Lagos State Administration Of Criminal Justice Law(ACJL) On Obtaining Confessional Statement, The One That Deals With Video Recording

0
2152
Justice reform

JOSEPH ZHIYA v. THE PEOPLE OF LAGOS STATE
(2016) LPELR-40562(CA)
________________________________________

In The Court of Appeal of Nigeria
On Wednesday, the 27th day of April, 2016
CA/L/618c/2015

Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJIJustice of The Court of Appeal of Nigeria

TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
________________________________________
Between
Text
JOSEPH ZHIYAAppellant(s)

AND
THE PEOPLE OF LAGOS STATERespondent(s)

________________________________________
Other Citations
________________________________________
RATIO DECIDENDI
1. WORDS AND PHRASES – “FIREARMS” “OFFENSIVE WEAPON”: Statutory definition of “firearms” and “offensive weapon”
“The provisions of Section 11 of the Robbery and Firearms (Special Provisions) Act, provides as follows:- “Firearms” includes any canon gun, rifle, carbine, machine-gun, cap-gun, flint-lock-gun, revolver, pistol, explosive or ammunition or other firearm, whether whole or in detached pieces; “Offensive weapon” means any article (apart from firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air-gun, air-pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon. Per OSEJI, J.C.A. (Pp. 17-18, Paras. F-D) (…read in context)
2. EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proof in criminal cases
“It is an established and trite principle of law that in criminal trials the burden of proof is on the prosecution who has the onus to establish the guilty of the accused person beyond reasonable doubt and this burden never shifts. See IGBABELE VS STATE (2006) 6 NWLR (PT 975) 100, KIM VS THE STATE (1992) 4 NWLR (PT 233) 17; OKAFOR VS THE STATE (2006) 4 NWLR (PT 969) Page 1; ANI VS THE STATE (2003) 11 NWLR (PT 830) 142. ILODIGIWE VS STATE (2012) 18 NWLR (PT 1331) 1, BELLO VS STATE (2012) 8 NWLR (PT 1302) 207.” Per OSEJI, J.C.A. (Pp. 13-14, Paras. E-A) (…read in context)
3. EVIDENCE – CONFESSIONAL STATEMENT: Effect of non compliance with Section 9(3) of the Administration of Criminal Justice Law
“Now having come out clearly that there was no objection to the admissibility of the confessional statement on ground of voluntariness by learned counsel for the Appellant. The question that then arises is the effect of non compliance with Section 9(3) of the Administration of Criminal Justice Law by the prosecution:- The said Section 9(3) provides thus:-Where any person who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of such statement is recorded on video and the said recording and copies of it may be produced at the trial provided that in the absence of video Facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.Two major issues are germane in the said Section 9(3) of the Law. They are to the effect that whenever a person arrested for committing an offence volunteers to make a confessional statement, the Police officer in charge of the investigation shall ensure firstly, that the whole process of making the said confessional statement as well as taking it is recorded on video which may be produced during trial. Secondly, in the absence of a video recording equipment at the police station, the confessional statement shall be made and put in writing in the presence of a legal practitioner chosen by the accused person. The mischief sought to be cured by this thoughtful and progressive provision is the abuse inherent in taking statements from accused persons by investigation police officers who are bent on achieving quick and positive results to please their superiors and moreso in the absence of adequate resources to carry out detailed and indebt investigation of cases assigned to them. It is therefore an easier and quick fix approach to harass, intimidate and most times torture suspects into admitting to the commission of the offence alleged against them. That is not to say however that there are no die hard criminals who will always deny any involvement in a crime even if caught in the act. But the genuine essence of the law is to avoid miscarriage of justice and also to reduce to the barest minimum the incident of retraction or denial of confessional statements by accused persons, as well as the delays inherent in conducting trial within trial in a bid to confirm the voluntariness of a confessional statement. This Court had cause to interpret the effect of non compliance with the provisions of Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 in a number of cases. In ISMAILA FATOKI VS THE STATE (unreported Judgment of this Court delivered on 11-12-2015 in Appeal No CA/L/1125/2011. This Court per J.S. IKYEGH J.C.A. held thus:- Viewed closely, Section 9(3) of the Law applies only where an accused has volunteered a confessional statement to the police. It helps diminish or eliminate instances of covered confessions extracted by the police from defendants on the one hand, while on the other hand it estops a Defendant from resisting or denying at his trial voluntary confession made by him. The utility of Section 9(3) of the Law cannot be over emphasized, as it is a panacea for the time consuming procedure to trial within trial often times embarked upon to determine the voluntariness of a confessional statement at the trial of a defendant. Also procedural laws of this sort are useful shield for the defence, and as stated in the case of OKEGBU VS THE STATE (1979)12 NSCC 151 AT 174, per judgment of IDIGBE JSC (of blessed memory) such procedural Laws are:- Usually construed as imperative, and that is the cardinal principle of interpretation of statutes especially where procedural procedures are inserted for the protection of accused person. See also the English case of The Secretary of Defence Vs Warn (1968) 3 WLR 609 at 614 per speech of Lord Hudson which was cited with approval in OKEGBU VS THE STATE SUPRA AT 174. Section 9(3) of the Law is thus a veritable tool in the administration of criminal Justice. It will apply to voluntary confessions made by an accused as an adjust to the relevant provisions of the Evidence Act. If Exhibit D3 had been a confessional statement, the non-compliance with Section 9(3) of the Law would have rendered it impotent; in my view.??? See also KINGSLEY AKHABUE VS THE STATE Appeal No CA/L/1056/2011. (Unreported judgment delivered on 11-12-2015, and FABIAN MATHEW VS THE STATE (Appeal No CA/L/1126/2011. (Unreported judgment delivered on 11-12-15.) In the main, the view of this Court as per the above judgments is that Section 9(3) of the Law is mandatory as far as voluntary confessions are concerned and non-compliance with the said provisions renders such confessional statements impotent. I cannot but agree with the stance of this Court as above stated that failure to comply with the provisions of Section 9(3) of the Law renders a confessional statement impotent or invalid.” Per OSEJI, J.C.A. (Pp. 25-29, Paras. A-B) (…read in context)
4. EVIDENCE – CONFESSIONAL STATEMENT: Whether a confessional statement becomes inadmissible because an accused person denied making it
“On the propriety of a Court acting on a confessional statement which was subsequently retracted by the appellant. The Supreme Court has held in a number of cases that where the statement of an accused person is voluntary, the fact that it was later retracted is immaterial. See OHUEBUKA VS THE STATE (2000)2 SCNOR 186 at 217, EDAMINE VS THE STATE (1996) 3 NWLR (PT. 438)530; ONWUMERE VS THE STATE 1991)4 NWLR (PT 186) 428.” Per OSEJI, J.C.A. (Pp. 22-23, Paras. F-B) (…read in context)
5. CRIMINAL LAW AND PROCEDURE – OFFENCE OF ARMED ROBBERY: Ingredients required to be proved by the prosecution to establish the offence of armed robbery
“Thus, for the prosecution to succeed in proving the guilt of an accused person for the offence of robbery or armed robbery, the evidence adduced must satisfy the legal requirement of proof beyond reasonable doubt:- (a) That there was a robbery or series of robberies. (b) That the robbery or each of the robberies was an armed robbery, that is to say that the accused person was armed during the robbery. (c) That the accused person was one of those who took part in the armed robbery. See BOZIN VS THE STATE (Supra). ANI VS THE STATE (2003) 11 NWLR (PT 830) 142; AFOLALU VS THE STATE (2010) 43 NSC QR 227; OGUDU VS THE STATE (2011) 45 NSCQR (PT 1) 278.In the case of THE STATE VS SALAWU, (2011) LPELR (8252) SC it was held that, before a trial Court comes to the conclusion that an offence had been committed by an accused person the Court must look for the ingredients for the offence and ascertain critically that the acts of the accused come within the confines of the offence charged.” Per OSEJI, J.C.A. (P. 14, Paras. A-F) (…read in context)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.(Delivering the Leading Judgment):ýýThis appeal challenges the judgment of the High Court of Lagos State delivered by HON. JUSTICE D.O OLUWAYEMI on the 10th day of April 2013 wherein the Appellant and one other accused person were convicted for the offence of conspiracy to rob and robbery and consequently sentenced to 14 years imprisonment on each of the two counts but to run concurrently.

Three accused persons to wit EMMANUEL AKOR (now deceased), JOSEPH ZHIYA (Appellant) and PAUL ENENCHE were arraigned before the trial Court on the 29-3-2010 on a three count charge to which they pleaded not guilty. In the course of the trial, the 1st accused person EMMANUEL AKOR died and this resulted in the amendment of the charged which was then reduced to two counts and the Appellant became the 1st accused person. The said amended two counts charge is dated 24-6-2013 and the accused persons took a fresh plea before the trial continued.

The facts of the case as per the prosecution was that Appellant and PAUL ENENCHE (2nd accused) were police officers.

The Appellant was attached to Onikan Divisional

1
Police Headquarters, Ikoyi whilst the 2nd accused person was just posted from Nasarawa to Lagos State and was yet to be assigned for any duty. They were alleged to have acted in concert with the late EMMANUEL AKOR to rob some Chinese citizen resident at No 2 Ogidi Street, Lekki Phase I. Their mode of operation was said to involve going to the house of their victims and introduce themselves as having come to investigate an allegation of crime made against the victims and as soon as they were allowed access into the house, they bailed their victims up and robbed them of various items including foreign currencies, three laptops, three bags containing other stolen items. As the robbery was going on one of the security guards in a neighbouring house who noticed what was happening ran to report the incident at Maroko Police Station. The Police Officers on duty responded immediately and this resulted in the arrest of the three suspects while two others escaped.

The Appellant however denied the allegation of robbery. But that he went to Lekki in response to a distress call he received from EMMANUEL AKOR who told him that he was having problem with his employers

2
and when he got to the place he met them fighting and this prompted him to go to Maroko Police Station for their intervention, but on getting there he himself was arrested.

At the trial, the prosecution called two witnesses to prove its case, while the Appellant testified for himself and called no other witness. At the conclusion of the trial, the parties filed and served their written addresses which they subsequently adopted. In a judgment delivered on 10-4-2014, the two Defendants were found guilty of the two count charge. They were convicted and sentenced to 14 years imprisonment on each of the two counts but the terms are to run concurrently.

Not satisfied with the said judgment, the Appellant filed a Notice of Appeal dated 27-3-2015 with four grounds of appeal.

Briefs of argument were subsequently filed and served by the parties and same were adopted at the hearing of the appeal on 17-3-2016.

In the Appellantýs brief of argument settled by CHIJIOKE O.C. EMEKA, and filed on 12-8-2015 but deemed properly filed on 21-10-2015 the following three issues were formulated for determination:-
(1) Whether the prosecution proved the

3
essential ingredients of the offence of conspiracy to commit robbery against the Appellant;
(2) Whether the Learned Trial Judge could safely convict the Appellant on Exhibit ýFý the alleged confessional statement of the Appellant; and
(3) Whether the prosecution could establish the offence of robbery against the Appellant.

In the Respondentýs brief of argument filed on 8-3-16 but deemed properly filed on 11-3-16 and settled by ROTIMI ODUTOLA (MRS) Chief State Counsel, the following three issues were also formulated for determination:-
(1) Whether the Learned Trial Judge could safely convict the Appellant on Exhibit ýFý the confessional statement of the Appellant.
(2) Whether the prosecution proved the essential ingredients of the offence of conspiracy to commit robbery against the Appellant.
(3) Whether from the totality of the evidence before the Lower Court, the prosecution did not establish and prove the offence or robbery against the Appellant.

The three issues formulated by each of the parties are no doubt similar and I will adopt same in the consideration of this appeal.
ISSUE ONE:


4
Whether the prosecution proved the essential ingredients of the offence of conspiracy to commit robbery against the Appellant.
Herein Learned Counsel for the Appellant submitted that the Learned Trial Judge erred in law by failing to properly evaluate the evidence placed before the Court when he held thus at page 234 of the Record:-
“I therefore have no difficulty from the already accepted evidence, testimony of the Defendants including that the Defendants herein conspired to rob the victim.”

He added that ?the already accepted evidence which the Learned Trial Judge relied on in convicting the Appellant for conspiracy to commit robbery is based on the fact that the Appellant testified that he was called by the deceased,(EMMANUEL AKOR) and he went to the place to make peace and this was also the testimony of the 2nd Defendant.

The PW1 also testified that three persons were arrested at the scene and one escaped.

It was then submitted that the evidence before the trial Court, showed that the three Defendants were arrested at different locations and particularly, the Appellant was not arrested at the scene of

5
the crime and no stolen goods were recovered from him. Therefore, there was nothing done or said by the Appellant or his co-accused to suggest that they planned anything or had any discussion or common intention to do any unlawful act.

It was also contended that it was wrong to conclude that because the Appellant and the 2nd Defendant stated that they received a phone call from the deceased to come to his aid over a dispute he had with his employers, it provides effective evidence of conspiracy to commit robbery.

Learned Counsel further submitted that there was no credible evidence showing intention and agreement to commit robbery or a meeting of minds between the Appellant and the other Defendants. Therefore the conviction for conspiracy was based mainly on suspicion and speculation which by the law cannot ground a conviction no matter how grave or serious such suspicion may be. He cited the case of OLUFEAGBA VS ABDULRAHEEM (2009) 18 NWLR (PT 1173) 384 at 439.ANYANWU VS STATE (2012) 16 NWLR (PT 1326) 221 and BOZIN VS THE STATE (1985) 2 NWLR (PT 2) 465.

He then urged this Court to resolve the issue in favour of the Appellant.ý

On

6
issue No 2, that is whether the Learned Trial Judge could safely convict on the confessional statement of the Appellant.
Learned Counsel for the Appellant herein submitted that the said Exhibit F is not a credible evidence that any fair tribunal could rely on because evidence before the trial Court showed that it was, written by PW1 and the Appellant also testified that he did not sign it. Therefore the Learned Trial Judge erred in law by wholly relying on the said Exhibit F in convicting the Appellant for the offences of conspiracy and robbery.

Furthermore it was submitted that in the light of the provisions of Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 which was not complied with as regards the making of Exhibit F, the Learned Trial Judge was wrong in not upholding the Appellant’?s objection on its admissibility moreso that the Appellant denied making same and which issue was not addressed one way or the other in the judgment delivered by the Learned Trial Judge, and this amounts to denial of fair hearing.

It was also contended that the use of the word “?shall”ý in Section 9(3) of the
7
Administration of Criminal Justice Law of Lagos State 2011 connotes mandatorines in the application of the said provision which is aimed at curbing the situation where a confessional statement is foisted on an accused person. In this regard, the holding of the Learned Trial Judge that he will not allow technicalities to defeat the course of Justice is faulty and should be set aside because Exhibit F did not pass the statutory requirements of Section 9(3) of the Law.

Learned Counsel further submitted that the trial court erred in finding corroboration in the confessional statement of the 2nd Defendant vis-a-vis that of the Appellant in making a finding that the offences of conspiracy and robbery were proved. This is because the confessional statement of a co-accused person cannot be used against another accused persons unless the latter adopts the said confessional statement as his own as held in OZAKI VS THE STATE (1990) 1 NWLR (PT 124) 92 at 113.

It was further argued that even where there is no objection to the admissibility of a confessional statement, the trial Court is still duty bound to evaluate it and in doing so to find other evidence that

8
will corroborate the said confessional statement. Vide LASISI VS STATE.

He added that in the instant case the Learned Trial judge failed to evaluate Exhibit F as a whole and did not find anyother evidence to corroborate it and this renders the conviction and sentence wrong.

On issue No 3, which is, whether the prosecution established the offence of robbery against the Appellant.

Herein, Learned Counsel for the Appellant contended that the holding of the trial court that the Defendants did not robMR. MICHAEL YEN on the 20th day of October 2008 of monies in different denominations and other valuables is perverse because the prosecution did not prove that the Appellant was among those who committed robbery.

On the ingredients of the offence of robbery he cited the case of AGBOOLA VS THE STATE (2013) 11 NWLR (PT 1366) 619 at 641.

He added that the prosecution witnesses testified that they did not see the Appellant at the scene of crime but met him where he was apprehended by other persons who were not called to testify as to where he was apprehended and no other witness testified as to actually seeing the Appellant during the robbery

9
incident. Therefore there was no proper identification of the Appellant by any eye witness account placing him at the scene of crime.

It was further contended that reliance was placed on circumstantial evidence which in the instant case is open to many possibilities. One being that the Appellant actually went to Lekki to make peace between his kinsman and his employers and the policemen said to have been involved in the robbery could as well be someone else and the Appellant being a victim of unfair circumstance. In urging this Court to interfere with the findings of the trial Court he cited the following cases. ABDULLAHI VS THE STATE (2008) 17 NWLR (PT 115) 203 at 219; NWOSU VS STATE (supra).

Responding on the Appellant’?s issue No (3) in their own issue No (3), Learned Counsel for the Respondent submitted that the evidence before the Lower Court proved the ingredients of armed robbery because there was a robbery and the Appellant participated in the robbery and the robbers were armed with explosives and genades as well as a handcuff. In this regard, reference was made to the evidence of PW1 and PW2 as well as Exhibit “?F”ý. On the

10
methods of proving the guilt of an accused person. He cited EMEKA VS STATE (2001) 6 SC 227 at 234 to 234 where it was held that the three methods of proving the guilt of an accused person are:-
(1) By eye witness account
(2) Circumstantial evidence
(3) The confessional statement of an accused person.
It was further argued that in the instant case as in the case of EMEKA VS STATE (Supra) the prosecution relied on circumstantial evidence and confessional statement of the Appellant in proving his guilt for the offences charged beyond reasonable doubt.

Dwelling on Appellant Issue No 2 in their own issue No (1), it was submitted by Learned Counsel for the Respondent that a trial Court can convict solely on the confessional statement of an accused person. The following cases were cited in support. GABRIEL VS STATE (2010) 6 NWLR (PT 1190) 280 at 325; LUKMAN ADEYEMI VS THE STATE, SUIT NO SC 4886/2011(unreported) delivered on 12-4-2013; HASSAN VS THE STATE (2001) 6 NWLR (PT 709) 286; SHURUMO VS THE STATE (2010) 12 SC (PT 1) 73.

It was further submitted that though the Appellant retracted his confessional statement, but mere retraction

11
does not render such statement inadmissible as held in IDOWU VS STATE (2000) 12 NWLR (PT 680) 48 at 81.

On whether a confessional statement requires corroboration, it was submitted that there are evidence that corroborates the confessional statement of the Appellant.

First is the evidence of PW2 that the Appellant and others were arrested at the scene of crime by Lekki security men; secondly, the letter from the victims of the robbery requesting for the release of the recovered items.
Thirdly, the bond signed by the victims to produce the items and fourthly, the photograph showing the Appellant and his co-accused with the stolen items recovered from them.

It was also posited that the Appellant fixed himself at the scene of the crime when he testified that he indeed went there, but to settle a dispute between his brother and his employers.

It was therefore urged upon this Court to uphold the conviction based on the confessional statement of the Appellant.

Responding on the Appellantý??s issue No(1) in their own issue No (2) Learned Counsel for the Respondent referred to the case of ABACHA VS STATE (2002) 11 NWLR (PT 779) 437

12
and ODUNEYE VS STATE (2001) 2 NWLR (PT 697) 311 to submit that the offence of conspiracy does not require direct proof but is based on inference. It was then urged on this Court to deduce and infer from the criminal acts of the Appellant with the co-accused, that they were both from Benue State, they both came to settle dispute involving EMMANUEL AKOR with his employees; they both went to Maroko Police Station to seek their support to settle the dispute.

This Court was then urged to hold that the offence of conspiracy was proved beyond reasonable doubt from the evidence before the trial Court including the confessional statement of the Appellant.

I will now deal with the Appellantý??s issues 2 and 3 which are similar to the Respondentý??s issue 1 and 3 together.

It is an established and trite principle of law that in criminal trials the burden of proof is on the prosecution who has the onus to establish the guilty of the accused person beyond reasonable doubt and this burden never shifts. See IGBABELE VS STATE (2006) 6 NWLR (PT 975) 100, KIM VS THE STATE (1992) 4 NWLR (PT 233) 17; OKAFOR VS THE STATE (2006) 4 NWLR (PT 969) Page 1; ANI VS
13
THE STATE (2003) 11 NWLR (PT 830) 142. ILODIGIWE VS STATE (2012) 18 NWLR (PT 1331) 1, BELLO VS STATE (2012) 8 NWLR (PT 1302) 207.

Thus, for the prosecution to succeed in proving the guilt of an accused person for the offence of robbery or armed robbery, the evidence adduced must satisfy the legal requirement of proof beyond reasonable doubt:-
(a) That there was a robbery or series of robberies.
(b) That the robbery or each of the robberies was an armed robbery, that is to say that the accused person was armed during the robbery.
(c) That the accused person was one of those who took part in the armed robbery. See BOZIN VS THE STATE (Supra). ANI VS THE STATE (2003) 11 NWLR (PT 830) 142; AFOLALU VS THE STATE (2010) 43 NSC QR 227; OGUDU VS THE STATE (2011) 45 NSCQR (PT 1) 278.In the case of THE STATE VS SALAWU, (2011) LPELR (8252) SC it was held that, before a trial Court comes to the conclusion that an offence had been committed by an accused person the Court must look for the ingredients for the offence and ascertain critically that the acts of the accused come within the confines of the offence charged.

On the first

14
ingredient of the offence charged, that is that there must be a robbery or series of robberies.

There seem to be no dispute that on the 20-10-2008 a case of armed robbery was reported at the Maroko Police Station and that the robbers were operating at No 2 Ogidi Street, Lekki Phase 1, Lagos.ý

The evidence of the PW2 is quite trite in this regard, wherein he testified at pages 177 of the record of appeal as follows:-
On getting to the scene of crime I met the victims. One Mr. Yao and a Chinese lady which I cannot easily remember her name. They were in a very great shock. We invited them down to the station. The rooms were ransacked by the Defendants. We later returned back to the security gate, where myself and CSC Stanley of Lekki Resident Association. At the station both myself and other team members interrogated the suspects and made confessional statements under caution. They went there to rob, the 1st Defendant was wearing black T-shirt and balck trouser. 2nd and 3rd Defendants were in Police uniform. It was confirmed that they were Policemen. One of them Onikan Police Command. My DPO said I should transfer them to SAR Anti Robbery

15
Squad along with the Exhibits recovered. I recovered the statements of the victims and the complainant security man. I was busy writing the signal because of the seriousness of the case. I was asked to transfer the case-file to Ikeja.

The testimony of the PW1 at page 173 of the Record also confirmed the fact that there was a robbery at the aforementioned address on the 20-10-2006.

The said PW1 who was an Assistant Superintendent of Police attached to special Anti-robbery Squad, Ikeja, Lagos State was assigned the case for further investigation in the cause of which he obtained statements from the victims of the crime as well as the accused persons.

The testimonies of the prosecution witnesses were not shaken regarding the fact that robbery took place on the 20-10-2008 at No 2; Ogidi Street, Lekki Phase 1, Lagos. In the circumstance it is taken as proved that there was robbery on the said date and address.

On the second ingredient, which is that the robbery must be an armed robbery.

The Learned Trial Judge in this regard held at pages 236 to 237 of the record that:-
Sec. 15 (1) of the Robbery and Firearms (special provisions) Act

16
defines ýarmsý as any offensive weapon which includes inter alia cutlass, axe and machete (in which category knife belongs) used by the robbers.
(a) PW1 and PW2 in their evidence testified that the 1st and 2nd Defendant were armed with granite and walking talkie.
(b) The 1st and 2nd Defendants herein are Police Officers who in the ordinary course of their duties can be in possession of granite and walkie takie.
However, its not stated anywhere that the Defendants threatened their victim with the explosive, PW1 and PW2 only gave evidence to the facts that the granite, walking talkie and items stolen from their victims were recovered from them, and that the items recovered were release on bond to the victims. And the victims did not come to Court to give evidence or identify the Defendants that threatened him with granite.
(c) The Defendants herein are the persons who went to the victims house and committed robbery.

The evidence of the PW2 also points to the fact that a hand grenade and handcuff were found on the Appellant with his other accomplices and this Appellant did not deny. The provisions of Section 11 of the Robbery
17
and Firearms (Special Provisions) Act, provides as follows:-
ýFirearmsý includes any canon gun, rifle, carbine, machine-gun, cap-gun, flint-lock-gun, revolver, pistol, explosive or ammunition or other firearm, whether whole or in detached pieces;
ýOffensive weaponý means any article (apart from firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air-gun, air-pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel, or any piece of wood, metal, glass or stone capable of being used as an offensive weapon.ý

?A hand grenade no doubt falls within the above definition. It was among the items recovered from those arrested immediately after the robbery at No. 2, Ogidi Street, Lekki, Phase 1, Lagos. The testimony of the PW2 further attests to this and also strengthened by Exhibit F, the confessional statement of the appellant which was duly tendered and admitted in evidence. To my wind therefore, there is proof beyond reasonable doubt that the robbery that took place at No 2 Ogidi Street, Lekki, Phase 1 Lagos was an armed Robbery.

18
Though the learned trial Judge in his own wisdom stated at page 236 of the Record that the Appellant and the co-accused are police officers who in the ordinary course of their duties can be in possession of ýgraniteý (sic) grenade and walkie Talkie and no evidence that it was used during the robbery, consequently he proceeded to convict them not for armed Robbery but Robbery simpliciter. This is not an issue in this appeal and it is also not one of the grounds of appeal. I will therefore address the issue no further. The third ingredient is whether the Appellant was one of those who took part in the robbery.

?I had earlier reproduced the portion of the evidence of the PW2 where he testified as to how on the 20-10-2008 he was at the police station, Maroko, when a case of armed robbery was reported and the Divisional Police officer assigned him to proceed to the scene of crime as the investigating police officer. He further stated how he met the Appellant and the two other accused persons already arrested by Lekki Security men and some mobile policemen who than handed the three of them over to him together with stolen items including 3 laptops,

19
foreign currencies, 3 bags of stolen items and hand-cuff. He also met with the victims of the robbery who are foreigners and were in very great shock but showed him round the rooms where the robbers ransacked.

PW1, an Assistant Superintendent to Police attached to the Special Anti-Robber Squad at the Lagos State Police Headquarters, Ikeja was in charge of the investigation. He took statements from the victims of the Robbery as well as the defendants. Although the said victims of the robbery did not come to give evidence at the trial Court the PW1 stated in his testimony that they refused to come because they were afraid due to the bitter experience they had during the Robbery.ý

The statements of the two defendants which includes the Appellant were tendered in evidence through him and they were admitted and marked as Exhibits ý??Eý?? and ý??Fý?? respectively.

That brings me to the issue of the said Exhibit ý??Fý?? the confessional Statement of the Appellant.

Though there was no direct eye witness evidence linking the Appellant with the Robbery incident, the learned trial Judge however relied strongly on his

20
confessional statement, Exhibit ýFý to find him guilty of the two counts charge.

The contention of the Appellant is that the said Exhibit F is not a credible evidence before the Court because it was not made by the Appellant neither did he sign it.

Furthermore, that the said Exhibit F was made without compliance with Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011.

It was also complained, that the learned trial judge never considered or made any findings one way or the other as to whether the Appellant indeed made the said confessional statement. To put the issue in proper perspective, I herein below set out the findings of the learned trial Judge on the value of Exhibit ýFý it reads:-
ýSec. 15 (1) of the Robbery and Firearms (special provisions) Act defines ýarmsý as any offensive weapon which includes inter alia cutlass, axe and matchet (in which category knife belongs) used by the robbers.
(a) PW1 and PW1 in their evidence testified that the 1st and 2nd Defendant were armed with granite and walking talkie.
(b) The 1st and 2nd Defendant herein are

21
Police Officers who in the ordinary course of their duties can be in possession of granite and walking talkie.
However, its not stated anywhere that the Defendants threatened their victim with the explosive, PW1 and PW2 only gave evidence to the facts that the granite, walking talkie and items stolen from their victims were recovered from them, and that the items recovered were release on bond to the victims. And the victims did not come to Court to give evidence or identify the Defendants that threatened him with Granite.
(c) The Defendants herein are the persons who went to the victims house and committed robbery.ý?ý

While I agree with the learned counsel for the Appellant that the learned trial judge did not fully address the issue whether the Appellant wrote or signed Exhibit ý??Eý?? as well as the non compliance with the provisions of Section 9(3) of the Administration of Criminal Justice Law of Lagos State. I am however of the view that the issue of retraction of the confessional statement was properly addressed. On the propriety of a Court acting on a confessional statement which was subsequently retracted by the appellant.
22
The Supreme Court has held in a number of cases that where the statement of an accused person is voluntary, the fact that it was later retracted is immaterial. See OHUEBUKA VS THE STATE (2000)2 SCNOR 186 at 217, EDAMINE VS THE STATE(1996) 3 NWLR (PT. 438)530; ONWUMERE VS THE STATE 1991)4 NWLR (PT 186) 428.

In the instant case, at the proceedings of the trial court on 30-1-2013, the prosecution sought to tender the confessional statement of the Appellant and the 2nd defendant but their counsel objected to the admissibility of the said statements. He requested for a trial within trial and it was recorded thus:-
COURT CASE adjourned to 05/02/2013 for trial. However on the said adjourned date on 5-2-2013, when the trial within trial was to commence learned counsel for the Defendants at the trial Court changed his mind because he does not want to waste the time of the Court. The proceedings went thus at page 195 of the Record:-
MRS ODUTOLA = It is for the PW1 to continue his evidence.
MR. OMODELE = We are waiting (sic) (waiving) the trial within trial in order not to waste the time.
PW1 = Reminded of his previous oath. I will

23
be able to identify the certified true copy of the statement. I apply to tender.
MR. OMODELE = No objection.
COURT = Certified True copy of statement of 1st Defendant, SARS Ikeja on the 21-10-2008 is hereby marked as Exhibit ýEý.

It should be noted from the above set out proceedings of the trial court on 5/2/2013 that the statement of the Appellant made on 21-1-2008 was tendered and admitted in evidence without any objection as to its voluntariness or that it was not made by the Appellant neither was the issue of signature in contention.

The Appellantýs evidence in chief in the trial Court is contained in page 185 of the record. He did not therein deny making the statement or signing it. He only did so during cross-examination but his signature was tendered and admitted as Exhibit ýAý to confirm that he signed the said confessional statement, Exhibit ýEý. But granted that there was a retraction by the Appellant, the effect of such retraction had earlier been addressed in this judgment, to the effect that it does not affect the efficacy of a confessional statement all things being equal.


24
Now having come out clearly that there was no objection to the admissibility of the confessional statement on ground of voluntariness by learned counsel for the Appellant. The question that then arises is the effect of non compliance withSection 9(3) of the Administration of Criminal Justice Law by the prosecution:-
The said Section 9(3) provides thus:-
ýWhere any person who is arrested with or without a warrant volunteers to make a confessional statement, the police officer shall ensure that the making and taking of such statement is recorded on video and the said recording and copies of it may be produced at the trial provided that in the absence of video Facility, the said statement shall be in writing in the presence of a legal practitioner of his choice.ý
?Two major issues are germane in the said Section 9(3) of the Law. They are to the effect that whenever a person arrested for committing an offence volunteers to make a confessional statement, the Police officer in charge of the investigation shall ensure firstly, that the whole process of making the said confessional statement as well as taking it is recorded on video which
25
may be produced during trial. Secondly, in the absence of a video recording equipment at the police station, the confessional statement shall be made and put in writing in the presence of a legal practitioner chosen by the accused person.
The mischief sought to be cured by this thoughtful and progressive provision is the abuse inherent in taking statements from accused persons by investigation police officers who are bent on achieving quick and positive results to please their superiors and moreso in the absence of adequate resources to carry out detailed and indebt investigation of cases assigned to them. It is therefore an easier and quick fix approach to harass, intimidate and most times torture suspects into admitting to the commission of the offence alleged against them. That is not to say however that there are no die hard criminals who will always deny any involvement in a crime even if caught in the act. But the genuine essence of the law is to avoid miscarriage of justice and also to reduce to the barest minimum the incident of retraction or denial of confessional statements by accused persons, as well as the delays inherent in conducting trial
26
within trial in a bid to confirm the voluntariness of a confessional statement.
This Court had cause to interpret the effect of non compliance with the provisions of Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 in a number of cases.
In ISMAILA FATOKI VS THE STATE (unreported Judgment of this Court delivered on 11-12-2015 in Appeal No CA/L/1125/2011.
This Court per J.S. IKYEGH J.C.A. held thus:-
Viewed closely, Section 9(3) of the Law applies only where an accused has volunteered a confessional statement to the police. It helps diminish or eliminate instances of covered confessions extracted by the police from defendants on the one hand, while on the other hand it estops a Defendant from resisting or denying at his trial voluntary confession made by him. The utility of Section 9(3) of the Law cannot be over emphasized, as it is a panacea for the time consuming procedure to trial within trial often times embarked upon to determine the voluntariness of a confessional statement at the trial of a defendant. Also procedural laws of this sort are useful shield for the defence, and as stated in the case of
27
OKEGBU VS THE STATE (1979)12 NSCC 151 AT 174, per judgment of IDIGBE JSC (of blessed memory) such procedural Laws are:-
ýUsually construed as imperative, and that is the cardinal principle of interpretation of statutes especially where procedural procedures are inserted for the protection of accused person.ý
See also the English case of The Secretary of Defence Vs Warn (1968) 3 WLR 609 at 614 per speech of Lord Hudson which was cited with approval in OKEGBU VS THE STATE SUPRA AT 174.

Section 9(3) of the Law is thus a veritable tool in the administration of criminal Justice. It will apply to voluntary confessions made by an accused as an adjust to the relevant provisions of the Evidence Act. If Exhibit D3 had been a confessional statement, the non-compliance with Section 9(3) of the Law would have rendered it impotent; in my view.ý

See also KINGSLEY AKHABUE VS THE STATE Appeal No CA/L/1056/2011. (Unreported judgment delivered on 11-12-2015, and FABIAN MATHEW VS THE STATE (Appeal No CA/L/1126/2011. (Unreported judgment delivered on 11-12-15.)
In the main, the view of this Court as per the above judgments is that
28
Section 9(3) of the Law is mandatory as far as voluntary confessions are concerned and non-compliance with the said provisions renders such confessional statements impotent.
I cannot but agree with the stance of this Court as above stated that failure to comply with the provisions of Section 9(3) of the Law renders a confessional statement impotent or invalid .

In the instant case as earlier observed in this judgment. There is no eye witness account of the Robbery incident that occurred on 20-1-2008. The Learned Trial Judge relied mainly on the confessional statement of the Appellant in convicting him of the offences charged. In the absence of such confessional statement there is virtually no other evidence to prove the charge against the Appellant beyond reasonable doubt.

It is therefore my view and based on the authorities above cited, that failure by the prosecution to comply with the provisions of Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 invalidates Exhibit E, the confessional statement made by the Appellant given the mandatory and imperative nature of the said provision of the law.

In the absence

29
of any other evidence to justify that the Appellant took part in the robbery that took place on 20-10-2008, the issues are resolved in favour of the Appellant.

Having resolved the two issues in favour of the Appellant, Issue No 1, becomes moot. A further discourse of same will engender an unnecessary academic exercise.

In the final result, I hold that this appeal is meritorious and it is accordingly allowed.

The judgment of the High Court of JUSTICE LAGOS STATE delivered by D.O OLUWAYEMI J. on the 10th day of April 2013 is hereby set aside.

The Appellant is hereby discharged and acquitted.

UZO I. NDUKWE-ANYANWU, J.C.A.:ýI had the privilege of reading in draft form, the judgment just delivered by my learned brother Samuel Chukwudumebi Oseji JCA.

I agree totally with his reasoning and final conclusions. I have nothing more to add. I also abide by all the consequential orders contained in the lead judgment.

TIJJANI ABUBAKAR, J.C.A.:ýMy learned brother Samuel Chukwudumebi Oseji, JCA granted me the privilege of reading before now, the judgment just prepared

30
and delivered by him.

I adopt the entire Judgment as my own, I therefore have nothing useful to add.
ý

31
>

Appearances
C.O.P Emeka with him, O. Agunbiade (Miss) and E.O EkeochaFor Appellant

AND
.For Respondent

LEAVE A REPLY

Please enter your comment!
Please enter your name here