ADEOYE ALIU v. THE STATE (2014)

ADEOYE ALIU v. THE STATE

(2014)LCN/7283(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of June, 2014

CA/I/59B/2011

RATIO

WHETHER AN ACCUSED CAN CHALLENGE THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT MADE TO THE POLICE, IN RESPECT OF WHICH HE DENIES VOLUNTARINESS.

ON WHOM DOES THE BURDEN OF PROOF LIE IN A CRIMINAL TRIAL?

Now, it is a settled principle of law in our jurisprudence that, the burden of proof of a crime lies squarely on the prosecution. The principle is founded upon the presumption of innocence founded upon established principles of legality known to all common law jurisdictions. This principle of legality has now been accorded statutory and constitutional recognition by Section 131 of the Evidence Act, 2011 and Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). It means therefore that the prosecution has the duty to lead credible evidence in order to rebut the presumption of innocence constitutionally guaranteed to the accused person. In discharging this burden the prosecution must lead credible evidence which establishes every ingredient of the offence beyond reasonable doubt. Thus in the case of Oseni v. State (2012) 2 M.J.S.C. (II p.98), the Supreme Court pointed out that:-
“Another principle of the criminal law which has been consistently repeated in our law reports is, at what time does an accused person object to the admissibility of a statement credited to him as his confession?. This court in its several decisions answered the question in the following words; “the question of the voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statements were tendered without any objection from the defence. None of the prosecution witnesses were cross-examined as to their voluntariness. It was not until the prosecution had closed its case and the Appellants were testifying in their own defence in the witness box that the issue was belatedly raised. The trial Judge was right to dismiss this aspect of the defence case as an afterthought.”
It is clear therefore that the proper time at which an accused person can raise objection to the admissibility of an extra-judicial statement made by him to the police, and which the prosecution consider to be a confession of the crime charged, is when the statement is being tendered in evidence by the prosecution. Any objection raised after the prosecution has closed its case would not be countenanced by the trial court nor sustained on appeal. See Effiong v. The State (1998) 5 SCNJ p.158 at 166; Gbadamosi v. The State (1992) 9 NWLR (Pt.266) p.465 at 480; Afolalu v. State (2009) 3 NWLR (Pt.11270 p.160 at 193; Alarape v. The State (2001) 5 NWLR (Pt.705) p.79; Mbang v. The State (2009) 8 NWLR (Pt.1172) p.140 and Okaroh v. State (1990) 1 NWLR (Pt.125) p.136. per HARUNA SIMON TSAMMANI, J.C.A.

WHETHER THE PROSECUTION MUST ESTABLISH EVERY INGREDIENT OF THE OFFENCE BEYOND REASONABLE DOUBT TO DISCHARGE THE PRESUMPTION OF INNOCENCE OF THE ACCUSED PERSON

The presumption of innocence is a first class shield for an accused person. To rebuts such presumption which is a creation of the constitution as enshrine under Section 36 (5) of the 1999 Constitution of the Federal Republic of Nigeria, the burden of proof placed on the prosecution as in Section 131 of the Evidence Act must be discharged. See Section 131 of the Evidence Act 2011 (as amended). To discharge that burden the evidence before the court must establish every ingredient of the offence beyond reasonable doubt. See the case of Dickson Moses v. The State (2006) Vol. 26 NSQLR page 895 and Jau v. State (2010) 4 NWLR (Pt.1184) p.217. per DASHIRU N. ONIYANGI, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

MUDAHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

ADEOYE ALIU Appellant(s)

AND

THE STATE Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): The Appellant herein, along with Kamorudeen Adebayo and Saheed Balogun were arraigned before the Oyo State High Court, Ibadan Division on a four count charge of conspiracy to commit armed robbery and the commission of armed robbery which are offences punishable under Sections 6(b) and 1(b) of the Robbery and Firearms (Special Provisions) Act, Cap.R.11, Laws of the Federation of Nigeria, 2004. They were consequently convicted on all the four counts charged and sentenced to death by hanging.

The brief facts of the case as presented by the prosecution is that, on the 14th day of May, 2008, at about 11.00p.m, the P.W.1 who was on duty along with others as Vigilante Group members saw three boys in their area coming out from the bush. That due to constant complaints of armed robbery in the area, the boys were accosted and asked to stop, but two of them run away but one of them was arrested. That he was searched and a charm was found on him, and upon further interrogation, he introduced himself as Kamoru. Upon further questioning he named the other boys who run away as Aliyu and Saidi. He was then taken to the Ogbere Police Station at about 1.30a.m where he made a statement.

According to the prosecution, the police officer at the Police Station, accompanied by the “land lord” picked up Aliu (Appellant herein) in his house. That on their way home, the other accused person (Saheed) was seen coming out from the bush and he was also arrested. That upon being interrogated, it was confirmed that they are the persons terrorizing the area by robbing people of their valuables. Furthermore, that the Appellant and his co-accused confessed to being responsible for the series of robberies in the area. At the trial the statements of the accused persons, including that of the Appellant, together with some other Exhibits such as handset phones and charms were tendered in evidence. The prosecution called a total of seven (7) witnesses, while each of the three accused persons testified in his defence, but called no other witness. Upon evaluation of the evidence adduced before him, the learned trial Judge found the accused persons, including the Appellant guilty and sentenced them to death by hanging.

The Appellant is distressed and aggrieved by his conviction and sentence, and therefore filed this appeal. The Original Notice of Appeal which is at pages 72-77 of the Record of Appeal was dated the 14/2/2011 and filed the 16/2/2011. However, by Motion on Notice dated the 12/3/2013 and filed 18/3/2013, the Appellant was on the 09/4/2013 granted leave to amend the Notice of Appeal. Consequently, this appeal was heard on the Amended Notice of Appeal dated 12/3/2013 and filed the 18/3/2013, but deemed filed on the 09/4/2013. The said Amended Notice of Appeal consists of ten (10) Grounds of Appeal, which short of their particulars are reproduced below for ease of reference, if need be. They are:
“1. The Learned Trial Judge erred in law when he convicted the Appellant for conspiracy to commit a felony and armed robbery on his alleged confessional statement which the Appellant denied without any direct corroborative evidence or other facts to support same as laid down in several judicial authorities.
2. The Trial Judge erred in Law in admitting and relying on the purported confessional statement (Exhibit M) of the Appellant and holding that it was “voluntary, positive, unequivocal and amounted to an admission of guilt.
3. The Trial Judge erred in Law in relying on the evidence of PW3, 4 and 5 as corroborating the purported confessional statement of the Appellant.
4. The Trial Court erred in Law in convicting the Appellant on the strength of his retracted confessional statement without corroborative reliable evidence before the court.
5. The Trial Judge erred in Law in convicting the Appellant for robbery when he relied on the identification of Samsung Mobile Phone purportedly owned by PW4.
6. The Trial Judge erred in Law in convicting the Appellant for conspiracy to rob and robbery when he was not caught at the scene of the robbery or armed when he was apprehended.
7. The Learned Trial Judge erred in Law in relying on the evidence of PW5 in convicting the Appellant.
8. The Trial Judge erred in Law in convicting the Appellant for the offence of conspiracy.
9. The Trial Judge erred in Law in convicting the Appellant upon the unreliable confessional statement interpreted from Yoruba to English language.
10. The Trial Judge erred in Law in convicting the Appellant upon the amended charge without taking afresh plea after the amendment.”

The parties to this appeal filed and exchanged briefs of arguments in compliance with the Rules of this court. At the hearing of the Appeal on the 15/4/2014, both parties adopted and relied on their respective briefs of arguments, as their arguments in this appeal.

The Appellant’s Brief of Arguments settled by Abiodun Olaleru, Esq., was dated the 28/01/2014 and filed the 14/2/2014; but deemed filed on the 20/3/2014. Therein, the Appellant formulated four (4) issues for determination as follows:-
“(a) Whether the Appellant’s purported confessional statements were voluntarily made and also admissible in law. [Grounds 1, 2, 3 and 4].
(b) Whether the learned trial Judge was right when he held that the prosecution proved counts 1, 2, 3 and 4 of Charge No: I/29C/2009 beyond reasonable doubt in reaching his conclusion that the Appellant was guilty and thereby sentenced him to death by hanging. [Grounds 5, 6, 7 and 8].
(c) Whether the learned trial Judge was right when he admitted the Appellant’s confessional statements made in Yoruba language but recorded in English language without the interpreter having been called as a witness. [Ground 9].
(d) Whether the learned trial Judge was right in proceeding with the trial of the Appellant without taking a fresh plea from him after the amendment of the charge sheet by the Respondent. [Ground 10].

The Respondent’s Brief of Arguments settled by Mrs. F. B. Segun – Olakojo of learned Director, Legal Drafting and Parliamentary Counseling; Ministry of Justice, Oyo State, was dated the 11/3/2014 and filed the same date. Therein, four (4) issues were also formulated for determination.
They are:-
“(i) Whether the Appellant can object to the admissibility of confessional statements on appeal which were not objected to at the Lower Court. [Grounds 2, 4 and 9].
(ii) Whether the trial court was right in holding that the Respondent proved its case beyond reasonable doubt. [Grounds 1, 3, 5, 6, 7 and 8].
(iii) Whether the plea of the Appellant was properly taken. [Ground 10].
(iv) Whether the failure to call the interpreter of the confessional statement as a witness invalidates the conviction of the Appellant in the face of other corroborative evidence. [Ground 9].”

A careful scrutiny of the issues as formulated by the parties would show that the Respondent’s issues (i) and (ii) correspond with the Appellant’s issues (a) and (b), while issue (iv) corresponds with the Appellant’s issue (c). In the same vein, Respondent’s issue (iii) corresponds with Appellant’s issue (d). That being so, I shall determine this appeal on the issues formulated by the Appellant. However, I shall start by taking issues 4 and 1, while issues 2 and 3 will be taken together.

Now, on issue 4, which is whether the learned trial Judge was right in proceeding with the trial of the Appellant without taking a fresh plea from him after the charge was amended, learned counsel for the Appellant submitted that, in criminal proceedings, when a charge is amended, such an amended charge must be read and explained to the accused person, afresh and a fresh plea taken. He cited the case of Ogudo v. State (2011) 18 NWLR (Pt.1278) p.1 at 50-51 paragraphs H – B, to further submit that, in the instant case, the Respondent filed an application dated 01/4/2010 seeking to amend the charge which was granted, but that there is no evidence on the record of appeal showing that such amended charge was read and explained to the Appellant for him to make a fresh plea. It was therefore contended that, in as much as the Appellant did not make a fresh plea on the amended charge, the judgment delivered by the court below on the 18/1/2011 was without jurisdiction and therefore null and void.

Learned Counsel for the Respondent agreed that upon an amendment of a charge, it is imperative for a fresh plea to be taken as held in Adisa v. A.G; western Nigeria (1965) 1 All N.L.R. p.430. That in the instant case, it is clear at pages 36A and 36B of the supplementary records that the amended charge was read afresh to the Appellant and his co-accused and their plea also taken afresh on the amended charge. That the complaint of the Appellant therefore does not reflect the true state of events as occurred at the Lower Court. We were accordingly urged to discountenance this complaint of the Appellant.

In reply, learned counsel for the Appellant contended at paragraph 1.1 of the Appellant’s Reply Brief that there is no supplementary Record of appeal before the Court, and that even if there is any, it did not comply with Order 8 Rule 6 of the Court of Appeal Rules, 2011 as regards the time within which a Respondent may forward additional records to this court.
That there is no record that the Respondent filed an application for extension of time to file the said record, and for same to be deemed as duly or properly filed. We were then urged to disregard any reference to the alleged supplementary record.

In the instant appeal, both parties are agreed that when a charge is amended in a criminal proceeding, the court has a duty to read the amended charge to the accused and his plea thereon taken afresh. That is undoubtedly the position of the law as settled in a plethora of cases. See Attah v. State (1993) 7 NWLR (Pt.305) p.257; Vincent v. State (1997) 1 NWLR (Pt.480) p.234; Adisa v. Attorney-General (1965) 1 ANLR p.412 at 416; Puncent v. The State (1997) 1 NWLR (Pt.480) p.234 and Okosun v. State (1979) 3 – 4 S.C. p.24. See also Section 162 of the Criminal Procedure Act. Where there is non-compliance with this requirement, the trial will be a nullity. I have carefully perused all the processes filed in this appeal. Truly, there is no additional or supplementary record of appeal filed. However, having leafed through the record of appeal compiled and transmitted to this court on the 17/3/2011, I find that the trial court complied with this requirement at pages 36A-36B of the records. Therein, the application to amend the charge was granted, and the learned trial Judge recorded that the amended charge was read and explained to each of the three accused persons, which included the Appellant in the Yoruba language. Subsequently, their pleas were taken on each of the four counts, to which they pleaded not guilty. That proceeding took place on the 13/4/2010. On that score, it is obvious that the complaint of the Appellant here lack substance. It is accordingly discountenanced. The result is that this issue is resolved in favour of the Respondents.

On issue No.1, which is whether the Appellant’s purported confessional statements were voluntarily made and also admissible in law. Here, I find that the arguments of the Appellant went beyond the scope of the issue posed. In that guised, I shall limit consideration of the arguments of counsel to the issue of admissibility of the said statement of the Appellant.

Learned Counsel had submitted here that, the confessional statement upon which the learned trial Judge heavily relied in finding the Appellant guilty of the 4 count charge was not made voluntarily and therefore in admissible in law. It was contended that the Appellant gave evidence at the trial to the effect that he was tortured and coerced into making the alleged confessional statement. Learned Counsel then referred to Sections 28 and 29 of the Evidence Act, 2011 to submit that any confessional statement made by an accused as a result of the use of threat or actual violence to the body of an accused person is inadmissible, and therefore the court has a duty to prevent any confessional statement which has been involuntarily obtained, notwithstanding that it is true, from being admitted. The case of State v. Salami (2011) 18 NWLR (Pt.1279) p.580 at 605 paragraphs C-F was cited in support.

Learned Counsel for the Appellant further submitted that, from the excerpts of the Appellant’s testimony in the court below, the Appellant clearly stated that he did not make the confessional statements upon which he was found guilty. That the said statements were made due to the beating, torture, inhuman treatment and oppression he sustained from the police and SARS officials. That the prosecution failed to contradict the evidence of the Appellant, and that this failure constitutes an admission of the fact that the Appellant was indeed subjected to beating, torture, inhuman treatment and oppression before he made the said confessional statement. Learned Counsel then submitted that the prosecution failed to prove beyond reasonable doubt that the Appellant’s confessional statement was voluntarily made.

The Respondents argued this issue as their issue one. Therein, learned counsel for the Respondents contended that the appropriate time for an accused person to object to the admissibility of his confessional statement is at the stage when the prosecution seeks to tender it and not afterwards. That Exhibits ‘H’ and ‘M’ which are the confessional statements of the Appellant were tendered in evidence without any objection from the defence. He then cited the cases of Olalekan v. State (2001) 8 NSCQR p.207 at 240 paragraphs D-E; Adesina & Anor v. State (2012) 6 S.C. (Pt.III) p.159 at 166 lines 16-20; Shurumo v. The State (2010) 12 S.C. (Pt.1) p.73 at 101; Hassan v. State (2001) FWLR (pt.74) p.219; Ikoasa v. The State (1981) 9 S.C. p.7; Ntaha v. The State (1972) 4 S.C. p.1; Obisia v. Queen (1962) 2 SCNLR 402 and Akpan v. State (1993) NWLR (Pt.248) p.347 at 445, to submit that, where a confessional statement is direct and positive, a trial court can safely convict on it.

It is further contended by learned counsel for the Respondent that, even if an accused person later retracts or denies his confessional statement, the confession which has been admitted does not become inadmissible as a result. That the denial only goes to the weight which the court would attach to such confessional statement. That in the instant case, the learned trial Judge was not oblivious of the position of the law on how a retracted confessional statement should be treated. We were accordingly urged to consider that the Appellant had the opportunity to object to the admissibility of the confessional statement at the trial court, but failed to do so; and to also hold that, the trial court was right in relying on the said confessional statement of the Appellant (Exhibits ‘H’ and ‘M’) in convicting him.

The law is now firmly settled that, where an accused person alleges that a statement which amounts to a confession to the commission of the offence he was charged with, was not made by him voluntarily, the proper stage of the trial at which he should raise an objection to its admissibility is when the prosecution seeks to tender or put such statement in evidence as part of the prosecution’s evidence in prove of the crime alleged against him. In other words, where an accused person denies the voluntariness of his extra-judicial statement made to the police, and statement of the police contends is confessional of the crime charged, the practice is for such accused person to object to its admissibility at the time the prosecution seeks to tender it in evidence. The court will then proceed to determine its voluntariness by conducting a trial within a trial, so as to determine whether the statement has satisfied the requirements of voluntariness for it to be admitted in evidence. Thus in the case of Oseni v. State (2012) 2 M.J.S.C. (II p.98), the Supreme Court pointed out that:-
“Another principle of the criminal law which has been consistently repeated in our law reports is, at what time does an accused person object to the admissibility of a statement credited to him as his confession?. This court in its several decisions answered the question in the following words; “the question of the voluntariness of a confessional statement is tested at the time the statement is sought to be tendered in evidence. In the instant case, the confessional statements were tendered without any objection from the defence. None of the prosecution witnesses were cross-examined as to their voluntariness. It was not until the prosecution had closed its case and the Appellants were testifying in their own defence in the witness box that the issue was belatedly raised. The trial Judge was right to dismiss this aspect of the defence case as an afterthought.”
It is clear therefore that the proper time at which an accused person can raise objection to the admissibility of an extra-judicial statement made by him to the police, and which the prosecution consider to be a confession of the crime charged, is when the statement is being tendered in evidence by the prosecution. Any objection raised after the prosecution has closed its case would not be countenanced by the trial court nor sustained on appeal. See Effiong v. The State (1998) 5 SCNJ p.158 at 166; Gbadamosi v. The State (1992) 9 NWLR (Pt.266) p.465 at 480; Afolalu v. State (2009) 3 NWLR (Pt.11270 p.160 at 193; Alarape v. The State (2001) 5 NWLR (Pt.705) p.79; Mbang v. The State (2009) 8 NWLR (Pt.1172) p.140 and Okaroh v. State (1990) 1 NWLR (Pt.125) p.136.

It is therefore advisable that learned counsel for the defence raises an objection to the admissibility of a statement credited to the accused as confession by him as committing the offence charged, timeously, on the ground that the statement was not voluntarily made, due to either threat of or actual violence practiced on the accused before he made the statement. If he fails to do so timeously at the time when the statement was being tendered by the prosecution as part of the evidence in prove of the charge against the accused, the accused person may find it an uphill task to extricate himself from the legal consequences of such statement after it has been admitted without objection from the defence. It means therefore that, if no objection to the voluntariness of the confessional statement was raised at the time it was tendered, and the statement was thus admitted in evidence, any retraction of the statement made at the time the accused is testifying or after the prosecution has closed its case, would not have any effect on the admissibility of such confession which is already in evidence.

The best the court can do in such a situation, is to take into account the reasons for such retraction in the evaluation of the weight to be attached or accorded to such confessional statement, when assessing the totality of the evidence adduced by the prosecution. See Oche v. State (2007) 5 NWLR (Pt.1027) p.214 and Dibie v. State (2007) 9 NWLR (Pt.1038) p.30.

It would be seen therefore that, a confessional statement which has been duly proved and admitted does not at a later stage of the proceedings became inadmissible because the accused resiled from it or denied making it. The retraction of a voluntary confessional statement by an accused person therefore does not render such statement inadmissible. See Idowu v. The State (2000) FWLR (Pt.16) p.2672 at 2703. The denial or retraction may however be an issue of fact to be decided upon in the judgment when the court is considering the probative value or weight to accord to such a confession. It does not affect admissibility.
In the instant case, two statements of the Appellant were tendered and admitted in evidence as Exhibits ‘H’ and ‘M’ respectively. Exhibit ‘H’ was tendered through Corporal Williams Odije who testified as the PW6; while Exhibit ‘M’ was tendered through Sergeant Yanda Abdullahi who testified as the PW7. See pages 36B-36E of the Record of Appeal. In both instances, learned counsel for the Appellant raised no objection to the admissibility of the statements, and they were duly admitted in evidence. It was when the Appellant was testifying in his own defence that he raised the issue that he was beaten mercilessly and forced to sign the statements. On the authorities therefore, the issue of involuntariness of the statement was belatedly raised. The statements having been admitted without objection, the issue of admissibility had been closed, and could not have been lawfully raised by the Appellant at the time the he was testifying, nor can it be raised on appeal before us. The learned trial Judge was therefore right when he utilized same in the determination of the case. This issue is therefore resolved against the Appellant.

I now proceed to consider issues 2 and 3. Before I proceed, I find it pertinent to point out that there are points which should have been canvassed under issue 2, but were dealt with by the Appellant under issue one settled above. In that respect, I will have regard to those points in the resolution of issue two (2). Thus, in arguing issue two, learned counsel for the Appellant contended that, there are contradictions in the evidence adduced by the prosecution especially on the circumstantial evidence relied on by the trial court in convicting the Appellant. Some of the contradictions highlighted by the Appellant are:-
(a) The PW1 stated in his evidence to the police sighted that they the Appellant in company of his co-accused at exactly 11.00p.m but in his testimony in court, he said it was 11.30p.m;
(b) The PW1 and PW2 were not ad idem on the objects found with the Appellant in that while PW1 said they found a charm but in his testimony in court said they found charms and scissors; while PW2 said it was knife, cutlass and alligator pepper;
(c) PW2 was not present when the Appellant was arrested;
(d) PW3 stated that 4 people robbed her but while giving evidence said 3 people robbed her;
(e) PW4 who said he was also robbed, said he did not see the faces of the persons that robbed him, but at the trial said the Appellant was one of the persons that robbed him;
(f) PW3, Pw4 and pw5 stated that they were robbed at gun point, but no gun was tendered nor found on the Appellant and his co-accused; and
(g) The Appellant was not caught in the premises of either PW3, Pw4 and pw5 who were purportedly robbed.

The cases of Obri v. The State (1997) 7 SCNJ p.181 and Pius Jizurumba v. The State (1976) 1 ANLR p.29 were cited to urge us to resolve those contradictions in favour of the Appellant.

It was also submitted by learned counsel for the Appellant that, there is no reliable evidence of any eye witness. That the PW3, PW4 and PW5 who are the persons allegedly robbed were not in a position to identify the Appellant nor any of his co-accused persons. That in all the circumstances of this case and from the totality of the evidence adduced by the prosecution witnesses, there has been no positive evidence of an eye witness who witnessed the alleged armed robbery or who could identify the Appellant as one of the persons who committed the alleged robbery for which he was convicted. That from the totality of the evidence of the testimony of the PW3, she did not know nor had she seen the Appellant or any of the co-accused persons before the date of the alleged robbery.
That, PW3 gave evidence to the effect that the alleged robbery took place at about 3.00a.m when she was sleeping with her children, so she must have woken up from a deep slumber, yet she was able to recognize the Appellant as one of the robbers that robbed her. Learned Counsel then submitted that, in the circumstances as described by the witness, it was practically impossible for her to have been able to positively identify her assailants, and further that at that time of the night, visibility was very poor as the assailants switched-off the fights and also shone their torchlights on her face.

Still on the evidence of identify, it was contended that, it was dangerous to rely on the testimony of the PW4, as he admitted that he identified the Appellant only after the Samsung phone allegedly stolen from him was identified by him as that stolen from him. He then referred to the case of State v. Salami (2011) 8 NWLR (Pt.1279) p.580 at 621 to submit that identification of the Appellant was key in the case of the prosecution, therefore the learned trial Judge should have been aware of the frailties and potential booby traps in relying on the identification evidence as adduced by the prosecution. Learned Counsel then cited the case of Ndidi v. The state (2007) 13 NWLR (Pt.1052) p.633 at 653-653 paragraphs H-E to submit that, it is the law that whenever the case against the accused person depends wholly or substantially on the correctness of the identification of the accused which the defence allege to be mistaken, the court must closely examine and receive the evidence with caution before convicting on it.

Learned Counsel for the Appellant also relied on the case of Okosi v. The State (1989) 1 NWLR (Pt.100) p.642 at 665 to submit that, because the evidence of identification is essentially evidence of opinion, it is not fool proof and so the court acting on such evidence must be cognizant of the fact that such evidence is usually fraud with a lot of human errors resulting in cases of mistaken identity. That in such situations, a court trying cases where the only evidence against the accused is evidence of identity, should be wary and thus warn itself of the danger of convicting on the uncorroborated evidence of such identification. That this is moreso where an eye witness omits to mention at the earliest opportunity, the name or names of person he saw committing the offence charged. That the effect in such delay in giving such information is that; it makes the evidence of identity suspect and reduces the probative value of such identification evidence. That, in the instant case, the witnesses who claimed to have been robbed at gun point did not deem it fit to report to the police. It was therefore submitted by learned counsel for the Appellant that, there is no reliable evidence of any eyewitnesses in the instant case.

On issue three (3), learned counsel for the Appellant contended that the Respondent’s failure to call the person who interpreted the Appellant’s purported confessional statements from Yoruba language to the English language renders the said confessional statement hearsay evidence, which is inadmissible in law. That at pages 50 and 60 of record of appear, the PW6 stated under cross-examination that it was a woman Police Constable; Tutu Fafana who acted as interpreter in recording the Appellant’s first statement from Yoruba language to English language at the Police Station. That the said woman police Constable was never called to testify as to the truth and accuracy of the statement. It was thus submitted that, in as much as Woman Constable Tutu Falana who did the interpretation was not called as a witness, the said statements upon which the Appellant was convicted are inadmissible in law as they constitute hearsay evidence. He quoted extensively the dictum of Rhodes-Vivour, JSC in FRN v. Usman (2012) 8 NWLR (Pt.1301) p.141 at 159 – 160 paragraphs D – B; C – G and p.163 paragraphs C – E and 167 paragraphs A-C in support. It was further submitted that, the other statement made at the state Anti Robbery squad (SARS) office, and tendered through PW7 are also inadmissible in law for being in accurate as there is no evidence on record that Sergeant Yanda Abdullahi who is a Hausa man, understood Yoruba language, even though he allegedly ‘read and explained the contents of the said statements to the Appellant. That, there is also no evidence that anyone versed in the Yoruba language assisted the PW7 in recording the interpretation.

It was therefore submitted that it has been settled in cases such as Mallam Zakari Ahmed v. The State (1999) 7 NWLR (pt.612) p.641 at 685 paragraphs G-B, by the Supreme Court that, a cautionary statement to be reliable, must be recorded in the language of the accused and then translated into the language of the court. We were then urged to place reliance on the Supreme Court decision cited above, and to hold that the learned trial Judge erred in relying on those confessional statements in convicting the Appellant.

Learned Counsel for the Respondent submitted that, contrary to the impression created by the Appellant, he was property identified as one of the armed robbers who robbed the victims at Akeyo Village, Ibadan on or about the 15th day of May, 2008. That the trial court rightly relied on the confessional and circumstantial evidence as was clearly stated at pages 57 and 58 of the record of appeal. He relied on the case of Ezedifu v. State (2001) 17 NWLR (pt.741) p.82 at 111 paragraphs A-B, to submit that culpability of an accused person may be proved beyond reasonable doubt by direct evidence or circumstantial evidence. That the circumstantial evidence in this case, which are the two statements of the Appellant (Exhibits ‘H’ and ‘M’), the statements of the co-accused persons and the statements on oath of PW1 and PW3, show clearly that the Appellant was one of the robbers. Furthermore that, one of the items (GSM phone) stolen and also identified by pw4, found on the Appellant show clearly that the Appellant was guilty of the robbery.

On the issue of identify of the Appellant as one of the armed robbers that perpetrated the robbery in the homes of PW3, PW4 and PW5, learned counsel for the Respondent referred to the testimony of the PW1 and PW3 at pages 28 lines 24-35, 29 lines 1-11 and lines 15-19 to submit that, there was unequivocal evidence from the victims who saw the Appellant on the night of the robbery. The case of Adesina & Anor v. State (2012) 6 S.C. (Pt.111) p.114 at 121 lines 8 – 10, 34 – 36 was cited to submit that, in the instant case, all the evidence either direct or circumstantial adduced at the trial, point to the fact that the Appellant along with two others went to the houses of PW3, PW4 and PW5 armed with cutlass, gun and other weapons, and robbed them of their property and valuables.

Learned Counsel for the Respondent also contended that, at the trial court, the Appellant painted different scenarios in explaining his movement on the night of 15/5/2008. He first said he was invited to collect money owed to his friend at 11.00p.m, which shows that he was not telling the truth, when it is clear from his evidence that one of the victim’s phones was recovered from him, having sold it to his brother. Learned Counsel then submitted that, the onus of proving a criminal case beyond reasonable doubt does not mean prove beyond all shadow of doubt. That it is enough if the court is satisfied that the evidence adduced at the trial is sufficient to establish the guilt of the Appellant. The case of Ohi v. State (1991) 8 NWLR (pt.207) at 103 at 118 paragraphs E-F was cited in support. That contrary to the submissions of learned counsel for the Appellant, the case of armed robbery against the Appellant was proved beyond reasonable doubt. He then enumerated the ingredients that need be proved in a charge of armed robbery as stated in the cases of State v. Ademola Bello & Ors (1980) 1 CLRN 370 at 378 and Bozin v. The State (1985) 2 NWLR (Pt.8) p.465 at 469, to further submit that, in the instant case, all the ingredients of armed robbery were proved against the Appellant. We were accordingly urged to hold that, the learned trial Judge was right when he held that the prosecution proved its case against the Appellant beyond reasonable doubt.

On the confessional statement of the Appellant learned counsel for the Respondent submitted that, the law is that where the trial court convicts on a confessional statement obtained through an interpreter, but the interpreter was not called as a witness, and there is no other corroborative evidence, the conviction would be set aside. That where there is corroborative evidence which is enough to convict the person, aside from the confessional statement, then the conviction will stand. Learned Counsel then submitted that in FRN v. Usman (2012) 8 NWLR (Pt.1301) p.141, the conviction was set aside because there was no other shred of evidence apart from the confessional statement to convict the accused persons. That in the instant case, the trial court did not only rely on the Appellant’s confessional statement, but also sought for corroborative evidence outside the confessional statement, and in doing that, the learned trial Judge relied on testimonies of PW3, PW4 and PW5 who were victims of the armed robbery attack. That in addition, the Samsung phone which the Appellant confessed to stealing was find on him, and identified by PW4 as the phone stolen from him during the robbery. The case of Shivero v. The State (1976) 3 S.C. P.63 was cited in support. We were accordingly urged to discountenance the arguments of the Appellant on his issue 3, and to dismiss the appeal.

In response, the Appellant argued at paragraphs 2.1 – 2.6 of the Appellant’s Reply Brief that, the other pieces of evidence which the trial court relied upon are worthless as proof of any crime, let alone a crime as serious as armed robbery which carries a mandatory sentence of death. We were accordingly urged to carefully re-evaluate the evidence which the trial court considered as corroboration of the confession of the Appellant to convict. We were then urged to hold that the other corroborating evidence referred to are not reliable and therefore it is dangerous to convict on them.

It is therefore settled that the burden of proof in a criminal case is on the prosecution, which must be discharged beyond reasonable doubt. See Jua v. State (2010) 4 NWLR (Pt.1184) p.217; State v. Danjuma (1997) 5 NWLR (Pt.506) p.512; Ogunbayo v. The State (2007) 8 NWLR (Pt.1035) p.157 and Sabina Chikaodi Madu v. The State (2012) LPELR 7867 (SC). See also Esangbedo v. The State (1989) NWLR (Pt.113) p.57.
As stated earlier, the standard of proof is that beyond reasonable doubt.

Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, as the law dispels with fanciful possibilities which may occur in a criminal trial or in the totality of the evidence adduced in proof of the crime charged. As stated by Tobi, JSC in Jua v. State (supra):
“Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man or woman might entertain. It is not fanciful doubt, it is not an imaginary doubt. It is a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves.”
In that respect therefore a court trying any criminal case, especially serious crimes like armed robbery which carries the ultimate penalty known to our law, must ensure that the totality of the evidence adduced before him, does not leave any reasonable doubt that the accused committed the offence, before proceeding to convict. Thus where an essential element of the offence has not been established or the evidence adduced in respect therefore has created a reasonable doubt as to the culpability of the accused, the trial court has the constitutional duty to acquit the accused.

In the instant case, the Appellant along with two others were charged on a four count charge of conspiracy to commit and the commission of the offence of armed robbery. Where a person is charged with the offence of armed robbery punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act (supra), the prosecution has the burden to prove beyond reasonable doubt by virtue of Section 135(1) of the Evidence Act, 2011 that:-
“(a) That there has been either a robbery or series of robberies;
(b) That the robbery or each of the robberies was an armed robbery;
(c) That the accused (Appellant) was either the robber or one of those who took part in the robbery or series of robberies.”
The prosecution has the onus to lead credible evidence establishing each of the stated ingredients of the offence beyond reasonable doubt.

Accordingly, where the evidence adduced by the prosecution is deficient in any of the stated ingredients or the evidence led has created any reasonable doubt on any of the stated elements, it would mean that the offence has not been proved beyond reasonable doubt and the accused will be entitled to an acquittal. See Olayinka v. The State (2007) 9 NWLR (pt.1040) p.561; Bozin v. The State (1985) 2 NWLR (pt.8) p.465; The State v. Olashenu Salami (2011) LPELR – 8252 (SC); Demo Oseni v. The State (2012) LPELR – 7833 (SC); Obasi Onyenye v. The State (2012) LPELR – 7866 (SC) and Semiu Afolabi v. The State (2010) LPELR – 363 (SC).

The commission of the offence may be proved by (a) confessional evidence; (b) direct or eye witness evidence; (c) circumstantial evidence. Igri v. The State (2010) 7 WRN p.1 at 47 and Emeka v. The State (2010) 1 WRN p.41 at 64. It may also be proved by a combination of any two or all of the above means of prove.

In the instant case, the evidence led in prove of the fact of armed robbery was led by the PW1, PW3, PW4 and PW5. The PW1 stated at pages 25-26 of the record of appeal that he was on Vigilante duty at about 11.30p.m on the 14 to 15 May, 2008 when they saw the Appellant and his co-accused coming out of the bush. That upon being accosted, the Appellant and the 1st accused at the trial, took to their heels. That the 1st accused was arrested and later disclosed that he was together with the Appellant, and based upon that information, the Appellant was arrested and taken to the police at about 3.00a.m on the 15/5/08. It is clear therefore that the PW1 was neither a victim of the alleged armed robbery nor did he witness the robbery.

The PW2 in his evidence in chief testified that, he came to know the Appellant on the night they robbed in his neighbourhood. He however stated that, he was called by his people in the night of the 14th/15th at about 10.30p.m and informed that they had asserted some boys whom they suspected to be the robbers terrorizing their area. He met his people with the 1s accused who described the Appellant to them as their leader. That in company of the police, the Appellant was arrested in his house. This witness (PW2) was also neither a victim nor did he witness the acts of robbery charged.

The PW3, one Suara Akinkumi testified that, in the night of Wednesday, the 14th of May, 2008, the Appellant and others came to her house and ordered her to open the door. As she did not open the door, the robbers threatened that it would be bad for her if she did not open the door, so she opened the door. That when the robbers entered her room, they forcefully took her handset, the sum of one thousand Naira (N1,000=00), her earrings and chain. She stated also that, one of the robbers had a gun. This witness therefore gave testimony of an armed robbery operation in her house between the 14th and 15th of May, 2008.

The PW4 also testified of a robbery operation at his residence at Idi Gbangan Area Ibadan between the 14th and 15th of May, 2008. He stated at pages 29 lines 25-30 as follows:-
“On 14th/15th May, 2008, I was sleeping with my wife in my room when some people said I should open the door, that if I don’t they would break the door. One of them shot into the air. I opened the door. They said I should face the floor, they beat my wife who was 8 months pregnant. They took N3,500 from me. They took 2 handsets. Multilink and Samsung…”

The PW5, Mojeed Salau testified that on the 14th/15th May 2008, thieves entered his house. He stated that:
“Three of them they put a gun inside my mouth. They took N3,120. with one Nokia set. They took my wife (sic) set Multilink. They looked and took my cassette I went to the police at Ogbere area. I did not go same day.”
He later stated under cross-examination that:-
“I did not report to the police when it happened rather, I reported to my chairman. I did not tell the police because it was close to Sunday when we normally had landlords meeting.”

It appears to me that there is some contradiction on the testimony of this witness on the occurrence of robbery in his house, He had stated in his evidence in chief that he reported to police at Ogbere area, though not on the same day, but stated in his evidence under cross-examination that he did not report to the police but to his chairman. Furthermore, none of PW6 and PW7 testified that any case of armed robbery was reported to the police prior to the arrest of the Appellant and his co-accused. I am therefore of the view that the evidence of armed robbery in the house of the PW5 was not proved beyond reasonable doubt. Since it is the law that, once an essential element of the offence charged has not been proved, it would mean that the prosecution has failed to prove its case beyond reasonable doubt. In that respect, the accused person would be entitled to an acquittal. I therefore find and do hold that the prosecution failed to prove count four (4) of the charge beyond reasonable doubt. The Appellant is accordingly discharged and acquitted on it.

On whether the robbery charged on counts 2 and 3 were armed robberies, the PW3 who was one of the robberies testified that one of the robbers had a gun which he robbed on her cheeks in a threatening manner. The said witness confirmed that one of the robbers was armed with a gun when she stated under cross-examination as follows:
“One of them shot into the air after they robbed my face with the gun. I can’t say whether the gun is big or small.”
The PW4 on the other hand testified that, when the robbers went to his house, “one of them shot into the air.” In the later part of his testimony, he stated that the robbers were armed with scissors and cutlass, and that when he lifted up his head, one of them injured him with the scissors. The testimony of the PW4 therefore is that, the robbers were armed with a gun, scissors and cutlass.

The testimony of the PW3 and PW4 therefore reveals that the robbers were armed with a gun, iron rod and scissors. The evidence does not reveal that the robbers were also armed with an iron rod and stick as alleged in the charge. However, the fact that the robbers were armed with a gun, cutlass and scissors is sufficient to prove that the robbery against the PW3 and PW4 was an armed robbery or series of robberies. I therefore hold that the robbery or robberies on the PW3 and PW4 in the night of 14th/15th May, 2008 was armed robbery or robberies.

In a charge of robbery, apart from proving that there was a robbery and that the robbery was an armed robbery, the prosecution must adduce credible evidence which must show beyond reasonable doubt that the accused person was either the robber or one of the robbers. The learned trial Judge realized this fact when he found at page 57 of the records (page 12 of the judgment) that:
“Now coming back to this case the strong contention of the learned counsel for the accused persons is that there is no direct evidence before the court to link the accused persons with the alleged robberies because they were never apprehended at the scene.”

Having pointed that out, the learned trial Judge found the Appellant guilty of the offences charged against him.

Now, learned counsel for the Appellant had submitted that, there was no positive evidence from the eye witnesses which identified the Appellant as one of the persons who committed the alleged robbery. By this submission, the identity of the Appellant as a participant in the robbery charged has thereby been put in issue. The evidence from the prosecution witnesses, especially the PW3 and PW4 is that they identified the Appellant as a participant in the act of armed robbery against them.

Identification evidence is evidence showing or tending to show that the person charged with an offence is the same person who was seen committing the offence. The law is that, the question whether an accused person is properly identified as the one who committed the offence or was a party to the commission of the offence charged is a question of fact to be considered by the trial court on the evidence adduced by the prosecution for that purpose. See Udukwu v. The State (2009) (pt.1139) p.43. That being so, where the identity of an accused person as a participant in the crime charged is in issue, a trial court is enjoined to warn itself and thus be cautious and meticulous in the examination of the evidence adduced, so as to see whether there are weaknesses in the evidence, capable of engendering any allegation that the accused was sufficiently identified by the witnesses at the time of the commission of the offence charged. This requirement is more desirable in situations where the offence charged is armed robbery, as in this case, where the penalty is the highest known to our law, which is death. See Archibong v. State (2006) 5 S.C. p.1 and Tanko v. State (2006) 18 NWLR (pt.1114) p.591.

It is settled law however that, the identity of an accused person will not be in doubt if there is evidence before the court showing the opportunity the witness had to identify the accused person, Such evidence should however be received with caution and be weighed against other available evidence. See Olalekan v. State (2001) 18 NWLR (pt.746) p.793; Ajibade v. State (1987) 1 NWLR (pt.48) p.205; Abudu v. State (1985) 1 NWLR (pt.1) p.55 and Archibong v. State (2006) 14 NWLR (pt.1000) p.349.

Accordingly, in ascribing probative value to the evidence of identity, the courts have been enjoined to take the following factors into consideration: –
(a) The circumstances in which the eye witness saw the suspect or accused Person;
(b) The length of time the witness saw the accused;
(c) The lighting conditions at the scene of crime;
(d) The opportunity the witness had of close observation; and
(e) The previous contacts, if any, between the eye witness and the accused.
See Ndidi v. State (2007) 13 NWLR (pt.1052) p.653; Amoshima v. State (2009) 32 W.R.N. p.47 at 56; R v. Turnbull & Ors. (1976) 3 All E.R p.549 approved by the Supreme Court in Ikemson v. State (1989) 6 S.C. (Pt.5) p.114.

It follows therefore that, where the issue of identity of an accused person has been put in issue, it is necessary that the evidence adduced is concrete, cogent and convincing, pointing to the fact that the eye witness positively identified the accused person. In the instant case, the PW3 did not say that she knew the Appellant prior to the date of the robbery alleged. The PW4 stated positively that he knew the Appellant only at the State Armed Robbery Squad (SARS) office. He further stated under cross-examination that:
“I never knew any of these people until I saw them at SARS.”

It is clear therefore that the PW3 and PW4 who were the only eye witnesses and victims of the crime did not know the Appellant before the day of the robbery charged. The Supreme Court has enjoined in a plethora of cases that, where the victim did not know the accused person before or prior to the date of the incident, and was confronted for a very short time in the course of the commission of the offence, and in which time he might not have had full opportunity of observing the features of the accused, an identification parade will be necessary, Where the witness or victim claims to have known or recognized a person he knows as the offender or person who assailed him, then an identification parade is not necessary. See Ebenehi v. State (2008) 10 NWLR (Pt.1096) p.596; Agbi v. Ogbh (2005) 8 NWLR (Pt.926) p.40; Tanko v. State (2008) 16 NWLR (pt.1114) p.591; Ndidi v. State (supra); Nwaturuocha v. State (2011) 6 NWLR (pt.1242) p.170; Afolalu v. State (2010) 16 NWLR (pt.1220) p.584 and Attah v, State (2010) 10 NWLR (pt.1201) p.190.

In the instant case, I had pointed out that the evidence of identity came from the PW3 and PW4. The PW3 stated that the robbers came to her house at night. She also stated that, when they entered her room, they put off the light. She said:
“When they entered my room they put off my light. They shone a torch on my face. They asked if I wanted to identify them. I could identify them on the 15th when they were caught I pointed to them as those who robbed me.”
She later stated under cross-examination that:
“I could identify them through their torch light. I saw them clearly even though they put off the light. I saw three of them. Three of them entered my room.”

It is clear that the evidence on the identity of the Appellant as narrated by the PW3 is not positive and unequivocal. It is not credible. She had testified that the robbers put off the light in her room when they entered. The only light in the room was therefore the light from the torchlight carried by the robbers. The robbers used the torchlight to shine at her face. It is common knowledge that light from a torchlight does not refract back to the user when shone. The witness therefore stated the impossible when she stated that she was able to identify the robbers through their torchlight.

The PW4 on his part stated that he knew the Appellant at the SARS office. He also stated that when the robbers entered his house, he was still sleeping and that when they entered his room, after being woken up, they ordered him to face the floor. That when he tried to lift his head, one of the robbers injured him with a pair of scissors. He admitted under cross-examination that:
“I never knew any of these people until I saw them at SARS. Due to the torch fight they shone on me,
I could not see their faces.”

It is therefore clear that upon the totality of the evidence adduced in this case, the only evidence of identity came from the PW3. The PW1 and PW2 were neither victims nor eye witnesses to the act of robbery. Any evidence from them as to the culpability of the Appellant in the act of robbery alleged by the PW3 and PW4 is therefore hearsay. The PW4 said that he was unable to identify the Appellant during the robbery on him. It has been found that the testimony of the PW3 on the identity of the Appellant as a participant in the act of robbery against her is incredible and therefore of no probative value.

From the record however, the learned trial Judge relied mainly on the confessional statements of the Appellant when he held at page 58 of the Record of Appeal that:-
“The evidence adduced by the prosecution mainly in my view consisted of the confessional statements of the accused persons and circumstantial evidence… I will now examine the confessional statements and the circumstantial evidence relied upon by the prosecution to sustain the charges against the accused person.”

After stating the law on confessional statements and reflecting on the extra-judicial statements (Exhibits ‘H’ and ‘M’) made by the Appellant, the learned trial Judge then held that:-
“In my view, as I stated earlier the retraction of the statements is of no moment in this case. Apart from the fact that the said statements were admitted in evidence without any objection, many pieces of independent evidence corroborated the confessions of the accused persons pointing to the irresistible fact that they committed the robberies they were charged with… I believe the evidence of PW6 and PW7 the I.P.Os in this case that the statements were made by the accused persons after they volunteered to make them. Let me add that although it is desirable that where possible an accused person’s statement should be taken down in his words but even where the police interprets it into another language and writes it in that other language, the statement is admissible.”

Learned Counsel for the Appellant had argued that the learned trial Judge did not give consideration to the unchallenged evidence of the Appellant that he made Exhibits ‘H’ and ‘M’ under duress. In other words that, the Appellant had resiled from or retracted the confessional statement, so the learned trial Judge was wrong to have convicted the Appellant on the alleged confessional statement. The issue of admissibility of the extra-judicial statements had earlier been settled in the course of this judgment. I need only state here that, there is no law that prohibits a court from relying upon and convicting on the confessional of an accused person. Thus, My lord, Muntaka-Coomassie, JSC in the case of Lasisi v. State (2013) All FWLR (pt 707) p.611 at 635 paragraphs C-E stated the law in the following words:-
“… It is a settled principle of law that courts can convict an accused person on his confessional statement if the statement was given freely, voluntarily and without threat of force on the accused person: Saidu v. The State (1982) 4 SC 41; Adebayo v. Attorney-General, Ogun State (2008) All FWLR (Pt.412) 1195. (2008) 2 SCNJ 352. Equally, a voluntary confession made by an accused person is relevant and admissible against him at the trial… It is for the trial Judge to determine at the end of hearing, whether the
contents of the statement are true as part of his determination of the truth or otherwise of the whole case presented by the prosecution.”
It is therefore settled law that a free and voluntary confession, which is direct and positive, is the best evidence which the prosecution can present in prove of the charge against an accused person. Accordingly, where such admission or confession is proved to be true in any criminal trial, it is sufficient without more, to ground a conviction of the maker of the statement for the offence he is charged with. See Uzoka v. F.R.N. (2010) 2 NWLR (pt.1177) p.118 at 147; Mohammed v. State (2007) All FWLR (Pt.383) p.46 at 60; Nwosie v. State (2004) All FWLR (pt.218) p.916 and Akinmoju v. State (2000) 6 NWLR (Pt.662) p.608,
It is however the law that, before a trial court can rely on such confessional statement to convict an accused person for the offence charged, it is required as a matter of established practice, to ascertain the truth of the confession. In other words, it has become the practice that any confessional statement be tested and examined in the light of other evidence outside the confession. Thus in Lasisi v. State (supra), M. D. Muhammad; JSC held at page 625 paragraphs C-D as follows:-
“Where his confessional statement is direct, positive and unequivocal as to the admission of his guilt, the statement is enough to ground an accused person’s conviction, notwithstanding the fact that he has resiled from the statement. Of course, it is desirable to ensure that other ascertained facts consistent with the confessional statement abound before convicting the accused. The law does not, however, preclude a court from convicting an accused only on his confessional statement where the statement is found to be direct, positive, and unequivocal.”
See also Kaza v. State (2008) 7 NWLR (pt.1085) p.125; Tanko v. State (supra); Kareem v. State (2002) FWLR (pt.125) p.796 at 810; Nwachukwu v. State (2007) 17 NWLR (Pt.1062) p.31 at 70; Akpa v. State (2008) 14 NWLR (pt 1106) p.72 at 98-99 and Nwaebonyi v. State (1993) 5 NWLR (pt.343) p.138 at 150.

In the evaluation of the evidence of confession, the trial court is enjoined to test the truth of the confession by answering the following questions:-
“(i) Is there anything outside the confession to show that it is true?
(ii) Is the confession corroborated?
(iii) Are the statements made in it of facts, so far as can be ascertained, true?
(iv) Was the accused a person who had the opportunity of committing the offence?
(v) Is the confession Possible?
(vi) Is the confession consistent with other facts which have been ascertained?”
It is however not the law that in all cases the confessional statement must be corroborated before the trial court can convict on it. Thus, once the confessional statement is direct, positive and unequivocal, it is the best evidence and the trial court can lawfully and conveniently convict on it without the need for any corroborative evidence. See Ubierho v. State (2005) 5 NWLR (pt.919) p.644; Isa v. State (2007) 12 NWLR (pt.1049) P.596; Nsofor v. State (2004) 18 NWLR (Pt.905) p.292; Nwachukwu v. State (2007) All FWLR (Pt.390) P.1380 at 1410; Shazali v. The State (1988) NWLR (Pt.93) p.163); and Udofia v. State (1984) 12 S.C. p.139.

Learned counsel for the Appellant has argued that the learned trial Judge did not consider that the Appellant retracted or resiled from his confessional statements at the trial. It is not the law where an accused person has retracted his confessional statements, such statement is rendered unreliable or incapable of sustaining a conviction. Rather, it is the law that, because a confessional statement made to the police and tendered in evidence by the prosecution, is part of the evidence adduced by the prosecution; accordingly, even where the accused person retracts or resiles from such a confessional statement in his testimony at the trial, it is of no moment, and the court can still convict on such confessional statement alone. See Obosi v. The State (1955) NMLR p.119; Ikemson & 2 Ors. v. The State (1989) 3 NWLR (Pt.110) p.455 at 467-468; Durugo v. The State (1992) 7 NWLR (pt.155) p.525 and Egboghonome v. The State (1993) 7 NWLR (Pt.306) p.382.

All the trial court need do before convicting on such retracted confessional statement, is to first look for some corroborative evidence outside the confession, circumstantial or otherwise, which connects or tends to connect the accused person with the commission of the offence.

I have carefully perused the evidence adduced by the prosecution in this case. I have also studied the confessional statement, vis-a-vis the evidence led at the trial. I find that the evidence of identity of the Appellant as a participant in the crime charged was not proved on the standard required by law. It is my view that, the case of the prosecution was built on mere speculation or suspicion. The totality of the evidence adduced by the prosecution is that, the PW1 in company of others saw the Appellant and his co-accused coming out of the bush and decided to accost them, on the reasoning that acts of armed robbery was rampart in the area. That upon being questioned two of them run away, while one was captured. The others were also captured subsequently and were all taken to the police on suspicion that they are the robbers who had been terrorizing the area. That the Appellant and his co-accused subsequently confessed to the crime in two statements he made to the police. I find upon a careful perusal of the evidence however that other facts revealed in the evidence adduced at the trial have created doubt as to the truthfulness of the confessional statements the Appellant is said to have made.

First of all, the PW1 stated that the Appellant and his co-accused were accosted at about 11.30p.m on the 14tr of May, 2008. That the Appellant was arrested that night. The PW1 stated further that, Saura Mojeed (PW3) and Mutiu (PW4) told him that they were robbed at about 2.00a.m on Wednesday the 14th May, 2009. He confirmed under cross-examination that they met the Appellant and others coming out of the bush at 11.30p.m. The PW2 stated that his people called to inform him that some boys they suspected to be the robbers terrorizing their area had been arrested at 10.30p.m on the 14th/15th May, 2008. He also confirmed that the Appellant was arrested that night of 14th May, 2008. The PW3 also testified that the robbers came to her house on Wednesday night being the 14th May, 2008. She did not state the time she was robbed. The PW4 on the other hand stated that the robbers came to his house when he was sleeping in the night of the 14th/15th May, 2008. Like the PW3, he did not state the particular time the robbers attacked him on the 14th May, 2008. What evidence is on the time the PW3 and PW4 were attacked is therefore the testimony of the PW1, who testified on oath that the PW3 and PW4 reported to him that they were robbed at 2.00a.m on the 14th May, 2008. It should be remembered that the PW1 stated that they saw the Appellant coming out of the bush at 11.30p.m on the 14/5/2008. Going by the testimony of the PW1, PW3 and PW4 therefore, it is undoubtedly clear that the Appellant had been arrested by the Vigilante Group led by the PW1 before the PW3 and PW4 were robbed. Clearly therefore, the Appellant had no opportunity of participating in the robbery attack on the PW3 and PW4.

Furthermore, the confessional statement which the trial court relied upon (Exhibits ‘H’ and ‘M’) do not support the testimonies of the PW1, PW3 and PW4. In Exhibit ‘H’ the Appellant stated that:-
“… yesterday 15/05/08 at about 10.00pm, myself, Saidi and Kamorudeen Adebayo deceased (sic) to go for another robbery operation…”

He then stated that he was arrested in the morning of 16/05/08. By those statements of the Appellant it cannot be said that he had confessed to robbery that is said to have occurred on the 14/5/2008. Furthermore, his statement in Exhibit ‘M’ contradicts Exhibit ‘H’ as to the date of the operation. In Exhibit ‘H’ which is earlier in time, he stated that the robbery was on the 15th of May, 2008 at about 10.00p.m, while in Exhibit ‘M’ he stated that it was on the 14/05/2008 at about 11.00p.m. and that he was arrested at 10.30pm., on the 15/05/08. These statements apart from being contradictory of each other, contradict the testimony of the PW3 and PW4 that they were robbed at 2.00a.m on the 14/5/08. It is therefore obvious that the confession of the Appellant is not direct, positive and unequivocal that he was one of the persons that robbed the PW3 and PW4 on the 14th/15th day of May, 2008.

One other thing I noticed is on the counts of charge on the Amended Charge against the Appellant. On Counts 1, 2, 3 and 4, the offences were said to have been committed at about 22.30 hours, 26.00 hours, 27.00 hours and 25.00 hours respectively. It is a fact which is of common knowledge and which this court or any other court can take judicial notice of is that, there are 24 hours in a day. Thus to say that an offence was committed at 25.00 hours or 26.00 hours or 27.00 hours is incredible, but that is the time alleged in the charge the offences were committed.
I would also agree that the confessional statement upon which the Appellant was convicted constitute hearsay. The PW6 who recorded Exhibit ‘H’, which is the alleged confessional statement of the Appellant made at the Ogbere Divisional Police Station, stated that he cautioned the Appellant in English before he “obtained” their statements. He repeated under cross-examination that he obtained the statement of the Appellant in English. He however stated further that:
“They do not understand English but somebody assisted me. It was interpreted to me by somebody, The suspects cannot read or write. The 3rd accused person can speak English.”
In re-examination, he stated that the statements of the Appellant and his co-accused was interpreted to him by a woman Constable Tutu Falana. It is my understanding of PW6 that, the Appellant made his statement to him in a language other than the English language and which statement was interpreted to him by woman Constable Tutu Falana. The Appellant did not write his statement as PW6 stated clearly that the suspects, which include the Appellant, could neither read nor write. The Woman Constable Tutu Falana who interpreted the statement of the Appellant to the PW6 was never called to testify as required or enjoined in the in the case of F.R.N. v. Usman (2012) 8 NWLR (pt.1301) p.141. In that case Rhodes-Vivour, JSC stated clearly at pages 159-160 paragraphs H-A that:
“When the purpose for tendering a statement is to establish the truth of its contents, and the statement was obtained with the help of an interpreter, both the interpreter and the person who recorded the statement must give evidence in court. The statement is hearsay and inadmissible if the interpreter does not testify in court. See Ogbuewu v. Queen (1949) 12 WACA p.483; Gidado v. R. (1940) 6 WACA p.60; Nwaeze v. State (1996) 2 NWLR (pt.238) P.1.”
My lord of the Supreme Court further cited the case of Shivero v. The State (1976) Vol. 10 NSCC p.197 to further hold that:-
“It now becomes clear that where a conviction is based solely on a confessional statement, and the interpreter who acted as interpreter when the said statement was obtained did not testify, the confessional statement is hearsay evidence and the accused person is entitled to an acquittal. Both statement Exhibits 1 and 2 of the Respondents were obtained with the help of an interpreter. The 2nd Respondent was cautioned by the PW1 Adewale Nwani (Police Sgt. 188427). His statement was obtained in Hausa language by Sgt. Andrew Allison and interpreted to PW1, and thereafter explained to the 2nd Respondent.”
It was therefore held that, their testimony was given to establish the truth of the contents of the statement of the Appellants, and so were declared hearsay and inadmissible. My lord, Mohammed, JSC on his apart put it this way:-
“On the above authorities and many others on the issue at hand, the decision of court below that the failure to call the interpreters of the statements of the Respondent from English to Hausa and vice-versa during the trial of the Respondents, rendered the statement inadmissible.”
In the same vein, since Woman Constable Tutu Falana who interpreted the statement of the Appellant to the PW6 was not called as a witness, Exhibit ‘H’ in as much as was relied upon by the trial court to convict the Appellant was inadmissible as it is hearsay. The fact that the Appellant is said by the PW6 to understand English does not derogate from the position, since PW6 did not say that he made his statement in English. There is also no evidence outside the confessional statement relied on by the trial court linking the Appellant to the commission of the offences charged. I therefore hold that on the evidence on record, the learned trial Judge erred greviously when he convicted the Appellant of the offences charged. The same fate also befalls Exhibit ‘M’.

Before I conclude, let me refer to the admonition of the Supreme Court to trial Judges, per Rhodes-Vivour, JSC in the case of Chukwuka Ogudo v. The State (2011) LPELR – 860 (SC) p.30 paragraphs B-D.
His lordship said:-
“No matter how rampant, reprehensible armed robbery is in the society, Judges who sit to hear such cases should strive to be detached and seek justice with an open mind. They are to ensure that a person accused of armed robbery is given every opportunity to defend himself, and so before convicting on a retracted confessional statement such a statement must be subjected to detailed scrutiny.”

In the instant case, the learned trial Judge did not take heed of this well timed preachment from the highest citadel of justice in our land. This led to a perverse decision, resulting in a judicial order for the termination of the life of the Appellant, when there was no evidence linking him to the commission of any of the crimes he is accused of. This finding of the trial court leading to the conviction of the Appellant should not be allowed to stand. I therefore hold that the learned trial Judge erred when he convicted the Appellant on the four count charge. None of the charges for which the Appellant was convicted was proved by the evidence on record. Thus issues 2 and 3 are hereby resolved in four of the Appellant.
Having found as above, it is clear that this appeal is meritorious. It is accordingly allowed. I therefore set aside the judgment of the Oyo State High Court, holden at Ibadan in Suit No. I/29C/09 delivered on the 18th day of January, 2011 as respects the Appellant. Consequently, the conviction and sentence passed on the Appellant for conspiracy to commit felony and for armed robbery are hereby set aside. The Appellant is therefore discharged and acquitted.

MUDASHIRU N. ONIYANGI, J.C.A.: I have read the lead judgment rendered by my learned brother Tsammani JCA. He has meticulously dealt with all the four issues canvassed before us. I would like to add that the lynch pin of the appellant’s case as the accused before the trial court is whether the appellant’s confessional statements were voluntarily made and whether the prosecution prove counts 1, 2, 3 and 4 beyond reasonable doubt in reaching the conclusion that the appellant was guilty and thereby sentencing him to death by hanging. See Grounds 1, 2, 3, 4, 5, 6, 7 and 8.

At page 15 of the judgment appeal against, the material contradictions are visible. They are on issues of time of arrest of the appellant, the object found on the assailants, the number of people that robbed PW3, lack of proper identification of the appellant, appellant not arrested in the premises of neither of PW3, PW4 or PW5.

A careful reading of the evidence of the prosecution witnesses exposes the absence of any direct and positive evidence linking the appellant to the scene of crime. To me the trial of the appellant is based on mere suspicion built on the notion of rampancy of arm robbery in the area. It is trite law that suspicion however strong will not amount to proof – See Onyenankenya v. The State (1964) 1 NNLR, 34 and Alhaji Babangida v. The State NCC Vol. 3 page 1.
In the case of Daniel Nsofor & 1 Or v. The State (2003) Vol. 20 NSCQLR pg.74, Kalgo JSC as he then was has this to say on suspicion:
“I am also of the view that there is no evidence direct or circumstantial on record to support the convictions of the 2nd appellant of conspiracy to murder and murder and the totality of the evidence of PWs 2, 3, 4 and 6 only raise some suspicion which however strong does not constitute, proof of a criminal offence.”

In the light of the forgoing I consider it apt to adopt the saying of VOLTAIRE (Francois Marie Arouet) a French Philosopher and writer which goes thus:
“It is better to risk saving a guilty person than to condemn an innocent one”.
See the case of Abubakar Tijani Shehu v. The State (2010) 8 NWLR (pt.1195) 112 at 1284.
William Natson an English Writer also said:
“Let justice be done though the heavens fall”

On that note I entirely agree with the judgment of my learned brother. For the reasons he gave, I too set aside the judgment of the Oyo State High Court delivered by Hon. Justice E. Esan dated 18th day of January 2011. The conviction and sentence of the appellant for conspiracy to commit felony and armed robbery are also set aside. The appellant be and is hereby discharged and acquitted.

NONYEREM OKORONKWO, J.C.A.: I have had the privilege of reading beforehand the judgment of my brother HARUNA SIMON TSAMMANI JCA in which he ably pointed out the flaws in the judgment of the trial court which led to the conviction of the appellant.

The judgment demonstrates the need for extreme caution by trial courts to meticulously consider the evidence and the law in any trial for a capital offence and not to hastily rush to judgment on mere appearance.

I agree entirely with the judgment and the prescriptions therein. I allow the appeal and also discharge and acquit the appellant.

Appearances

Abiodun Olaleru, Esq.For Appellant

AND

M. O. Adebayo; Esq (A.G.; Oyo State) with F. B. Segun-Olakojo (Mrs); (Director Legal Drafting and Parliamentary Counseling, M. O. J. Oyo State)For Respondent

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