The Appellant, charged with 4 other persons, was tried and convicted on a two count charge of conspiracy to commit armed robbery and armed robbery punishable, respectively, under Sections 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990. The Appellant was the 2nd Accused at the trial Court. The 1st Accused Monday Eze, died in the course of the trial. He was the son of the PW.1, and a brother of PW.3.

The PW.1, Hyginus Eze, was not an eye witness of either the conspiracy or the armed robbery. He depended largely on the account of his son, Ifeanyichukwu Eze (PW.3) for his actions in the matter.

The 1st Accused (deceased) was the first to be arrested. He led the police officers to arrest the 3rd and 5th Accused in Benin City. The PW.1 travelled with the investigating police officer and the 1st Accused to Lagos for the arrest of two other accused persons. The arrest of the Appellant was actively facilitated by the 1st Accused. It was the 1st Accused who identified the Appellant, in the presence of the PW.1,as one of the robbers in his gang.

In all five (5) witnesses testified for the prosecution. At the close of the prosecution, the Appellant's no case submission was dismissed. The Appellant later testified in his defence. He was the lone witness in his defence. He denied both charges and the fact of his knowledge of Monday Eze, the 1st Accused. He insisted that he did not make the alleged voluntary confession, admitted earlier in evidence through PW.5 as Exhibit A. The defence, in the first instance, did not oppose the tendering of Exhibit A. It was admitted in evidence without objection. See pages 46 and 47 of the Record.

Before Exhibit A was admitted in evidence the PW.3 had narrated that, before recording the statement, he had cautioned the Appellant before he volunteered his statement, Exhibit A. There being no dispute about the Appellant voluntarily making the statement, that is confessional, there was no further need for trial-within-trial to be conducted, and none was in fact conducted, to determine whether or not it was made voluntarily. Facts not disputed are taken as established. The unchallenged evidence of PW.5 prima facie established that Exhibit A was voluntarily recorded from the Appellant. The trial Court was, in my view, right or correct when it dismissed the attempts made by the Appellant subsequently to retract the confession and resile out of it.

The Court of Appeal (the lower Court) also alluded to the fact that Exhibit A was admitted in evidence without objection in its judgment at page 135 of the Record particularly thus

"At the trial, the statements of the Appellant were tendered and admitted in evidence with their consent. No objection of any kind was raised against the admission. If the Appellant had objected to the admission of the statements at the time it was being tendered, the voluntariness or otherwise of the statements would be tested through the conduct of trial-within-trial, but the trial Court was not afforded such opportunity. It was only when the Appellant (was) testifying in (his) defence that (he) claimed that (he) did not make the statement and that (he was) tortured into signing the statement.

Not impressed or persuaded by the retraction of Exhibit A, by the Appellant, the lower Court affirmed the decision of the trial Court to treat Exhibit A as a confession properly made and admitted in evidence by due process of law. It held, and I agree, that Exhibit A was voluntarily made and that it was admissible in evidence.