IGBINOWAYA v. STATE

CITATION: (2019) LPELR-46958(CA)

In the Court of AppealIn the Benin Judicial Division

Holden at Benin

ON FRIDAY, 8TH MARCH, 2019Suit No: CA/B/361CA/2016

Before Their Lordships:

HELEN MORONKEJI OGUNWUMIJU Justice, Court of AppealPHILOMENA MBUA EKPE Justice, Court of AppealSAMUEL CHUKWUDUMEBI OSEJI Justice, Court of Appeal

BetweenHILLARY IGBINOWAYA - Appellant(s)

AndTHE STATE - Respondent(s)

RATIO DECIDENDI

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HELEN MORONKEJI OGUNWUMIJU, J .C.A.

(Delivering the Leading Judgment): This is an appeal

against the judgment of the High Court of Edo State,

delivered by Honourable Justice S.A. Omonua on 21/4/2016

wherein the Appellant was convicted and sentenced to

death.

The Appellant was brought before the High Court of Edo

State for trial in Charge No B/91C/2010 on a two count

charge of conspiracy and Armed Robbery and the trial

commenced on the 21st day of January, 2013.

The counts are set out below:-

“COUNT 1

That you Hillary Igbinowaya (m) and Ehis Eragha (m)

on or about the 30th October, 2008 at about 12:15

hours. At Welder Street, Urura Quarters, Benin City

in the Benin Judicial Division conspired among

yourselves to commit felony to wit: Armed Robbery

and thereby committed an offence contrary to Section

6(b) Punishable under Section 1(2)(a) of the Robbery

and Firearms (Special Provision) Act, Laws of the

Federation of Nigeria, 2004.

COUNT 2

That you Hillary Igbinowaya (m) and Ehis Eragha (m)

on or about 30th October, 2008 at about 12:15 hours

at Welder Street, Urura Quarters, Benin City in the

Benin

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Judicial Division did rob the following: (1) Nokia

handset valued at N6, 000.00 (2) Recharge cards

valued at N15, 000.00 (3) physical cash N4, 000. 00

total valued N25, 000. 00properties of one Miss

Osolaese (F) and as at time of the offence you were

armed with offensive weapon to wit: broken bottle

and thereby committed an offence punishable under

Section 1(2)(a) of the Robbery and Firearms (Special

Provision) Act, Laws of the Federation of Nigeria,

2004.

The Appellant pleaded not guilty to the two counts.

In proof of its case, the Prosecution now Respondent called

the Investigating Police Officer (IPO) from Ikpoba Hill

Division, Emmanuel Bauta as PW1 and the Investigating

Police Officer from the State Anti-Robbery Section (SARS),

Sergeant Bukola Akinola as PW2. Exhibits A-G were also

tendered in support of the Prosecution’s case.

An attempt to tender in evidence an extra-judicial

statement credited to the Appellant by the Respondent’s

counsel was objected to on the ground of involuntariness of

the said statement. Trial within trial was conducted but

terminated as the learned trial judge observed that the

Appellant only retracted the statement.

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The statement was accordingly admitted and marked

Exhibit C. The Appellant then gave evidence in his own

defence.

Upon the conclusion of evidence in this case, parties filed

their respective final written addresses as ordered by the

Court and the case was adjourned to 21st of April 2016 for

Judgment. The trial Court delivered judgment and found

the Appellant guilty and accordingly sentenced him to

death.

Dissatisfied, the Appellant filed a Notice of Appeal on

28/4/16 and amended Notice of Appeal filed on 15/9/16.

Record was transmitted on 9/9/16. The Appellant filed his

brief of argument on 15/9/16 and deemed filed on 1/11/16.

Appellant’s reply brief was filed on 21/1/19 and deemed

filed same day. The Respondent’s brief was filed on 1/11/17

and deemed filed on 21/1/19.

Mr. Olayiwola Afolabi Esq., who settled the Appellant’s

brief identified two issues for the determination of the

appeal to wit:

1. Having regard to the serious nature of the charge

against the Appellant punishable with a death

sentence whether the trial judge was right to have

convicted the Appellant of the offence of conspiracy

to commit armed

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robbery and armed robbery when the evidence

adduced by the prosecution was riddled with serious

material contradiction and coupled with the failure of

the prosecution to call the purported victim of the

alleged armed robbery

2. Whether the learned trial judge was right when he

convicted the Appellant on extra-judicial confessional

statement when the said statement is at variance with

the police investigation report of PW1 and the

evidence of the said PW1 called by the prosecution

and despite the fact that the said confessional

statement lacks necessary legal corroboration.

The Respondent in the brief settled by G.E. Adekanmbi Esq,

Director of Public Prosecution, Edo State; Mrs. A.O.

Aigbavboa Esq., Assistant Director, Edo State; Mrs. F.N.

Edokpolor Esq., Chief State Counsel, Edo State and

Imonitie I. Omokhodion Esq., State Counsel, Edo State

identified a sole issue for the determination of this appeal

to wit:-

Whether the prosecution can be said to have proved

the case against the Appellant beyond reasonable

doubt as required by law notwithstanding the non-

availability of the Complainant to testify at the trial.

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In the determination of this appeal, having read the Record

and the briefs of counsel, I am of the humble view that the

complaints raised by the Appellant can be determined by a

consideration of the following sole issue:-

Whether in the entire circumstances of this case, the

trial judge was justified to have convicted and

sentenced the Appellant to death.

SOLE ISSUE

Whether in the entire circumstances of this case, the

learned trial judge was justified to have convicted and

sentenced the Appellant to death.

Learned Appellant’s counsel argued that in criminal

matters, the Prosecution has the duty to prove the guilt of

the accused person whom he accuses of committing a

crime and the burden does not shift even in a situation

where the accused person in his statement to the Police

admits committing the offences, the prosecution is not

relieved of the burden of proof placed on it. Counsel cited

Edoho v. State (2004) 5 NWLR Pt. 865 Pg17 at 25;

Maren v. State (2011) 3 NWLR Pt. 1181 Pg 254 at

257.

Counsel further argued that in consonance with Section 36

(5) of the Constitution of the Federal Republic of Nigeria,

1999 which guarantees to all persons accused or

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charged with criminal offence the right to be presumed

innocent until he is proved guilty, the ultimate burden of

proving the guilt of the accused person is placed on the

Prosecution and the Prosecution must discharge this

burden beyond reasonable doubt by proving every

ingredient of the offence charged by credible evidence.

Where at the close of evidence an essential ingredient of

the offence has not been proved, a doubt would have been

created as to the guilt of the accused and he shall be

discharged and acquitted. Counsel cited Mustapha v.

State (2007) 12 NWLR Pt. 1049 Pg. 634.

Counsel argued that to discharge the burden of proving the

commission of armed robbery against an accused person,

the prosecution has three major ingredients to prove and

the consequence of the Prosecution’s failure to prove any

one element of the offence beyond reasonable doubt even if

each of the other elements were proved, entitles the

Accused to a discharge and acquittal. Counsel cited Utek

v. State (2010) 34 WRN 171 at 179; Majekodunmi v.

The Nigerian Army (2002) 31 NWLR 138 at 147;

Saidu v. State (2009) 29 WRN 89 at 124; Shande v.

The State (2004) All FWLR Pt. 223 Pg. 1955 at

1968-1969

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Counsel emphasized that the plea of not guilty recorded for

the Appellant connotes that every allegation of fact

contained in the charge are denied by the Appellant and

throughout the length and breadth of the evidence of PW1

at the lower Court, the Appellant was never mentioned as

the person who robbed the victim or stole the victim’s

properties.

Counsel argued that from the available evidence before the

lower Court as seen in the Record, the Prosecution never

proved the fundamental ingredients of the offences charged

beyond reasonable doubt that will require the learned trial

judge to convict the Appellant and sentence him to death.

Moreso there is a serious doubt on the issue of whether

there was armed robbery on 31st October, 2008 as alleged.

Counsel argued that the PW1 in his examination in chief as

seen on pages 61 and 62 of the records did not in any way

state that the Appellant was armed with weapon when the

purported victim was robbed and even under cross

examination there was no arms mentioned all through.

Counsel further argued that PW1, the Investigating Police

Officer who went to the scene of the

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incident never mentioned seeing any weapon (broken

bottle) as was later adduced by PW2 and the learned trial

judge never made a finding of fact in respect of the above

serious conflict which bothers on the conflict in the

evidence of PW1 and PW2 which goes to the root of the

charge itself. Counsel added that this may be the reason

why the PW1 recommended the charge of stealing and not

armed robbery. Counsel cited Bakoshi v. Chief of Naval

Staff (2004) 15 NWLR Pt . 896 268 at 294;

Akinlemibola v. C.O.P (1976) 6 SC 205.

Counsel further argued that a party who failed, refused or

neglected to call a witness whose evidence may help decide

the case one way or the other is withholding useful

evidence as such evidence would be detrimental to his case

because he has refused to place all the cards on the legal

table of the Court. Counsel cited Ogudo v. State (2012)

All FWLR Pt. 629 Pg. 1111 at 1131; Opeyemi v. State

(1985) 2 NWLR Pt. 5 101 at 103; Eddy Ikhimiukor v.

State in Appeal No. CA/B/43C/2015 (Unreported).

Counsel contended that since there is no evidence that the

nominal Complainant is dead she should have been called

upon to testify to clear the doubt

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whether actually the victim was indeed robbed and whether

the victim was even robbed with arms by the Appellant.

Counsel citedMillar v. State (2003) 8 NWLR Pt. 927 Pg

236 at 239; Salawu v. State (2011) All FWLR Pt. 594

Pg. 35 at 53-54.

Counsel opined that the Prosecution indeed withheld this

crucial evidence as calling her would have proved

disastrous to the Prosecution’s case. Withholding evidence

in this case is deliberate and the benefit of the doubt

created great doubt in the Prosecution’s case and such

doubt should be resolved in favour of the Appellant.

Counsel cited Edet v. State (1988) LPELR (1008) Pg. 1

at 21; Orji v. State (2008) 10 NWLR (1094) 31 at 50.

Counsel emphasized that the victim of the alleged robbery,

Mrs Tina Osalaese is a vital witness as PW1 testified that

the Appellant only snatched the bag and recommended a

charge of stealing whereas PW2 testified and tendered

Exhibit “F”- broken bottle and as a result preferred charge

of armed robbery and it is only the testimony of the victim

that can resolve this logjam in evidence of PW1 and PW2.

Counsel cited Ogudo v. State (2012) All FWLR Pt. 629

Pg. 1111 at 1131; The People of Lagos State v. Umaru

(Supra).

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Counsel argued that where there is doubt in the case of the

Prosecution, the doubt should be resolved in favour of the

accused person. Counsel cited Aigbadion v. State (2000)

7 NWLR Pt. 666 Pg. 686 at 704; Almu v. State (2009)

10 NWLR Pt. 1148 Pg. 31; Osumare v. People of Lagos

State (2014) ALL FWLR Pt. 757 Pg. 605 at 624.

Counsel submitted that the evidence of PW1 and PW2 are

at best hear say evidence because the Court never heard

from the mouth of the victim whose name is in the charge

and who claimed she was robbed with arms. Counsel cited

Ogudo v. State (supra).

Counsel argued that confessional statement to be relevant

and therefore admissible for conviction of an accused

person, must be direct, positive and unequivocal in the

sense that it points irresistibly to the guilt of the accused or

leaves no reasonable doubt in the mind of the Court or

reasonable persons that the accused committed the

offence. Counsel cited inSalawu v. State (2011) All

FWLR Pt. 594 Pg. 35.

Counsel argued that the confessional statement which the

learned trial judge relied on cannot stand and pass the six

acid tests which

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is the condition to be observed before the Court can base

conviction solely on a confessional statement of an accused.

Counsel cited Rabiu v. State (2010) 10 NWLR Pt. 1201

Pg. 127 at 133.

Counsel submitted that the victim whose evidence would

have corroborated the purported confessional statement

was not called. The absence of the victim nullified the first

three acid tests as stated in the case of Rabiu v. State

(supra) and in view of that, the remaining ingredients falls

like a pack of cards. Counsel cited Macfoy v. UAC (1962)

3 AER 1169 at 1172.

Counsel argued that the learned trial judge while

convicting the Appellant used the other statement of the

Appellant at the Divisional Police Station to find

corroboration and that legal procedure adopted by the trial

judge was fatally and legally wrong in view of the decision

of the Court in Salawu v. State (2011) All FWLR Pt. 594

Pg. 35.

Counsel further argued that there was nothing outside the

signed confessional statement that corroborated the

offence with which the Appellant was convicted and even

most of the evidence in the said confessional statements of

the Appellant as it relates to the main

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charge remained unproven in view of the absence of

independent witness to corroborate the main charge upon

which the Appellant was charged and in view of the

evidence of PW1. Counsel cited Ogunye v. State (1999) 5

NWLR Pt. 604 Pg. 548 at 576; Obue v. State (1976) 2

SC 141; Salawu v. State (2011) All FWLR Pt. 594 Pg.

35 at 38.

Counsel opined that the trial judge was wrong in the way

and manner he purportedly found solace in the statement

of the Appellant at the Divisional Police Station to rely on

same as corroborative evidence and this is because the

statement made by the Appellant at the Divisional Police

Station is total denial and not confessional.

Counsel submitted that the evidence of PW1 under the heat

and fire of cross examination has totally destroyed the

worth of the said confessional statement and the learned

trial judge never made a finding of fact on this crucial

evidence coming from PW1 as the evidence given by PW1 a

police officer is at variance with the charge of armed

robbery.

Learned counsel to the Respondent contended that from

the totality of evidence before the Court, the Prosecution

did prove its case against the Appellant

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beyond reasonable doubt as required by law in Section 135

(1) of the Evidence Act, 2011. Counsel cited Adeyemi v.

State (1991) 1 NWLR Pt. 170 Pg. 679; Onyenye v.

State (2012) Vol. 212 LRCN 107 at 112.

Counsel argued that the evidence of the Prosecution

established all the required ingredients/elements to prove

its case despite the absence of the Complainant during the

trial.

Counsel argued that the testimony of PW1 and PW2 as well

as the confessional statement of the Appellant which was

admitted in evidence as Exhibit C showed that there was an

arm robbery and it was clear that the Appellant

participated in the arm robbery.

Counsel further argued that once an accused person makes

a statement under caution, saying or admitting that he

committed the offence charged, the said statement in effect

becomes a confessional statement and as such becomes

relevant to the proceedings, moreso the statement was

dully admitted in evidence as a voluntary statement of the

Appellant after a trial within trial. Counsel cited Emeka v.

State (2001) 14 NWLR Pt. 734 Pg. 666; Akinmoju v.

State (2000) 77 LRCN 885; Asimiyu Alarape & 3 Ors.

v. State (2001) LRCN 600 at 623; Gira v. State (1996)

37 LRCN 688 at 693.

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Counsel emphasized that an extra judicial statement made

by an accused person is admissible in evidence at the trial

of the accused person if it reveals that the statement was

voluntarily made. Counsel cited Sunday Amala v. The

State (2004) 119 LRCN 4439.

Counsel submitted that the purpose of a trial within trial is

to test the voluntariness of the statement of the accused

person and where a statement is admitted as voluntary

after trial within trial, such statement becomes admissible

and becomes part of the case of the Prosecution. It is

sufficient to ground a conviction of the accused person on

the offence charged. Counsel cited Emeka v. The State

(2005) 4 LRCNCC Pg. 197; Nwangbomu v. State

(1994) 2 NWLR Pt. 327 SC; Daniel Nsofor & Anor v.

The State (2005) All FWLR Pt. 242 Pg. 397; Moses Jua

v. State (2010) 4 NWLR Pt. 1184 Pg. 249; Nwachukwu

v. The State (2007) LPELR 8075 SC.

Counsel further argued that circumstantial evidence

established and ascertained the truth of the confessional

statement made by the accused. There existed evidence of

the Appellant being caught at the scene of the crime and

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there was evidence of the robbed items being recovered

from where they were hidden by the Appellant and the 1st

accused. These and the clear evidence of PW1 and PW2

corroborated the confessional statement.

Counsel opined that the confession is consistent with the

evidence led by the Prosecution and Exhibit C is sufficiently

explicit as to who the Appellant robbed, what weapon was

used to facilitate the robbery and what they robbed the

victim of.

Counsel argued that the evidence that the Appellant was

caught at the scene of crime with the robbed items that

were recovered by the police from where they were hidden

by the Appellant and the 1st Accused person are evidence

of positive and cogent surrounding circumstances linking

the Appellant to the offence charged and irresistibly

pointing to the guilt of the Appellant.

Counsel argued that the case of R v. Skyes 8 C.A.R, APP

has laid down principles in guiding the Courts of the

desirability to have outside the confession, some material

evidence further justifying the conviction of the accused.

Counsel relied on Nwaebonyi v State (1994) 17 LRCN,

103.

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Counsel further argued that the Court was not bound to

abide by the findings of the Police Investigation when

Exhibit D the clear and voluntary statement of the

Appellant before the Court established how the Appellant

and the 1st Accused armed themselves with broken bottles

to rob one Tina Osalaese on 30th of October, 2008.

Counsel emphasized that the duty of the Court is to make

use of cold facts of a case as presented by the parties in

open Court in reaching a decision. Cases are decided by

facts and nothing else. Counsel cited Attorney General of

Abia State & Ors v. Attorney General of the Federation &

Ors. (2000) 7 SCJN 1; Adisa v. State (1991) 1 NWLR

Pt. 168 Pg 498.

Counsel argued that there is no discrepancy in the

testimony of PW1 and PW2 but the evidence of the two

witnesses corroborated themselves and also corroborated

the confessional statement of the Appellant which is Exhibit

C. The broken bottle referred to by the Appellant was

recovered by PW1 and tendered by the Prosecution through

PW2 and marked Exhibit F which was before the Court.

Counsel further argued that the practice of taking persons

who confessed to the commission of serious offences before

a superior police

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officers for confirmation of the voluntariness of the

confession is not a requirement of law. It is just a

commendable practice that has been developed by the

Police. Counsel cited Stanley Idigun Egboghonome v.

The State (2001) 2 ACLR 262.

Counsel emphasized that the absence of the signature of an

attesting officer on a voluntary confessional statement does

not invalidate or make inadmissible the said statement.

Counsel cited Silas Ikpo & Anor. v. The State (1995)

SIC 9 NWLR Pt. 421 Pg. 540; Bassey Eyop v. The State

(2012) LPELR 20210 CA; Edhigere v. The State (1996)

8 NWLR Pt. 464 Pg 1 at 7; Friday Smart v. State

(2012) LPELR 8026 CA.

Counsel opined that in order to justify the conviction of an

accused person for an offence charged, the ingredients of

the said offence must be proved against the accused person

which the Prosecution has done. The absence of the victim

as a witness for the Prosecution is not fatal to the case of

the Prosecution. Counsel citedEmmanuel v. The State

(1995) 5 NWLR 660.

Counsel submitted that in any criminal trial, the burden of

proof on the Prosecution is proof beyond reasonable doubt

and not beyond all shadow of doubt.

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Counsel cited Akinyemi v. State (2001) 2 ACLR 32 at

44; Bakare v. State (1987) 1 NWLR Pg. 51; Musa v.

The State (2012) Vol 10 LRCNCC 255 at 262; Miller v.

Minister of Pensions (1947) 2 All E.R 372.

OPINION

It is settled that the legal and evidential burden of proving

the guilt of an accused person is placed on the Prosecution

and the Prosecution must discharge this burden beyond

reasonable doubt by proving every ingredient of the offence

charged by credible evidence. That burden does not shift.

It is a trite law that there are three ways to prove the

commission of a criminal offence to wit:-

(a) By testimony of eye witness or witnesses who

watched, heard or witnessed the commission of the

crime by the accused person(s).

(b) Through confessional statement voluntarily made

by the accused.

(c) Through circumstantial evidence which clearly

point to the fact that the accused and no other person

committed the offence charged.

See Ibrahim Kamila v. The State (2018) LPELR-43603;

Emeka v. The State (2001) 6 SCNJ 267.

The prosecution in discharging the burden of proof placed

on him, which must be beyond reasonable doubt must

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ensure that any or all of these modes are employed in

proving the ingredients of the offence which the accused

was charged with in order to establish his guilt.

It is an essential duty on the Prosecution at trial to prove

the ingredients of the offence of armed robbery wherein

the Appellant was charged and these are:-

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

b. That the robbers were armed with offensive

weapons; and

c. That the accused was among the robbers.

These three ingredients must co-exist and they must be

proved beyond reasonable doubt. See Sunday Ehimiyein

v. The State (2016) LPELR-40841 SC; Ogudo v State

(2011) 18 NWLR (Pt. 1278) 32; Bozin v The State

(1985) 2 NWLR (Pt. 2) 378.

In proof of the ingredients, the Respondent called two

witnesses who were the Investigating Police Officers

Corporal Emmanuel Edute attached to the Ikpoba Hill

Police Station as PW1 and Sergeant Akinola Bukola

attached to the Special Anti-Robbery Section, State

Criminal Investigation Department as PW2 and tendered in

evidence Exhibits A-G in proof its case.

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On Pages 61-63 of the Record, the testimony of the PW1

was to the effect that he was instructed by his Divisional

Police Officer (DPO) to mobilize men and send to Urora

Quarters at Welder Street to find out what was happening

and on getting there they sighted a crowd and discovered

two boys had been accused of robbing a girl, they had been

caught and beaten up by this crowd. He took them for

medical treatment. He also testified that after he took their

statements the following day, the Appellant led his team to

an uncompleted building in the bush where they recovered

a bag containing recharge cards and one Nokia Phone.

Let us critically examine the evidence of PW1, the first

Police Officer at the scene of crime. While being led, he

stated as follows on Pg. 62 of the Record:-

“After the statements, I asked Hilary for the bag and

handset he snatched from the girl. He led us to an

uncompleted building in the bush where we recovered

a bag containing recharge cards and one Nokia 1100.

We executed a search warrant in the house of the

accused persons. Nothing incriminating was found.

That very day, the D.P.O instructed me to transfer the

case to Headquarters.”

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Under cross-examination, PW1 conceded as follows at

Pg. 62-63 of the Record:-

“It is correct that the matter I investigated happened

in the day time. It is correct that the complainant had

a commercial call booth in the area. It is correct that

the accused persons told me that they wanted to

make phone call but my investigation showed that

they pretended to make a call. It is correct that the

1st accused only said he snatched a bag of the victim,

not that he robbed her. It is correct that I wrote a

Police Investigation Report before I transferred the

case. It is correct that I wrote in the report that the

accused persons stole the contents of the bag. I

recommend a charge of stealing and conspiracy. It is

correct that Exhibit ‘B’ was not signed.”

From the above, it can clearly be seen that the first Police

Officer who responded to the scene of the incident did not

see any weapon of any sort, whether broken bottle or not.

No broken bottle as a weapon was given to him or shown to

him. That was on 30/10/08. Please see line 18 of Pg. 61 of

the Record. The broken bottle issue surfaced with PW2, a

Sergeant at SARS to whom the case was transferred on

3/11/2008, four days later. Please see line 5-8 of Pg. 64 of

the Record.

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At line 8 of Pg. 64, PW2 stated categorically on oath that

the broken bottle was one of the Exhibits transferred to

SARS by the IPO from Ikpoba Hill Station, while the IPO

from Ikpoba Hill, PW1, did not swear that he recovered a

broken bottle from the scene of crime or transfer such an

object with the Appellant and other Exhibits to SARS.

From my own reading and understanding of the Record, I

cannot agree with the finding of the learned trial judge on

Pg. 124 of the Record that the Appellant at any time used a

broken bottle to threaten and then rob the victim. His

Lordship stated inter alia on Pg. 124 of the Record as

follows:-

“On the whole, I find as a fact and on the evidence

that the two accused persons snatched the bag of

recharge cards and phone of one Miss Osolaese by

threatening her with a broken bottle on 30/10/08.”

The learned trial judge considered the various Exhibits

tendered in this case. In Exhibit A, the first statement made

by the Appellant at Ikpoba Hill Division, the Appellant

admitted unequivocally to having snatched the bag of the

victim and that he attempted to make away with it.

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He did not admit to threatening her in broad day light with

a broken bottle. It was after the case was transferred to

SARS when the broken bottle magically appeared that the

stealing metamorphosed into a case of armed robbery.

I have read Exhibit A and C, the supposed confessional

statements made by the Appellant on 31/10/2008 and

6/11/2008.

On Pg. 54 of the Record, the learned trial judge had

admitted Exhibit C made by the Appellant at SARS and

terminated the trial within trial of that document since the

Appellant did not complain of involuntariness but that he

never signed it at all. The Court only has to consider the

weight to be attached to the statement.

Where a confessional statement which was retracted at

trial on the basis of involuntariness was admitted in

evidence by the trial judge, the Defence has two choices on

appeal. The first is to appeal specifically against the

decision arrived at after the trial within trial which found

the statement admissible. That will be by way of a specific

ground of appeal for which leave would be sought and

obtained not being part of the final and substantive

judgment of the trial Court but an

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interlocutory one made during trial. The second choice for

the Defence is to argue that even though the statement had

been admitted, the trial judge was wrong to have attached

any material weight to it in support of the Court’s finding to

convict the accused. In this case, by Ground 4 of the

Amended Notice of Appeal, the later option was taken by

Appellant’s counsel. The complaint of the Appellant’s

counsel is that the statement was not corroborated by the

victim on oath and that it did not meet the test laid down by

a long line of authorities that would convince the Court of

the veracity of the contents of the statement.

It is a settled law that a Court can convict on the

confessional statement of an accused person alone without

any corroboration. See Ogudo v. State (supra).

The Supreme Court in Odeh v. FRN (2008) 13 NWLR Pt.

1103 Pg 1, per Musdapher JSC (as he then was) stated

thus:

“The law is fairly settled that a free and voluntary

confession which is direct and positive and properly

proved is sufficient to sustain a conviction and

generally without any need of other corroborative

evidence so long as the Court is satisfied with its

truth.”

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See Fabiyi v. State (2015 LPELR-24834 (SC); Ikpasa v.

State (1981) 9 SC 7; Achabua v. State (1976) 12 SC

63.

There is no doubt that a Court is obliged to be careful in

convicting an accused person based on a retracted or

resiled statement. The Court must consider carefully the

evidential value to place on such statements.

In Ogudo v. State (Supra), the Supreme Court reiterated

six tests for the verification of confessional statements

before any evidential weight can be attached to it as

follows:-

1. Is there anything outside the confession to show that it is

true?

2. Is it corroborated?

3. Are the relevant statements made in it of facts, true as

far as they can be tested?

4. Was the prisoner one who had the opportunity of

committing the offence?

5. Is his confession possible?

6. Is it consistent with other facts which have been

ascertained and have been proved?

See Kanu & Anor v. King (1952) 14 WACA P. 30;

Mbenu v State (1988) 3 NWLR Pt. 84 P. 615; Stephen

v. State (1986) 5 NWLR Pt. 46 Pg. 978; Nwachukwu v.

The State (2007) 12 SCM Pt. 2 Pg. 447 at 455.

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Also in Ikpo v. State (1995) 9 NWLR Pt 421 Pg. 540 at

554, the Supreme Court held as follows:

“It is desirable to have outside the accused person’s

confession, some corroborative evidence no matter

how slight, of circumstances which make it probable

that the confession is true and correct as the Courts

are not generally disposed to act on a confession

without testing the truth thereof.”

See Achabua v. The State (supra); Jafiya Kopa v The

State (1971) 1 All NLR 150.

From the word go, the Appellant admitted in Exhibit A

made on 31/10/08 before he was transferred from Ikpoba

Hill Station to SARS on 3/11/08 that he in fact snatched the

bag from the victim and made away with it but was caught

by the people around at the time of the incident. The

statement he made to PW1, Exhibit A admitted to stealing

and not armed robbery.

Let me address the last point of the test to find out whether

his latter confessional statement, Exhibit C made to PW2 at

SARS is consistent with other facts which have been

ascertained and which have been proved. This leads me to

an examination of the probative value to be placed on the

said statement by the Court bearing in mind the fact that

the Appellant had resiled from making the statement.

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The most important difference between the confession of

stealing in Exhibit A to the confession of Armed Robbery

with a broken bottle in Exhibit C is that it was made after

the Appellant was transferred from Ikpoba Hill Police

Station to SARS. The contradiction between the evidence of

PW1 who did not recover any bottle at the scene of crime

where the Appellant was caught red handed and the

evidence of PW2 who swore that a broken bottle was

brought along with the Exhibits from Ikpoba Hill Police

Station is very material. That contradiction is the

significant difference between life and death. A mere case

of stealing is quite different from a case of Armed Robbery

which carries the death sentence.

I cannot say that Exhibit C is consistent with other facts

that have been ascertained and proved in the

circumstances of this case due to the material contradiction

in the evidence of PW1 and PW2 which must be resolved in

favour of the Appellant. See Usen v. State (2012) LPELR-

20063 (CA); Amadi v. State (1993) 11 SCNJ 68;

Nasamu v. State (1979) 6-9 SC 153; Nwosu v. State

(1986) 2 NWLR Pt. 61 Pg. 364; Opayemi v. State

(1985) 2 NWLR Pt. 5 Pg. 101.

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It is settled that material inconsistencies in the evidence of

a prosecution witness goes to the credibility of that

witness. The significance does not end there. The Court is

not allowed to pick and choose between two versions of the

evidence of a witness. The several versions must be

rejected and none can be taken as the truth after any form

of rationalization by the Prosecution or the judge. Doubt as

to the veracity of a statement of a material witness must be

resolved in favour of the accused. Also where two witnesses

for the prosecution give contradictory evidence on material

issues, the Court cannot choose who is telling the truth and

must reject the evidence of both witnesses.

On the other hand, an accused in a criminal trial may throw

up several versions of the incident and several defences.

That is not to say that the Court would reject any plausible

story on which a defence is based just because the Accused

had told an inconsistent one in the course of the

proceedings. The attitude of the Courts to the different or

inconsistent evidence of the Accused is quite different

from

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the attitude of the Court to the contradictory evidence or

discrepancies in the evidence of Prosecution Witnesses. Of

course the different contradictions or discrepancies in the

evidence of the Accused goes to his credibility but the

Court can take and accept a version or the more truthful

version of the story in order to arrive at a finding on the

innocence or guilt of an accused. Since a lie by the accused

cannot relieve the prosecution of its duty to prove the

offence. See Ogidi v The State (2005) 1 SCNJ 67;

Okpere v. The State (1971) 1 All NLR 1 at 5;

Woolmington v. Director of Public Prosecutions

(1935) AC 462. The inconsistency rule is restricted to

witnesses as said earlier. It is not applicable in respect of

the evidence of an accused vis-a-vis his extra judicial

statement. See Ogudo v. The State (supra).

In Akpan v. State (2014) LPELR-22741 (CA) this Court

held as follows:

“In Ogidi v The State (2005) 1 SC Pt. 1 Pg 98, the

Supreme Court, per Oguntade, JSC said:

‘it is to be said here that the trial; judge held that

because the 2nd-4th appellants had lied in parts of

their evidence they were to be convicted as robbers

but as

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was held in Haruna & Anor v. The Police (1967) NMLR

145 at 153:

‘…although a man may lie because he is guilty, he

may just as well lie because he is stupid or afraid or

both and whether he is guilty of not’

And also in Okpere v. The State (1971) 1 All N.L.R 1

at 5 this Court per Coker JSC observed:

‘it has never been the law that the mere fact that a

person told lies is by itself sufficient to convict him of

an offence unconnected with mendacity nor does the

fact that an accused person has told lies relieve the

prosecution of its duty of proving the guilt of the

accused of the offence charged beyond all reasonable

doubts See Woolmington v. Director of Public

Prosecution (1935) A.C 462’

See also John Agbo v. State (2006) 1 SC Pt. 11 Pg. 73.

Therefore in spite of the obvious inconsistencies and

conflicting testimony of the Appellant, the

prosecution still had the duty or burden to prove the

offence as charged beyond reasonable doubt.”

In the instant case, the testimony of the PW1 and PW2 on

oath, and the extra judicial complaint of the victim (which

cannot be used to corroborate the confessional

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statement of the Appellant) that is the only evidence

outside the Appellant’s confession.

The learned trial judge in his findings observed on Pg. 119-

120 of the Record as follows:-

“Quite interesting, except that I do not have any such

evidence on Record as flowing from the Prosecution

witnesses who, as was observed by the learned

defence counsel, were only IPO’s rather than eye

witnesses.

I confess with all my heart that I do not know where

the learned ACSC got his evidence from.

From the evidence of the 1st and 2nd Prosecution

witnesses as I have it on record, none of them gave

evidence that somebody was robbed, what weapon was

used or who robbed the person/ victim.”

I therefore cannot understand how the learned trial judge

having reasoned thus above held as follows on Page 124 of

the record:

“I consequently disbelieve the denial on oath of each

of the accused persons while believing the evidence of

the 1st PW that the 1st Accused had taken the Police

the place in the bush where he threw the items

robbed and that they were recovered at the place.

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In the event, I accept the prosecution’s case as it was

amply corroborated by the extra judicial confessional

statements of the accused persons themselves.”

Apart from the retracted extra judicial statement of the

Appellant and that of the 2nd Accused person, there was no

other existing evidence the Respondent relied on to

corroborate the fact that the Appellant in fact robbed the

victim.

I am not unaware of the fact that the Court can convict an

accused on a direct, unequivocal confessional statement.

However, such confessional statement must be tested with

the available facts. As I highlighted earlier, there are ways

of testing the truth or otherwise of such confessional

statement. The Rule that the confessional statement must

be tested as to its truthfulness is made for just such

occasions. I cannot agree with the learned trial Court that

the extra judicial statement of the Appellant passed the six

tests of the credibility of a confessional statement sufficient

to ground a conviction of armed robbery. A confessional

statement upon which the Court wants to solely base the

conviction of the Appellant must have been evaluated and

properly assessed by the trial judge in the context of the

evidence adduced.

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Where that has not been done, then the Court of Appeal

will be at liberty to interfere with the findings that have

been thrown up. See Kesena v. State (supra); Ogudo v.

State (2011) LPELR-860 (SC) 1.

I am amazed at the failure of the learned trial judge to

appreciate the difference between the offence of stealing

and the offence of Armed Robbery. The evidence of threat

with a dangerous weapon must be strong, direct and

positive.

In the circumstances of this case, the hearsay evidence

given by PW1 and PW2 as regards whether the Appellant

threatened the victim with a broken bottle could not have

been admissible even if indeed the existence and chain of

custody of the broken bottle were not suspected.

Only the victim or an eye witness to the crime could have

given such a testimony for it to be credible. However the

situation would be different if indeed harm was inflicted on

the victim by any weapon and the victim through serious

injury or death was not able to give direct evidence of the

Armed Robbery. The fact that dangerous weapons were

used in the course of the robbery can be rightly deduced

from the injury to the

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victim(s) which would be part of the evidence tendered by

the prosecution in the proof of their case against the

accused.

I am convinced that the learned trial judge made an

erroneous finding of Armed Robbery against the Appellant

in the circumstances of this case. I find that indeed the

Appellant confessed to the crime of stealing. I substitute a

finding and conviction of stealing against the Appellant. I

set aside the finding and conviction of Armed Robbery

made by the learned trial judge in the judgment of 21/4/16.

I also set aside the sentence of death. I substitute a

sentence of two (2) years imprisonment. In view of the fact

that the Appellant has been in custody since he was

arrested on 30/10/08 and he has thus spent 10 years in jail,

I am of the humble but strong view that he has paid his

debt to the society for an offence he committed at the age

of 18. I order his discharge forthwith. The judgment of Hon.

Justice S.A. Omonua of the High Court of Edo State

delivered on 21/4/16 in Charge No. B/91C/10 convicting the

Appellant of the offence of armed robbery and sentencing

him to death is hereby set aside. Appeal Allowed.

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PHILOMENA MBUA EKPE,J.C.A.: I had the opportunity

of leading in draft, the lead Judgment just delivered by my

learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA.

The Appellant was charged with the offence of conspiracy

and Armed Robbery before the trial Court at the age of 18.

He was found guilty based on his confessional statement

and was sentenced to death. It is however on record that

the Appellant resiled from his statement.

A Court is bound to exercise a certain degree of caution in

convicting an accused person based on a confessional

statement which he had resiled from. See THE STATE V.

JAMES GWANGWAN (2015) LPELR 2483.

I am in total agreement with the reasoning and conclusion

of my learned brother in the lead Judgment that the trial

Court failed to make a distinction between the offence of

stealing and the offence of Armed Rubbery

I too set aside the sentence of death and substitute it

instead with a two year sentence of imprisonment. I am

also aware of the following facts;

a. The Appellant was 18 years old when the offence

was committed.

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b. The offence of Armed Robbery had not been proved

against the Appellant by the trial Court.

c. The Appellant had spent 10 years in jail prior to his

conviction by the trial Court.

Accordingly, I too order that the Appellant be discharged

and the Judgment of the trial Court delivered on 21/4/2016

set aside. Appeal allowed.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read

before now the lead judgment of my learned brother

HELEN MORONKEJI OGUNWUMIJU, JCA, just delivered.

The sole issue for determination therein was subjected to

an exhaustive and adequate consideration and I am inclined

to endorse the conclusion reached therein. I adopt same as

mine and have nothing extra to add except for the

admonition that trial Courts should cautiously and

meticulously examine confessional statements to ensure

that they are in tandem with the offence or offences

charged before they convict on them. This is to avoid a

situation where an accused person will be wrongly

convicted for an offence he did not actually confess to, such

as in the instant case where the Appellant confessed to

stealing but was convicted for the serious charge of armed

robbery.

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This would have no doubt led to a grievous and

unpardonable miscarriage of justice. For example, a

confessional statement should indeed be worth its

appellation before a conviction should be judiciously based

on it.

For this and the fuller reason given in the lead judgment, I

too hold that this appeal is meritorious, and it is

accordingly allowed. I abide by the consequential orders

wisely detailed in the lead judgment including the order

setting aside the conviction and sentence of the Appellant

by the High Court of Edo State in charge No. B/91C/10.

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Appearances:

E.O. Afolabi Esq. with him, W.E.K. Adun Esq.,S.O. Atoe Esq., A. Afemefuna Esq. and S.U.Enyawule Esq. For Appellant(s)

F.N. Edokpolor Mrs. (Chief State Counsel, EdoState Ministry of Justice) For Respondent(s)

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