SAJO ABUBAKAR v. THE STATE
(2016)LCN/8299(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of March, 2016
CA/S/18C/2015
RATIO
EVIDENCE: CONFESSIONAL STATEMENT; THE WEIGHT TO BE ATTACHED TO A RETRACTED CONFESSIONAL STATEMENT
Now what is the weight to be attached to a retracted confessional statement in a criminal proceeding?
Okoro J.S.C. in STATE V. GWANGWAN (2015) LPELR – SC 504/2012 explained it thus:
“It is now well settled that the fact an accused has retracted a confessional statement does not mean that the Court cannot act upon it and rely on same to convict him. OZANA UBIECHO V. THE STATE (2005) LPELR – 3283 2005 (2 SC) (PT 1) 18; EDAMINE V. THE STATE (1996) 3 NWLR (PT 438) 530; AKPAN V. THE STATE (2001) LPELR 383 SC. (2001) 15 NWLR (PT 737)” per. TUNDE OYEBANJI AWOTOYE, J.C.A.
COURT: HOW THE COURT SHOULD EVALUATE THE RETRACTED CONFESSIONAL STATEMENT
However, the Court should evaluate the retracted confessional statement in the light of all the evidence available. See HARUNA V. THE A. G. FEDERATION (2012) LPELR – SC 72/2010.” According to Adekeye J.S.C. on pages 28 – 29 of the report, “A Court can convict on retracted confessional statement of an accused person before this is properly done, the trial Judge should evaluate the confession and the testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the Judge asking himself the following questions:-
Is there anything outside the confession to show that it is true? (a) Is it corroborated? (b) Are the relevant statements made in it of facts true as far as they can be tested? (c) Did the accused person have the opportunity of committing the offence charged? (d) Is the confession possible? (e) Is the confession consistent with other facts which have been ascertained and have been proved R v. SYKES (1913) CAR PG. 113, R v. OMOKARO (1941) WACA PP.146; ACHABUA V. STATE (1976) NSCC 74; YUSUFU V. STATE (1976) 6 SC.167″ per. TUNDE OYEBANJI AWOTOYE, J.C.A.
JUSTICES:
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MUHAMMED L. SHUAIBU Justice of The Court of Appeal of Nigeria
Between
SAJO ABUBAKAR – Appellant(s)
AND
THE STATE – Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the appeal against the judgment of Kebbi High Court sitting at Birnin Kebbi, delivered on 28/5/2013.
The charge against the accused/appellant at the Lower Court reads thus
“Charge No 1.
That you Sajo Abubakar “M”, Abba Bello “M” (now at large), Ladan S/Fulani “M” (now at large) and Binga Buda “M” (now at large) on or about the 24th day of February, 2012, at about 2215hrs along Tungan Alkasu to Argungu road of Argungu Local Government Area of Kebbi State and within the jurisdiction of Kebbi State High Court of Justice did commit the offence of Criminal Conspiracy to commit armed robbery in that while you were armed with sticks, cutlasses and knife attacked and robbed one Alhaji Maishanu and Haruna Garba both of Tunga Alkasu Village and this act was done in pursuance of your agreement and thereby committed an offence contrary to Section 5 (b) of the Robbery and Firearms (Special Provision) Act 1990 as amended.
Charge Two
That you Sajo Abubakar “M”, Abba Bello “M” (now at large), Ladan S/Fulani
“M” (now at large) and Binga Buda “M” (now at large) on or about the 24th day of February, 2012, at about 2215hrs along Tungan Alkasu to Argungu road of Argungu Local Government Area of Kebbi State and within the jurisdiction of Kebbi State High Court of Justice did commit the offence of armed robbery in that while you were armed with sticks, cutlasses and knife attacked and robbed one alhaji Maishanu “M” of Tungar Alkasu Village of the sum of Two Hundred Naira (N200), one china cell phone with two sim cards with no. 07063370759 and clothes valued at Nineteen Thousand Naira (N19,000) and thereby committed an offence contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provision) Act as amended.
Charge Three
That you Sajo Abubakar “M”, Abba Bello “M” (now at large), Ladan S/Fulani “M” (now at large) and Binga Buda “M” (now at large) on or about the 24th day of February, 2012, at about 2215hrs along Tungan Alkasu to Argungu road of Argungu Local Government Area of Kebbi State and within the jurisdiction of Kebbi State High Court of Justice did committed the offence
of armed robbery in that while you were armed with sticks, cutlasses and knife attacked and robbed one Haruna Garba “M” of Tungar Alkasu of the sum of Eight Hundred Naira (N800) and one Nokia cell phone with one sim card with no 08139276607 and thereby committed an offence contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended.
Charge Four
That you Sajo Abubakar “M”, Abba Bello “M” (now at large), Ladan S/Fulani “M” (now at large) and Binga Buda “M” (now at large) on or about the 24th day of February, 2012, at about 2215hrs along Tungan Alkasu to Argungu road of Argungu Local Government Area of Kebbi State and within the jurisdiction of Kebbi State High Court of Justice did commit the offence of Conspiracy to commit grievous hurt in that while you were armed with sticks, cutlasses and a knife attacked and inflicted injury on one Alhaji Maishanu and Haruna Garba “M” both of Tungar Alkasu village and this act was done in pursuance of your agreement and thereby committed an offence punishable under Section 97 of the Penal Code.
Charge Five
That you
Sajo Abubakar M, Abba Bello M (now at large), Ladan S/Fulani M (now at large) and Binga Buda ?M (now at large) on or about the 24th day of February, 2012, at about 2215hrs along Tungan Alkasu to Argungu road of Argungu Local Government Area of Kebbi State and within the jurisdiction of Kebbi State High Court of Justice did commit the offence of voluntarily causing grievous hurt in that while you were armed with sticks, cutlasses and knife attacked and inflicted injuries on one Alhaji Maishanu Mohd M of Tungar Alkasu Village by inflicting matchet cuts on his head and both legs and thereby committed an offence contrary to Section 243 of the Penal Code.
Charge Six
That you Sajo Abubakar M, Abba Bello M (now at large), Ladan S/Fulani M (now at large) and Binga Buda M (now at large) on or about the 24th day of February, 2012, at about 2215hrs along Tungan Alkasu to Argungu road of Argungu Local Government Area of Kebbi State and within the jurisdiction of Kebbi State High Court of Justice did commit offence of voluntarily causing grievous
hurt in that while you were armed with sticks, cutlasses and a knife attacked and inflicted injuries on one Haruna Garba “M” of Tungar Alkasu village by inflicting matchet cuts on his left hand and thereby committed an offence punishable under Section 243 of the Penal Code.
After the plea of accused was taken, the learned trial Judge heard the parties. The Court later gave the judgment against the accused inter alia thus:
“I hereby hold that the offence of voluntary causing grievous hurt under Section 243 of the Penal Code has been proved against the accused person.
In the end, the conclusion I reach is as follows:-
The 1st accused person Sajo Abubakar is found guilty and convicted on the following charges.
Charge No 1 – Conspiracy to commit armed robbery contrary to Section 5 (b) of the Robbery and Firearms (Special Provision) Act 1990 as amended.
Charge No 2 – Armed robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as amended.
Charge No 3 – Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 as
amended.
Charge No 4 – Conspiracy contrary to Section 97 of the Penal Code. The prosecution did not address the Court on this charge, it seems the Learned A. D. P. P. has abandoned the charge, the charge is hereby struck out and the accused is discharge and acquitted on that charge.
Charge No 5 – Voluntarily causing grievous hurt contrary to Section 243 of the Penal Code.
Charge No 6 – Voluntarily causing the grievous hurt contrary to Section 243 of the Penal Code.”
Aggrieved by this judgment the accused, through his counsel, filed Notice of Appeal containing 6 grounds of appeal.
The record of appeal in this appeal was transmitted to this Court on 21/4/2015. After its transmission, parties filed and exchanged briefs of argument.
The appellant’s brief of argument which was settled by Ahmad A. Fingilla, appellant’s counsel was filed on 23/7/2015.
The Respondent’s brief of argument was filed on 23/8/2015. It was settled by Maryam Abubakar Kaoje Assistant Director Public Prosecution, Ministry of Justice Kebbi State.
The appellant formulated 4 issues for determination as follows:-
1. Whether base on
the evidence adduced before the Lower Court, the Respondent has proven the offence of Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 against the appellant. (Distilled from ground one and two of the notice of appeal)
2. Whether the Lower Court rightly acted on the extra-judicial statement purportedly made by the appellant in convicting him for the alleged offences. (Distilled from ground three of the notice of appeal)
3. Whether based on the evidence adduced before the Lower Court, the Respondent has proven offence of Voluntarily Causing Grievous Hurt contrary to Section 243 of the Penal Code against the appellant. (Distilled from ground four of the notice of appeal).
4. Whether based on the totality of the evidence adduced before the Lower Court by the Respondent vis-a-vis the defence, the Lower Court ought to have discharged and acquit the appellant for all the alleged offences. (Distilled from grounds five and six of the notice of appeal).
On issue one, learned appellant’s counsel submitted that the respondent failed to prove the 3 ingredients of the Offence of
Robbery. They are:-
1. That there was a robbery or series of robberies.
2. That each of the robberies was Armed Robbery.
3. That the accused person was one of those who took part of the Armed Robbery. He cited BABARINDE & ORS V. THE STATE (2014) 231 LRCN 124 at 132; IKARIA V. STATE (2013) 8 NCC. 248 at 252 -?? 253, SUNDAY ABIODUN V. STATE.
He posited that the evidence of PW3 was full of contradictions, inconsistencies and cock – and -?? bull stories. He urged the Court to resolve this issue in appellant’s favour.
On issue two, learned counsel for the appellant submitted the Lower Court erred in law to have acted on the extra-judicial statement allegedly made by the appellant despite the appellants retraction of the statement. He cited KAZEEM V. STATE (2009) 29 WRN 43 at 51; NWACHUKWU V. THE STATE (2007) 17 NWLR (PT 1062) 31 at 69, HASSAN V. THE STATE (2001) 35 WRN 175.
He submitted that Exhibit ‘4’, ‘5’ and ‘6’ ought to have been subjected to veracity test. He urged the Court to resolve this issue in favour of the appellant.
On issue three, learned appellant’s counsel
contended that the Offence of Voluntarily Causing Grievous Hurt contrary to Section 243 of the Penal Code was not proved as the prosecution failed to prove not only the fact that a grievous hurt was caused but also that the accused person intended or know it to be likely to cause grievous bodily hurt. He submitted that the evidence of PW2 and PW3 were not credible enough to warrant conviction because they were full of contradictions and inconsistencies. He urged the Court to resolve issue three in appellant’s favour.
On issue four, learned counsel posited that the burden of proof lied squarely on the prosecution to establish the guilt of the accused beyond the reasonable doubt. He contended that the evidence adduced was not sufficient to warrant conviction. He cited ABDULLAHI V. STATE (2008) ALL FWLR (PT 432) 1047; OBINECHE & ORS V. AKISSOBI & ORS (2010) 38 WRN 177 at 126.
He submitted further that the Offence of Conspiracy was not proved. He cited OLUSINA AJAYI V. STATE (2013) 8 NCC 1 at 6. He argued that there was nothing before the Court suggesting the commission of the Offence of Conspiracy. He urged the Court to allow the appeal, quash the
sentence and conviction of the Lower Court and discharge and acquit the appellant.
Learned counsel for the Respondent adopted four issues formulated by the appellants counsel.
On issues one, two and four Respondent’s counsel, submitted that the prosecution could not secure a conviction on the Offence of Armed Robbery under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act 1990 without proving the following ingredients:
a) That there was a robbery and series of robbery
b) That the robbery was armed
c) That the accused person is one of those who took part in the robbery. He cited EKE V. THE STATE (2011) 6 NCC 17; NWATURUOCHA V. THE STATE (2011) 3 SCNJ 156.
He referred to the evidence of PW2 – PW5 and submitted that it was clear that the accused committed the offences. He also referred to the confessional statement of the accused and submitted that a confession made in judicial proceedings could ground a conviction. He relied on ORE OFE ADESINA V. THE STATE (2012) 51 NSCQR 476; ATIKU HASSAN V. THE STATE (2002) 3 LRC NCC 11. He submitted that the learned trial Judge was right in admitting the confessional statement of the appellant.
On issue No 3, learned Respondent’s counsel submitted that the prosecution proved the Offence of Voluntarily Causing Grievous Hurt through the testimony of PW2 and PW3. He finally urged the Court to affirm the conviction and sentence of the appellant and dismiss the appeal as lacking merit.
I have carefully considered the submissions of learned counsel as well as the contents of the record of appeal. I have deeply considered the four issues formulated by counsel for the parties. I am of the respectful view that the four issues can be condensed into one – i.e.
Issue No One. Issue no one as formulated by the appellant’s counsel is quite apposite for the just determination of this appeal. I shall therefore consider the entire appeal in the light of issue one.
For clarity’s sake I hereby reproduce issue one:
“Whether based on the evidence adduced before the Lower Court the Respondent has proven the offence of Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act 1990 against the appellant.”
In determining this appeal, I am mindful of the fact that this is an Appellate Court and I shall be wary of disturbing the findings of the fact of the
Lower Court who saw and heard the witnesses unless they are shown to be perverse. According to Fabiyi, J.S.C. in OGUNDEPO & ANOR V. OLUMESAN (2011) LPELR – SC 195/2004
“An Appellate Court will not make a practice to set aside the finding of fact if such is supported by evidence on record. However, where a finding is perverse, it will certainly be set aside as properly done by the Court below in this matter, See AKULAKA V. YONGO (2002) 5 NWLR (PT 759) 133 at 161; ENANG V. ADU (1981) 11 – 12 SC. 25; NWOSU V. BOARD OF CUSTOMS & EXERCISE (1988) 5 NWLR (PT 93) 225; NNEJI V. CHUKWU (1996) 10 NWLR (PT 478) 265; FABU MIYI V. OBAJE (1962) NMLR 242; AKIN OLA V. OLUWO (1962) 1 SCNL 352”
I have noted that the learned trial Judge saw and heard the accused/appellant on his demeanor. His lordship said:
“I do not believe the story that the accused person did not know anything about the robbery committed on PW2 & PW3 on 24/2/2012 along Argungu to Tungar Alkasu road. The defence of the accused is an afterthought. I have watched the demeanor of the accused at the trial he seems to be remorseful.”
I shall proceed to examine the proceedings
to see whether or not the above findings of fact of the learned trial Judge is perverse.
PW1, Inspector Mohammed Garba gave evidence on a cutlass in its shield, a knife and a nokia cell phone without battery that were handed over to him.
PW2 and PW3 were the victims of the robbery. The two of them were on their respective motorcycles when the robbers stopped them, PW2 said he was hit with stick on the neck and shoulder and also stabbed on both legs, hands and head -?? He said the attackers were three in number. He said the sum of N200, a phone, four sets of Kaftan and a gown were stolen from him.
PW3 said PW2 was in front. He was behind. He said he was also stopped. He said further:
“I know the accused person. Sometime last year on Friday at about 10:00 pm, we were from Argungu going to alkasu PW2 was riding his motorcycle, he was in front of me, while I riding my motorcycle behind him. PW2 stopped and I also stopped. The accused person brought out a cutlass and said ‘Money’. I told him that I don’t have money, he wanted to stab me and I blocked it with my left hand and I sustained injury.
When I turned I fell down and he used his leg
and matched me on my neck and he removed the sum of eight hundred naira (N800) and a phone.
I recognized the accused person because there was moonlight. At Argungu Police Station, I was asked whether I can identify the person that stabbed me.
I identify the accused person because it was in moonlight.
PW4, Cpl. Daniel Ishaku took the statement of the accused. He gave evidence thus:
The following day I asked him some question, I wrote the words of caution to him in Hausa Language, he signed by thumb printing.
Maryam: How can you identify the statement recorded? PW4: I can identify it by my handwriting and the name of the accused person.
I seek to tender it for evidence.
Sanusi: No objection.
Court: – there being no objection the Hausa statement of the accused recorded on 25/2/2012 is hereby admitted in evidence and marked as Exhibit 4.
After recording the statement, I took him to my superior officer DSP Tunde Sunmanu with the cutlass, knife and Nokia handset found in his possession.
He interviewed the accused and asked me to compile my case diary and took the accused person to State C. I. D. and I handed him to O/C Anti Robbery with the exhibits.
It should be noted that, the accused did not allege that the statement was taken from him under duress or that he was induced to make it. He did not also deny making the statement.
The accused later gave evidence in his own defence. He denied involvement in the crime. He however stated that at State CID Birnin Kebbi, he was tortured and his statement was recorded, while he was being beaten. His evidence went thus:
My name is Sajo Abubakar.
I live at Badariya, Argungu.
I am cattle rearer.
I know the allegation leveled to against me before this Court. About a year ago, I was arrested in Argungu, I was coming from my father’s shop around Magrib time going home. I climbed an okada motorcyclist and he entered College of Education Argungu. Some people stated beating me at College of Education Argungu and taken to Gwanzenge Police Station, the policeman asked me to tell them what I did not know. My hands were tied at the back and I was being beating. I was asked to say the truth and I told them I did not know anything. From the police station, I was taken to State C. I.D. Birnin Kebbi, I was asked to tell them what happened and I told them that I did not know anything.
I was tortured by the police at the State C. I. D. and my statement was recorded while they were beaten me. That is all that I know.”
It is necessary at this stage to take a look at the accused’s said statement. It was admitted at Exhibit 4. It reads as follows:
“I of the above named and address voluntarily to state as follows – I was born in Bodenya, Village Argungu Local Government, I grow in, I never marry, presently living in Badariya with my parent. I could remember on Friday 24/2/2012 at about 16. I came to Argungu market where I met three of my friends, they are (1) Abubakar Bello ‘M’ (2) Ladan S. Fulani ‘M’ (3) Binga Buda ‘M’ all of Isawa village via Argungu Local Government at Cattle Market, Ladan suggested that, we shall go to their area and steal any animal type of we get, we all agreed, we left Argungu when reaching Isawa Village we saw two motorcycle coming, we used our torchlight and stopped them where some of us used sticks, cutlass and inflicted injuries on their body, we collected the sum of two hundred naira N200, two handset, I carry one, Binga
carry one, from there every body find his way. I came to Argungu, I asked one okada man to conveyed me to motor park called “Tashar B/Kebbi” after he conveyed me, he entered C. O. E with me, I now asked him, beating me that I am a thief, one police man by name Emmanual come and assisted me take me to Hospital where I was treated. Through out of my life this is my first time of luggage myself in to robbery act. This is all what I know about.”
Now what is the weight to be attached to a retracted confessional statement in a criminal proceeding?
Okoro J.S.C. in STATE V. GWANGWAN (2015) LPELR – SC 504/2012 explained it thus:
“It is now well settled that the fact an accused has retracted a confessional statement does not mean that the Court cannot act upon it and rely on same to convict him. OZANA UBIECHO V. THE STATE (2005) LPELR – 3283 2005 (2 SC) (PT 1) 18; EDAMINE V. THE STATE (1996) 3 NWLR (PT 438) 530; AKPAN V. THE STATE (2001) LPELR 383 SC. (2001) 15 NWLR (PT 737)”
However, the Court should evaluate the retracted confessional statement in the light of all the evidence available. See HARUNA V. THE A. G. FEDERATION (2012)
LPELR – SC 72/2010.”
According to Adekeye J.S.C. on pages 28 – 29 of the report, “A Court can convict on retracted confessional statement of an accused person before this is properly done, the trial Judge should evaluate the confession and the testimony of the accused person and all the evidence available. This entails the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the Judge asking himself the following questions:-
Is there anything outside the confession to show that it is true? (a) Is it corroborated? (b) Are the relevant statements made in it of facts true as far as they can be tested? (c) Did the accused person have the opportunity of committing the offence charged? (d) Is the confession possible? (e) Is the confession consistent with other facts which have been ascertained and have been proved R v. SYKES (1913) CAR PG. 113, R v. OMOKARO (1941) WACA PP.146; ACHABUA V. STATE (1976) NSCC 74; YUSUFU V. STATE (1976) 6 SC.167″
I have deeply considered the retracted statement in the light of the above principles of law. This accused was positively
identified by PW3 as one of those who attacked him. He said he was able to see the accused under the moonlight.
The accused also gave evidence before the trial Court. The learned trial judge saw and heard him but disbelieved him. With due respect to learned appellant’ s counsel, I am unable to see any perverseness in the findings of fact of the Lower Court. The retracted statement of the appellant/accused was well evaluated by the learned trial judge before relying on it.
I have no hesitation in resolving the sole issue adopted by me in favour of the Respondent. This appeal lacks merit. It is hereby dismissed.
The judgment and sentence of Hon. Justice Nusirat I. Umar of High Court of Justice of Kebbi State, Birnin Kebbi Division delivered on 28/5/2013 are hereby affirmed.
PAUL ADAMU GALINJE, J.C.A.: I read in draft the judgment just delivered by my learned brother Awotoye J.C.A., and I agree with the reasoning contained therein and the conclusion arrived thereat.
For the same reason articulated by my learned brother, I dismiss the appeal and affirm the judgment of the Lower Court.
MUHAMMED L. SHUAIBU, J.C.A.: I
have had the advantage of reading in draft the leading judgment of my learned brother, Awotoye, J.C.A., just delivered with which I entirely agree.
In the instant appeal and from the unchallenged evidence of PW3, the identification of the appellant as one of those that robbed him is quite reliable. PW3 had an opportunity and time to identify and recognize the appellant.
Also a confession does not become inadmissible merely because the accused denied making it. Even where the accused took the earliest opportunity to deny having made it, it may lend weight to its denial but it is not sufficient reason for ignoring the statement. See SHITTU V. STATE (1970) 1 ALL NLR 228 and OLALEKAN V. STATE (2001) 18 NWLR (Pt.746) 772 at 817.
In the instant case, the appellant’s extra-judicial statement was admitted without any objection. The appellant nonetheless retracted his earlier extra-judicial statement.
It is settled that where an accused person resiles from or retracted his earlier extra-judicial statement, such statement is not rendered inadmissible by mere denial or retraction unless the accused person leads sufficient evidence to rebut the accusation by the prosecution. The
appellant having failed to explain to the Court as part of his evidence the reason for the inconsistency, the retraction of his extra-judicial statement does not in law amount to a retraction. See MUSA V. THE STATE (2012) 3 NWLR (Pt.1286) 193.
For this reasons and the fuller reason contained in the leading judgment of my leaned brother, Awotoye, J.C.A, I also dismiss the appeal and affirm the judgment and sentence of the lower Court delivered on 28/5/2013.
Appearances
AHMED A. FINGILLA For Appellant
AND
MARYAM ABUBAKAR KAOJE, ASSISTANT DIRECTOR PUBLIC PROSECUTION, MINISTRY OF JUSTICE KEBBI STATE For Respondent
