Michael Effiong Ika V.the State (2009)
LawGlobal-Hub Lead Judgment Report
KUMAI BAYANG AKAAHS, J.C.A.
On 2nd May, 2001, Mrs. Felicia Bassey, a Police Inspector, reported that about 0300hrs of the same date robbers broke into her house at No. 97 Ndidem Iso Road, Calabar at gun point robbed her and her family members of sums of money and other valuables. In the course of investigation the police arrested some suspects including the appellant and three other people. At the close of Investigation, three accused persons were charged with the offence of armed robbery including the appellant as the 1st accused, while one person was charged with receiving stolen property. The charge read as follows:
STATEMENT OF OFFENCE
ARMED ROBBERY contrary to Section 1(2)(a) Robbery and Firearms (Special Provisions) Act Cap. 398, Vol. XXII Laws of the Federation of Nigeria 1990.
PARTICULARS OF OFFENCE
MICHAEL EFFIONG IKA, DAN SUNDAY UDOH, EKONG EKONG on the 2nd of May, 2001 at about 3.00a.m at No. 97 Ndidem Usang Iso, Calabar in Calabar Judicial Division broke Into the dwelling of one W/Sgt Felicia Bassey and robbed her of her household properties.
STATEMENT OF OFFENCE
RECEIVING STOLEN PROPERTY, contrary to Section 427 of the Criminal Code Cap 31 Vol. II Laws of Cross River State.
PARTICULARS OF OFFENCE
ARIT BASSEY EKANEM on the 2nd of May, 2001 at about 3.00a.m at NO.2 Orok Street, Calabar, in Calabar Judicial Division was found to be in possession of goods known to have been stolen.
Subsequently the name of Ekong Ekong the 4th accused was struck out because he was reported dead. At the close of the prosecution case, learned counsel for the accused made a no case submission on their behalf. The trial court upheld the defence counsel’s submission in favour of the 3rd accused and found that no prima facie case of receiving stolen property was made out against her and consequently discharged and acquitted the 3rd accused. The no case submission made on behalf of the 1st and 2nd accused was overruled and the trial court ordered them to enter their defence. The two accused testified and called a witness each. The 1st accused testified as DW1 while his father testified as DW2. The 2nd accused gave evidence as DW3 while his senior brother testified as DW4. All the defence witnesses were cross-examined. At the close of the case of both the prosecution and defence, the learned trial Judge In a reserved judgment, delivered on 25th day of July, 2008 found the two accused guilty of the offence of armed robbery. He thereby sentenced the 1st accused to death by hanging. In respect of the 2nd accused, he found that he was 16years of age when he committed the offence of armed robbery and thereby invoked the provisions of Section 368 (3) Criminal Procedure Law and ordered him to be detained at the Governor’s pleasure. The two accused felt dissatisfied with their conviction and appealed against it.
The appellant’s Notice of Appeal containing 10 grounds is dated 24th September, 2008 from which the appellant’s counsel formulated the following 8 issues for determination:
- WHETHER OR NOT the Honourable Trial Judge was entitled to raise suo motu in his judgment the question of the error or defect in stating the charge and proceed to resolve the Issue against the accused/appellant without calling upon both counsel to address him on the said defect in the charge. Ground 1.
- WHETHER OR NOT the appellant’s statement Exh. ‘A’ was unequivocal as to the guilt of the accused/appellant when he had earlier made Exh. ‘F’ denying any involvement in the commission of any offence? Ground 2.
- WHETHER OR NOT the learned trial Judge was correct to use Exh. ‘A’ in convicting the accused/appellant without any reference to Exh. ‘F’ the earlier statement made by the accused denying the crime alleged against him. Ground 3.
- WHETHER OR NOT the learned trial Judge acted properly in law when he convicted the accused/appellant of armed robbery when the charge brought against him did not state that he was armed with any firearms or offensive weapon. Grounds 4 & 6.
- WHETHER OR NOT having rejected the PW1’s evidence on identification as unreliable the learned Trial Judge could subsequently utilize the same PW1’s evidence to find and hold that it was accused/appellant who robbed PW1? Ground 7.
- Was the accused/appellant given a fair hearing when the learned trial Judge failed or refused to evaluate or give any consideration to Exh. ‘F’, the accused/appellant’s first statement made to the police denying committing the offence he was charged with? Grounds 5 and 8.
- Was the learned Trial Judge acting in accordance with the law when he held that the accused person had Identified himself In Exh. ‘A’ a statement made to the police that was neither clear nor unqualified and therefore not a confessional statement? Ground 9.
- With the doubtful evidence of identification and failure to evaluate Exh. ‘F’ was the judgment of Hon. Justice E. E. Ita not unreasonable and unwarranted and therefore justifying the quashing of the conviction and sentence of the accused/appellant? Ground 10.
The Respondent formulated four issues for determination which are as follows:
- WHETHER the learned Trial Judge was entitled in law to raise and resolve suo motu the issue of the defect in the charge and proceed to convict the accused/appellant on it. Covers grounds 1, 4 and 6
- WHETHER the lower court was right in relying on the confessional statement of the Accused/Appellant Exh. ‘A’ in finding him guilty of the charge of armed robbery. Covers grounds 2, 3, 5 and 8.
- WHETHER having found PW1 evidence on the Issue of Identification of the appellant as unreliable the trial court was right to utilize the same PW1 evidence and hold that Appellant robbed PW1. Covers ground 7.
- WHETHER non consideration of Exh. ‘F’ by the trial court was justified where appellant denied making the statement. Covers ground 9.
Although the Appellant’s counsel formulated eight issues for determination, arguments on issues 1, 4, 5, 6 and 7 were taken separately while issues 2 and 3 were argued together and issue 8 was abandoned altogether as no arguments were advanced on it. Issue 1 dealt with the propriety or otherwise of the learned trial Judge’s raising suo motu the defect in the information laid before the court and the resolution of same without calling on both counsel in the case to address him. Learned counsel for the appellant argued this violated the principles of procedural fairness of affording the parties the constitutional right to be heard and this has occasioned a miscarriage of justice. The issue was whether in a case of armed robbery if there was no element of being armed with offensive weapons included in the charge the learned trial judge could proceed and convict the appellant and sentence him to death as happened In this case without occasioning a serious miscarriage of justice. Citing the cases of ABIMBOLA v ABATAN (2001) 9 NWLR (pt. 717) 66; UGO v OBIEKWE (1989) 1 NWLR (pt. 99) 566 and OJO v FRN (2008) 11 NWLR (Pt. 1099) 467, learned counsel submitted that the failure of the learned trial judge to call for address of counsel before deciding that the accused/appellant was guilty of the defective charge which did not include the element of being armed with a firearm or offensive weapon occasioned a serious miscarriage of justice since the appellant was sentenced to death when he was not accused of being armed with a firearm or offensive weapon as required by the law.
Learned counsel for the respondent conceded that It was the learned trial judge who noted while delivering judgment on 25th July, 2008 that the charge as laid before him omitted the particulars that the accused persons robbed PW1 while armed with firearms or any offensive weapon or were in company of any person so armed’, which are the particulars required for the laying of a charge under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII Laws of the Federation of Nigeria 1990 but submitted that the failure of the learned trial judge to invite counsel to address him Is remedied by Sections 166 and 167 CPL as the point taken up suo motu by the learned trial Judge was not a material point. He argued that when the accused/appellant took his plea on the 2nd day of August, 2004, he was represented by counsel who did not raise any objection to the charge or the defect in the particulars. Learned counsel for the appellant cannot now argue that the accused was misled when he entered his plea. He contended that even if the court was In error to have raised and resolved the issue suo motu, this error is not one that can lead to a reversal of its judgment and relied on COOKEY v FOMBO (2005) 22 NSCQR 411 at 428 – 429 (2005) 15 NWLR (Pt. 947) 182 at 201 where the Supreme Court held that
“It is not every error committed by a trial court that will lead to a reversal of its judgment by an appellate court. An error that can warrant the reversal of the judgment of the trial court must have substantially affected the decision vide OLUBODE v SALAMI (1985) 2 NWLR (Pt. 7) 282.”
Learned counsel further submitted by citing the case of MDPDT v OKONKWO (2001) FWLR (Pt. 44) 542 at page 583; (2001) 7 NWLR (Pt. 711) 206 at 240 per Ayoola, JSC that:
“The law is clear that conviction on a charge which states a known offence with incomplete particulars can be upheld where the defence was not misled and no substantial miscarriage of justice has taken place.”
He finally submitted that it is a judicial practice that an accused can be convicted by a court upon offences disclosed by the evidence before the court other than the offences for which the accused was charged. This submission was anchored on the case of KAREEM v FEDERAL REPUBLIC OF NIGERIA (2002) FWLR (Pt. 104) 555 at pages 571 572; (2002) 8 NWLR (Pt. 770) 664 at 685 per Ejiwunmi, JSC.
Although it is desirable to invite learned counsel to address the court on any issue raised by the court suo motu, the conviction of an accused person will not be set aside solely on the ground that counsel was not called upon to address the court on the issue raised and decided by the court. The practice has been for a court to convict upon offences disclosed by the evidence during the trial other than the offence for which the accused was charged. See KAREEM v F. R. N. (No.2) supra at page 685. In the instant case the charge was laid under Section 1(2)(a) of the Robbery and Firearms (Special Provisions)Act which provides that
“(2) If –
(a) 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)……………. the offender shall be liable upon conviction under this Act to be sentenced to death.”
It is punishment for aggravated form of robbery for under section 1(1) of the Act the punishment for robbery simpliciter is a sentence of imprisonment for not less than twenty-one years.
The particulars omitted to state that the appellant was armed or in the company of some one who was so armed when he was alleged to have committed the offence. Since the appellant did not plead guilty to the charge and was represented by counsel, who ought to have raised objection to the charge as laid, he cannot be said to have been misled when the particulars failed to mention that he was armed with firearms or offensive weapons. What is required is that the prosecution must prove all the elements of the offence for which the accused was convicted in order for the conviction to be sustained on appeal. A conclusion of this issue will be made after the remaining issues have been considered.
The crux of this appeal revolves around issues 2 and 3. Issue 6 is a replication of issues 2 and 5 since it deals with whether Exh. ‘A’ was an unqualified confessional statement and the Identification of the accused. In issue 4, the appellant is querying whether the trial Judge acted properly in law when he convicted the accused appellant of armed robbery when the charge brought against him did not state that he was armed with any firearm or offensive weapon. This Issue is a variant of issue 1. Issue 7 deals with evaluation of evidence. I intend to treat these issues together.
Learned counsel for the appellant referred to the two statements which the appellant made on 5th May, 2001 and 7th May 2001. The statement of 5th May, 2001 was tendered by the appellant as Exh. ‘F’ while the latter statement made on 7th May, 2001 was tendered by the Prosecution as Exh. ‘A’. He explained that in Exhibit ‘F’ the accused denied robbing any person, or being implicated in any robbery but seemed to have implicated himself in an offence in the later statement admitted as Exh. ‘A’. He pointed out however that Exh. ‘A’ did not specifically state that it was for the offence he was tried and convicted and argued that such a statement cannot be used as a confessional statement to enable a court of law convict on the statement since it is equivocal and falls short of a voluntary confession and so urged this court to quash the conviction of the appellant and referred to the following authorities to support his argument: ADEYEMI v STATE (1991) 6 NWLR (Pt. 195) 1; DANIEL v STATE (1991) 8 NWLR (Pt. 212) 715; ODEH v F. R. N. (2008) 13 NWLR (Pt. 1103) 1; MILLA v STATE (1985) 3 NWLR (Pt. 11) 190 and UWAEKWEGHINYA v STATE (2005) 9 NWLR (Pt. 930) 227.
Learned counsel pointed out that the Information filed against the accused/appellant did not state that he was armed with any firearm or offensive weapon and in order to sustain a conviction, the facts proved must be those stated in the charge. Although PW1 stated that the robbers, who attacked her in her house on the 2nd May, 2001 were armed with guns, she however could not identify the accused/appellant and submitted that it was wrong for the learned trial Judge to use this evidence to convict him of armed robbery as the said evidence went to no issue. Learned counsel also questioned the propriety of the trial court in rejecting the evidence of PW1 on the identification of the accused/appellant but utilizing the same evidence to find that it was the appellant who robbed PW1. He submitted that a trial court cannot approbate and reprobate at the same time as it did with the evidence of PW1. On issue 7 it was the contention of learned counsel that the prosecution failed in their duty to put before the court all the evidence either in favour of or against the accused and failure to do this amounted to a denial of fair hearing. He was referring to Exh. ‘F’ where the appellant denied the offence of armed robbery. He urged this court to re-evaluate Exh. ‘A’ and evaluate Exh. ‘F’ which the learned trial judge did not mention in his judgment and submitted that the failure to evaluate Exh. ‘F’ led to a serious miscarriage of justice.
In his response, learned counsel for the respondent submitted that Exh. ‘A’ is a voluntary confession of the appellant admitting robbing PW1 while armed. He said the appellant did not object to the tendering of his statement during the trial on Monday, 17th January, 2005 and submitted that an accused may be convicted solely on his confession if the said confession is found to be free and voluntary. He said the trial court in arriving at its decision did not solely rely on Exh. ‘A’ but found that the confession was supported by other corroborative circumstances namely the extra-judicial evidence of the 2nd accused, Exh. ‘B’; the number of the robbers as disclosed in Exhs. ‘A’ and ‘B’ was proved through PW1 and PW3 and Exh. ‘D’, a pair of canvass shoes recovered from Udoette’s house and identified by PW1 as one of the items the robbers robbed from her house which proved the facts In Exh. ‘A’ and ‘B’. As regards Exh. ‘F’, the appellant denied making Exh. ‘F’ but was forced to sign it. He said that the argument by learned counsel for the appellant that if Exh. ‘A’ and ‘F’ had been properly evaluated, the trial court would have reached a different conclusion was misconceived and submitted that the law is settled that once a confessional statement is admitted, the prosecution need not prove the case against the accused beyond reasonable doubt as the confessional statement ends the -need to prove the guilt of the accused. It is learned counsel’s contention that Exh. ‘F’ has no evidential value that is worth any consideration since the appellant denied making Exh. ‘F’. He urged this court to dismiss the appeal. Learned counsel for the Respondent heavily relied on the case of SOLOLA v STATE (2005) 22 NSCQR 254 at 293 – 294; (2005) 11 NWLR (Pt. 937) 460 for this submission.
During the course of investigation the appellant made two statements. The first statement which the appellant tendered as Exh. ‘F’ was made on 5/5/2001. In that statement he denied knowing anything about the robbery. He stated categorically that he was not a thief. In Exh. ‘A’ however which was the additional statement dated 7/5/2001 which shows that it was recorded two days after Exh ‘F’ was made, the appellant stated as follows:-
“In add to my statement to the Police on 05/05/2001 I have to include that I have now decided to tell the truth I know Udoette very well and he is my friend. On the 1st of May 2001 I was with Udoette in our house until nightfall. I know something about the things stolen from the Police Woman, she live close to our house. I was one of those who went to her house but I did not enter inside. We were about five of us. I also know Dan Sunday Udo and the others whom I cannot remember their names but I know them very well but for now they are on the run. All the things carried from that woman’s house the girlfriend to Udoette he lives at Orok Street by Ediba. The girl’s name is called Adidi. She has two children. I followed Udoette to her house we did not share those things before I was arrested. This is my statement.”
The victim of the robbery, Mrs. Felicia Asuquo Bassey who testified as PW1 made a statement which was received in evidence as Exh. ‘E’. The statement was made the same day the robbery took place. In the said statement she stated that she could not identify the two men who entered her bedroom but that she knew the two inside the room and described them as one tall, the other short. In her testimony in court which was given in court 3years 3 months later on 5th August, 2004, she stated that she knew 1st and 2nd accused persons as those who along with others robbed her on 2nd May, 2001 at her residence at No. 97 Ndidem Iso Street, Calabar. She added she knew the 1st accuser’s voice because he lived behind her house. The learned trial Judge rightly in my view did not believe the evidence of PW1 on the identification of the 1st and 2nd accused because she did not give any particulars of the accused when she made Exh. ‘E’. She did not state at the earliest opportunity that she knew the 1st accuser’s voice or that the two accused were living behind her house. It has been stressed that It Is important that an eye witness who saw a person committing an offence must act timeously by using the earliest opportunity to name or give the identity of the person he saw committing the offence. See: C. O. P. v ALAO (1959) WRNLR 39; MICHAEL v STATE (2002) 1 NWLR (Pt. 749) 500; IDAHOSA v QUEEN (1965) NMLR 85; BOZIN v STATE (1985) 2 NWLR (Pt. 8) 465.
In considering the issue whether the accused was armed, the learned trial Judge referred to the evidence of PW1, PW3 and Exh. ‘B’ made by the 2nd accused. He said –
“Pw1, the only person who had direct contact with two of the robbers inside her room, said the two robbers inside her room were pointing two pistols at her. The only other person inside the room, husband of PW1, had unfortunately died of the shock of the alleged attack. PW3 said when he went outside he was intercepted by two men, one carrying a gun and the other carrying a matchet. On second accused person’s statement tendered in these proceedings as Exh. ‘B’, he said-
“I was not armed but Udoette alias Odim Inyang was carrying one locally made gun while others carried machetes.”
From the above evidence I find and hold those who robbed PW1 in the night on 2nd May, 2001 were armed with firearms based on the two pistols PW1 said she saw, the gun PW3 saw and the locally made gun Udoette was said to have carried. The robbers were also armed with offensive weapons to wit; machetes based on the matchets 2nd accused on Exh. ‘B’ said “others” carried and that which PW3 said one of those who intercepted him carried.”
Turning to the question whether 1st and 2nd accused were the armed robbers, the learned trial Judge considered whether Exhs. ‘A’ and ‘B’ were voluntarily made and held that they were notwithstanding the fact that the accused denied making the statements. He then proceeded to analyse both oral and documentary evidence and concluded as follows despite holding that PW1 did not know those who robbed her on the night –
“In the instant case Exhs. ‘A’ and ‘B’, evidence of PW1 in which she described in detail what each accused person did while inside her room, and the fact that she honestly declined to identify the forth (sic) accused person, whom she did not see on the night, for (sic) outweigh the belated alibi of the accused persons. I therefore find and hold that it was first and second accused persons who robbed PW1 at her house on 2nd May, 2001” (See page 112 lines 6 – 11 of the records).
Earlier on at page 109 lines 5 – 15 of the record, the learned trial judge had said in his judgment:
“If the only evidence of identification of the first and second accused persons was that of PW1,I would have been very warry of her evidence because she ought to have given more particulars about the accused persons if she knew them as well as she later said she did, in her statement to the Police, Exh. ‘E’. Why for instance did PW1 at the earliest opportunity, when she was making a statement to the Police (Exh. ‘E’) not tell the police that the accused persons lived behind her house and had been drinking beer at her drinking parlour. That lapse will be and is fatal to the PW1’s identification of the accused persons. The reasonable and safe conclusion to reach is that PW1 did not know those who robbed her on the night.”
I find it extremely difficult to follow the logic about PW1 giving a detailed account of what each accused did while inside her room which led him to conclude that it was 1st and 2nd accused, who robbed PW1 on the night of 2nd May, 2001. When the accused were arrested and they made their statements which were admitted in evidence as Exhs. ‘A’, ‘B’ and ‘F’ no alibi was raised and so any plea of alibi when they gave evidence in court can be ignored since the prosecution can be penalized only when the police fail to investigate any alibi raised during investigation especially immediately after the arrest of the accused person. See DOGO v STATE (2001) 3 NWLR (Pt. 699) 192. Even where the defence of alibi is raised the accused must endeavour to get his witnesses to court to prove the alibi and If he wants the police to investigate the alibi, he has to provide tangible Information relating to the place he was at the material time, the person with whom he was and their correct addresses and any Information which will be of assistance to the police. See THE STATE v THEOPHILUS (1966 – 67) 10 ENLR 32. As Nnaemeka-Agu, J.S.C. succinctly put it In NWABUEZE v THE STATE (1988) 4 NWLR (Pt. 86) 16 at 34:
“The defence of alibi has ceased to be the type of cheap panacea that it used to be in the hands of criminals.”
See OKPULOR v THE STATE (1990) 12 SCNJ 71, 76; ADEKUNLE v THE STATE (1989) 5 NWLR (Pt. 123) 505; OBAKPOLOR v THE STATE (1991) 1 NWLR (Pt. 165) 113; OGOALA v THE STATE (1991) 2 NWLR (Pt. 175) 509; IKUNNE v THE STATE (2000) 5 INWLR (Pt. 658). Once the learned trial judge believed that Exhibits ‘A’ and ‘B’ were voluntarily made, this is sufficient to knock out the bottom of any alibi put forward by the accused. See AKPAN v THE STATE (1991) 3 NWLR (Pt. 182) 646. Learned counsel for the appellant has submitted with good measure that a court of law must not blow hot and cold and by rejecting the evidence of identification of the accused/appellant given by PW1 in one breadth while in another breadth believing the evidence of PW1 that it was the accused/appellant who robbed her amounted to the trial court approbating and reprobating the evidence of the said PW1. The law frowns upon a court approbating and reprobating on a matter before it. See ODUTOLA HOLDINGS LTD. v LADEJOBI (2006) 12 NWLR (Pt. 994) 321. It is even worse in criminal cases where proof is beyond reasonable doubt. I think the learned trial Judge fell into serious error when he held that PW1 did not know those who robbed her on the night but later accepted the evidence of the same witness that it was 1st and 2nd accused that robbed her. I am of the view that the learned trial Judge should have limited his finding that the robbery was committed by the accused based on Exhs. ‘A’ and ‘B’ which he found were confessional statements which were voluntarily made by the accused.
This brings me to the consideration of Exh. ‘B’ as it relates to the 1st accused/appellant. PW4, Sgt. Alphonsus Eko, who conducted the investigation into the case stated in his evidence that it was the 2nd accuser’s statement that led him to arrest the 1st accused since 2nd accused said the loot from the robbery was taken to 1st accuser’s house and the 1st accused made a statement admitting knowing 2nd accused. Even though Exh. ‘B’ had not mentioned that 1st accused was one of those who was in possession of the firearms or offensive weapon, he should have been confronted with this statement for him to admit or deny being in company with any person so armed. A voluntary confession or statement of an accused is deemed to be relevant and admissible against its maker and not against another. Liability for the offence of robbery while in the company of a person armed with firearms or any offensive weapon can only attach to the 2nd accused. Section 27(3) Evidence Act deals with the effect of confessions on co-accused. It provides:
“27(3) Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons so charged is given in evidence, the court, or a jury where the trial is one with 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.” See also MUMUNI v STATE (1975) 6 SC 66 at 88; DURUGO v STATE (1992) 7 NWLR (Pt. 255) 525 at 541; IKEMSON v THE STATE (1989) 3 NWLR (Pt. 110) 455 at 476. The mere fact that the 1st accused made a statement admitting knowing 2nd accused is of no moment in proving that the 1st accused was either in possession of a firearm or offensive weapon at the time of the robbery or was in the company of someone so armed.
The prosecution tendered Exh. ‘A’ through PW4 without any objection. In Exh. ‘A’ the 1st accused stated as follows:
“I know something about the things stolen from the Police woman, she live close to our house. I was one of those who went to her house but 1 did not enter inside. We were about five of us. I also know Dan Sunday Udo and three others whom 1 cannot remember their names but I know them very well but for now they are on the run. All the things carried from that woman’s house the girlfriend to Udoette he lives at Orok Street by Ediba. The girl’s name is called Adidi. She has two children. 1 followed Udoette to her house. We did not share those things before 1was arrested…”
The 1st accused testified as DW1 and stated that he was arrested around noon on 2nd May, 2001. He was taken to the SCID where he was kept in the cell for three months before he was asked if he knew anything about the robbery to which he replied that he knew nothing. Five months after the arrest, a lady who later testified as PW1 came and asked him why he robbed her house to which he replied that he never robbed her house. PW1 then told the Police to torture him. He said that the IPO who gave evidence as PW4 wanted to shoot him but PW1 insisted that he should be tortured. He was hung on a fan and beaten and was forced to sign the two statements without knowing their contents. PW4 demanded N40, 000.00 from him but his father could only produce N20, 000.00 but the Police refused to release him on bail. Those who paid the money were released on ball. He was then shown a statement dated 5th May, 2001 which he signed and it was tendered as Exh. ‘F’. He said he did not write Exh. ‘F’ and also denied telling the Police the content of Exh. ‘A’.
Under cross-examination he said he was tortured to sign Exh. ‘F’ but he couldn’t remember when the Police arrested him but it was in 2001. He also denied being arrested with any other person and that he never said he was arrested along with three other persons.
I do not see anything equivocal in Exh. ‘A’. In Exh. ‘A’ the accused/appellant confessed to taking part in robbing a Policewoman. At the time Exh. ‘A’ was tendered, no objection was taken as to Its voluntariness. All that the accused said was that he was forced to sign Exhs. ‘A’ and ‘F’ without knowing their contents. The learned trial judge was right to hold that Exh. ‘A’ is a confessional statement which the accused/appellant made voluntarily. He identified himself as one of those who stole from the Police woman. A conviction of the accused/appellant for robbery can be based solely on the confession made by him in Exh. ‘A’. It is the law that a conviction can be sustained on a free and voluntary confession of an accused notwithstanding that he retracted the confession. See SOLOLA v STATE (2005) 11 NWLR (Pt. 937) 460. It is also not necessary that Exh. ‘A’ is corroborated by the evidence of PW1 or any other evidence before the 1st accused can be convicted on it. It is a mistake which is not fatal to the conviction of the accused/appellant for robbery.
Learned counsel for the appellant argued that the evidence was not properly evaluated before the appellant was found guilty and referred to Exh. ‘F’. To this submission, learned counsel for the Respondent contended and I agree with him that the conviction of the appellant based on Exh. ‘A’ where Exh. ‘A’ was properly tested as required by law put an end to the question as to whether appellant’s complicity in the robbery is in doubt. The issue was put to rest by Niki Tobi, J.S.C. in SOLOLA v STATE supra at page 498 when he stated thus:
“Once a confessional statement is admitted, the prosecution need not prove the case against the accused person beyond reasonable doubt, as the confessional statement ends the need to prove the guilt of the accused.”
Similarly in the evaluation of evidence, a trial court is not bound to evaluate a statement where the accused maintains he did not make the statement but the statement contains a complete denial of the commission of the offence. It would have been different if the appellant admitted making Exhs. ‘A’ and ‘F’ but objected to the admissibility of Exh. ‘A’ on the ground that he was forced to make Exh. ‘A’ after he had denied knowing anything about the robbery in Exh. ‘F’. Under such a circumstance the court must conduct trial within trial to determine the voluntariness of Exh. ‘A’ In the light of Exh. ‘F’ before finally admitting Exh. ‘A’.
Having found that Exhibit ‘A’ is a confessional statement and having discounted the evidence of PW1 and Exh. ‘B’ as corroborating the offence of armed robbery, I find that the conviction of the appellant for armed robbery under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990 was wrong. The prosecution succeeded in proving the offence of robbery simpliciter against the appellant but failed to prove that he was armed with a firearm or offensive weapon or was in the company of someone who was so armed at the time the offence was committed.
I allow the appeal for the conviction under Section 1(2) (a) but substitute therefore his conviction and punishment for robbery simpliciter under Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria which provides as follows:
“1(1) any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to Imprisonment for not less than twenty-one years”.
The sentence passed on the appellant to be hanged by the neck until he be dead is hereby set aside. In Its place I substitute a sentence of imprisonment for 21 years from the date he was arrested.
Other Citations: (2009)LCN/3163(CA)
