In the Supreme Court

JUDGMENT
(Delivered by KUMAI BAYANG AKAAHS JSC)
The appellant was arraigned on an amended five count charge, one of which was conspiracy to commit armed robbery while the remaining four count were for armed robbery. The plea of the appellant was taken on the amended charge and thereafter the prosecution called five witnesses and tendered several exhibits. The appellant gave evidence on his own behalf in Yoruba language but did not call any other witness to testify in support of his defence. The trial Judge convicted and sentenced him to death by hanging. The appellant was dissatisfied with the judgement and appealed against it to the Court of Appeal, Ibadan Division which dismissed the appeal. This prompted a further appeal to this Court where the appellant filed three notices of appeal on 10/12/2013, 30/12/2013 and 2/1/2014 respectively. The appeal is based on the Notice of Appeal dated 30/12/2013 since appellant's counsel indicated in the appellant's brief that the notices dated 10/12/2013 and 2/1/2014 have been withdrawn.

The appellant has distilled two issues for determination from the 12 grounds of appeal contained in the notice dated 30/12/2013 and they are as follows:-

1. Whether the evidence of the prosecution was contradictory or riddled with reasonable doubt and ought not to have been relied on by the Court below in affirming the conviction and sentence of the appellant for conspiracy to commit armed robbery (Grounds 1, 2, 3, 4, 7, 8, 9, 10 and 12).

2. Whether the Court below was not in error when it affirmed the rejection of the entire defence put up by the appellant by the application of the inconsistency rule to the appellant's non-confessional statement contained in Exhibit P1 and his testimony in Court (Grounds 5, 6, and 11).

The respondent's brief filed on 10/2/2016 was deemed filed on 24/3/2016 in which a sole issue for determination was distilled to wit:-

Whether from the entirety of material and evidence available on the record, the respondent as prosecution established the offences of conspiracy to commit armed robbery as well as armed robbery on the five (5) count criminal indictment information against the appellant beyond all reasonable doubt to warrant a dismissal of the appeal in its entirety. (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 of the Notice of Appeal of 30th December, 2013).

Dr. Olumide Ayeni, the learned Attorney-General of Ogun State filed a notice of preliminary objection to the appellant's brief contending that it is incompetent in that no Nigerian Bar Association stamp or seal was affixed thereto by E. Robert Emukpoeruo Esq. of counsel and this is in violation of Rules 10(1)(2) and(3) and 55(1) and (2) Rules of Professional Conduct for Legal Practitioners, 2007 made pursuant to the Legal Practitioners Act Cap L 11 Laws of the Federation of Nigeria, 2004.

The appellant filed a reply stating that as at 3rd March, 2014 the Nigerian Bar Association had not approved a stamp or seal that should be affixed to the legal document. At the hearing of the appeal on 2/3/2017 the respondent abandoned his preliminary objection and it was accordingly struck out.

Regarding the main appeal, Mr. Emukpoeruo, learned counsel for the appellant pointed out that while the Court below found that the evidence of the PW1 or PW3, the victims of the armed robbery, corroborated the alleged confessional statements of the appellant, the trial Judge did not use or rely on the evidence of PW1 or PW3 at all in linking the appellant with the offences charged. On the contrary the trial Judge specifically found that the evidence of PW1 and PW3 did not link the appellant with the commission of the crime. He argued that since the prosecution did not appeal against the aforesaid finding of the trial Judge, that finding that no prosecution witness gave evidence of seeing the appellant at the robbery scene was binding on the court below and relied on the case of Omnia Nig. Ltd. v. Dyktrade Ltd. (2007) 15 NWLR (Pt. 1058) 576. He submitted that the evidence of PW1 and PW3 can be corroborated if they identified the appellant and linked him with the offences charged citing Iko v. State (2001) 14 NWLR (Pt. 732) 211 at 240 - 241 in support. He further submitted that the corroboration provided by the evidence of PW1 and PW3 to the appellant's alleged confessional statements in Exhibits P2, P9, P10 and P10A was perverse in the circumstances. He said P1 and PW3 gave different accounts of the robbery in their testimonies from that contained in Exhibits 92, 99, P10 and P10A. He therefore submitted that different accounts of the robbery cannot be corroborative of each other and therefore the finding of the Court below that the evidence of PW1 and PW3 provided corroboration to the appellant's confessional statements in Exhibits 92, 99, P10 and P10A was perverse.

Learned counsel drew this Court's attention to Exhibit 92 which is inconsistent to his statements in Exhibits P9; P9A, P10 and P10A and contended that the courts below ought to have found that the prosecution presented fundamentally contradictory evidence and thus to reach the conclusion that this amounted to a failure of proof beyond reasonable doubt. He stressed the importance of Exhibit 92 which the two lower courts found to have formed a crucial part of the prosecution's case. He argued that what is clear from the contents of Exhibit P2 is that the appellant was not part of the conspiracy or the robbery itself. He therefore urged this Court to hold that Exhibits P2, P9, P9A, P10 and P10A are irreconcilably in conflict which portends lack of proof beyond reasonable doubt which doubt enures to the benefit of the appellant and should result in his discharge. See: Onubogu v. State (1974) 9 SC 1; Stephen v. State (1986) 5 NWLR (Pt. 46) 918; Patrick Ikemson v. State (1989) 3 NWLR (Pt. 110) 455: Ifeanyi Chukwu v. The State (1996) 7 NWLR (Pt. 463) 686.

Learned counsel dealt with the evidence of the appellant at page 45 of the record where he said that he did not confess to any policemen that he was an armed robber or that he robbed anyone and was emphatic that he did not rob anyone of Motorola L7 either alone or with any gang of robbers on 19th February, 2007. He contended that the denial of the signatures on the so-called confessional statements was not scrutinised by the lower courts. He argued that none of the purported signatures of the appellant on the exhibits are similar and Exhibit 9A was not signed in the column for signature but despite this the courts below relied on Exhibit 9A and ignored the evidence given by the appellant without comparing the signatures on the confessional statements with any signature admitted by the appellant. There is also the issue of the Nokia 1110 phone which was alleged stolen from PW3 and recovered from the appellant but the phone was not tendered in evidence and the learned trial Judge attached no credence on the recovery of the said phone as he made no finding on it. But PW2 testified that he recovered the Nokia 1110 phone from him while the appellant denied under cross-examination that any phone was recovered from him.

Learned counsel for the appellant submitted that the court below made a perverse finding when it stated that a Nokia 1110 phone was recovered from the appellant and the appellant offered no explanation for its being recovered from him and applied the doctrine of recent possession of a robbed item against the appellant to find that he was one of the robbers when there was no evidence in support of the finding.

The arguments advanced by Dr Ayeni, learned Attorney-General of Ogun State on behalf of the respondent are as follows:-

All the elements of the appellant's culpability to commit armed robbery were amply present and demonstrated in the evidence of PW1 and PW2 which corroborated Exhibits P1, P2, P10 and P10A from which the conspiracy to commit armed robbery and the commission of armed robbery were established. The learned trial Judge considered the evidence, both circumstantial and confessional, brought against the accused person by the prosecution, which he believed was overwhelming, cogent, complete and unequivocal and so compelling that the only conclusion he could reach was that the accused person committed the offences brought against him and held that the prosecution proved its case against the accused beyond reasonable doubt. The lower court found that the learned trial Judge was right in convicting the appellant based on his voluntary statements which were corroborated by the evidence of the witnesses. The lower court stated that in the light of the totality of the evidence, which can be tested and is consistent with other facts already established, the appellant had the opportunity to commit the offences charged and accordingly did not find fault with the decision of the learned trial Judge. The court, according to learned counsel, in arriving at its decision made a number of crucial concurrent findings namely:-

1. That Exhibit P2 was the confessional statement of the appellant.

2. That in Exhibits P2, P10 and P10A appellant confessed to the offence of conspiracy which having been admitted in evidence formed part of the prosecution's case which the learned trial Judge considered.

3. That PW1 and PW3 gave a graphic account of how they were robbed on 19/2/2007 and this corroborated Exhibits P2, P9, P9A P10 and P10A showing that the appellant did not act alone. It is immaterial that the other accused persons who took part in the robbery escaped from being arrested. The learned trial Judge correctly inferred the offence of conspiracy.

4. All the ingredients of the offence of armed robbery as charged against the appellant were completely proved inclusive of the participation of the appellant and the role he played in the series of robberies.

The burden of proof that the appellant took part in the robbery either alone or with others lies with the prosecution since an accused person is deemed innocent until he is proved guilty. See: Section 36(5) of 1999 Constitution (as amended); Section 138 of Evidence Act; Adekunle v. State (1989) 5 NWLR (Pt. 123) 505; Okoroji v. State (2002) 5 NWLR (Pt. 758) 21; Akinbisade v. State (2006) 17 NWLR (Pt. 1007) 184; Olayinka v. State (2007) 9 NWLR (Pt. 1040) 56; Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589; Adonike v. State (2015) 7 NWLR (Pt. 1458) 237.

The discovery of the Nokia 1110 on the person of the appellant is key to unravelling his participation in the robbery which took place on 19/2/2007 since PW3, one of the victims of the robbery could not identify him as the person who dispossessed her of the phone. PW2, Corporal Joseph Idehen gave evidence that the accused/appellant first reported that his Mazda 323 with registration No. DW 910 FST was snatched from him at gun point along Ibadan Imowo Road Ijebu-Ode. Later he became suspicious of the accused when he phoned to say that he got information that the vehicle had been found at Ikoto in Odogbolu Local Government. On getting the information he asked the accused to return to the Police station so that he (PW2) could accompany him to where the vehicle was in order to recover it. It was when they reached Ikoto Police Outpost that he made enquiries from the Police Officer in charge of the Station who said the vehicle was recovered at the scene of the robbery and the people who drove it to Ikoto later escaped leaving the vehicle behind. He later searched the accused and recovered the Nokia 1110 which PW3 identified as her own. The phone was released to her under a bond to produce it in the Police Station.

Did the prosecution prove its case against the accused? The evidence given by PW1, PW2, PW3, PW4 and PW5 as well as the Exhibits tendered are quite revealing. PW2, Cpl. Idehen Joseph testified that on 20th February, 2007, the accused/appellant reported that his Mazda 323 with registration no. DW 910 FST was snatched from him at gun-point along Ibadan Imowo Road, Ijebu-Ode and the case was referred to him for investigation. His statement as a complainant was taken and it was admitted in evidence as Exhibit P1. After lodging the complaint, the accused was told to go home and produce the documents relating to the vehicle. A few minutes after he left, he phoned to say he got information that the vehicle had been found at Ikoto in Odogbolu Local Government. He then asked the accused to return to the Police Station so that they would go together to recover the vehicle.

When they got to Ikoto police outpost, they found that the vehicle had been vandalised beyond repair. He (PW2) made enquiries from the officer in-charge of the police post and he was told that the vehicle was recovered at the scene of the robbery, that the robbers came with the vehicle and later escaped leaving it behind and the vehicle was damaged by the villagers. He noticed that the accused was hiding his face inside the vehicle and he began to suspect his action. They returned to Atan Division where he narrated his observation to the DPO and when the latter put questions to him (accused), he confessed that the vehicle was not snatched from him but that he went with three of his friends to rob some students and that it was in a bid to escape that he ran to the Police Station to report that the vehicle was snatched from him. At that stage the DPO directed him to caution him (accused) and this led to the statement which was tendered as Exhibit P2 without objection. After making Exhibit P2, he searched the accused and found one Nokia 1110 which PW3 identified as her own. Under cross-examination, PW2 said he met the lady that identified the Nokia 1110 handset as her handset which was taken from her by the robbers but she could not identify the accused as the one who took the phone.

PW3, Miss Oluwatoyin Sanya testified, that on 19th February, 2007 around 8 p.m. she and other students were attacked at Gloryland Hall and she was dispossessed of her phone. When she demanded for the sim card, the person who collected the phone pointed a gun at her. She and other victims of the robbery made a report at the Police Station the next day which was Tuesday. On Wednesday she went to Atan Police Station and she was shown a Nokia 1110 phone as having been recovered which she identified as her own. She applied for the release of the phone which was given to her after she had signed a bond which was admitted as Exhibit 8.

Sgt. John Ayegbede testified as PW4. He and his team took over the investigation of the case when it was transferred from Odogbolu Police Station on 23/2/2007. The accused was transferred along with the case file and exhibits which included two locally made short guns, tendered as Exhibits 4 and 4A, one live cartridge, a pair of vehicle plate number DW 910 FST, the Nokia 1110 phone which was later handed over to PW3 after she had identified it through the text messages in the phone and other exhibits such as the driving licence and National Identity Card belonging to the accused. He cautioned the accused before he volunteered a statement in Yoruba which he later translated into English. When the application was made to tender the statement, learned counsel for the accused objected on the ground that the statement was not signed. The objection was overruled and it was admitted as Exhibit 9 while the English translation became Exhibit 9A. He denied that Exhibit 9 and 9A was his own imagination and not what the accused told him.

PW5, Sgt. Folorunso Ajisola was the Divisional Crime Branch Officer at Odogbolu when the case was transferred from Ikoto Police Post to Odogbolu. He cautioned the accused who volunteered a statement in Yoruba and translated it to English. In the said statement the accused made a clean breast of his participation in the robbery. And since the statement was confessional in nature, he took the statement together with the accused before a Superior Police Officer who endorsed it. This statement was put in evidence as Exhibit 10A while the English translation is Exhibit 10.

The accused testified in his defence but called no other witness. He recounted how he parked his mother's car at his shop at Awokoya Street, Bonojo Area of Ijebu-Ode on 19/2/2007 but by the time he wanted to go home, the car was nowhere to be found. He then reported about the missing car at Igbeba Police Station. The following day he went with his mother and they were directed to Atan Police Station where his mother was asked to leave her telephone number while he was asked to produce the documents of the car. After he had produced the documents the Police advised him to return home promising to contact him and his mother whenever there was information concerning the car. After some few hours his mother received a telephone call asking them to return to the Police Station where they were told the car had been recovered at Ikoto. Some policemen accompanied him to Ikoto where he saw the car with the glasses smashed. He was informed that guns had been found in the car and the Police asked him if he knew anything about the guns and he answered that he knew nothing. On their return to Atan Police Station he was arrested as the armed robber and locked up. On the second day of his arrest he was asked to confess to the offence but he pleaded his innocence. He was beaten and locked up in Atan, Igbebe and Odogbolu Police Stations before he was transferred to Eleweran Police State Headquarters where he was detained for two months. At the Police Headquarters Eleweran a Senior Police Officer asked him what his offence was. It was on 23rd April, 2007 that he was taken to court. He denied conspiring with anyone to commit armed robbery; neither did he rob anyone on his own. He also denied confessing to any police man that he was an armed robber or that he robbed anyone. He maintained under cross-examination that the report that he made to the Police about his stolen car was the exact truth of what happened and that the information he gave to the Police was not a cover up. He denied abandoning his car on the road when he was pursued by the villagers of Edo Epo and that the Police never recovered any handset from him; neither did he rob anyone of Motorola L7 either alone or with any gang of armed robbers on 19th February, 2007. He also denied being a commercial driver and did not point a gun at Sanya Oluwatoyin on 19/2/2007.

The accused/appellant did not dispute making Exhibit P1 (the complaint he lodged about the stolen car). The accused/appellant made Exhibit P1 to distract police attention from putting their search light on him as a suspect in the robbery of 19/2/2007.

In Olusina Ajayi v. State (2013) 9 NWLR (Pt. 1360) 589 where learned counsel argued that the prosecution failed to prove the ingredients of the offence because it was the appellant who first lodged a complaint with the police about the robbery and identified PW1-PW4 as the culprits but the police turned round to accuse him and others as the perpetrators of the robbery, this court applying Section 4 of the Police Act held that there is no law which prescribes the order in which investigation is to be carried out. The court observed that a person who is the first in time to report a case to the Police could as well turn out to be the prime suspect in the case and the purpose of being the first to lodged the complaint is to divert attention away from himself. It is not law that once the stolen items cannot be found, the accused cannot be said to have participated in the commission of the offence.

In Exhibit P2, the accused after he had been cautioned stated among other things:-

"On 19th February, 2007 one of our gang called Biola called me on phone that we have discussion and I was with my brother Johnson at Alimeton and I told him that we cannot see that he should call Akeem, before then the vehicle was with Akeem. He told me that is taken the vehicle to TASUED to see his girlfriend. Later that evening around 7.30 p.m. I left Alimenton to Ijebu-Ode and I took another motorcycle to take me to Ikoto express to trace them and on my way I saw that people are pursuing them and I asked the motorcycle that was carrying me to turn back and I came back to Alimeton to sleep and as the okada want to turn we fell down and that is how I sustained the injury on my forehead. That evening I saw my vehicle seriously damaged along express and that is why I have come to the police station to report. I came to the Police Station to report that my car was snatched from me to cover up and seek for assistance and I have lied that it was the armed robber that hit me with gun on my forehead. Akeem and Biola are my friends. I don't know where they got their gun am only a driver, I was not tied by anybody and I did not go to any police station at Ago-Iwoye to report before coming to Atan. I don't know Akeem's and Abiola house. Infact Akeem used to stay with me at my brother place at Alimenton even before the incident happened he was staying with me but since that night I have not seen him. I don't know those who were burnt at Merto but I know that it is my vehicle that was used to rob at Tasued and the other village".

The accused made two other statements on 21st and 23rd February, 2007. The statement of 23/2/2007 was recorded by PW4, Sgt. John Ayegbede was admitted as Exhibit P9 while the English translation was marked P9A. The earlier statement made on 21/2/2007 was recorded by Sgt. Folorunso Ajisola. It was put in evidence as Exhibit P10A while the translated English version was marked Exhibit P10. When application was made to tender the statement of 23/2/2007, Mr. Akapo who was defending the accused objected to the tendering of the statement on the basis that it was not signed. Before overruling the objection the learned trial Judge observed that there were three signatures and the name of the accused is written and held that since learned counsel to the accused did not raise the issue of involuntariness, the statement was admissible. Learned counsel to the accused did not object when PW5, Sgt. Folorunso Ajisola applied to tender the statement which he recorded on 21/2/2007 and so the statement which was taken in Yoruba and translated into English was received in evidence as Exhibit P10A and P10 respectively.

Learned counsel for the appellant has argued in his brief that the appellant's evidence denying the commission of the offences charged is ringed with truth by the manifestly disparate signatures on Exhibits P1, P2, P9, P9A, P10 and P10A.

He contended that none of the purported signatures of the appellant on these exhibits are similar even by the most cursory examination. He said Exhibit P9A is not signed at all and submitted that an unsigned document should attract little or no weight. He further submitted that immediately the appellant denied making any confessional statement to the Police the prosecution ought to have confronted him with any of the confessional statements he allegedly made and failure to cross-examine the appellant on his evidence in-chief that "I did not confess to any police man that I am an armed robber or that I robbed anyone", amounted to an admission by the prosecution and relied on Oforlete v. State (200) 12 NWLR (Pt. 681) 415.

Exhibit P9A is the English translation of Exhibit 9 and the signature of the appellant which he is contesting is on Exhibit 9.

The appellant did not deny signing Exhibit P10 and P10A. And Section 101(1) Evidence Act provides as follows:-

"In order to ascertain whether a signature, seal or finger impression is that of the person by whom it purports to have been written or made, any signature, writing, seal or finger impression admitted or proved to the satisfaction of the court to have been written or made by that person may be compared with the one which is to be proved although that signature, writing, seal or finger impression has not been produced or proved for any other purpose".

The argument of learned counsel in which the prosecution was required to confront the appellant with his signature on other documents with the disputed one or comparing it with the disputed one can only relate to Exhibit 9 since he raised no objection whatsoever to the tendering of Exhibit P10A and P10. In Exhibit 10A the appellant was duly cautioned before he made the following statement:-

"On the 19/2/2007 at about 7.30 p.m., one Abiola Oduyemi 'm", Akeem Samba 'm', and Garuba Oduyemi 'm' came to meet me at Oke-Owa in Ijebu-Ode and we conspired together to go and rob some students of Tai Solarin University of Education at Odo-Epo after Ikoto Ijebu-Ode. It was car wash Oke-Owa that we met and Abiola Oduyemi 'm' and Garuba Oduyemi 'm' brought two short locally made guns which use cartridges and I don't know how many cartridge (sic) they were holding. We left Oke-Owa with my car which I drove by myself and we arrived at Odo-Epo at about 8 p.m. On getting to Odo-Epo, I parked my car in the front of the house where the students live. Abiola Oduyemi and Garuba Oduyemi held the two guns each. We then climbed the upstairs of the house to meet the students upstairs and Abiola Oduyemi and Garuba Oduyemi pointed guns at the students. As the operation was going on, I went downstairs and stayed with my car in the front of the house. I collected one Nokia handset from one of the students before going downstairs to stay with my car, the student I collected her handset is a girl. After sometime, the people of Odo-Epo started to ring bell and it was there Garuba Oduyemi, Abiola Oduyemi and Akeem Samba ran to me where I stayed with my car and they quickly entered the car, I drove the car with speed and the people of Odo-Epo started to pursue us. When I got to a village after Odo-Epo, the people of the village threw a stick under my car and the car could not go again. It was there everybody ran out of the car to different directions and I abandoned the car there. I ran out of the car towards Ikoto road to Express Fari. It was at Express Fari that I entered an Okada to Alumafo village where I slept with my brother Johnson Gbadamosi'm' in his house till day break. My brother Johnson Gbadamosi'm' asked of my car from me and I told him that fuel finished in it at Ibadan road area Ijebu-Ode. Ni Ojo 20/2/2007 at about 9 a.m. I went to Igbeba Police Station and reported to the Police that some robbers snatched my car from me at Imowo Junction. The Policemen at Igbeba Police Station told me to go to Atan Police Station to report there because they control Imowo. I then went to Atan Police Station and reported that some robbers snatched my Mazda car from me at Imowo Junction and they collected my statement down. I told Policemen at Atan Police Station that the robbers tied me with rope in a bush after they snatched the car from me. The Policemen then asked me who untied me. I told them that it was one hunter who untied me and that I knew the house of the hunter. It was there the Policemen asked me to take them to where they tied me and the house of the hunter. I took the Policemen to Oke-Eri village but I could not show them where I was tied and the house of the hunter who untied me. The Policemen at Atan Police Station then suspected me and they locked me in the cell. I later told the Policemen at Atan Police Station that I learnt that my car has been recovered at Ikoto Police Post. The Policemen at Atan Police Station then followed me to Ikoto Police Post where they heard that my car was used to rob by robbers. The Policemen at Atan Police Station saw the Nokia handset which I collected from a female student in my hand and they collected it from me. It is a lie I told the Policemen at Atan Police Station that robbers snatched my car from me. I am the one who drove my car to where we robbed students at Odo-Epo village. I never rob before. This is the first time I robbed with my car. I did not collect money from the students, it is only handset that I collected. My rest people collected money from there."

After making Exhibit P10A, the appellant was taken before a Superior Police Officer who endorsed the statement after it had been read over to him and he agreed it was his statement. Exhibit P10A is a clear confessional statement as defined by section 28 of the Evidence Act. A confessional statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by the accused person and the court can convict the accused solely on the basis of the confessional statement. See: Ogoala v. State (1991) 2 NWLR (Pt. 175) 50; Solola v. State (2005) 11 NWLR (Pt. 937) 460; Olabode v. State (2009) 11 NWLR (Pt. 1152) 254; Onyenye v. State (2012) 15 NWLR (Pt. 1324) 586. However it is always better for a court, before convicting the accused on the said confession to test the statement as to the truth of the confession in the light of other evidence namely:-

(a) Is there anything outside it to show it is true?

(b) Is it corroborated?

(c) Are the facts stated in it true as far as can be tested? and

(d) Did the accused have the opportunity of committing the offence?

(e) Is the accused confession possible? and

(f) Is the confession consistent with other facts which have been ascertained and proved? See: Kanu v R. (1952) 14 WACA 30; R. v. Obiasa (1962) 2 SCNLR 402 at 406; Dawa v. State (1980) 8-11 SC 236; Oiegele v. State (1988) 1 NWLR (Pt. 71) 414 at 425; Qgoala v. State (1991) 2 NWLR (Pt 175) 509; Ejinima v. State (1991) 6 NWLR (Pt. 200) 627; Bassey v. State (1993) 7 NWLR (Pt. 306) 469; Egboghonome v. C.O.P. (1993) 7 NWLR (Pt. 306) 383.

PW1 and PW3 testified that they were robbed in Gloryland Odo-Epo ijebu-Ode on 19th February, 2007 and PW3 was dispossessed of her Nokia 1110 handset. On 20/2/2007 the appellant reported at Atan Police Station that his Mazda 323 with registration no. DW 910 FST was snatched from him at gun point along Ibadan Imowo Road Ijebu-Ode. Shortly after he had been asked by PW2 to produce the vehicle particulars he phoned PW2 and told him he had received information that the vehicle was found in Ikoto. It was when they went to collect the vehicle at Ikoto that PW2 became suspicious of the appellant based on the appellant's behaviour coupled with the information he got that the vehicle was recovered at the scene of the robbery, and when the robbers were being pursued by the villagers they abandoned the vehicle while making their escape. When the appellant was searched the Nokia handset taken from PW3 during the robbery was found with him. It was at that stage that the appellant confessed to the offence. PW2 said that in his earlier report the appellant claimed the robbers tied him up and took him in the boot of the car to a bush where they dumped him and that it was a hunter that rescued him from the bush and untied him and took him to his house where he passed the night but he could not locate the hunter's house when the Police wanted to verify his story. If Exhibit P10A is tested against the evidence given by the prosecution witnesses, it will become crystal clear that the confession is not only possible but it is consistent with other facts which were ascertained and proved and the said confession is corroborated with the evidence of PW3 from whom the appellant collected the Nokia phone.

I have seen nothing in this case which prevented the learned trial Judge from accepting the evidence of PW2 and PW3 concerning the Nokia phone found with the appellant which effectively linked him directly with the robbery. PW2 was not cross-examined on the fact that he searched the appellant and recovered the Nokia phone.

In their review of the evidence adduced on whether the appellant was one of those who took part in the robbery, the lower court stated at pages 162-164 of the records:-

"On the participation of the appellant, it is on record as I stated earlier in this judgement that the confessional statements of the appellant where he clearly narrated the role he played in the series of robberies were tendered in the trial court, the appellant did not object to their admissibility, especially Exhibit 'P2' which was corroborated by the evidence of PW1 and PW3 the victims of the armed robbery. Also the PW2 at page 35 of the printed records stated how he recovered a Nokia 1110 mobile phone which the PW3 identified as hers, page 36 of the printed records. The PW4 also testified as to the recovered telephone belonging to the PW3, which she identified by her text messages before it was released to her, page 40 of the printed records. The appellant did not offer any explanation as to how he came about having in his possession a telephone belonging to the PW3 shortly after the incident. The evidence remained unchallenged........

In the present circumstance an inference could be drawn that the appellant who was found with the Nokia telephone that had been stolen in the night of the armed robbery was one of the robbers that attacked the PW3 the night her telephone was taken from her at gun point or he received it from another knowing same to have been stolen. The appellant did not allege that he got the phone innocently from another not knowing where it came from. See: Aremu v. State (1991) 7 NWLR (Pt. 201) 1; R v. Kwashie 13 WACA 86: Lord Advocate v. Young (1887) 12 App. Cases 556 and Everest Eze v. State (1985) 12 SC 4; (1986) 3 NWLR (Pt. 13) 429. The appellant's confessional statement and the Nokia telephone that was robbed from the victim which was recovered from the appellant was one of the robbers. The doctrine of recent possession would operate against the appellant and I so hold. The recovered telephone also serves as a fact outside the confessional statement as well as the evidence of the PW1 and PW3 to corroborate the fact that the appellant was one of the robbers".

Learned counsel for the appellant has argued that Exhibit 'P2' is not a confessional statement on which the learned trial Judge could rely on to convict the appellant. Even if Exhibits P1, P2 and P9 are expunged from the records, there is sufficient evidence on which the appellant's conviction can stand. The confessional statement of the appellant in Exhibit "P10A and the evidence of PW1, PW2, PW3 and PW4 would support the conviction of the appellant.

Issue 2 complains about the rejection of the defence put up by the appellant on account of alleged inconsistency between Exhibit P1 and part of the appellant's testimony in court. Learned counsel submitted that the alleged inconsistencies were pivotal in the conclusion reached by the learned trial Judge and affirmed by the court below. He argued that inconsistency in the extra judicial statement of an accused person and his testimony should not be treated differently from lies told by accused persons. He submitted, applying the decision of Coker JSC in Okpere v. The State (1971) All NLR I at 5 that "it has never been the law that the mere fact that a person told lies is by itself sufficient to convict him of an offence unconnected with mendacity nor does the fact that an accused person has told lies relieve the prosecution of its duty of proving the guilt of the accused of the offence charged beyond all reasonable doubt".

He maintained that the reliance which the court below placed on Akpan v. The State (2001) 15 NWLR (Pt. 737) 745 at 762 to uphold the application of the inconsistency rule to reject the entire defence of the appellant was misplaced since the issue was not determined in Akpan's case. He argued that Akpan's case involved a confessional statement which the court relied on to convict the appellant and not that the court used a non-confessional extra - judicial statement of the appellant to reject his entire testimony.

In the appellant's reply brief to the preliminary objection raised by the respondent on the incompetency of the appellant's brief, the appellant contended that since the respondent did not react or respond to issue 2, this should be taken as a concession by the respondent to the issue. This submission cannot be taken seriously since the respondent addressed the issue in his brief.

The issue here is whether the inconsistency rule was properly applied in the conviction of the appellant. The rule as stated in Oladeio v. State (1987) 3NWLR (Pt. 61) 419 at 427 is as follows:-

"Where a witness (here an accused person) makes a statement which is inconsistent with his testimony, such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the court can act".

In considering the submissions of counsel and the evidence adduced at the trial vis-a-vis the offences charged the learned trial Judge said at page 66 of the record:-

"There is no doubt, as seems to be agreed by both counsel, that there was armed robbery on the 19th day of February, 2007 at Gloryland Hall, Odo-Epo which is within the jurisdiction of this Court. It is also not in contention that the car of the accused a Mazda 323 registration No. DW 910 FST was used in the robbery operation. What is in contention is whether the accused person was a conspirator to and a particeps (sic) criminis in the armed robbery. None of the witnesses gave evidence of directly seeing the accused person at the scene of the armed robbery, so the question of identification does not arise. The link and it is a key link, came after the accused himself reported at Atan Police Station that his said car had been snatched at gun point somewhere along Ibadan/ljebu-Ode Road".

As noted by the learned trial Judge at page 67:-

"The only evidence of the prosecution that has been so veraciously (ferociously) challenged by the accused's counsel is the evidence that one Nokia 1110 GSM mobile phone allegedly stolen at the scene of the armed robbery was found on the accused person. Even if I ignore or reject this evidence about Nokia 1110 GSM phone, I cannot ignore or reject the other unchallenged evidence earlier stated. The accused's counsel has argued that the circumstantial evidence of the prosecution which links the accused in this case is capable of two interpretations. This is because the accused in his evidence before the court claimed that his vehicle was stolen, and it is this same vehicle that is said to have been used in the alleged robbery. By this argument, counsel appears to be saying that the accused did not participate in the armed robbery but his vehicle was stolen by the armed robbers who then used it for the armed robbery operation. The reason why I cannot accept this argument is that as pointed out by the prosecution counsel and I agree with him, the evidence of the accused person in this court is widely, at variance with the evidence in Exhibit P1 which was his report to the Police on 20/2/2007...........and stating that the said vehicle was snatched from him at gun- point, whereas his evidence before this Court is that the vehicle was stolen from the front of his shop at Awokoya Street, Bonojo Area of Ijebu-Ode where he had parked it on the 19th day of February, 2007".

The invocation of the inconsistency rule by the learned trial Judge to find that the ingredients of the offences charged were proved is froth with difficulty as the cases on which the principle was applied have tended to show. See: Owie v. State (1985) 1 NWLR (Pt. 3) 470; Oladejo v. State (1987) 3 NWLR (Pt. 61) 419; Asanya v. State (1991) 3 NWLR (Pt. 180) 422; Ejinima v. State (1991) 6 NWLR (Pt. 200) 637 and Egboghonome v. State (1993) 7 NWLR (Pt. 306) 383. The inconsistency rule was first pronounced in Nigeria in Queen v. Ukpong (1961) 1 All NLR 25 which followed R v. Golder (1960) 1 WLR 1169 where Lord Parker CJ in laying down the principle said:-

"In the judgement of this court, when a witness is shown to have made previous statements inconsistent with that given by that witness at the trial, the Jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the previous statements whether sworn or unsworn, do not constitute evidence upon which they can act".

In Oladejo v. State supra at page 427, Nnamani JSC applying the inconsistency principle stated as follows:-

"Where a witness (here an accused person) makes a statement which is inconsistent with his testimony, such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which the court can act".

At its initial stage the rule was not formulated for the resolution of inconsistency in the evidence of an accused person and his extra-judicial confession. As Bello CJN observed in Egboghonome v. State supra at page 410 that since the adoption of the rule in Nigeria in Queen v. Ukpong, the court has, for the purpose of ensuring that no miscarriage of justice has resulted from the operation of the rule, developed a safeguard that in addition to considering the totality of the evidence, the witness should be given opportunity while in the witness box to explain the inconsistency as stated by Idigbe JSC in Jizurumba v. State (1976) 3SC89 at 101.

In Egboghonome v. State supra Belgore JSC (as he then was) was of the view that the inconsistency rule is a principle that is well laid down in respect of the treatment of the conflicting statement and evidence of an ordinary witness. It does not cover the case of an accused person who testifies contrary to his earlier statement. He is of the view that a court can convict on the confessional statement of an accused alone and the confession and testimony of an accused person is to be evaluated and assessed by the trial Judge together with the totality of the evidence in order to reach a just decision and explained the following decisions: Stephen v. State (1986) 5 NWLR (Pt. 46) 978: Owie v. State (1985) 3 NWLR (Pt. 3) 470; Mbenu v. State (1988) 3 NWLR (Pt. 84) 615; Umani v. State (1988) 1 NWLR (Pt. 70) 274; Ikemson v. State (1988) 3 NWLR (Pt. 110) 455 while adopting Ibina v. State (1989) 5 NWLR (Pt. 120) 238 thereby overruling Oladejo v. State supra and Asanya v. State supra. At page 431 he expressed his agreement that:-

"Asanya's case has been too wide in its assertion that once an accused person at trial resiles on his voluntary statement to Police before prosecution both statements should be disregarded and be deemed unreliable. It is unfortunate that this decision no doubt has led many lower courts to discharge persons who otherwise were guilty. If this case is allowed to stand, the mischief it will bring on justice will be immense. All an accused person who, before trial made a voluntary statement confessing the offence has to do is to enter the witness box at trial and resile from the statement and he will automatically be set free. Despite the wide meaning given Asanya's case, I do not believe that it was intended to achieve that unjust purpose".

Olatawura JSC echoed the same sentiments when he said at page 435:-

"Following Oladejo's case (supra) our decision in Asanya's case (supra) to the effect that:-

"Where a witness makes a statement which is inconsistent with his testimony such testimony is to be treated as not reliable while the statement is not regarded as evidence upon which the court can act should not apply to confessional statements. It will be an escape route freely taken by an accused person without any hindrance to escape from justice. It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of court a free man simply because he had a change of mind, the whole trial will be a mockery. As aptly put by the Attorney-General of Ondo State:-

"It would be dangerous to apply the principle to extra-judicial confession of accused persons as it would open the flood gate of retraction of all statements made by accused persons before police officers. Although the ratio decidendi in Asanya's case has been modified in Kim v. State (1992) 4 NWLR (Pt.233) 17 at 51, the sweeping departure made by Ansanya's case from the earlier decision on conflicting statements made by witnesses will be relied upon by an accused person where the strong evidence against him is his confessional statement".

Kutigi JSC (as he then was) at pages 435-436 agreed that the inconsistency rule in R v. Golder applies only to a witness who is shown to have made a previous statement inconsistent with the evidence given by that witness at the trial. He said:-

"The decisions of this court therefore in the cases of Saka Oladeio v. The State (1987) 3 NWLR (Pt. 61) 419 and Asanya v. The State (1991) 3 NWLR (Pt. 180) 422 were a clear departure from this well settled principle when they purport to extend the inconsistency rule to cover extra-judicial statements (including confession) of accused persons as well. I will also overrule them in that regard. These extra-judicial statements including confessions are invariably part of the evidence adduced by the prosecution to prove the case against the accused. The statements must therefore be assessed and evaluated by the trial court together with other relevant evidence in order to reach a just decision".

But Karibi-Whyte JSC disagreed with the majority decision. He said that he is not unmindful of a possibility of a retraction which will wipe out the gains of a voluntary confession to the case of the prosecution. He went on to say

"The issue is whether ...... where an accused has raised inconsistent defences at his trial, the court is entitled to choose which defence it will accept. I do not think that is desirable. I think it will be preposterous and a travesty of justice for a rule of law or practice which will allow such an expedient. The best solution lies in the application of the inconsistency rule which rejects the defences where irreconcilable.......... In my view the extension of the inconsistency rule to cover extra-judicial confession is a development of the law in the right direction. It is not a departure from the rule but an extension of the rule to cover situations not hitherto envisaged. Asanya v. The State (supra) should not be overruled".

What option of the inconsistency rule did the learned trial Judge adopt. Is it the one advocated in the majority judgement of Egboghonome v. State or the one as propounded in Oladejo v. State and followed in Asanya v. State? After reviewing the entire evidence, the learned trial Judge declined to accept the argument advanced by learned counsel for the accused that the circumstantial evidence of the prosecution which linked the accused in the commission of the offence of robbery was capable of two interpretations. The reason he gave was that the evidence of the accused in court was widely at variance with the evidence in Exhibit P1 which was his report to the Police on 20/2/2007 where he stated that the vehicle was snatched from him at gun-point, whereas his evidence before the court is that the vehicle was stolen from the front of his shop at Awokoya Street, Bonojo Area of Ijebu-Ode where he had parked it on 19th day of February, 2007. Whereas he stated in Exhibit P1 that he used the vehicle for commercial purposes, he denied being a commercial driver in court. He therefore found that these inconsistencies made the accused person's denial in his evidence unreliable. The majority decision in Egboghonome v. State overruled Oladejo v. State and Asanya v. State supra and the current position of the law is as decided in Egboghonome's case. The inconsistency being contemplated relates to the evidence of witnesses not the accused which is at variance with their earlier statements.

In his consideration of the evidence adduced the learned trial Judge found that there was armed robbery on the 19th day of February, 2007 at Gloryland Hall, Odo-Epo and the car of the accused, a Mazda 323 registration number DT 910FST was used in the robbery operation. He found that there is uncontradicted and unchallenged evidence that two short guns and a live cartridge were found inside the car, together with documents and other items belonging to the accused. Giving reasons why he did not believe the appellant's story that he did not participate in the robbery operation, the learned trial Judge said at page 67 of the records:-

"The reason why I cannot accept this argument is that as pointed out by the prosecuting counsel, and I agree with him, the evidence of the accused person in this court is widely at variance with the evidence in P1 which was his report to the Police on 20/2/2007..........stating that the said vehicle was snatched from him at gun point, whereas his evidence before this Court is

his extra-judicial statement and where such occurs the testimony is to be treated as unreliable and the witness could be cross-examined on the statement to show the unreliability of the witness. In the case of an accused person, the court will take the view that the accused has retracted from the confession and apply the veracity test to see if the confession is true and where it comes to the conclusion that the confession is true and there is evidence to corroborate the confession, the court could proceed to convict the accused based on the confession. Uwaifo JCA (as he then was) observed in Ibina v. The State (1989) 5 NWLR (Pt. 120) 238 at 247 on the decision of this Court in Saka Oladejo v. The State supra:-

"I must say, with due respect that Saka Oladejo v. The State (supra) represents a departure from the principle well laid down as to how to treat the statement and evidence of an accused".

Bello CJN expressed the view in Egboghonome v. State (supra) in a situation similar to this appeal at page 418 thus:-

"In my considered view, grave miscarriage of justice would also be occasioned by the extension. It may perpetuate injustice to the society as murderers would be at large simply because after a second thought, they have retracted their confessions. It would also negate the provision of section 27 (now sections 28 and 29(1) and (2) Evidence Act which reads:-

"27(1) A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.

(2) Confessions, if voluntary, are deemed to be relevant facts as against the persons who make them only"

Moreover, the extension would occasion grave injustice to the accused as it would result to depriving him of the right of due consideration of his defence".

There is ample evidence to justify the conviction of the appellant which was affirmed by the court below despite the holding by Uwa JCA that she could not fault the trial Judge's treatment of the extra-judicial statement and testimony of the appellant as unreliable.

On the whole, I find there is no merit in the appeal and it is hereby dismissed. The conviction and sentence passed by the trial Judge and affirmed by the lower court on 6th December, 2013 is further affirmed by me. Appeal is accordingly dismissed.

IBRAHIM TANKO MUHAMMAD,
JUSTICE, SUPREME COURT.

I read in advance the judgment just delivered by learned brother, Aka'ahs, JSC. I find no merit in the appeal. I dismiss the appeal. I abide by orders made in the lead judgment.

Appearances:

E. R. Emukpeorud for appellant.

Dr. Olumide Ayeni (Hon. A - G, Ogun State) with him; O. A. Sodeinde,
Esq; (PSC), Otenghabun Ebose, Esq; (SA to the A-G); Adekolapo, Ilori,
Esq; (SA II to the A-G).