Peter Durugo Vs The State (1992) LLJR-SC

Peter Durugo Vs The State (1992)

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A. G. KARIBI-WHYTE, J.S.C. 

On the 2nd July, 1992 the appeal of the appellant was summarily dismissed. The conviction and sentence of the Court below was affirmed. I indicated on that day that I will give the reasons for my decision today. This I proceed to do below.

Peter Durugo is the only appellant now before us. The 2nd appellant in the Court below Christopher Uloh was discharged and acquitted in that court. Appellant is appealing against the judgment that he was convicted by the Court below on reliance on Exhibit “M”, held by the trial Court as of no evidential value against him.

Appellant and four others were charged with the offences of Robbery with firearms, punishable under S. I (2) (a) of the Robbery and Firearms (Special Provisions) Decree 1970. The fourth accused Alhaji Usman Mohammed alone was charged with receiving stolen properly, contrary to section 427 of the Criminal Code.

The prosecution having failed to locate Alhaji Usman Mohammed, withdrew the charges against him. He was accordingly discharged. The trial proceeded against appellant and the other three accused persons.

The case against appellant and the three others were based on the following facts –

On the 19th April, 1980, David Attah lodged a report at the Ilupeju Police Station. Lagos, that he was attacked by a group of armed men in front of ACCESS HOTEL, Ilupeju, Lagos and the Mercedes 230 saloon car No. BN 363 OM in which he was driving taken from him. Dr. E.T. Atanu. P.W.4 is the owner of the car. David Attah was driving in the car with another person. Kofo Adetona.

It was not until the 30th May, 1980 that Appellant was arrested. He made a statement Exhibit M on that day, in which he narrated his activities relating to the snatching of various cars. In another statement dated 1st July, 1980 Exhihit J and J1 not too dissimilar in its details he related his activities in respect of the snatching of David Attah’s car. Each of the other accused persons made statements to the Police. The accused persons objected to the tendering of their statements. They argued that the statements were not voluntary; and were therefore not admissible.

The learned trial Judge accordingly tried the admissibility of the statements. He held that the statements marked Id. 1, 1d.2 for Christopher Ulo, 2nd accused and Id.3, Kenneth Udealor, the 3rd accused were not confessional statements, and that it was not necessary to consider them in the hearing. The statements were accordingly admitted and marked as Exhibits “K” “L.”

He referred to the statement Id.4 dated 30/9/80 and 1/7/80 made by Peter Durugo, the appellant before us, and Id.5 dated 30/5/80 made by Tesilimi Lamidi, the 4th accused. He tried the admissibility of these statements and found that the statements were made voluntarily. The statements of the appellant were accordingly admitted as Exhibits J and J 1. and M.

The statement of the 4th accused Tesilimi Lamidi was also admitted as Exhibit N.

At the trial, the accused persons gave evidence in their own defence and resiled from their statements already admitted in evidence. Both the 1st and 4th accused called one witness each. The learned trial judge regarded the statements of Appellant and the 2nd accused as confessional statements.

Although there was evidence before the court that 3rd accused was somehow connected with the 2nd accused and other persons by conveying them in his Passat Car, the learned trial Judge was not satisfied that there was credible evidence sufficient to connect him with the offence of armed robbery as charged. Third accused was therefore entitled to the benefit of such doubt and was accordingly not found guilty and was discharged.

Similarly discharged was the 4th accused, whose confession of stealing a Mercedes 230 saloon car was on the 15th April, 1980. The car in question was of a different colour and registration number from the evidence led by the prosecution. This evidence was at variance with that of the prosecution.

The learned trial Judge found appellant and the 2nd accused guilty of the offence. He relied on their statements Exhibits “M”, J and J 1, and “G”. The alibi of the appellant was rejected.

Both appealed to the Court of Appeal. The main issues contested on appeal, were the sufficiency of the evidence relied upon for the conviction of the appellants. It was contended that the confessional statements Exhibits “J”. “J 1” and “M” were wrongly admitted. The Judgment was also challenged on the failure of the prosecution to check on the alibi of the 1st accused. In the judgment dismissing the appeal the court below held that Exhibit M, the confession of the appellant cannot be impugned. The court accepted the submission of learned counsel to the respondent that the subsequent recovery of the stolen vehicle, and the description of the incident in the confessional statement, supported by the evidence of the victim of the alleged armed robbery tended to show and actually supported the view that the confession in Exh. M was true. The confession was free and voluntary.

The Court of Appeal discharged the 2nd appellant who denied the allegation and never made a confession on the ground that his conviction was founded on Exhibit G. which was inadmissible. It was also held that the victim did not identify the 2nd accused in any identification parade.

The first accused/appellant has further appealed to this Court, against his conviction. Learned Counsel both for the appellant and the respondent filed briefs of argument, which they adopted and relied upon in their argument before us. Only one issue for determination was formulated by learned Counsel for the appellant. It is as follows –

“Was the Court of Appeal right to have relied on Exhibit ‘M’ to confirm the conviction of the Appellant on the charge of armed robber whereas the said Exhibit ‘M’ was held by the trial Court to be of no evidential value against the Appellant.”

Formulating the same issue differently but with the same effect, learned counsel to respondent stated as follows:-

“Whether or not Appellants conviction based on his free and voluntary confessional statement which was properly proved was not justifiable in the circumstances of the present case.”

Chief Owhovoriole S.A.N, learned Counsel to the appellant founded his argument on the assumption that the learned trial judge did not rely on Exhibit “M”. in his conviction of the appellant. He submitted that the learned trial Judge categorically rejected Exhibit “M” and regarded it as having no evidential value in deciding the case of the prosecution against the appellant. Learned Senior Counsel referred to the statement of the learned trial judge which reads – at p. 133 lines 17-22.

“The 1st accused person (Peter Durugo) made a statement. Exhibit M dated 30th May, 1980, in which he narrated his activities about snatching various makes of cars. As regards the present case in hand, the statements Exhibit J and J1 dated respectively 1st July, 1980 and 30th May, 1980 would appear to be more relevant.”

The learned trial judge then went on to reproduce Exhibit J at p.133 lines 25-32, and p.134 lines 1-24.

Learned Senior Counsel submitted that the inference is that Exhibit “M” is of no evidential value and “”as not considered in the determination of the case against the appellant. Accordingly, the conviction of appellant was independent of Exhibit “M”. The conviction of appellants, it was submitted was based entirely on Exhibit “J”.

It was further submitted relying on Esangbedo v. State (1989) 4 NWLR (Pt. 113) 57, ljale v. Leventis (1959) SCNLR 255; (1959) 4 F.S.C. 108 at p.112 that the respondent having not appealed against the finding that Exhibit “M” was not relevant to the consideration of the case, of the appellant, the Court of Appeal cannot rely on Exhibit, “M” to affirm the conviction.

Finally, Chief Ovhwovoriole submitted relying on Ojegele v. State (1988) 1 NWLR. (Pt.71) 414 at p.428 that the failure of the learned trial judge to consider the voluntariness of Exhibit “M” at the trial, was fatal to the judgment of the trial Court. We are therefore urged to expunge Exhibit M from the record and allow the appeal.

Learned Counsel to the respondent in his short but concise submission pointed out that the gravamen of appellant’s case is the reliance on Exhibit “Mt” which learned Counsel to the appellant submitted was inadmissible having not been considered in the trial within the trial and rejected by the trial judge.

Learned Counsel to the respondent submitted that the contention was a misunderstanding by learned Senior Counsel of the proceedings in the trial Court. He referred to the passage in the judgment of the trial judge relied upon by learned Senior Counsel for the appellant and submitted it could not be construed to mean a rejection of Exhibit “M”.

It was submitted that a retracted confession subsequently proved after a trial within a trial remains admissible. Relying on Ojegele v. The State (1988) 1 NWLR (Pt.71) 414, it was submitted that Exhibit “M”, was properly admitted in evidence and will not be affected by subsequent retraction by appellant of his confession.

Finally, it was submitted that in the light of the evidence in Exhibit “M”, the plea of alibi cannot stand and was accordingly properly disregarded.

I have reproduced the contentions of Counsel on the issue for determination in this appeal. The issue before us is centred on the very narrow proposition challenging the validity of the conviction on the relevance of Exhibit “M” to the conviction of the appellant.

I have already reproduced in this judgment for ease of reference and for the avoidance of doubt, the passage credited to the learned trial judge as indicating that Exhibit “M” was not relevant in his consideration of the guilt of the appellant. There is no doubt that Exhibits “M”, “J” and “J1” were all confessional statements made by the appellant. They were all considered in the trial within a trial and held to have been made voluntarily. They are therefore confessions made by the appellant on which without any further evidence he could be convicted.

The trial within a trial or voir dire was held when Appellant denied the voluntariness of the statements alleged to have been made voluntarily by him, and to establish that the statement was made under no threats. of actual force or inducement of favour held out to the Appellant or oppression by the Prosecution or any other person in authority. After the trial Judge had established that the statement was made voluntarily,its admissibility as a voluntary statement made by he appellant necessarily follows.

In his ruling on the admissibility of the statements of the 1st and 4th accused persons, the learned trial judge held; at pp.81-82 –

“The 1st accused alleged that the statement which he wrote in his own handwriting was destroyed by Inspector Osadolor. It was also alleged that Inspector Osadolor later submitted another prepared statement which the 1st accused confirmed that he signed after he had been shot on the leg through his pair of Trousers. The 1st accused denied ever being taken before Abdullahi Kaltungo or any other superior police officer with his statement.

The evidence of the 4th accused person was that he made a statement in Yoruba language to a policeman, but not to Inspector Osadolor as alleged by the prosecution. The 4th accused also alleged that he was beaten by two policemen with wire and big stick. He admitted signing the cautionary words on Id.5 but denied signing the bottom of the said statement. He also denied ever being taken before Abdullahi Kaltungo with the statement marked Id. 5. I have given careful consideration to the evidence adduced during the trial-within trial. I have also compared the signature after the cautionary words on Id.5 with the signature at the bottom of the said statement.

It seems to me that the two signatures on Id.5 were written by one and the same persons. And since the 4th accused has admitted signing after the cautionary words in 1d.5. I hold as a fact that it was the 4th accused person who also signed at the end of the same statement marked Id.5.”

The learned trial judge then concluded:

“I accept and prefer the evidence adduced by the prosecution. I hold as a fact from the credible evidence that the statements marked Id.4 and Id.5 were voluntarily made respectively by the Ist and 4th accused persons. The two statements will accordingly be admitted in evidence and marked as Exhibits.”

I have reproduced the relevant passages in the trial-within-trial to show that the learned trial judge considered the admissibility of Exhibits “M” and “J” and “J1.” He found that they were confessions voluntarily made and admitted them in evidence. Learned Senior Counsel was therefore wrong to argue before us that Exhibit “M” was not considered in the trial-with in-trial, and therefore inadmissible.

It was decided in Okhugbe v. State (1971) 1 UILR 55, that where an accused person has made more than one statement to the Police, and objections are raised as to the admissibility of each of them, the trial court must try the admissibility of each of the statements separately. This was what was done in this case. The finding can therefore not be successfully impeached. The decisions of Nwuzoke v. State (1988) 1 NWLR, (Pt.72) 529 and Ojegele v. State (1988) 1 NWLR (Pt.71) 414 relied upon are not applicable.

I refer to the passage in the judgment of the trial judge to which learned Counsel to the appellant has clung to tenaciously for the contention that Exhibit E “M” is of no evidential value in the case against the appellant. Accordingly it was argued the reliance on Exhibit “M” to affirm the conviction was wrong. The Court of Appeal was considering the effect of the confessions in Exhibits “M” “J,” and “J1” It had been established before the trial court that the confessions were free and voluntary. The Court of Appeal was also satisfied that the confessions are true having been supported by facts outside the confession. The Court was perfectly entitled to accept the findings of the learned trial judge, which have not been shown to be perverse or not supported by the evidence. The fact that the learned trial judge regarded Exhibits “J” and “J1” is not sufficient for the opposite conclusion that Exhibit M. similarly admitted as a confession was not relevant. In fact the trial judge did not say so. It was obvious that he considered all the confessions before him.

This Court followed the well settled principles and as was decided in Esangbedo v. State (1989) 4 NWLR (Pt.113) 57, that an appellate court ought normally not to re-open issues of fact decided by the court below, or to set up a new case on appeal- See also Queen v. Ohaka (1962) 1 All NLR. 505; (1962) 2 SCNLR 249. The case before us is not such a case. Learned Senior Counsel was therefore in error to have cited and relied on Esangbedo v. The State (supra),

The Court of Appeal neither re-opened the issue of the admissibility of Exhibit “M,” which was concluded by the trial judge nor did it make a new case for the prosecution.

The above are my reasons for dismissing the appeal on the 2nd July, 1992.

S. KAWU, J.S.C.: After hearing submissions of counsel in this appeal on 2nd July, 1992, the appellantn that day that I would, today give reasons for my judgment.

I have had the privilege of reading, in draft. REASONS FOR JUDGMENT just delivered by my learned brother. Karibi-Whyte, J.S.C, and I entirely agree with those reasons and respectfully adopt them as mine. The only point raised in the appeal before us was whether the Court of Appeal was right to have confirmed the appellant’s conviction on Exh. “M” which statement was held by the trial court to be of no evidential value. Having carefully perused the record, I am satisfied that the trial court did consider the admissibility of Exh. “M” as a confessional statement which was voluntarily made, and on which the appellant was properly convicted. In the circumstances, in my view, the Court of Appeal was right in upholding the decision of the trial court.

A. B. WALI, J.S.C.: On the 2nd July, 1992, after reading the record of proceedings, the briefs of arguments filed by learned counsel on both sides and listening to their respective further oral arguments in support thereof. I dismissed the appeal and reserved my reasons for doing so to today.

The appellant, along with three others was charged with robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special provisions) Decree No.47 of 1970 as amended by Decree No.48 of 1971 and Decree No.39 of 1977 while the 5th accused was charged with receiving stolen property, the subject of the armed robbery, contrary to Section 417 of the Criminal Code of Lagos State.

Before the pleas of the accused persons were taken, on the application of learned counsel for the prosecution, the 5th accused was discharged on 8th December 1981 as he was no-where to be found. On that same date the pleas of the 1st to 4th accused persons were taken. They all pleaded not guilty and immediately after their pleas were recorded the prosecution opened its case. The present appellant was the first accused.

At the end of the trial, the learned trial judge. Agoro, J. found against the appellant along with the 2nd accused, guilty as charged and convicted them accordingly while the 3rd and 4th accused were discharged and acquitted.

The appellant and the 2nd accused appealed against their conviction and sentence to the Court of Appeal, Lagos Division. In the judgment of the Court of Appeal delivered by Ademola, J.C.A. with which Babalakin J.C.A. (as he then was) and Awogu J.C.A. agreed, the appeal of the 2nd accused was allowed and he was discharged and acquitted while that of the present appellant was dismissed, thus confirming the conviction and sentence passed on him by the trial court. He has now appealed to this Court.

Before going into the appellant’s case, it is convenient at this stage to state the prosecution’s case as given in evidence by PW3, who was the prime victim of the heinous crime. He testified as follows

“My name is Hon. David Attah of the National Assembly Lagos. I know all the accused persons. On 19/4/80 I was traveling in my Mercedes Benz 230 Saloon along Badagry Express Way. There was a traffic hold-up and we decided to pass through Association Avenue.

The time was about 8.15 p.m. We stopped at Access Restaurant to purchase chicken. The area was brightly lit. There was a group of about 4 – 6 persons standing at the side of the road. I went into my car and started the engine.

I was then waiting for my friends to join me. It was at that time that somebody tapped the back of my car. The same person who was holding a gun covered with an handkerchief then came to the side of the car. The man fired a gun which did not injure me. The witness has identified the 2nd accused as the person who fired the gun.

I pretended to be dead. The man then opened the door of my car and pushed me to the ground.

Some of the people stopped the traffic. The four persons quickly got into my car and they drove the car towards the direction of Lagos. I got out of the gutter and asked for help. I later reported the incident at Ilupeju Police Station. I was driving a Mercedes Benz 230 Saloon registration No. BN 36063 M. The car belonged to Dr. A Y. Atanu.

All the four accused persons were members of the gang that snatched my car.”

Three grounds of appeal were filed by the appellant. But in the brief of argument filed by his counsel, learned M.P. Ohwovoriole, SAN, only one issue based on ground I of the grounds of appeal was formulated. to wit-

“Was the Court of Appeal right to have relied on EXHIBIT M to confirm the conviction of the appellant on the charge of armed robbery whereas the said EXHIBIT M was held by the trial court to be of no evidential value against the Appellant.”

Grounds 2 and 3 are therefore deemed to have been abandoned as no arguments were proferred on them. They are accordingly struck out. See ONIFADE V. OLAYIWOLA (1990) 7 NWLR (Pt.161) 130.

Learned Counsel for the appellant adopted and relied on his brief and in elaboration thereof made some oral submissions. The substratums of these arguments were directed against the admission in evidence of Exhibit “M”, the confessional statement of the appellant. It was his submission that exhibit “M” was categorically rejected by the learned trial judge and as such it had no evidential value in deciding the prosecution’s case. It was his contention that the trial court hinged its judgment to Exhibit J while the Court of Appeal relied on Exhibit “M” to affirm the judgment of the trial court. He submitted that since there was no cross-examination by the prosecution on the finding of the trial court that Exhibit “M” was irrelevant, the Court of Appeal ought not to have re-opened issues of fact already laid to rest. He cited and relied on EZE v. THE REPUBLIC (1987) 1 NWLR (Pt.51) 506 at 521 to 522 and IJALE v. LEVENTIS (1959) 4 FSC 108 at 122.

In what seems to be an alternative argument in relation to Exhibit “M”, learned Counsel further submitted that it was wrongly admitted in evidence by the trial court as the testimony of the appellant given in trial-within-trial to determine its voluntariness or otherwise, was not considered by the learned trial judge. He cited and relied on NWUZOKE V. THE STATE (1988) 1 NWLR (Pt.72) 529 at 536; SAIDU v. THE STATE (1982) 4 SC. 41 at 69 and OJEGELE v. THE STATE (1988) 1 NWLR (Pt.71) 414 at 428.

`In reply to the submissions (supra), earned Counsel for the respondent submitted that the learned trial judge fully considered the evidence adduced by the appellant in the trial-within-trial to determine the voluntariness of Exhibit “M” after which he arrived at the right conclusion that Exhibit “M” was voluntarily made by the appellant and therefore properly admitted in evidence and considered. He also submitted that no amount of retraction of Exhibit “M” by the appellant could vitiate its voluntariness and admission in evidence and that the trial court could have even solely relied on il to convict the appellant. In support of these submissions, learned counsel cited and relied on EKPO V. THE STATE (1982) 6 SC. 25, SAMUEL OJEGELE V. THE STATE (1988) 1 NWLR (Pt.71) 414 and AREMU v. THE STATE (1991) 7 NWLR (Pt.201) 1 at 4.

I agree with and endorse the statement by learned counsel for the respondent that the contention of the learned counsel for the appellant that Exhibit “M” was rejected by the learned trial judge is misconceived. The learned trial judge reviewed the evidence adduced at the trial-within-trial. The relevant evidence affecting Exhibit M in the trial-within-trial was that of Police Inspector Obidier Osadolor who cautioned the appellant in English language and recorded the statement he voluntarily made. When the witness discovered that the statement was confessional, he took the appellant to Mr. Kaltungo, the D.P.O. Mr. Kaltungo testified to the effect that the appellant together with his statement (then Id.4) was taken before him by Mr. Osadolor. He read Id.4 to the appellant and later confirmed its contents to be true. Mr. Kaltungo then endorsed and signed it. The learned trial judge observed that the appellant did not complain to Mr. Kaltungo about any beating.

The evidence of the appellant was a complete denial and rejection of Exhibit M (Id.4). His evidence goes thus-

“Inspector Osadolor invited me to make a statement and he gave me a paper. I wrote a statement in my own handwriting. I signed the statement and handed it over to Inspector Osadolor. I was then locked in the police cell.

In the night of the same day that is 30/5/80 another policeman took me out of the cell and was escorted to the room where I had made a statement in the morning of that day. I met the same two policemen (Inspector Osadolor and another) in the room. Inspector Osadolor informed me that their superior officer had rejected the statement which I made in the morning of that day. I was invited to make another statement. I wrote the second statement in my own handwriting. I passed the statement to the Inspector to read. Unexpectedly, Inspector Osadolor gave me a slap and he also tore the Statement.

The Inspector then brought out from a drawer an already prepared statement for my signature. I refused to sign the prepared statement because I did not know the content of the statement. The two policemen started beating me with horse whip and cable wire. I still refused to sign the statement despite the beating.

Inspector Osadolor then left the room and later returned with two other policemen, each carrying a gun and a batton. The Inspector gave me a biro pen to sign the statement, while the three other policemen started beating me with baton, horse whip and cable wire. I still refused to sign the statement. The Police Sergeant who arrested me then connected electric wire to my private part. I was shaken by the electric shock. I still refused to sign the statement.

The Police Sergeant then brought out a gun which he pointed at me. I later know the name of the police Sergeant as “Chime”. I still refused to sign the statement despite the threat with the gun. Sgt. Chime then shot me on the right leg through my trousers. The Police Sergeant (Chime) still promised to shoot me dead if I refused to sign the statement whereupon, I signed the statement (lnd No.4). The 1st accused has identified his signature on Ind No.4.

On the following day, 31/5/80 in the morning I was taken to Ikeja General Hospital by the Police. My wounds were treated at the hospital.

I was never taken before Mr. Kaltungo or any other superior police officer with my statement.”

The learned trial judge summed up the appellant’s evidence as follows-

“The 1st accused alleged that the statement which he wrote in his own handwriting was destroyed by Inspector Osadolor. It was also alleged that Inspector Osadolor later submitted another prepared statement which the 1st accused confirmed that he signed after he had been shot on the leg through his pair of trousers. The 1st accused denied ever being taken before Abdullahi Kaltungo or any other superior police Officer with his statement.”

It was after the review of the whole evidence at the trial-within-trial, that the E learned trial judge came to the following conclusion in respect of (Id.4) :-

“I accept and prefer the evidence adduced by the prosecution. I hold as a fact from the credible evidence that the statements marked Id.4 and Id.5 were voluntarily made respectively by the 1st and 4th accused persons. The Two statements will accordingly be admitted in evidence and marked as Exhibits.”

Having regard to the conclusion (supra) it is a clear misconception on the part of learned counsel for the appellant to say that the trial judge rejected Exhibit M. All that the learned judge said about Exhibit M was that Exhibit M contained narrations by the appellant relating to the snatching of various makes of cars, including the Mercedes Benz 230 involved in this case. In Exhibit M, the appellant stated-

“On the 19th April, at about 8 p.m, I, Atu, small boy whose actual name is Tesilimi Lamidi, Rainbow and Peter went to Access Hotel, IIupeju. Only Atu held a gun. Atu dragged the man who was the driver in charged of the Mercedes Benz 230 out and fired a shot of gun. Only Atu was armed with a pistol. Small boy by name Tesilimi Lamidi is also known as Mukaila Mukaila is the one who drove the Mercedes away. He drove up to Fadeyi where I took over the steering and drove to AIhaji Usman Mohammed house. Alhaji Usman Mohanmed immediately attached KN 5329 KN to the vehicle and original number BN 3630 M. Athaji Usman Mohammed paid us the sum of Two thousand Naira which we shared. Atu shared the money and gave me four hundred Naira. We all equally got the same amount. I went on many car theft trips with one Isaiah whom I don’t know where he stayed. Alhaji Usman Mohammed. Mukaila. Kajero from Ihadan, Kajero used to bring some of his friends for car theft. Kajero has no pistol. Rainbow and Atu have pistol.”

It was after he had already accepted the above statement in evidence following the trial-within-trial, he reviewed another statement – Exhibit J made by the appellant along with the other pieces of evidence adduced, and concluded-

“I am also satisfied from the oral and documentary evidence and hold as a fact that Peter Durugo the 1st accused was a party to the offence as charged within section 34 of Decree No. 47 of 1970 as amended. In this conclusion I reject the alibi put forward by the 1st accused which was not substantiated by the evidence of his mother DW5”.

I cannot find any portion in the judgment of the trial judge where Exhibit M was rejected. The Court of Appeal was neither in error nor misdirected itself when it relied on Exhibit M. along with other pieces of evidence considered and accepted by the trial court, to affirm the appellant’s conviction. And with due respect to the learned counsel for the appellant, the portion of the judgment of the Court of Appeal he quoted and relied upon to say that it solely relied on Exhibit M to affirm the appellant’s conviction, was quoted out of con. What the Court of Appeal did was to summarise the submission of the learned counsel for respondent in respect of the appellant which is thus-

“The learned Legal Officer, Mr David Onyeike filed joint brief in reply to those of the two appellants.

At the hearing and in the brief filed by him, he rightly conceded the point about identification raised by the appellants in this matter. Upon a long line of authorities both in this Court and in the Supreme Court, learned Legal Officer could not support that aspect of the judgment which believed the evidence of identification as given by the prosecution witnesses particularly 3PW. However, in respect of the 1st appellant, learned counsel for the respondent, submitted that Exhibit “M” cannot be impugned. The following facts, he contended, supported Exhibit M and lend to show that Exh. M is true. These facts are: (a) Recovery of the stolen vehicle: (b) The description of the incident in the confessional statement is supported by the evidence of the victim of the alleged armed robbery.

He therefore asked that the conviction of the1st appellant be affirmed.”

The Court of Appeal then made the following finding in respect of the preceding submissions –

“Though the point about identification is also relevant in the case of the 1st appellant, his defence of alibi which was considered by the learned judge is not sustainable. The confessional statement had been attacked in this Court by Mrs. Opeyokun, learned counsel who appeared for the 1st appellant. But I am inclined to agree with the learned Legal Officer Mr. Onyeike for the respondent, that the confession was free and voluntary and that there were facts outside the confession which tend to support it as laid down in the series of authorities of which R. v. Skyes (supra) is one.”

Under section 27(2) of the Evidence Act a voluntary confession is deemed to be a relevant fact against its maker. Exhibit M had been tested in trial-within-trial and accepted as voluntarily made by the appellant. The clear words in Section 27 en does not mention requirement of corroboration before basing a conviction on confession alone. The Court of Appeal, as required by practice in a situation where the confession is retracted, said there are facts outside the confession which tend to support it as laid down in series or authorities of which R. v. Skyes (supra) is one. Although the learned justice of the Court of Appeal did not specifically mention the pieces of evidence which were corroborative of Exhibit M. he however accepted and adopted those mentioned by the learned counsel for the respondent, particularly the recovery of the stolen vehicle as a result of Exhibit M.

The nature of the corroborative evidence required does not need to be direct evidence that the accused person committed the offence; it is sufficient even if only it is circumstantial connecting or tending to connect him with its commission. See R. v. SKYES (1913) 8 C.A.R. 233 and QUEEN v. OBIASA (1962) 1 ALL NLR 651; (1962) 2 SCNLR 402. See also JAMES OBIACHABUA v. THE STATE (1976) 12 SC. 63 in which this Court (per Obaseki. J.S.C) stated –

“1.The secrecy with which criminals perpetrate their crimes has tended to deprive the prosecution in some case of eye witnesses. Hence confession alone even without corroboration can support a conviction so long as the court is satisfied of its truth.

2. The truth of the confession by the appellant was established before the learned trial judge and the appeal fails.”

So it has been in this case. The truth and voluntariness of Exhibit M was proved and accepted by the learned trial judge and the Court or Appeal also accepted it.

The appeal has no merit and it therefore fails.

It was for these reasons and the more detailed reasons in the lead Reasons for judgment of my learned brother, Karibi-Whyte, J.S.C which I also adopt as mine, that I dismissed the appeal on 2nd July 1992 and further confirmed the conviction and sentence passed on him by the court below which was subsequently affirmed by the Court of Appeal.

I. L. KUTIGI, J.S.C.: This appeal came up for hearing on the 2nd of July 1992 and after hearing counsel and reading the briefs of argument, we dismissed the appeal for lack for merit. We then reserved our reasons for the judgment till today. I now give my reasons.

I read before now the reasons for judgment. by my learned brother Karibi-Whyte, J.S.C. It was for the same reasons that I agreed that the appeal should be dismissed. I adopt the said reasons as mine.

S. U. MOHAMMED, J.S.C.: On the 2nd July. 1992, I summarily dismissed the appellant’s appeal and indicated I would give my reasons for so dismissing the appeal. I proceed to do so now.

The only issue for determination as formulated on behalf of the appellant was:

“Was the Court of Appeal right to have relied on Exhibit ‘M’ to confirm, the conviction of the Appellant on the charge of armed robbery whereas the said Exhibit ‘M’ was held by the trial court to be of no evidential value against the Appellant.

The issue as formulated for the respondent, though differently worded, has the same meaning and effect.

Chief Owhovoriole, SAN., for the appellant submitted that the trial judge rejected Exhibit M and regarded it as of no evidential value by referring to the portion of the trial judge’s judgment quoted below:

“The 1st accused person (Peter Durugo) made a statement, Exhibit M dated 30th May. 1980 in which he narrated his activities about snatching various makes of cars. As regards the present case in hand, the statements Exhibit J and J1 dated respectively 1st July, 1980 and 30th May, 1980 would appear to he more relevant.”

For the respondent, it was submitted that the appellant’s submission is the result of a misunderstanding of the portion of the judgment of the trial court which learned counsel submitted could not be interpreted to mean a rejection of the statement, Exhibit M.

I am in total agreement with learned counsel for the respondent that the portion of the judgment of the trial court cannot be construed to be a rejection of the statement, Exhibit M which was admitted in evidence after a trial within trial.

The Court of Appeal properly considered the appellant’s appeal, found no merit in it and dismissed it.

It is for these reasons and for the more detailed and succinct reasons in the lead Reasons for judgment of my learned brother, Karibi-Whyte, J.S.C., which I adopt as mine that I dismissed the appeal and upheld the conviction and sentence.

Appeal dismissed.

Other Citation: (1992) LCN/2567(SC)