In The Supreme Court of Nigeria
On Friday, the 15th day of December, 2017
Before Their Lordships
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria
EJEMBI EKO Justice of The Supreme Court of Nigeria
PETER OGU –Appellant
COMMISSIONER OF POLICE – Respondent
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant herein and two others were charged before the High Court of the Federal Capital Territory, Abuja on a four count charge of criminal conspiracy, armed robbery, culpable homicide and rape, contrary to Sections 97, 298, 221 and 283 respectively of the Penal Code of Northern Nigeria. It was alleged that on the 28th day of January 2006 at about 0230 hours at Dape Village, Life Camp, Abuja, the appellant and his co-accused conspired to rob and did rob one Ochokwu Ene (m) of a set of V.C.D. and shot him dead. It was alleged that on the same date and at the same place and time, while armed with a gun and other dangerous weapons, they also robbed one Emmanuel Abu (m) and raped one Hadiza Ochokwu (f), wife of the deceased. All the accused persons pleaded not guilty to the charge. The prosecution called five witnesses to establish its case. The appellant and his co-accused testified on their own behalf and did not call any other witness. At the conclusion of the trial, in a considered judgment delivered on 15/11/2011, all the accused persons were acquitted and discharged on the charges of rape and culpable homicide for lack of evidence. The 3rd accused, Olukayode Johnson was found not guilty on each of the counts and accordingly acquitted and discharged. The appellant and the 2nd accused were found guilty and convicted on the charges for conspiracy and armed robbery. On the charge for conspiracy, they were sentenced to five years imprisonment each, On the charge for armed robbery they were each sentenced to ten years imprisonment and a fine of N10,000.00. The sentences are to run consecutively. The appellant’s appeal to the Court of Appeal, Abuja Division was dismissed on 17th December, 2012. He is still dissatisfied, hence the instant appeal.At the hearing of the appeal on 12/10/2017, ALIYU SAIKI ESQ., leading two other counsel, adopted and relied on the appellant’s amended brief of argument deemed filed on 20/10/2016 in urging the Court to allow the appeal. AISHA EGELE ESQ., adopted and relied on the amended respondent’s brief deemed filed on 12/10/2017 in urging the Court to dismiss the appeal.
Learned counsel for the appellant distilled two issues for the determination of this appeal, to wit:
1. Whether the Court below was right in affirming the conviction of the appellant on the ground that the reliance placed on the alleged confessional statement Exhibit A to convict the appellant was in order and well founded. (Ground 2)
2 Whether there was sufficient evidence before the Court linking the appellant with the commission of the offences of conspiracy and armed robbery to warrant the affirmation of his conviction by the Court below. (Grounds 1 & 3).
Learned counsel for the respondent also formulated two issues thus:
1. Whether the reliance placed on a confessional statement Exhibit A in affirming the conviction of the appellant by the Court below was justified. (Ground 2)
2. Whether based on the evidence adduced, the Court below was wrong in affirming the conviction and sentence of the appellant for the offences of conspiracy and armed robbery (Grounds 1 & 3).
The issues formulated by both parties are the same, though differently worded. I shall therefore adopt the issues formulated by the appellant for the resolution of the appeal. I shall take the two issues together.
Arguing the first issue, learned counsel for the appellant, relying on Igabele v. The State (2006) 6 NWLR (Pt.976) 100; Ani v. The State (2003) 11 NWLR (Pt.830) 142 & Alor v. The State (1997) 4 NWLR (Pt.505) 511, submitted that the prosecution has the burden throughout the trial of establishing the guilt of the accused beyond reasonable doubt. He submitted that in discharging the burden of proof, the prosecution must provide admissible, compelling, conclusive and undoubted evidence. He referred to Section 138 (1) of the Evidence Act; Joseph Vs The State (2011) 16 NWLR (Pt.1273) 226 @ 241; Onakoya v. FRN (2002) 11 NWLR (Pt.779) 595. He submitted that the prosecution may secure a conviction either through the confessional statement of the accused, eye witness account of the crime or the circumstances surrounding the commission of the offence.
He submitted, relying on Saidu Vs The State (1982) NSCC Vol.12 70 and Section 29 (2) of the Evidence Act, that a confession is only relevant where it is voluntarily made. He submitted that in the instant case, the appellant challenged the voluntariness of his statement when the prosecution sought to tender it and the trial Court commenced proceedings in a Trial Within Trial (TWT) to determine whether or not the statement was obtained under duress, as alleged by the appellant.
He noted further that while PW1 in the TWT (PW5 in the main trial) testified that the appellant made his statement voluntarily, the appellant testified as to how he was tortured and forced to confess to the crime and how, as part of the torture his buttocks was cut with a pair of scissors. He also noted that the appellant showed the area affected on his buttocks to the Court, which the Court duly recorded. He submitted that the learned trial Judge however abruptly terminated the TWT when the appellant, during cross-examination, stated as follows at page 200 of the record:
“I did not make any statement to the police at Karmo and life camp. I did not make any statement but I was forced to sign.”
He submitted that the termination of the TWT was not proper as the appellant did not at any time withdraw his objection to the admissibility of his statement on grounds of duress. He relied on the decision of this Court in Nsofor v. The State (2005) ALL FWLR (Pt.242) 397; (2004) 18 NWLR (Pt.905) 292, where the trial Court failed to conduct a trial within trial but immediately admitted the confessional statement of one of the accused persons in evidence when, in objecting to its admissibility, learned counsel informed the Court that he did not make any statement and was forced to sign the one sought to be tendered. He submitted that in Nsofors case supra and Dawa vs. The State (1980) 8 11 SC 236 @ 258, it was held that the Court ought to have taken the circumstances surrounding the signing of the confessional statement into account and conducted a trial within trial. He argued that the abrupt termination of the TWT is akin to failure to conduct same and that the Lower Court erred in holding that the statement was rightly admitted in evidence. He referred to the evidence of PW2, a former suspect who became a witness for the prosecution at page 188 of the record, where he testified that the appellant and the 2nd accused were taken to “the theatre” and flogged to confess to committing the crime and submitted that his evidence, which was already before the Court, corroborated the appellant’s evidence of being tortured. He conceded that PW2 did not testify in the TWT. He maintained that the confessional statement, Exhibit A was wrongly admitted in evidence and ought to have been expunged by the Court below and therefore the reliance placed on it was erroneous.
In respect of the second issue, learned counsel submitted that in order to prove its case beyond reasonable doubt, the prosecution has a duty to prove all the elements of the offence. He submitted that a key element is the identity of the accused person as one of those who participated in the crime. He submitted that one of methods of proving the identity of an accused person is by conducting an identification parade. Relying on Balogun Vs AG Ogun State (2002) FWLR (Pt.100) 1287; Archibong vs. The State (2006) FWLR (Pt.323) 1747, he conceded that an identification parade is not necessary in every case, such as where the witness claims to know the accused, but submitted that an identification parade must be conducted where the accused person was not arrested at the scene of crime or where the witness saw the accused for a very short time or in circumstances in which he would not have had a full opportunity of identifying the features of the accused. He cited: Alabi v. The State (1993) 7 NWLR (Pt.307) 511 @ 524-525 G – A; 532 -533 H – A; Archibong vs The State (supra).
Learned counsel argued that the appellant was not arrested at the scene of crime but three days later and that although PW3, the victim, in his statements to the Police, stated that he could identify the perpetrators of the crime, he did not give any description nor mention any features that made it possible for him to identify the appellant. He referred to: Isibor v. The State (2002) FWLR (Pt.98) 843. He contended that in his testimony in Court, he stated that he was able to identify the appellant because the deceased flashed a torchlight on his face, a fact not contained in his statements to the Police a few days after the incident. He submitted that his evidence in this regard was an afterthought and that the inconsistency between his evidence on oath and his extra judicial statements renders his evidence unreliable. He submitted that the fact that PW3 said the deceased used a torch light suggests that there was no light at the time of the robbery, which made it more crucial for the witness to have stated the basis on which he could identify the appellant at the earliest opportunity. He contended that unless there is other evidence before the Court to show the correctness of the identification, the Court ought to return a verdict of not guilty.
See: Abdullahi Vs The State (2005) ALL FWLR (Pt.263) 698 @ 715.
He submitted that the evidence led by the prosecution is replete with contradictions. At paragraphs 5.13 – 5.16 at pages 22 to 24 of his brief, he enumerated the alleged contradictions. He also contended that failure to tender the items allegedly recovered by the Police is fatal to the prosecution’s case. He submitted that although it has been established that there was a robbery and that it was an armed robbery, the prosecution failed to prove the third ingredient of the offence i.e.
that the appellant was one of those who committed the crime. He argued that there is no credible evidence outside Exhibit A to establish beyond reasonable doubt that the appellant committed the offences for which he was convicted.
In response to the submissions above, learned counsel for the respondent conceded that having regard to Sections 28 and 29 of the Evidence Act 2011, the confessional statement of an accused person is only admissible in evidence if it was made voluntarily. She submitted that having stated under cross examination in the trial within trial that he did not make any statement to the Police at Life camp but was forced to sign, he had impliedly withdrawn his earlier objection to its admissibility. She contended that it amounts to a retraction of the confessional statement, which does not preclude the Court from admitting it in evidence. She relied on: Obidiozo Vs The State (1987) 4 NWLR (Pt.67) 748; Ehot Vs The State (1993) 4 NWLR (290) 1. She submitted that the trial Court was right to have discontinued the TWT and that the case ofNsofor Vs The State (supra) is not applicable to this case. She argued that the contention that the evidence of PW2 ought to have weighed in favour of the continuation of the trial, as the said PW2 could have been a potential witness, is misconceived, as there was no indication by the appellant that he intended to call PW2 as a witness.
Relying on Ubierho Vs The State (2005) 5 NWLR (Pt.919) 644 @ 655, she submitted that it is settled law that a conviction could be based solely on the confessional statement of an accused person, so long as it is direct and positive, pointing in only in one direction, that is, the guilt of the accused. In support, she cited: Odu Vs FRN (2002) 5 NWLR (Pt.761) 615; Major Amachree Vs Nigerian Army (2003) 3 NWLR (807) 256. She submitted further that this Court in Ubierho Vs The State (supra) and Madjemu Vs The State (2001) 9 NWLR (Pt.718) 349 set out certain guidelines the Court must bear in mind before according evidential value or weight to a confessional statement. She enumerated them as follows:
(i) Whether there is anything outside the confession which shows that it may be true;
(ii) Whether the confessional statement is in fact corroborated;
(iii) Whether the relevant statements of fact made in it are most likely true;
(iv) Whether the accused had the opportunity of committing the offence;
(v) Whether the confession is possible;
(vi) Whether the alleged confession is consistent with other facts that have been ascertained and established.
She submitted that the evidence of PW3, a victim and eye witness to the armed robbery corroborated the facts narrated in Exhibit A. She submitted further that the evidence of PW2, a former suspect turned prosecution witness, who testified to the effect that he acted as a spy for the armed robbery gang, is also corroborative of Exhibit A. She submitted that PW2’s evidence shows that the appellant had the opportunity to commit the offence, She submitted that notwithstanding the retraction of Exhibit A, the trial Court was entitled to rely on it in convicting the appellant. She referred to:Nkwuda Edamine Vs The State (1996) 3 NWLR (Pt.438) 530; Dapere Gira Vs The State (1996) 4 NWLR (Pt.443) 375 @ 388.
On the second issue, she submitted that by virtue of Section 138 of the Evidence Act, the prosecution has the burden of proving all the elements of each offence with which the accused is charged beyond reasonable doubt. She set out the ingredients for the offence of criminal conspiracy under Section 97 of the Penal Code and Armed Robbery contrary to Section 298 of the Code. On conspiracy, she referred to: Obiakor Vs The State (2002) 6 SC (Pt.II) 33 @ 39 40, while on armed robbery she relied on Bozin Vs The State (1985) 2 NWLR (Pt.8) 465 and Ikemson vs. The State (1989) 3 NWLR (Pt.110) 455. She submitted that as regards the charge for armed robbery, the identity of the appellant as one of those who participated in the crime is crucial. She noted that such identification could be by voice, picture, physical features, identification parade, among others. She agreed with learned counsel for the appellant that it is not in every case that an identification parade must be conducted. For the circumstances in which an identification would be conducted, she cited: Alabi V. The State (1993) 7 NWLR (Pt.307) 511 @ 524 525.
Learned counsel submitted that of the five prosecution witnesses who testified, the evidence of PW3, the victim and eye witness to the armed robbery and PW2, a member of the appellant’s gang, was crucial in establishing his guilt. She noted that PW3 identified the appellant from an identification parade, which consisted of 12 men. She also submitted that he testified that he was able to recognise the appellant because the deceased flashed a torchlight in his face. She submitted that the evidence of PW3 was corroborated by PW2 as to how the robbery operation was carried out. On what amounts to
corroborative evidence, she referred to: Ofoke Nwambe v. The State (1995) 3 NWLR (Pt.384) 385 @ 407 G H. She submitted that all the elements of the offence of armed robbery were established beyond reasonable doubt.
On the alleged contradictions in the evidence of the prosecution witnesses, she submitted that it is only material contradictions that are fundamental and substantial to the main issues before the Court and which may create doubt in the mind of the Court that would be resolved in favour of the accused person. She referred to: Samuel Theophilus v. The State (1996) 1 NWLR (Pt.423) 139 @ 155 A B; Ikemson v. The State (supra) @ 479 G; Awopeju v. The State (2002) 3 MJSC 141 @ 151. On the failure to tender the items recovered, she submitted that failure to tender the items will not be fatal to the prosecutions case, if there is sufficient evidence to establish the ingredients of the offences charged beyond reasonable doubt, as in this case. She argued that once the prosecution had discharged the burden of proof, the onus shifted to the appellant to lead evidence in rebuttal. She observed that the appellant failed to address the charges against him and chose to concentrate his efforts on challenging the admissibility of his confessional statement. She urged the Court to resolve both issues against the appellant and affirm the concurrent findings of the trial and intermediate Courts.
Section 36 (5) of the 1999 Constitution provides that every person charged with a criminal offence shall be presumed innocent until proved guilty. By virtue of Section 135 (1) of the Evidence Act 2011, the standard of proof in any criminal proceeding is beyond reasonable doubt. The burden of proving the guilt of the accused person rests squarely on the prosecution and does not shift. However, where the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt shifts to the accused person. See Section 135 (3) of the Evidence Act. See also: Abokokuyanro Vs The State (2016) LPELR-40107 (SC) @ 33 – 34 E – A; Esangbedo Vs The State (1989) 4 NWLR (Pt.113) 57 @ 69 – 70 H A; Udo Vs The State (2006) 15 NWLR (Pt.1001) 361; Okoh Vs The State (2014) LPELR-22589 (SC) @ 22 – 23 F – B. The burden of proving the existence of any circumstances which bring the case within any exception to or exemption from or qualification to the operation of any law, rests on the accused person. He also has the burden of proving any fact especially within his knowledge. See Sections 139 (1) and 140 of the Evidence Act and the proviso to Section 36 (5) of the Constitution. In order to establish the guilt of an accused person beyond reasonable doubt, the prosecution may rely on (i) eye witness evidence, (ii) circumstantial evidence that leads to the irresistible conclusion that the accused person committed the offence; (iii) the confessional statement of the accused. The prosecution may rely on any one of these methods, or a combination of two or three. See: Abirifon Vs The State (2013) LPELR 20807 (SC); Adio v. The State (1986) 5 SC 194 @ 219 220; Ogunbayode Ogundipe Vs The Queen (1954) 14 WACA 458.
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 (Section 28 Evidence Act). For a confession to be admissible in evidence, the prosecution must satisfy the Court beyond reasonable doubt that it was made voluntarily. If it is shown that it was obtained under duress or in consequence of any form of inducement, the statement will not be admitted by the Court (Section 29 (1) & (2) of the Evidence Act). Of all the methods of proving the guilt of an accused person beyond reasonable doubt, a confessional statement, which is voluntarily made and which is direct, positive and satisfactorily proved, is the most potent of all, coming as it were, “from the horse’s mouth”, It was stated in Adio Vs The State (1986) 2 NWLR (Pt. 24) 581 @ 593 594 H-A thus:
“A free and voluntary confession of by an accused person, if it is direct and positive and satisfactorily proved, should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further corroboration to warrant a conviction unless the trial Court is satisfied that the case has been proved beyond reasonable doubt.”
See also: Abirifon Vs The State (2013) 13 NWLR (Pt.1372) 587 @ 596 B – H & 600 A C; Ubierho Vs The State(2005) 5 NWLR (Pt.919) 644; Kopa Vs The State (1971) 1 All NLR 150; Demo Oseni Vs The State (2012) 5 NWLR (Pt.1293)-351 @ 393 – 394 F – C.
Where an accused person objects to the admissibility of his extra judicial statement, there are different courses open to the Court depending on the nature of the objection. Where it is contended that the statement was not voluntarily made, the
Court must conduct a trial within trial (or mini trial) solely for the purpose of ascertaining whether or not it was made voluntarily. Where the Court finds that the statement was made under duress or as a result of an inducement of any kind, it would be rejected. Where the Court finds that it was freely made, it would be admitted in evidence and considered along with all the other evidence in the case. On the other hand, where the appellant say she did not make the statement sought to be tendered at all, there is no need for a trial within trial to be conducted. The statement would be admitted in evidence and its evidential value would be considered at the conclusion of the trial along with all the other evidence adduced in the case. See: Jimoh v. The State (2014) LPELR 22464 (SC); Gbadamosi & Anor v. The State (1992) 9 NWLR (Pt.266) 465; Effiong v. The State (1998) 8 NWLR (Pt.562) 362; Owie v. The State (1985) NWLR (Pt.3) 470; Isong v. The State (2016) 14 NWLR (Pt.1531) 96.
In the instant case, unlike in Nsofor’s case supra, upon the objection to the admissibility of the appellant’s extra judicial statement on the ground that it was not voluntarily made, the Court ordered the conduct of a trial within trial. The proceedings of 7/10/2008 at pages 195 – 196 of the record went thus:
“Court: Witness identifies statement.
Pros. Counsel: We apply to tender the statement in evidence,
Def. Counsel: We are objecting to the admissibility of the statement. The accused said he thump (sic) print on the statement he gave to the Police. And in the statement that is sought to be tendered there is no thump (sic) print. But in the accused statement forwarded to us along with the proof of evidence there is a thump (sic) print. The statement that is sought to be tendered was made by him but he was tortured to make the statement. It was not voluntary.
Pros. Counsel: We are ready to conduct a trial within trial.
Court: I order for a trial within trial.
In his evidence in chief in the trial within trial, the appellant gave a detailed account of how he was allegedly tortured. He claimed that apart from being shot, he was cut on the buttocks with a pair of scissors. It is part of the Court’s record that he showed the area on his buttocks to the Court. Under cross examination, he stated thus:
“I did not make any statement to the Police at Karmo and Life Camp, I did not make any statement but I was forced to sign.”
(Underlining mine for emphasis)
At that stage, learned counsel for the prosecution urged the Court to admit the statement in evidence since the appellant stated that he did not make any statement. The statement was accordingly admitted in evidence and marked Exhibit A, thereby aborting the trial within trial. In the course of his judgment, the learned trial Judge noted that during his evidence in chief, the appellant (DW1) testified that when the torture became too much, he “signed the paper by thump (sic) print,” whereas Exhibit A, which was admitted in evidence was signed not thumb printed. He was of the view that by his statement under cross-examination the appellant had retracted his confessional statement and that such retraction was not a bar to its admissibility.
In Nsofor’s case (supra), learned counsel for the 4th accused objected to the admissibility of his statement on the ground that he did not make the statement sought to be tendered but was forced to sign. The learned trial Judge however admitted the appellant’s statement in evidence without first conducting a trial within trial. The objection to the admissibility of the statement in that case was practically on all fours with the instant case. At page 313 F – H of the law report, the proceedings of the trial Court when the statement of the 4th accused (2nd appellant) was sought to be tendered is reproduced. A portion of thereof reads thus:
Akinyele: The 4h accused says he did not make any statement and that he was forced to sign this one.
Court: As I have said earlier, this is not a ground against the admissibility of a statement. Statement dated 5/3/93 is admitted and marked Exhibit E.”
Citing the dictum of Obaseki, JSC in Dawa Vs The State (1980) 8 – 11 SC 236 @ 258 on the inadmissibility of a statement not made voluntarily, Oguntade, JSC opined thus:
“The trial Court ought to have conducted a trial within trial to determine whether or not the 2nd appellant voluntarily made Exhibit E. Rather than do this, the trial Court erroneously accepted that the challenge made to Exhibit E by 2nd appellant’s counsel did not necessitate the conduct of a trial within trial. This clearly was a mistake. The Court below should have held Exhibit E inadmissible in the manner it was admitted.”
Now, it is true that in the instant case, the learned trial Judge ordered the conduct of a trial within trial. It was however aborted in the circumstances already narrated earlier. The question is, did the evidence of the appellant under cross-examination amount to a withdrawal of his objection to the admissibility of his statement? Did it amount to a retraction, as held by the two Lower Courts? I have carefully examined the evidence in chief and cross-examination of the appellant at pages 199 – 200 of the record. I am of the view that the statement made under cross examination should not be read in isolation or out of context but in light of his evidence in chief. I do not agree with the two Lower Courts that it amounted to a withdrawal of his earlier objection. His statement that he did not make statements but was forced to sign what was being tendered supports his contention that he was tortured. As observed by learned counsel for the appellant, there was also before the Court, although not in the trial within trial, the testimony of PW2 to the effect that the appellant and his co-accused were taken to “the theatre” and tortured. These factors ought to have urged caution on the Court. Having commenced the trial within trial, I am of the view that the learned trial Judge ought to have concluded the proceedings and delivered a considered ruling on the admissibility of the statement. By abruptly terminating the trial within trial, the appellant was in the same position as if it had never been conducted at all. In the circumstances, I hold that the appellant’s extra judicial statement, Exhibit A, was wrongly admitted in evidence and ought to have been expunged by the Court below. It is hereby expunged from the record.
I shall now consider whether there was other evidence outside Exhibit A to sustain the appellant’s conviction. As rightly submitted by learned counsel on both sides, in order to secure a conviction for a criminal offence, the prosecution must prove all the ingredients of each offence beyond reasonable doubt. Section 298 (c) of the Penal Code, which is relevant to this appeal, provides as follows:
“298. Whoever commits robbery shall be punished –
(c) if the robbery is committed by any person armed with any dangerous or offensive weapon or instrument to imprisonment for life or any less term and shall also be liable to [a] fine.”
The ingredients of the offence of armed robbery have been stated in a plethora of decisions of this Court. They are:
(a) that there was a robbery or series of robberies;
(b) that each of the robberies was an armed robbery;
(c) that the accused person was the robber or one of those who participated in the armed robbery.
See: Bozin v. The State (1985) 2 NWLR (Pt.8) 465 @ 469 H; Bello v. The State (2007) 10 NWLR (Pt.1043) 564 @ 588 589 H A; Agboola v. The State (2013) 11 NWLR (Pt.1366) 619 @ 641 F G.
In the course of his submissions, learned counsel for the appellant appeared to concede that the first two ingredients of the offence had been established i.e. that there was a robbery and that it was an armed robbery. His grouse is with the third ingredient. He is of the view that there is no credible evidence outside Exhibit A, which has been expunge, that links the appellant with the commission of the offence.
It is relevant at this stage to observe that in his judgment, the learned trial Judge did not rely solely on the appellant’s extra judicial statement to make his findings. He also considered the evidence of PW3, who was an eye witness to the crime as well as the evidence of other witnesses. In reviewing the evidence, His Lordship stated thus at pages 234 – 235 of the record:
“The case for the prosecution as distilled from the evidence of the prosecution witness is that PW4 Lawrence Abu reported a case of criminal conspiracy, armed robbery and culpable homicide to Life Camp Police Station on 28th February 2006. PW1, Sgt, Francis Okara of Life Camp Police Station booked for the scene of crime. He saw the deceased lying on the ground and the door of the deceased house putted out with the window. He took the deceased to Maitama General Hospital where he was confirmed dead. He conducted an identification parade wherein PW3, Emmanuel Abu, identified Peter Ogu (1st accused) as one of the persons who took part in the robbery. PW3, Emmanuel Abu gave an eye witness account of the event that happened on 27/1/2006. He said he was sleeping in the house of his cousin, Mr. Ochokwu (deceased) when at night armed robbers attacked them and collected his money. At the time he heard his cousin, Mr. Ochokwu, making a comment to wit: “Peter, did you mobilise people to come and kill me?” Then Mr. Ochokwu flashed a torch and he (PW3) saw Peter (the 1st accused). Then he heard a gun shot and his cousin, Mr. Ochokwu, fell down, He ran to their neighbours. He came back with their neighbours and they saw the deceased on the ground. He called to inform his brother PW4, a Policeman, Cpl, Lawrence Abu.”
At page 238 of the record, His Lordship observed further:
“In the instant case, apart from the confessional statements i.e. Exhibits A and B, PW3 Emmanuel Abu is an eye witness. He was at the scene of crime and he was also robbed, … PW3 also said he identified Peter Ogu at the Police
His Lordship noted that the law is settled that a Court can convict on the evidence of a single credible witness. What these observations reveal is that the Court found the evidence of PW3, who was not only an eye witness to the crime but also a victim, to be credible. The learned trial Judge correctly stated the position of the law. The evidence of a single witness, if found to be cogent and credible is sufficient, without more, to secure the conviction of a person accused of committing a crime, except where the evidence is such that requires corroboration by law. See: Oguonzee Vs The State (1998) 5 NWLR (Pt.551) 521; Effiong Vs The State(1998) 8 NWLR (Pt.562) 352; Babarinde Vs The State (2014) 3 NWLR (Pt.1395) 568; Akpabio Vs The State (1994) 7 NWLR (Pt.359) 635. Also before the Court was the evidence of PW2, David Udoh, who was initially arrested as a suspect. He testified that he was a member of the armed robbery gang comprising the 3 accused persons. He testified that he was arrested by a vigilante group while walking back from an errand he was sent on by the appellant. He told the vigilante group that the appellant had asked him to take a phone number to the 3rd accused, Olukayode Johnson. He stated that the appellant dropped him at Karmo junction but did not come back for him so he had to walk. That was when he was stopped and queried by the vigilante group, He took them to the house of the 3rd accused and later to Dape where he led them to the 1st and 2nd accused persons. According to him, the four of them were taken to the Police station, first at Karmo and they were later transferred to Life Camp Police Station. At page 188 of the record, he stated further:
“What I know about the man [the deceased] who did (sic) is that Peter [1st accused] told me to go and spy on him because he just returned from travel maybe he would come with any of his relationship (sic). Then I went and did it for him. I came back and I told him I did not see any of the relations of the man and Peter said okay, I never knew he would go and kill the man.”
Under cross-examination by learned counsel for the 1st accused (appellant herein), he stated:
“The deceased is my fathers friend, I do enter the house freely. I was not there when the man died, I was not there when the man was shot.”
Both PW2 and PW3 were consistent in their evidence and remained unshaken under cross examination. PW3 also testified that the police conducted an identification parade and he identified the appellant out of a line-up of 12 men.
In a charge for armed robbery, the identity of the accused person as the robber or one of those who participated in the offence is always in issue. It is one of the ingredients of the offence that must be proved beyond reasonable doubt. An identification parade is only one of several ways of identifying the perpetrator of a crime. Where an accused person is arrested at the scene of crime or spontaneously identified shortly after its commission by one of the victims, an identification parade is not required. Similarly where the accused person was well known to one or more of the victims before the commission of the offence, an identification parade would not be required. However, where the victim only saw the accused person for a short time, where the accused person was not arrested at the scene or shortly thereafter, or where the circumstances of the commission of the crime were such that the victims might not have been in the correct frame of mind to take note of any distinguishing features that could aid in identifying the accused, it would be necessary for the Police to conduct an identification parade. See: Eyisi Vs The State (2000) 15 NWLR (Pt.691) 555: R v. Turnbull (1976) 3 Ch. App. R. 132; Peter Adewunmi Vs The State (2016) LPELR-40106 (SC); Fatai Vs The State (2013) LPELR-20182 (SC); Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455. An identification parade usually consists of a group of persons of the same sex, similar size and physical features as the person suspected of having committed the offence, assembled by the Police from among whom the witness is asked to identify the culprit unaided and untutored. See: Alabi Vs The State (1993) 7 NWLR (Pt.307) 511. In the instant case, PW3 was able to pick out the appellant from a line-up of 12 men. Moreover, he stated under cross examination that he was able to identify him because during the commission of the offence the deceased shone a torchlight in his face.
Learned counsel for the appellant attacked the evidence of PW3 on the ground that in his statement to the Police he did not mention any features of the appellant that would enable him identify the armed robber. He did not in any way challenge the manner in which the identification parade was conducted. Not only was PW3 an eye witness and victim
robbery of the armed where his cousin (the deceased) was shot and killed in his presence, he was able to pick out the appellant from a group of 12 men. I am of the view that the learned trial judge was right to rely on such evidence. In affirming the judgment of the trial Court, the Lower Court at pages 310 311 of the record held as follows:
The evidence of PW2 and other witnesses corroborated the evidence of PW3, the victim of the robbery that the appellant committed the crime. Corroboration is a combination of a witness s evidence by another independent testimony. .. It was submitted for the respondent that no law imposes an obligation on the prosecution to tender as evidence the weapons used to commit the offence. It suffices once there is evidence to establish the fact that there was an armed robber as in the instant case.
The law is trite that the burden of proving the guilt of the appellant is on the respondent but where the respondent has led evidence which established a case against the appellant he was expected to give evidence in rebuttal. The appellant in his defence failed to address the charges against him but rather concentrated on the confessional statement. He did not rebut the overwhelming evidence of the prosecution witness. He merely denied knowledge of PW2, a member of his armed robbery gang and Ochekwu Eneh, the deceased victim of the armed robbery.
From the totality of the evidence before the trial Court there was ample evidence to ground a conviction and the Court was right to have convicted the appellant. On the whole, the confessional statement apart, there was sufficient credible evidence to support the conviction of the appellant.
(Underlining mine for emphasis)
The above finding is an accurate appraisal of the evidence before the Court. Unless the appellant is able to show the Court that the concurrent findings of the two Lower Courts are perverse, this Court would be reluctant to interfere. The appellant has failed to do so in this case. I agree with both Lower Courts that production of the weapons used to commit the offence and items recovered is not a sine qua non to securing a conviction where, as in this case, there is other overwhelming evidence before the Court establishing beyond reasonable doubt that the accused person committed the offence and that he was also in the company of others. See: Chukwuemeka Ezeuko (alias Reverend King) vs The State (2016) LPELR 40046 (SC); Olayinka v. The State (2007) 9 NWLR (Pt.1040) 561; Victor vs. The State (2013) 12 NWLR (Pt.1369) 465 @ 482 D F. In the circumstances of this case, there can be no doubt that the robbery was an armed robbery having regard to the death of the deceased who was shot during the operation. The failure to tender the gun used or items recovered was not fatal to the prosecution’s case.
I have considered the alleged contradictions in the evidence of the prosecution witnesses highlighted by learned counsel for the appellant. He contended that the evidence of PW1 and PW4, who are both police officers as to the time the matter was reported to the police and the evidence of PW3 and PW4 regarding PW4’s presence at the identification parade [PW3 said PW4 was at the parade while PW4 testified that he was not], are material contradictions and fatal to the prosecution’s case. With respect, I do not agree with him. As regards the evidence of PW3 and PW4, it was established beyond reasonable doubt that there was a robbery, that it was an armed robbery, that the deceased was shot and killed during the operation and that a report was made to the police. Whether it was PW3 or PW4 who first reported the matter to the Police is immaterial. Similarly, whether or not PW4 was at the identification parade does not affect the credible evidence given by PW3 that he identified the appellant at the Police station from a line-up of 12 men. Minor discrepancies in the evidence of witnesses would not result in a conviction being set aside. It is only substantial contradictions on material facts, which create doubt in the mind of the Court that would result in an acquittal. See: Okashetu v. The State (2016) 15 NWLR (Pt.1534) 126 @ 160; Afolabi v. The State (2010) All FWLR (Pt.538) 812 @ 820; Ikemson vs. The State (supra).In light of all the observations made in the course of the judgment, I hold that the prosecution established the offence armed robbery against the appellant beyond reasonable doubt and he was rightly convicted in respect of that charge.
The appellant was also charged with criminal conspiracy punishable under Section 97 of the Penal Code. Section 96 of the Penal Code defines “criminal conspiracy” as follows:
“96, When two or more persons agree to do or cause to be done –
(a) an illegal act; or
(b) an act which is not illegal by illegal means, such an agreement is called criminal conspiracy.”
To secure a conviction, the prosecution must prove:
(a) an agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means;
(b) where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement; and
(c) that each of the accused persons individually participated in the conspiracy.
See: Yakubu v. The State (2014) 8 NWLR (Pt.1408) 111 @ 123 F H; Tanko v. The State (2008) 16 NWLR (Pt.1114) 597. It is settled law that in a charge for conspiracy the agreement constitutes the offence and it is not necessary to prove that the act has actually been committed. It is also trite that having regard to the nature of conspiracy, it is seldom proved by direct evidence but by circumstantial evidence and inference from certain proved acts. The evidence relied upon must, however, be of such quality that it irresistibly compels the Court to make an inference as to the guilt of the accused. See: Yakubu Vs The State (supra); Obiakor Vs The State (2002) 10 NWLR (Pt.776) 612; Oduneye Vs The State (2001) 2 NWLR (Pt.697) 311; Njovens Vs The State (1973) 5 SC 17; Dabo Vs The State (1977) 5 SC 197.
The learned trial Judge at pages 238 – 239 of the record held:
“In light of the confessional statements made by the 1st and 2nd accused persons. And having regard to the surrounding circumstances and conduct of the accused persons, I can rightly infer that the accused persons were acting in concert to commit the offences charged. Therefore, the offence of criminal conspiracy had been proved against the 1st and 2nd accused Persons and I convict them accordingly.
The Lower Court affirmed these findings. Notwithstanding the fact that the confessional statement, Exhibit A has been expunged from the record, I am in agreement with both Courts that there was sufficient evidence before the trial Court from which conspiracy could be inferred. The evidence of PW3, the eye witness to the crime was that several armed robbers entered his cousin’s home in the night of 27/1/2006 while they were sleeping and robbed them at gun point. His cousin, the deceased, was also shot and killed in the process. He positively identified the appellant as one of the robbers. The fact of the appellant’s participation in the armed robbery along with others amounts to an overt act from which an agreement to do an unlawful act, to wit: armed robbery, could be and was rightly inferred. I have not been persuaded to interfere with the concurrent findings of the two Lower Courts on this issue.
In conclusion, notwithstanding the resolution of issue 1 in the appellant’s favour and the expunging of Exhibit A from the record, the appeal fails and is hereby dismissed. The judgment of the Lower Court affirming the appellants conviction and sentence for criminal conspiracy and armed robbery are hereby affirmed.
MUSA DATTIJO MUHAMMAD, J.S.C.: My learned brother KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN JSC had obliged me in draft his lead judgment just delivered. I entirely agree with the reasoning and conclusion in the lead judgment that the appeal lacks merit. I adopt the judgment as mine in dismissing the unmeritorious appeal. I also abide by the consequential orders reflected in the lead judgment.
JOHN INYANG OKORO, J.S.C.: I was privileged to read in draft the lead judgment of my learned brother, Kudirat M. O. Kekere_Ekun, JSC just delivered which I am in agreement that this appeal is devoid of merit and ought to be dismissed. My learned brother has admirably resolved the two issues submitted for the determination of this appeal. What I propose to do is just to make a few comments in support of the judgment.
Let me quickly agree with My Lord as regards issue one which has to do with Exhibit A, the alleged confessional statement of the appellant. In any criminal trial, the law is trite that any iota of doubt must be resolved in favour of the accused person. However, for an accused person to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the Court. See Olalekan V. The State (2001) 18 NWLR (Pt.746) 793, Kalu V. The State (1988) 4 NWLR (Pt.90) 503, Iortim V. The State (1997) 2 NWLR (Pt.490) 711.
In the instant case, as was duly observed in the lead judgment there was evidence of torture and duress before the appellant signed the confessional statement. There was indeed the need for trial within trial to determine the voluntariness or otherwise of the statement. The termination of the process half way has cast doubt on the voluntariness of the said statement. Accordingly, I agree that it be expunged from evidence. If the judgment was based on the confessional statement alone, that would have been the end of the matter. But right from the trial Court up to the Court below, both
Courts relied more on the direct evidence of eye witnesses who identified the appellant as one of the robbers who robbed the PW1 and others.
The learned trial judge found that PW3 was an eye witness who not only saw the accused committing the offence at the scene, he also was able to identify the appellant among twelve (12) persons at the police station. PW2 also stated clearly about the role of the appellant in the whole episode. The two witnesses were very consistent even under cross examination. The Court below agreed with the trial Court on the evidence of these two witnesses. It is interesting to note that PW3 was a victim of the robbery incident.
There is no doubt that in most cases involving armed robbery, a crucial issue has always been the identity of the armed robber(s) involved. The reason is that it is common knowledge that armed robbers almost always try to conceal their identity. So prosecutors and indeed the Courts have had to grapple with the question whether the accused person was identified as the robber or one of the robbers that committed the robbery charged. Where the accused is someone known to the victim before the robbery incident, the burden of proof is lessened. However, where the victim and the robbers are meeting for the first time in the course of the robbery, the question would be whether the victim properly and sufficiently identified the accused person as one of the robbers that attacked him.
In this case, I am satisfied that apart from the PW3 testifying that he saw the appellant committing the offence, he also was able to identify the appellant at the police station among 12 (twelve) persons. This is beyond reasonable doubt. See Nwaturuocha V. The State (2011) 5 NWLR (Pt.1242) 170, Ochiba V. The State (2011) 17 NWLR (Pt.1277) 663.
I agree with the Court below that the appellant was properly identified as one of the robbers who committed the offence charged. The charge was therefore proved beyond reasonable doubt. Based on the above and the fuller reasons in the lead judgment, I agree that there is no merit in this appeal notwithstanding that the first issue was resolved in favour of the appellant. Appeal is accordingly dismissed. The judgment of the Lower Court is hereby affirmed.
CHIMA CENTUS NWEZE, J.S.C.: My Lord, Kekere-Ekun, JSC, obliged me with the draft of the leading judgment just delivered now. I agree with His Lordship that this appeal, being unmeritorious, should be dismissed. This contribution is only in response to the strident submission of the appellant’s counsel on the alleged contradictions in the evidence of the witnesses of the Prosecution. In his submission, the testimonies of PW1 and PW4, police officers at the material time, contradicted the testimony of PW3 on the question whether PW4 was present at the identification parade.
Now, the word “contradiction”, traces its lexical roots to two Latin words, namely, contra and dictum meaning “to say the opposite’, see Ikemson v State  3 NWLR (Pt.110) 455, 479. Hence, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That is, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses, Enahoro v. Queen (1965) NMLR 265, endorsed in Ogun v Akinyelu  18 NWLR (Pt.905) 362, 392; Emiator v. State  9-10 SC 112; Afolalu v. State  3 NWLR (Pt.1127) 160.
This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth, Okoiziebu v. State  11 NWLR (Pt. 831) 327, 341; Nasaru v. State 6- 9 SC 153; Ikemson v State (supra). In any event, Courts have even taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy, Ogun v Akinyelu  18 NWLR (Pt.905) 362, 392.
In all, for contradictions in the evidence of prosecution witnesses to affect a conviction, particularly, in a capital offence, they must raise doubts as to the guilt of the accused, Nwosisi v State  6 SC 109; Ejigbadero v State  9 – 10 SC 81; Kalu v State  4 NWLR (Pt.90) 503; Igbi v. State  FWLR (Pt.3) 358;  3 NWLR (Pt.648) 169.
It is for these, and the more elaborate reasons in the leading judgment that I too hold that this appeal must fail.
I accordingly enter an order dismissing it. I abide by the consequential orders in the leading judgment.
EJEMBI EKO, J.S.C.: I read in draft the judgment just delivered in this appeal by my learned brother, HON. KUDIRAT M. O. KEKERE-EKUN, JSC. It represents my views on all the issues canvassed in the appeal.
The appellant made a point that he was tortured to make the confession in Exhibit A. His objection to the admissibility of Exhibit A was held by the trial Court to amount to mere retraction, and not an objection to the admissibility of the confessional statement. Exhibit A is ex facie confessional. The PW.2’s evidence at page 188 of the record seems to corroborate the Appellant that he was oppressed and tortured to make the confession. The Pw.2s evidence on this is not challenged. The Courts below should have been more circumspect in relying on Exhibit A in view of the evidence of Pw.2’s evidence. It is trite that every defence available to the accused shall be and ought to be considered. The Court is obligated, on the presumption of the innocence of the accused person, not to convict him until his guilt is certain and proved beyond reasonable doubt. On this obligation, Karibi-Whyte, JSC, in OKORO v. THE STATE (1988) 5 NWLR (Pt.94) 255 at 277, re-stated the law to the effect that: the presumption of the innocence of the accused person constitutionally also means a duty on the Court not to convict until his guilt is proved beyond reasonable doubt, and that by that duty anything that ex facie negatives the guilt of the accused person must not be gleefully swept under the carpet and ignored. I agree with the Appellant that Exhibit A was wrongfully admitted in evidence and acted upon.
The Appellant’s conviction was supported by other pieces of evidence than the disputed confessional statement in Exhibit A. In otherwords, without Exhibit A, there are other pieces of evidence in the printed record that support and sustain the conviction of the Appellant for the offences of conspiracy and armed robbery.
Pw.2 whose evidence, at pages 187-188 of the Record was not challenged, testified that the Appellant engaged him to spy on the deceased victim of the robbery and report his movements to the Appellant for the purpose of the robbery. The PW2 was cross-examined. The evidence extracted therefrom was the damaging evidence at page 189 of the Record to the effect that the PW.2 was so engaged because the deceased (was the Pw.2s) fathers friend and that the PW.2 had free access to the deceaseds house.
The PW.2, as the spy, did the reconnaissance for the Appellants robbery gang on a fee of N500.00. The Appellant, after PW.2s reconnaissance, failed to honour his agreement with the Pw.2.
The Pw3, a victim of the robbery, was robbed of his N25,000.00. He was an eye witness. His evidence, unscathed, is that it was the Appellant who took the money from him (the Pw3). The evidence fixed the Appellant to the scene of the crime.
Pw.3 was present physically. He heard the gun shot and then saw his cousin, the deceased, fall down immediately. PW3 also heard the deceased ask the Appellant Did you mobilize people to come and kill me? The Question prompted the gun shot from which the deceased fell down. It was also the Pw.3s undiscredited evidence that when the deceased flashed light on the Appellants face; he (the Pw3) saw the face of the Appellant. He was able, subsequently, to recognize and identify the Appellant at the identification parade. These pieces of evidence at pages 190 and 191 remain undiscredited, notwithstanding the cross-examination.
Even if I agree that the confession in Exhibit A was oppressively obtained, other pieces of evidence particularly of PW2 and Pw.3 overwhelmingly establish beyond reasonable doubt the guilt of the Appellant in the offences charged. I have no cause therefore to disturb the concurrent findings of the two Courts below.
It is for the foregoing and the fuller reasons contained in the lead judgment, which I concur with and adopt, that I dismiss this appeal as lacking in substance. The decision of the Lower Court affirming the conviction and sentence of the appellant is hereby affirmed.
Aliyu Saiki Esq. for the Appellant with him, Afolabi Omotoso Esq., A. O. Unangue Esq. and Ammal Abdulwahab (Miss). –For Appellant
Aisha Egele Esq. – For Respondent