Chibuike Ofordike V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal holden at Benin Division delivered on 14th June, 2016 wherein the lower Court upheld the decision of the trial Court which convicted and sentenced the appellant to death by hanging in count two and to 10- and 7-years imprisonment with hard labour in counts one and three respectively.

A summary of the facts leading to this appeal as can be gleaned from the records shows that one Mrs. Dora Karawe who testified as PW1 was going to Adult School Effurun on 23rd June, 2003 at about 3.00pm when she met the accused person and one other. They stopped her and forcibly took her bag, threatened her with a shot gun and broken bottle, removed the sum of N2,000 (two thousand naira) contained in the bag, dragged her into the bush and raped her because, according to them, the money in the bag was not enough. The PW1 was shouting whilst the act of rape was on and somebody who heard her shout came and they fled. The PW1 and others who also came to the scene pursued and caught the Appellant who was then dragged to the police.

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Upon the appellant being caught, he started begging saying “Madam, forgive me, madam forgive me, it is devil work.” The Adult school that PW1 was going to is at Ufuoma Baptist Church, Effurum around Ogheneovo Housing Estate, Effurum. The distance they ran before arresting the appellant was about 200 yards. PW1 stated that the appellant tore her skirt, her knicker and pant and that the appellant could not have erection and ordered her to caress his penis so that his penis could be erect and out of fear, she did it and the appellant was able to penetrate her. One of the women who came around as a result of the alarm she raised, gave her a wrapper to cover her nakedness. PW1 later went to the police station and made a statement.

The appellant who testified on his behalf before the trial Court denied committing the offences of armed robbery and rape. He testified that on 23rd June, 2003, he was going along PTI Road Effurum on his way to work when he saw two men standing on the road with a boy sitting on the ground. The boy was being questioned, and that he was called by the two men, and getting to them, they freed the boy sitting

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down and started interrogating him. He told them he was going to buy a pair of shoes and showed them the N5,800 he was going to purchase the shoes which is worth N5,500. He was asked to sit on the ground where upon they sent for a woman who came and was crying and upon seeing him said he looked like the person. The two policemen started beating him and collected the money in his pocket. The police eventually arrived and he was arrested. At the police station, the IPO, according to him, forced him to sign a statement.

At the end of trial at the High Court, both counsel addressed the Court. In his judgment, the learned Trial Judge, on 13th July, 2010 convicted the appellant on three counts of conspiracy to commit armed robbery, armed robbery and attempted rape and sentenced him to 10 years imprisonment with hard labour, Death by hanging and seven years imprisonment with hard labour respectively.

Aggrieved with the judgment of the learned trial Judge, the appellant appealed to the Court of Appeal which upon hearing the appeal, dismissed the appeal in its judgment delivered on 13th July, 2016.

Further dissatisfied with the judgment of the lower Court, the

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appellant has appealed to this Court vide Notice of Appeal filed on 13th July, 2016. The said notice of appeal has six grounds of appeal out of which the learned counsel for the appellant has distilled three issues for the determination of this appeal.

On 18th October, 2018 when this appeal was argued, the learned counsel for the appellant, Chijioke O. P. Emeka Esq identified and adopted the appellant’s brief filed on 9th September, 2016 in which the three issues for determination are contained. The issues are: –

1. Whether the Court below was right to uphold the Appellants conviction for conspiracy when the prosecution failed to discharge the burden of proof required by law to establish the offence of conspiracy.
2. Whether the Court below was right to uphold the Appellant’s conviction on the three counts for which he was charged based on exhibit A, his purported confessional statement, in all the circumstances.
3. Whether the Court of Appeal was right when it upheld the Appellant’s conviction for armed robbery and Attempted Rape when the elements of both offences were not established by cogent evidence.

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Also, in the brief of the Respondent filed on 10th January, 2017 and signed by Peter Mrakpor Esq. Hon. Attorney General of Delta State but adopted by O. F. Enenmo Esq. a director in the Ministry, three similar issues are formulated as follows:-

1. Whether the Court below was right to uphold the appellant’s conviction for conspiracy.
2. Whether the Court of Appeal was right when it upheld the appellant’s conviction for armed robbery and attempted rape.
3. Whether exhibit A, the confessional statement of the Appellant was rightly admitted in evidence.

I shall determine this appeal based on the three issues submitted by the two parties.

ISSUE ONE:-

On the first issue, the learned counsel for the appellant submitted that the prosecution failed to discharge the burden of proof required by law to establish the offence of conspiracy against the appellant. He defined conspiracy as a meeting of two or more minds on a plan to carry out an unlawful act, relying on Adeleke v State (2013) 16 NWLR (pt 1381) 556 at 584 and Kaza v State (2008) 7 NWLR (pt 1085) 125 at 175. He contended that it was wrong for the lower Court to uphold the reliance on the statement

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of the appellant (Exhibit A) to infer conspiracy by the trial Court. It is his view that the learned trial Judge was wrong because the conditions precedent were not met, relying on Yakubu v State (2012) 12 NWLR (pt 1313) 131 at 142.

Learned counsel submitted further that by Section 135 (1) of the Evidence Act, 2011, the prosecution had the burden of proving the offence beyond reasonable doubt but although the appellant denied the alleged confession in Exhibit A, the prosecution failed to bring any cogent evidence to make the purported confessional statement probable. An accused person is presumed innocent until the contrary is proved, he concluded, relying on Ogudo v The State (2011) 18 NWLR (pt 1278) 1 at 33, Al-Hassani v State (2011) 3 NWLR (pt 1234) 254 at 282, Abegurin v State (2010) 10 WRN 160 at 169.

Learned counsel then urged the Court to resolve this issue in favour of the appellant and to hold that the prosecution failed to prove the offence of conspiracy beyond reasonable doubt against the appellant, not having established the ingredients of the offence.

In response, the learned counsel for the Respondent

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submitted that the Court below was right when it affirmed the conviction of the appellant for the offence of conspiracy by the trial Court. He contended that as direct evidence of the plot between conspirators is hardly capable of proof, the Court establish the offence of conspiracy as a matter of inference to be deduced from certain criminal acts of the parties concerned. He further submitted that the Court can infer conspiracy and convict on it, if it is satisfied that from the evidence, the accused persons pursued by their acts the same object, one performing the act and the other performing the other part of the same act, so as to complete their unlawful design, relying on Adejobi v The State (2011) 12 NWLR (pt 261) 347 at 375 and Tanko v The State (2008) 16 NWLR (pt 1114) 591 at 638.

Learned counsel for the Respondent further submitted that it is not a coincidence that the appellant and Gedu met at the scene of the armed robbery, at the same time, and even if they did, having participated actively in the armed robbery and rape and running away together when they sensed danger, the only reasonable inference to be deduced is that they were both at the scene of the crime in pursuance

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of a common criminal purpose which was to rob and rape PW1 while armed with a gun and broken bottles. On whether offence of conspiracy can be inferred, he referred to the cases ofOnyenye v State (2012) 15 NWLR (pt 1324) 586 at 617; Shurumo v The State (2010) 19 NWLR (pt 226) 73 at 106.

Learned counsel urged this Court to resolve this issue in favour of the respondent.

It is trite law that in all criminal trials, the burden of proving the guilt of an accused person rests on the prosecution which has to prove the case beyond reasonable doubt. What does proof beyond reasonable doubt mean It simply means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. In Miller v Minister of Pensions (1947) 2 All ER, 372, it was held that “proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour, which can be dismissed with the sentence, “of course it is possible”, the case is proved beyond reasonable doubt.”

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See also Nwaturuocha v The State (2011) 6 NWLR (pt 1242) 170, (2011) LPELR – 8119 (SC), Akinlolu v The State (2015) LPELR – 25986 (SC), Oseni v The State (2012) 5 NWLR (pt 1293) 351, Shehu v The State (2010) 8 NWLR (pt 1195) 112, Abdullahi v The State (2008) 17 NWLR (pt 1118) 203, Jua v The State (2010) 4 NWLR (pt 1184) 217.

In the first count of the charge against the appellant at the trial Court, he was charged with the offence of conspiracy to commit armed robbery. The learned counsel for the appellant has submitted that the count of conspiracy was not proved against the appellant beyond reasonable doubt. What then is conspiracy Generally, conspiracy is an agreement by two or more persons to commit an offence or do an unlawful act, coupled with an intent to achieve the agreement’s objective and action or conduct which furthers the agreement. The Oxford Advance Learners Dictionary 6th Edition also defines conspiracy as “a secret plan by a group of people to do something harmful or illegal.”

In a charge of conspiracy, proof of actual agreement is not always easy to come by as such agreements are hatched in secrecy.

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Thus a trial Court can infer conspiracy and convict on it if it is established to its satisfaction that the accused persons, pursued, by their acts, the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other and concluded; an agreement can be inferred from what each person does or does not do in furtherance of the offence of conspiracy. See Adeleke v State (2013) 16 NWLR (pt 1381) 556, Oduneye v State (2001) 2 NWLR (pt 697) 311, (2001) LPELR – 2245 (SC), The State v Salawu (2011) 18 NWLR (pt 1279) 580.

In the instant appeal, the PW1 gave evidence of how the appellant and one other accosted her and robbed her of her bag and stole the sum of N2,000 in the bag at gun point and because the amount of money was not much the appellant decided to rape her in addition. The other accused person called Gedu raped her first while the appellant watched the road for him.

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Thereafter, the appellant took his turn but was cut short as passersby arrived the scene due to the alarm raised by the PW1. The PW1 and others pursued them and the appellant was arrested about 200 yards from the scene. He was then taken to the police station.

In exhibit A, the confessional statement of the appellant, he gave a graphical account of how the offence was hatched and executed. Both the evidence of the prosecution witness i.e. PW1 and the confessional statement of the appellant (Exhibit A] clearly show that both the trial Court and the Court below were right in holding that the offence of conspiracy was proved against the appellant. All the acts performed by the appellant and Gedu were done in furtherance of the agreement to commit armed robbery and rape. They not only planned the robbery and rape, they actually performed it. As was rightly submitted by the learned counsel for the Respondent, the totality of evidence assembled and the evaluation of same, leaves no modicum of doubt that there was indeed a meeting of the minds of the appellant and Gedu and an agreement manifested by their overt acts of robbing PW1 with a gun and broken bottles and

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also raping her. I agree with the Court below that the offence of conspiracy to commit armed robbery and rape as found by the trial Court and affirmed by the Court below was proved beyond reasonable doubt against the appellant. Issue one is accordingly resolved against the appellant.

ISSUE TWO:

It is the contention of the learned counsel for the appellant as regards issue 2 that the Court below erred in upholding the appellant’s conviction for the three offences based on Exhibit A, the confessional statement of the appellant when, according to him, the said confession ought not to have been admitted in the first place and when even if it was rightly admitted, it obviously lacks cogency.

Learned counsel submitted that the learned trial Judge was in error to admit the statement and rely on it without inquiring into or considering the circumstances under which the confessional statement was obtained. It is his view that a trial within trial was appropriate when the appellant said that he was tortured. He contended that it was wrong for the Court of Appeal to rely on the recorded statement of counsel to conclude that the voluntariness of the confessional statement was not put in issue.

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Learned counsel opined that an allegation of involuntariness or a retraction is made by the accused person and not his counsel. That had the Court below considered the above statement made by the appellant from the witness box at the time the prosecution sought to tender the statement, together with the statement by his counsel, the lower Court would have found that the statement required preliminary trial to ascertain its voluntariness before it could be admitted.

In conclusion, learned counsel submitted that a scrutiny of Exhibit A would show that it fails the test of cogency and it is not the type of evidence to base a mortal sentence. He urged the Court to resolve this issue in favour of. the appellant.

Appellant’s issue 2 is the same as Respondent’s issue 3. In response, learned counsel for the Respondent submitted that a trial within trial is necessary where the voluntariness of the making of the confessional statement by an accused person is in issue or raised by an accused person. He submitted further that where however, an accused person admits making the statement, but contends that he did not

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make it voluntarily but under duress or some other alleged influence, then a trial within trial will be conducted in order to determine whether the statement was voluntary or made under duress or otherwise, relying on the case of Akpan v State (2008) 14 NWLR (pt 1106) 72 at 98 paragraphs A – D.

He contended that the statement of the appellant at the trial that exhibit A was not read to him and that he did not sign it meant that he denied making the statement and not that he made it under duress or coercion. According to him, the lower Court was right to agree with the trial Court that the statement was admissible without a trial within trial, relying on Onyenye v State (2012) 15 NWLR (pt 1324) 586 at 619 paragraphs A – C.

Learned counsel concluded that a trial within trial was unnecessary and that the lower Court was right to so hold.

This issue relates to whether Exhibit A, the confessional statement of the appellant was rightly admitted and relied upon. Therefore, all the arguments by the learned counsel for the Respondent in respect of failure to call the IPO to testify and failure to produce the short gun and broken bottles go to

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no issue and is accordingly discountenanced as they were not part of this issue.

The law is well settled on issues relating to admissibility or otherwise of confessional statements by accused persons. A confessional statement is a statement by an accused person which unequivocally confesses to the commission of an offence charged. Such a statement to be of any probative value, must be clear, precise and unequivocal. It must also be direct, positive and should relate to the accused person’s own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See Akpan v The State (1992) 7 SCNJ 22, Yesufu v State (1976) 6 SC 167, Magaji v The Nigerian Army (2008) 8 NWLR (pt 1089) 338.

Where a confessional statement is voluntarily made, it is the best evidence which the trial Court can rely to convict an accused person. But in most cases, at the trial, accused persons raise objection ranging from that they did not make the said statement or that they were coerced to make it or that they did not sign it. These are issues that are usually raised in Court on a daily basis.

The law is trite that in circumstance where the

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prosecution seeks to tender the confessional statement of an accused person and it is objected to and challenged on the ground that it was not made voluntarily, a trial within trial is conducted for the sole purpose of finding out if the statement was made voluntarily or whether the confessional statement was extracted from the accused by force or threat of punishment or by any form of inducement. If at the end of the trial within trial the trial Judge is satisfied that the confessional statement was not voluntary, such a statement is not admissible in evidence. If on the other hand the statement is adjudged voluntarily made, it is admitted in evidence. In both cases the trial Judge should rule on it accordingly and that brings the trial within trial to an end and the main trial continues. SeeIbeme v The State (2013) 10 NWLR (pt 1362) 333, Solola & Anor v State (2005) 11 NWLR (pt 937) 460, Federal Republic of Nigeria v Iweka (2013) 3 NWLR (pt 1341) 285.

In the instant case, when the prosecution was to tender the confessional statement of the appellant, his counsel made the following statement at page 30 of the record of appeal:-

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“I object firstly, he said he did not sign the document and secondly he made a statement which was not read to him. It will be necessary to make further enquiry before it can be admitted.”

To the above request, the learned trial Judge did not oblige but went ahead to admit the statement which was marked as Exhibit A. As was rightly held by the Court below, that objection raised by the learned counsel for the appellant was not suggestive of any fact that the statement was involuntarily made by the appellant or that he was coerced into making same. What the learned counsel clearly projected was a total denial of the statement. There was no allegation of any brutality, coercion, threats or promise/inducement of any sort against the investigating police officer at the time he made the statement.

The learned counsel for the Respondent made it clear that denial of making a confessional statement is not synonymous with alleging that it was involuntarily made which I agree totally. This much was held by the Court below in its judgment as found on page 139 of the record as follows:-

“In this appeal under consideration, it is clear on record that the appellant did not through his

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counsel and during the trial, particularly at the point when the prosecution applied to tender the said confessional statement object to its admissibility on the grounds that it was involuntarily made or obtained from him with coercion or as a result of threat to his life or promise of any advantage. In view of the foregoing a trial within trial is unnecessary and the trial court was right in its judgment.”

I agree entirely with the position taken by the Court below because, as I have stated above, a trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person or his counsel. Where an accused person admits making the statement but contends or asserts that he did not make it voluntarily, but under duress or some other alleged influence, then a trial with trial will be conducted.

Where however as in this case, the objection to the admissibility in accused confessional statement is based on the grounds that it was not read over to him and that he did not make it, the statement is treated as a voluntary

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statement and is admissible without the Court holding a trial within trial which is necessary only where the issue of involuntariness is raised. SeeOnyenye v The State (2012) 15 NWLR (pt 1324) 586 at 619 paragraphs A – C where this Court set out the circumstances and effect of confessional statements obtained by duress and those merely retracted as follows:-

1. Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks or undue influence or any non-recognizable legal ways, there would be need for a trial within trial.
2. Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable.

Learned counsel for the appellant compared the evidence of the appellant at the trial Court in respect of the statement he made to the police and the statement of objection made by his counsel when the prosecution applied to tender the said confessional statement during cross examination of the appellant. On page 30 of the record, both the cross

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examination of the appellant and the objection by his counsel can be clearly identified. The appellant’s answer to questions put to him by the prosecution is to the effect that he made a statement to the police but that it was not confessional. Learned counsel also objected to the tendering of the statement alleging that the police did not read the statement to the appellant and that he did not sign it. This is clearly different from saying that he made a confessional statement under duress. Here, the appellant is saying he did not make a confessional statement at all. I agree therefore with the lower Court which upheld the decision of the trial Court that a trial within trial was not necessary. I also agree that the lower Court was right when it affirmed the admission and reliance on the statement of the appellant as part of evidence against him. This issue is also resolved against the appellant.

ISSUE THREE:-

The third issue is whether the Court of Appeal was right when it upheld the appellant’s conviction for armed robbery and attempted rape when the elements of both offences were not established by cogent evidence.

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After setting out the ingredients of the offence of armed robbery as enunciated by this Court in several cases, and cited the cases of People of Lagos State v Umaru (2014) 7 NWLR (pt 1407) 584 at 609 and Agboola v State (2013) 11 NWLR (pt 1366) 619 at 641, learned counsel for the appellant submitted that even if by the testimony of PW1 that a robbery took place and that it was armed robbery there was a duty on the prosecution to prove that the Appellant who has always protested his innocence, took part in the robbery. According to him, evidence of the sole prosecution witness did not show that the appellant committed the robbery armed with a gun or broken bottle as none was indeed recovered from him nor tendered in court. Learned counsel added that the testimony of PW1 was unreliable and speculative. Referring to certain aspects of what he considers to be contradictions, he submitted that the appellant was unlikely to be one of the persons who participated in the crimes.

On the assessment of the evidence and demeanour of the PW1 by the learned trial Judge, learned counsel submitted that this is not the type of case where fatal gaps in the

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prosecution’s case can conveniently be filled by simply relying on the “demeanour” of a sole prosecution witness, a possibly traumatized victim whom for the need to have a closure, would want anyone to go in for her allegation, including the appellant. It is his view that PW1’s evidence should have been corroborated before being relied upon. He opined that the Court below ought to have set aside the trial Court’s judgment.

Learned counsel submitted further that the Court below ought to have rejected the argument of the Respondent’s counsel that failure to call vital witnesses was not fatal to the prosecution’s case as the defence could have subpoenaed those witnesses. It is his view that the circumstances of the case of Victor v The State (2012) 12 NWLR (pt 1369) 465 relied upon by the Court below on the issue of witnesses not called are not the same with the circumstances of the instant case. That the duty of an accused person to call a witness not called by the prosecution would arise where the prosecution had established its case against the accused person.

It is his further contention that where none of the vital evidence including police investigation report, alleged

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short gun, broken bottles, torn clothes, medical report etc, was produced, there should be a presumption against their existence. This wrongful withholding of these evidence should be held against the respondent in line with Section 149 (d) of the Evidence Act.

On issue of attempted rape, learned counsel submitted that since the Court below did not accept the evidence of PW1 that the appellant actually raped her, the learned trial Judge should not have relied on Exhibit A to convict the appellant of attempted rape. It is his view that the Court of trial ought to have looked for some measure of corroboration before accepting the evidence to convict the appellant of attempted rape. He cited the cases of Ibeakanma v Queen (1963) 2 SCNLR 191 at 184 – 195, Iko v State (2001) 14 NWLR (pt 732) 221 at 244 – 245, Posu v The State (2011) 2 NWLR (pt 1234) 393 at 417, 419 A – B.

In conclusion, he submitted that there was no sufficient credible evidence upon which the appellant’s conviction for the grievous offences he was accused of was based and the Court of appeal was wrong to shift the burden of proof to the appellant to call evidence which the prosecution

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failed to call. He urged this Court to hold that the judgment of the Court of Appeal is perverse and that it should be reviewed. He also urged that this issue be resolved in favour of the appellant.

In response, the learned counsel for the respondent submitted that the lower Court was right when it upheld the conviction for armed robbery and attempted rape by the learned trial Judge. He stated the principle of law that proof beyond reasonable doubt does not mean the prosecution must prove its case with mathematical exactitude nor does it mean proof beyond any shadow of doubt. That it is enough if the prosecution leads evidence to prove the essential ingredients of the offence, relying on Dibie v The State (2004) 14 NWLR (pt 893) 257 at 284 – 285.

Referring to the evidence of PW1 and the confessional statement of the appellant, Exhibit A, he submitted that the confessional statement has corroborated the testimony of PW1. That both the PW1 and the appellant in Exhibit A confirm that the appellant was pursued and arrested while fleeing from the scene of crime. He contended that what can be gleaned from the evidence of PW1 and Exhibit A is that

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the appellant was indeed among the robbers who were armed with a gun and broken bottles and robbed the PW1. Learned counsel further stated that PW1 had adduced sufficient, credible and cogent evidence to fix the appellant at the scene of crime at the material time as an eye witness and victim of the armed robbery and rape attack against her.

He submitted that in determining what acts may be construed an attempt to commit a crime, it is not necessary that the last act in every case which proves an attempt must be committed, all that is required is an act immediately connected with the commission of the particular offence which clearly shows that the offender was attempting to commit it. That from the evidence of PW1 and the content of Exhibit A, the appellant had done all that was humanly possible to manifest his intention to commit rape, except that he was stopped by the intervention of some persons who heard her screaming in pain and chased after the appellant and his co-conspirator and apprehended the appellant.

Relying on both Sections 169 of the Criminal Procedure Laws Cap C. 22 Laws of Delta State 2006 and Section

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179(1) and (2) of the Criminal Procedure Act, the trial Court had powers to convict the appellant for a lesser or an offence for which he was neither charged nor pleaded to but which by evidence it has been proved; relying on the case of Ezeja v The State (2008) 10 NWLR (pt 1096) 513 at 526 paragraphs E – H. He urged this Court to resolve this issue against the appellant.

At this stage, I think it will be necessary to bring to the fore the evidence of the sole witness called by the prosecution to establish the charge against the appellant and the confessional statement of the appellant which the learned trial Judge relied upon and which the Court below affirmed. Part of PW1’s testimony states as follows:-

“I live at Airport Road, Effurum. In 2003, June, I was living at off P.T.I. Road, Effurum. I am a trader. I know the accused person. I was going to Adult School on June 23, 2003 at about 3 p.m. when I met the accused person and another. They stopped me and ordered me to bring my bag, forcibly took my bag, they threatened me with a short gun and a broken bottle. They checked the bag and removed the N2000.00 in the bag, they dragged me to the bush and raped me,

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because they (sic) money was not enough. I was shouting when they were raping me and somebody who heard my shout came. They fled and myself and others who were around pursued them and caught the accused person. We then dragged him to the police. When we caught him, he started begging “madam forgive me, forgive me, na devil work” because he raped me and thief me. The Adult school is at Effurum Baptist Church, Effurum and Ogheneve Housing Estate. I live in the same area, and the distance we ran before he was caught was about 200 yards. The accused persons tore my skirt, my knicker and pant. The accused could not have an erection and asked me to caress his penis so he could have an erection. I held it with fear, and he penetrated me. I made a statement to the police.”

The law is trite that unless where the law prescribes otherwise, there can be a conviction based on the evidence of a sole witness. Such evidence of a sole witness must be cogent, strong, credible and reliable before a Court can rely to found a conviction. See Oduneye v The State (2001) 2 NWLR (pt 697) 311, Abogede v State (1996) 5 NWLR (pt 449) 279 at 280, Ighalo v The State (2016) LPELR – 40840 (SC).

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Ordinarily, the credibility of evidence does not depend on the number of witnesses who testify on a particular issue, but it depends on whether the evidence of a single witness is believable and accepted by the Court and if so believed by the Court, then it is sufficient to ground a conviction. SeeAli v The State (1988) 1 NWLR (pt 68) 1, Lase v The State (2017) LPELR – 42468 (SC), Abogede v The State (1996) 4 SCNJ 227.

Looking at the evidence of the only witness i.e. PW1, it is very clear that she gave her evidence of what happened to her for which she gave a vivid and unshakeable evidence of what each accused did to her within the period the crime lasted. When her evidence is weighed and/or compared with the confessional statement of the appellant, one does not have any reason to fault the decision of the learned trial Judge. Let me at this stage also reproduce part of the confessional statement of the appellant as follows:-

“Myself and Gedu saw a woman coming towards our direction. Gedu came out from where were standing and stopped the woman by shouting stop, and the woman stopped. We now asked the woman what do

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you have inside your bag and the woman say (sic) I no get money oh. Gedu now forcefully collected the hand bag from the woman, when Gedu gave the bag to me I now opened the woman’s hand bag searched and found the sum of N40 inside the bag. Gedu now said since the woman no get plaint (sic) money we should go and fuck her in the nearby bush. Myself and Gedu now drag the woman to a nearby bush.

Two of us forcefully removed the nicker and pint (sic) the woman was putting under her dress. Gedu is the first person who climbed the woman and had sex with her and I was watching the road. After Gedu finished, I now go and climb the woman and had sex with the woman although before I climbed the woman I told her to robb my penis so that it will be stronger for the sex and the woman did so. As the woman was robbing my penis, Gedu shout from where he was standing saying yawa don gass, which means alarm don blow. I saw Gedu running I now quickly dress up and started running. Some people running behind me later at a point I was caught by the people followed me. For me this is my second time myself and Gedu go robb people in that area. It is only the woman we robbed

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and rapped today 23/6/2003. We did not rob any other person other than the woman. Mobile police men later came where I was caught…”

I have already stated in the second issue that the confessional statement of the appellant i.e. Exhibit A was properly adopted and relied upon by the learned trial Judge as affirmed by the Court below. The law is also trite that an accused person can be convicted based on his confession alone. In such situation, there is however the need to test the truth of the confession in the light of other credible evidence before the Court. Such test as enunciated in the case of R. V. Skyes (1913) 8 CAR page 233 may include the following:-

1. Whether there is anything outside the confession to show that it is true.
2. Whether it is corroborated.
3. Whether the statement made in it are in fact true as far as they can be tested.
4. Whether the accused had the opportunity of committing the crime.
5. Whether the confession is possible.
6. Whether it is consistent with other facts which have been ascertained and which have been proved.

See also Onyenye v The State (supra), Alarape v The

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State (2001) 5 NWLR (pt 705) 79, Dawa & Anor v The State (1980) SC 236 page 267.

There is no doubt that the trial Court as affirmed by the Court below relied on both the evidence of PW1 and the confessional statement of the appellant exhibit A in finding him guilty of armed robbery and attempted rape. The contents of Exhibit A the confessional statement were clearly corroborated by the evidence of PW1 and vice versa. Therefore, the learned trial Judge could have founded the conviction of the appellant on either or both sources of evidence led before him.

The law is very clear that in a charge of armed robbery, the prosecution must prove that:-

1. There was robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was one of those who took part in the armed robbery.

See Afolalu v The State (2010) 16 NWLR (pt 1220) page 584, Ikaria v The State (2014) 1 NWLR (pt 1389) 639, Agugua v The State (2017) LPELR – 42021 (SC).

From the evidence of PW1 and the confessional statement of the appellant, the three ingredients of the offence of armed robbery are complete.

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On the conviction for attempt to commit rape, it is trite that where an accused person is prevented from committing the complete offence, a conviction for attempt to commit the offence may be sustained. To succeed on a charge of rape, the prosecution must lead evidence to prove the following:-

1. That the accused had sexual intercourse with the prosecutrix.
2. That the act of sexual intercourse was done without the consent or that the consent (if any) was obtained by fraud, force, threat, intimidation, deceit or impersonation.
3. That the prosecutrix was not the wife of the accused.
4. The accused had the means rea, the intention to have sexual intercourse with the prosecutrix without her consent or that the accused acted recklessly not caring whether the prosecutrix consented or not.
5. That there was penetration. See Afor Lucky v The State (2016) LPELR – 40541 (SC), Ezigbo v The State (2012) 16 NWLR (pt 1326) 318.

However, where an accused person is prevented from committing the complete offence, a conviction for attempt to commit the offence may be sustained. The last act by the accused person immediately before the main act that would

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have resulted in the commission of the offence is an attempt to commit the offence. In the instant case, although the PW1 stated that the appellant actually penetrated her, the appellant in Exhibit A said he was about to penetrate. The learned trial Judge gave him the benefit of the doubt in view of the fact that both PW1 in her testimony before the Court and in Exhibit A the confessional statement of the appellant, it is clearly shown that the appellant’s penis could not attain erection immediately but had to be caressed by PW1 before it kick started like the old Moris Minor Lorry which had to be wound up as generator to start the engine. In the process, Gedu gave signal that “yawa don gas” meaning “alarm don blow”. At that stage he put on his dress and joined Gedu to escape. Unfortunately for him, he was pursued and arrested. He joined Gedu to drag the PW1 into the bush, joined in tearing the lady’s dress and pant, watched the environment for Gedu to rape the PW1 and thereafter “climbed” her only to experience low current. Had Gedu not signalled him of persons coming to the rescue of the PW1, the appellant could have completed the act of rape. He was, in my opinion

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properly convinced of attempt to commit rape. The court below was also right to affirm his conviction for attempted rape.

Learned counsel for the appellant had argued that since the learned trial Judge rejected the evidence PW1 that there was penetration, he ought not to have convicted the appellant for attempted rape. I think the said argument is puerile. The appellant stated in Exhibit A that he “climbed” PW1 to have sex with her only that his penis could not attain erection immediately. The PW1 said that she helped to kick start the penis out of fear. For me, had the learned trial Judge convicted the appellant for rape, I will have no problem because the PW1 who is the owner of her body testified that there was penetration. That notwithstanding, I am satisfied to agree with the Court below that the learned trial Judge was right to convict the appellant for the offence of armed robbery and attempted rape. The prosecution had no business calling many witnesses having been satisfied that the case could be proved with the evidence of the sole witness and the confessional statement of the appellant. This issue is also resolved against the appellant.

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In summary, I hold that there is no merit in this appeal. It is accordingly dismissed. I affirm the judgment of the lower Court delivered on 14th June, 2016 in Appeal No. CA/B/57c/2011.

Appeal Dismissed.

SC.695/2016