Udo Akpan V. The State (1986)

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OPUTA, J.S.C.

The appellant was in the court of first instance charged with two offences namely:

1. Conspiracy to commit a felony punishable under Section 516 of the Criminal Code.
2. Robbery punishable under Section 402(2)(a) of the Criminal Code (Amendment No.1) Law of 1980.

The prosecution called a total of six prosecution witnesses. The key prosecution witness was Marcus Imahe called as PW1. He was on 29/5/80 the driver of the Peugeot taxi cab No. LA.977SB. He was driving along Oshodi Mile 2 Express Road. On getting to Ijeshatedo Bus Stop at about 12.15 a.m. he was stopped by a man wearing mobile police uniform.

This man demanded from him his particulars. These the PW1 surrendered. The policeman then demanded some money from PW1 who said he had only N5 on him. Apparently annoyed at the meagre sum of N5 the policeman cocked his gun, forced PW1 into the taxi. At this stage another police officer appeared. Both entered the taxi and asked PW1 to drive and keep driving until asked to stop. When PW1 stopped as requested the policeman in mobile police uniform went to a nearby house and came back with another man.

The PW1 and all three entered the taxi and drove to Agunlejika Bus Stop. There the 1st policeman in mobile police uniform and his fellow officer beat up PW1 with horsewhip and the butt of the gun. The policeman wearing mobile police uniform was later identified by PW1 as the appellant in this court. The appellant and his two companions left PW1 unconscious on the road-side and drove away in his taxi car. This car was later sold by the appellant to PW5, James Ejiogu, and PW6 Christopher Ofoegbu for N2, 500. Both PW5 and PW6 identified the appellant as the person who sold the car to them.

The PW3 Sergeant No. 34795, Ibrahim Bakari, took part in the investigation of this case. The appellant volunteered a Statement to him in English which the appellant himself recorded in his own handwriting. The Statement was tendered as Ex. D. The appellant signed Ex. D and PW3 countersigned the same Ex. D. Seeing that Ex. D was, on the face of it, a confession, the PW3 took the appellant to a superior police officer, A.S.P. Stephen Adesoro, called as PW4. The appellant admitted to PW4 that Ex. D was his voluntary Statement. The A.S.P. Stephen Adesoro (PW4) then again endorsed Ex. D. This is the summary of the principal facts of this case.

The learned trial judge in a long and very well considered judgment made at pp. 50/60 of the record of proceedings the following findings of fact:

“I am satisfied from the foregoing accounts of events and I hold as a fact that it was the accused while armed with an S.M.G. Rifle who stole the Peugeot 504 saloon car No. LA.977SB from Marcus Imahe (PW1)…… I am also satisfied and I hold as a fact that the accused sold the said vehicle to PW5 and PW6 for N2, 500 It is also clear to me from the evidence and I hold as a fact that the accused person at or immediately before the time of stealing the said vehicle used actual violence to PW1 thereby wounding PW1 on the neck, nose and head in order to obtain or to retain the said vehicle No. LA.977SB Ex. B.”

How did the learned trial judge deal with Ex. D, the confessional Statement of the appellant and his testimony in court retracting Ex. D The learned trial judge accepted the evidence of PW3 to whom Ex. D was made and that of PW4, the superior police officer before whom the appellant confirmed his making of Ex. D, and held at p. 52 of the record:

“I am satisfied from the surrounding circumstances of this case in hand and I hold that the Statement is true.”

After considering the law relating to confessional statements especially the principles laid down by the English Court of Appeal in R. v. Sykes (1913) 8 CR. App. R. 233 and by the West African Court of Appeal in Kanu v. The King (1952/55) 14 W.A.C.A. 30, the learned trial judge found that Ex. D passed all the six tests formulated in the two cases mentioned above, and can therefore comfortably be regarded as a confessional statement. The trial judge then continued at p. 53 of the record Lines 32-34:

“Accordingly it is my view that full weight and effect should be accorded to the confessional Statement (Ex. D).”

The trial judge was of the view, and rightly too, that the appellant can even be convicted on Ex. D alone. But in this case there was in addition, the evidence of PW1, PW3, PW5 and PW6 all clearly, directly and circumstantially pointing to the guilt of the appellant. The learned trial judge found the appellant guilty as charged and sentenced him to seven years imprisonment with hard labour on count one and to death by hanging on count two.

The appellant appealed to the Court of Appeal, Lagos Division coram Ademola, Nnaemeka-Agu and Kutigi, JJ.C.A. in that court counsel on both sides-for the appellant and for the respondent that there was nothing to urge in favour of the appellant. The Court of Appeal accordingly dismissed the appeal in a judgment of two and a half lines.