IBRAHIM DAN AUTA v. THE STATE (2014)

IBRAHIM DAN AUTA v. THE STATE

(2014)LCN/7338(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/S/22C/2013

RATIO

EVIDENCE: BURDEN AND STANDARD OF PROOF; BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

The law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Section 138(1) and (2) of the Evidence Act, Akpan Vs The State (1990) 7 NWLR (Pt.160) 101, Adamu Vs A. G. Bendel State (1986) 2 NWLR (Pt. 22) 284. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1990, provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from the provision of the Nigerian Constitution cited above, it is plain that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Alabi Vs The State (1993)7 NWLR (Pt.307) 511 at 531 paragraphs A -C, Solola Vs The State (2005) 5 SC (Pt.1)135. per. PAUL A. GALINJE, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; THE INGREDIENTS OF THE OFFENCE OF CONSPIRACY

For the prosecution to prove the offence of conspiracy, it must establish by credible evidence:-
(i) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
(ii) That each of the accused individually participated in the conspiracy. per. PAUL A. GALINJE, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT; WHETHER AN ACCUSED CAN BE CONVICTED SOLELY BASED ON HIS CONFESSIONAL STATEMENT

EVIDENCE: CONFESSIONAL STATEMENT; THE DISCRETION OF THE COURT IN ADMITTING A STATEMENT ALLEGEDLY MADE BY AN ACCUSED PERSON THAT IS CHALLENGED BY DENYING EVER MAKING IT AND WHETHER A TRIAL COURT CANNOT CONVICT AN ACCUSED BASED ON SUCH DENIED CONFESSIONAL STATEMENT

Where in a criminal trial, a statement allegedly made by an accused person is challenged by denying ever making it, there is no issue of admissibility raised thereby and the court is at liberty to admit it in evidence. The court’s duty then would be in determining at the conclusion of the case whether or not the accused person made the statement. See The State Vs Salau (2011)18 NWLR (Pt. 1279) 883 at 905-906 paragraphs G -A; Dawo Vs The State (1980) NSCC 334, Echot Vs The State (1993) 4 NWLR (Pt.290)644, Ikpasa Vs A. G. Bendel State (1981) 9 SC 7. However a trial court cannot convict an accused person based on such denied confessional statement in the absence of some other pieces of evidence outside the confessional statement which would make the admission contained in the confessional statement probable and likely to be true. In other words, the trial judge must subject such retracted confessional statement of the accused person to various test by comparing it with the evidence on record. per. PAUL A. GALINJE, J.C.A.

COURT: EVALUATION OF CONFESSIONAL STATEMENT; THE PRINCIPLES GUIDING EVALUATION OF CONFESSIONAL STATEMENT

The principles guiding evaluation of confessional statement as set out in Shurumo Vs The State (2010)16 NWLR (Pt. 1218) 65 at 119 paragraphs E -G are as follows:-
(a) Whether there is anything outside the confession to show that it is true;
(b) Whether the statement is corroborated;
(c) Whether the confession was consistent with other, facts which have been ascertained and proved at the trial;
(d) Did the accused have an opportunity of committing the offence;
(e) Is the accused confession possible;
(f) Are the facts stated in it true so far as can be tested
See Akpa Vs The State (2007)2 NWLR (Pt.1019) 500; Uwagbore Vs The State (1980) 8 -11 SC 236; Udofia Vs The State (1984)12 SC 139; Ojegele Vs The State (1988) 1 NWLR (Pt. 71) 414. per. PAUL A. GALINJE, J.C.A.

JUSTICES

PAUL A. GALINJE Justice of The Court of Appeal of Nigeria

AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria

M. L. SHUAIBU Justice of The Court of Appeal of Nigeria

Between

IBRAHIM DAN AUTA Appellant(s)

AND

THE STATE Respondent(s)

PAUL A. GALINJE, J.C.A. (Delivering the Leading Judgment): The Appellant herein was arraigned before the Sokoto State High Court, along with two other accused persons namely Hayatu Umar and Bello Ibrahim charged with the offences of conspiracy to commit robbery and culpable homicide, culpable homicide and robbery contrary to sections 97, 221 and 298 of the Penal Code respectively.

Appellant pleaded not guilty to all the charges. In proof of its case, prosecution called six witnesses and tendered several documents including the confessional statement of the Appellant which were admitted in evidence. The Appellant gave evidence in his defence and called no further evidence. Learned Counsel for respective parties addressed the court. In a reserved and considered judgment, delivered on the 25th June 2012, Bello Abbas J. Convicted the Appellant and his two accomplices on all the three counts charge and sentenced each of them to death by hanging and five years imprisonment under sections 221 and 298 of the Penal Code. No punishment was pronounced under section 97 of the Penal Code as the learned trial judge indicated in the judgment that punishment for conspiracy under section 97 is the same as having abetted the offence as charged.

It is against this conviction that the Appellant has brought this appeal. His initial notice of appeal at pages 106 – 108 of the record of this appeal dated and filed on the 12th July 2012 reads as follows:-
“The decision of the trial court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced at the trial.”

However by a motion dated 26th February 2013, and filed on the 27th February 2013, the Appellant sought for and was granted leave to file and argue three additional grounds of appeal. These additional grounds of appeal, without their particulars read as follows:-
1. The learned trial judge erred in law when he held that the retracted confessional statement of the Appellant was irresistibly corroborated by circumstantial evidence proffered by Pw4 -Pw6 sufficiently to warrant conviction for the offences of conspiracy, Culpable Homicide and Armed Robbery.
2. The learned trial judge erred in law when he convicted and consequently sentenced the appellant for the offence charged without sufficient evidence being led in proof of the offence.
3. The learned trial judge erred in law when he attached so much weight to the retracted confessional statement to ground the conviction of the Appellant.

Parties filed and exchanged briefs of argument. Mrs. Boma Ozobia, Learned Counsel for the Appellant formulated three issues for determination of this appeal.

These issues are hereunder reproduced as follows:-
1. Whether the lower court was right in holding that there was sufficient circumstantial evidence linking the Appellant to the commission of the crime.
2. Whether the lower court was right in attaching so much weight to the retracted confessional statement.
3. Whether the prosecution proved the offences against the Appellant beyond reasonable doubt to warrant the conviction and sentence to death by hanging and five (5) years imprisonment with hard labour.

Learned Counsel says these three issues are formulated from the 1st, 3rd and 2nd grounds of appeal respectively. It will appear that no issue is formulated from the original ground of appeal. It is therefore deemed abandoned accordingly that ground of appeal is hereby struck out.

For the Respondent, two issues were formulated for determination of this appeal. They read thus:-
1. Whether from the totality of the evidence adduced before the trial court, the prosecution has proved its case against the Appellant beyond reasonable doubt as required by law.
2. Whether the trial judge was right in convicting the appellant on the strength of evidence presented before it by the prosecution.

The issues formulated by the Learned Counsel for the Appellant are similar to those two issues formulated for the Respondent. They all question the assessment of the evidence before the learned trial judge and ascription of probative value to such evidence. Having therefore read through parties briefs of argument, I am of the firm view that the only issue calling for determination of this appeal is whether the prosecution has proved its case beyond reasonable doubt as to warrant the conviction and sentence passed on the Appellant.

Before I consider the arguments of Learned Counsel on both side, I will like to set out, albeit in brief the facts of this case as encapsulated in the testimonies of PW4, PW5 and PW6. Hayatu Umar, one of the accused persons who was tried and convicted along with the Appellant, on 22nd November 2009, the day the deceased was allegedly murdered, visited the home of the deceased several times and inquired about the deceased’s where about from the deceased wife. He told the deceased’s wife on inquiry that someone wanted to hire the services of the deceased’s camel to pack some stocks and he (Hayatu) was going to help the deceased to pack those stocks. Finally on that day, Hayatu met the deceased at home and together they rode out on the deceased’s Camel, Pw6, one Bashiru Isah also met Hayatu and the deceased on their way to wauru village on the donkey and that was the last time he saw the deceased alive. The statement of the Appellant in which he admitted taking part in the killing of the deceased and stealing his Camel was tendered and admitted as Exhibit B and the translated version Exhibit B1. In his evidence in chief, the Appellant denied making the confessional statement.

In her argument, Mrs. Boma Ozobia leading Mrs. Lemea Abina, Learned Counsel to the Appellant, who also settled the Appellant’s brief of argument, submitted that the conviction of the Appellant was based on circumstantial evidence. According to the Learned Counsel, for circumstantial evidence to support a conviction for murder, the evidence must lead only to one conclusion, and that is that it was the accused and no other person that committed the offence. In aid Learned Counsel cited Isma’il Vs The State (2008) 15 NWLR (Pt. 1111)593, Ibo Vs The State (1971) NMLR. 245, Mustapha Mohammed & 1 Or Vs The State (2007) 30 NSCQR (Pt 1)364 at 377, EsaiVs The State (1976)11 SC 39, Aigbadion VS The State (2000)7 NWLR (Pt. 666) 686. Learned Counsel made reference to the testimonies of PW4, PW5 and PW6 which were held by the lower court to be the circumstantial evidence upon which it relied and contended that those pieces of evidence had no connection with the appellant herein, as the said pieces of evidence were vague imprecise and leaves room for reasonable doubt. In a further argument, Learned Counsel submitted that the statements of the two other persons who were convicted along with the Appellant did not implicate the Appellant as they mentioned names of persons other than the name of the Appellant, as such their statements cannot be used as a foundation for the conviction of the Appellant.

On the confessional statement of the Appellant, Learned Counsel submitted that the lower court was wrong when it failed to subject Exhibits B and B1 to the test laid down in Nsofor Vs The State (2004)18 NWLR (Pt.905) 292, especially when the Appellant retracted the confessional statement in his evidence in chief. Still in argument, Learned Counsel submitted that the learned trial judge was wrong to have used the statement of the Appellant’s co-accused as evidence against the appellant. In aid Learned Counsel cited R Vs Sykes (1913) 8 CAR Appeal Report 233, Kanu Vs The King (1952/55)14 WACA 30, Dawa Vs The State (1980)8-11 SC 236 at 267 -268, Ozahi vs The State (1990) All NLR 94.

Finally Learned Counsel submitted that the faulty evaluation of the evidence of Pw4 -Pw6 by the learned trial judge undoubtedly led to a wrong finding on the part of the trial court which led to the conviction of the Appellant. In conclusion this court is urged to hold that the prosecution has failed woefully to prove its case beyond reasonable doubt and to enter a verdict of acquittal in favour of the Appellant.

For the Respondent, Mr. A. M. Dan-Ige of counsel, who also settled the Respondent’s brief of argument submitted that on the basis of the confessional statement of the Appellant and the corroborative evidence of Pw5 and Pw6, the prosecution has proved its case against the Appellant beyond reasonable doubt. According to the Learned Counsel, confession is the best form of evidence in our criminal procedure and when an accused has voluntarily confessed to the commission of offence, the prosecution needs not prove the guilt of the accused beyond reasonable doubt. In aid Learned Counsel cited Onuoha Vs The State (1987) 4 NWLR 65 at 78, Solola Vs The State (2005)3 QCCR 160@ 188 -189, UbierhoVs The State (2005)2 SCNJ 1.

In a further argument, Learned Counsel submitted that the failure of the Appellants counsel to cross examine Pw1 through whom Exhibit B and B1 were tendered, is a tacit acceptance of the fact as stated by the witness. In aid Learned Counsel cited Brown Vs The State (2005)31 WRN 162, Haji vs Paye (2003) SCNJ 20 at 35, Agbo Vs The State (2006) 6 QCCR 48 at 70. Finally, Learned Counsel submitted that retraction or resiling from the confessional statement by the Appellant in his evidence in chief did not render exhibits B and B1 unreliable for the purpose of convicting him. In support of this submission, Learned Counsel cited Kareesn Vs The State (No. 2) (2002)8 NWLR (Pt.720) 664 at 682 -683.

In conclusion, Learned Counsel urged this court to hold that the lower court was right when it rejected the evidence of the Appellant as an afterthought and convicted him as per the charge.
Learned Counsel further urged this court to dismiss this appeal.

Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1990, provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from the provision of the Nigerian Constitution cited above, it is plain that the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Alabi Vs The State (1993)7 NWLR (Pt.307) 511 at 531 paragraphs A -C, Solola Vs The State (2005) 5 SC (Pt.1)135.

The Appellant herein along with two others were arraigned and convicted for offences under sections 97(1), 221 and 298 of the Penal Code Law Cap. 104 Laws of Sokoto State 1996. These sections are hereunder reproduced for clarity as follows:-
“97(1). Whoever is a party to a criminal conspiracy to commit offence punishable with death or with imprisonment shall where no express provision in made in this Penal Code for the punishment of such a conspiracy be punished in the same manner as if he had abetted such offence.
221. Except in the circumstances mentioned in section 222 culpable homicide shall be punished with death:-
(a) If the act by which the death is caused is done with the intention of causing death; or
(b) If the doer of the act knew or had reason to know that death would be the probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause.
298. Whoever commits robbery shall be punished:-
(a) With imprisonment for a term which may extend to ten years and shall also be liable to fine; and
(b) If the robbery is committed –
i. Between Sunset and Sunrise on the highway; or
ii. Between sunset and sunrise from a person sleeping or having lain down to sleep in the open air, with imprisonment for a term which may extend to fourteen years and shall also be liable to fine; and
(c) If the robbery is committed by any person armed with any dangerous or offensive weapon or instrument to imprisonment for life or any less term and shall also be liable to fine.”

Offences of conspiracy, culpable homicide and robbery are defined under Sections 96, 220 and 296 of the Penal Code respectively. I will therefore consider the argument of counsel in respect of the offences in the order in which I have mentioned them above and relate them to the evidence submitted by the prosecution, with a view to finding out whether the latter has successfully proved its case beyond reasonable doubt.

In the instant case, the only evidence linking the Appellant to the offence of conspiracy is his confessional statement, Exhibit B, and the translated version into Hausa, Exhibit B1. This exhibit was admitted in evidence without any objection. In the said exhibit B, the Appellant is alleged to have confessed to the commission of the crime for which he is charged along with two others in the following words:-
“I was in my house together with my friend Bello Ibrahim, when one boy named Hayatu met us, I heard him saying to Bello Ibrahim that we should meet in the bush along Wauru road that he will come with one man with his Camel. I and Bello Ibrahim came with one old man named Dangomma with his Camel. It was there Hayatu hit Dangomma and he fell down. After Hayatu have slaughtered Dangomma, I took his Camel and went away. I took the Camel to Tuhur village where I sold it to one Umaru Aliyu at the cost of N70, 000.00k.”

In his evidence in chief during his trial, the Appellant denied making the statement. He narrated how he was tortured by the investigating police officer.

The law is settled that a free and voluntary confession by an accused person, if direct, positive and satisfactorily proved is sufficient to ground a conviction, even if there is no corroborative evidence to establish the truth of the confession. In the instant case, the Appellant denied making the confessional statement during his trial. His evidence is at pages 69 -70 of the printed record of this appeal. In his evidence in chief the Appellant stated that he was arrested when he came out of the mosque on a Friday in his village, after the Friday prayers and taken to police station at Gada where he was taken to a room where he saw human excreta and blood. There the police asked him to tell the truth. As he was talking with one of the policemen, a policeman slapped him from the back. As he tried to see the person who slapped him, the police in front gave him another slap. The policemen continued to slap him until he fell on the human excreta before they stopped beating him. Under cross examination, Appellant said he did not make any statement at the state C I D office.

On the confessional statement of the Appellant and the two others who were tried and convicted along with him, the learned trial judge in his judgment had this to say:-
“Exhibits A, A1, B, B1 and E, E1 their English versions quoted in full above, being free and voluntary confessional statements of all the accused persons in this case were not objected to by the defence when sought to be admitted in evidence by the prosecution on voluntariness or otherwise nor was the court asked to conduct trial within trial. These confessional statements were corroborated by the P. Ws 4 and 6 which evidence is independent outside these confessional statements.
I accept and believe the evidence of the prosecution led witnesses being circumstantial in nature that corroborated the voluntary confessional statements of the accused persons as the truth and reject the framed -up story narrated by the accused persons in their respective defences when they gave evidence as Dw’s 1, 2 and 3 as untrue and an afterthought.”

I have read through the testimony of Pw4 and Pw6 and there is nothing in those testimonies that concerned this appellant. Pw4 the wife of the deceased stated in her evidence that she last saw her husband alive with one Hayatu Umaru when he rode with her husband on the latter’s Camel out of the house. Pw6 gave evidence that is consistent with the evidence of Pw4, when he said:-
“On 22/11/2009 I was coming from home and I met Dan-Gwamma on the way together with this boy (witness points at 1st accused) Hayatu. They were on Dan Gwamma’s Camel I went to Faho and they went to Wauru. Since then I have not seen the deceased and even Hayatu it was today that I saw him in court. Up to next day we could not see Dan- Gwamma. We later heard that they found body of Dan-Gwamma in the bush slaughtered.”

Clearly this piece of evidence has no connection with this Appellant. At best it is evidence establishing the doctrine of last seen against one Hayatu Umar, who was tried and convicted along with the Appellant, as the 1st accused person. However Hayatu Umar, the 1st accused person during the Appellant’s trial made the following startling admission in his confessional statement Exhibit E as follows:-
“I could remember last month, a week of Sallah on Sunday in the month of 11/2009 at about 3:00pm I and two others, one Bello and Ibrahim all of the same address, went to Wairu road at Ardo’s ranch where we met Dan goma with his Camel we stopped him. Ibrahim hit him. I and Bello pushed him to the ground and Bello slaughtered him and we went away with his Camel and left his body there. Ibrahim gave us N40, 000.00k and went away with the Camel to Ilella market.”

Ibrahim that is mentioned by Hayatu Umar could be the Appellant herein. The law is trite that for a confessional statement to be admissible it must have been made by the accused person against whom it is to be used. An admission made by a co-accused to the police officer in charge of investigation cannot be treated as a confessional statement against the accused however positive and direct the statement might have connected the accused with the crime. In the case of Olusegun & Ors Vs The State (1968) NWLR 261, the Appellants were charged and convicted of robbery. They were convicted upon the evidence of the 1st prosecution witness, a self-confessed accomplice who was formerly charged along with the appellants before he turned prosecution witness and the evidence of some other prosecution witnesses. The appellants challenged their conviction and sentence on various grounds which included the reliance of the trial court on the confessional statement of the accomplice to convict them. The appellate court held among other things that though the statement of an accused person could be used against him, it would not be used as evidence against another accused person. I therefore agree with the Learned Counsel for the Appellant that the lower court was wrong when it used the statement of the Appellant’s co-accused as evidence against the appellant. Such statements of co-accused could be used against the Appellant if the appellant had expressly adopted such statement. Throughout the trial there is no evidence that the appellant adopted the statements of the co-accused persons.

Having come to this conclusion, the only evidence against the Appellant is Exhibit B and B1 which is his confessional statement and its Hausa translated version. Although the statement was tendered and admitted without objection, the appellant denied making it. Where in a criminal trial, a statement allegedly made by an accused person is challenged by denying ever making it, there is no issue of admissibility raised thereby and the court is at liberty to admit it in evidence. The court’s duty then would be in determining at the conclusion of the case whether or not the accused person made the statement. See The State Vs Salau (2011)18 NWLR (Pt. 1279) 883 at 905-906 paragraphs G -A; Dawo Vs The State (1980) NSCC 334, Echot Vs The State (1993) 4 NWLR (Pt.290)644, Ikpasa Vs A. G. Bendel State (1981) 9 SC 7.

However a trial court cannot convict an accused person based on such denied confessional statement in the absence of some other pieces of evidence outside the confessional statement which would make the admission contained in the confessional statement probable and likely to be true. In other words, the trial judge must subject such retracted confessional statement of the accused person to various test by comparing it with the evidence on record.

In Nwaebonyi Vs The State (1994)5 SCNJ 86, the Appellant was tried and convicted for murder. The prosecution relied on the evidence of some witnesses and the confessional statement of the Appellant, which was properly endorsed by a superior police officer. At the hearing the appellant resiled from the statement, by saying he did not make it. The trial judge disbelieved him. He was accordingly convicted. His appeal to the court of appeal was dismissed. The Supreme Court while affirming the concurrent findings of the two lower courts relied on the principles applicable in determining what weight to be attached to a retracted confessional statement, held that the evidence of Pw1, Pw2, Pw3, Pw7 and Pw9 and exhibits ‘A A1’ established beyond any shadow of doubt that the appellant had both the motive and culpability of committing the crime he was charged with and convicted of. There is evidence outside Exhibit ‘A A1’ both direct and circumstantial that goes to show that its contents were true.

In the instant case, there seem to be nothing outside the confessional statement of the appellant that tend to satisfy the principles guiding evaluation of confessional statement, where an accused person has retracted his confessional statement. The learned trial judge was therefore wrong in convicting the Appellant for the offence of conspiracy to commit culpable homicide punishable with death and robbery solely on the confessional statement of the Appellant without having regard to the principle guiding evaluation of confessional statement which has been retracted, and so I hold.

Appellant was also convicted for offence of culpable homicide under Section 221 of the Penal Code for the prosecution to succeed, it must prove:-
1. That the death of a human being has actually taken place;
2. That such death has been caused by the accused;
3. That the act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury, as:-
(i) The accused knew or had reason to know that death would be the probable and not only the likely consequence of his act; or
(ii) That the accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.

Where there is no evidence to prove that the accused had anything to do with the death of the deceased, no conviction can stand, and where the medical evidence does not show that the deceased met with a violent death, no charge of culpable homicide punishable with death can be brought.

In the instant case the prosecution relied solely on the confessional statement of the Appellant which was subsequently retracted by the Appellant during his trial. The learned trial judge failed to apply the principle guiding the evaluation of confessional statement that has been retracted. The conviction and sentence passed on the Appellant is therefore unlawful.

Just as I have found that the prosecution has not been able to prove its case beyond reasonable doubt in support of the charge for conspiracy to commit culpable homicide punishable with death, and robbery. For the same reasons I have also found that the prosecution has failed woefully to prove the offences of culpable homicide punishable with death contrary to Section 221 and robbery contrary to Section 298 both of the Penal Code. The sole issue formulated by me therefore is resolved in favour of the Appellant and against Respondent.
Having so done, this appeal shall be and it is hereby allowed. The conviction and sentenced passed on the Appellant is therefore set aside and quashed. In its place I enter a verdict of acquittal.
Appellant is hereby discharged and acquitted.

AHMAD OLAREWAJU BELOGORE, J.C.A.: I have read, in draft, the judgment just delivered by my learned brother, Hon. Just. Paul A. Galinje, JCA. I agree with the reasoning and conclusions contained in the judgment which I adopt as mine. I only wish to add a few words by way of emphasis.

In this case, there is no precise piece of evidence on the record connecting the Appellant with the crime for which he was charged, tried, convicted and sentenced. The only remote piece of evidence that could be said to likely connect him is that contained in the confessional statement (Exhibit E) made by one Hayatu Umar, a co-accused, tried along with the Appellant, which runs as follows:-
“I could remember last month, a week of Sallah on Sunday in the month of 11/2009 at about 3:00pm I and two others, one Bello and Ibrahim all of the same address, went to Wairu road at Ardo’s ranch where we met Dan goma with his camel we stopped him. Ibrahim hit him. I and Bello pushed him to the ground and Bello slaughtered him and we went away with his camel and left his body there. Ibrahim gave us N40,000.00k and went away with the camel to Illela market”.

The learned trial Judge treated this as an admission by the Appellant or as evidence corroborative of the retracted statement of the Appellant. Either way, the learned trial Judge was wrong. An admission can only be against its maker. It cannot be used against a co-accused person unless he adopts it expressly or by conduct. Our law is very clear about this. Sections 28 and 29(1) and (4) are very explicit on the issue of confession and its applicability. The Sections provide thus:-
“Section 28:
A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime.
Section 29:
(1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in the proceedings and is not excluded by the court in pursuance of this Section.
(4) Where more persons that one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct”.
These provisions have received judicial interpretation. See Titilayo vs. State (1998) 2 NWLR (Pt. 537) 235 where it was held, inter alia, that –
“By virtue of Section 27(3) of the Evidence Act (now Section 29(4) of the Evidence Act, 2011), where an accused person makes a confessional statement in the presence of a co-accused which incriminates the said co-accused, such a statement cannot be taken into consideration by the court as against such a coaccused unless he adopted the statement either by word or conduct. This means that a man’s confession is only evidence against him and not against accomplices unless the latter adopt the statement. In the instant case, since the conviction of the appellants was founded on the confessional evidence of the 9th and 10th co-accused persons incriminating the appellants but which the appellants did not adopt but denied, their conviction is unjustified……………….
An incriminating statement made even on an occasion which could reasonably be expected to call for explanation from him is not evidence against him on his trial of the facts therein stated save in so far he has accepted the statement. Where such statement which he did not adopt, is used to found or secure his conviction, the conviction must be quashed on appeal”.

In the instant appeal, the conviction of the appellant has to be quashed because the incriminating statement of a co-accused has been used in securing his conviction. Outside Exhibit E, there is nothing else in the body of evidence in this case connecting the appellant with any of the offences for which he was charged, tried and convicted with his co-accused persons.

It is for this reason and the fuller reasons contained in the lead judgment, which I adopt as mine that I allow this appeal.

M. L. SHU’AIBU, J.C.A.: I have read the draft of the judgment of my learned brother, Paul A. Galinje, JCA in this appeal. I agree with his reasons and conclusion he arrived at. I wish however to say a few words by way of contribution to well researched and written judgment.

The Appellant and his two accomplices were found guilty and sentenced to death by hanging for offences of conspiracy to commit robbery and culpable homicide, robbery and culpable homicide under sections 97, 221 and 298 of the Penal Code.

The law is settled that when two or more persons formed a common intention to commit a criminal act in conjunction with one another and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequences of such purpose, each of them is deemed to have committed the offence. In other words a common intention need not to be based on direct evidence or on express agreement between the perpetrators of an offence charged. It can also be inferred from the circumstances of the case. However; where there is a common intention to commit an unlawful act, there must be evidence of the three elements that constitute the offence namely;
(a) There must be evidence showing that the accused persons had formed a common intention to prosecute an unlawful purpose together;
(b) That in furtherance of the execution of the unlawful purpose a person was robbed and or killed; and
(c) That the death of that person was a probable consequence of prosecution of the unlawful purpose.

In the instant case, there was no evidence showing that the Appellant formed a common intention with the two accomplices to prosecute any unlawful purpose in furtherance of which they robbed and killed the deceased, Barmo Dan Gwamna.

On the substantive offences of robbery and culpable homicide punishable with death under sections 298 and 221 of the Penal Code; the trial judge at page 98 of the records found thus:-
“As the court however cannot speculate on the other accused persons, I take into account their extra judicial statements wherein they gave a graphic description on the role each had played having made exhibits A, A1, B and B1 respectively.”

Also at page 99, the trial judge found as follows:-
“In the case at hand the said confessional statements of the accused persons were not contested at the trial on voluntariness but merely retracted by DW1, 2, and 3 when the accused persons all testified before this court in defence to the offences frame against them in the charges.”

From the above, the trial Judge was emphatic that the only evidence against the Appellant in respect of the allegations of robbery and culpable homicide are his extra judicial statements Exhibits B and B1. That the said statements were retracted by the Appellant when he testified as DW3. In HASSAN V. STATE (2001) 15 NWLR (Pt.735) 184 at 198 it was held that an accused person can be convicted on his confession alone regardless of the fact that he resiled therefrom or retracted it altogether at the trial. However, the retraction notwithstanding, a confessional statement must be considered along with other evidence by the trial court which will decide whether or not the accused did make the statement.

Reading through the judgment of the Lower Court in this case, it is obvious that the learned trial judge did not clearly understood the need to consider other evidence outside the Appellant’s extra judicial statements. At page 102 of the records, the trial judge concluded thus:-
“Exhibits A, A1, B, B1 and E, E1 their English Versions quoted in full above being free and voluntary confessional statements of all the accused persons in this case were not objected to by the defence when sought to be admitted in evidence by the prosecution on voluntariness or otherwise nor was the court asked to conduct trial within trial. These confessional statements were corroborated by the pieces of evidence given by PWs4 and 6 which evidence is independent outside these confessional statements.”

While the trial judge found that the evidence of the prosecution witnesses did not linked the Appellant with the killing of the deceased at page 98 of the records, he went further and found that the evidence of PWS 4 and 6 corroborated the Appellant extra judicial statements on page 102 of the records. Corroboration is not meant to give credence to evidence which is deficient, suspect or incredible. It is required to support the evidence which is sufficient, satisfactory and credible.The findings of the trial judge on the confessional statements of the Appellant, Exhibits B and B1 are not corroborated by satisfactory and credible evidence. And the said Exhibits B and B1 are not shown to have been subjected to the usual tests for ascertaining voluntariness of confessional statement.
In SHODIYA -V- STATE (2013) 14 NWLR (Pt.1373) 147 at 166 the Supreme Court held the firm view that conviction made solely on the basis of an accused’s confessional statement survives an appeal where the statement is not only voluntarily obtained, but it is direct, positive and unequivocal as to the entire ingredients of the offence for which the Appellant is convicted. However, where as in the instant case, the extra judicial statement of an accused is not compressive or total in relation to the offence the accused is convicted; the existence of such evidence outside the statement became a necessity to justify the persistence of the conviction on appeal.

It is clear that none of the witnesses added anything to the Appellant’s statement and the judgment of the Lower Court on page 102 of the records cannot provide any evidence where there is none. Therefore, I also allow the appeal and set aside the decision of the Lower Court. I abide by the orders in the lead Judgment.

Appearances

Boma Ozobia and J. T. NyiatagherFor Appellant

AND

A. M. Dan-igeFor Respondent