DANTAGUWA v. STATE (2020)

DANTAGUWA v. STATE

(2020)LCN/14139(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Tuesday, April 07, 2020

CA/K/247B/C/2017

Before Our Lordships:

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

ABUBAKAR YUSUF DANTAGUWA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

WHETHER OR NOT THE DECISION OF THE COURT ON AN ISSUE STANDS UNLESS FOUND TO BE PERVERSE

The lower Court was wrong to have accorded the confessional statement of the appellant with any credibility after it had held that what affected the statement of the 3rd accused person affected the 2nd accused’s i.e. the appellant’s statement. As held by the Supreme Court in the case of FRN V. IWEKA (2011) LPELR-9350 (SC), the law is trite that once a Court has taken a decision on an issue, it stands unless that decision is found to be perverse. In the case of FRN V. IWEKA (supra) the Supreme Court held that the trial Court was right that it did not, having admitted Exhibit 2A as a confessional statement, go on to say that the same was not admissible. In other words, the Supreme in that case approved that the trial Court rightly stuck to its position that the confessional statement was admitted and equally endorsed the refusal of the trial Court in that case to yield to and embrace a contrary position. In the same vein, the lower Court in this case should have stuck to its decision that what affected the 3rd accused’s confessional statement equally affected that of the 2nd accused, i.e. the appellant here. In the case of FRN V. IWEKA (supra) the Supreme Court commended the trial Court and stated that the attitude of the trial Court was in tandem with the settled principle of law that a Court cannot approbate and reprobate at the same time. In this case the attitude of the lower Court was not in tandem with that settled principle. Themis “the lady of good counsel” whose image has come to symbolize Justice, is depicted holding the scales of justice in one hand and a sword in the other while blindfolded. Themis is not Janus, the ancient Roman god that is depicted as having two faces. Justice cannot be two-faced; it is no seesaw either. It takes a stance. PER DANIEL-KALIO, J.C.A.

INGREDIENTS OF ARMED ROBBERY

On the offence of armed robbery, learned counsel referred to the ingredients of the offence as stated in ADEKOYA V. STATE (2012) 9 NWLR Part 1306 p. 539 at p. 566 which ingredients are that (a) there was a robbery; (b) it was an armed robbery; and (c) the accused was the robber or one of the robbers. It was submitted that the evidence of PW1, PW3 and PW4 corroborate the confessional statement of the appellant and established the first two ingredients of the offence, while the confessional statement of the appellant established the third ingredient. It was submitted that a confessional statement is the best form of evidence in a criminal trial and that such a statement will suffice to ground a conviction regardless of the fact that it is retracted. PER DANIEL-KALIO, J.C.A.

THE OFFENCE OF CONSPIRACY

On the offence of conspiracy, he contended that conspiracy does not lie merely in the intention or thought of two or more persons to do an unlawful act or a lawful act by unlawful means but involves an agreement between them to carry out the intention. Conspiracy he further argued, is usually inferred from the facts and evidence led and in this case, can be inferred from the confessional statement of the appellant. On the offence of armed robbery, learned counsel referred to the ingredients of the offence as stated in ADEKOYA V. STATE (2012) 9 NWLR Part 1306 p. 539 at p. 566 which ingredients are that (a) there was a robbery; (b) it was an armed robbery; and (c) the accused was the robber or one of the robbers. It was submitted that the evidence of PW1, PW3 and PW4 corroborate the confessional statement of the appellant and established the first two ingredients of the offence, while the confessional statement of the appellant established the third ingredient. It was submitted that a confessional statement is the best form of evidence in a criminal trial and that such a statement will suffice to ground a conviction regardless of the fact that it is retracted. He cited a number of cases in support of his contention.Going through the judgment of the lower Court, it is without a doubt that the conviction of the appellant was based on his confessional statement. In concluding his judgment, the lower Court held thus-
“…it is therefore my considered opinion that though there was a flaw in the procedure in obtaining the confession of the accused person in the case, I will treat same as technicality as the Supreme Court did in the case of OKEKE V. STATE (2003) FWLR Part 159 on page 1381 particularly on page 145. The accused are hereby convicted as charged”.
I have already stated that it was wrong for the lower Court to have relied on the appellant’s confessional statement having expressly held that what affected the confessional statement of the 3rd accused person equally affected the confessional statement of the appellant. Having so found and held, the lower Court should have stood on that decision and should not have gone against it by using the self-same appellant’s confessional statement to convict the appellant. By doing that, the trial Court was acting topsy-turvily. A Court cannot approbate and reprobate at the same time. See FRN V. IWEKA (supra). PER DANIEL-KALIO, J.C.A.

OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The appellant and three others pleaded “not guilty” to an amended charge in which they were accused of conspiracy to commit armed robbery and armed robbery. The appellant and the others were said to have committed the offences on or about the 28th day of June 1996 at Rugar Wake Village in Kuraye District of Charanchi Local Government Area of Katsina State. The victim of the crime was one Indo Dago. According to the amended charge, Indo Dago, a woman, was robbed of N650 at knife point and died in the process of the robbery, having been stabbed in the neck. After hearing the evidence of six prosecution witnesses and the appellant as well as considering eight Exhibits tendered, Saddik A. Mahuta, CJ, in his judgment delivered on 31/5/2012, found the appellant and his co-accused persons guilty as charged. The appellant was convicted and sentenced to death by hanging ‘as provided for under Section 1(2) (b) and (3) of the Robbery and Firearms (Special Provisions) Act, 2004 LFN.’

Dissatisfied with the judgment, the appellant filed a Notice of Appeal on 18/4/2017 after this Court

upon a consideration of his motion on notice for an extension of time to appeal filed on 21/10/16, granted him a 14 day extension of time within which to file the Notice of Appeal. The appellant sought to fault the judgment of Mahuta, CJ. Katsina State High Court (the lower Court) on four grounds. The grounds, leaving out the particulars of the grounds, are as follows:
GROUND ONE
The learned trial judge erred in law when he convicted the appellant of the offence of conspiracy to commit armed robbery contrary to Section 5 (b) of the Armed Robbery and Firearms Act.
GROUND TWO
The learned trial judge erred in law when he held that the prosecution had proved the offence of armed robbery contrary to Section 1(2)(b) of the Armed Robbery and Firearms Act.
GROUND THREE
The learned trial judge misdirected himself in law when he proceeded to rely on the confessional statement of the appellant despite his own finding that the procedure employed by the Police in obtaining the statement was fundamentally flawed and irregular.
GROUND FOUR
The judgment of the lower Court is unreasonable, unsupported and unwarranted having regard to the

evidence adduced.

The parties in the appeal filed and exchanged Briefs of Argument. The appellant’s Brief of Argument was filed on 23/3/18. Same was deemed properly filed and served on 27/3/2018. The Respondent’s Brief of Argument was filed on 1/4/19 but deemed properly filed and served on 3/4/19. The appellant filed a Reply Brief of Argument on 30/12/2019. It was deemed properly filed and served on 24/2/2020. The Appellant’s Brief of Argument and Reply Brief of Argument were settled by ‘Lanre Olaoluwa, Esq. The Respondent’s Brief was settled by Abu Umar, Esq. Senior State Counsel, Ministry of Justice, Katsina State.

‘Lanre Olaoluwa, Esq. distilled three issues for determination from the four grounds of appeal. The three issues for determination are the following-
1. Whether the learned trial judge did not misdirect himself in law when he proceeded to rely on the confessional statement of the appellant despite his own finding that the procedure adopted by the Police in obtaining the statement was fundamentally flawed;
2. Whether the learned trial judge was right to have relied solely on a confessional statement which the Court itself

had found to have been obtained under duress or involuntarily in convicting the appellant without corroboration;
3. Whether upon proper evaluation of the evidence adduced by the prosecution, the learned trial judge was right when he held that the prosecution had proved the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt.

On his part, Abu Umar, Esq. Senior State Counsel, was of the view that the following two issues if resolved, will determine the appeal. The issues are-
1. Whether the learned trial judge was correct to have convicted the appellant on his retracted statement as required by our law going by the facts before the lower Court;
2. Whether going by the totality of the evidence led by the prosecution (the respondent) before the trial Court, the respondent had proved its case against the appellant beyond reasonable doubt.

After a careful look at the issues formulated by the parties, I am of the view that this appeal will be best resolved by considering the issues formulated by the appellant. I note however that the appellant’s issues 1 and 2 are closely related. In view of that, I shall

consider the said issues 1 and 2 together before going on to consider issue 3. As concerning the issues formulated by the respondent, the issues can easily be considered under the issues formulated by the appellant.

Arguing issues 1 and 2, the appellant’s learned counsel referred to the finding of the learned trial Chief Judge at p. 83 and at p. 87 of the printed record and submitted that the learned trial Chief Judge in essence relied on an involuntary confessional statement without any corroborative evidence in support. It was argued that the failure of the learned trial Chief Judge to consider the evidence of the appellant that he was tortured before the statement was obtained, occasioned a miscarriage of justice. Further, the appellant’s learned counsel referred to the Ruling of the learned trial Chief Judge in a trial within trial at p. 60 of the record with respect to the confessional statement of DW3 which ruling he submitted, was equally applicable to the confessional statement of the appellant. He submitted that the learned trial Chief Judge found that a doubt was created in his mind about the voluntariness of the confessional statement and that

the trial Chief Judge having discountenanced the confessional statement was wrong to have convicted the appellant on it. Learned counsel further contended that the appellant having retracted his confessional statement, the trial Chief Judge should have applied the tests stated in OGUDO V. STATE (2011) 18 NWLR Part 1278 p 1 in order to determine the truth of the confessional statement. It was contended that the tests were not applied in this case. He submitted that the respondent adduced no evidence to show that money was stolen from the deceased and also led no evidence to show how it came about the information that led to the arrest of the appellant. It was submitted that the learned trial Chief Judge ignored facts before him which would have led him to reach the conclusion that there was a high probability that the appellant did not make a confessional statement. We were urged to resolve issues 1 and 2 in the appellant’s favor.

Submitting in response, Abu Umar, Senior State Counsel, submitted that the appellant’s learned counsel did not object to the admissibility of the appellant’s confessional statement and consequently the learned trial Chief Judge

admitted the Hausa and English translation of the statement as Exhibits A and A1 respectively. The learned Senior State Counsel reproduced in extenso the statement of the appellant, the evidence of the appellant in his own defense at p. 69-70 of the printed record, and the judgment of the lower Court at p. 86-87 and submitted that the lower Court properly evaluated the evidence before it before arriving at its judgment. He contended that the evaluation of the evidence did not result in a perverse finding and as such, this Court should not disturb the finding of the learned Chief Judge. It was submitted that although the appellant retracted his confessional statement, a consideration of the tests stated in a plethora of cases including the case of KAREEM V. F.R.N (No.2) (2002) 8 NWLR Part. 770 p. 664 at 683 which are – (a) whether there is anything outside the confessional statement to show that the statement is true; (b) whether the statement is corroborated; (c) whether the statements made in it of fact, so far as they can be tested, are true; (d) whether the accused had the opportunity of committing the offence; and (e) whether it is consistent with other

facts which have been ascertained and have been proved- show that the lower Court found that the retracted confessional statement of the appellant passed all the tests. The learned Senior State Counsel submitted that corroborative evidence to a confessional statement need not directly link the appellant to the commission of the offence as it will be sufficient if such corroborative evidence is circumstantial. He cited the case of DURUGO V. STATE (1992) 7 NWLR Part 225 p. 525 at p.541.

Further, he argued that the fact that a confessional statement is retracted does not mean that the Court cannot convict on such a confessional statement. The case of STATE V. GWANGWAN (2015) 13 NWLR Part 1477 p. 600 at p. 626 was cited in support. With respect to the submission of the appellant’s learned counsel with regard to the Ruling of the lower Court in the trial within trial, the learned Senior State Counsel submitted that it is not the position of the law that where an Investigating Police Officer (IPO) records the statements of two or more accused persons, the rejection of one of such statements after a trial within trial would result in the rejection of the other

statements in respect of which there was no trial within trial.

Now it is very important to see what the lower Court had to say with regard to the extra judicial statement of the appellant who was the 2nd accused at the lower Court. The relevant part of the judgment of the lower Court at p. 81 of the printed record reads-
“Counsel to the 3rd, 1st and 4th accused persons was M. B. Aminu who objected to the admission of the statement of the 3rd accused person which led to a trial within trial and the statement was rejected by the Court on the ground that it was not voluntarily obtained. This was because the Court noted that in his evidence in the main trial within trial PW5 told the Court that the 3rd accused person volunteered his statement but under cross-examination in the trial within trial PW5 said he asked the 3rd accused person to tell him what happened and this Court felt tarnished (sic) the testimony of PW5 where he said the 3rd accused volunteered his statement and the Court felt it was not safe to accept the statement of the 3rd accused as voluntary because of this contradiction especially with the well known role… of the police in torture

as a weapon of investigation. It is therefore worth noting that the same procedure which was used in the recording of the 3rd accused person was the same which resulted in the alleged confessional statement of the 2nd and 4th accused persons”.

Furthermore, in it’s judgment at p. 86 of the printed record, the lower Court held thus-
“PW5 who recorded the statements of the 2nd, 3rd and 4th accused persons testified that he followed the same procedure in obtaining the statements of the three accused persons which led to the rejection of the statement of the 3rd accused person because of inconsistencies in the evidence of PW5. Will this then affect the statements of the 2nd and 4th accused persons? I will venture to say that what affected the statement of the 3rd accused person …affects that of the 2nd and 4th accused persons”

It is very clear from the above findings that the lower Court after reviewing the evidence of PW5 at the trial within trial did not consider it safe to admit the confessional statement of the 3rd accused person before it and therefore rejected it, and went on to hold that what affected the statement of the 3rd accused person

equally affected the statements of the 2nd and the 4th accused persons. The 2nd accused person as earlier mentioned, is the appellant in this appeal. It is crystal clear that the lower Courts proceeded on the footing and sound reasoning encapsulated in that popular aphorism: ‘what is good for the goose is good for the gander’.
It is a fundamental principle of law that like cases should be treated alike. The maxim “treat like cases alike” is a maxim of considerable antiquity in legal history and probably dates to the time of Aristotle. The lower Court was therefore on sound footing for not giving any credence to the confessional statement of the appellant having not found it worthy to give any credence to the confessional statement of the 3rd accused person before it, which confessional statement of the said 3rd accused person it rejected. It is therefore surprising that the lower Court in the very next sentence after it held that “what affected the statement of the 3rd accused person affects that of the 2nd and 4th accused persons”, did a U-turn and went on to hold that the statement of the appellant had already been admitted in evidence and consequently

convicted him on it.
The lower Court was wrong to have accorded the confessional statement of the appellant with any credibility after it had held that what affected the statement of the 3rd accused person affected the 2nd accused’s i.e. the appellant’s statement. As held by the Supreme Court in the case of FRN V. IWEKA (2011) LPELR-9350 (SC), the law is trite that once a Court has taken a decision on an issue, it stands unless that decision is found to be perverse. In the case of FRN V. IWEKA (supra) the Supreme Court held that the trial Court was right that it did not, having admitted Exhibit 2A as a confessional statement, go on to say that the same was not admissible. In other words, the Supreme in that case approved that the trial Court rightly stuck to its position that the confessional statement was admitted and equally endorsed the refusal of the trial Court in that case to yield to and embrace a contrary position. In the same vein, the lower Court in this case should have stuck to its decision that what affected the 3rd accused’s confessional statement equally affected that of the 2nd accused, i.e. the appellant here. In the case of FRN V. IWEKA

(supra) the Supreme Court commended the trial Court and stated that the attitude of the trial Court was in tandem with the settled principle of law that a Court cannot approbate and reprobate at the same time. In this case the attitude of the lower Court was not in tandem with that settled principle. Themis “the lady of good counsel” whose image has come to symbolize Justice, is depicted holding the scales of justice in one hand and a sword in the other while blindfolded. Themis is not Janus, the ancient Roman god that is depicted as having two faces. Justice cannot be two-faced; it is no seesaw either. It takes a stance.

I therefore resolve issue 1 in favor of the appellant.

Issue 3 as will be recalled is whether upon proper evaluation of the evidence adduced by the Prosecution, the learned trial judge was right when he held that the Prosecution had proved the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt. Arguing this issue, Appellant’s learned counsel ‘Lanre Olaoluwa Esq, submitted that it was for the Prosecution to prove the case against the appellant beyond reasonable doubt. He referred to Section 135 (1) and

(2) of the Evidence Act, 2011. He referred also to the ingredients of the offence of armed robbery and submitted that all the ingredients of the offence must be established against the accused person, adding that in this case, there was no evidence, oral or otherwise, to show that anything was missing from the scene of crime. He submitted that it was only the retracted confessional statement of the appellant that points to the fact that money was stolen from the deceased. With regard to the offence of conspiracy to commit armed robbery, it was submitted that to properly ground the offence, there must be a meeting of minds of two or more people for the common purpose of committing a crime. He referred to Section 96 of the Penal Code Law Cap. 89 Laws of Northern Nigeria, 1963. He contended that there was nothing before the lower Court that established the offence of conspiracy and wondered how that Court found that the offence was proved. We were urged to resolve this issue in favor of the appellant.

In his argument on this issue, Abu Umar, Senior State Counsel, submitted that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt.

He cited a number of cases in support of his contention.

Going through the judgment of the lower Court, it is without a doubt that the conviction of the appellant was based on his confessional statement. In concluding his judgment, the lower Court held thus-
“…it is therefore my considered opinion that though there was a flaw in the procedure in obtaining the confession of the accused person in the case, I will treat same as technicality as the Supreme Court did in the case of OKEKE V. STATE (2003) FWLR Part 159 on page 1381 particularly on page 145. The accused are hereby convicted as charged”.

I have already stated that it was wrong for the lower Court to have relied on the appellant’s confessional statement having expressly held that what affected the confessional statement of the 3rd accused person equally affected the confessional statement of the appellant. Having so found and held, the lower Court should have stood on that decision and should not have gone against it by using the self-same appellant’s confessional statement to convict the appellant. By doing that, the trial Court was acting topsy-turvily. A Court cannot approbate and

reprobate at the same time. See FRN V. IWEKA (supra).

Issue 3 is also resolved in favor of the appellant. The result is that the appeal has merit and is allowed. The judgment of the lower Court is set aside. Consequently, the appellant is discharged and acquitted.

SAIDU TANKO HUSSAINI, J.C.A.: I have read the lead Judgment as prepared by my Lord Obietonbara Daniel- Kalio, JCA. I agree with the reasoning leading to the conclusion as he did.

The conviction and sentencing of the Appellant for the offences charged was based principally on the alleged confessional statement extracted from the Appellant. The trial Court itself in its findings faulted that confessional statement attributed to the Appellant and yet utilized same to convict him. He could not do so. A Court cannot afford to aprobate and reprobate on the same point or issue or at all. Courts must remain resolute and firm at all times. I say no more on this in the light of the fuller reasoning and conclusion as contained in the lead Judgment which I also hereby adopt. The appeal is allowed, and the Appellant discharged and acquitted.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in

draft the judgment of my learned brother, OBIETONBARA DANIEL-KALIO, JCA, where the issues in contention have been well encapsulated. I agree that this appeal has merit. I also discharge and acquit the Appellant.

Appearances:

BAYO ADETOMIWA For Appellant(s)

ABU UMAR SENIOR STATE COUNSEL, KATSINA STATE MOJ For Respondent(s)