement, he has a duty to explain to the court as part of his evidence, the reason for the inconsistency. He referred to: Kareem V. FRN (No.2) (2002) 8 NWLR (Pt.770) 664 @ 682 D – E. He submitted that the appellant failed woefully to explain the reason for the inconsistency at the trial court. He also referred to: Bassey v. The State (1993) 7 NWLR (Pt.306) @ 469, where this court per Uwaifo JSC (as he then was), relied on an earlier decision of this court in Otufalo v. The State (1968) N.M.L.R. 261 @ 265 to the effect that it is desirable that a retracted confessional statement should be corroborated by some evidence outside the confession, which would make it probable that the confession is true. He also referred to Kareem v. FRN (No.2) (supra) at 683 A – D; R. v. Walter Skyes (1913) 8 Cr. App R. 233 @ 236 – 237; R. v. Kanu (1952) 14 WACA 30 (which approved the test laid down in R, v. Skyes); R. v. Ndo (1953) 14 WACA 352; Ebong (1947) 12 WACA 139. Learned counsel reproduced portions of the evidence of PW1, PW2 and PW5 in substantial detail and submitted that their evidence showed that Exhibit D unequivocally portrayed the truth of the facts therein contained. He submitted that the appellant not only had the opportunity of committing the offences with which he was charged but did in fact commit same, thereby making the confession possible. He further contended that Exhibit D was consistent in all material respects with other facts and circumstances of the case. He submitted that proof of conspiracy need not be by direct evidence but may be inferred or deduced from the surrounding circumstances. He submitted that the appellant’s statement was properly admitted in evidence and its retraction at the trial did not preclude the trial court from relying on it to convict him. On the effect of a retracted confessional statement he relied on: Edamine V. State (1995) 3 NWLR (Pt.438) 530 @ 537 D – E; R. V. Kanu (supra); Mumuni V. State (1975) 6 SC 79: Egboghonome V. State (1993) 7 NWLR (Pt.306) 383. He referred to the findings of the lower court at pages 323 and 325 of the record to the effect that Exhibit D is a direct and positive acknowledgment by the appellant that he participated in the crime and that the trial court was entitled to rely on it in convicting him. He urged this court not to disturb those findings. He urged the court to resolve the sole issue for determination against the appellant and in favour of the respondent.

As rightly submitted by both learned counsel, the law is trite that the standard of proof required of the prosecution in a criminal case is a heavy one. The prosecution must prove its case beyond reasonable doubt. The burden of proof remains on the prosecution throughout and does not shift to the accused person, except in a few limited circumstances, such as where an accused person raises a defence of insanity. See; The State V. Emine (1992) 7 NWLR (Pt.256) 658; Ogundiyan v. The State (1991) 3 NWLR (Pt.181) 519: (1991) 4 SCNJ 44; Alonge V. IGP (1959) 4 FSC 203: (1959) SCNLR 516. There is no obligation on an accused person to prove his innocence. In order to discharge the onus on it, the prosecution must establish all the ingredients of the offence charged. See: Yongo V. C.O.P. (1992) 8 NWLR (Pt.257) 36; (1992) 4 SCNJ 113: Alor v. The State (1997) 4 NWLR (Pt.501) 511.

It is also trite law that the free and voluntary confessional statement of an accused alone is sufficient to sustain a conviction, provided the court is satisfied that it was made in a free atmosphere and is direct, unequivocal and positively proved. See: The State V. Jimoh Salawu (2011) 18 NWLR (Pt.1279) 883 @ 920 – 921 G – A; LPELR-9351 (SC): Akinmoju V. The State (2000) 4 SCNJ 179; Kanu V. The State (1952) 14 WACA 30: Ekpenyong V. State (1991) 6 NWLR (200) 683.

The appellant was charged with conspiracy to commit armed robbery and armed robbery. This court in the case of Bozin V. The State (1985) 2 NWLR (Pt.8) 465 set out the ingredients necessary to prove the offence of armed robbery. The prosecution must prove the following facts beyond reasonable doubt:

1. That there was a robbery or a series of robberies.
2. That each robbery was an armed robbery.
3. That the accused was one of those who took part in the armed robberies.

It is also well settled that the essential ingredient of the offence of conspiracy lies in the bare agreement and association to do an unlawful thing, which is contrary to or forbidden by law, whether that thing be criminal or not and whether or not the accused persons had knowledge of its unlawfulness. Evidence of conspiracy is usually a matter of inference from surrounding facts and circumstances. The trial court may infer conspiracy from the fact of doing things towards a common purpose. See: Clark V. The State (1986) 4 NWLR (Pt.35) 381; Gbadamosi V. The State (1991) 6 NWLR (Pt.196) 182; Aje V. The State (2006) 8 NWLR (Pt.982) 345 at 363 A – C; Kaza v. The State (2008) 7 NWLR (pt.1085) 125 @ 175 – 176 F – B.

For the prosecution to succeed in the charge of conspiracy to commit armed robbery, it must prove the following facts beyond reasonable doubt:

a. That there was an agreement or confederacy between the accused and others to commit the offence.

b. That in furtherance of the agreement or confederacy, the accused took part in the commission of the robbery or series of robberies.

c. That the robbery or each robbery was an armed robbery.

See: Usufu v. The State (2007) 3 NWLR (Pt.1020) 94 @ 113 – 114 H – A. It is not necessary that there should be direct communication between each conspirator and every other accused person but the criminal design alleged must be common to all. See: Erim V. The State (1994) 5 NWLR (Pt.346) 522; Haruna & Ors, V. The State (1972) All NLR 110. Oyakhire v. The State (2006) 15 NWLR (Pt.1001) 157.

Exhibit D (the appellant’s statement) is at page 26 of the record. It reads in Dan:

“I, Ikechukwu Okoh ‘m’ of the above address voluntarily wish to state that I am a native of Ameachi Local Government of Enugu State from Okoh Family … About the allegation against me and others that we conspired and robbed a man at Angwan Kasuwa Dutse area of Suleja, I wish to state that, I was among the robbers that attacked the man. How I got into the crime committed is that on the 6th April, 1996 at about 2100 hrs, I was where I do play table tennis at Zuba when one Joseph Ede came and met me and told me that, there is a job one Mathias introduced him to do and that he want me to do the job with him which is of which I agreed to follow him. Then at about 2200 hrs home (sic) at Zuba and proceeded to Suleja with my two batteries seize (sic) torch-light. On getting to Suleja at Morocco Road where we met others vis. (1) Mathias, Joseph Amaechina and three others who I don’t know their names but if see I will be able to identify them, some were armed with sticks and torchlight and we went to one Ngozi beer parlour at along Morocco and sat and all of us were smoking different type of cigarette, i.e. Benson, Rothmans, then at about 1100hrs, we all left to Kasuwa Dutse area and hit (sic) in the bush at about 0300hrs. We left to the house of a man whom I don’t know his name of which I, Uchenna and Joseph Ede were standing outside as observant (sic) armed with sticks while Mathias and three others whom I don’t know their names entered the house. As soon as they entered I heard people shouting in the house thieves, thieves, later the said Mathias and three others came out from the house with a video machine and all of us left to the same destination Kantoma area Suleja and finally departed at Kantoma area which I left to my house at Madalla and Mathias took away the video for disposal and when the video was sold, I was giving the sum of three hundred and fifty naira (N350,00). … I know one Joseph Ameachina, I know him because he participated in the robbery on that 6/4/96, he was among those that when (sic) inside the man house, I also know one Cheide, he was also among us for the robbery operation. I am not aware that, the man robbed died. After our operation known (sic) of my co-suspect told me he wounded somebody during the operation. After our operation I throw away the stick I was holding at Suleja town to avoid been suspected by somebody”

(Emphasis supplied)

Section 28 of the Evidence Act 2011 (as amended) (formerly Section 27 of the Evidence Act 2004) provides:

28. “A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime.”

A critical examination of Exhibit D shows that the appellant not only admitted that he agreed with others to commit an offence, he stated positively and unequivocally how he and his co-accused went to the home of the deceased to rob and the role played by each member of the gang. It is not in dispute that the deceased was killed in the course of the robbery operation. The statement therefore meets all the criteria of a confessional statement, having admitted the essential elements of the offences with which he was charged. As rightly pointed out by learned counsel for the respondent, there was no objection to the admissibility of Exhibit D when it was tendered. The appellant however resiled from it at the trial.

It was held in: Salawu V. State (1971) NMLR 249 @ 252 that while it is the law that the court can act on the confessional statement of an accused person to sustain a conviction, where the statement is retracted in court, independent corroboration, however slight must be sought. See also: Akinfe V. The State (1988) 3 NWLR (85) 729 @ 746. The mere retraction of a confessional statement by an accused person will not render it inadmissible. It may only affect the weight to be attached to it where the accused denies making it at the earliest opportunity. See: Abdullahi v. The State (2013) ALL FWLR (pt.699) 1118 @ 1140 B – C; Itule V. Queen (1961) 2 SCNLR 214; Nwachukwu V. The State (2007) 17 NWLR (Pt.1062) 31 @ 69H; Akpan V. The State (2001) 15 NWLR (Pt.737) 745; Onyejekwe V. The State (1993) 3 NWLR (pt.230) 444.

In the instant case, as observed earlier, the appellant did not raise any objection to the admissibility of Exhibit D. The court therefore had no obligation to conduct a trial within trial to ascertain whether or not it was voluntarily made. The court was entitled to admit it in evidence and consider its probative value along with all the other evidence in the case. See: Egboghoname V. The State (1993) 7 NWLR (pt. 306) 383; Nwangboma v. The State (1994) 2 NWLR (pt. 327) 380; Nwachukwu V. The State (supra).

It is contended on behalf of the appellant that since the two eye-witnesses did not identify the appellant as being at the scene of the robbery, the trial court ought to have looked for evidence outside Exhibit D to show that the confession was true. It must be reiterated here that where a court is satisfied that a confessional statement was made voluntarily and is clear, positive and unequivocal as to the accused person’s participation in the crime, it is sufficient without more to ground a conviction. However where, as in this case, the accused person resiles from his statement in court, he must explain the inconsistency. The court is also cautioned to look for evidence, no matter how slight, outside the confessional statement that makes the confession probable.

The questions the court must be able to answer before it can rely on a confessional statement to convict an accused person were set out in the case of R. V. Sykes (1913) 1 Cr. App. Rep. 233 are as follows:

(a) Is there anything outside it to show that it is true

(b) Is it corroborated

(c) Are the factors stated in it true as far as can be tested

(d) Was the accused the man who had the opportunity of committing the offence

(e) Is the confession possible

(f) Is it consistent with other facts which have been ascertained and proved

See also: Udofia V. The State (1984) 12 SC 139; Ojegele V. The State (1988) 1 NWLR (Pt.71) 414; Akpa V. The State (2007) 2 NWLR (1019) 500.

In paragraphs 3.30 – 3.31 at pages 10 – 12 of his brief, learned counsel for the respondent highlighted the aspects of the evidence of the prosecution witnesses, which corroborate the contents of Exhibit D as follows:

“1. The video machine:

PW1 in her evidence at page 40 line 10 of the Records stated thus:

“the thieves, took away our video machine”

PW2 also in his evidence at page 44 lines 7 – 9 stated thus:

“Aminu Tanko took a video machine from the sitting room when he went out of the room. He gave the video machine to one of the men who went out with it”.

The Appellant in Exhibit D at page 26 lines 27 – 30 stated thus:

“Mathias took away the video for disposal and when the video was sold, I was giving the sun of three hundred and fifty naira (N35). I didn’t know where the video was sold”.

2. The time and date of robbery:

PW1 in her evidence at page 39 lines 16 – 18 of the Records stated thus:

“I was sleeping in my room at about 0300 hours (3.00 a.m.) I heard fighting and beating”.

PW2 in his evidence on that score at page 43 lines 23 – 24 of the Records stated thus:

“on 6/4/96 I was in my father’s house in Suleja, at about 03.00 hours (3.00 a.m.) I was sleeping with my father and one of my junior brothers in the sitting room. I heard some bangs on the door of my father’s room”.

The Appellant in Exhibit D at page 26 lines 9 – 12 confessed thus:

“on the 6th of April 1996 at about 2100 hrs, I was where I do play table tennis at Zuba when one Joseph Ede came and met me and told me that there is job one Mathias introduced him to do and that he want me to do the job with him which is of which I agreed to follow him”.

And further at lines 19 – 21 stated thus:

“then about 1100 hrs, we all left to Kansuwa Dutse area and hid in the bush at about 0300 hrs, we left to the house of a man whom I don’t know his name”.

3. Alarm raised:

PW1 in her evidence at page 39 lines 25 – 27 of the Records stated thus:

“I started shouting in my room saying “thieves, thieves”

And at lines 30 – 31 she also stated:

“my husband then followed me to my room and the two of us continued shouting “thieves, thieves”.

PW2 in his evidence at page 44 lines 18 – 20 of the Records stated thus:

“we all started shouting thieves, thieves”.

The Appellant in Exhibit D “”admit at line 24 – 25 confessed thus:

“as soon as they entered I heard people shouting in the house thieves, thieves”.

4. The Stick

PW1 in her evidence at page 40 lines 20 – 22 of the Records stated thus:

“after the exit of the accused persons, we saw one piece of wood/stick that was used. The police took the stick away with them.”

PW2 on the same fact testified at page 44 lines 27 – 29 of the record thus:

“after the exit of the thieves, I saw a stick that they used. The police took the stick away”.

The Appellant in Exhibit D further confessed at page 26 lines 17 – 19 of the Records thus:

“at Morocco Road where we met others viz (1) Mathias, Joseph Amaechina and three others who I don’t know their names but if I see I will be able to identify them some were armed with stick and torchlight”.

And also at lines 21 – 22 further stated thus:

“1, Uchenna and Joseph Ede were standing outside as observant armed with sticks”.

PW5 in his evidence at page 57 lines 22 – 23 of the Records stated thus:

“(at the scene) I saw a stick which was used in breaking the door to Alhaji Zakari’s room”.

And at lines 25 – 26 further stated thus:

“I took the stick and the rag to the station as exhibits”.

I agree with learned counsel for the respondent that the above excerpts of the evidence of the prosecution witnesses reveals that there was evidence outside Exhibit D that showed that Exhibit D was not only probable but true. I also agree that the appellant certainly had the opportunity to commit the offence and did in fact commit the offence.

The lower court at page 336 lines 5 – 19 held, inter alia:

“In Exhibit D, the appellant not only admitted that he was one of the robbers that carried out the robbery operation in a house at Suleja on the 6th April, 1996 but also stated how he came to participate in the robbery operation and the specific role which he played – he was one of the robbers on guard outside the house where they operated. By Exhibit D the appellant therefore placed himself as being in the company of the robbers who went into the house to rob. When the testimonies of the PWs 1, 2 and 6 which were not successfully challenged under cross-examination are considered together, the prosecution n my view definitely adduced credible evidence that the victim of the robbery (who was in good condition prior to the incident) was found immediately thereafter wounded by the invading robbers and that the wounds given their degree/nature could have only been caused by a weapon that qualified as an offensive weapon.”

And concluded at page 338 lines 8 – 20 thus:

“From a painstaking perusal of the totality of the evidence adduced by the prosecution and which includes the confessional statement of the appellant, I am of the firm view that it would have been perverse if the lower court had found the prosecution not to have proved its case beyond reasonable doubt. This is particularly so as the lower court not only correctly found Exhibit D to have been voluntarily made by the appellant but also found the confession of the appellant to be true from the other circumstances of the case as disclosed in the evidence of witnesses called by the prosecution. In conclusion I endorse the finding of the lower court that the prosecution proved the offences for which the appellant was charged, against him beyond reasonable doubt and hold that the sad appellant’s conviction and sentence in respect of the mid offences were proper.”

(Emphasis supplied)

In my humble view, the findings of the lower court are unassailable. They are not perverse in any way. Moreover there are concurrent findings of fact by the two lower courts and no reason has been shown to warrant interference by this court.

In conclusion, I hold that his appeal is totally lacking in merit. It is hereby dismissed. The judgment of the lower court upholding the conviction and sentence of the appellant by the trial court is hereby affirmed.

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SC.357/2009