BALA v. STATE (2020)

BALA v. STATE

(2020)LCN/14342(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Monday, June 29, 2020

CA/KN/619E/C/2018

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

ABDULLAHI BALA APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

For the offence of armed robbery to be proved, its ingredients must be proved beyond reasonable doubt. The ingredients constituting the offence of armed robbery are:-
a. that there was a robbery or series of them;
b. that it was an armed robbery; and
c. that the defendant accused of the armed robbery, participated in it.
See MAIGARI V. STATE (2010) 16 NWLR (PT. 1220) 439 and BOUN V. STATE (1985) 2 NWLR (PT.8) 465 and ALOR V. STATE (1997) 4 NWLR (PT. 501) 511.
It is the prosecution that has the onerous duty of proving the offence beyond reasonable doubt as the defendant has no duty of proving his innocence – IGABELE V. STATE (2006) 6 NWLR (PT. 975) 100. PER YAHAYA, J.C.A.

DEFINITION OF A CONFESSIONAL STATEMENT

A confessional statement, which is an admission by a defendant stating or suggesting that he committed the crime is, by Section 29(1) of the Evidence Act, relevant as one of the ways for which the guilt of an accused can be proved. For a conviction to be based on the confessional statement of the defendant, the Court must be satisfied, that it is direct, positive and unequivocal and made voluntarily, without the use of force, violence, threat or promise. The conviction can be based on the confessional statement alone, but it has to undergo some tests, before it can be ascertained as true – UBIERHO V. STATE (2005) 5 NWLR (PT. 819) 644 AT 655 and ONYENYE V. STATE (2012) 15 NWLR (PT. 1324) 586. The tests are:-
1. is there anything outside the confession to show that it may be true?
2. Is the confessional statement corroborated?
3. Are the relevant statements in it most likely to be true as far as they can be tested?
4. Did the defendant have the opportunity of committing the offence?
5. Is the alleged confession consistent with other facts that have been ascertained and established?

When the confessional statement of the Appellant was to be tendered in evidence, objection was raised on the ground of its contents, thus effectively stating that it was not the statement of the Appellant. The procedure is that when a defendant is confronted with a statement said to have been made by him, during the trial, he can either reject it on the ground that it is not his statement, he didn’t make it or contest that he did not make it voluntarily. In the former ground, the trial Court is entitled to admit it in evidence but determine whether it was made and the weight to attach to it. If it is on the ground of involuntariness, then the trial Court must conduct a trial-within-trial to determine its voluntariness, before it admits it – IKPASA V. BENDEL (1981) 4 S.C. 7 AT 28; GBADAMOSI V. STATE (1992) 7 NWLR (PT. 266) 465 and NSOFOR V. STATE (2005) ALL FWLR (PT. 242) 397 AT 415 and 417. PER YAHAYA, J.C.A.

WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON

It is also settled law that in a criminal trial the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Alao Vs State (2019) 17 NWLR (Pt. 1702) 501, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. PER YAHAYA, J.C.A.

DEFINITION OF A CORROBORATIVE EVIDENCE

Corroborative evidence merely means evidence that supports or strengthens the likely truth of the contents of the confessional statement and it does not have to be in the exact or very like words as those in the confessional statement -Okabichi Vs State (1975) NSCC 124, Dagayya Vs State (2006) 7 NWLR (Pt. 980) 637. Corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement – Kolade Vs State (2017) 8 NWLR (Pt 1566) 60, Abdullahi Vs State (2018) LPELR 44455(CA).PER YAHAYA, J.C.A.

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): The appeal herein is against the decision of the High Court of Justice Jigawa State delivered in Case No. JDU/11/2003 on the 18th March, 2005.

The facts of this case are that the Appellant as accused person, was charged along with eight (8) others before the Jigawa State High Court of Justice on two counts charge of Criminal conspiracy and Armed Robbery contrary to Section 5(b) and 1(2)(b) of the Robbery and Firearms (special Provisions) Act 1990. The Counts read, thus:-
FIRST HEAD OF THE CHARGE
“That you Danliti Audu, Auwalu Nadabo Dan Ashaka, Adamu Abubakar Lalala, Yahaya Aliyu, Shu’aibu Idris Boka, Abdullahi Bala, Maigoro Ali, Audu Umar alias Gulabe and Ali Muhammed on or about the 30th day of November, 2001 at Tsohuwar Gwaram in Gwaram Local Government Area within the Jigawa Judicial Division agreed to commit an illegal act to wit: attack with dangerous weapon the house of one Alhaji Ibrahim Umaru of Durumin Dishe Auyakawa, old Gwaram, beat him up and made away with some valuable properties including the sum of Eight Hundred Thousand Naira

(N800,000.00) thereby committed an offence punishable under Section 1(2)(b) of the Robbery and Firearms (special provisions) Act 1990.
SECOND HEAD OF THE CHARGE
That you Danliti Audu, Auwalu Nadabo Dan Ashaka, Adamu Abubakar Lalala, Yahaya Aliyu, Shu’aibu Idris Boka, Abdullahi Bala, Maigoro Ali, Audu Umar alias Gulabe and Ali Muhammed on or about the 30th day of November, 2001 at Durumin Dishe Auyukawa Quarters of old Gwaram in Gwaram Local Government Area within the Jigawa Judicial Division committed an illegal act to wit: while armed with various dangerous weapons attacked the house of one Alhaji Ibrahim Umaru of Durumin Dishe, Auyukawa, old Gwaram, beat him up and took away some valuable properties including the sum of Eight Hundred Thousand Naira (N800,000.00) and you thereby committed an offence punishable under Section 5(b) of the Robbery and Firearms (special Provisions) Act 1990.”
See pages 1-2 of the record of appeal.

In proof of the charges against the Appellant and the other co-accused persons, prosecution called five (5) witnesses and the Appellant in his defence testified for himself. The judgment of the trial

Court was delivered on the 18th March, 2005, wherein the learned trial Judge convicted all the nine (9) accused persons including the Appellant for the offences charged and sentenced them to suffer death by hanging by the neck until death.

Aggrieved with his conviction, Appellant filed an Amended Notice of Appeal on the 19th December, 2019. The Notice of Appeal contained two grounds of appeal;
GROUND ONE
The learned trial Judge erred in law when he convicted and sentenced the Appellant to death by hanging for the offence of conspiracy and armed robbery when the ingredients of the offences have not been proved beyond reasonable doubt by the prosecution.
PARTICULARS:
1. The learned trial Judge relied on the testimonies of PW1, PW2, PW3, PW4 and PW5 which fall short of the standard of proof in criminal trial to prove the guilt of the Appellant.
2. That none of the prosecution witnesses ever either by direct or circumstantial evidence proved that the Appellant was involved in the offences for which he was tried and convicted.
3. The learned trial judge wrongly relied on the evidence of PW1, PW2, PW3, PW4 and PW5 as corroborating

evidence when such evidence was never precised and assertive to prove the guilt of the Appellant.
GROUND TWO
The learned trial Judge erred in law when he relied on the confessional statements of the Appellant as the evidence of truth to convict the Appellant for the offences for which he was tried.
PARTICULARS:
1. That the trial Judge refused to attach weight to the testimonies of the Appellant to ascertain the truism in the confessional statement before convicting the Appellant.
2. That the trial Judge failed to see the contradictions in the confessional statement of the accused persons at the trial Court who were being tried together with the Appellant and the contradictions in the evidence of the prosecution witness before convicting the Appellant.

The Appellant’s brief of argument settled by Victor Agunzi Esq., was filed on 19th December, 2019 but deemed filed on the 20th January, 2020. The Respondent’s brief of argument on the other hand, was settled by Dr. Musa Adamu Aliyu Attorney-General Jigawa State. The brief was filed on 5th February, 2020. The appeal was heard before the Court on the 2nd June, 2020.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

From his three grounds of appeal, learned counsel for the Appellant distilled a lone issue for determination, to wit:
“Whether the learned trial Judge did not err in law when he convicted and sentenced the Appellant to death by hanging for the offence of conspiracy and armed robbery when the ingredients of the offences were not proved beyond reasonable doubt.”

For its part, the prosecution also formulated lone issue for determination as follows:-
“Whether the learned trial Judge was right to have held that the prosecution proved its case beyond reasonable doubt thereby convicting and sentencing the Appellant to death by hanging for the offences of criminal conspiracy and Armed Robbery.”

In considering this appeal, I will adopt the Appellant’s issue reproduced supra.

In arguing this issue, learned counsel for the Appellant submitted that from the totality of the evidence adduced, the learned trial Judge was in error when he found the Appellant guilty for the offences charged. He referred to pages 77 – 78 of the record of appeal. He submitted that the prosecution failed to discharge the burdensome

duty to prove the guilt of the Appellant beyond reasonable doubt. He referred to Section 131 of the Evidence Act and the cases of OMOKO V. STATE (2014) 3 WRN 96 AT 104 and OKOH V. STATE (2014) 31 WRN 53 AT 57 R. 1. He contended that the prosecution did not prove the offence of armed robbery against the Appellant herein as laid down by the Supreme Court in the case of OSETOLA V. STATE (2012) 12 WRN (PT. 1329) PAGE 251 AT 255.

Learned counsel submitted that proof beyond reasonable doubt of each of the elements of the offence of armed robbery by the prosecution is mandatory. He stated that the testimonies of the prosecution witnesses as contained on pages 7 – 22 of the record of appeal, was not compelling enough to ground a conviction of armed robbery and a sentence of death against the Appellant as done by the trial Court. He submitted that the testimony of PW1, PW2 and PW3 did not link the Appellant to the commission of the crime of armed robbery. Learned counsel maintained that the Appellant was not identified as one of the robbers who attacked PW2 on the night of the robbery and that there is no evidence led by the witnesses of the prosecution that

identified the Appellant as armed. He stated that the Appellant, according to his testimony, did not participate in the robbery attack. Counsel argued that the conviction by the trial Court based on the Appellant’s confessional statement was wrong as the Appellant during the trial, retracted his extra-judicial statement to the police.

It was further the submission of the learned counsel, that the testimonies of prosecution witnesses particularly of the eye-witnesses PW1, PW2, PW3, PW4 and PW5 were not substantial to ground the conviction and sentence of the Appellant for the offence of armed robbery as done by the trial Court. He placed reliance on the cases of UBANI V. STATE (2003) 4 NWLR (PT.809) 51 AT 53 PARAS. H-A; STATE V. ISAH (2012) 16 NWLR (PT. 1327) 613 AT 617.

Learned counsel maintained that where there is doubt in the prosecution’s case, the Court should resolve same in favour of the accused person. He relied on the cases of BASSEY V. STATE (2012) 12 NWLR (PT.1314) 209 AT 216; JOSIAH V. STATE (1985), NWLR (PT. 125) 138 PARA. G-H and Section 36(5) of the 1999 Constitution of the FRN (as amended). It was further submitted that

there was no iota of testimony of weapon identified or allegedly used by the Appellant by all prosecution witnesses, including the eye witnesses and victim of the armed robbery. He stated that Exhibit 1(a)(b), Exhibit 2, 3(a)(b) and Exhibit 4 that were tendered and admitted in evidence against the Appellant, had no connection with the case or the Appellant at all. He further argued that PW1, PW2 and PW3 who were victims and witnesses to the robbery attack did not identify the Appellant with the guns or exhibits. He further opined that the testimony of PW1 also did not mention any of the items admitted as exhibits against the Appellant as what was used to knock him down. Counsel also maintained that the testimony of PW4 and PW5 – who are police officers and also investigated the matter, did not allege the Appellant to be in possession of any weapon before or after the armed robbery. He contended that Exhibit 1(a)(b), exhibit 2, Exhibit 3(a) & (b) and Exhibit 4 were found in the course of the raid carried out by the PW4 and PW5 in the houses of the Appellant and his co-accused at the time the Appellant and co-accused were all detained at the police

station. Counsel further maintained that there was no independent witness to corroborate the fact that weapons admitted against the Appellant, were actually found in the house of either the Appellant or his co-accused at the time the Appellant and his co-accused were all detained at the police station. He further maintained that there was no evidence led to show that the Appellant or his co-accused were confronted with the alleged recovered weapon as to the ownership of the said weapons so as to link the Appellant or his co-accused with the said weapons/exhibits 1-4.

Learned counsel contended that the evidence of the prosecution witnesses is weak and should not and cannot ground conviction of charge of armed robbery against the Appellant which sentence is death by hanging. He submitted that the prosecution failed to meet the standard of proving the guilt of the Appellant beyond reasonable doubt as held in ODUTOLA V. MABOGUNJE (2013) 7 NWLR (PT. 1354) 522 AT 530 and ILODIGWE V. STATE (2012) 18 NWLR (PT. 1331) 1 AT 11 PARA. G.

In concluding, learned counsel urged the Court to upturn the decision of the trial Court by discharging and acquitting the Appellant.

The Respondent’s counsel in his argument, conceded to the position of the law that for the prosecution to succeed and secure a conviction in the case of armed robbery, the ingredients that there was in fact robbery; that the robbery was an armed robbery; and that the accused person was the armed robber must be proved altogether beyond reasonable doubt. He placed reliance on the cases ofOSETOLA V. STATE (2012) 17 NWLR (PT. 1329) 251 SC, OLAYINKA V. STATE (2007) 9 NWLR (PT. 1040) 561 and ALABI V. STATE (1993) 7 NWLR (PT. 307) 511. He stated as held in MICHEAL V. THE STATE (2008) 13 NWLR (PT. 1104) 361 AT 384 PARA. E – F that proof beyond reasonable doubt does not mean proof beyond all the shadow of doubt. He submitted that proof beyond reasonable doubt could be attained through any of the following; confessional statement; circumstantial evidence; or evidence of eye witness. He referred to the cases of IGABELE V. STATE (2006) 6 NWLR (PT. 975) 100 and OJO V. FRN (2008) 11 NWLR (PT. 1099) 67.

On proof of the 1st ingredient of the offence of armed robbery stated above, learned counsel submitted that it is not in dispute that all

the prosecution witnesses and the confessional statements of the Appellant Exhibit 6(b)((i) and 6(b)(ii) testified to the effect that there was an armed robbery in the house of Alhaji Ibrahim Umaru on the date in question. He stated that this fact was not challenged by the Appellant. He submitted that the learned trial Judge was right in his finding at page 73 of the record of appeal.

On the second ingredient, that the robbery was armed robbery, learned counsel submitted that the prosecution had successfully proved this ingredient as held by the learned trial Judge on page 74 of the record of appeal.

On the third ingredient, learned counsel submitted that it has been successfully proved through Exhibits 6(b)(i) and 6(b)(ii) (the confessional statement of the Appellant). He referred to Section 28 of the Evidence Act and the case of OKANLAWON V. STATE (2015) 17 NWLR (PT. 1489) 445; that a free and voluntary confession alone can sustain conviction against its maker. He urged the Court to hold that the learned trial Judge was right in his finding on page 75 of the record of appeal.

Learned counsel contended that from the totality of the evidence

led by the prosecution, it has successfully proved all the ingredients of the offence of armed robbery against all the nine accused persons including the Appellant. He urged the Court to hold that the finding of the trial Court at page 77 of the record of appeal is right.

On the Appellant’s submission that the retraction of confessional statement by the Appellant ought to have created doubt in the mind of the Court which should have been resolved in favour of the Appellant, learned counsel replied that even where an accused retracted or denied making the statement same should be admitted and if it is found to be free and voluntary, it can alone, ground conviction. He placed reliance on the cases of KARIMU SUNDAY V. THE STATE (2017) LPELR – 42259, NWACHUKWU V. STATE (2007) 17 NWLR (PT. 1062) 65 AT 66 PARAS. H – A; SOLOLA V. STATE (2005) 11 NWLR (PT. 937) 460 and IDOWU V. STATE (2000) 7 SC (PT. 11) 50. Further on the case of STATE V. ISAH relied upon by the Appellant, learned counsel submitted that considering the voluntary nature of the confessional statements of all the convicts, including the Appellant and the testimonies of all the

prosecution witnesses which are evidence outside the confessions, the confessional statement of the accused at hand satisfied the requirements of a confessional statement enshrined under ISAH’S CASE (SUPRA). He submitted that the learned trial Judge was right at page 67 – 72 of the record of appeal to have relied on the authorities in ALARAFE V. THE STATE (2001)5 NWLR (PT. 705) and QUEEN V. CHUCHUJI OBIASA (1962) 1 ALL NLR 651. He urged the Court to hold that the requirements in ISAH’S CASE (SUPRA) were positively satisfied in the case at hand and that the Appellant’s argument based on ISAH’S CASE cannot be of any assistance to him. Learned counsel also distinguished the ISAH’S case with the instant case. He stated that in ISAH’S case there was no evidence of even a single eye witness, it was only IPO’s that testified and tendered the confessional statements, whereas, in the case at hand, three eye witnesses testified, followed by two IPO’s. He submitted that in the present case, evidence of the three prosecution’s witnesses corroborated and strengthened the confessional statements of the accused

persons. Learned counsel also distinguished the case of UBANI V. STATE (SUPRA) relied upon by the Appellant with the instant case. That in UBANI’S CASE (SUPRA), the Court used the testimonies of the prosecution witnesses and the surrounding circumstances to convict the accused persons for murder and the decision was upheld by the Court of Appeal. In that case there was no reference to any confessional statement. He stated that in the case at hand, the learned trial Judge only used the testimonies of the prosecution witnesses to further fortify the confessional statement of all the accused persons. He referred to pages 67 – 72 of the record of appeal.

On the Appellant’s submission that weapons admitted as exhibits were recovered in the absence of the accused persons and were not identified by any of the prosecution witnesses or the accused persons themselves, thereby making them wrongly admitted, learned counsel submitted that contrary to the assertions of the Appellant, some of the accused persons were the ones that led the investigation team to their respective houses from where the weapons were recovered. He referred to the testimony of

PW5 on pages 19-20 of the record of appeal. He submitted that the evidence of PW5 was never contradicted or successfully challenged during cross-examination and having laid proper foundation for its tendering, the Appellant has no legal reason whatsoever to make the above argument. Counsel also referred to confessional statement of the Appellant.

It was the submission of the learned counsel that assuming without conceding that the weapons admitted in evidence were illegally obtained, that could not render them inadmissible in evidence, as evidence relevant to a case is admissible however obtained. He referred to the case of TORTI V. UKPABI (1984) 1 SCNLR 214 and NDI OKEREKE ONYUIKE V. IHF PEOPLES OF LAGOS STATE (2013) AELR (CA).

Learned counsel further submitted that contrary to the argument of the Appellant that the learned trial Judge failed to consider the testimony of the Appellant in which he denied any knowledge of the armed robbery incidence, the learned trial Judge considered every piece of evidence before him including the ones given by all the accused persons in their defense. He referred to page 75 of the record of appeal.

In concluding, learned counsel urged the Court to discountenance the argument of the Appellant and resolve this lone issue in favour of the Respondent. He also urged the Court to dismiss the appeal and affirm the decision handed down by the trial Court that convicted and sentenced the Appellant.

In an effort to prove its case, the prosecution tendered and relied on the confessional statement of the Appellant in Exhibits 6 (b)(i) and (ii) and the testimonies of the

prosecution witnesses. A confessional statement, which is an admission by a defendant stating or suggesting that he committed the crime is, by Section 29(1) of the Evidence Act, relevant as one of the ways for which the guilt of an accused can be proved. For a conviction to be based on the confessional statement of the defendant, the Court must be satisfied, that it is direct, positive and unequivocal and made voluntarily, without the use of force, violence, threat or promise. The conviction can be based on the confessional statement alone, but it has to undergo some tests, before it can be ascertained as true – UBIERHO V. STATE (2005) 5 NWLR (PT. 819) 644 AT 655 and ONYENYE V. STATE (2012) 15 NWLR (PT. 1324) 586. The tests are:-
1. is there anything outside the confession to show that it may be true?
2. Is the confessional statement corroborated?
3. Are the relevant statements in it most likely to be true as far as they can be tested?
4. Did the defendant have the opportunity of committing the offence?
5. Is the alleged confession consistent with other facts that have been ascertained and established?

When the confessional

statement of the Appellant was to be tendered in evidence, objection was raised on the ground of its contents, thus effectively stating that it was not the statement of the Appellant. The procedure is that when a defendant is confronted with a statement said to have been made by him, during the trial, he can either reject it on the ground that it is not his statement, he didn’t make it or contest that he did not make it voluntarily. In the former ground, the trial Court is entitled to admit it in evidence but determine whether it was made and the weight to attach to it. If it is on the ground of involuntariness, then the trial Court must conduct a trial-within-trial to determine its voluntariness, before it admits it – IKPASA V. BENDEL (1981) 4 S.C. 7 AT 28; GBADAMOSI V. STATE (1992) 7 NWLR (PT. 266) 465 and NSOFOR V. STATE (2005) ALL FWLR (PT. 242) 397 AT 415 and 417. The defendant may also accept that it is his statement and he made it voluntarily, in which case it would be admitted without a trial-within-trial. Here, the trial Judge correctly admitted the statements and they were marked as Exhibits 6(a)(i) for the Hausa version and 6(b)(ii) for

the English translated version.
When a defendant resiles his confessional statement, it is desirous to have some independent evidence to corroborate the confessional statement, in order to determine its truthfulness and voluntariness – STATE V. ISAH (2012) 16 NWLR (PT. 1327) 613 and HASSAN V. STATE (2001) 15 NWLR (PT. 735) 184.
In the instant appeal, the relevant portion of Exhibit 6(b)(ii) reads:-
“…About one year ago, one Sani Sabo of Barebari quarters introduced me to armed robbery operations. About ten months ago, I was in our quarters when Sani Sabo met me. He hinted me to meet him by 2300hrs after we have assembled, he informed us that we are going to attack the house of one Alhaji Ibrahim of Durumin Dishe quarters, that there is money in that house. Having assembled, we proceeded as follows: (1) Sani Sabo (2) Myself Abdullahi Bala (3) Maigoro (4) Yakubu Babe (5) Yahaya (6) Salisu Tigana (7) Boka (8) Audu Gulabe (9) Lalala. We proceeded. As soon as we arrived at the house, Yakubu Babe climbed into the house and opened the Iron gate. We woke Alhaji up and demanded that he should give us money. We got plenty money in a sack.

After we beat Alhaji Ibrahim… We met four women. We left Alhaji lying down after the operation… Among us, those armed with guns are:- (1) Yahaya (2) Boka (3) Yakubu Babe and Sani Sabo. While I was armed with a stick. After the operation, Sani Sabo gave me the sum of N3,000.00 as my share.”
There is evidence before the Court, in the form of the above quoted confessional statement of the Appellant, that the Appellant and others who are his co-accused persons, met and agreed to rob PW1 in his house. They went to his house, and carried out their agreement by robbing him of money, their common objective. This was an illegal act and they perpetrated the dastardly act whilst they were armed with guns and stick. Thus the offence of conspiracy was isolated in that more than two people agreed to do an illegal act and they did so, in furtherance of the agreement and each of them participated in the illegality –AWOSIKA V. STATE (2010) 8 NWLR (PT. 1198) 49.

On the offence of robbery, the Appellant had narrated how it was carried out. He stated the time they met and proceeded to the home of PW1 and the name of the person who climbed the wall and

opened the gate, stating that it is an iron gate. He gave the names of those who went to the house and the kinds of guns they were armed with. He stated how they beat PW1, got plenty money in a sack and left PW1 lying down after the operation. He mentioned the other women who were in the house of PW1, four of them. He stated the amount of money given to him as his share of the robbed amount. The confessional statement shows that there was armed robbery by the Appellant and his co-conspirators. The details contained in the confessional statement could only be recounted by someone who participated in the armed robbery. It is a serious indication that the confessional statement is true. Since it placed the Appellant at the scene of crime, it is established that he had the opportunity to commit the armed robbery. Has the confessional statement been corroborated? The evidence of PW1 is that he was woken up from sleep by a number of people who demanded money from him. They beat him and he fell unconscious. His money was stolen. He was not crossed-examined and his testimony is unchallenged. It corroborates the confessional statement of the robbery in his house by a

number of people and was left lying down after the operation. PW2 in her evidence stated that she saw many people come to attack them. They threatened to shoot her if she did not give them money. They stole the money and left PW1 unconscious. Her evidence is unchallenged as she was not cross-examined. It corroborates the confessional statement that a number of people perpetrated the robbery. The fact that they threatened to shoot her shows they were armed, thus corroborating the confessional statement that they stole money and even shared it. The evidence of PW3 was unchallenged and it corroborated the confessional statement, in that one of the attackers was holding a stick. The Appellant said he was armed with a stick. The evidence of PW5 is that he was the police officer who recorded the voluntary statement of the Appellant. When he found it to be confessional, he took the Appellant to his superior officer, who after confirming from the Appellant that it was his statement and was given voluntarily, signed it. He said, the Appellant signed the confessional statement by writing his name in alphabets. I have looked at it. It contains the name of the Appellant

in alphabets. It also contains the endorsement of the superior police officer. Further, PW5 stated that they recovered two local pistols, a bow, a dane gun, a short dane gun and sticks, from the different houses of the Appellant and his co-accused persons. His statement therefore tallies and corroborated the confessional statement that the accused persons were armed with guns and sticks and that the Appellant made the confessional statement voluntarily. The confessional statement of the Appellant had thus been corroborated in materials particular and it is consistent with other facts stated in the evidence of PW1, PW2, PW3 and PW5, which have been ascertained.

The Appellant gave evidence as DW6 and denied any knowledge of the robbery. There is nothing in his evidence, that has countered in any material point, the overwhelming evidence led by the prosecution. The story that he was tortured by the police, is of no moment since he was not objecting to the admissibility of the confessional statement because it was not voluntary. Other independent evidence, has established the truthfulness of the confessional statement and that it was voluntarily given.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

On the contention that the exhibits were recovered in absence of the accused person including the Appellant, I agree with the learned Attorney-General for the Respondent, that the evidence of PW5, gives the lie to that assertion in that he said that it was some of the accused persons that led the investigating team to their houses where the exhibits were recovered. Therefore what was the overwhelming need to confront the Appellant with them?

It is enough that they were carrying arms during the robbery and it is not fatal that the Appellant was only carrying a stick. He was together with others who were armed during the robbery operation.

From the record therefore, it is clear that the trial Judge had meticulously evaluated the evidence led before him. He considered the evidence of the Appellant and other accused persons and at page 75, found:-
“…I have said that the general denial of everything by the accused persons in the witness box without going further, is an afterthought and I do not believe their evidence in the witness box. They only came to the witness box to tell cooked lies.”

The trial Judge saw the Appellant in the box and watched him give evidence. He did not believe him. As it was the prerogative of the trial Judge to hear, watch witnesses and believe or disbelieve them, this Court cannot interfere. There is no perversity shown. We cannot upturn the finding – NOR V. TARKAA (1998) 4 NWLR (PT. 544) 130 AT 139. The ingredients of the offences of conspiracy and armed robbery have been established and proved beyond reasonable doubt by evidence which is cogent, direct, compelling and unequivocal, leading to the irresistible conclusion that it was the Appellant and others that committed same. I resolve the lone issue in favour of the Respondent and against the Appellant. In the result, this appeal lacks merit in toto and I dismiss it. I affirm the conviction and sentence of death by hanging passed on the Appellant in the Judgment of the High Court Birnin Kudu delivered on 18th March, 2005 in CASE NO. JDU/11C/2003.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya, JCA. His Lordship has ably considered and resolved all the issues in

contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.

This appeal arose out of a criminal trial. The Appellant was charged, along with others, for the offences of conspiracy to commit armed robbery and armed robbery. It is settled law that the prosecution always bears the burden of proving all the essential ingredients of a crime beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt.

It is also settled law that in a criminal trial

the Prosecution may prove the guilt of the defendant either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive – Alao Vs State (2019) 17 NWLR (Pt. 1702) 501, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1.

In the present case, the Respondent relied on the confessional statement of the Appellant as well as on the eye witness accounts of first, second and third prosecution witness and the evidence of the two Investigating Police Officers, the fourth and fifth prosecution witnesses. The Appellant objected to the tendering of the confessional statement on the ground that it was not his statement and was not made by him. The lower Court was obligated in the circumstances to test the veracity of the confessional statement before relying on it, and to do so by subjecting it to the six-way test laid down by the case law authorities and by seeking for evidence outside the confessional statement that point to the truth of its contents- Onyenye Vs State (2012) LPELR 7866(SC), Ofordike Vs State (2019) LPELR 46411 (SC), Alao Vs State

(2019) 17 NWLR (Pt 1702) 501. In discharging the obligation, the lower Court found in the judgment that the testimonies of the first to the fifth prosecution witnesses corroborated the contents of the confessional statement in material particulars and pointed to their truth and to the fact that it was made by the Appellant. The lower Court convicted the Appellant on the strength of both the confessional statement and the evidence of the prosecution witnesses.

In contending against the findings of the lower Court, Counsel to the Appellant argued that the evidence of the first to the fifth prosecution witness were not compelling and substantial enough, on their own, to ground the conviction and sentence of the Appellant for armed robbery. Counsel thereafter suggested there from that the evidence of the five prosecution witnesses could thus not serve as proper corroborative evidence for the confessional statement of the Appellant so as to sustain the finding of the lower Court. Counsel, with respects obvious missed the essence of corroborative evidence for a confessional statement. Corroborative evidence merely means evidence that supports or

strengthens the likely truth of the contents of the confessional statement and it does not have to be in the exact or very like words as those in the confessional statement -Okabichi Vs State (1975) NSCC 124, Dagayya Vs State (2006) 7 NWLR (Pt. 980) 637. Corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement – Kolade Vs State (2017) 8 NWLR (Pt 1566) 60, Abdullahi Vs State (2018) LPELR 44455(CA).
The Supreme Court has stated that the nature of the corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission- Queen Vs Obiasa (1962) 2 SCNLR 402, Achabua Vs The State (1976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt 255) 525, Ubierho Vs State (2005) 5 NWLR (Pt 919) 644, Nguma Vs Attorney General, Imo State (2014) 7

NWLR (Pt. 1405) 119, State Vs Gwangwan (2015) 13 NWLR (Pt. 1477) 600, Famuyiwa Vs State (2018) 5 NWLR (Pt. 1613) 515, Sale Vs State (2020) 1 NWLR (Pt. 1705) 205. In other words, pieces of evidence which on their own might not constitute cogent and credible evidence to sustain the charge against an accused person, can amount to adequate corroborative evidence of the Contents of his confessional statement. Thus, it has been held by the Supreme Court that even medical evidence of the nature of injury inflicted on a deceased in a murder trial can act as corroborative evidence of a confessional statement of an accused person- Gira Vs State (1996) 4 NWLR (Pt 443) 375 and Igri Vs State (2012) 16 NWLR (Pt. 1327) 522.
A read through the testimonies of the first, second, third and fifth prosecution witnesses shows clearly that they supported and strengthened the correctness of different parts of the contents of the confessional statement of the Appellant and they connected him to the commission of the offences charged. They constituted adequate corroborative evidence of the confessional statement of the Appellant. The law is that a trial Court can convict an accused

person on his confessional statement, notwithstanding that it has been retracted, so long it finds evidence outside the confessional statement which corroborates the contents thereof – Nsofor Vs State (2004) 18 NWLR (Pt 905) 292, Ubierho Vs State (2005) 5 NWLR (Pt 919) 644, Igba Vs State (2018) 6 NWLR (Pt 1614) 44, Eyop Vs State (2018) 6 NWLR (Pt 1615) 273. The contents of the confessional statement as reproduced in the lead judgment are a direct, cogent and unequivocal admission by the Appellant of the part he played in the commission of the offences charged and, as stated earlier, they were adequately corroborated by the evidence of the first, second, third and fifth prosecution witness. The finding of the lower Court that the Respondent led credible evidence to prove the case against the Appellant beyond reasonable doubt was thus correct.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in this appeal and I hereby dismiss same. I affirm the judgment of the High Court of Jigawa State delivered in Case No JDU/11C/2003 by Honorable Justice Aminu Sabo Ringim on the 18th of March, 2005 as well as the

conviction of and sentence passed on the Appellant therein.

AMINA AUDI WAMBAI, J.C.A.: I have read before now, in draft form the judgment of my learned brother ABUBAKAR DATTI YAHAYA JCA just delivered. I entirely agree with his reasoning and conclusion that there is absolutely no merit in this appeal. I have nothing useful to add. I join my learned brother in dismissing the appeal and affirming the conviction and sentence of the Appellant passed by the lower Court on 18th March, 2005 in Charge No. JDU/11C/2003.

Appearances:

Victor Agunzi For Appellant(s)

Dr. Musa Aliyu A.G. Jigawa State, with him, Aliyu Hassan For Respondent(s)