MBERI

V.

THE STATE

IN THE COURT OF APPEAL OF NIGERIA

ON FRIDAY, THE 15TH DAY OF JANUARY, 2016

CA/OW/351M/2012

LN-e-LR/2016/35 (SC)

OTHER CITATIONS

(2016) LPELR-40075(CA)

BEFORE THEIR LORDSHIPS

IGNATIUS IGWE AGUBE, J.C.A

ITA GEORGE MBABA J.C.A

FREDERICK O. OHO J.C.A

BETWEEN

ONYEKA MBERI Appellant(s)

AND

THE STATE Respondent(s)

REPRESENTATION

Chimezie Victor C. Ihekweazu Esq. For Appellant

AND

Mrs. Christiana Izuagwu-Chief State Counsel, Ministry of Justice, Owerri. For Respondent

[EDITORS:

Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Kalu Eleanya and Ugochi Vine Eleanya]

MAIN JUDGMENT

FREDERICK O. OHO, J.C.A.: (Delivering the Leading Judgment):

Before the High Court of Justice, Imo State of Nigeria in the Orlu Judicial Division, Holden at Urualla ONYEKA MBERI along with one (1) other person was charged on a single Count information with the offence of Armed Robbery, contrary to Section 402(2) (a) of the Criminal Code Act Cap. 77 Laws of the Federation of Nigeria 1990 as Applicable in Imo State. In the particulars of offence the Appellant in company of one other person were said to have committed the offence of Armed Robbery on the 23rd day of June, 2008 at AKOKWA in Ideato North Local Government Area of Imo State while armed with a gun and other dangerous weapons, when they robbed Alibaz Industries Limited of two pieces of armored cable wire valued at Six Hundred and Fifty-Thousand (N650,000.00) Naira and one Armature valued at Thirty-Thousand (N30,000.00) Naira. The accused persons at the lower Court pleaded not guilty and the Prosecution called four (4) witnesses and tendered 22 Exhibits which were admitted and marked as Exhibits A, B1-B10, C, D, E, F, G, H, I, J, K and M. The Appellant testified for himself and called no witnesses in the course of his defense before the Court.

At the conclusion of trial, the learned trial Judge in a considered Judgment on the 30-3-2012 found the Appellant guilty as charged and sentenced him to 25 years imprisonment with hard labour. It is against this conviction and sentence that the Appellant has appealed to this Court vide his Notice of Appeal dated the 27-3-2013 and filed on the 2-4-2013. In all, eight (8) Grounds of Appeal were filed and from which learned Appellant'??s Counsel distilled four (4) issues for the Courts determination. These grounds are as follows:

GROUND ONE:

The learned trial judge misdirected himself in law when he held inter alia that;  the evidence of the prosecution witness are acceptable, reliable and compelling, I cannot find the contradiction in the prosecution witnesses evidence that is material or substantial that will make me not believe it.

GROUND TWO:

The trial Court erred in law when it relied on the case of ASANYA vs. STATE (1991) 3 NWLR (PT. 180) 427 AT 467 to hold that the evidence of the Appellant was conflicting and contradictory with their extra judicial statements and as such unbelievable and unacceptable and thereby occasioned a miscarriage of justice against the Appellant.

GROUND THREE:

The Court erred in law when it held that the Appellant did not raise the issue of alibi properly and that the defense of alibi was not available to the Appellant since he failed to raise it at the earliest time and that the prosecution has led credible evidence to dislodge the defense.

GROUND FOUR:

The learned trial Judge erred in law when he held that; from the totality of the evidence led by the prosecution, I have no doubt in my mind that the evidence led to prove this case are qualitative, compelling, cogent and convincing to enable this Court take a conclusive decision in this case? and thereby occasioned a miscarriage of justice against the Appellant.

GROUND FIVE:

The trial Court misdirected itself on the fact when he held that; from the evidence before me, I found as a fact that the accused persons knew themselves and conspired to carry out their mission which they executed when they entered into ALIBAZ Industries. I also believe the prosecution witnesses that they were arrested inside the factory and not along Akokwa Road as claimed by DW1?ý

GROUND SIX:

The learned trial Judge erred in law when he held that it is a fact that the statements of the accused persons, including the Appellant were not made under duress or torture and it is inconsistent and contradictory to their evidence on oath and thereby occasioned a miscarriage of justice against the Appellant.

GROUND SEVEN:

The learned trial Judge erred in law when he held that the evidence of the PW1 and PW2 supersede the defense of alibi raised by the accused Appellant in his evidence on oath when the prosecution never investigated the defense of alibi as raised by the Appellant.

GROUND EIGHT:

The decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.

ISSUES FOR DETERMINATION

Learned Appellant's Counsel as stated earlier distilled a total of Four (4) issues for the Court's consideration as follows:

1.       Whether the trial Court was right when he held that the evidence of the prosecution witnesses were acceptable, compelling and uncontradictory and proceeded on the basis of that holding to convict the Appellant and whether such holding occasioned a miscarriage of justice on the Appellant and if so whether the conviction and sentence of the Appellant ought to be set aside and quashed.

2.       Whether in view of the position of the law the trial Court was right when he applied the case of ASANYA vs. STATE (1991) 3 NWLR (PT. 180) 427 to hold that the evidence on oath of the extra judicial statement of the Appellant were contradictory and ought to be disbelieved and whether such application occasioned a miscarriage of justice on the Appellant and ought to be set aside.

3.       Whether the defense of alibi avails the Appellant and whether the trial Court was right when it held that the Appellant did not properly raise the defense of alibi and went ahead to believe the evidence of PW1 and PW2 over and above the evidence of the Appellant.

4.       Whether in view of the facts of the case, the evidence before the Court and the balanced position of the law, the trial Court was right when it held that the statement of the Appellant was not made under duress or torture and whether such holding occasioned a miscarriage of justice on the Appellant.

The Respondent on its part curiously identified a total of six (6) issues, two (2) more than the Appellant for the Court’s determination. These are reproduced as follows:

(1)     Whether the lower Court properly reviewed and considered the available evidence before holding that the evidence of the prosecution witnesses were qualitative, acceptable, cogent and convincing and for which the Appellant was convicted.

(2)     Whether inconsistencies and contradictions abound in the evidence on oath given by the Appellant and his extra judicial statements to warrant the trial Court relying on the case of ASANYA vs. STATE (1991) 3 NWLR (PT. 180) P. 427.

(3)     Whether the defense of alibi raised on oath during the testimony of the Appellant avails him and whether the evidence of the PW1, PW2 and PW4 who testified that the Appellant was arrested at the scene of crime super-cedes the defense of alibi.

(4)     Whether the Appellant, raising duress or involuntariness in the witness box after his extra judicial statement have been admitted without any objection avails him.

(5)     Whether the totality of the evidence led by the Prosecution has occasioned a miscarriage of justice against the Appellant.

(6)     Whether the prosecution has proved this case beyond reasonable doubt.

From the issues nominated by the parties for the determination of Court, two maladies are at once obvious. As it relates to the issues nominated by the Appellant, they are generally inelegantly drafted with several issues routinely rolled up into single issues. The consequence is that clarity and precision are lost at the instance of the voluble nature of the issues nominated on the part of the Appellant. On the part of the Respondent, not having filed a cross-Appeal and not having filed a Respondentýs notice, a total of six (6) issues are formulated, two more than the Appellant, with the result that there had been instances of repetition, clumsiness and verbosity to be readily cited. For instance, the Respondent’s issues one; five and six are issues which could conveniently be taken under one issue.

It is now settled law that where a Court finds that there are verbosity, and clumsiness in the issues nominated by the Appellant for determination, the Court is entitled to re-formulate or reframe the issues for purposes of narrowing down the issues in controversy in the interest of accuracy, clarity and brevity. See the cases of AFRICAN INTERNATIONAL BANK LTD., vs. INTEGRATED DIMENSIONAL SYSTEM LTD., & ORS. (2012) 11 SCM 1 AT 24-25; UNITY BANK PLC., vs. EDWARD BOUARI (2008) 2 SCM 193 AT 240. In the case of MUSA SHA (JNR.) & ANOR vs. KWAN & 4 ORS. (2000) 8 NWLR (PT. 670) 685, the Supreme Court was of the view that: ý So long as it will not lead to injustice to the opposite side, the Appellate Court possesses the power and in the interest of justice, to reject, modify or reframe any or all issues formulated by the parties.

In this connection this Court shall go ahead and do a re-formulation of the issues for the determination of this Court as follows:

ISSUES FOR DETERMINATION;

1.       Whether the offence of armed robbery was established against the Accused/Appellant to the satisfaction of the Court.

2.       What is the effect of the previous statements made by the Appellant which are inconsistent with his defense put up at the trial.

3.       Whether the defense of alibi put up for the first time in the witness box avails the Accused/Appellant.

4.       Whether the defense of coercion or involuntariness in the admissibility of the Accused/Appellant’s extra-judicial statement could avail him when same was raised after the said statement was tendered with no objection.

The need to state the brief facts of this case cannot be overestimated. The Appellant (as 1st accused person at the trial Court) was charged jointly with a second accused person, one Vincent Edeh with the offence of Armed Robbery contrary to Section 402(2)(a) of the Criminal Code Act, Cap 77, Laws of the Federation of Nigeria, 1990 as applicable in Imo State. The duo on the 23rd day of June, 2008 at Akokwa in Ideato North Local Government Area of Imo State, while armed with a gun and other dangerous weapons were said to have robbed Alibaz Industries Limited of two pieces of armoured cable wires valued at N650,000.00 and one Armature valued at N30,000.00.

Evidence in this case has it that the PW1, one Aloysius Azubike who is owner of Alibaz Industries Limited on the 23rd day of June, 2008 got a phone call at about 11.30 pm from one of his security men at the company premises who told him that armed robbers had invaded and were operating within the premises. The PW1ýs immediate reaction was to lodge a formal complaint with the Police, who was assigned some policemen to him. The Policemen were said to have accompanied him to the Company premises at about 5.30 am the next day and upon their arrival at the scene the Policemen fired some gun shots and ordered the armed robbers to come out of hiding or be shot at sight. According to the PW1, when the armed robbers came out of hiding, it was discovered that the wiring system of the Company premises had been vandalized and the armoured cable that came from the Engine house to the factory had been cut off while the Engine armature was disconnected and parked at a corner. Also, he said that the robbers packed the items together with others in a sack bag. The PW1 further testified that the robbers were arrested inside the Company premises and the items recovered from the scene were taken into custody by the Police.

However, the facts have a dramatic twist to it when it comes to the defense put up by the Appellant herein. He testified that on a certain day in June, 2008, at about 9 am, he was picking scraps along Akokwa axis when he was approached by a man who asked him who he was and what he was doing. He explained to the man that he was picking rubber and allied materials. As this was going on, 3 other armed men approached and joined the scene. While he was still introducing himself, the men called him a thief and that that was when the beating started. He testified that all appeals made by him to explain to them that he was not a thief fell on deaf ears as the men beat him up and took him first to the police station and then to an unknown destination. According to him, upon arrival he was forced to squat and pictures taken of him. Thereafter he said that he was taken to the police and forced to sign a statement. He said that when he refused, he was terribly tortured and that he had no choice than to sign the statement.

The second accused person before the lower Court who testified as the DW2, one Vincent Edeh testified that he was a businessman who bought from Onitsha and was transporting the goods to Okigwe when the vehicle he was travelling in broke down. He said that he alighted and was waiting for another vehicle when somebody approached him and asked him to introduce himself. According to the DW2, he obliged and explained himself but that the man did not believe him and insisted on taking him to the Police Station. While this was going on, he said that other persons approached the scene and forced him into a vehicle and took him to the police station. After some days at the police station, he said that he was forced to sign a statement and that the police subsequently took him to Alibaz and forced him to sit on the floor, forced to hold a gun and pictures were taken of him and that from there he was transferred to Owerri, State CID from where he was charged to Court.

ARGUMENT BY APPELLANT’S COUNSEL:

ISSUES ONE and TWO:

1.       Whether the offence of armed robbery was established against the Accused/Appellant to the satisfaction of the Court.

2.       Whether there was material contradictions in the defense put up by the Accused/Appellant.

Learned Appellantýs Counsel argued his issues one and two together. He began by giving the facts of the case and contended that in a criminal case, the onus is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. He referred Court to Section 138(1) of the Evidence Act, 2011 (as amended) and also to the cases of ONYEACHIMBA vs. STATE (1998) 8 NWLR (Pt. 563) 587 at 596; ONAFOWOKAN vs. STATE (1987) 3 NWLR (Pt. 61) 538 and OKEKE vs. STATE (1995) 4 NWLR (Pt. 392) 676 at 707, on the subject. In addition Counsel submitted that, in a criminal case the guilt of an accused person must be proved beyond reasonable doubt before a conviction can be made and that this level of proof is attained only when every ingredient which constitutes the offence has been proved. He cited the case of EDE vs. FRN (2000) 3 WRN 13; BAKARE vs. STATE (1987) 1 NWLR (Pt. 52) 579 in support.

Learned Counsel drew attention to the fact that the Appellant, at the trial Court was charged with the offence of armed robbery contrary to Section 402(2) (a) of the Criminal Code Act, Cap 77, Laws of the Federation of Nigeria, 1990 but that the evidence before the trial Court fell short of the standard required to secure a conviction. Learned Counsel also drew attention to the case of ISIBOR vs. STATE (2002) 3 NWLR (Pt. 754) 250 at 278, where the Court held as follows;

"For the prosecution to succeed in proof of the offence of armed robbery there ought to be proof beyond reasonable doubt:

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

b.       That each of the robbery was an armed robbery; and

c.       That the accused was one of those who took part in the robbery."

It was argued by Counsel that these conditions are to be construed as conjunctive not disjunctive and that where there is a failure on the part of the prosecution to establish any one of the elements, then there is a failure to prove the case beyond reasonable doubt. Counsel called in aid, the decision of ISIBOR vs. STATE (Supra) once again. He contended that in the instant case, the prosecution failed to prove, by credible evidence, any of the elements of the offence of armed robbery to warrant the trial Court entering a guilty verdict against the Appellant. More importantly, Counsel enthused, the prosecution failed to prove that the Appellant took part in any armed robbery incident. Counsel referred to Exhibit C, which he said is a locally made pistol which was purportedly recovered from the scene of robbery and that the prosecution was not able to tie the gun to the Appellant. In addition, Counsel argued that there was no evidence before the trial Court to the effect that the gun was in possession of the Appellant. It was argued by Counsel that the PW4, through whom the exhibit was tendered, was not a member of the team who arrested the Appellant, as he neither recovered the gun nor see the Appellant in possession of it. According to learned Counsel, none of the prosecution witnesses saw the Appellant in possession of Exhibit C. In the case of the PW3, Counsel said that he never claimed to have seen the Appellant with any dangerous weapon as he admittedly arrived at the scene only to take pictures after all said done.

It was further argued by Counsel that the evidence of PW2 amounts to hearsay and should not have been believed by the trial Court. In his evidence in chief, Counsel told Court that the PW2 stated as follows:

"The owner of the factory came to the entrance of the factory with a team of policemen and opened the factory with his key. At that point, the  owner of the factory went inside the factory with the team of policemen. The police began to search for the armed robbers and they saw very long coiled wires where one Onyeka Mberi was hiding with his gun. The second accused hid himself under a big tarpaulin where manufactured goods like nails and iron sponge were packed."

It was the contention of Counsel that the PW2 did not state that he entered into the factory premises and that as a matter of fact he did not. Going by his evidence, Counsel stated that it was the factory owner and the policemen that entered the factory and queried how the PW2 could have known where the accused person was hiding with his gun if he did not enter into the factory premises? It was submitted by Counsel that this piece of evidence amounts to hearsay and the trial Court ought not to have believed him. Counsel further submitted that oral evidence must in all cases be direct. He cited the case of AGWULGWUL vs. AKPO (2001) 5 NWLR (Pt. 706) 280 and YAHAYA vs. OPARINDE (1997) 10 NWLR (Pt. 523) 126 in this connection. According to learned Counsel even in his evidence, he never even claimed to have seen any gun but only claimed to have heard gunshots. Under cross-examination, he stated:

"It was when the factory owner entered into the factory with the policemen that we came our ..."

Please see page 76 of the Record of Appeal.

It was further argued by Counsel that the PW1 on the other hand, never stated that he saw the Appellant with Exhibit C and that there is no evidence before Court as to where Exhibit C was recovered from. Learned Counsel submitted in this connection that from the state of evidence before the trial Court, the prosecution failed to prove that there was an armed robbery on the fateful day. According to learned Counsel, the evidence of PW3 which came close was also hearsay and ought not to have been believed by the trial Court. Against this backdrop, Counsel submitted that the prosecution failed to prove the essential elements of the offence of armed robbery and he urged this Court to so hold. Apart from all of these learned Counsel told the Court that the evidence of the prosecution was full of contradiction and inconsistencies. On the one hand, Counsel said that the PW4, who tendered the Appellant’s statement, in one breadth stated that:

“The suspects showed us where they climbed the fence to enter the premises of the Company. We also saw the block and ladder which they used as climbing steps”.

While in other breadth, Counsel said that the PW4 stated thus:

“We presented all the materials before the accused persons and we asked each of them questions, they denied being in possession of the items. We questioned them why they were and what they were doing inside the Company at the hour of the night. They responded that they were running from the rain that was falling that night and to pick some (sic) was products of aluminum to be taken to their shop at Nnewi. We therefore concluded that their mission was just to steal these products and sale (sic) it at their workshop at Nnewi.”

Counsel referred Court to pages 63 to 65 of the Record of Appeal in this connection. With this at the background, Counsel contended that when the evidence of the prosecution is shown to be contradictory, the law is that the accused person is entitled to take benefit of the contradiction and be set free. He added that the Court in resolving the contradiction is bound to resolve same in such a way that it will favour the accused person. Counsel cited the case of OKERE vs. STATE (2001) 2 NWLR (Pt. 629) 392. According to learned Counsel, the question which the trial Court ought to have asked itself was why the Appellant who had earlier told the police that he was hiding from the rain, then decided to make a turn around and subsequently made a confessional statement?

Learned Counsel queried what must have changed and led to the Appellant into changing his story in the long run?

Learned Counsel also picked holes with the learned Court’s finding where the Court said that the Appellant led contradictory evidence before it. It was learned Counselýs arguments that the lower Court in arriving at this decision, relied on the case of ASANYA vs. STATE (1991) 3 NWLR (Pt. 180) 427 and held that the Appellant’s evidence on oath and his extrajudicial statement were contradictory and for that reason ought to be disbelieved. It was the submission of Counsel that the lower Court misapplied the ASANYA decision to the instant case as the facts of both cases are not identical. He said that the Appellant in the ASANYA case made contradictory statements while the statement he made to the police was confessional in nature. It was further contended by Counsel that in the instant case, the Appellant’s evidence in Court was not confessional as he maintained that he did not commit the offence in question. In addition, Counsel made clarifications to the effect that in the ASANYA decision, the Appellant made no efforts whatsoever to explain the contradiction in his statements made to the police and that the voluntariness or otherwise of his statements to the police was never in issue before the Court.

In the said case, Counsel said that one of the issues canvassed before the Supreme Court was whether the Court of Appeal was right to have upheld the learned trial Judgeýs finding of inconsistency between the Appellant’s extra judicial statements and his subsequent oral testimony on oath. The Court, Counsel said through BELGORE, JSC (as he then was) held as follows:

“It is often found as a pattern, that statement of an accused person to the police before trial conflicts with what he says on oath before the trial Court. Like all evidence, where there is such a conflict or inconsistency and this goes to the root of the party’s case, it is the duty of the maker to explain the contradiction or inconsistency. Failure to resolve the conflict makes such evidence unreliable, a fortiori, if such evidence touches the substance of the case. The appellant in the instant case made a voluntary statement very much at variance with his sworn testimony in Court, it is incumbent on him to explain the contradictions and as he failed to explain, his testimony remains unreliable.”

It was learned Counsel’s submission that in the instant appeal, the Appellant, before the lower Court made conscious efforts to explain through credible evidence that the confessional statement made by him was obtained under duress and as such explained the inconsistency between his statement at the police station and his oral evidence on oath. In this connection Counsel reproduced a section of the Appellant’s evidence-in-Chief where he said as follows:

“ They took me to Owerri CID. I was there for 6 weeks, after which they brought me out and placed a paper before me to sign. I told them to read it out to me before I sign. As I refused, I was handcuffed, leg chained up to a fan hock (sic). I insisted that they should tell me what I did. I was terribly tortured. I signed the paper under duress and to avoid them kill me. I did not make any statement at Urualla Police Station."

This piece of Appellant's evidence, Counsel submitted remained un-contradicted. He also cited the case of KAREEM vs. FRN (2002) 8 NWLR (Pt. 770) 644 at 689, where he said that the Supreme Court held as follows:

"If the accused person resiles from his confessional statement, it is his function to explain to the Court as part of his evidence the reason for the inconsistency."

Learned Counsel finally on these issues, urged the Court to discharge and acquit the Appellant, the Prosecution having failed to discharge the burden of proving the guilt of the Appellant as an Accused person at the lower Court.

ISSUE THREE;

Whether the defense of alibi put up for the first time in the witness box avails the Accused/Appellant.

In arguing this issue, learned Counsel told Court that the issues arose out of Grounds 3 and 7 of the Notice of Appeal.

According to learned Counsel, the Appellant raised the defense of alibi when he said that he was not at the locus criminis when the offence was allegedly committed but that the lower Court disbelieved the defense on the ground that it was not raised at the appropriate time.

It was further argued by Counsel that it is by law, the clear duty of prosecution to investigate the defense of alibi once it is raised by an accused person as the defense of alibi simply means that he was somewhere else and not at the scene of the crime when the offence was allegedly committed. Learned Counsel contended that the onus is not on the Appellant to prove that defense but on the prosecution to disprove it as part of the duty on it to prove the charge against the accused beyond reasonable doubt.

According to Counsel, the only duty of the accused is to raise the defense promptly and properly. Counsel cited the case of BALOGUN vs. A-G OGUN STATE (2002) 6 NWLR (Pt. 763) 512. Learned Counsel also cited the case of ISIEKWE vs. STATE (1999) 9 NWLR (Pt. 617) 43 and contended that the onus is on the accused person to raise the issue of alibi at the earliest possible time to enable the prosecution investigate same. According to Counsel, the Appellant at the earliest opportunity and upon being apprehended at about 9.00 am stated that he was picking scraps along Akokwa axis road and that after his arrest, he was not told why and for what offence he was arrested. That he also disclosed that it was the police that took him to Alibaz Company premises and made him to sit on the ground while they snapped pictures of him. Counsel referred to page 66 of the printed records on this issue and urged the Court to resolve this issue in favour of the Appellant.

ISSUE FOUR;

Whether the defense of coercion or involuntariness in the admissibility of the Accused/Appellant’s extra-judicial statement could avail him when same was raised after the said statement was tendered with no objection.

It was the contention of learned Counsel that a Court, in convicting an accused person, can convict on the basis of a confessional statement made by the accused. But that the confessional statement to be relied upon must be voluntarily made by the accused person.

Counsel added, however, that the burden of proving that a confessional statement was voluntarily made rests solely on the prosecution and who must establish this positively. Counsel cited the case of ADEKANBI vs. ATTORNEY-GENERAL, WESTERN NIGERIA (1966) ANLR 46 and GBADAMOSI vs. STATE (1992) 9 NWLR (Pt. 266) 465. Learned Counsel also referred to Section 29(2) and (5) of the Evidence Act, 2011 (as Amended) and submitted that for a Court to rely on a confessional statement, it must have been voluntarily made by the accused. According to learned Counsel, where a confessional statement is found to be involuntary, it should not be part of the evidence upon which the Court could act upon. In the instant case, Counsel said that the Appellant led evidence that the statement which was obtained from him was obtained under duress. He referred once again to page 66 of the Record of Appeal on the issue.

“It was further contended by Counsel that this piece of evidence was neither challenged nor contradicted by the prosecution as the Appellant was not cross-examined on the point. Counsel submitted that the law is settled that where a party raises an issue in his defense and was not cross-examined on that issue, it will be treated as uncontroverted evidence and the truth. In this connection, Counsel referred Court to the cases of IRIRI vs. ERHORBOBI (1991) 2 SCJN 1; MOGHALU vs. UDE (2000) 4 WRN 13. “

Learned Counsel also told Court that the Appellant gave evidence to the effect that he was tortured and forced to sign the confessional statement which formed the basis of his conviction and that while this was raised at the point of defense, the Court had no way of knowing whether or not the statements made by the Appellant was obtained under duress or not. This is even more so, Counsel said, when the lower Court did not conduct a trial within trial as required. Counsel, however, conceded that there was no way the trial Court could have conducted a trial within trial in view of the time the issue of in voluntariness of the Appellant’s statement was raised, but further contended that the lower Court, nevertheless ought not to have placed reliance on the extra judicial statement of the Appellant with the state of evidence before the Court at the time of judgment. Counsel referred Court to the cases of EMEKA vs. STATE (2001) 32 WRN 37; AUTA vs. STATE (1975) 1 ALL NLR 163. It was also submitted by Counsel that the position taken by the lower Court on the issue occasioned a miscarriage of justice on the Appellant and urged the Court to so hold. Learned Counsel also urged the Court to resolve the Appeal in favour of the Appellant, discharging and acquitting him of the single Count charge of Armed Robbery.

ARGUMENT BY RESPONDENTýS COUNSEL;

ISSUE ONE;

It was contended by learned Respondentýs Counsel that to establish the crime of armed robbery against an accused person, the prosecution is saddled with the responsibility of proving the following ingredients of the offence:

a.       That there was a robbery

b.       That it was an armed robbery, and

c.       That the accused was the robber or one of the robbers.

Counsel cited the case of ADEKOYA vs. THE STATE (2012) 209 LRCN p. 131 at p. 151 UJJ.

In respect of the first ingredient, learned Counsel referred Court to Section 401 of the Criminal Code Act Cap. 77 Laws of Federation, 1990 which defines robbery thus;

“Any person who steals anything and at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance or its being stolen or retained is said to be guilty of robbery”.

Counsel drew attention to the fact that the ingredients of the offence of robbery inherent in the definition above include stealing and actual violence either before or after committing the offence. Counsel next drew the attention of Court to Sections 382, 383(1) and 383(6) of the Criminal Code, which variously defines the ingredients of the offence of stealing and submitted that the properties of Alibaz Industries Ltd., admitted as Exhibits, in the course of trial before the lower Court, were found in the bag of the Appellant coupled with the fact that the Appellant was caught inside the factory premises of Alibaz Industries are indicative of strong cogent, convincing evidence that the Appellant stole the items of Exhibits by virtue of Sections 382, 383(1) and 383(6) of the Criminal Code. Learned Counsel argued that there was no evidence on the part of the Appellant to debunk the concrete and well established evidence led against him in this direction in the course of trial before the lower Court.

On the question of the use of violence as one of the ingredients of robbery, Counsel submitted that the PW2 gave a detailed narrative of how the Appellant and the 2nd accused person came to the factory premises, made gunshots to scare them away. Counsel referred to the Oxford English Dictionary for the meaning of violence, which he defined as; physical or emotional force. It was the contention of Counsel that the evidence of gunshots released by the Appellant as stated by PW2 and which was not impeached under cross-examination by the defense, coupled with the cutting of cable wires from the Engine Room of Alibaz Industries qualify as acts of robbery, the offence for which the Appellant was tried and convicted by the lower Court.

On the 2nd ingredient that the robbery must be armed robbery, Counsel submitted that the gun recovered from the heap of curled wires where the Appellant wriggled out from at the time they were caught inside the factory by the policemen, qualifies it as firearm referred to under Section 403 of the Criminal Code. Counsel cited the case of IBRAHIM vs. STATE (1991) 4 NWLR (Pt. 186) p. 409 at p. 420 Paragraphs B - C in support. Counsel also argued that to qualify as armed robbery under Section 402(2) of the Criminal Code the offender must be armed with any firearm or any offensive weapon etc and that the PW1, PW2 and PW4 all positively stated in evidence that Exhibit C (the gun) was discovered and recovered from the long curled wires where the Appellant hid himself. Counsel added that the Evidence of the PW1 specifically confirmed that it was when the Appellant wriggled out of the curled wires that Exhibit C was discovered inside the wires where the Appellant hid himself.

According to learned Counsel, there were no explanations on oath from the Appellant as to why the gun was recovered specifically from where he hid himself. Again, Counsel stated that the Appellant never stated that somebody else planted or put the gun, Exhibit C where it was found. It was Counsel's argument that there was strong circumstantial evidence and if considered with the veritable evidence of the PW2 that the robbers that entered the factory gave some shots upon entry into the factory coupled with the subsequent arrest of the Appellant at the scene, then there will undoubtedly be strong, convincing and cogent evidence pointing to the Appellant not only as the robber but also as the person who armed himself with the gun during the incident.

From the foregoing, Counsel submitted that the ingredients of armed robbery were proved by the evidence of the prosecution witnesses and that their evidence was neither materially contradictory nor hearsay. On this ground, Counsel further submitted that the evidence of the prosecution witnesses are cogent, qualitative, acceptable, convincing and reliable. On the question of whether there was inconsistencies and contradictions in the evidence of the Appellant given on oath and his extra judicial statement to warrant the trial Court relying on the case of ASANYA vs. STATE (Supra). Counsel referred this Court to the observations of the Supreme Court on the issue, where the Court held as follows;

"The rule that when a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the Court should reject both the previous statements and the evidence in Court is not limited to the evidence of prosecution witnesses, it is equally applicable to the evidence of the accused person and a fortiori witnesses for the accused?".

Counsel also referred this Court to further pronouncements of the Supreme Court on the issue, where the Court held at page 446 paragraphs D - F, that;

"Two pieces of evidence are inconsistent when they are mutually repugnant or contradictory, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other. In other words, two pieces of evidence are inconsistent when they are in essence mutually exclusive such that if one is true the other must be false because they are essentially contradictory."

At p. 430 of the report, Counsel told Court that the Supreme Court further went on to state that;

"Indeed when a witness has made a voluntary statement on oath often when the matter in issue is fresh in his memory and he comes to Court and decides for reasons best known to him to stop and change his story, I cannot see why any reasonable tribunal should take him seriously, unless of course, he is able to explain the inconsistency."

Learned Counsel told Court that on the 18-5-2011 when Exhibit J; the Appellant'??s extra judicial statement dated 27-6-2008 was tendered, the defense Counsel, who was present in Court never objected to its admissibility. According to Counsel upon realizing the gravity of the actions of the Appellant as Accused person who failed to object to the admissibility of the said Exhibit J, the Appellant then decided on the concoction of a story at pages 66 to 67 of the Records, which is entirely different from the content of Exhibit J. Counsel said that throughout his testimony, the Appellant offered no explanations concerning the contradiction. To add to the above, Counsel contended that the evidence of the Appellant on oath is also inconsistent and contradictory to Exhibit M, dated 24-6-2008. Exhibit M is the extra judicial statement of the Appellant which was admitted under cross-examination on 19-12-2012. Counsel further disclosed that this aspect of the evidence of 19-12-2012 was not included in the Record of Appeal. Learned Counsel urged this Court to resolve issues one and two against the Appellant.

ISSUE THREE;

On the question of the defense of Alibi raised by the Appellant, Counsel said that in raising the defense, the Appellant must at the earliest opportunity do so, precisely at the time he is making his statement to the police and also furnish in his statement full details of the alibi, to enable the police cross check on the details. Counsel further said that he was required to furnish details as to his whereabouts at the time of the commission of the offence and the persons who were in his company at the time. Counsel cited the case of AFOLALU vs. THE STATE (2012) WLRCNCC p. 42 at p. 58 KZ and OKOSI vs. STATE (1998) 1 ACLR p. 290 at p. 306 on the issue.

In the instant case Counsel submitted that the defense of alibi was never raised by the Appellant in Exhibits J and M which he volunteered at the earliest opportunity as the statements copiously disclosed that he was inside the premises of Alibaz Industry and nothing was said about being seen at the axis of Akokwa or any other place other than Alibaz Industry. Apart from these, Counsel told Court that

PW1, PW2 and PW4 gave credible evidence which showed that the Appellant was caught and arrested inside the premises of Alibaz Industry. He cited the case of ADEKUNLE vs. STATE (2003) 3 ACLR p. 562 at p. 572, where the Supreme Court held as follows;

“If the prosecution can lead positive evidence which the trial Court accepts and which fixes the accused person at the scene of crime, the alibi naturally collapses."

In laying emphasis on this point, Counsel once again told the Court that the Appellant was caught and arrested at the scene of crime, and a fact which the Appellant admitted in Exhibit J admitted into evidence before the lower Court. It was therefore submitted by Counsel, that on the authority of ADEKUNLE vs. STATE (supra), the evidence of the PW1 and PW2 superseded the defense of alibi raised on oath by the Appellant. Counsel urged the Court to resolve this issue against the Appellant.

ISSUE FOUR:

In arguing this issue, Counsel told Court that on the 18-5-2011 when Exhibit J was tendered in the course of trial, there was no objection from the defense Counsel as to whether the said statement was obtained voluntarily or not. Counsel said that it was not until it was time for the Appellant to give his evidence on oath that he claimed he was beaten and tortured before volunteering Exhibit J at the State CID, Owerri. It was the contention of learned Counsel that this very issue was canvassed before the Supreme Court in ODEH vs. F. R. N. (2008) All FWLR (Pt. 424) p. 1595 at p. 1622 paragraphs C - H where Supreme Court held that;

“The appropriate time to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence. In the instant case, the Appellant and his Counsel failed to object to the admissibility of the confessional statement made by the accused person therefore, it was correctly relied on by the Court to convict him”.

To further buttress Counselýs arguments on the issue, he referred Court to the case of ALARAPE vs. THE STATE (2001) FWLR (Pt. 41) p. 1877 at p. 1895, paragraphs D - E where the Supreme Court held thus;

“The question of the voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statements were tendered without any objection from the defense. None of the prosecution witnesses was cross-examined as to their involuntariness. It was not until prosecution had closed its case and the Appellants were testifying in their defense in the witness box that the issue was belatedly raised. The trial judge was right to dismiss this aspect of the defense case as an afterthought, having regard to the qualitative evidence tendered by the prosecution and accepted by the trial Court.”

Against this backdrop, Counsel submitted that the Appellant raising the issue of involuntariness at the time it was done, it was rather belated and the defense could not avail the Appellant as Accused person so long as it was raised for the first time in the witness box at the time he was conducting his defense. It is equally submitted by Counsel that the cases of ADEKANBI vs. ATTORNEY GENERAL, WESTERN NIGERIA (1966) ANLR 46, GBADAMOSI vs. STATE (1992) 9 NWLR (Pt. 266) 465 and Section 29(2) & (5) of the Evidence Act, 2011 as amended relied on by the defense are inapplicable to this case.

Apart from all of these, Counsel told Court, that despite Appellant’s tardiness in raising the issue belatedly, the trial Court still went out of its way to further test Exhibit J admitted without objection in the light of the veritable evidence of PW1, PW2 and PW4 before going ahead to convict the Appellant and the 2nd accused person in the matter. Counsel also disclosed that the lack of objection to the admissibility of Exhibit J, notwithstanding that it did not deter the Prosecution from cross examining the Appellant on the 19-12-2012, which is not contained in the record of appeal produced by the Appellant herein. Counsel contended, all said and done, that the prosecution did not leave the evidence of the Appellant unchallenged and uncontroverted. He added that the issue of duress or involuntariness heavily raised and relied upon by the Appellant on oath is an afterthought and he urged the Court to resolve this issue against the Appellant.

RESOLUTION OF APPEAL

The offence for which the Appellant was charged, tried and convicted by the lower Court was armed robbery. Simply defined, it means no more than stealing, in addition to the use of violence, actual or threatened. See the cases of ARUNA vs. THE STATE (1990) 9-10 S.C. 87; AMINU TANKO vs. THE STATE (2009)1-2 S.C. (PT. 1) 198 AT 223 and a host of other decisions of Court on the subject.

The pertinent question to address at this stage is whether the offence of armed robbery was established by credible evidence to the satisfaction of the trial Court or not. The responsibility of proving or establishing the charge against an accused person in a criminal trial remains with the prosecution and this he must discharge beyond reasonable doubt. It must also be added that this onus or burden does not shift. See the cases of AHMED vs. THE STATE (2003) 3 ACLR 145 AT 177; ANAEKWE vs. THE STATE (1998) ACLR 426 AT 433; OBIAKOR vs. THE STATE (2002) 6 SCNJ 193 and a host of other decided cases on the subject.

It is the contention of the Respondent that the prosecution discharged the burden of proof placed on it by law through the evidence of the prosecution witnesses on record and as such the Appellant was properly convicted and sentenced by the lower Court.

The Appellant on the other hand had contended inter alia that the prosecution did not place him firmly at the Locus Criminis in the face of discrepancies and conflicts in the evidence of prosecution witnesses alongside the wrongful admission of Appellant'??s extra-judicial statement which he claimed he made under duress and torture in the hands of the investigation officers.

The essential elements of the offence of armed robbery are as follows;

1.       That there was a robbery or series of robberies,

2.       That each of the robbery was an armed robbery, and

3.       That the accused person was one of those who robbed. See the cases of EKE vs. THE STATE (2011) 1-2 S.C. (PT. 11) 219 AT 234-235;

The evidence of the PW1, PW2 and PW4 are instructive in this regard. The evidence of the PW1 of the 20-7-2010 is contained at page 60 of the records of Appeal. He testified that the Security men at his factory premises called him on phone to report the presence of thieves within the premises. This was at about 11.30 pm and that as a result of this phone call, he went to the Police and made a report. He also said that the Police accompanied him to the factory premises at about 5.00 am the next day. According to the PW1, on reaching the premises at that time and after about 5 hours, he opened the main entrance and that when they gained entry, the Police shot into the air asking the culprits who were lurking within the premises to come out of hiding. The witness told the Court that while the 1st Accused and Appellant herein hid himself within the maze of wire coil, the 2nd accused person, on the other hand covered himself with a tarpaulin in the area of the premises where finished products were packed. He added that it was from these hiding positions that the Appellant and the 2nd Accused person emerged, surrendering themselves to the waiting arms of the Police who had accompanied the PW1 to the factory premises following his distress call made to the Police. The PW1 also testified that the factory was not at the time functioning and that for this reason he locked up the place and went away with the keys. According to the PW1, the Appellant and the 2nd Accused person gained entry into the premises by scaling the factory fence, while the Security men were at their duty post at the entrance. The PW1 further testified that there was no rainfall that night of the incident contrary to the evidence of the 2nd Accused person.

In his further testimony, the PW1 said that it was when the Appellant and the 2nd Accused emerged from hiding that it was discovered that the armoured cable that came from the Engine House to the factory has been cut off and that the total wiring system of the factory had been vandalized. He also said that the Engine armature had been removed and parked at a heap. The PW1 further said that the armoured cable is valued at N600,000.00 while the armature is valued at N30,000.00. It was perhaps, the evidence of the PW2, one George Iguebe, a Security man and one of the guards in the factory premises, which further threw light on the facts of the case and probably introduced the issue of the possession of fire-arm by the Appellant and the 2nd Accused into the case. He said in his evidence that on the 23-6-2008, while at his duty post in company of his partner on duty, they saw flashes of light at about 11.00 pm and that shortly after that, they heard gunshots and as a result of which they fled and hid themselves in the nearby bush. He also said that it was from their hiding positions while in the bush that he made a phone call to the PW1 who later arrived the scene in company of men of the Nigerian Police at about 5.00 am and thus, leading to the arrest of the Appellant and the 2nd Accused person within the factory premises.

The evidence of the Appellant given in defense of the charge was the usual defense of denials in all such related cases. He said that on a certain date in June, 2008 at about 9.00 am along Akokwa axis he was picking scrap metal when he was accosted by three (3) men, who subjected him to a barrage of questions and that despite the truthful answers he gave, he was thoroughly beaten up and taken first to Urualla Police Station, where he stayed in detention for four (4) days before he was taken to the factory premises and photographs taken of him. Appellant further testified that he was taken into custody of the Imo State Police CID Owerri where he was tortured for six (6) weeks and made to sign statements under duress.

The contention of learned Appellantýs Counsel is that the Prosecution failed to establish the offence of armed robbery against the Appellant as none of the elements of the offence of armed robbery were established against the Appellant. I simply do not share this view. The evidence of the PW1 and PW2 alone sufficiently establishes the fact that there was a robbery on the fateful day and that Exhibit C, which was the locally made cut to size gun in this case and along with two cartridges, were recovered from the hiding place of the Appellant.

In addition, the PW2 gave evidence of the shooting of a gun which scared the Security men on duty at the factory premises which led to their fleeing into the bush where they hid themselves until help came their way. If these acts of violence perpetrated by the Appellant and his cohort, coupled with the theft that took place does not amount to acts of armed robbery, then one wonders what that is. Proof beyond reasonable doubt is not the same thing as proof beyond of a shadow of doubt that the accused person is guilty of the offence charged. With mankind'??s celebrated imperfections, there is nothing in the like of an absolute certainty in the affairs of men when it comes to the question of proof of criminal guilt beyond reasonable doubt. To attain the height of certainty, then it must be an affair to be run by Angels. This obvious impossibility will only make it an untainable quest for the study of transcendental Philosophy and not one applicable to hard legal principles of law.

Here is a situation in which the one of the two persons said to have emerged from hiding within the factory premises was the Appellant and when a search was conducted where he emerged from hiding, a gun was recovered which was tendered as Exhibit C. Besides, the PW2 who was also present in the premises at about 11.30 pm at the commencement of the thievery spoke of the firing of gunshots which scared them from their duty posts. Once again, if this does not amount to the establishment of the offence of armed robbery on the part of the Appellant, then I wonder what that is all about.

Proof beyond reasonable doubt as DENNING, J (as he then was) observed in the case of MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E. R. 373;

"The law would fail to protect the community if it admits fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence- of course it is possible but not in the least probable, the case if proved beyond reasonable doubt?".

In the immortal words of the sage, OPUTA, JSC (of blessed memory), in the case of MUFUTAU BAKARE vs. THE STATE (1987) LPELR- 714 (SC);

"Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must be proved beyond reasonable doubt, not beyond the shadow of any doubt that the accused person is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability."

Although the onus to prove the commission of a crime beyond reasonable doubt resides with the prosecution and does not shift, same will undoubtedly shift unto the accused person where the prosecution is said to have established same to the satisfaction of the trial Court. In the instant case, the prosecution having discharged the burden placed on it by law, the burden of proving reasonable doubt shifted to the Appellant, who through his defense Counsel submitted that the evidence of the prosecution witnesses amounted to hearsay evidence and should therefore not be believed by the trial Court. To be sure of our definitions in order to get our bearings correctly, "Hearsay Evidence" simply means: Evidence given by a witness as to what he was told on a given fact in issue and not from personal knowledge. See the cases of JOLAYEMI vs. ALAOYE (2004) 12 NWLR (PT. 887) 322; OKUHUAROBO vs. AIGBE (2002) 9 NWLR (PT. 771) 29.

Usually, the evidence of a statement made to a witness, by a person who is not called as a witness is called hearsay if the object of such evidence is to establish the truth of what is contained in the statement. See also the case of OLALEKAN vs. STATE (2001) 18 NWLR (PT. 746) 793. In the same token, a witness who testifies about something he did not see, but was related to him, gives hearsay evidence and such evidence cannot form the basis of the decision of the Court. See the case of EGWIM vs. STATE (1998) 1 NWLR (PT. 532) 59.

How on earth the learned Appellant'??s Counsel configured and arrived at his "Hearsay Evidence" theory and as it applies to the direct evidence of the prosecution witnesses remains unclear to this Court. The PW1 was the one who received a phone call at about 11.00 pm from the PW2, one of the security men on guard duty that night, and it was he who went for the police and accompanied them to the factory premises at dawn. The PW1 was not told what happened in the factory premises that morning as he went and saw things for himself. He saw the Appellant and the 2nd Accused person emerge from hiding within the factory premises. He saw the vandalized and stolen items. He also saw the recovered Exhibit C, the gun and these formed basically the contents of his testimony before the lower Court. The imputation of hearsay evidence in his testimony clearly does not arise.

As for the PW2, he was in his duty post as a security man when the flashes of lights appeared in an otherwise serene environment which was subsequently and rudely punctuated by bursts of gunfire. As with the PW1, he too accompanied the Police when they moved into the factory premises and he saw the Appellant and the 2nd Accused person emerge from hiding. He also saw the recovery of exhibits including but not limited to Exhibit C, the gun and two cartridges and all of which he dutifully narrated before Court. Once again, the allegation of hearsay evidence is baseless to say the least.

In the case of the PW4, he was simply the Investigative Police Officer who gave evidence of how the matter was transferred to the State CID, Owerri and how it was assigned to him for proper investigation. He testified as to how he investigated the matter and wrote his report recommending that the accused persons be charged to Court for the offence of armed robbery. His evidence in Court also consists of how he took the statements of the Accused persons which they volunteered under caution. These statements it would be recalled were tendered and admitted with no objections as Exhibits L, M, J and K. Once again the imputation of hearsay evidence in the circumstance clearly represents an unfair and an inaccurate assessment of what transpired in the matter.

On the question of whether there were material contradictions in the evidence of the Prosecution witnesses, the simple reaction of this Court is that there were none. Learned Appellant's Counsel made a mountain out of molehill, in suggesting that there were contradictions or inconsistencies in the evidence of the prosecution witnesses.

The position of the law has always been that minor variations in the evidence of witnesses are not enough to destroy the credibility of the witnesses. A contradiction is usually said to have occurred when two pieces of evidence are by themselves inconsistent. This must be distinguished from a discrepancy which will usually occur when a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains some minor differences in details. Generally the law looks at these two different situations differently. Where a witness for instance, gives oral evidence which contradicts his previous statement in writing, his evidence should be treated as unreliable. But where there are minor discrepancies between a previous written statement and a subsequent oral testimony, this will not destroy the credibility of the witness. This is even more so where the distance between the said discrepancy and the essential ingredients of the offence can be measured more in kilometers than in millimeters. See the cases of GABRIEL vs. THE STATE (1989) 5 NWLR (PT. 122) 475; OGOALA vs. THE STATE (1991) 2 NWLR (PT. 175) 509 AT 534; ASARIYU vs. THE STATE (1987) 4 NWLR (PT. 67) 709; ASANYA vs. STATE (1999) 3 NWLR (PT. 180) 422 and a host of other decisions of Court on the subject.

I cannot therefore, in the circumstances of this matter find any plausible reasons to fault the findings of the of the learned trial Judge, who at page 71 of the printed records had this to say;

"I hold therefore that the evidence of the prosecution witnesses are acceptable, reliable and compelling. I cannot find the contradiction in the prosecution witnesses (sic) evidence that is material or substantial that will make me not to believe it."

From earlier decided authorities on the subject; see NDIBILIE vs. THE STATE (1965) NMLR AT 257; ANTHONY ENAHORO vs. THE QUEEN (1965) NMLR 265 AT 281; ARUEYE vs. THE STATE (1967) NMLR 210, it is clear that the duty of the Appellant who has come to this Court complaining of discrepancies, contradictions and/or inconsistencies in the story of the prosecution, is to satisfy the Court that there are;

a.       In actual fact grave or material contradictions in the evidence of the prosecution witnesses and not just figments or semblance of same.

b.       That such serious or important contradiction as may be shown to exist, are in the light of the evidence of the witnesses weighty enough as to make it dangerously unsafe to accept and rely on them.

c.       That the trial Judge failed to mention in his judgment these contradictions or assess their relative effect on the credibility of the witnesses or where he has mentioned them, he ignored the clear decision in the case of ONUBOGU vs. THE STATE (1974) 9 S.C. 1, by ýpicking and choosingý between conflicting pieces of evidence in respect of which there has been no explanation from the prosecution witnesses.

In the instant case, the alleged contradictions to my mind are clearly non-existent. In short, there is nothing on the record to suggest otherwise. I am therefore in agreement with the findings and conclusions reached by the learned trial Judge on the issue. He saw the witnesses and was in a better position to assess their credibility having watched their demeanor.

On the question of the Appellant'??s statement made to the Police before trial and which later turned out to be inconsistent with his oral testimony in Court, the Court will under normal circumstances reject both the said statement and his oral testimony as unreliable. There are several decided cases on this issue some of which were cited by learned Counsel in the course of their arguments before the lower Court. See the cases of IKEMSON vs. THE STATE (1989) 3 NWLR (PT. 110) 456; YAHAYA vs. THE STATE (1986) 12 S.C. 282 and a host of other decisions of Court on the subject.

It would be recalled that in the Exhibits J, K, L and M, of the accused persons, the first of who is the Appellant, admitted gaining entry into the factory premises by scaling the factory fence and had to hide in the factory until the Police ordered them out before they were arrested and taken to the station. But in their evidence made under oath they totally denied everything they wrote previously. They not only denied committing the offence, they even denied knowing each other before the offence. They denied making any statements at all at Urualla and Owerri Police formations except signing papers under coercion. They also denied having been arrested within the factory premises. They gave various accounts of how they got arrested outside the factory premises. Indeed, the denials were endless and I am simply in agreement with learned trial Court's application of the decision of ASANYA's Case to the facts of this case.

On the issue of the defense of alibi raised by the Appellant at the lower Court, the learned trial Court's appraisal of the evidence and findings on the issue is contained at pages 75 and 76 of the printed records. What learned defense Counsel had termed a defense of alibi, in the instant case, is the Appellant's apparent summersault and change of the original story line. While in the witness box, for the first time he denied that he was arrested within the factory premises and that he was indeed arrested along the Akokwa axis while picking scrap metals. According to Appellant, at about 9.00 am, trouble began for him in this case when a man accosted and asked him to explain himself. The point to be noted however, with this defense is that it was given by the Appellant for the first time while he was in the witness box making his defense and was never raised in any of the Appellants extra-judicial statements made to the police.

Alibi, it is to be noted is an evidential point which the prosecution must investigate to disprove. But it is not a phenomenon placing an unnecessary burden on the prosecution. The burden on the prosecution is simply not to ignore it as some steps must be taken to verify it however incredible it is. Where the alibi is clearly without foundation, the prosecution is not duty bound to bring in the witnesses to disprove it especially where there are stronger facts in evidence pointing to the presence of the accused person in the Locus Criminis as to make the alibi unreliable. Where an accused person who never indicated that he had an alibi but puts up the defense for the first time in Court, he could hardly be said to have given the Police an opportunity to investigate the alibi. Consequently, his alibi may not be of assistance to his case, as in the instant case. See the cases of IKEMSON vs. THE STATE (Supra); UKWUNNENYI vs. THE STATE (1989) 4 NWLR (PT. 114) 131.

In the instant case, there is no doubt about the fact that there was a stronger piece of evidence at the trial to support the prosecutioný??s contention that the Appellant was not only at the scene of the robbery, but was indeed one of the robbers. Both the PW1 and PW2 as eye-witnesses saw the Appellant emerge from hiding within the factory premises after the police had ordered them to do so. In the face of the overwhelming evidence against the Appellant as one of the Participes Crimines and his failure to call the evidence of his alibi, coupled with having to raise the issue for the first time in the witness box, I am unable to disagree with the learned trial Judge on the issue who rightly rejected the alibi.

On the defense of coercion and/or involuntariness in the admissibility of the Appellant's extra-judicial statement which was tendered with no objection, learned Appellant's Counsel contended that the burden of proving that a confessional statement was voluntarily made rests solely on the prosecution and who must establish this positively. According to learned Counsel, where a confessional statement is found to have been obtained under duress, it should not be part of the evidence upon which the Court could act upon. In the instant case, Counsel said that the Appellant led evidence that the statement which was obtained from him was obtained under duress. He said that the Appellant gave evidence to the effect that he was tortured and forced to sign the confessional statement which formed the basis of his conviction, but added not truthfully, that the issue of the Appellant's torture at the hands of the police was raised for the first time ever at the time the Appellant as 1st Accused was making his defense in the witness box thus, depriving the learned trial Court of the opportunity of conducting a trial-within-trial as required.

Despite this shortcoming, learned Appellant's Counsel was of the firm view that the learned trial Court was not supposed to have placed reliance on the extra judicial statement of the Appellant with the state of evidence before the Court at the time of judgment.

The position presented here is no doubt one of a retracted confessional statement made by an Accused person. The position of the law on the subject is that where a confessional statement which was obtained in accordance with the rules for obtaining such has been tendered and not objection was made to its admissibility, and was consequently admitted, then no amount of retraction by the Accused person can vitiate the said statement. The Supreme Court in the case of IBRAHIM BATURE vs. THE STATE (1994) 1 NWLR (PT. 320) 267, per ONU, JSC had this say on the subject;

"Where an extra-judicial confession has been proved to have been made voluntarily and it is positive and unequivocal and amounts to an admission of guilt, as in the instant case, it will suffice to ground a finding of guilt regardless of the fact that the maker resiled there from or retracted it altogether at the trial, since such a u-turn does not necessarily make the confession inadmissible."

The law is settled that the retraction of a confessional statement by an accused person in his evidence on oath during trial does not adversely affect the situation once the Court is satisfied of its truth. Where the reason for the retraction is hinged on an allegation that the statement was not voluntarily made, it becomes the responsibility of the trial Court to conduct a trial-within-trial for the prosecution to establish that the statement was voluntarily made. See the cases of NWANGBOMU vs. STATE (1994) 23-24 LRCN 163 AT 186; IKE vs. THE STATE (2010) 5 NWLR (PT. 1186) 41 AT 55-56.

However, the retraction to be taken seriously must be made at the time the statement is being tendered to be admitted as and an Exhibit. A retraction that is made after a statement has been tendered without objection and admitted as an Exhibit is a retraction made too late in the day. In the case of MUSTAPHA MOHAMMED vs. THE STATE (2007) 30 NSCQR (PT.1) 364 AT 380, the Supreme Court, per TOBI, JSC had this to say on the subject;

"It is important to say that when the confessional statements of the Appellants were tendered, there was no trial within trial. In the absence of objection, this Court can come to the conclusion that the statements were made voluntarily by the Appellants."

It is instructive to note that the failure of the Appellant to have raised the required objection at the time the statements were being tendered clearly resulted in the Court's failure to conduct a trial within trial as required and the fact also that the prosecution has closed its case with its witnesses discharged, obviously makes it a hopeless situation. I am therefore unable to fault the decision of the learned trial Judge in relying on the said confessional statement in the circumstances. In the case of ODEH vs. F.R.N. (2008) ALL FWLR (PT. 424) 1595 AT 1622, the Supreme Court once again was of the view that;

"The appropriate time to raise the involuntariness of the confessional statement is when it is about to be tendered in evidence. In the instant case, the Appellant and his Counsel failed to object to the admissibility of the confessional statement made by the accused person. Therefore, it was correctly relied upon by the Court to convict him.".

The obvious shortcomings of the defense in the instant case, notwithstanding which is inherent in the Appellant's tardiness in raising the issue of involuntariness and possibly leading to the retraction of the confessional statement done belatedly, the trial Court still went out of its way to further test Exhibit J admitted without objection in the light of the veritable evidence of PW1, PW2 and PW4 before going ahead to convict the Appellant. The learned trial Court’s analysis is contained at pages 86 to 87 of the printed records and I have no hesitation in my mind whatsoever in upholding the learned trial Judge’s appraisal and findings on the issue. To this end, the Appeal fails and it is accordingly dismissed. The judgment of the High Court of Imo State delivered in suit number HOR/6C/2009 on the 30-5-2012, is hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.:

I had the advantage of reading in advance the judgment delivered by my learned brother, F.O. OHO, JCA.

My learned brother admirably and exhaustively considered all the pertinent issues that arose in this appeal. I am in complete agreement with his reasoning and conclusions thereon. In that respect, I am also of the view that this appeal has no merit and should be dismissed. It is hereby dismissed by me.

ITA GEORGE MBABA, J.C.A.:

I had the privilege to read the lead judgment, just delivered by my learned brother, Fred O. Oho JCA and I agree with him, that the appeal lacks merit and should be dismissed.

In Appellant's desperate attempt to deny the charge, he changed the line of his defence, completely, while in the witness box, giving evidence on oath. He denied making statement to the police, alleging that he only signed a paper, under coercion. He also set up an alibi, while in the witness box, that he was arrested elsewhere, while picking scraps, and not on the scene of crime. Of course, alibi has nothing to do with where someone was arrested, but where he was at the time of commission of the offence!

I think Appellant greatly misjudged the essence of the plea of alibi as a defence in criminal charge, as well as the place of the plea of making statement, under duress.

In respect of the first, plea of alibi cannot be made by an accused person for the first time in the witness box. It must be made at the earliest opportunity, when arrested, to explain to the police that they (police) made a mistake by holding him, as he was not at the alleged place, but where, when the offence was committed, and he must state, clearly, the place he was and the person(s) he was with, to enable the police to investigate his claims. See the case of Esonu Chukwuyere vs The State (1986)3 NWLR (pt.31) 714; Onafowokan vs The State (1987)3 NWLR (pt. 61) 538; Eke vs The State (2011) 3 NWLR (pt. 1235) 589. Of course, such a defence cannot be made, for the first time, in the witness box, in the witness-box, by the accused and it cannot apply, where the accused was arrested at the scene of crime.

On the 2nd issue, Appellant cannot allege that the confessional statement was obtained from him under coercion, when he denied making statement to the police! The two cannot go together. It is when he admits making a statement to the police that he cannot contest the circumstance under which he made the statement, whether it was voluntary or induced. Of course, if Appellant said he signed a paper (not statement) given to him, under duress, who supplied the detached information in the statement (or alleged paper), which information goes to the root and discloses personal detail about the Appellant? Such a blind denial cannot help the accused person, as it rather closes the door of possible genuine defence against him.

See the case of Musa vs The State (2014) LPELR-22912 CA where it Abiru JCA said:

"It is settled law that during trial, an accused person who desires to impeach his statement is duty bound to establish his earlier confessional statement cannot be true by showing any of the following:

i.        That he did not in fact make any such statement as presented:

ii.       That he was not correctly recorded;

iii.      That he was unsettled in mind at the time he made the statement

iv.      That he was induced to make the statement- Hassan vs The State (2001) 15 NWLR (pt. 735)184, Kazeem vs The State (2009) WRN 43 and Osetola vs The State (2012) 17 NWLLR (pt. 1329) 251. The Appellant did not raise and/or establish any of these situations in her evidence before the lower Court. The Appellant did not categorically state that she did not make the confessional statement tendered as exhibit P2 and P4. All she said was that the testimony of the P4 that she confessed to the commission of the crime was not true...

The law is that where an accused person does not challenge the making of a statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and contents of the confessional statement, upheld unless a satisfactory explanation of the inconsistency is proffered Gabriel vs State (1989) 5 NWLR (pt. 122) 457; Ogoala vs State (1991) 2 NWLR (pt. 175) 509; Egboghonome vs. State (1993) 7 NWLR (pt. 306) 383; Oladotun vs State (2010) 15 NWLR (pt. 1217) 490; FRN vs Iweka (2013) 3 NWLR (pt. 1341) 295.

And in Obasi vs. State (2014) LPELR-204013 CA, we held that:

"The position of the law is that accused person who alleges that his confessional statement was obtained fraudulently or involuntarily, has a duty to raise objection to the tendering of the same, timeously, at the point of tendering the same and to call for trial-within-trial, to determine the voluntaries of the same. See Oseni vs. State (2012) LPELR- 7833 (SC); Alarape vs. The State (2001) FWLR (pt. 41) 1872 and Oji vs. FRN (2013) ALL FWLR (pt. 668) 920. "

Having failed to challenge the voluntariness of the statement made by the Appellant at the time of tendering it, to enable the court, verify the alleged claim of not making the statement, but signing a paper on coercion, Appellant cannot therefore disown the said statement as it was rightly used and replied upon by the trial Court.

I too dismiss the appeal, for lacking in merit.