BISHIR ABDUL AZIZ v. THE STATE
(2019)LCN/12721(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of February, 2019
CA/K/235A/C/2017
RATIO
EVIDENCE: CONFESSIONAL STATEMENT OF AN ACCUSED
“While it is true that a confessional statement alone can ground the conviction of an accused person even without corroboration, it must be noted that for a confessional statement to be relied on, without any further ado, it must be shown to be direct, positive and unequivocal as to the admission of guilt of an accused.” PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
EVIDENCE: WHERE THERE ARE TWO CONFLICTING EVIDENCE
“Which version should the Court believe? The time honoured principle of law is that such conflicting evidence will be treated as unreliable and will be disregarded. See R V. GOLDER (1960) 1 WLR 1169 at 1172; OLADEJO V. THE STATE (1987) 3 NWLR PART 61, p. 419…The law is that no probative evidence will be attached to evidence when one witness gives evidence which relates to how material aspects of a crime occurred, and another witness gives evidence differently in respect of the same material aspect of how the same crime occurred. See NNOLIM V. THE STATE (1993) 1 NWLR PART 283 p. 569 at 583. See also ONUBOGU V. STATE (1974) 9 SC at p. 20. ” PER OBIETONBARA O. DANIEL-KALIO, J.C.A.
JUSTICES:
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
BISHIR ABDUL’AZIZ – Appellant(s)
AND
THE STATE – Respondent(s)
OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment):
This appeal is in respect of a criminal matter. The Appellant Bishir Adbulaziz along with one Jazuli Abdulmumini were charged on 10/3/2008 before the Katsina State High Court. The charge against them read as follows: –
That you (1) JAZULI ABDULMUMINI and (2) BISHIR ABDULAZIZ both of Rafindadi Quarters, Katsina on or about the 20th day of October, 2007 at No. 9 Road 8 Goruba Housing Estate G.R.A Katsina, attacked and robbed Rukayya Abdullahi of the sum of N75,000.00 one Nokia Handset, Five wrist watches, one necklace and a gold ring and at the time of the attack, you were armed with a knife with which you threatened her and the entire members of the household, and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria, 2004.
The Appellant pleaded not guilty to the charge. After hearing from the four witnesses for the prosecution and the Appellant who testified in his own defence, the learned trial judge Sanusi Tukur J who was hearing the appeal de novo after 6 years, delivered a judgment of 4 pages on 27/10/16 in which he found the Appellant guilty of the offence. He convicted the Appellant, and sentenced him to death.
Dissatisfied with the Judgment, the Appellant filed a Notice of Appeal on 26/1/2017 in which he challenged the Judgment on four grounds. The parties exchanged briefs of argument. The Appellants brief of Argument was filed on 8/6/16 and was settled by Muhammad Katu Esq. The Respondents Brief of Argument was filed on 23/5/18, but by an order of this Court of 26/11/18, deemed filed and served on that date. This Respondents Brief of Argument was settled by Abu Umar Esq Snr. State Counsel.
Both learned Counsel formulated two issues for determination, each. The issues formulated by the Appellants learned Counsel read: –
1. Whether the lower Court was right in convicting the Appellant without resolving the gaps in the Respondents case in his favour.
2. Whether the guilt of the Appellant was proved beyond reasonable doubt by the Respondent having regards to the evidence adduces at the trial.
On his part, the Respondents learned Counsel formulated the following issues: –
1. Whether going by the evidence adduced by the prosecution (Respondent) there is doubt warranting the trial Court to resolve same in favour of the Appellant.
2. Whether going by the totality of evidence led by the prosecution (Respondent) before the trial Court, the Respondent had proved its case beyond reasonable doubt against the Appellant.
As can be seen, the difference in the issues as formulated by the two learned Counsel has to do with phraseology. The difference between the two can be likened to the difference between tweedledum and tweedledee. Looking at the issues critically, I see no need for the formulation of two issues. The two issues have a common thread which has to do with the evaluation of evidence. Therefore, one issue should be sufficient to resolve the contentions in this appeal. Consequently, I will reformulate the issues to simply read: –
Whether the lower Court was right to have held that the case against the Appellants was proved beyond reasonable doubt.
Muhammed Katu Esq for the Appellant and Abu Umar Esq for the Respondent adopted the respective briefs settled by them.
The said briefs were adopted on 26/11/18 when the appeal was heard.
Muhammed Katu Esq for the Appellant submitted that there was nothing in the evidence before the lower Court to show how the Appellant was arrested. He contended that the only reason the Appellant was arrested was because the PW3 believed that he was the one that robbed her judging by the clothes he wore that resembled the one worn by one of the persons that robbed her. Learned Counsel referred us to the evidence of PW2 the police Exhibit keeper, and submitted that there was no evidence led to show where the Exhibits kept by the said Exhibit keeper (PW2) were recovered from. It was contended that a party cannot simply dump Exhibits on the Court. The cases of ANPP V. USMAN (2008) 12 NWLR PART 1100 p. 1; HASHIDU V. GOJE (2003) 15 NWLR PART 843 p. 352 were cited in support.
It was submitted that PW3 gave conflicting evidence about what happened during the robbery. With regard to the confessional Statement of the Appellant, it was submitted that the lower Court was wrong to have decided the case based on it as that Court did not subject the confessional statement to the tests laid down in the case of IKEMSON V. THE STATE (1989) 3 NWLR PART 110 p. 455, particularly so since the Appellant in his evidence during trial within trial stated that he was tortured. It was also contended that the lower Court did not give consideration to the defence of the Appellant. Appellant???s learned Counsel finally submitted that the charge against the Appellant was not proved beyond reasonable doubt.
In his argument in response, Abu Umar Esq Senior State Counsel, submitted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. He cited the cases of OSENI V. THE STATE (2012) 5 NWLR PART 1293 p. 351 at 588; NWATURUOCHA V. THE STATE (2011) 3 SCNJ p. 148 at p. 165. It was contended that the PW3 and PW4 properly identified the Appellant. Learned Counsel further contended that the said PW3 and PW4 did not give contradictory evidence noting that evidence can only be said to be contradictory if it is shown that it will substantially disparage a witness thereby leading to a miscarriage of justice should the evidence be relied on. He cited the case of OGBU V. STATE (2007) 5 NWLR PART 1028 p. 35 at 657.
It was submitted that it is only where the totality of the evidence creates doubt that the accused will be given the benefit of the doubt. Learned Counsel referred to the ingredients of the offence of armed robbery citing the case of ADEKOYA V. THE STATE (2012) 9 NWLR PART 1306 p. 539 at 566 and contending that the evidence of PW3 and PW4 established that the Appellant was one of the robbers. Turning to the Appellants confessional statement which was retracted, it was submitted that regardless of the fact that a confessional statement is retracted a Court can rely on it if it has been proved and established to have been made voluntarily and if same is positive and unequivocal and amounts to an admission of guilt.
The Respondents learned Counsel submitted that the nature of corroborative evidence required for a confessional statement does not have to be one that directly links the accused to the commission of the offence. It is sufficient, he argued, if the corroborative evidence is only circumstantial. The case of DURUGO V. STATE (1992) 7 NWLR PART 255 p. 525 was cited in support.
As I earlier mentioned, the lower Courts judgment was just four pages long. Considering the gravity of the offence, to wit, armed robbery, the punishment of which carries the death penalty, if behoved the learned trial judge to meticulously consider all the evidence before him before arriving at a reasoned decision. Just as the price of being found guilty of the offence of armed robbery is very heavy, namely that the accused will have to pay with his life, the duty placed on the judge is equally heavy as he must ensure that the case against the accused is watertight or as close to being watertight as possible.
In other words, he has to be satisfied that the prosecution has proved its case against the accused person beyond reasonable doubt. While it is true, very true, that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt, it has to be emphasised that proof beyond reasonable doubt is the highest standard of proof in law and that standard must not be compromised or watered down for any reason, not even on the ground of expediency. Denning J. (as he then was) in the case of MILLER V. MINISTER OF PENSIONS (1947) 2 ALL ER 372, 373 stated that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the Community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not the least probable the case is proved beyond reasonable doubt but nothing short of that will suffice.
The question that begs for an answer in this case is whether from the nature/quality of the evidence adduced by the Respondent one can really say the evidence against the Appellant left a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not the least probable. I have carefully looked at the evidence on record to see if the lower Court was right to have relied on the evidence of PW3 and PW4 in arriving at its decision that the Appellant took part in the robbery. I shall reproduce the relevant portions of the evidence of PW3 and PW4.
PW3, the victim of the robbery, gave evidence as shown at p. 38
39 of the record, thus: –
I know the 2 (two) accused persons. As they entered our house on 20th October, 2007 around 8:30pm while I went to bed, I was woken up that we have visitors by my house help (Usaina). When I woke up, I saw 2 (two) people inside my room, I (one) with mask and I saw holding a knife and they demanded money from me —————————————————-
The 2 (two) people that entered it was the 2nd accused that was wearing a mask. I’m able to identify him because before the incident they came to our house to inquire about my house. As it was same dress they were wearing and it was the same dress that they wore on the day of the incident.
Under cross-examination, PW3 testified as follows: –
Yes, it was my house help who woke me up, and when the accused were asking me money my house help was inside her room where the 2nd accused was guarding her.
Later the 2nd accused joined us in my husbands room. Initially it was the 1st accused that was with me.
One would observe obvious conflicts in the evidence of PW3 when her evidence in chief, and her evidence under cross-examination are carefully considered. The conflicts cannot be waived aside as not being material conflicts. In her evidence in chief as can be seen above, PW3 stated that when she woke up from sleep she saw two people in her room. In her evidence under cross-examination however, she stated that the 2nd accused i.e. the Appellant, was with her house help in her house helps room where he (the Appellant) kept the house help under guard.
Which version should the Court believe? The time honoured principle of law is that such conflicting evidence will be treated as unreliable and will be disregarded. See R V. GOLDER (1960) 1 WLR 1169 at 1172; OLADEJO V. THE STATE (1987) 3 NWLR PART 61, p. 419. The lower Court should have followed this time honoured principle and should not have relied on the evidence of PW3.
I will now consider the evidence of PW4 whom the PW3 described as her house help. Her evidence at p. 40 of the record reads: –
I remember one day in the night at No. 9 Goruba Road Katsina in the house of Abdullahi and his wifes name is Rukkaya … when we were together with one girl called Ana said we should stop talking she has heard some footsteps and we heard some knocking and I picked up torchlight and asked who is there but I heard nothing since there was no light then (i.e. NEPA) but there was candle inside the parlour. I then opened the door leading to the entrance. I saw the 2 (two) people 1 (one) carrying a knife and the other with a mask. The people are the 1st and 2nd accused persons. The 2nd accused holding the knife directed me to go inside and when we entered they asked for the key of the owner of the house room and I told them that it is with PW3 and they further asked me to lead them to her room.
One of them stayed out and the other went along with me i.e. the 1st accused.
The above evidence of PW4 contradicts the evidence of PW3 in material ways. Whereas the evidence of PW3 was that PW4 was held under guard in her room (i.e. PW4s room) by the Appellant, the evidence of PW4 was to the effect that she was not subjected to any restraint and that she was the one that led the 1st accused (not the Appellant) to the room of PW3. The law is that no probative evidence will be attached to evidence when one witness gives evidence which relates to how material aspects of a crime occurred, and another witness gives evidence differently in respect of the same material aspect of how the same crime occurred. See NNOLIM V. THE STATE (1993) 1 NWLR PART 283 p. 569 at 583. See also ONUBOGU V. STATE (1974) 9 SC at p. 20.
Considering the state of the law, the lower Court was wrong to have relied on the evidence of PW3 and PW4 in finding that the Appellant took part in the robbery.
The lower Court also relied on the Appellants confessional statement. In his evidence in Court the Appellant resiled from that statement. While it is true that a confessional statement alone can ground the conviction of an accused person even without corroboration, it must be noted that for a confessional statement to be relied on, without any further ado, it must be shown to be direct, positive and unequivocal as to the admission of guilt of an accused. Does the confessional statement of the Appellant have the attributes of being direct, positive and unequivocal? I think not. In that case, it is desirable to go outside the confessional statement to look for corroborative evidence, no matter how slight. In this case, there is no corroborative evidence outside the confessional statement. The evidence of PW3 and PW4 are not corroborative and at any rate are not reliable. What would have served as corroborative evidence would have been the items kept by the Exhibit keeper, PW2 if the items had been shown to have been recovered from the Appellant. There is no such evidence.
At the end, I cannot see the evidence that led the trial judge to conclude that the case against the Appellant was proved and proved beyond reasonable doubt. The result is that the appeal has merit and is allowed. The conviction and sentence of the lower Court is hereby set aside and consequently, the Appellant is discharged and acquitted.
IBRAHIM SHATA BDLIYA, J.C.A.: I agree.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in advance the lead judgment delivered by my learned brother, Obietonbara O. Daniel-Kalio, JCA. Therein, my Lord lucidly dealt with all the germane issues for determination in the appeal and came to the inevitable conclusion that there is merit in the appeal and allowed same. The conviction and sentence is thus set aside with a consequential order that the Appellant is discharged and acquitted. I adopt all these, with nothing useful to add.
Appearances:
Muhammad Katu, Esq. For Appellant(s)
Abu Umar, Esq. For Respondent(s)
