SHUAIBU IDI v. THE STATE (2016)

SHUAIBU IDI v. THE STATE

(2016)LCN/8552(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of April, 2016

CA/J/34C/2015

RATIO

EVIDENCE: DEFINITION OF CONFESSION
Sections 28, 29 and 30 of the Evidence Act, 2011 provides as follows:
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 that crime.
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 issue in the proceedings and is not excluded by the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained:-
(a) By oppression of the person who made it; or
(b) In consequence of anything said or done which was likely, in the circumstances existing at the time to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Sub-Section (2)(a) or (b) of this section.
(4) Where more persons than 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 of such other persons in whose presence it was made unless be adopted the said statement by words or conduct.
(5) In this section oppression includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.
30. Where information is received from a person who is accused of an offence, whether such person is in custody or not, and as a consequence of such information any fact is discovered, the discovery of the fact, together with evidence that such discovery was made in consequence of the information received from the defendant, may be given in evidence where such information itself would not be admissible in evidence. PER JOSEPH TINE TUR, J.C.A.
WORDS AND PHRASES: MEANING OF A GUN AND GUNSHOT
A gun is a 1 a weapon that is used for firing bullets or shells 2. a tool that uses pressure to send out a substance or an object Gunshot is 1 the bullets that are fired from a gun 2 the firing of a gun; the sound of it being fired 3 the distance that a bullet from a gun can travel See Oxford Advanced Learners Dictionary, 9th edition, page 699. If a gun had not been fired none of the prosecution witnesses could have heard the shots during the course of the armed robbery. PER JOSEPH TINE TUR, J.C.A.
EVIDENCE: MODE OF CONFESSION
A confession may be oral or written and made before or after an accused has been arrested. In either case the confession whether oral or written will become admissible to found a conviction of the person charged with the commission of the crime. See Madu Fatumani vs. The King (1950) 13 WACA; Rex vs. Udo Eke Ubong (1947) 12 WACA 139; Otufale vs. State (1968) N.M.L.R. 261 at 265 and Uche & Ors. vs. Rex (1964) 3 NSCC 139. PER JOSEPH TINE TUR, J.C.A.

JUSTICES

ADAMU JAURO Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

SHUAIBU IDI Appellant(s)

AND

THE STATE Respondent(s)

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment):The State initiated Criminal proceedings against Shuaibu Idi and Jingi Bura before the High Court of Justice, Yobe State holden at Potiskum on the following charge:
?That you Shuaibu Idi and Jingi Bura on or about the 15th day of September, 1998, at about 02:00 hours at Dogon Rijiya Ward, Damagum in Fune Local Government Area that is within the jurisdiction of Yobe State High Court of Justice, while armed with offensive weapons to wit dane guns, bows and arrows and sticks did attack, wounded and robbed one Mr. Sunday Onyeador and his brother Ejike Onyeador and Amobi Emmanuel and their money the sum of Seventy Eight Thousand Naira (N78,000.00) and properties value of which is not yet known and you therefore committed an offence contrary to the provision of Section 1(2)(a) and (b) of the Robbery and Firearms (Special Provision) Act Cap.398, Laws of the Federal Republic of Nigeria, 1990.?

?When the case came up for mention on 27th September, 2000 the prosecution had to dispense with one of the accused person who had jumped bail in

the Chief Magistrate Court Potiskum but opted to proceed against the appellant and Jingi Bura who is not a party in this appeal. The accused persons pleaded not guilty to the charge on 4th October, 2000. Hearing commenced on 12th October, 2000. The prosecution called PW1 to PW6. At the request of the defence a trial within trial was held to determine the voluntariness of the extra-judicial statements of the accused persons. The learned trial Judge held on 22nd June, 2004 that the extra-judicial statements were voluntarily made. They were admitted as Exhibits ?A? and Exhibit ?B? respectively. Thereafter, the accused persons testified as DW1 (Shuaibu Idi) and DW2 (Jingi Bura). None called any witness. Learned Counsel addressed the Court. The learned trial Judge rendered his decision on 14th December, 2005 holding at page 89 lines 21 to page 90 lines 1 to 16 of the printed record as follows:
?Therefore, after taking all the evidence before the Court in consideration, I am satisfied that the prosecution has established all the ingredient of the offence and proved the case beyond reasonable doubt against the accused persons.<br< p=””

</br<

Accordingly, I found the accused persons guilty of the offence of armed robbery as charged.
CONVICTION:
I hereby find the accused persons guilty and convict them of the offence of armed robbery punishable under Section 1(2) of the Robbery and Firearms (Special Provision) Act Cap.398, Laws of the Federal Republic of Nigeria, 1990 as charged.
ALLOCUTUS:
Court ? The accused persons are hereby informed of their right to plea for leniency in mitigation of sentence.
1st accused person ? I am pleading with the Court to be lenient with me for I did not commit the offence.
2nd accused person ? I am pleading with the Court to be lenient with me for I did not commit the offence.
SENTENCE:
I have listened to the passionate plea for leniency by both accused person, but the law is specific in respect of such offence and I wish I could lenient with them, but my hands are dried therefore there is nothing I could do.
Accordingly, the accused persons are hereby sentenced to death by hanging until they are pronounced dead.?

?Shuaibu Idi lodged an appeal with leave of this Court out of time on 17th June,

2015. Five grounds accompany the Notice of Appeal dated 30th March, 2015. The appellant filed a brief of argument on 2nd July, 2015 in which the following issues were distilled for determination:
?(i) Whether the refusal of the learned trial Judge to expunge the Evidence in chief and Exhibits ?A? and ?B? tendered thereof from and through PW6 (Inspector Mohammed Ibrahim) and his reliance upon same, without availing the appellant the opportunity to cross-examine PW6 does not infringe upon the appellant?s fundamental right to fair hearing as encapsulated in Section 36(6)(d) of the 1999 Constitution of Nigeria (as amended).
(ii) Whether to secure a conviction for the offence of Armed Robbery, the prosecution is not mandatorily expected to tender any offensive weapon or firearm used in such Armed Robbery.
(iii) Whether the conflicts and contradictions in the evidences of PW1 and PW5, PW2 and PW5 are not grave enough to be discountenanced as unreliable and worthless.
(iv) Whether from the totality of the available evidence, it could be safe to convict the appellant for the offence of armed robbery under the

standard of proof beyond reasonable doubt.?

The respondent filed a brief on 2nd November, 2015 and formulated the following issue for determination:
?Whether the refusal of the learned trial Judge to expunge the evidence in chief and Exhibits ?A? and ?B? tendered thereof from and through PW6 (Inspector Mohammed Ibrahim) and his reliance upon same, without availing the appellant the opportunity to cross-examine PW6 does not infringe upon the appellant?s fundamental right to fair hearing as encapsulated in Section 36(6)(d) of the 1999 Constitution of Nigeria (as amended).?

Both briefs were adopted by learned Counsel when the appeal was heard on 9th March, 2016. I shall give a resume of the facts upon which the prosecution arraigned the appellant for trial in the Lower Court now subject of this appeal.

?PW1 (Sunday Onyeador) testified that he was sleeping in his compound with his family members on 5th September, 1998 when at about 2:00am a group of people unknown to him entered through the gate. They started shooting guns and arrows and were shouting. Because of the noise he and his wife woke up

and heard the unknown persons introducing themselves as armed robbers. That they were the people PW1 and his wife had been hearing of and had come into the compound for them. Any person who made noise would be killed so they should keep quiet. The armed robbers forced their way into PW1?s junior brother?s room. They demanded to know the whereabout of PW1 and where he had kept his money. The armed robbers inflicted injuries on the junior brother?s face and eye. The armed robbers searched his room, took away a bag containing N78,000.00 including dried meat leaving the junior brother unconscious. Ejike Onyeador (PW5) is the junior brother. The armed robbers forced open the door of PW5. All these conversations between PW5 and the armed robbers were heard by PW1. The armed robbers tortured PW5. They started for PW1?s apartment after destroying the front and rear windscreen of his Peugeot 504. The armed robbers got to PW1?s door and started hitting it having already forced open the window. PW1 took his wife and children to a corner in his room. At that stage they started hearing gun shots outside the compound. The armed robbers stopped

hitting the door to the room. PW1 could not say how many of the armed robbers carried out the operation that night. But PW1 came to know that they were thirteen in all from the police. At page 6 lines 18 to page 7 lines 1-5 of the printed record PW1 testified as follows:
?I could not identify any of the robbers at that material time later after we started to hear a call, calling my name ?Mr. Sunday, Mr. Sunday.? I did not answer because I did not know who were calling until when the callers introduced themselves as policemen that we should not be afraid. I refused to come out until I heard the noises of my neighbours when I came out I saw my sister child laid unconscious when the robbers were attacking my brother. I was watching through the window, for being then light was. At the time they were asking my brother they were armed with guns, bow and arrows. The robbers carried money and some particulars belonging to my brother. In the morning the police and the hunters started trace the foot steps and found one Mal. Jibril in the bush who was injured. Jibril showed the police and members of the Vigilante where to found the rest of the

robbers before he died. Prior to the incident I did not know the accused persons. Cross-examination by the defence Counsel ? I did not see those two accused persons as among the robbers who entered my house.
Re-examination ? None.?

Police Constable Pindar Ali (PW2) testified at page 7 lines 19 to page 9 lines 1-4 of the printed record as follows:
?PW2: A Christian affirmed and states that my name is Pindar Ali PC No.180940, I live at Damagum town, I am a police officer, attached to Damagum Division. I know Sunday Onyeador (PW1). I know the two accused persons. On 5th September, 1998 I was posted as a first patrol to Damagum town (and attached to the Vigilante Group) from 21:00hrs to 06:00hrs when we came out to patrol and patrolling from street to street in Damagum town. When we reached a place near Dogon Rijiya Ward in Damagum Town, we heard a shot of gun three times. We then rushed to the place, on approaching the place we heard another gun shot coming from the house of Sunday (PW1). I then advised the members of the police force and vigilante group to take cover. We then saw some people holding touch light coming out

of the house at about 022hrs when the people who were robbers sighted us, they shot at us and we returned fire, as a result of which two people among the robbers got injured. The first victim lay near the house of Mr. Sunday and we found him there crying and saying that we should not kill him, that they were 13 (thirteen in number). We took him to the police station in Damagum and later to General Hospital Damagum. At the hospital we asked him who were among the gang and he said 5 Fulani boys were from Damagum area, 8 from Potiskum town. This person who was given this injection was called Mallam Jibrin. Later we started tracing the foot prints and we met Jingi Bura (2nd accused) person lying under the bridge near secondary school, Damagum injured, and he informed me that the rest had escaped. I then took him to police station, Damagum. He informed me that they would meet at Potiskum at about 8:00pm at AP Filing Station to share the booty which they got from Sunday?s house.
On reaching the filing station at Potiskum we met the principal suspect, named Hamza Lamido Damuna who the 2nd accused identified and pointed to me. From there I went and

arrested Hamza. Hamza then led us to the houses of the rest of the gangs in Potiskum but could not found any of them. On 7th September, 1998 we went back for further investigation to Potiskum and Hamza pointed and identified the 1st accused person now in the dock as among that attacked and robbed Mr. Sunday and we arrested the 1st accused person and handed to him to crime branch in Damagum police station.
XXX ? By defence Counsel: I effected the arrest of the two accused persons personally. I took the 2nd accused who was injured to the hospital for treatment. I took him to General Hospital at Damagum. At the General Hospital a card was issued in his name. The cards are with the I.P.O. I am not the IPO. I arrested the 1st accused based upon the information I got from Hamza Damuna. He informed that the house is being used by robbers.
Re-examination ? Nil.?

Inspector Bala Ali (PW3) recorded the extra-judicial statement of the two accused persons (Exhibits ?A? and ?B?) respectively. ASP Alhaji Adamu Yusuf (PW4) Counter-signed these confessional statements. Ejike Onyeador (PW5) testified at page 13 lines 3

to page 14 lines 1-7 of the printed record as follows:
?PW5: A Christian, affirmed and states that, my name is Ejike Onyeador, I live at Damagum town, Fune Local Government Area. I am a trader, I know Sunday Onyeador. I know the accused persons. On 5th September, 1998 I was at Damagum, when some robbers scaled over the fence of our compound and started to break doors and windows. They entered the room I was in. I was sleeping in a room which was not bolted, and the noise woke me up. The touch light was flashed on my face when I was trying to know who it was I heard a punch of a metal on my right eye, I gripped the metal and it appeared to me like a gun. Many people entered the room and ordered me to lay down saying ?Kwanta, Kwanta? and were asking me where was money and that, I should not make noise. They were beating me with stick while some stood over me and others were searching the room. They made away with N78,000.00 (Seventy Eight Thousand Naira). I was preparing to travel to Onitsha with the money. Immediately they found the money some were asking me where is the Oga. In the morning I found that my wallet containing some receipts

were missing. They left, leaving one man to guard me and went to Mr. Emmanuel Amadu?s room. I could hear the carrying of the bag then the man left to guard me, left me and rushed to that room before me and returns I locked my room. As I was peeping through the windows as there was light I heard some shot and I peeping through the window seeing them. They ordered my brother to show them the Oga?s room. Then one of the robbers broke the wind glass of our car. Then I heard a noise in Hausa calling him ?Kai Saidu Soja.? They were dragging to the Oga?s room (PW1) I then opened the ceiling of the room and reported to the police. Some were outside the compound. That I reported to the Police at about 2:02am. I visited the police and they followed me immediately. The police rushed inside before me and I heard some shot of gun. I was able to identify there are two accused. Some were caught and others injured and one among them died. The police started to trace the blood marks of those who ran away. I followed the police to trace the blood marks. The person who died called our attention as he was injured and revealed their numbers and said

it was their Lamido who took them there. Some were arrested, others escaped.
Cross-examination by defence Counsel ? I could recognize some of the robbers on that night. Those two accused persons were among those I recognized on that day.?

Inspector Mohammed Ibrahim (PW6)?s testimony at page 20 lines 9 to page 21 lines 1-24 of the printed record read as follows:
?PW6: Affirmed and states that my name is Inspector Mohammed Ibrahim. I live at Buni Yadi. I am Public Servant, formerly attached to C.I.D. Damaturu, but presently attached to Divisional Police Headquarters, Buni Yadi. I was transferred to Buni Yadi in 1999. I know Sunday Onyeador, PW1. I know both the accused persons. I came to know them sometimes in 1998, I was on duty at the State C.I.D. Damaturu when one Hamza Lamido, Jingi Bura and Idi, three of them were brought before the State C.I.D. from Damagum Division on allegation of robbery. The case was referred to Awe Zango who is now deceased.
As a sectional head at the robbery section I have interest in the performance of the late Sergeant Zango Awe. The accused persons were taken before Assistant

Commissioner of Police in charge of C.I.D. who directed that both the suspects and the exhibits be taken over. The exhibits consist one Jumper, four N50 notes, one wrist watch and five sticks were taken over from the primary I.P.O. and were taken to the exhibits officer who later registered the exhibits a 83/98 and 7/98, that is the monetary exhibits. I did not take part in the investigation of this case.
Awe Zango was the person who recorded the statements of the accused persons. When Awe Zango was recording the statements of the accused persons I was together with him at the station. I know Awe Zango. We were transferred together at the same time together with Awe Zango to C.I.D. Damaturu. We had been together for over 5 (five) years with him we were both investigating and I was sectional head, whenever he written his investigation report he passed it through me for noting and I direct him on what line of action he was to take in writing.
Awe Zango is now dead and he was the one recorded the statements of the accused persons, we worked for about 5 (five) years, if I see the statement recorded by Awe Zango I can identified it. I can do that

because I am very conversant with his handwriting and I can identify his signature for we had stayed for long together.
Ngalda ? I am applying to show I.D. 2 and I.D.3.
Salihu ? No objection.
Witness: continues ? I.D.3 is recorded by late Awe Zango, but ID2 is not his handwriting.
Ngalda ? I am also applying for ID4 to be shown to him since he has identified I.D.3.
Akinola ? I have no objection since this is not against my client.
Salihu ? I have objection.
Witness ? ID4 is the statement recorded by Sergeant Awe Zango, I am applying to tender ID3 and ID4 in evidence and abandon ID2.
Akinola ? I am opposing his application because the statement was not made voluntary and the 1st accused person was assaulted and beaten by the I.P.O. for this reason I am opposing the application to tender ID3.
Salihu ? I am objecting to the application to tender ID4 as an exhibit for same was not given voluntary for inducement was used in getting the statement, for this reason I am objecting.?

On 21st December, 2004 appears the following entries at page 60 lines 4 to

11 of the printed record:
?Both accused persons in Court.
A. Yusuf for the prosecution.
G. Onoja for the accused persons, holding brief of Mr. F.A. Akinola.
Onoja ? the case is for defence but the Counsel who handling the case is before the Hon. Chief Judge in respect of another capital offence, and the said Counsel whould want to personally handle the defence. In view of that I am applying for an adjournment to 17th January, 2005.
Yusuf ? No objection.
Court ? Case adjourns to 17th January, 2005 for defence. Accused person further remanded.?

G. Onoja, Esq. who held brief for Mr. F.A. Akinola, Esq. never asked the Court to cross-examine PW6 but the request was turned down. Proceedings came up for continuation on 17th January, 2005. The entries on record on that day at page 60 lines 18 to 22 of the printed record read as follows:
?Both accused in Court.
A. Yusuf S.C. for the prosecution.
F. Akinola with A.A. Dademe for the accused persons.
Akinola ? The case is for defence and I am ready to proceed with the 1st accused person first.?

?ISSUE ONE:<br< p=””

</br<

The learned trial Judge resolved issue one at page 88 lines 19 to page 89 lines 1-20 of the printed record as follows:
?I am therefore of the view that with evidence of PW1, PW2, PW3, PW4, PW5 and PW6 and Exhibits ?A? and ?B?, the prosecution has proved its case beyond reasonable doubt. For the prosecution not only proved that there was robbery and robbery was an armed robbery, but also connected the accused persons to the crime.
The learned defence Counsel raised the issue that Exhibit ?A? and ?B? were not tendered through the I.P.O. who recorded the statement but we should not loose sight of the evidence of PW6 where he laid the foundation by stating that Sergeant Awe Zango who recorded the statement of the accused persons is now dead and that he (PW6) was the sectional head of the deceased Sergeant and was conversant with the handwriting of the deceased I.P.O. and was present when the statements were recorded, hence the reason to tender the exhibit through him.
The learned defence Counsel went ahead to submit that failure of the prosecution to produce PW6 for cross-examination affect

the entire evidence of PW6 and urge the Court to expunge or discountenance the evidence of PW6. It is true that PW6 was not cross-examined by the defence, but failure of PW6 to appear to cross-examination was not deliberately caused by the prosecution, for the prosecution advance reason that the witness after giving evidence in chief retired from the service of the Nigeria Police Force and was pursuing his retirement benefit, hence the difficulty in tracing him. Indeed it is true that he was not cross-examined, but I am of the view that even if PW6 is not cross-examined there are enough evidences from the rest of the witnesses i.e. PW1, PW2, PW3, PW4 and PW5 which connect to the accused persons to the crime, and tends to prove the case against them. We could not allow technicalities to defeat the course of justice for I am of the view that justice is not only to the accused person but also to the victim, the prosecution and the entire community.
I am therefore of the view that the mere fact that PW6 was not cross-examined does not mean that the accused persons cannot be found guilty when there are ample evidence to established the crime against

them.?

In Al-Mustapha vs. State (2013) 17 NWLR (Pt.1383) 350 cited in the brief of the appellant appears the argument of the learned Counsel at page 393:
?PW4 did not conclude his testimony he agues. This is because he disappeared after examination in chief and did not come back to be cross-examined. He submits that cross-examination is a powerful adjustment to the right to fair hearing, and the inability of the defence to cross-examine PW4 was a fundamental flaw which rendered the evidence liable to be expunged including the exhibits he tendered ?A5? and ?B1?. It was wrong, he submits for the learned trial Judge to go into those exhibits.?

At page 402 to 403 appeared the following observation by Pemu, JCA:
?PW4 0 Ahmed Fari Yusuf police officer tendered Exhibit ?A3?, statement of the appellant dated 23rd September, 1999, ?B1? and ?A5?. He was examined in chief but was never cross-examined by the appellant, because he did not make himself available for cross-examination. One would have expected that as an investigating police officer, who tendered these

exhibits particularly the statement of the appellant, Exhibit ?A3?, he would have, despite all odds, made himself available for cross-examination, but he did not. This was an infraction on the right of the appellant to fair hearing.
Now in the face of all these, can it be said that the prosecution has established beyond reasonable doubt, (the standard of proof required in criminal offences), the guilt of the appellant with regard to the offence of conspiracy

Pemu, JCA held at page 404 to 405 as follows:
?The failure of PW4 to make himself available or cross-examination had a lot of implications. They were by the very nature of their job, to find out the result of the initial investigation in 1996 and the reason why all the investigative agencies did not produce statement taken from Serkin Sha-sha and members of Abiola family, to the prosecution. Indeed they were duty bound to provide the prosecution all the necessary exhibits and statements. They were duty bound to provide the prosecution all the necessary exhibits and statements. They did not!
The respondent had relied on Section 7 of the Criminal Code which

talks about Principal Offenders. It is the view of the respondent that the appellant falls within the category. I shall reproduce the provisions of it:
?When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may, be charged with actually committing it, that is to says:-
(i) Every person who actually does the act or makes the omission which constitutes the offence;
(j) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(k) Every person who aids another person in committing the offence;
(l) Any person who Counsels or procures any other person to commit the offence.?
The basis of the success of any charge is the ingredients in that charge, being established, coupled with credible and cogent evidence to buttress same. Where the offence charged lacks any of these, then it is not established and the accused person shall, of right, enjoy the benefit of this lacuna.?

Pemu, JCA concluded at page 409 as follows:
?PW4 went through trial

within trial from 11th October, 2009 which lasted for 13 months. He never re-surfaced for cross-examination at the main trial. Indeed the respondent failed to produce PW4 for cross-examination.
What is the effect of this in law? It is that this rendered (as argued by the appellant) his evidence and the statements tendered by him for that matter, inconclusive, inchoate and ineffective. Moreso, failure to avail himself for purposes of cross-examination; deprived the appellant of his constitutional right to fair hearing, as PW4 would have been subjected to cross-examination by the appellant. This rendered PW4?s evidence and the attendant exhibits tendered by him of no relevance to the Court and same must be discountenanced. The necessary implication is that there was no evidence before Court of PW4. The exhibit which he tendered Exhibits ?A3?, ?A4? and ?A5? and indeed every other exhibits which he tendered are therefore of no moment.
Totality of the evidence led by the prosecution in proof of the charge of conspiracy to murder is unreliable, and has been so discredited, and I so hold.?

?The defence did

not request the prosecution to produce PW6 for cross-examination after the trial within trial but opted to enter a defence which was not so in the Al-Mustapha vs. State (supra).

Adjournment was granted for the trial to continue on 17th July, 2004. When the case came up for continuation on 7th December, 2004, the record of appeal has the following entries at page 59 lines 1 to 9 of the printed record:
?Wakil Mustapha clerk of Court ? Affirmed and interpret from English to Hausa and vice versa.
1st accused ? I want to be given the opportunity to defend myself.
2nd accused ? I leave everything to the discrete of Court.
Yusuf ? Since their Counsel is not in Court in the interest of justice we will be asking for an adjournment to enable their Counsel lead them in their defense. I suggest 15th December, 2004 if the date is convenient to the Court.
Court ? case adjourns to 15th December, 2004 for defence. Counsel to the accused person is notified of the date. Accused person further remanded.?

?F. Akinola, Esq. who led A.A. Dademe, Esq. for the accused person did not also apply to

cross-examine PW6 before Shuaibi Idi (DW1) and Jingi Bura (DW2) testified in their defence.

The facts in Al-Mustapha vs. State (supra) do not apply in the circumstances of this appeal as PW6 testified in examination-in-chief. PW6 gave evidence as PW1 in the trial within trial, was cross-examined by the defence Counsel before the extra-judicial statements were admitted as Exhibits ?A? and ?B?. Thereafter the appellant?s learned Counsel was given the opportunity to continue with the proceedings on 17th July, 2004, 21st December, 2004 and 17th January, 2005 but opted to open the case of the defence without calling PW6 for cross-examination.

?Every Counsel is in charge of the case of his clients. It is within the province of a Counsel to insist on or waive the constitutional or legal rights of his client. Counsel is to demand the enforcement of such rights if the Court fails to do so. But where a learned Counsel has not drawn the Court?s attention to the fact that the constitutional or legal rights of his client has not been complied with, that it should, but the Court refused, that is when the appellant may be heard

on appeal to complain especially where a miscarriage of justice has been accessioned. The decision of the Lower Court may be set aside on appeal.
Section 36(6)(a)-(d) of the Constitution of the Federal Republic of Nigeria, 1999 as amended reads as follows:
?(6) Every person who is charged with a criminal offence shall be entitled to:-
(a) Be informed promptly in the language that he understand and in detail of the nature of the offence;
(b) Be given adequate time and facilities for the preparation of his defence;
(c) Defend himself in person or by legal practitioners of his own choice.
(d) Examine, in person or by his legal practitioners, the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or Tribunal on the same conditions as those applying to the witnesses called by the prosecution
?These constitutional provisions should be read together with Section 189(1) and (2) of the Criminal Procedure Code which reads as follows:
?189(1) After a plea of not guilty had been

taken or no plea has been made the prosecutor may open the case against the accused person stating shortly by what evidence he expects to prove the guilt of the accused.
(2) The prosecutor or if there is no prosecutor the Court shall then examine the witnesses for the prosecution who may be cross-examined by the accused or his Counsel and thereafter re-examined by the prosecutor.?
Section 215(1)-(3) of the Evidence Act, 2011 as follows:
?(1) Witnesses shall be first examined-in-chief, then, if any other party so desires, cross-examined, then if the party that called him so desires, re-examined.
(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred in cross-examination and if a new matter is, by permission of the Court, introduced, in re-examination, the adverse party may further cross-examine upon that matter.?
?The emphasis in Section 215(1) of the Evidence Act, 2011 is on the expression

if any other party so desires? if the party calling him so desires, re-examined.? Where the learned Counsel representing the appellant did not desire to call PW6 for cross-examination after the trial within trial, Counsel cannot be heard to complain on appeal that the learned trial Judge breached the constitutional nor statutory rights of the appellant upon the admissibility of Exhibits ?A? and ?B?. In this appeal it may be rightly assumed that by opting to open the defence upon the confessional statements of the two accused persons being put in and marked Exhibits ?A? and ?B? respectively, the learned Counsel had waived the constitutional and legal right to call PW6 for further cross-examination. I resolve issue one against the appellant.

?ISSUE (II) AND (IV):
For the purposes of convenience I have merged issues (ii) and (iv) together. The facts and circumstances of each case will determine the nature of the issues an appellant should formulate for determination by a Court of Appeal. The issues formulated by an appellant or the learned Counsel in the brief for determination

should be such that if favourably determined, be capable of reversing the appeal. This is provided under Order 18 Rule 4(2) of the Court of Appeal Rules, 2011 couched as follows:
?4(2) The respondent?s brief shall answer all material points of substance contained in the appellant?s brief and contain all points raised therein which the respondent wishes to concede as well as reasons why the appeal ought to be dismissed. it shall mutatis mutandis, also conform to Rule 3(1), (2), (3), (4) and (5) of this Order.?

The evidence adduced by the prosecution in the Court below shows that none of the armed robbers were arrested within PW1 and PW5?s compound during the commission of the armed robbery. But guns were fired in the course of the commission of the alleged crime. PW2?s evidence is that these gun shots were heard by the police patrol team who then rushed to the scene and exchanged gun shots with the arm robbers who fled. The first wounded victim was taken to the police station and later the General Hospital Damagum. Blood stained foot prints were traced and the prosecution came across Jingi Bura (2nd accused) lying

injured under the bridge near the secondary school at Damagun. There he was arrested. The others had escaped from the scene of the armed robbery. The arrest of the 1st accused/appellant (Shuaibu Idi) was possible because of the extra-judicial statement of Jingi Bura (2nd accused). There is no evidence that any of the accused persons were apprehended with any guns or offensive weapons at the time of arrest. But the fact that PW1, PW3 and PW5 heard gunshots during the course of the operation in the compound was never disparaged by the defence under cross-examination. The fact that the armed robbers shot at the Police and Vigilante who came to the rescue of PW1 and PW5 was never challenged or discredited by the defence during cross-examination. Sections 28, 29 and 30 of the Evidence Act, 2011 provides as follows:
?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 that crime.
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 issue in the proceedings and is not excluded by

the Court in pursuance of this section.
(2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained:-
(a) By oppression of the person who made it; or
(b) In consequence of anything said or done which was likely, in the circumstances existing at the time to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.
(3) In any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, the Court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either Sub-Section (2)(a) or (b) of this section.
(4) Where more persons than 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 of such other persons in whose presence it was made unless be adopted the said statement by words or conduct.
(5) In this section ?oppression? includes torture, inhuman or degrading treatment, and the use or threat of violence whether or not amounting to torture.
30. Where information is received from a person who is accused of an offence, whether such person is in custody or not, and as a consequence of such information any fact is discovered, the discovery of the fact, together with evidence that such discovery was made in consequence of the information received from the defendant, may be given in evidence where such information itself would not be admissible in evidence.?

The prosecution is not expected to tender a gun or guns nor exhibits when there is no evidence they were recovered from armed robbery suspects that committed the crime. But the fact that gunshots were heard by the prosecution witnesses and PW5 testified that the

metal used to inflict injury on him when he gripped it appeared to him like a gun was not discredited under cross-examination. A gun is a ?1?a weapon that is used for firing bullets or shells? 2. a tool that uses pressure to send out a substance or an object ?Gunshot? is ?1?the bullets that are fired from a gun? 2?the firing of a gun; the sound of it being fired? 3? the distance that a bullet from a gun can travel See Oxford Advanced Learner?s Dictionary, 9th edition, page 699. If a gun had not been fired none of the prosecution witnesses could have heard the shots during the course of the armed robbery.

Section 34(1)(a) of the Evidence Act, 2011 provides as follows:
?(1) In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular:-
(a) To the question whether or not the statement was made contemporaneously with the

occurrence or existence of the facts stated, and to the question whether or not he maker of the statement had any incentive to conceal or misrepresent facts

The fact that the thirteen armed robbers stole the sum of N78,000.00 in the course of the armed robbery operation was not discredited. The case ofMohammed vs. The State (2014) 10 NWLR (Pt.1414) 179 at page 199 Paragraphs ?G?-?H? and a host of others cited in argument by the learned Counsel to the appellant are not applicable to the facts in this case. The prosecution is not expected to prove her case beyond the shadow of doubt. The charge indicated that the offence occurred ?on or about the 5th day of September, 1998 0200 hour.? See page 76 lines 15-16 of the printed record.

?PW1 and PW5 testified that this was in the night when they were sleeping. The gun shots and the hitting on the door and breaking of the windscreen of the car woke them from their sleep. PW2 also testified that the incident occurred between 21:00 hours and 06:00 hours. Policemen and members of the Vigilante group were on night patrol. At 022 hours they saw some people

holding torch light coming out of PW1 and PW5?s compound. Upon sighting them the people opened fire. PW2 and his team replied, wounding two of the armed robbers. First to be arrested was Jingi Bura (2nd accused) whose evidence led to the arrest of the appellant (1st accused). All these events happened so contemporaneous with the occurrence or existence of the facts stated in the charge for which the appellant stood trial in the Lower Court and was tried, convicted and sentenced to death. I would have been surprised if the appellant had been discharged and acquitted by the learned trial Judge. A confession may be oral or written and made before or after an accused has been arrested. In either case the confession whether oral or written will become admissible to found a conviction of the person charged with the commission of the crime. See Madu Fatumani vs. The King (1950) 13 WACA; Rex vs. Udo Eke Ubong (1947) 12 WACA 139; Otufale vs. State (1968) N.M.L.R. 261 at 265 and Uche & Ors. vs. Rex (1964) 3 NSCC 139.

?Jingi Bura?s oral confession to the commission of the crime with others led to the arrest of the appellant who could not explain the

injuries on his hand. The learned trial Judge rightly believed PW2 and acted rightly on his unchallenged testimony. I resolve issues (ii) and (iv) against the appellant.

ISSUE III:
The argument under issue (iii) is that there were contradictions between the evidence of PW1, PW2 and PW5 hence the prosecution had not proved her case beyond reasonable doubt. In Ogoala vs. State (1991) 3 SC 61 the prosecution called PW1-PW4 to establish the fact that armed robbery took place on 6th October, 1980. The actual eye witnesses to the incident were PW1, PW2 and PW3. Each testified from the vantage point they were at time of the robbery operation. The learned Counsel representing the appellant at the Supreme Court sought to impugn the decision of the learned trial Judge on grounds of contradictions in the evidence of the prosecution witnesses. Nnaemeka-Agu, JSC held at page 70 to 73 of the judgment as follows:
?I must pause here to make some observations on the import of this voluntary statement, Exhibit ?B?, on the whole case. It must be noted that, in law, a voluntary confession of guilt, if fully consistent and probable, and is coupled

with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the Court can convict: See Phillip Kanu & Anar. v. R. (1952) 14 W.A.C.A.30, at p.32; R. v. Abraham Erumesi (1959) N.R.N.L.R.258; where, as in this case, the prosecution has proved some facts and/or circumstances outside the confession which made it probable that the confession was true, then there is a clear ground for conviction. See R. v. Obiasa (1962) W.R.N.L.R.354; (1962) 2 SCNLR 402; Paul Onochie & Ors. v. The Republic (1966) N.M.L.R. 307. In this case, the statement, Exhibit ?B? was tendered and admitted without objection. The appellant was represented by counsel. In the witness box he admitted that the signature on Exhibit ?B? was his own. Exhibit ?B? shows that it was read over to, and confirmed by, him before a Superior Police Officer. Although, in the witness box, he made a feeble denial of the confirmation of Exhibit ?B?, he admitted he signed it in two places: this was an implied admission of the confirmation. In any case, the learned trial Judge did not believe the denial

of the confirmation of the statement. Outside the confession, Exhibit ?B?, there was the evidence of P.W.1, P.W.2 and P.W.3 who observed the incident in a well-lit street. In particular, there was the evidence of the appellant brandishing a matchet: the matchet found under the seat of the snatched car was identified by P.W.1 and P.W.2 as the one the assailant was brandishing at P.W.1 a short time before the multiple collisions. Important, too, is the fact that the appellant was shortly after the robbery found at the scene of the multiple collision which involved the snatched car and three other cars. So, putting all these together, it cannot be doubted either that the statement was duly proved and was consistent and probable but also that there were also proved other facts and circumstances which go to show that the confession was probably true. These are very satisfactory grounds for the conviction.
In the above state of the facts, I shall make rather short points of other issues raised on behalf of the appellant. He complained that there were “irreconcilable contradictions” in the evidence of principal prosecution witnesses, i.e. P.W.1,

P.W.2, and P.W.3, for which the Court of Appeal ought not to have confirmed the conviction of the appellant. The case of Arueyee v. The State (1967) N.M.L.R. 209 at p.211 was relied upon. What he regarded as “irreconcilable contradictions” in the evidence of P.W.1 and P.W.2 were summarized by the learned counsel for the appellant, as follows:
“(i). That there were three men or at least more than two men who drove away with the alleged stolen Peugeot car.
(ii). That the actual person who “brandished” a cutlass at P.W.3 was not the accused but the “OTHER MAN”, according to P.W.1, who “Struggled with Mrs. Phillips at the door in front.”
(iii). The appellant did not brandish any cutlass, nor anything for that matter at P.W.3 for, according to P.W.1:-
“The accused was by the side of the car near me” whilst…. the other man struggled with Mrs. Phillips at the door in front.”
(iv). In corroboration with the views of P.W.1, P. W.2 stated as follows:-
“Another man whom I cannot recognise sat at the back.” this implying that more than two men committed the alleged offence.
(v). In the views of both P.W.1 and P.W.2 the men

metamorphosed into two men in which one of them suddenly turned out to be the accused person (appellant).
(vi). That the alleged accident, according to P. W.2, took place at a “street nearby” and the car alleged stolen was found after a distance “at Ikorodu Road.”
(vii). According to P.W.1 the appellant was being beaten up by a crowd, whilst P.W.2 insisted that “the accused was being held by a soldier and a policeman.”
I think the so-called contradictions as to the number of persons who took part in the robbery was amply explained by the appellant himself in his statement, Exhibit ?B?. According to him in Exhibit ?B? those who accompanied him in the car which brought him to the scene of the robbery included not only Dagogo and Kenneth but also three others whom he did not know their names. They were supposed to play different roles at different stages in the nefarious operation. For obviously frightened, incensed, and shocked observers like P.W.1 and P.W.2 what each could observe in the entire episode would depend on the stage and the point from which he made his/her observation. It would be idle to expect that such

frightened observers in a charged and fleeting scene as in an armed robbery would notice exactly the same thing with mathematical consistency. Some minor discrepancies must be expected. Indeed, when in such a situation such consistency has been achieved, it is often looked upon with suspicion as it may be indicative of the fact that the witnesses have been schooled and tutored. Also the appellant himself in Exhibit ?B? admitted that a soldier appeared at the scene of the multiple collision. It was also admitted that a policeman took the appellant, the drivers of the other cars involved in the collision and P.W.1, P.W.2, and P.W.3 from the scene of the collision to Ilupeju Police Station. What purpose will be served now by the learned counsel for the appellant trying to show that according to P.W.2, the appellant was being held by a soldier and a policeman whereas P.W. did not say so?
On the whole, from the nature of what learned counsel for the appellant has referred to as “contradictions” it appears to me that he did not quite appreciate what in law constituted contradictions in evidence. The word “contradiction” comes from two Latin words –

contra, which means opposite, and dicere, which means to say. So, in ordinary parlance to contradict is to speak or affirm the contrary. Hence in the law of evidence, a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts, and not necessarily when there are some minor discrepancies in, say, details between them. As I see it, contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time whereas minor discrepancies depend rather on the person’s astuteness and capacity for observing meticulous details. It is apt to recall what I had to say about this situation in Ayo Gabriel v. The State (1989) 12 S.C.N.J.33 at p.42; (1989) 5 N.W.L.R. (Pt. 122) 457.
“A piece of evidence contradicts another when it affirms the opposite of what that other evidence has stated, not when there is just a minor discrepancy between them. It is useful to bear in mind the fact that the word “contradict” comes from two Latin words – contra (opposite) and dicere (to say). Two pieces of evidence contradict one another when they are by themselves inconsistent. On the

other hand, a discrepancy may occur when a piece of evidence stops short of, or contains a little more than, what the other piece of evidence says or contains some minor differences in details. I think the law also looks at the two different situations differently. If a witness gives oral evidence which contradicts his previous statement in writing, his evidence should be treated as unreliable: See Onubogu v. The State (1974) 9 S.C.1. On the other hand, minor discrepancies between a previous written statement and subsequent oral testimony are to be expected and do not destroy the credibility the witness. Indeed when such occur, it may lead to a suspicion that the witness has been tutored.”
From the totality of evidence of P.W.1, P.W.2, P.W.3 and Exh. B. it is clear that:
1. P.W.1, P.W.2 and P.W.3 stopped over at No. 25 Sylvia Street, Anthony Village, on the day in question, having arrived there in P.W.1’s 504 car;
2. A car pulled up at the scene out of which two or more persons emerged and snatched the 504 car from them by brandishing a matchet and a knife at P.W.1 and P.W.3;
3. The appellant was observed by them as one of the assailants

during the operation in the clearly lit street;
4. The 504 car which was subsequently driven towards Ikorodu Road was involved in a multiple collision involving three other vehicles somewhere around the junction of Anthony Village Road and Ikorodu Road, a short distance away;
5. P.W.1 and P. W.2 who set out in pursuit of the bandits in a borrowed car arrived at the scene of the collision afterwards and saw the appellant whom they instantly recognized as one of those who snatched the car from them being beaten by some people. At one time or the other a soldier and a policeman were present at the scene; and
6. On searching, they found the matchet which was being brandished at them by appellant moments earlier hidden under the seat of the 504 car.
I do not agree that there were any contractions in these essential facts, and they are sufficient to sustain the conviction. Assuming that the minor discrepancies that there were could be promoted to the realm of contradictions, a point I do not concede, they do not in the circumstances of this case entitle the appellant to an acquittal. For the law is that for contradictions in the evidence of

witnesses for the prosecution to affect a conviction, they must be sufficient to raise doubt as to the guilt of the accused. See: Nwosisi v. The State (1976) 6 S.C.109; Ejigbadero v. The State (1978) 9 & 10 S.C. 81; and Atano v. Attorney-General of Bendel State (1988) 2 N.W.L.R. (Pt.75) 201. But in this case, for the reasons I have given, there can be no doubt about the guilt of the appellant. It is when there are substantial contradictions on material points in the evidence called by the prosecution that an acquittal will result on the premises that it cannot be said that the case has been proved beyond reasonable doubt. See: Akosile v. The State (1972) 5 S.C.332; Ngwo Kalu v. The State (1988) 4 N.W.L.R. (Pt. 90) 503, at p.510. I should resolve this issue against the appellant.?

I have not been shown any material and unresolved contradictions in the evidence of the prosecution witnesses capable of reversing the appeal in favour of the appellant.

I resolve issue (iii) against the appellant. I affirm the decision of the learned trial Judge. The appeal lacks merit and is dismissed.

ADAMU JAURO, J.C.A.: I

have been afforded a copy of the lead judgment just delivered by my learned brother, JOSEPH TINE TUR, JCA. I am in agreement with the reasoning and conclusion to the effect that the appeal is grossly lacking in merit.
I adopt the judgment as mine, in dismissing the appeal. The judgment of the Lower Court is hereby affirmed.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity of reading the draft of the lead judgment delivered by my learned brother, JOSEPH TINE TUR, JCA. Having so very carefully done, I am in total agreement with the reasoning and conclusions drawn therein.
?I therefore, also dismiss the appeal and affirm the decision of the Court below.

Appearances:

Chief G.M. Kuttu, Esq. with him, A.G. Yirvoms, Esq. L.A. Albert, Esq.; T.E. Ayankunna, Esq. and S.J. Duguru, Esq.For Appellant(s)

S.D. Gadaka (DDP) ? MOJ, Yobe StateFor Respondent(s)

Appearances

Chief G.M. Kuttu, Esq. with him, A.G. Yirvoms, Esq. L.A. Albert, Esq.; T.E. Ayankunna, Esq. and S.J. Duguru, Esq.For Appellant

AND

S.D. Gadaka (DDP) – MOJ, Yobe StateFor Respondent