USMAN SALAHUDEEN v. THE STATE
(2013)LCN/6419(CA)
In The Court of Appeal of Nigeria
On Monday, the 16th day of September, 2013
CA/K/1/C/2012
RATIO
WHETHER A RETRACTION OF A CONFESSION IPSO FACTO RENDERS A CONFESSION INADMISSIBLE
By law, even when the Accused person denies or tries to deny the voluntaries of his confessional statement, it is not less so, where the court finds it to be direct, positive and voluntary disclosure of facts, personal to the Accused person, and which facts are consistent with the other evidence adduced in the case, suggesting the accused had the opportunity to commit the offence or take part in it. Eke vs. State (2011) 3 NWLR (pt.1235) 589; Blessing vs. FRN (2013) 12 WRN 36 at 67. Oseni vs The State (2012) LPELR SC 14/2011 (2012) 37 WRN 1; (2012) NWLR (pt. 1293) 315 held 8
“Retraction of a confession does not ipso facto render the confession inadmissible. A confession does not become inadmissible merely because the accused person denies having made it. A confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession. The fact that the accused person took the earliest opportunity to deny having made the statement may lend weight to his denial, but it is not in itself a reason for ignoring the statement. (Itule v. Queen (1951) 2 SCNLR 183; R v. Sapele (1952) 2 FSC 24 refered to.) (Pp. 372-373, paras. H-C) Per NGWUTA J.S.C. at page 373 paras. C-D.” PER ITA G. MBABA, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
THERESA N. ORJI ABADUA Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
Between
USMAN SALAHUDEEN Appellant(s)
AND
THE STATE Respondent(s)
ITA G. MBABA, J.C.A. (Delivered the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court in Suit KDH/KAD/19C/2011, delivered by Kurada J; on 22/5/2012, wherein the learned trial judge convicted the Appellant for offence of armed robbery and sentenced him to death by hanging, pursuant to section 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Acts, Cap R11 LFN, 2004.
On the 3rd day of August, 2011, the Appellant (as accused person in the court below) was arraigned on a one-count charge of Armed Robbery. The amended charged, as framed by the Respondent against the Appellant, was;
“That you Usman Salahudeen (with Eric and Morphy now at large) on or about the 1st day of April 2010 at about 22.30hrs while armed with gun, attacked and robbed one Paulina Diagi (Mrs) at No. 4 Chukun Close Tirkania, Kaduna of the following items;
(1) Seven Hundred thousand Naira (N700,000.00) and;
(2) Two Nokia handsets and thereby committed on offence punishable under section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, CAP R11 Laws of the Federation of Nigeria.”
The said amended charge was dated 27/7/2011, and signed by P. Y. Zamani Esq (Prosecutor), Ministry of Justice, Kaduna.
Appellant pleaded ‘not guilty’ to the charge, which made the prosecution to call two (2) witnesses, to prove the charge. At the close of the prosecution’s case, Appellant testified in his defence as DW1, and called two others as witnesses. The trial court believed the evidence of the prosecution, convicted and sentenced the Appellant to death, hence this appeal.
Appellant filed his Notice of appeal on 31/7/2012 and disclosed five (5) grounds of appeal, as per pages 43-46 of the Records of Appeal, as follows;-
GROUND ONE
The learned trial judge erred in law in that he convicted and sentenced the appellant to death on the basis of Exhibit 1, the alledged confessional statement of the appellant, despite the evidence of the PW1 that the appellant was tortured by the police to confess to the commission of the offence.
PARTICULARS OF ERROR
i. The trial judge did not properly and adequately test the truth of the said exhibit 1 by examining them critically in the light of the evidence of the PW1.
ii. It is not the evidence of the PW1 that the accused person was tortured at Police Operation Yaki Office,
iii. Rather, the PW1 in her evidence-in-chief stated clearly thus;
“immediately he went out I went out shouting “thief” and people pursued them and they caught the accused and took him to the police operation Yaki, who took him to State C.I.D. they came and took me to and I identified the accused as one of those who came and robbed me. He tried to deny but when police tortured him he confessed that they were one that came rob me.”
GROUNDTWO
That the learned trial judge erred in law in that he convicted and sentenced the appellant to death for Armed Robbery when the three constituent elements of the alleged crime were not proved beyond reasonable doubt by the prosecution as amongst other ingredients of the offence, the identity of the accused allegedly involved in this matter and which the PW1, allegedly identified without an identification parade being conducted.
PARTICULARS OF ERROR
i. The plea of not guilty recorded for the appellant connotes that every allegation of fact contained in the charge including the identity and the name of the alleged Armed Robber in the charge denied by the appellant.
ii. The burden of proving the identity and the name of the accused beyond reasonable doubt by virtue of the denial of the charge by the appellant rests squarely on the prosecution.
iii. The identity of the appellant was not proved in this case to be one the robbers who took part in the purported armed robbery with which the appellant is charged,
iv. That none of the persons whom the PW1 claimed to have pursued and caught the appellant came to testify at the lower court on this issue.
v. The prosecution did not call one Musa El-Yaqub listed in the amended charge as one of those that pursued and arrested the accused,
vi. The prosecution also did not call CPL Adamu Ahmed listed in the proof of evidence accompanying the amended charge as a witness to be called to give evidence that as a member of operation Yaki Patrol Team he arrested the appellant and handed him over to the C.I.D.
vii. The Appellant denied involvement in the alleged robbery.
viii. The PW1 under cross-examination stated that she never know the appellant before the night the incident of armed robbery occurred.
ix. The PW1 testified that the robbers ordered her to lie down, which order she obeyed, and when she tried to raise her head, she was beaten with cutlass meaning therefore that she only had the opportunity of a glance of the Arm Robbers or a longer observation of them made in difficult condition.
x. Even though PW1 said under cross-examination that there was full light in the house, yet she was not able to notice the colour of the jacket the Appellant purportedly wore.
xi. In the premises the decision of the learned trial judge regarding the identity of the appellant in this case is not based on sustainable grounds as all the essential elements of the alleged robbery have not been proved beyond reasonable doubt by the prosecution.
xii. That failure of the police to conduct identification parade in the circumstance as to identify of the Appellant is fatal to the Respondents case.
GROUND THREE
The learned trial judge erred in law in that he convicted the appellant for armed robbery when the weapon allegedly used for the robbery which was allegedly registered by PW2, was not in evidence before the learned trial judge.
PARTICULARS OF ERROR
i. The case for the prosecution in this charge relates to armed robbery.
ii. PW2 gave evidence to the effect that he registered a toy gun as Exhibit which could not have been so registered without having been first recovered in course of investigation of his case.
iii. The said Toy gun which was registered as per the evidence of the said PW2, was never tendered before the said learned trial court.
iv. In the peculiar circumstances of this case and in the light of the evidence adduced, the non-tendering of the said toy Gun in evidence is fatal to the prosecution’s case in this matter.
GROUND FOUR
The learned trial judge erred in law in relying on the evidence of the PW2 to convict the appellant of the offence charged despite the fact that the said within (sic) is not a witness of the truth.
PARTICULARS
i. Sgt. Musa Ali is listed in the proof of evidence accompanying the amended charge as one of the Policemen that investigated the robbery incidence.
ii. Though Sgt. Musa Ali began his evidence, he could not continue due to illness.
iii. It is the same Sgt. Musa Ali (a policeman) that the PW2 (also a policeman) under cross-examination denied knowledge of.
GROUND FIVE
That the decision is unreasonable and cannot be supported having regard to the evidence adduced in this matter.”
Appellant filed his brief of arguments on 23/1/2013 and distilled four (4) Issues for determination, namely;
(i) Whether the prosecution proved the three constituent elements of the offence of armed robbery against the appellant beyond reasonable doubt to warrant his conviction and sentence (Ground 2).
(ii) Whether the learned trial judge was right to have convicted and sentenced the appellant as charged on the basis of Exhibit 1, the alleged confessional statement, despite the evidence of PW1 that the Appellant was tortured by the police to confess to the crime. (Ground 1).
(iii) Whether the learned trial Judge was right to have convicted and sentenced the appellant when the weapon, allegedly used for the robbery and registered by the PW2 was not in evidence at the trial. (ground 3)
(iv) Whether in convicting and sentencing of the Appellant for the offence charged, the learned trial judge rightly relied on the evidence of PW2. (Ground 4)”
The Respondent, on its part filed its Brief of argument on 20/2/2013 and adopted the issues distilled by Appellant for determination.
Arguing issue 1, Learned Counsel for the Appellant, Tajudeen Oladoja Esq, who settled the brief, stated the trite principles of law that the burden is on the prosecution to prove the case against the accused person, beyond reasonable doubt, and that the same does not shift. He relied on section 36(5) of the 1999 Constitution, as amended, which guarantees the accused person the presumption of innocence, until he is proved guilty.
Counsel also relied on the Evidence Act, section 137 and on the case of ALONGE vs. I.G.P. (1959) NSCC 169. He added that, where at the close of evidence an essential ingredient of the offence has not been proved, adoubt would have been created as to the guilt of the accused person and he shall be discharged and aquitted. He relied on the cases of Mustapha vs. State (2007) 12 NWLR (pt. 1049) 637; Chukwu vs. State (2007) 13 NWLR (pt. 1052) 430; Abdullahi vs. State (2008) ALL FLWLR (pt. 432) 1047 at 1049, and on sections 135 and 137 of the Evidence Act, Cap 112, LFN 1990.
Counsel also relied on the case of Bello vs. State (2007)10 NWLR (pt. 1043) 563; Oyebola vs. State (2008) ALL FWLR (pt. 402) 1175 and Bozin vs. State (1985) 2 NWLR (pt.8) 465. For the particulars that must be proven in the offence of armed robbery, namely-
(i) That there was robbery or series of armed robbery;
(ii) That the robbery or each of the armed robbery was an armed robbery and;
(iii) That the accused person was one of those who took part in the armed robbery
Counsel added that each of the essential ingredients must be proved, beyond reasonable doubt and where any of those ingredients is lacking the prosecution would have failed to prove the case; that the ingredients co-exist and are conjunctive, not disjunctive, and must be established together. He asserted that the consequence of failure to establish any of the ingredients of the offence beyond reasonable doubt, is that the prosecution cannot be said to have proved its case against the accused person, thus creating room for reasonable doubt, which must be resolved in favour of the accused person, entitling him to acquittal. He relied on the case of Utuk vs. State (2010) 34 WRN 171 at 179; Majekodunmi vs. The Nigerian Army (2002) 3 NWLR (pt. ) 138 at 147; Saidu vs. State (2009) 29 WRN 86 at 124; Shandy vs. The State (2004) ALL FWLR (pt. 223) 1955 at 1968-1969.
Counsel conceded that there was robbery, in this case, on or about 1/4/2010 at No. 4 Chukun Close, Trikania, Kaduna, and that the same was accompanied with dangerous weapons, as discernable from the evidence of PW1, but that what is in dispute relates to whether the Appellant participated in the robbery, and whether the PW1 properly and sufficiently recognised the Appellant as one of the robbers. He relied on the case of Sunday Ivdidi vs. The State (2007) ALL FLWR (pt. 381) 1617 and Archibong vs. The State (2006) 14 NWLR (pt. 1000) 349, on the need for proper identification of the accused person, that he is the same person seen at the locus criminis. He submitted that the Appellant was not properly identified to be one of the robbers. He relied on the case of Isiekwe vs. The state (1999) 9 NWLR (pt. 617) 43 at 61 and referred us to the evidence of PW1 on page 14 of the Records, where he said-
“immediately he went out I went out shouting Thief! Thief!’ and people pursued them and caught the accused and took him to the Police, Operation Yaki.”
Counsel submitted that from the above evidence, it is clear that Appellant was not apprehended at the scene of crime, as was the case in Isiekwe vs. The state (supra); that identification parade was very vital in the instant case.
Counsel further argued that it was not safe to convict the accused on the eye witness account of PW1 alone, though he conceded that the law is trite that what matters is the quality of evidence adduced, not the number of witnesses, and that the prosecution is not obligated to call a host of witnesses to prove commission of offence. He argued that the prosecution had listed, in the proof of amended charge, three other witnesses but failed to call them; that the failure to call them was fatal to the case of the prosecution, considering the flow of evidence of the PW1 and PW2, on the identification of the actual offender; that identification parade ought to have been conducted and failure to do so left the evidential burden of proof beyond reasonable doubt undischarged. He relied on the cases of Okeke vs. State (1995) 4 NWLR (pt. 392) 676 at 688; Madagawa vs. State (1988) 5 NWLR (pt. 92) 60; Alab vs. State (1993) 7 NWLR (pt. 307) 511; Chukwu vs. State (supra); Bozin vs. State (supra); Okosi vs. State (1982) 1 NWLR (pt. 100) 645 and Adamu vs. State (1986) 3 NWLR (pt. 32) 865.
Counsel, specifically, relied on the guidelines laid down by the Supreme Court in the case of Mbenu vs. The state (1998) 3 NWLR (pt. 84) 615 at 625 [cited in Ansha vs. State (supra)] as adopted by Widgery, CJ in R. vs. Turnbull (1975) 3 ALL ER 549 at 551 – 552.
“… The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How the witness had the accused under observation? At what distance? In what light? Was the observation impeded in any way, for example, by posing traffic or a press of people? How often?
If only occasionally, had he any special reason for remembering the accused? How much time lapsed between the original observation and the subsequent identification to the police?”
He also relied on the cases of Iliyasu Musa vs. The State – CA/K/72/95 delivered on 8/4/87 Per Wali JCA (as he then was), on the need for evidence of identification to be strictly and carefully examined by the court before it is accepted and relied upon, where a witness claims to have identified an acccused person for the first time; that the court had said-
“where a witness testifies that the saw he accused for the first time during the commission of the offence, prudence requires that such evidence of identification should be strictly and carefully examined by the court before it is accepted and relied upon; more especially when the incident happened in the night.”
He urged us to resolve the issue in favour of the Appellant, relying on the case of Abdullahi vs. State (supra), that where the trial court’s conviction of an accused person is based on inconclusive identification evidence the Appellate court has the power to reverse such findings and judgement.
On Issue 2, Counsel submitted that in convicting and sentencing the Appellant the trial court relied on Exhibit 1, the alleged confessional statement of the Appellant; that the alleged confessional statement was not voluntary, as Appellant was tortured to make it. Counsel relied on the evidence of PW1 on pages 14 and 15 of the Records. He submitted that a confessional statement will only be admitted in evidence if it is shown to be free and voluntary, not induced by threat or promise. He relied on the case of Amacheree v. Nigeria Army (2003) NWLR (Pt.807) 256 at 259.
Counsel submitted that the trial court held that the Appellant was actually beaten, but not at the state C.I.D., where the Exhibit 1 was made; that the beating had nothing to do with the making of Exhibit 1.
He submitted that “PW1 neither said that the appellant was tortured in her presence by Operation Yaki Police on 1st day of April, 2010, nor said that she was not at the state C.I.D. when Exhibit 1 was recorded on the 6th of April, 2010.”; that her evidence was that the appellant was taken to state C.I.D. from Operation Yaki and after he was taken there, the Operation Yaki team came and took her to the State C.I.D. where he was tortured, when he denied being involved in the armed robbery, and which torture led to his confession. Counsel submitted that facts must flow from acceptable evidence, before application of law. He relied on the case of Agbor Ele vs. The state (2006) ALL FWLR (pt. 329) 849 at 873. He referred us to the evidence of DW1, which he said strengthened the fact that the appellant was tortured at the State C.I.D. (not by Operative Yaki Police) and that Exhibit l was made immediately after the torture (See page 22 of the Records).
Counsel submitted that the prosecution failed to produce the medical report of the treatment of the Appellant in the hospital where he was taken for treatment after the beatings; that if tendered, the same would have established the evidence of his torture; that failure (to tender the medical report) should be presumed against the Respondent, pursuant to section 149 (d) of the Evidence Act. He also relied on the case of Onuwaje vs Ogbeide (1991) 3 NWLR (pt. 178) 147; Chief Udo vs. Chief Okupa (1991) 5 NWLR (pt. I91) 365; UBA Ltd vs. Ibhafidon (1994) 1 NWLR (pt. 318) 90; Ogwuru vs. Cooperative Bank of Eastern Nigeria Ltd (1994) 8 NWLR (pt.365) 685; Tsokwa Motors (Nig) Ltd vs. Awoniyi (1999) 1 NWLR (pt. 586) 199.
On the requirement of the law that confessional statement must be voluntary and not induced, Counsel relied on the case of The State vs. Ajayi (1997) 5 NWLR (pt. 505) 382 at 395; Udo vs. The state (1972) 8- 9 SC 234, where the Supreme Court held that-
“Before a statement can be referred to as confessional statement, it must satisfy the following-
(i) Whether there is anything outside the confession to show that it is true;
(ii) Whether it is corroborated;
(iii) Whether the accused is one who has the opportunity of committing the crime;
(iv) Whether the confession is possible;
(v) Whether the confession is consistent with other proved and ascertained facts.”
Counsel concluded that, going by the evidence of PW1 and DW1 the Exhibit does not pass the test of admissibility of confessional statement, and ought to be discountenanced by us.
He urged us to resolve the issue in the Appellant’s favour.
On issue 3, Counsel submitted that to sustain the conviction of Appellant, the prosecution had a duty to tender the offensive weapons allegedly used in the robbery; that failure to tender same casts a doubt on the guilt of the Appellant, and that doubt ought to be resolved in favour of the Appellant. He relied on the case of Alabi vs. The State (supra); Martins vs. State (1997) 1 NWLR (pt 481) 355.
Counsel however, conceded that there no principle of law requiring the tendering of weapons of an alleged robbery to establish the guilt of the accused, but said that the need to tender such a weapon depends on the character and circumstances of the particular case. Counsel noted the evidence of the PW2 (Police Officer), that the weapon in this case, a toy gun, was registered as an exhibit, after the recovery. He submitted that the same should have been tendered to establish the guilt of the Appellant, considering the fact that offence of armed robbery attracts capital punishment. He relied on the case of Tanko vs. The State (2008) 16 NWLR (pt. 1043) 564, on the need for trial court not to convict until all the ingredients are clearly established. He argued that the failure to tender the toy gun casts doubt on the prosecution’s case- Awosika vs State (2010) 18 WRN 149 at 181; Afolabi vs. State (2010) 19 WRN 117 at 135.
He urged us to presume section 149 (d) of the Evidence Act against the Respondent- that if the toy gun had been produced it would have turned against the Respondent and that was why it was not tendered.
On issue 4, Counsel submitted that the PW2, under cross examination, said that he did not know Sgt Musa Ali and Daniel John (both of whom were listed on the proof of information as having participated in the investigation of the case); that PW2 also said that the Appellant made one statement in the anti robbery section. He submitted that the trial court did not take advantage of seeing and hearing the witness before him, as it would have come to the irresistable conclusion that PW2 lied for denying knowledge of Sgt Musa Ali, had the court made use of the advantage of seeing and hearing the PW2.
He referred us to the case of Fatoba vs. Ogundahunsi (2003) 323 at 341, and said that the PW2 was not a witness of truth and his evidence should have been discountenanced. He urged us to interfere with the decision of trial court, and come to a just conclusion, in the circumstances, considering the untruth in the PW2’s evidence, denying knowledge of the said Sgt Musa Ali, who took part in investigating the case. He urged us to look at the entire Record and come to a just decision, relying on the case of Chevron Nig Ltd vs. Onwugbelu (1996) 3 NWLR (pt.437) 404 at 417; Fumudoh vs. Aboro (1991) 9 NWLR (pt. 213) 210. Counsel urged us to allow the appeal.
The Respondent’s Counsel, Sakinatu Hassan Idris (Mrs), who settled the brief of the Respondent, arguing issue 1, appreciated the trite principles of law, that the prosecution carries the burden of proof, and that beyond reasonable doubt. She, however, submitted that the prosecution is not required to discharge the burden of proof beyond all shadow or all iota of doubt. She relied on the section 138 of the Evidence Act and on the case of Agbo vs. State (2006) 6 GCCR 48 at 87- 88; Emoga vs. State (1997) 1 NWLR (pt. 483) 615 at 622; State vs. Danjuma (1997) 5 NWLR (pt. 506) at 529; Akinyemi vs. State (1999) 6 NWLR (pt. 607) 449; Onobogu vs. State (1974) 9 SC1.
She added that by the court’s interpretation, the ‘doubt’ envisaged must be such arising from the evidence before the court and not from the imagination or conjecture or inference not supported by evidence. She relied on the case of Olalekan vs. State (2001) 18 NWLR (pt. 746) 822; Tortim vs. State (1997) 2 NWLR (pt. 490) 711 and Kalu vs. State (1998) 4 NWLR (pt 90) 503.
Counsel agreed with the Appellant on what constitutes ingredients of offence of armed robbery and submitted that proof of the offence could be established by three different methods, namely-
(a) by direct evidence;
(b) by circumstantial evidence;
(c) by confessional evidence, relying on the case of Emeka vs. State (2002) 14 NWLR (pt.734) 666 at 683. She submitted that in the instant case, two methods of proof were employed – eye witness account and confessional evidence, to prove the guilt of the Appellant.
On the issue of identification of the offender, Counsel submitted that it is not in all cases that identification parade is necessary to pick the accused; that where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may not be necessary. Furthermore, he said, where an accused person, by his confession, has identified himself, there would be no need for any further identification parade.
Counsel added that, since identification is the means of establishing whether a person charged with an offence is the same person who committed the offence, the identification can only be essential, where-
(a) The victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
(b) The victim or witness was confronted by the offender for a very short time.
(c) The victim, due to time and circumstances might not have had a full opportunity of observing the features of the Accused. Archibong vs. State (2006) 5 SC (pt ) 1; (2004) 1 NWLR (pt. 855) 488; Ukpabi vs. State (2004) 11 NWLR (pt. 884) 439.
Counsel argued that identification parade is not the only way of establishing the identity of an accused person in relation to the offence charged; that where the witness had ample opportunity to identify the accused, a parade is not necessary; that recognition of accused person, as in this case, may be more reliable than identification. She found on the case of Eyisi vs. The state (2000) 12 SC (pt. 1) 24; (2001) 8 WRN 1.
On issue 2 – Appellant’s confessional statement (Exhibit 1) and application of same, Counsel for the Respondent submitted that the same has satisfied the requirements of an extra-judicial statement as, per the KIM’s case; that when a confessional statement is tendered it is to show proof that it was made, not as proof of its contents, and that is why it is open to the accused to deny or confirm and affirm the said statement, or else to admit the making of it, but attack it on the grounds of it not being a voluntary statement. Godwin Ikpasa vs. The state (1991) 9 SC 7 at 29; Sanusi vs. The state (1984) 10 SC 166 at 199; Nsofor vs. The state (2002) vol. 2 CAC 124.
Counsel submitted that the back bone of this case is the testimony of PW1 and PW2, as well as Exhibit 1, the confessional statement of the Appellant, where he admitted taking part in the robbery. Counsel noted that the confessional statement of Appellant (Exhibit 1) was admitted in evidence without objection and submitted that the same is positive, direct, voluntary and consistent, construed from all the evidence adduced in the case, showing that the appellant had opportunity to commit the offence. He relied on the case of Kanu vs. The State (1952) 14 WACA 30 at 32; Philip Ekpenyong vs. The State (1991) 6 NWLR (pt. 200) 683 at 704.
Counsel further submitted that the prosecution is not bound to call every witness and that failure to call the persons listed as witnesses is not fatal to the prosecution’s case, since the evidence of PW1 and PW2 were believed and were enough to justify the conviction of the Appellant. He relied on the case of Oforkete vs. State (2000) 7 SC (pt. 1) 80 at 83; Ihemegbulam Onyegbu vs. State (1995).
Counsel added that what matters in law is the quality of evidence called not the number. Alabi vs. State (1993) 7 NWLR (pt. 307) 511 at 526-527; Okonofua vs. State (1981) 6-7 SC 1 at 18; Adaje vs State (1976) 6-9 SC 18 at 28. He urged us to resolve the Issues 1 and 2 against the Appellant.
On Issues 3 and 4 (which Respondent’s Counsel argued together), she submitted that though the offensive weapons were not tendered by the prosecution in this case, there was cogent and credible evidence that Appellant robbed violently, while armed with offensive weapons; that the trial judge was right to convict and sentence the Appellant; that the requirement to tender the offensive weapons may be dispensed with, if there are credible eye witnesses to the crime, who also testify at the trial. She relied on the case of Gbadamosi vs. The State (1991) 6 NWLR (pt. 196) 182 at 206.
Counsel added that the requirement to tender the offensive weapon used at the robbery is dispensible, because of the possibility of the accused person doing away with the offensive weapon or hiding the same after the commission of the offence; that once there is compelling evidence that the accused committed the offence, failure to tender the weapons is immaterial. She urged us to resolve the issues against the Appellant and to dismiss the appeal.
RESOLUTION OF ISSUE
The four (4) Issues distilled by the Appellant for the determination of this appeal were adopted by the Respondents. But none of the 4 issues accommodated the 5th ground of appeal, as Appellant did not relate the said ground to any issue in his marriage of issues to the grounds of appeal. The said ground is therefore deemed abandoned and is hereby struck out. See the case of Dakolo vs. Dakolo (2002) 11 NWLR (pt. 777) 99; Essang vs. Aureol Plast Ltd (2002) 17 NWLR (pt.795)155; Ifegwu vs. UBN Plc (2011) ALL FLWR (pt. 573) 2021; see also BAWA vs. ALIYU & Anor- CA/K/293/2006, an unreported decision of this Court, delivered on 26/4/2013 page 6 to 7 thereof.
Appellant’s issue 1 and 2 shall be taken together. In Issue one Appellant queried whether the constituent elements of offence of armed robbery had been proved against the Appellant, beyond reasonable doubt, while Issue 2 relates to the Exhibit 1 – confessional statement of the Appellant whether it was right to convict and sentence the Appellant on the basis of the Exhibit 1, despite PW1’s evidence that Appellant was tortured to confess to the crime.
Counsel on both sides have agreed on the trite principles of law, that the burden of proof is resident on the prosecution, to establish the guilt of the Appellant beyond reasonable doubt, and in doing so, that the constituent elements of the offence of armed robbery are established, namely-
(i) That there was a robbery or series of robberies;
(ii) That the robbery (or each of the robberies) was done with arms; and
(iii) That the accused person (Appellant) was one of those who took part in the armed robbery.
Of course, the three ingredients must co-exist. Oyebola vs. State (2003) ALL FLWR (pt. 402) 1175, ratio 5; Bozin vs. State (1985) 2 NWLR (pt.8) 465; Bello vs. The State (2007) 10 NWLR (pt. 1043) 564; Rasaki vs. The State LPELR – 4859 (CA); Joshua vs. State (2011) 3 NWLR (pt. 589); (2011) LPELR – 1133 (SC).
Appellant in his argument in paragraph 4.6 of the brief submitted, that “it is not in doubt that there was robbery on or about the 1st day of April, 2010 at No. 4 Chukun Close, Tirkania and that same was accompanied with dangerous weapons, as discernible from the evidence of PW1.” What counsel for Appellant said is in dispute is “whether, Appellant participated in the robbery and whether PW1 properly and sufficiently recognised the Appellant as one of the robbers.”
Apart from arguing that there was no identification parade, to identify the Appellant as one of those who took part in the robbery, Appellant’s Counsel did not show how the PW1’s identification or recognition of the Appellant as one of those who robbed her could be faulted. In her evidence-in chief, the PW1 had told the trial court-
“I know the Accused. I knew him when he and his group came to rob me on 1/4/2010. I was in my house with my children, that evening. We were in the sitting room, watching film, and I was counting money I received … the money was contributions I collected from customers.
I was about to pork (sic) the money which was N700,000.00, when the Accused and his gang just pushed my door and entered the sitting rom (sic). My daughter stood up and asked me if I knew this man… I asked why he did not knock before entering. Before I could raise my head up, the accused pointed a gun at me and said we should all lie down and should not shout. We obeyed and they packed the money. When I tried to raise my head, they beat me with cutlass. The Accused was still holding the gun and asking me where the safe was. I told him I don’t have a safe. They continued to beat me. When the beating was too much, I stood up and entered my bedroom and showed him where the safe was. My husband who was sick was asking me who the people were. I told him they were armed robbers. They were three. The others ran out and the Accused followed… immediately, he went out, I went out shouting ‘thief’ ‘thief’ and people pursued them and they caught the Accused and took him to the state C.I.D. They came and took me to and I identified the Accused as one of those who came and robbed me. He tried to deny but when the police tortured him he confessed that they were the ones that came to rob me.”
Under cross examination, PW1 said-
“I was present when the police tortured the Accused … I never knew the Accused before that night … they were not wearing masks. There was full light in the house … After the Accused was caught, he was conveyed in the some vehicle with me to the police Headquarters by the police. I saw the Accused clearly because he was the one leading the others and he was the one holding a gun …
The Accused was wearing a long jacket. I was not able to notice the colour of the jacket but I know it was a long jacket… The Accused held a gun and pointed at me while the others operated.” (See pages 14 and 15 of the Records).
I had to reproduce the evidence of PW1, extensively, to show its consistency and the different encounters which could enable the PW1 to identify or recognise the Accused person, on being apprehended. I think from the time the robbers pushed the door and entered the sitting room of the PW1, to the time they bolted away, after being taken to the bedroom, the PW1 had sufficient time to see and interact with the robbers, especially the Accused person whom she said was pointing a gun at her and was issuing out orders, especially as they were not masked and there was full light in the house. Also immediately the robbers ran away the PW1 raised alarm and ran after them and when Appellant was caught, he was taken together with the PW1 by the police on Operation Yaki vehicle to the station, where she identified the Accused person, describing the dress he wore.
The learned trial court had described the PW1 as “a credible and truthful witness”, who even admitted that the Accused was tortured in her presence, by the police. It is a further finding of the trial court that the Accused was actually beaten; that the Accused also testified that those who arrested him beat him; but that the Accused was not beaten at the State C.I.D. where the PW2 recorded Exhibit 1 on 6/4/2010 but at the Operation Yaki’s office, five days before the case was transferred to the State C.I.D.; that the beating had nothing to do with Exhibit 1, and cannot vitiate it. (See page 37 of the Records).
Of course, it is not unusual that the Accused was beaten up at the time he was apprehended or arrested (and I think he was even lucky, that he was not lynched) at that point, especially as PW1, whom they robbed, was there to identify him! (Many, in such circumstances, do not live to have the benefit of fair trial, as the Appellant, due to mob action, as suspects are unfortunately, often attacked in what is usually termed “jungle justice” at the shout of “thief!” “thief!” by a victim of robbery. The PW1 was therefore a truthful witness, when she admitted seeing when the Accused was tortured or beaten up on the day she accompanied the Accused in the police vehicle to the station to identify the Accused. That was on the 1/4/2010, when the incident occurred and Accused was arrested!
At the time the Accused made the statement (Exhibit 1) on 6/4/2010 to the PW2, I do not think, PW1 was there and that there was any pressure on him, as it must have dawned on him that the fact of his involvement in the robbery had been clearly established by police investigation. A close study of the contents of Exhibit 1, shows that it was a direct, positive and original account of the role the Appellant played in the evil adventure, and he appeared to have stated the same in a relaxed atmosphere of self confidence as what he said (on pages 37 to 38 of the Records) tend to portray! Hear him:
“… I hail from Kwara State, Yoruba by tribe, I am on aluminium fabricator by profession at artillery in kakuri under Mr. Jegede Wahi. This is two years I am serving him, I only attended Samam Primary school Kakuri, Kaduna; after my primary education I left to Kwara State where I obtained my SSCE in Marimi international Eyes School, I could remember on the 3/04/2010 myself and Eric Effiong late and morphy we meet at Royal Christian beer parlor situated at Galadimawa street Kakuri Kaduna where we plant (sic) our strategist to carried (sic) out a robbery from a woman who Emmanuel told us that the woman is collecting daily contribution from people that she usually come home with money inside her bag then we all agree (sic) to carried (sic) out the operation myself Eric Effiong, morphy and Emmanuel. We were four in number morphy was holding cutlass then Eric Effiong was holding axe I was holding knife while Emmanuel hold toe (sic) gun as we were about to enter the house Emmanuel told us that he cannot be able to entered with us inside the house because the woman knew him very well he gave me the toe (sic) gun myself and Eric Efiong with morphy entered inside the room and off the light it was around 2130hrs. We meet her counting the money on a table. We pork (sic) the money and put it inside her hand bag and left the woman raised alarm. We started running scattered ourself in different road Eric and morphy escape with the money I did not know the amount because we did not count the money on the process of escaping I was arrested at Tirkaniya Primary School by area boys and handed over to the Police on the process of investigation I lead the police to arrest Eric Effiong in his house. While morphy and Eric escape to unknown destination with the money I did not know their houses but Eric is living in Angwa Sunday morphy is living at Romi this is my first time of going for robbery operation with them that is all I have to state.”
By law, even when the Accused person denies or tries to deny the voluntaries of his confessional statement, it is not less so, where the court finds it to be direct, positive and voluntary disclosure of facts, personal to the Accused person, and which facts are consistent with the other evidence adduced in the case, suggesting the accused had the opportunity to commit the offence or take part in it. Eke vs. State (2011) 3 NWLR (pt.1235) 589; Blessing vs. FRN (2013) 12 WRN 36 at 67. Oseni vs The State (2012) LPELR SC 14/2011 (2012) 37 WRN 1; (2012) NWLR (pt. 1293) 315 held 8
“Retraction of a confession does not ipso facto render the confession inadmissible. A confession does not become inadmissible merely because the accused person denies having made it. A confession contained in a statement made to the police by a person under arrest is not to be treated differently from any other confession. The fact that the accused person took the earliest opportunity to deny having made the statement may lend weight to his denial, but it is not in itself a reason for ignoring the statement. (Itule v. Queen (1951) 2 SCNLR 183; R v. Sapele (1952) 2 FSC 24 refered to.) (Pp. 372-373, paras. H-C) Per NGWUTA J.S.C. at page 373 paras. C-D.”
The appellant took the earliest opportunity when the statement was offered in evidence to deny having made it. A mere denial without more, even at the earliest opportunity, cannot on the facts of this case, lend weight to the denial. The denial is bore statement bereft of any supporting fact and standing only on the ipse dexit of the appellant. As stated earlier, the statement was not challenged on ground of involuntariness and the trial court rightly declined the invitation to conduct trial within trial.”
I hold that the Exhibit 1 passed for confessional statement, especially as the Appellant did not object to the tendering of the same, or call for a trial-within-trial, to contest the voluntariness of the statement. The Appellant’s Counsel, at the time of tendering the statement of Appellant, did not oppose the admission of the document, and did not call for a trial within trial, to test the veracity of it. He merely said, on page 19 of the Record- ‘The Accused said it is not his statement’, which did not make much sense, (as the same did not translate to allegation of obtaining the statement under inducement)!
And it is normal for accused person to reject the statement he made to the police, when testifying in court, thinking that will be rejected by the court.
The law is that where Accused person alleges that the statement he made to the police was obtained by threat, duress or inducement, and so was not voluntary, he has to raise objection to the same at the point of tendering it, as exhibit, so that a trial-within-trial can be conducted to ascertain the admissibility of the document (confessional statement). See the case of Okoroh vs. The State (1990) NWLR (pt. 125) at 136, where the Supreme Court said-
“Where an accused person is defended by counsel, it is the duty of such counsel to object to the tendering of a statement purportedly made by the accused, on the ground that the statement was not voluntary before a mini trial becomes necessary. Where, as in the instant case, such counsel failed to play his part and the statement was admitted he cannot properly raise the absence of mini trial on appeal.” See also Ogbeneovu vs. FRN (2013) 11 WRN 144, at 182-183.
It is also obvious that Exhibit 1 was corroborated by the evidence of PW1 and PW2. Even where the Appellant confused the date of the offence in his said statement, that can be seen as an error which does not vitiate the clear evidence of the fact that the offence took place on 1/4/2010, and this is consistent with the evidence of both the prosecution and of the defence – even the Accused admitted he was arrested on 1/4/10.(He could not have committed the offence on 3/4/10, when he was in the police custody, having been arrested on 1/4/10 for the offence).
Even without Exhibit 1, it is obvious that the evidence of PW1, alone, was sufficient to locate the Appellant with the offence, which evidence dismantled the lame defense of alibi, which Appellant cooked up initially, before surrendering in Exhibit 1. I hold that Appellant was sufficiently linked with the armed robbery by the evidence of PW1, and that the statement of the Appellant (Exhibit 1), put a final seal on the proof of guilt of the Appellant.
It has been stated, several times, that a confessional statement is the best and strongest evidence of guilt, as by it the Accused person surrenders himself and closes every door of defense against himself.
See the case of Yusuf vs. The State (2012) LPELR – 7878 (CA); see also Oji vs FRN (2013) ALL FWLR (pt. 668) 920, where we held, relying on Tobi JSC in the case of Akpa vs. State (2008) ALL FWLR (pt. 420) 644-
“A confession is the strongest evidence of guilt on the part of accused, stronger than the evidence of an eye witness, because the evidence, borrowing the daily axiom, comes out from the mouth of the horse, who is the accused.” See also Omojuh vs FRN (2008) ALL FWLR (pt. 415) 1656.
I therefore resolve issues 1 and 2 against the Appellant, as there was ample evidence to support the decision of the trial court convicting the Appellant, and the Exhibit 1 being unassailed.
Issues 3 and 4 were argued together by the Appellant. Issue 3 challenged the conviction of the Appellant, when the offensive weapon used in committing the offence was not produced and tendered as exhibit in court. Issue 4 was whether in convicting and sentencing the Appellant, the learned trial judge rightly relied on the evidence of PW2.
Of course, the law is well developed on the point, to the effect that-
“The failure to produce the murder weapon, during the trial, is inconsequential”
See the case of Garba vs. State (2000) 4 SC 157.
The Respondent’s Counsel had argued that failure to tender the offensive weapons used in the commission of the crime is immaterial, once there is cogent, reliable and authentic oral evidence, which the court believes and admits; he relied on the case of Gbadamosi vs. The State (1991) 6 NWLR (pt. 196) 182. I think that accords with the law.
In this case, where the Appellant, as per paragraph 4.6, admitted that the robbery took place and “that same was accompanied with dangerous weapons, as discernible from the evidence of PW1,” it becomes a mere grandstanding to undue technicality, to argue that the offensive weapon, said to have been registered by the police, as exhibit, was not tendered at the trial, and to seek the presumption of section 149 (d) of the Evidence Act against the prosecution. The weapon which was registered by the police and not produced was a toy gun. But beside the said gun, evidence disclosed that the robbers also used cutlasses and iron bar. See the evidence of PW1 (earlier reproduced in this judgement). Appellant himself, in the Exhibit 1, stated how he got the gun which he used, and also mentioned cutlass, axe and knife (used by his other colleagues), (Page 38 of the Records).
In the case of Olayinka vs. State (2007) 9 NWLR (pt. 1040) 561; (2007) LPELR – SC 279/2003, the Supreme Court held, per Tobi JSC-
“In order to convict for armed robbery, the prosecution must prove that-
(a) There was an armed robbery
(b) The accused was armed
(c) The accused who was with the arms, or arm, participated in the robbery which makes it armed robbery.
Once the prosecution proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person. This is because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence to exculpate himself from criminal responsibility.”
On the issue of the challenge on the use of the evidence of the PW2, Appellant’s quarrel was that PW2 in his evidence-in-chief said Sgt Musa Ali collapsed in the witness box, because of ill health, but denied knowing him (Sgt Musa Ali) and Daniel John under cross examination the said persons (Sgt. Musa Ali and Daniel John) were listed at the back of the information as prosecution witnesses and both were said to have participated in the investigation of the case at the police headquarters; that PW2, in the circumstances, could not be a witness of truth and his testimony ought to have been discountenanced.
The Respondent’s position was that the mere fact that PW2 denied knowing Sgt Musa Ali did not, in itself render him an untruthful witness; that the trial court had the benefit of assessing the demeanour of the PW2, and did so, rightly.
There is some problem in the Records of Appeal with respect to the name of the actual person who investigated the case. On page 17 of the Records, the first person who testified as PW2, was Musa Ali. He only introduced himself and the preliminaries of the case and collapsed in the witness box. That was on 16/2/12 and the case was adjourned for continuation, because of his ill-health. On 24/2/12, the next adjournment date, the prosecution Counsel applied to expunge the evidence of Musa Ali, taken as PW2; that he was still sick and had not recovered. The application was granted, unopposed and John Daniel, stepped in to testify as the Investigation Police Officer (IPO) and he did, saying he was the Sgt. that investigated the case; that no other person did.
It is apparent the police had something to hide concerning Sgt. Musa Ali, who broke down in the witness box, as opposed to Daniel John, with respect to who, in fact, investigated the robbery case. Sgt. Musa Ali may have been presented to impersonate the real I.P.O., Sgt. Daniel John, on the first day of the evidence, due to the pressure to hear the case on 16/2/12. No wonder the first PW2 broke down in the box.
That discrepancy did not, however, in my view, affect the credibility of the police investigation report presented by the PW2, which agreed with the evidence of PW1, and even tallied with that of the Appellant (DW1), that he was arrested on 1/4/10 and investigated in relation to the offence. I do not therefore see how PW2’s denial of knowledge of the Sgt. Musa Ali can affect the substance of the glaring evidence that linked the Appellant with the offence, even if the PW2 was not telling the truth when he denied knowing Sgt. Musa Ali.
It is important to note that in his evidence in court Appellant said he “heard people shouting ‘thief’, ‘thief” and that was at about 10pm to 10.30pm. He said: “The people being pursued ran into our midst at the Football centre. One of the people that were pursuing the thieves held me and was shouting that I was one of them and started beating me”
That tends to support the evidence of PW1 as to the time of the robbery operation, the running out by the robbers and her running after them shouting ‘thief!’ ‘thief’!! And people pursuing the robbers and apprehending the Appellant!
Since Appellant claimed to have seen the persons being pursued, who ran into the midst of those trooping out of the Football viewing Centre, he had a duty to point at them, if he was not one of them and was picked in error. Of course, the other football fans would have risen up to his defense, that he was one of those viewing the match with them; not the fleeing thief. That would be expected, if there was any truth in the account by DW1 in court. And he would have called evidence from the football viewing centre to corroborate him. Instead, Appellant called DW2 and DW3 who could only explain his whereabout, up to 7,30pm, and not where he was as at the time of his arrest!
Appellant, as no one else could have gotten such detail about him and his gang members, if Appellant did not volunteer them. I can therefore not fault the findings and position of the trial court on the issues 3 and 4, which are hereby resolved against the Appellant.
On the whole, I hold that the appeal is devoid of merit and is hereby dismissed.
Parties shall bear their respective costs.
DALHATU ADAMU, J.C.A. CFR.: I have the privilege of reading the draft of the lead judgment delivered by I.G. Mbaba JCA in this appeal. I fully agree with the reasoning and the conclusion reached in the said lead judgment that the appeal is devoid of any merit and should be dismissed. I accordingly hereby also dismiss it and affirm the judgment of Justice Kurada delivered on 22/5/2012.
THERESA NGOLIKA ORJI-ABADUA, J.C.A.: This is an appeal against the judgment of the High Court of Kaduna State presided over by G. l. Kurada, J, delivered on the 22nd May, 2012 convicting the Appellant of the offence of armed robbery punishable under section 1(2) (a) of the Robbery and Fire Arms Act, 2004 and sentencing him to death by hanging by the neck till he be dead or by causing him to suffer death by firing squad as the Governor of Kaduna State may direct in accordance with section 1(3) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, Laws of the Federation, 2004.
The amended charged dated the 27th July, 2011 preferred against the Appellant and in respect of which he entered a plea of not guilty on 3/8/11 reads thus:
“The Charge
That you Usman Salahudeen (with Eric and Morphy now at large on or about the 1st day of April, 2010 at about 22.30 hrs while armed with gun attacked and robbed one Paulina Diagi (Mrs) at No. 4 Chukun Close Tirkania, Kaduna of the following items: (1) Seven hundred Thousand Naira (700,000) and (2) Two Nokia handsets and thereby committed an offence of armed robbery punishable under section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11 Laws of the Federation of Nigeria, 2004.”
Trial was fully conducted by the lower Court during which the Appellant called three witnesses to convince the Court about his innocence. The Respondent however presented two witnesses, i.e. the complainant and one police Sergeant attached to the Anti-Robbery Section of the Kaduna State CID. At the conclusion of the trial, the lower Court held thus:
“The evidence of P.W.1 and Exhibit 1 have completely broken down the alibi raised by the accused. I reject the evidence of the accused person that he was at a Football Viewing Centre at about 10.30 pm. When the P.W. 1 was robbed. I accept the evidence of the P.W.1 that she saw the accused person among the robbers that robbed her. I hold that the prosecution has proved its case against the accused beyond reasonable doubt as required by law and I find the accused person guilty of armed robbery punishable under section 1 (2) (a) of the Robbery and Firearms Act, 2004, I hereby convict him accordingly.”
Upon his dissatisfaction with the said pronouncement, the Appellant filed his Notice of Appeal dated the 3rd July, 2012. The same was based on four grounds of appeal.
The parties filed their respective Briefs of Argument. The Appellant propositioned four issues which were adopted by the Respondent. The issues are as follows:
“i. Whether the prosecution prove the three constituent elements of the offence of armed robbery against the appellant beyond reasonable doubt to warrant his conviction and sentence.
ii. Whether the learned trial Judge was right to have convicted and sentenced the appellant as charged on the basis of Exhibit 1, the alleged confessional statement, despite the evidence of PW1 that the Appellant was tortured by the Police to confess to the crime.
iii. Whether the learned trial Judge was right to have convicted and sentenced the appellant when the weapon allegedly used for the robbery and registered by the PW2 was not in evidence at trial.
iv. Whether in convicting and sentencing of the appellant for the offence charged, the learned trial Judge rightly relied on the evidence of PW2.”
The submissions of respective Counsel for the parties have been summarized in detail in the leading judgment of this Court. I do not think it will serve much purpose reiterating them herein. I have studied in great depth the four issues distilled by the Appellant and I think they can conveniently be determined together which I am inclined to do herein.
In considering the four issues presented by the Appellant, it ought to be restated that the onus in criminal proceedings as prescribed by the Evidence Act is on the prosecution to prove beyond reasonable doubt that the person charged with the commission of an offence clearly committed that offence without leaving any room for doubt. It is well established that in criminal trials, the guilt of the accused person could be proved by (a) the confessional statement of the accused person; (b) circumstantial evidence; or (c) evidence of eye witness.
Then, where the offence allegedly committed is an armed robbery, the prosecution to secure the conviction of the accused, must establish the ingredients of the offence, that is to say:
(a) there was a robbery or a series of robberies;
(b) each robbery was an armed robbery; and
(c) the accused was one of those who took part in the robbery or in the company of those who committed the robbery.
The prosecution in the instant appeal called only two witnesses at the Court below to establish its case against the Appellant, i.e. the victim, and, the Police Sergeant at the Kaduna State CID to whom the case was assigned on 6/4/2010 for investigation.
P.W.1, testified in chief and under cross-examination as follows:
“P.W.1, Christian, affirmed, speaks English. My name is Mrs. Paulina Diagi. I live in No. 4 Chikun Close Tirkaniya.
I am a business woman. I know the Accused. I knew him when he and his group came to rob me on 1/4/2010. I was in my house with my children, that evening. We were in the sitting room, watching Film and I was counting the money I received. After I finished counting the money, around after Ten P.M. the money was contribution I collected from customers. I was about to park the money which was N700,000 when the Accused and his gang just pushed my door and entered the sitting rom (sic). My daughter stood up and asked me if I knew this man. My other daughter stood up. I asked why he could not knock before entering. Before I could raise my head up, the Accused pointed a gun at me and said we should all lie down and should not shout. We obeyed and they packed the money. When I tried to raise my head, they beat me with cutlass. The accused was still holding the gun and asking me where was the safe. I told him I don’t have safe. They continued to beat me. When the beating was too much I stood up and entered my bedroom and showed him where the safe was. My husband who was sick was asking me who were the people. I told him they were armed robbers. They were three, the others ran out and the Accused followed. They took two Handsets – Nokia.
One belonging to me and one to my daughter.
Immediately he went out I went out shouting “thief” “thief” and people pursued them and they caught the Accused and took him to the police operation Yaki, who took him to State C.I.D. They came and took me to and I identified the Accused as one of those who came and robbed me. He tried to deny but when the police tortured him he confessed that they were the ones that came to rob me.”
The first P.W.2 presented by the prosecution but who did not complete his testimony and who was not cross-examined began his evidence thus:
“P.W. 2, Moslem, affirmed, speaks English. My name is Musa Ali. I am a police officer. I live in Barnawa. l know the Accused. He was arrested on 1/4/2010 for robbery, armed robbery at Tirkaniya and brought to police Hqrs. We cautioned him and l took his statement. He was arrested by police Patrot team. They attacked one Mrs. Paulina Diagi and robbed her of the sum of N700,000. I recorded his statement cautionary.”
This evidence was discarded as the first PW.2 was not produced by the prosecution on the next date for continuation of his testimony. He was stated to have been indisposed.
However, the second P.W.2, Police Sgt Daniel John, testified thus:
“P.W. 2, Christian, affirmed, speaks English. My name is Daniel John. I live in No. 17 Unguwan Dodo Sabon Tasha, Kaduna. I am a policeman Sgt attached to the Anti-Robbery Section of State CID Kaduna. I know the Accused. He was brought before me in connection with a case of armed robbery. On 6/4/2010. I was on duty in the office when a case of armed robbery was transferred from operation Yaki office to the Anti-Robbery Section and I was detailed to investigate. I recorded statement from the complainant. I cautioned the Accused in the language he understood which is English. I read the word of caution to him and he understood. I told him to write a statement and he said l should write it for him. He voluntarily gave me his statement. I read it to him and he confirmed that it was correct and he signed. I also counter-signed as a recorder. The statement was taken to a superior officer for endorsement because it was a confessional statement. He read it to the Accused before he endorsed it. The Accused confirmed that it was his voluntary statement. I can identify the statement if I see it through my Handwriting and the name of the Accused and my signature. I see this document, it is the statement.”
Under cross examination he stated as follows:
“Apart from me no other person in our office took part in the investigation of this case. I know Mrs. Paulina Diagi. I cannot say the Accused was tortured because I did not see it. I don’t know Sgt Musa Ali. The Accused made only one statement in the Anti-Robbery Section. I recorded the statement of the complainant and it is in the case diary. From my investigation, apart from money, the victim said her two Handsets were stolen. I visited the scene of crime but nothing was recovered. Nothing incriminating was found in the house of the Accused. Information about theft of money and Handsets was given to me by the complainant and the Accused. The complainant was not there when I was recording the statement of the Accused.
I found out that it is true that the Accused was working with one Aluminium company. From my investigation the Accused did not go to work on the day of incident.
The Accused was under somebody in the company. The Boss is Mr. Jegede. The Accused was not watching any football Match. I did not visit the Beer parlour.”
The alleged victim of the crime stated that it was when she finished counting the said sum of N700,000 she received as contribution from her customers about 10.00 pm on 1/4/2010 that the Appellant and his gang struck and pushed her door and entered her sitting room. She narrated what they did to her.
It is clear in the evidence of P. W.1 that she was a bit inconsistent as to when the accused was taken to the State CID and whether she was conveyed in the same vehicle with the accused to the State CID. Whereas P.W.1 gave the impression that the accused was taken to the State CID that same night, P.W. 2, stated that the case was transferred to the State CID on 6/4/2010, that is, about five days after the alleged incident. P.W. 2 said He was the only officer who investigated the crime. P.W. 1 and P.W. 2 also contradicted each other as to the circumstances under which the Appellant made his said confessional statement. Whereas P.W.1 testified to the fact that the Appellant was tortured by the Police before he confessed to robbing her as she stated, P.W. 2 the Police Sergeant, said that the Appellant whom he said made only one statement, which he P.W. 2 recorded, was not tortured because he could not see it.
It is striking to note that the Appellant, who P.W. 1 alleged pointed a gun at her, was not said to have been in the possession of the said gun when the community pursued and arrested him. P.W. 2, the Investigating Police Officer did not tell the trial Court that any gun was found on the person of the Appellant on that 1/4/2010 or that any gun was handed over to him by Operation Yaki. Rather, he said that a toy gun was registered. It is also instructive to note the initial evidence of P.W.1, i.e., in-chief that people pursued them and they caught the accused and took him to the Police Operation Yaki. What is obvious in her testimony is that the people arrested him and took him to the Station. She was not there when he was arrested. The same people came and took her and she identified the accused. It follows that she was not the one who identified the Appellant to the people at the time of his arrest. She only shouted “thief” “thief” and people started pursuing them and caught the accused.
Notwithstanding, the claim of P.W.1 that there was full light in her room, ten o’clock at night is usually very dark in Nigeria except there is moonlight. It was not stated how the Appellant was identified by P.W.1 or any other person before his arrest at that very dark hour. It is well established that where a suspect disputed identification, the prosecution must prove beyond all reasonable doubt that the accused was the person who committed the offence. P.W.1 eloquently stated that the Appellant was tortured before he confessed to committing the said offence. As I stated in my unreported judgment in Appeal No. CA/K/244/C/2007 between Abdulkarim Mohammed and 2 Ors, delivered on 28/3/2013 pages at 16, 17 and 18 thus:
“There is always the risk of mistaken identification particularly where the sighting had only been a fleeting glance. It must be appreciated that there is confusion in the difference between recognition and identification cases. Where there had been some form of recognition the risk does not lie in the witness picking out the wrong person at an identification parade, but in the fact that at the time the person witnessed the offence, he was mistaken in his purported recognition of the offender. See R vs. Bentley 1991 CLR 520, where the English Court of Appeal stated that:
“A recognition which was the type of identification evidence here, could not be regarded as trouble free because many people had experienced seeing someone on the street that they know and later discovered they were wrong.”
It is instructive to appreciate that evidence of identification is at its best, the recognition of stranger’s face seen momentarily during the stress and excitement of an incident in torchlight or some other artificial light. On this note, I must make reference to the case of Ndidi vs. State (2007) 13 NWLR Part 1052 page 653, where the Supreme Court, per Aderemi J.S.C., expressed thus:
“In the case at hand, P.W.1 in her oral testimony said she had known the accused before this incident occurred. It seems to me that the guideline laid down in R.V. Turnbull (supra) will not apply hook, line and sinker in this case. Her (P.W.1) evidence as it relates to the Appellant, must be examined in the light of her saying that she recognized the Appellant in the early hours of that day. Her evidence must clearly demonstrate acquaintance with the Appellant that is, admitting acquaintance with the Appellant by certain signs and/or factors. This is because she said she had seen him before the date of the incident.
Whereas if her testimony is examined in the light of identification, all one would be doing is to see whether the testimony of P.W.1 is credible enough to convince the trial Judge that the Appellant now standing trial is the same person P.W.1 saw for the first time on the day of the incident. Recognition therefore presupposes prior knowledge of the Appellant before 4.1.00. But identification connotes knowledge of the person of the Appellant acquired by P.W.1 for the first time on the day of the incident; that is 4.1.00. I must be quick in saying that “recognition” (which translates to evidence of visual observation) is regarded as one of the guidelines laid down in R.V Turnbull (supra). In Archboid criminal pleading, Evidence and Practice (1993) volume 1 paragraph 14-4 which is a confirmation of what I have said, reads:-
“the following guidelines which are to be observed by trial Judges when ‘identity’ is an issue, were laid down by the court of Appeal (England a five-Judge Court) in R.V Turnbull & Ors 63 CR-APPP. Page 132 at 137 – 140 (the paragraph, letters and numbers have been added for ease of reference)
A …
B …
C Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”
These guidelines constitute what the judge must sum up for the jury in England where jury trial still
obtains. Jury trial is no longer in vogue in Nigeria.
When it was, it was only limited to Lagos territory.
Therefore a trial Judge in Nigeria must not only warn himself but must meticulously examine the evidence proffered to see whether there are any weakness capable of endangering or rendering worthless any contention that suspect was sufficiently recognised by the witness.”
The Appellant in his evidence before the lower Court said he was an apprentice and he used to close between 7.00 pm and 7.30 pm and on the date in question he watched match at a Football Centre. He showed the scar on his head as evidence that he was tortured.
The European Match ended between 10.00 10.30 pm and people were trooping out of the Football Centre. They were all coming out together, and he heard people shouting “thief” thief”. The people being pursued ran into their midst at the Football Centre, then one of the people pursuing the thieves held him and was shouting he was one of them and they started beating him. He tried to complain but they did not listen and continued to beat him, and handed him over to Operation Yaki police. He confirmed that PW1 was not among those beating him but she followed in the Operation Yaki patrol van. P.W.2 in his cross-examination admitted he did not go to the Beer parlour to confirm if the Appellant was there. There was no evidence led by the prosecution to establish that the aspect of the Appellant’s defence that he watched football match in the Football Centre which ended between 10.00 pm and 10.30 was investigated by the Police. The question, is how could confessional statement of the Appellant been relied upon by the Court below when it was glaringly stated before it by the alleged victim of the offence, i.e., P.W.1 that the Appellant was tortured before he made the alleged confessional statement, and when the Police Investigation Officer did not investigate the defence of the Appellant that he was at the Football Centre when the offence was being committed? At least, P. W.2 confirmed that the Appellant was an apprentice as he claimed and had a boss in the company, he used to work in, i.e., One Mr. Jegede.
It is interesting to note that the said Mr. Jegede, who testified as D.W.2, confirmed he was the boss of the Appellant. He further confirmed that on the 1st April, 2010, the Appellant came to work and closed between 7.30 pm and 8.00 pm. He said he wanted to take excuse that he wanted to go and watch football but he refused to permit him. He said under cross-examination that the Appellant was in the habit of asking for permission to go and watch football. This piece of D.W.2’s evidence corroborated the Appellant’s testimony before the Court.
D.W.3 confirmed observing serious wounds on the Appellant on 2/4/10 when he saw him at the Operation Yaki section and the Appellant was taken to Hospital on that same 2/4/10.
It is evident in the record of this Court that even though P.W.1 stated that the Appellant offered his confessional statement under torture, the Appellant’s Counsel did not object to the admissibility of Exhibit 1 on the ground of involuntariness. He merely raised an objection on the ground that the alleged confessional statement was not made by the Appellant. The Appellant simply denied making the same, that was why a trial-within-trial was not conducted by the trial Court, and, the said confessional statement was admitted in evidence. By the portion of the said confessional statement, i.e. Exhibit 1 made by the Appellant to the Police on 6/4/2010, which I sighted and which was reproduced and relied upon by the trial Court, the Appellant chronicled how the plan to rob P.W.1 was synthesized, strategized and executed. Exhibit 1, is a testament of the fact that the Appellant, at the earliest opportunity, armed the State with some material informations won which his trial, conviction and sentence were hinged. He was the one who revealed he was from Kwara State, an aluminium fabricator and that his master’s name is Jegede Wali. He mentioned the names of Eric Effiong late, one Morphy and one Emmanuel with whom he planned the robbery mission. He said it was the Emmanuel who told him that P.W.1 was collecting Daily Contribution and she usually come home with the money. They all met at one Royal Christian Beer Parlour at Galadimawa Street, Kakuri Kaduna for the plot. He confirmed P.W.1’s statement that he was the one in the possession of the gun during the robbery attack. He, also, confirmed P.W.1’s earlier assertion that she was counting the money in her parlour. He said the incident took place at about 9.30 pm. They met her counting the money on a table and they all packed the money and stuffed it inside her bag and left. They ran out in different directions while Eric and Morphy escaped with the money. But, the trial the Appellant endeavoured enormously to feign ignorance of the crime and painted a picture of an innocent soul being persecuted for nothing, but, the salient question is, how was he able to know and mention the names of one Emmanuel who was close to P.W.1 and who had knowledge of the money in the possession of P.W.1?
It has been innumerably held that confession in criminal procedure, like admission in civil procedure, is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eyewitness because the evidence comes out from the “horse’s mouth” who is the accused person. There is no better evidence and there is no need for further proof since what is admitted needs no further proof.
Therefore, where an accused person confesses to a crime, in the absence of an eyewitness to the crime, he can be convicted on his confession alone once the confession is positive, direct and properly proved.
It is trite that identification of an accuse is an issue of fact for the trial Court to make a finding on. In finding that an accused is properly identified by a witness there must be evidence before the Court showing what opportunity the witness had to identify the accused as the perpetrator of the alleged offence.
There are certain circumstances where an identification parade is necessary. However, an identification parade may be dispensed with where:
“(1) there is good and cogent evidence linking the accused person to the crime on the day of the incident.
(2) by the accused’s confessional statement, he identified himself.”
In the present appeal, the Appellant had unequivocally by Exhibit 1 identified and pinned himself to the scene of the armed robbery attack even though P.W.1 said she did not know the Appellant before the attack, and that her first acquaintance with him was during the commission of the offence. The Appellant implicated himself in the crime and overtly identified himself as one of the perpetrators of the offence. I perceive no reason why this Court should interfere with the findings of the trial Court. Accordingly, and for the reasons I have given above and the ones contained in the leading judgment, l, too, dismiss this appeal and abide by the consequential orders made therein.
Appearances
TAJUDEEN O. OLADOJA ESQ, with him M. T. RASHID ESQ, M. B. YUSUF
ESQ, and ISYAKU ABDULRAHAMAN ESQ.For Appellant
AND
SAKINATU HASSAN IDRIS (MRS) P. S. C; Ministry of Justice, Kaduna State)For Respondent
