Obasi Onyenye Vs The State (2012)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
The Appellant was before the Oyo State High Court sitting in Ibadan originally charged with 6 (six) others with the offences of conspiracy contrary to section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Vol. XXII, Laws of the Federation of Nigeria 1990 as Amended; Armed Robbery contrary to and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.398 Volume XXII, Laws of the Federation of Nigeria, 1990 as Amended. Sheltering an Armed Robber contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (special Provisions) Act Cap 398 Vol. XXII, Laws of the Federation of Nigeria 1990 as Amended. 7 (Seven) counts in all but the appellant is related to only 1 – 6 of the Courts contained in the information.
For better clarity I shall re-cast the counts as they appeared in the Court of trial; viz:-
- STATEMENT OF OFFENCE
Conspiracy to commit felony to wit: Armed Robbery contrary to Section 5 (b) and publishable under Section 1 (2) (a) of the Robbery and Firearms (special Provisions) Act Cap.398 Vol. XXII, Laws of the Federation of Nigeria 1990 as amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’, Ifeanyi Mojekwu ‘M’, Chukwudi Okeke ‘M’, Obinna John ‘M’, Obasi Onyenye ‘M’, Okechukwu Nwesi ‘M’, on or about the 7th day of May, 2003 at Idi-Ayunre, along Ibadan – Ijebu-Ode Road, Ibadan, in the Ibadan Judicial Division did conspire together to rob Saudatu Yusuf, Bayo Owusu, Adedapo Busayo, Asuquo Jackson and Hammed Lawal of their valuable property.
- STATEMENT OF OFFENCE
Armed Robbery, contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Volume XXII, Laws of the Federation of Nigeria, 1990 as amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’, Ifeanyi Mojekwu ‘M’, Chukwudi Okeke ‘M’, Obinna John ‘M’, Obasi Onyenye ‘M’, Okechukwu Nwesi ‘M’, on or about 7th day of May, 2003 at Idi-Ayunre along Ibadan-Ijebu-Ode Road, Ibadan in the Ibadan Judicial Division whilst armed with fire-arms and offensive weapons to wit: Guns robbed one Saudatu Yusuf of the five hundred thousand naira only (N500,000.00).
- STATEMENT OF OFFENCE
Armed robbery contrary to and punishable under section 1(2) (a) of the Robbery and Fire-arms (Special Provisions) Act, Cap. 398 Vol. XXII, Laws of the Federation of Nigeria 1990, as Amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’, Ifeanyi Mojekwu ‘M’, Chukwudi Okeke ‘M’, Obinna John ‘M’, Obasi Onyenye ‘M’, Okechukwu Nwesi ‘M’, on or about the 7th day of May, 2003 at Idi-Ayunre along Ibadan-Ijebu-Ode Road, Ibadan in the Ibadan Judicial Division whilst armed with firearms and offensive weapons to wit: Guns robbed one Bayo Owusu of his one hundred and eighty thousand naira (N180,000.00).
- STATEMENT OF OFFENCE
Armed Robbery Contrary to and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.398 Vol. XXII, Laws of the Federation of Nigeria 1990, as Amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’, Ifeanyi Mojekwu ‘M’, Chukwudi Okeke ‘M’, Obinna John ‘M’, Obasi Onyenye ‘M’, Okechukwu Nwesi ‘M’, on or about the 7th day of May, 2003 at Idi-Ayunre along Ibadan-Ijebu-Ode Road, Ibadan in the Ibadan Judicial Division whilst armed with firearms and offensive weapons to wit: Guns robbed one Adebayo Busayo of his three hundred and seven thousand naira (N307,000.00).
- STATEMENT OF OFFENCE
Armed Robbery Contrary to and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.398 Vol. XXII, Laws of the Federation of Nigeria 1990, as Amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’, Ifeanyi Mojekwu ‘M’, Chukwudi Okeke ‘M’, Obinna John ‘M’, Obasi Onyenye ‘M’, Okechukwu Nwesi ‘M’, on or about the 7th day of May, 2003 at Idi-Ayunre along Ibadan-Ijebu-Ode Road, Ibadan in the Ibadan Judicial Division whilst armed with firearms and offensive weapons to wit: Guns robbed one Asuquo Jackson of his thirty thousand naira (N30,000.00).
- STATEMENT OF OFFENCE
Armed Robbery Contrary to and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap.398 Vol. XXII, Laws of the Federation of Nigeria 1990, as Amended.
PARTICULARS OF OFFENCE
Francis Oguegbu ‘M’, Ifeanyi Mojekwu ‘M’, Chukwudi Okeke ‘M’, Obinna John ‘M’, Obasi Onyenye ‘M’, Okechukwu Nwesi ‘M’, on or about the 7th day of May, 2003 at Idi-Ayunre along Ibadan-Ijebu-Ode Road, Ibadan in the Ibadan Judicial Division whilst armed with firearms and offensive weapons to wit: Guns robbed one Hammed Lawal of his four hundred thousand naira (N400,000.00).
- STATEMENT OF OFFENCE
Sheltering armed Robber Contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Fire-arms (Special provisions) Act, Cap.398 Vol. XXII, Laws of the Federation of Nigeria, 1990 as Amended.
The prosecution lined up 18 (eighteen) witnesses and the proofs of evidence are contained on pages 6 to 27 of the Record.
The Statement of the Accused Persons including that of the Appellant are on pages 28 – 41 of the Record.
The Appellant made only two statements and are contained on pages 35 – 37 of the Record.
The consent of the Judge for the preferment of a Criminal Information against the accused persons including the Appellant is to be found on page 42 of the Record.
On the 13th day of April, 2005 on the application of the prosecution, the names of the 1st, 2nd, and 3rd accused were struck of the Information.
Pursuant to the striking out of the names of the 1st, 2nd and 3rd accused persons from the Information, the appellant became the 2nd accused thereafter even though he was sometimes referred to as the 3rd accused in the record of proceedings.
Trial of the accused persons including the Appellant commenced at the High Court Coram: Honourable Justice E. Esan on the 13th day of April, 2005 and the plea of the accused persons is on pages 44 – 45 of the Record.
The prosecution called 7 (seven) witnesses in all and tendered Exhibits A, B & B1, C, D, E and F; signal from Iyaganku Police to State CID Statement of the accused persons including the Appellants and a kionko motorcycle with Reg. OY4571 respectively.
At the close of the case for the prosecution, a no-case submission was made on behalf of the accused persons including the Appellant.
In a considered ruling on the 28th day of July, 2005, the learned trial Judge dismissed the no-case submission made on behalf of the accused persons including the Appellant save the 4th accused whom the learned trial Judge discharged under section 286 of the Criminal Procedure Law. The accused persons were thereafter called upon to enter into their defence.
The defence of the accused persons is on pages 69 – 72 of the Record. The defence of the Appellant as 2nd Accused is on pages 70 – 71 of the Record.
At the close of the case for the Defence, the prosecution effected a minor amendment to the Information and plea of the accused persons were accordingly taken again.
The addresses of counsel on behalf of the accused persons and the address of the prosecuting counsel are on pages 75 – 80.
In a considered judgment, the trial Court convicted and sentenced the accused persons including the Appellant on counts 1, 2, 3, 4 and 6 accordingly.
The Appellant who was the 2nd accused before the High Court filed 5 (five) grounds of appeal to the Court of Appeal, Ibadan Division as follows:-
(i) The learned trial Judge erred in law when he held as follows”-
“In the instant case, the confessional statements of the accused persons are corroborated by testimony of witnesses for the prosecution which confirmed that a luxury bus was robbed on 7/5/2003. That the 1st accused bought two motorcycles as shown by the receipt Exhibit ‘F’ for the sum of N160,000.00 out of his own share of the robbery proceeds. The 2nd and 3rd accused admitted selling drugged pure water to the passengers and sharing in part of the stolen money” and which findings weighed heavily in the mind of the learned trial Judge in convicting the Appellant.
PARTICULARS
(a) The purported confessional statement of the appellant did not satisfy any of the conditions laid down in R. V. Sykes (1913) 8 C.A.R. 233 and approved by the Supreme Court in Jona Dawa & Anor v. The State (1980) 8 – 10 SC 235 at 267.
(b) The purported confessional statement of the appellant did not admit clearly and unequivocally of robbing a G.U.O. Bus on the 7th of May, 2003.
(c) An admission of selling drugged pure water is not synonymous with robbing while armed with firearms or any offensive weapon within the meaning of Section 1 (2) (a) of the Robbery and firearms (Special Provisions) Act.
(d) The said confessional statement was retracted during trial.
(e) There were no other credible pieces of evidence to corroborate the said confessional statement.
(f) The learned trial Judge in the absence of direct evidence relied on circumstantial evidence which fell for below the standard required in coming to the conclusion.
(ii) The learned trial Judge erred in law when in finding the accused guilty of the offence charged she held as follows:-
“I am therefore of the firm view that apart from the Confessional Statements of the accused persons which could without more be relied upon in convicting them, other pieces of evidence as stated above corroborate their Confessional Statement and irresistible point to the guilt of the three accused persons.”
PARTICULARS
(a) The said Confessional Statement of the appellant did not satisfy the conditions laid down in R. V. Sykes (1913) C.A.R. 233 and approved by the Supreme Court in Jona Dawa & Anor v. The State (1980) 8 – 10 SC 235 at 267.
(b) The said Confessional Statement of the appellant did not agree clearly and unequivocally that the appellant committed the offence he is charged with.
(c) There were no other credible pieces of evidence to corroborate the said Confessional Statement.
(d) The said Confessional Statement was retracted during trial in Court.
(e) The learned trial Judge in the absence of direct evidence relied on circumstantial evidence which fell for below the standard required in coming to the conclusion.
(iii) The learned trial Judge erred in law when he held as follows:-
“It is therefore my Judgment that the 1st accused Obinna John, the 2nd accused Obasi Onyeye and the 3rd accused Okechukwu Nwesi on or about the 7th day of May, 2003 whilst armed with firearms and offensive weapons took part in robbing Saudat Yusuf, Bayo Adewusu (sic) Adedapo Busayo and Hammed Lawal of their valuable properties. The prosecution has proved Count 2, 3, 4 and 6 beyond reasonable doubt. Each accused is found guilty and accordingly convicted in Counts 2, 3, 4 and 6 respectively.”
PARTICULARS
(a) There was before the court no single proof that the appellant or any of the accused person was armed with firearms or offensive weapons.
(b) The evidence before the Court was that the Appellant was in fact not present at the scene of the crime.
(c) The learned trial Judge in the absence of direct evidence relied heavily on circumstantial evidence which fell far below the standard required.
(d) The learned trail Judge relied on the statement of the appellant which she erroneously held to be confessional.
(iv) The learned trial Judge erred in law in finding the accused persons guilty of the offence of conspiracy as charged when there was no cogent evidence directly or inferentially establishing a common or mutual criminal purpose.
PARTICULARS
(a) An agreement to drug pure water to sell to the passengers of the luxury bus in order to make them fall asleep in their journey is not synonymous with an agreement to commit armed robbery.
(b) None of the purported confessional statements confessed to being armed with firearms or any offensive weapon and no concrete evidence of the use of firearms or any offensive weapon was adduced by the prosecution during trial.
(v) The learned trial Judge erred in law in relying on circumstantial evidence which fell far below the standard required in convicting the appellant.
The appellant before the Court of Appeal sought for and was granted extension of time within which to file the Appellant’s Brief of argument on the 21st January, 2008.
Appellant’s Brief of argument before the Court of Appeal which was deemed properly filed is on page 108 of the Record.
Respondent’s Brief of Argument before the Court of Appeal was also filed. The Appeal was heard, considered and determined and the court below delivering its judgment on the 17th day of December, 2009 dismissed the appeal wherefore the Appellant filed a Notice of Appeal of two grounds before this Court.
On the 8th day of March 2012 date of hearing, the appellant’s counsel, Kolawole Esan adopted the Brief of Argument of the appellant settled by himself and filed on 31/8/10 in which were couched two issues for determination as follows:-
(i) Whether Exhibit ‘C’ which authorship was not settled by the learned trial Judge in her judgment was direct, positive, duly made and satisfactorily proved and whether the statement in fact incriminated the Appellant to warrant conviction by the learned trial Judge and a dismissal of the appellant’s appeal by the learned Justices of the Court of Appeal.
(ii) Whether Exhibit ‘C’ which authorship was not settled by the trial Court but relied upon as a confessional statement and confirmed as such by the learned Justices of the Court of Appeal met the required standard to confirm the Judgment of the trial court and whether the learned Justices of the Court of Appeal did not err in law in not distinguishing between retraction and authorship of Exhibit ‘C’.
Learned counsel for the Respondent, Mr. Adebayo adopted the Brief of Argument on behalf of the Respondent settled by O. A. Ladapo Esq. and filed on 17/9/10. The Respondent had formulated a single issue as follows:-
Whether the learned justices of the appeal were right in holding that Exhibit “C” is a confessional statement admitting the charge of conspiracy to commit armed robbery and armed robbery and rightly relied on same to confirm the conviction of the appellant.
Mr. Esan, learned counsel for the Appellant submitted that Exhibit ‘C’ held to be a confessional statement of the appellant was not direct, positive, duly made, satisfactorily proved to warrant a confirmation in the judgment of the two courts below. That Exhibit ‘C’ did not incriminate the appellant and had not met the required standard of a confessional statement. He cited Daniels v. State (1991) 8 NWLR (Pt. 211) 715 at 730; Gbadamosi v. State (1992) 9 NWLR (Pt. 266) 465 at 479.
He stated that it is the law that a free and voluntary confessional statement alone properly taken, tendered and admitted and which passes the six tests in R. V. Sykes (1913) 18 C.A.R. 233 approved and applied in Dawa v State (1980) 8 – 11 SC 236 is sufficient to ground a conviction. That the Exhibit ‘C’ in this instance has not met those conditions to merit the conviction of the appellant upon it.
For the appellant was contended that the Court of Appeal failed to observe, that the trial Court could not have been referring to Exhibit ‘C’ said to have been made by the Appellant when the trial Judge held that the Exhibit was admitted after a trial with trial. That the Court below ought to have viewed Exhibit ‘C’ as a document shrouded in mystery and it being a document of fundamental basis upon which the trial court found the conviction and sentence of the appellant. That the Court below ought to have found that Exhibit ‘C’ was unreliable to ground the conviction of the appellant. He cited Nwosu v. The State (1986) 4 NWLR (pt. 35) 348 at 359; Hycienth Egbe v. The King (1950) 13 WACA 105 at 106.
Learned counsel for the Respondent submitted that a confessional statement as Exhibit ‘C’ is the statement of the accused/appellant which states or suggests that he committed the alleged offences that it is not necessary that the statement be a verbatim report of what transpired or for all ingredients of the alleged offences to be present in the confessional statement.
Mr. Adebayo of counsel for the Respondent contended that the learned trial Judge sought external facts in corroboration of the statement of the appellant and his other co-accused which he got. He cited Alarape & Ors v. The State (2001) 5 NWLR (Pt. 705) P.79 at 88 & 99; R V. Sykes (1913) 8 CAR 233 at 236.
That in order to establish the offence of armed robbery which is covered in counts 2, 3, 4 and 6 the prosecution must lead evidence to prove the following ingredients:
- That there must have been a robbery or a series of robberies.
- That each robbery was an armed robbery.
- That the accused was one of those who took part in the robbery or robberies.
That the prosecution adequately proved those ingredients. He referred to Bozin v. The State (1985) 2 NWLR (Pt.8) 465.
Mr. Adebayo went on to state that the test of the appellant’s liability under Section 8 of the Criminal Code Law is whether the act complained of is a probable consequence of the prosecution of their joint intention to carry out an unlawful act and that it is irrelevant who actually held the gun, because once one of them was in possession of a gun, his hand is deemed to be the hand of all of them. He cited Alarape v. The State (2001) 5 NWLR (Pt. 705) 79.
He said by virtue of Section 6 (a) and (b) of the Robbery and Firearms Act the presence of a co-accused at the scene of the crime is irrelevant once such co-accused conspired with, aided, abetted and or counseled others who were present at the scene. Also that the charge of conspiracy is complete once there is a meeting of the mind of two or more persons on an agreement to carry out an unlawful act and this could be established from the conversation of the accused persons or their conduct. He referred to Obiakor v. The State (2002) 10 NWLR (Pt.775) 612 at 628; Gbadamosi v. The State (1991) 6 NWLR (Pt. 196) 182 at 204.
For the Respondent was contended in conclusion that criminal charges as the case in hand can be proved in any of the following ways or by a combination of them that is:
(1) By the direct evidence of an eye witness.
(2) By circumstantial evidence
(3) By a confessional statement.
He cited Igabele v The State (2005) 2 SC (Pt. 11) 61 at 79.
That in this case a combination of these three types of evidence were placed before the trial court, used by the trial court in arriving at its decision and affirmed by the Court of Appeal. That it is submitted that this Court will not normally disturb concurrent findings of facts which have been accepted and relied on by the two lower courts, except such concurrent findings are found to be perverse or a violation of some principle of law or practice which leads to a miscarriage of justice. He cited Abdullahi v. The State (1985) 1 NWLR (Pt. 3) 523 at 529.
The basis of the contest between the parties in this appeal is captured briefly as follows:-
The Appellant’s points of view are that the learned justices of the Court of Appeal failed to observe that Exhibit ‘C’ relied solely and heavily upon by the trial Judge did not satisfy the conditions laid down in the case of R v Skyes 8 C.A.R. 233 and approved by the Supreme Court in Jona Dawa & Anor v State (1980) 8 – 11 SC 236 at 267. Also that the justices of the Court below failed to observe that Exhibit ‘C’ relied upon by the trial Judge did not agree clearly and unequivocally that the appellant committed the offence.
The Appellant further held the view that when he as accused denied the authorship of Exhibit ‘C’, the trial Judge still had a duty to determine whether or not the accused made the statement at the end of the trial which failure rendered Exhibit ‘C’ a mystery. Also that the Court below ought to have determined the misconception by the trial Judge that Exhibit ‘C’ was admitted after a trial within trial which was not the case and thereby a miscarriage of justice ensued.
The stance of the Respondent on the other hand is that Exhibit ‘C’, the extra judicial statement of the Appellant being a confessional statement the trial Judge was right to use it along with other corroborative pieces of evidence in convicting the Appellant which decision the Court of Appeal was right in upholding.
The single issue crafted by the Respondent captures the dispute properly and fully and I do not hesitate in utilizing it in the determination of this appeal.
SINGLE ISSUE:
Whether the learned justices of the Court of Appeal were right in holding that Exhibit ‘C’ is a Confessional Statement admitting the charge of conspiracy to commit armed robbery and armed robbery and rightly relied on same to confirm the conviction of the Appellant.
The learned counsel for the Appellant proceeded from the point that the admission in Exhibit ‘C’ by the appellant that he drugged the pure water which he sold to the passengers did not cover the main transaction of the armed robbery that followed. That the situation was such that it could be taken that the tests upon which a confessional statement alone could be used to ground a conviction had not been made out. The tests as stated in R V Skyes (1913) 18 C.A.R. 233 which were approved and followed in Dawa v. State (1980) 8 – 11 SC 236 are as follows:-
(a) Is there anything outside it to show that it is true
(b) Is it corroborated
(c) Are the Statements made in it of fact, true as far as they can be tested
(d) Was the prisoner one who had the opportunity of committing the offence
(e) Is his confession possible
(f) Is it consistent with other facts which have been ascertained and which have been proved
As a re-cap of what transpired at the trial Court, PW7 Sergeant Olarinmoye Oladepo testified that he investigated the allegation of the offences aforesaid against the Appellant and others. That he had recorded the statement of the Appellant who had signed and which statement was tendered by PW7 and admitted as Exhibit ‘C’ without objection. It was after the tendering that learned counsel for the Appellant set out to challenge the authorship of that statement.
It seems to me needful to quote the material part of Exhibit ‘C’, viz:-
“It is true that I, and three others namely Obinna John, Okechukwu and Onyekachi jointly went to the luxurious bus to sell the pure water which we have already drugged and sell it to the passenger so that they can sleep in the vehicle to enable us robbed (sic) them of their money and properties. After selling the pure water that has already been drugged (sic) to the passengers, one Obinna John, Onyekachi and Okechukwu jointly followed the vehicle to Onitsha but when they came back, the second day, I was not given any share which brought about disagreement and fight among ourselves.”
The definition of a Confession as provided for in Section 27 (1) and 2 of the Evidence Act are as follows:-
“27 (1): A confession is an admission made at anytime by a person charged with a crime, stating or suggesting the inference that he committed that crime.
(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only.”
From this definition in Section 27 (1), (2) of the Evidence Act it can be seen and clearly too and positioned side by side the tests stated in R V Skyes (supra) and followed by this Court in Dawa v. State (supra), that the confessional statement Exhibit ‘C’ has been shown to be true, corroborated, the appellant having the opportunity of committing the offence and the possibility of the confession alongside the other facts part of the full illegal transaction.
It was therefore not necessary for the appellant to have further participated in the ongoing process as the luxurious bus went on the journey and the robbery fully implemented.
It is evident that the conclusion could be reached from the confession placed side by side with other facts that came out which presumptions are that the appellant was in the full picture of what was in the offing, took part at the inception, put in place the facilitating process which was to get the passengers asleep and make it easier for the other participants in the unlawful act to carry out the dastardly operation. The fact that he did not go along the drive and carry out any further activity changed nothing as the appellant’s status had been established as he was part and parcel of the entire deal without even being physically present at the time the robbery proper was carried out. Indeed Exhibit ‘C’ provided an established and proven fact that there was a flow from the appellant and the co-accused. See Alarape & Ors v. State (2001) 5 NWLR (Pt. 705) 79 at 98 – 99.
The essential ingredients of the offence of armed robbery as stated in counts 2, 3, 4 and 6 were adequately established in that there was a robbery within the definition of the offence and the accused/appellant was one of those who took part. The evidence as proffered by PW1, PW4, PW5 and PW6 showed that there was a robbery incident on the 7th of May, 2003 in a G.O.U. Luxury bus at Idi Ayunre, Ibadan after the bus had taken off from the park at Mokolo, Ibadan which date and incident tallied with the details in Exhibit ‘C’.
There was enough from which the trial Court could deduce that there was a common intention formed amongst the accused persons including the appellant, which common intention he had set the ball rolling in the drugged water he made available to the hapless passengers in the quest to make the operation easier for his colleagues. It therefore did not matter that appellant did not carry a gun or any weapon or was not present at the time the robbery was carried out as Section 7 and 8 of the Criminal Code Law saw to that. This is reinforced by section 6 (a) and (b) of the Robbery and Firearms Act which provide that the presence of a co-accused at the scene of crime is irrelevant once such co-accused conspired with, aided, abetted and or counseled others who were present at the scene. The section provided unequivocally that such an absent co-accused 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 the Act.
On the issue of the offence of conspiracy there is a surfeit of evidence linking the appellant with the others borne out plainly by his own role in the entire transaction. The meeting of the minds was present and emphasized in this instance by the part played by the appellant. Plainly there was direct evidence in this case, circumstantial evidence and the damning confessional statement. All these the trial court found and the Court of Appeal had nothing upon which it could upset those findings which that court below upheld. See Obiakor v. State (2002) 10 NWLR (Pt. 776) 612 at 628; Gbadamosi v. State (1991) 6 NWLR (Pt.196) 182 at 204; Igabele v. State (2005) 2 SC (Pt.11) 61 at 79; Abdullahi v. State (1985) 1 NWLR (Pt. 3) 523 at 529.
The concurrent findings of the two Courts below are unassailable and the mistake of the trial Judge in stating that the confessional Statement, Exhibit ‘C’ was admitted after a trial within trial was a mere human error which neither occasioned a miscarriage of justice nor changed the fact that the appellant made the statement and voluntarily too. There was no need in fact the issue did not come up as to the voluntariness or otherwise of the statement which would have mandated the trial within trial procedure. Therefore such an issue not arising the error in stating that a trial within trial took place which did not were of no moment and did not improve the case of the appellant.
Definitely there is no basis for a different finding at this stage and the only conclusion is that the concurrent findings, judgments, conviction and sentence stand. This appeal lacking in merit is dismissed.
SC.306/2010
