FACTS

ISSUE(S) FOR DETERMINATION

1.Whether the Court of Appeal was right to hold that the admissibility of exhibit 5 in the face of the objection by the defence has not occasioned a miscarriage of justice.

2.Whether the Court of Appeal was right to hold that the prosecution proved its case against the appellant before the Armed Robbery Tribunal sufficient enough to sustain the conviction and sentencing of the appellant for the offence of robbery.

DECISION/HOLDING OF THE COURT

unanimously dismissing the appeal.

FULL JUDGMENT

IN THE SUPREME COURT OF NIGERIA

On Friday, the 4th day of February, 2011

SC.364/2009

Before Their Lordships

MAHMUD MOHAMMED….. Justice, Supreme Court

JOHN AFOLABI FABIYI….. Justice, Supreme Court

OLUFUNLOLA OYELOLA ADEKEYE….. Justice, Supreme Court

SULEIMAN GALADIMA….. Justice, Supreme Court

BODE RHODES-VIVOUR….. Justice, Supreme Court

Between

EMMANUEL EKE

Appellant

And

THE STATE

Respondent

J. A. FABIYI. J.S.C (Delivering the Lead Judgment): This is an appeal against the judgment of the Court of Appeal, Kaduna Division (‘the court below’ for short) delivered on 15th December, 2009. Therein, the court below affirmed the decision of the Kaduna State Armed Robbery and Fire Arms Tribunal which was delivered on 24th October, 1997. 

The appellant was arraigned before the above stated Tribunal on a single charge which reads as follows:-
“That you EMMANUEL EKE and one other (at large) on or about the 10th day of February, 1995 at Kurmin Iya 
Village, Kaduna State, committed armed robbery to wit robbed (sic) one Mrs. Talatu Silas and Felicia Moses of cabout (sic) the sum of Five Thousand, Nine Hundred and Seventy Naira (=N=5,970.00) at gun point (i.e. by pointing gun at them) and thereby committed an offence of armed robbery contrary to section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act CAP 398, Laws of the Federation of Nigeria 1990 and triable by the Robbery and Firearms Tribunal of Kaduna State.”

P.1

The appellant pleaded not guilty to the above charge read to him on 27th June, 1996- To prove its case, the prosecution called five witnesses and tendered five exhibits. The appellant thereafter testified in his defence in 
a bid to extricate himself:
In its judgment handed out on 24th October, 1997, the Tribunal convicted the appellant for the offence of robbery simpliciter instead of the offence of armed robbery for which he was arraigned and sentenced him to twenty one (21) years imprisonment. The appellant appealed to the court below which dismissed the appeal and affirmed the judgment of the Tribunal on 15th December, 2009.

In the exercise of his constitutional right, the appellant has further appealed to this court. He formulated two issues from the three grounds of appeal contained in his Notice of Appeal filed on 22nd December, 2009. The said two issues contained on page 5 of the appellant’s brief of argument filed on 18th January, 2010 read as follows:
“(a) Whether the learned (sic) Court of Appeal was right to hold that the admissibility of Exhibit 5 in the face of the objection by the defence has not occasioned a miscarriage of justice (GROUND ONE)

(b) Whether the learned (sic) Court of Appeal was right to hold that the prosecution proved its case against the appellant before the Armed Robbery Tribunal sufficient enough to sustain the conviction and sentencing of the appellant for the offence of robbery. (GROUNDS TWO AND THREE).”

P.2

On behalf of the respondent, the three (3) issues decoded for determination of the appeal contained on page 3 
of its brief of argument filed on 25th February, 2010 read as follows:-
“(i) Whether the Court of Appeal was right in affirming the decision of the trial court having regard to the totality
  of evidence adduced before the tribunal. 

(ii) Whether the Court of Appeal was wrong in its decision that the failure by the trial court to conduct a trial within trial before admissibility of Exhibit 5, the confessional statement did not occasion a miscarriage of Justice.

(iii) Whether the procedure of trial within trial on the issue of voluntariness before the admissibility of a confessional statement is unconstitutional and unobtainable in the absence of jury system of trial and should be abolished.”

On 11th November, 2010 when the appeal was heard, learned counsel for the respondent, in his oral submission, decided to jettison the 3rd issue reproduced above. In a rather subtle manner, he stated as follows:-
“We drop our invitation to the court to depart from earlier decisions on trial within trial and to abolish the procedure.
No comment should be made in respect of issue (iii). For now, I keep my opinion on the point intact to my self. Without much ado, the issue is discountenanced as same is hereby struck out.

P.3

With regard to issue (a) formulated by the appellant, it was submitted that the court below was wrong when it affirmed the decision of the trial Tribunal which failed to conduct the mandatory procedure of trial within trial to determine whether the statement – Exhibit 5 was voluntary before its admission despite the objection of counsel on the ground of torture. Learned counsel for the appellant submitted that the failure to conduct the desired trial- within-trial constituted a breach of the appellant’s fundamental right as provided under Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria and Section 227(1) of the Evidence Act. He observed that the lower court was wrong when it held that the trial court did not place reliance on Exhibit 5 to convict the appellant. He felt that since the appellant denied the voluntariness of Exhibit 5, the trial court was duty bound to conduct a trial-within-trial. He cited the   case of Ojegele v. The State (1988) 1 NWLR (Pt. 71) 414.

Learned counsel for the respondent was at one with the stance of the appellant on this point. He pointed it out   that what is material for the appellant’s contention is his objection at the point of tendering the statement and admissibility of same before he was called upon to put in his defence. Learned counsel submitted that it is trite law based on a plethora of Judicial authorities that when there is an objection to the admissibility of a confessional statement on the basis that it was not voluntarily obtained either by inducement, threat or promise then the procedure known as trial within trial is mandatory to determine its admissibility He cited Nwangbomu v The State (1991) 2 NWLR (Pt 326) 384.

P.4

Learned counsel however maintained that failure to conduct trial-within-trial did not occasion a miscarriage of justice as the evidence of P.W.1, P.W.2 and P.W.3 was enough to convict the appellant. He asserted that a court can convict upon the evidence of one credible witness if he is not an accomplice and his evidence has sufficient probative value regarding the ingredients of the offence charged. He referred to Ofoke Nwanbe v. The State (1995) 3 NWLR (Pt.384) 385 at 447.

It should be stated clearly that the test for admissibility of a confessional statement is its involuntariness. Once the issue is raised as done at the trial court, it must be resolved or settled one way or the other before its admission or otherwise. See: Agholar  v. Attorney-General Bendel State (1990) 6 NWLR (Pt 155)141 at Page 151; Eguobor v Queen (No. 1) (1962) 1 SCNLR, 409; Olabode v The State (2009) 5-6 SC (Pt. 11) 29. 

It is now settled, as pronounced by this court in Nwamgbomu v. The State (supra) at page 395 per Wali, JSC, that when admissibility of a statement is challenged on the ground that it was not made voluntarily , it is incumbent on the judge to call upon the prosecutor to establish that it was voluntarily made by conducting a trial-within-trial. Such a procedural step must be taken at the point when the objection is raised. See: R.V. Francis and Murphy (1959) 43 Cr. App R. 174; R. v Onokaro 7 WACA 146. Ogoalo v The State (1991) 2 NWLR (Pt.175) 509, Joshua Adekanbi v. Attorney-General Western Nigeria (1966) 1 All NLR 47; Paul Ashake v. The State (1968) 2 All NLR 198 and Auta v. The State (1975) NNLR 60 at 65.

P.5

It is clear to me that the trial judge at the Tribunal goofed in failing to carry out the mandatory trial within trial to determine the voluntariness of the statement credited to the appellant. To my mind, Exhibit 5 was admitted to no avail.

However, the conviction of the appellant was not based solely on Exhibit 5 The saving grace was that without Exhibit 5, the evidence adduced by P.w.1 and P.W. 2, the victims of the offence of armed robbery assisted by P.W. 3 and P.W 4 who got the appellant arrested sufficiently put the appellant in a tight comer where he failed to extricate himself It is basic that a court can convict upon the evidence of one witness without more if the witness is not an accomplice in the commission of the offence and hrs evidence is sufficiently probative of the offence with which an accused is charged. See: again Ofoke Nwanbe v The State (supra) at Page 108; 
Odili v The State (1977) 4 S.C. 1.

The conviction of the appellant; even without the employment of Exhibit 5 was in order as affirmed by the court below in short, the failure to conduct the mandatory trial within trial that was warranted by the trial Tribunal and upheld by the court below did not occasion a miscarriage of Justice.

The issue is resolved against the appellant and in favour of the respondent.
Issue (b) is whether the Court of Appeal was right to hold that the prosecution proved its case against the appellant before the Armed Robbery Tribunal sufficient enough to sustain the conviction and sentencing of the appellant for the offence of robbery.
Learned counsel for the appellant submitted that the lesser offence of robbery was not proved beyond reasonable doubt.

P.6

He felt that the evidence of prosecution witnesses are full of material contradictions. He cited the cases of Onuoha v The State (1989) 2 SC 124; The State v. Aibangbee (2007) 2 NCC 648 at 696-697; Oforlete v The State (2000) 7 SC (Pt.1) 80.

learned counsel submitted that the contradictions in the evidence of the prosecution witnesses are very material as alleged exact amount of the sum of money stolen is in doubt and same should be resolved in favour of the appellant. He stressed that there must be certainty in the sum of money stolen. He felt that the charge was not proved beyond reasonable doubt both by the quality and quantity of the evidence adduced. He urged that the appeal be allowed.

Learned counsel for the respondent felt that there were no material contradictions in the evidence of the prosecution witnesses to warrant the resolution of same in favour of the appellant. He observed that the evidence of P.W.1 and P.W2, victims of the robbery was positive and direct as to the appellant’s guilt. He further maintained that the evidence of p.W. 3 and P.W. 4 corroborated the evidence adduced by P.W.1 and p.W.2 – the victims of the offence of armed robbery for which the appellant was charged. He submitted finally that the case was proved beyond reasonable doubt and urged that the appeal be dismissed.

Learned counsel for the appellant made a heavy weather of surmised contradictions pin-pointed by him. The word ‘contradiction’ traces its lexical roots to two latin words, namely ‘contra’ and ‘dictum’ which means ‘to say the opposite’. See: Ikemson v. The State (1989) 3 NWLR (Pt. 110) 455.

P.7

It is basic that testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. For contradictions in the evidence of witnesses to vitiate a decision, they must be material and substantial. 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 testified, or as to the reliability of such witnesses. In sum, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged should not vitiate the case of a party See: Enahoro v. Queen (1965) NMLR 265; Emiator v. The State (1975) 9-11 SC 107; Afulalu v. The state (2009) 3 NWLR (Pt. 1127) 160; Nasiru v. The State (1999) 2 NWLR (Pt. 589) 87; Okoziebu v. The State (2003) 11 NWLR (Pt 831) 327.

A careful perusal of the surmised contradictions shows that they are not material and substantial to such a degree as to affect the case of the prosecution. P.W 1 and P.W. 2, the victims of the offence of armed robbery stated how they were pursued on their way to Kurmin Iya village to buy some things by two boys of which the appellant was one of them. P.W.1 and P.W.2 said they heard gun shot and their money was removed. P. W. 2 stated her own amount of money to be -N=7,600.00. That P. W. 1 and P W 2 did not employ the use of same words m relating what happened did not, to my mind, touch on inconsistency. The minor variations in their testimonies merely imbue their evidence with imprimatur of truth See: Abogede v. The State (1996) 5 NWLR (Pt. 488) 270, ogun Akinyelu (2004) 18 NWLR (Pt. 905) 362.

P.8

P.W.3 and PW.4 stated the assistance rendered by them to P.W.1 and P.W.2. P.W.3 said he rushed to the scene  on hearing the shout of P.W.1 and P.W.2. P W.3 and P.W.4, on the directive of the village chief, got the appellant arrested and taken to the chief who handed the appellant to the police. The appellant was a known person to the witnesses prior to the incident. The trial Tribunal pin-pointed all these facts. The court below confirmed same. I cannot trace any material and substantial contradictions in the evidence of the prosecution witnesses that caused any miscarriage of justice in this appeal. See: Onisade v. Queen (1964) 1 An WLR 233: Queen v Ekanem (1960) s FSC 14 and Queen v Iyanda (1960) 5 FSC 263.

In effect, armed robbery simply means stealing plus violence, used or threatened. See. Aruna v. The State (1990) 9-10 Sc 87; (1994) 6 NWLR (Pt. 155) 125 Aminu Tanko v. 
The State (2009) 1- 2 SC (Pt. 1) 198 at 223.

The essential ingredients of the offence of armed robbery, as listed n the case of Bello v. The State (2007) 10 NWLR (Pt. 1043) 564 are as follows-
(a) that there was a robbery or series of robbery. 
(b) that each of the robbery was an armed robbery.
(c) that the accused was one of those who robbed
There is no iota of doubt in my mind that after reading the evidence adduced in the Records of Proceedings, the above stated ingredients were clearly established. P.W.1 and P.W.2 were robbed of their money on their way to Kurmin Iya village. The appellant was in the gang of two boys who shot gun into the air to scare the two women. P.W.2 lost her money as same was removed in the process of the appellant’s action and that of his cohort who was said to be at large.

P.9

The appellant, in his oral evidence attempted to put up the defence of alibi. This means that he was not at the scene of crime, Alibi means ‘elsewhere’. 

It is the duty of the police to investigate same. But it is the duty of the accused to furnish the particulars of alibi to the police at the earliest opportunity He must furnish his where about and those present with him. It is then left to the prosecution to disprove same. Failure to investigate will lead to acquittal. See. Yanor v The State NMLR 337 Queen vs. Turner (1957) NRNLR 34; Bello v. Police (1956) SCNLR 113; Gachi v. The State (1973) 1 NMLR 33; Odu & Anr. v. The State (2001) 5 SCNJ 115 at 120; (2001) 10 NWLR (pt.772) 668.

The appellant who did not put up his defence of alibi at the time of investigation cannot be taken seriously. Making the plea in his evidence at the trial is a ploy which equates to an after-thought. It was to no avail in the circumstance. 
Finally, I wish to make a brief comment on the point made on behalf of the appellant that the case was not proved beyond reasonable doubt. This is a ready tool for most defence counsel.

Proof beyond reasonable doubt is not proof beyond all iota of doubt or proof to the hilt. See: Woolmington v. Director of Public Prosecutions (1933) AC 462; Nasiri v. The State (supra) at page 98; Akalezi .v. The State (1993) 2 NWLR (pt.273) 1 at page 13.

I wish to once more observe that when all the essential ingredients of the offence charged have been satisfactorily proved by the prosecution, as in this matter, the charge is proved beyond reasonable doubt. See: Alabi v The State (1993) 7 NWLR (Pt.307) 511 at page 523.

P.10

I have no hesitation in resolving issue (b) against the appellant and in favour of the respondent In conclusion, I find that this appeal is devoid of merit. It is hereby dismissed. The conviction and sentence of the appellant by the trial Tribunal as affirmed by the court below is hereby confirmed.

MAHMUD MOHAMMED, J.S.C.: The Appellant was convicted and sentenced to 21 years imprisonment for the offence robbery on 24th October, 1997 by the Kaduna state Robbery and Fire Arms Tribunal. The Appellants appeal to the Kaduna Division of the Court of Appeal was heard and ultimately dismissed on 15th December’ 2009 to give rise to the present appeal in this court.

From the evidence of the five witnesses called by the prosecution and exhibit 5 being the confessional statement  of the Appellant, it is quite clear that the prosecution had proved its case against the Appellant beyond reasonable doubt. With the evidence of the two eye witness who were victims of the act of the robbery, even without confessional statement of the Appellant, the prosecution was still on strong ground in discharging its burden of proof I am therefore completely with my learned brother Fabiyi JSC dismissing this appeal. Thus, the appeal being devoid of merit is hereby dismissed by me. The conviction of the Appellant and the sentence passed upon him by the trial Court which were affirmed by the court below, are hereby further affirmed by me.

OLUFUNLOLA OYELOLA ADEKEYE, J.S.C.: I read in advance the judgment just delivered by my Learned Brother John Afolabi Fabiyi JSC.
I am in agreement with his reasoning and conclusion that the appeal lacks merit and I also dismiss it.
I abide by all the consequential orders made in the lead judgment including orders as to costs.

P.11

SULEIMAN GALADIMA, J.S.C.: I have had the opportunity of reading in draft the judgment delivered by my
learned Brother FABIYI JSC. I agree with him in his conclusion that the appeal is lacking in merit and I too hereby dismiss it.

BODE RHODES-VIVOUR, J.S.C.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Fabiyi, JSC. I am in full agreement with his Lordships reasoning and conclusions. I propose to add a few observations on when a trial within trial is conducted.

I hope it will be of assistance to judges who have the task of applying the law in this area. Relevant extracts from the proceedings in the trial court can be found on pages 15 and 16 of the Record of Appeal.  It runs as follows: 
PW5 ( a Police Officer) I recorded the statement of the accused in English. I cautioned him. I read over the words of caution to the accused, he understand and signed. I recorded the statement of the accused and read over to the accused his statement. He said is correct and signed. The statement is confessional. I take him before my Boss, MR. Dauda and endorsed the statement.
He confirmed that the statement is confessional. 
I can recognize the statement by my handwriting and signature. This is the statement.
MR. Michael: I seek to tender the statement.
MR. Jarome: I oppose the admissibility of the statement. Accused was force by writing statement the accused alleged to have been beaten. I am applying for Trial within Trial.

P.12

MR. Michael: I am opposing the application for Trial within Trial, the accused did not give particular of Trial within Trial.
Court: No sufficient and concrete ground to order for trial within Trial the accused made statement this is not denied what ever recorded from the accused person is relevant and could be admitted. I hereby overrule the objection and the statement is hereby admitted and marked exhibit 5. 

My lords, where a confessional statement is challenged on the ground that the accused person did not make the statement, the statement should be admitted since its admissibility is not affected.  That the statement was made voluntary or otherwise does not arise for consideration. But where a confessional statement is objected to on the ground that it was not voluntary. That is to say the accused person says he was forced or induced to make it then a trial within trial must be held.

See. Queen v Igwe 1960 5 F.S.C. P.55; Ikpasa v. Bendel State 1981 NSCC vol.12 p.300 
The trial within the main trial is designed to determine if the confession was voluntary. At the trial the accused person must give evidence before witnesses called by him give evidence. At the end of the trial within trial if the court is satisfied that the confessional statement was not voluntary, the said statement would not be admissible in evidence as on exhibit and the trial judge should rule accordingly.

In this case of the point of tendering the confessional statement the accused claimed that he was beaten up and forced to write the statement.

P.13

The trial court ought to have ordered a trial within trial to find out if the accused person’s contention that he did not write the statement voluntary was true. 

Failure to conduct a trial within trial was wrong. The Court of Appeal fell painfully into the some error when it said on page 91 of Record of Appeal that the learned trial judge was right to admit the document as exhibits 5 without having to conduct a trial within trial.

A confessional statement found not to have been voluntary is worthless. I must observe that not conducting a trial within trial is this case does not affect the judgment of the trial court, affirmed by the Court of Appeal. 

This is so since evidence led and accepted is so overwhelming and conviction was easily sustained without the confessional statement. 
There is no merit in this appeal. It is accordingly dismissed.

P.14

APPEARANCES

A. T. Kehinde (with him T. Ngoladi and A. Olawuyi (Miss)For Appellant

And

T. E. Tawo (with him E. M. Igbokwe)For Respondent

ALTERNATE CITATIONS