ABUBAKAR v. STATE (2020)

ABUBAKAR v. STATE

(2020)LCN/14638(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, September 30, 2020

CA/K/522A/C/2019

RATIO

CONFESSIONAL STATEMENT: DUTY OF THE COURT WHERE AN ACCUSED PERSON DENIES MAKING A CONFESSIONAL STATEMENT

The duty of the Court where an accused person denies making a confessional statement ascribed to him is to admit the statement in evidence and determine at the end of the assessment and evaluation of the entire case, whether in fact the accused did make the statement or not. There are numerous decided authorities on this trite position of law. See AKPA VS. THE STATE (2008) 14 NWLR (PT. 1106) P. 72; NWANGBOMU VS. THE STATE (1994) 2 NWLR (PT. 324 – 329), 380 AT 386; MOHAMMED VS. THE STATE (2016) LPELR – 42907 (CA) to mention but a few. PER WAMBAI, J.C.A.

CONFESSIONAL STATEMENT: HOW SHOULD CONFESSIONAL STATEMENTS BE RECORDED

There is no doubt that it is desirable wherever practicable that confessional statements should be recorded in the language in which they are made to avoid technical arguments which could be raised. However, a statement does not ipso factor become inadmissible merely because this practice was not followed. See ABAYOMI OLALEKAN VS. THE STATE (2001) 18 NWLR (PT. 746) 793; ADEYEMI VS. THE STATE (2013) 3 NWLR (PT. 1340) 78; ISIKILU OLANIPEKUN VS. THE STATE (2016) LPELR – 40440 (SC).

CONFESSIONAL STATEMENT: HOW CAN A DECISION REACHED BY A TRIAL WITHIN TRIAL ADMITTING CONFESSIONAL STATEMENT BE IMPUGNED

It is trite that a decision reached by a trial Court after a trial within trial admitting a confessional statement can only be impugned and looked into by an appellate Court if same is appealed against as the Appellant has done. SeeLALAPU VS. COMMISSIONER OF POLICE (2019) LPELR 47814 (SC). PER WAMBAI, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TO EVALUATION OF EVIDENCE

This position flows from the settled law that the evaluation of evidence is primarily the duty of the trial Court which is properly placed at a vantaged position of hearing, seeing and watching the demeanour of witnesses as they testify in the witness box. This advantage is not available to the appellate Court and not being so privileged, the appellate Court relies on the findings of facts made by the trial Courts based on credibility of witnesses and would ordinarily not disturb such findings except where they are perverse. See INEC & ANOR VS. ONYIMBARE C. RAY & ANOR (2014 14 NWLR (PT. 892) 92.
The attitude of an appellate Court has always been that where evaluation of evidence and findings of facts are based on credibility, the question of credibility of a witness is a matter for trial Court and not for an appellate Court. Therefore, the appellate Court is to be slow, very slow in interfering with the findings of facts of the trial Court based on credibility of witness since demeanour is a vital area of credibility JONASON TRIANGLES & ANR. VS. CHARCES M. PARTNERS LTD. (2002) 10 SCNJ 1; KAYDEE VENTURES LTD. VS. THE HON. MINISTER, FCT & ORS. (2010) 7 NWLR (PT. 1192) 171; LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114) 427.
In FRN VS. IWEKA (2013) 3 NWLR (PT. 1341) 285 Tabai JSC held that an appellate Court which does not have the opportunity of hearing and watching the demeanour of witnesses should be wary to interfere with a finding of a trial Court on the credibility of a witness, and this is why the Court is always loath to interfere and seldom tinkers with such findings of fact except in a few circumstances, like where the findings are shown to be perverse.
It is for this reason that the law takes the posture that once a confessional statement is admitted in evidence following a trial within trial proceedings, it becomes difficult for an appellate Court to intervene except it is shown that the trial Court did not utilize its advantage of seeing and listening to the witnesses as they testified or the facts do not prove the prosecutions case or the finding is perverse. See STATE VS. J. NNOLIM & ANOR (1994) 5 NWLR (PT. 345) 394; BALOGUN VS. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66; BOLANLE ABEKE VS. THE STATE (2007) 9 NWLR (1040) 411.
In OLAKUNLE VS. THE STATE (2014) LPELR – 22519 (CA), this Court per Akeju JCA held that since evaluation of evidence in a trial within trial is not based on documentary evidence but on credibility of witnesses an appellate Court cannot re-evaluate the evidence, and he relied on ABIODUN VS. THE STATE (2013) VOL. 3 – 4 M. JSC (PT. 1) 163. PER WAMBAI, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

YAHAYA ABUBAKAR APPELANT(S)

And

THE STATE RESPONDENT(S)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal arose from the final judgment of Jigawa State High Court in charge No. JDU/72C/2015 delivered on 8th November, 2016 and the Ruling delivered on 04/04/2016 by Hon. Justice Umar M. Sadiq. In the said Final Judgment, the Appellant then as the 1st accused person, was convicted on a two count charge of criminal conspiracy and robbery contrary to Sections 97 and 298 (1) (b) of the Penal Code and sentenced to 5 years and 10 years respectively to run concurrently.

The facts on the part of the prosecution (now the Respondent) are that on or about the 04/03/2015 at about 8:00pm the Appellant engaged the services of one Rabiu Adamu (PW1), a commercial motor cyclist, at Babaldu village to convey him (the Appellant) to Dankoshe village. In the course of the journey, on reaching one bush after Wurno, the Appellant jumped out of the motor cycle and together with one Mohammed Idris (the 2nd accused at the lower Court), started beating PW1. While PW1 fell down and was bleeding, the duo took away the motor cycle. Later the same night, a Nokia phone was recovered from the scene and eventually taken to

the Police. The motor cycle was also recovered from the 2nd accused in Bauchi. After conclusion of investigation both the Appellant and the 2nd accused were arrested and arraigned before the lower Court. Both of them pleaded not guilty to the charge.

The prosecution called five witnesses and tendered in respect of the Appellant, two sets of Exhibits A& A1. One set were admitted after the conduct of a trial within trial and the other set upon the Appellant’s denial of making them.

The Appellant testified on his behalf denying the commission of the offences. He denied being the owner of the Nokia phone or even knowing the 2nd accused. He tendered no exhibit nor called any other witness. At the end of the trial, the lower Court convicted the Appellant and the co-accused (the 2nd accused) as charged and sentenced the Appellant to 5 years imprisonment without an option of fine on the first count of conspiracy and ten years imprisonment without option of fine on the second count of robbery, to run concurrently.

Upset by the conviction and sentence, the Appellant filed a Notice of Appeal on the 20/01/2017 and obtained the leave of this

Court on 29/06/2020 to amend same. The amended Notice of Appeal has five grounds.

His Counsel, Habeeb A. Oredola Esq., who settled the Appellant’s brief of argument filed on 03/06/2020 but deemed on 29/06/2020, nominated five issues for determination to wit:
1. Whether having regard to the circumstances and from the totality of the evidence on record, the lower Court was right in convicting the Appellant for conspiracy and robbery in view of the lack of evidence to establish the ingredients of conspiracy or robbery.
2. Whether the reliance of the lower Court on the identification of the Appellant is sustainable when there was no evidence of identification parade conducted by the Police.
3. Whether the learned trial judge erred in law when in admitting Exhibits A and A1, it failed to properly evaluate the evidence of the Appellant and further placed the burden of proof on him during the trial within trial to establish the involuntariness of Exhibit A and A1.
4. Whether the weight attached to Exhibit A and A1 is justifiable when the statements were not subjected to the necessary tests to determine its evidential value; and only the

purported English translation (Exhibit A and A1) of a statement allegedly recorded in Hausa language was tendered in evidence.
5. Whether the decision of the trial Court ought to be set aside in view of the failure of the trial Court to properly evaluate the defense of the Appellant.

The Respondent’s brief of argument was filed on 09/07/2020 by the Hon. Attorney General of Jigawa State, Dr. Musa Adamu Aliyu. In it, the Respondent identified only one issue for determination, namely:
Whether the trial Court was right in convicting and sentencing the Appellant for the commission of the offences of Robbery and Conspiracy.

The Appellant filed a reply brief on 20/07/2020 which he also adopted at the hearing of the appeal.

It is my view that in consideration of the issues raised by both parties and the arguments canvassed in support, as well as the evidence on record, two issues will adequately determine this appeal as cast below:
1. Whether the lower Court was right in admitting Exhibits A & A1.
2. Whether the lower Court was right when it held that the Prosecution (Respondent) proved the ingredients of robbery and

criminal conspiracy beyond reasonable doubt against the Appellant.

ISSUE NO. 1
Whether the lower Court was right in admitting Exhibits A & A1.

APPELLANT’S SUBMISSION
This issue covers Appellant’s issues 3 & 4. In arguing his issue 3 which challenges the correctness of the lower Court admitting Exhibits A & A1, learned Counsel having obtained leave of this Court to impugn the said ruling of the lower Court admitting the exhibits after the trial within trial, reproduced the Appellant’s evidence in the trial within trial and submitted that the said Ruling delivered on 04/04/2016 did not comply with the provisions of Section 29 (2) of the Evidence Act. His reason for this argument is that the said purported confession was obtained under extreme pressure as evidenced by the unchallenged and unshaken evidence of the Appellant and corroborated by that of the 2nd accused, DWB, which the lower Court refused to consider and believe merely on the ground that the trial judge said he did not see any scar on the Appellant’s knee as claimed, to substantiate the torture. Counsel picked whole with this reasoning

contending that it is unreasonable and perverse because the scar might have healed after one year of the infliction of the injury on the Appellant. He cited the case of BORISHADE VS. FRN (2012) 18 NWLR (PT. 1332) 347.

Counsel contended further that the lower Court wrongly shifted the burden of proof and imposed an excessive standard of proof on the Appellant to prove the involuntariness of the confession rather than on the Respondent to prove their voluntariness. In urging us to expunge Exhibits A and A1 having been forcefully and involuntarily obtained from the Appellant, Counsel cited the cases of IDOWU ALASHE & ORS. VS. SANYA OLORI-ILU & ORS. (1964) 3 NSCC 297 AT 302 and OWONYIN VS. OMOTOSHO (1961) ALL N.L.R. (PT. 11) 304, 308.

On his Issue 4, learned Counsel insisted that the weight attached by the lower Court to Exhibits A & A1 is unjustifiable because PW5 who stated that he recorded the statements at Bamaina Police Station first in Hausa language and later translated same into English language failed to tender in evidence the Hausa version of the statement which is fatal to the prosecution’s case as it raises some doubts and

questions on the credibility of the statement and thus liable to be expunged from the record as held by the Supreme Court in the case of ADAMU VS. THE STATE (2019) LPELR – 46902 (SC). He also cited the case of ADEYEMI VS. THE STATE (2012) LPELR- 7956 (CA) urging us to expunge them from the record.

Another reason why we should expunge Exhibits A & A1 according to the Counsel is because the lower Court did not subject them to the veracity tests to have an independent corroborative evidence outside the confession (Exhibits A & A1) nor investigate their contents before relying on their contents. On the need and purport of having corroborative evidence, he relied on the cases of GABRIEL VS. THE STATE (2010) 6 NWLR (PT. 1190) 280 and STATE VS. USMAN ISAH (2012) 7 SC (PT. 1110 )93.

RESPONDENT’S SUBMISSION
In response to this argument, the learned Attorney General on behalf of the Respondent submitted at paragraph 4.18 of his brief of argument that the said Exhibits A & A1 are admissible in evidence the lower Court having in its Ruling after the trial within trial, held that they were voluntarily made by the Appellant.

On the argument that the failure of the prosecution to tender the alleged Hausa version of the Appellant’s extrajudicial statement is fatal, the Hon. Attorney General deemed it necessary to set the record straight before rendering his response. He stated that there are two sets of Exhibits A & A1, one set made at the C.I.D. Dutse recorded by PW4 at pages 55 – 58 of the record and the other set, made at the Bamaina Police Division recorded by PW5 at pages 59 – 62 of the record tagged “Statement of suspect” and “additional Statement” respectively and that it is these set made at Bamaina Police Division that were admitted in evidence upon Appellant’s objection to their admissibility on ground that he did not make them.

He submitted that PW5 who recorded the Hausa and the English version understands both Hausa and English languages, thus, according to him, the prosecution’s failure to tender the statement recorded in Hausa language at the Bamaina Police Division is not fatal to the prosecution’s case. He submitted further that the law is that an investigator who is proficient in vernacular and

English languages can interrogate the suspect in vernacular language and record same in English language, citing the case in OKON VS. THE STATE (2014) LPELR – 47476 CA among others. He insisted that Exhibits A & A1 taken at Bamaina Police Division are credible notwithstanding that the Hausa version was not before the lower Court since the contents of Exhibits A and A1 taken at the State C.I.D. are the same with those taken at the Bamaina Police Division. He therefore contended that the case of ADAMU VS. THE STATE (supra) cited by the Appellant’s Counsel is inapplicable because unlike in ADAMU’s case (supra) PW5 who recorded the Hausa version and translated it to English understands the two languages and was the same person who appeared before the Court tendered the statement in evidence.

In his reply brief, learned Counsel for the Appellant submitted that the Respondent’s failure to address the specific issues raised in the Appellant’s brief of argument is tantamount to an admission of the Appellant’ submission relying on the case of EYO VS. THE STATE (2009) LPELR – 8686 (CA); that the Respondent’s

failure to justify the admission of Exhibits A & A1 or discredit the circumstances surrounding them as highlighted in the Appellant’s brief of argument, is an admission of the Appellant’s submission. In urging us to hold that the Respondent concedes to the involuntariness of Exhibits A & A1, Counsel drew our attention to the case of NWANKWO & ORS. VS. YAR’ADUA & ORS. (2010) LPELR – 2109 (SC) to similarly hold that Exhibits A & A1 were wrongly admitted by the trial Court.

On the Respondent’s failure to tender the Hausa version of the Appellant’s statement, learned Counsel stated that Respondent’s submission was misconceived. That the Appellant’s challenge is on none tendering of the Hausa statement as mandated by the apex Court in ADAMU VS STATE (SUPRA) and not on the proficiency of the recorder of the statement in Hausa and English languages.

RESOLUTION OF ISSUE NO. 1
The issue in contention here is the admissibility and probative value of the confessional statements attributed to the Appellants. It is necessary to make some clarifications before delving into the resolution of the issue.

Two sets of purported confessional statements were admitted in evidence as Exhibits A & A1. One set recorded at the State C.I.D. Dutse Jigawa State on the 09/03/2015, by PW4 in Hausa language and translated to English language were marked as Exhibits A& A1 respectively. These can be found at pages 55 – 56 of the record (the Hausa Version) and Pages 57 – 58 (English translation). The other set of Exhibits A & A1 contained at pages 59 – 60, 61 – 62 were recorded by PW5 at Bamaina Police Division on 05/03/2015 and 06/03/2015 respectively tagged “Statement of the suspect” (Exhibit A) and “Additional Statement” (Exhibit A1), both recorded in English language.

It is to be noted that these statements purportedly made at Bamaina Police Division, were admitted in evidence after the Appellant denied making them. The lower Court was right in doing so without conducting a trial within trial since the issue of admissibility did not arise. The duty of the Court where an accused person denies making a confessional statement ascribed to him is to admit the statement in evidence and determine at the

end of the assessment and evaluation of the entire case, whether in fact the accused did make the statement or not. There are numerous decided authorities on this trite position of law. See AKPA VS. THE STATE (2008) 14 NWLR (PT. 1106) P. 72; NWANGBOMU VS. THE STATE (1994) 2 NWLR (PT. 324 – 329), 380 AT 386; MOHAMMED VS. THE STATE (2016) LPELR – 42907 (CA) to mention but a few.

Now, Appellant’s Counsel placed heavy reliance on the case of ADAMU VS. THE STATE (supra) in particular, in submitting that the failure to tender in evidence the Hausa version of the statement is fatal and reliance placed on the English version in the absence of the Hausa version, occasioned a miscarriage of justice.

It is also desirable, where the statement is recorded in the language in which it is made and translated into English language, that both the statement recorded in the language in which it is made and its English translation should be tendered in evidence to protect the right of fair hearing of the accused person guaranteed by Section 36 (6) of the Constitution of FRN 1999 (as amended). However, failure to tender the vernacular version of the statement does not automatically in all cases render the English version inadmissible or occasion a miscarriage of justice where for instance the accused person signs the English version. He cannot be heard to say that the he did not make the statement. See ASUQUO VS. THE STATE (2016) LPELR – 40597 (SC). His signature authenticates the correctness and accuracy of the contents as being the same with the vernacular version not tendered. PW5 said he read the statement to the Appellant.
The case of ADAMU VS. THE STATE (supra) wherein the apex Court held that failure to tender the vernacular version of the language renders the English version inadmissible and having been

wrongly admitted suffers an automatic expurgation, is inapplicable to the facts of this appeal. In the ADAMU’s case (supra) unlike in this appeal, the Exhibit GA1 therein was recorded with the aid of an interpreter who interpreted the statement to the accused/Appellant from Hausa to English and from English to Hausa as between the accused/Appellant and the recorder the statement (Exhibit GA1) therein, into English language.
As shown in the contributory judgment of Peter Odilli JSC quoted by the Appellant’s Counsel the relevant part of which was omitted, the statement therein was taken with the aid of an interpreter in a language different from English language. His Lordship stated. “The facts borne out of the record situated with what the law provided which is that the confessional statement of the accused such as the case in hand taken with the aid of an interpreter in a language different from English, two statements must be tendered, one in the language of the Appellant and the other, the English translation.”
Thus, the requirement that both statements must be tendered in evidence applies where an interpreter was used in

the recording of the statement.
In the case at hand, Exhibit A1 was not recorded with the aid of any interpreter. PW5 who recorded Hausa version was the same person who recorded Exhibits A & A1. He is shown to be proficient in both Hausa and English the languages. The Appellant thumb printed on Exhibit A1. Exhibits A & A1 cannot be rendered inadmissible merely because the Hausa version was not tendered.

In any case, the Appellant having denied making them, their probative value depends on the other evidence on record. Moreover, I find the Counsel’s position self contradictory. While at one breath he contends that the Appellant did not make the statement, at another breath he contends that the failure of the Respondent to tender the statement which the Appellant denies making is fatal to the Prosecution’s case. What a contradiction. What should really occupy the mind of the Counsel is that the said statement allegedly made by the Appellant at Bamaina Police Division which by force of law is deemed retracted Appellant having denied making same, is not the sole confessional statement relied upon by the lower Court in convicting the Appellant.

The other set of Exhibits A & A1 were recorded at the State C.I.D. office on 09/03/2015 and admitted pursuant to the ruling of the lower Court on a trial within trial. It is that Ruling that is now impugned in grounds 4 & 5 of the amended Notice of Appeal.

Now, the facts leading up to the conduct of the trial within trial in respect of the statements made at the State C.I.D. office Dutse (Exhibits A & A1) was the objection to their admissibility on the ground that they were obtained involuntarily as a result of severe torture meted out to the Appellant thereat. The lower Court rightly, in compliance with the dictates of the law, conducted a trial within trial to determine the voluntariness or otherwise of the statement, at the end of which in a considered ruling, it rejected the Appellant’s story and reached a verdict that the statements were voluntarily made by the Appellant. The Appellant’s displeasure with that Ruling is the reason for seeking our intervention to set aside the Ruling and declare the statements as involuntary. It is trite that a decision reached by a trial Court after a trial within trial

admitting a confessional statement can only be impugned and looked into by an appellate Court if same is appealed against as the Appellant has done. SeeLALAPU VS. COMMISSIONER OF POLICE (2019) LPELR 47814 (SC).
It must be noted that the decision of the lower Court after the trial within trial admitting the statements in evidence as Exhibits A & A1 was in a considered Ruling after hearing the witnesses for the prosecution who led evidence trying to show that the statements were voluntary and the Appellant who led evidence to show the contrary, that they are involuntary. That was a trial in which the demeanour of witnesses is very important; it is key. The credibility of witnesses is based on demeanour. See OSUAGWU VS. THE STATE (2013) LPELR 19823 (SC) also reported as (2013) 5 NWLR (PT. 1347) 360. This point was clearly made by this Court per Abiru JCA in the case of ABATCHA VS THE STATE (2018) LPELR – 46358 (CA) thus:
“Findings of fact made by a trial Court in a trial within trial are based on credibility of witnesses after watching their demeanour and an appellate Court should not upset such findings …”

(2010) 7 NWLR (PT. 1192) 171; LAGGA VS. SARHUNA (2008) 16 NWLR (PT. 1114) 427.
In FRN VS. IWEKA (2013) 3 NWLR (PT. 1341) 285 Tabai JSC held that an appellate Court which does not have the opportunity of hearing and watching the demeanour of witnesses should be wary to interfere with a finding of a trial Court on the credibility of a witness, and this is why the Court is always loath to interfere and seldom tinkers with such findings of fact except in a few circumstances, like where the findings are shown to be perverse.
It is for this reason that the law takes the posture that once a confessional statement is admitted in evidence following a trial within trial proceedings, it becomes difficult for an appellate Court to intervene except it is shown that the trial Court did not utilize its advantage of seeing and listening to the witnesses as they testified or the facts do not prove the prosecutions case or the finding is perverse. See STATE VS. J. NNOLIM & ANOR (1994) 5 NWLR (PT. 345) 394; BALOGUN VS. AGBOOLA (1974) 1 ALL NLR (PT. 2) 66; BOLANLE ABEKE VS. THE STATE (2007) 9 NWLR (1040) 411.
In OLAKUNLE VS. THE STATE (2014) LPELR – 22519

(CA), this Court per Akeju JCA held that since evaluation of evidence in a trial within trial is not based on documentary evidence but on credibility of witnesses an appellate Court cannot re-evaluate the evidence, and he relied on ABIODUN VS. THE STATE (2013) VOL. 3 – 4 M. JSC (PT. 1) 163.
The Appellant therefore has an uphill task to convince this Court which did not have any visual or audio contact with the witnesses to re-evaluate the evidence and alter the opinion of the trial Court which listened, saw and observed the demeanour of the witnesses. This is indeed a tall order.
In the instant case, the only reason why our interference is been sought is because learned Appellant Counsel opines that the reason given by the trial Court for rejecting the Appellant’s defence in the trial within trial that the scar of the injury allegedly sustained in the course of the torture was not seen, is unjustifiable in view of the time lag.
The law is that it is the prerogative of the trial judge to believe one witness and disbelieve another and as explained by my lord A.D. Yahaya JCA in the case of BATURE HASSAN VS. THE STATE (Unreported) Appeal

No. CA/KN/321A/C/2019 delivered on 22nd September, 2020, this prerogative is not shared with the appellate Court since it does not re-hear the witnesses and cannot be positioned to form an impression from their demeanor, whether to believe or disbelieve the witness. The trial Judge having observed the demeanour of the Appellant, if in his opinion the Appellant was not to be believed, it is not for this Court to substitute its view for that of the trial Court even if it would have evaluated the evidence differently provided that it is not shown that the trial Court abused its opportunity of seeing and observing the witnesses or misapplied the law, or was perverse. See IRENE NGUMA (ALIAS IRENE OKOLI) VS. A.G. OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 AT 140 E – H. per M.D. Muhammed JSC.
We are unable to see any perversity in the finding of fact on the credibility of the witness who testified before the lower Court whose demeanour and idiosyncrasies he observed. It is practically impossible for us to substitute our eyes or ears for those of the trial Court by merely reading the evidence on the cold records of proceedings. We find no basis to interfere

with the finding of the lower Court believing the evidence of the prosecution witnesses that the statements were voluntarily made and disbelieving the evidence of the Appellant that he was tortured to make the statements. Accordingly, Exhibits A & A1 recorded at the State C.I.D. Dutse Jigawa State were properly admitted in evidence and the Court was right in placing reliance on same. This issue is thus resolved against the Appellant and in favour of the Respondent.

ISSUE NO. 2
Whether the lower Court was right when it held that the Prosecution (Respondent) proved the ingredients of robbery and criminal conspiracy beyond reasonable doubts against the Appellant.

In arguing this issue which covers his issues 1, 2 and 5 Counsel restated the settled law that the prosecution bears the burden of proving each and every ingredient of the two offences beyond reasonable doubt against the Appellant to succeed in its case. RASAKI VS. THE STATE (2011) 16 NWLR (PT. 1273) 251 AT 284. He rehearsed the ingredients of the offence of criminal conspiracy which the prosecution must prove to justify the Appellant’s conviction and submitted that apart from the

inadmissible evidence of PW3 that he heard that a motor-cycle was snatched and that his wife saw a Nokia handset and brought same to him, none of the ingredients was proved by the evidence of the five prosecution witnesses one to five, establishing that the Appellant conspired with any person. He submitted that neither the inchoate evidence of PW4, nor that of PW5 or even of PW1, the eye witness substantiates the ingredients of criminal conspiracy as PW1’s narration of what transpired in the night of the incident is improbable and infused with doubts urging us to hold that the prosecution failed to prove the ingredients of criminal conspiracy against the Appellant.

For the offence of robbery whose ingredients he also listed, Counsel argued that there is no evidence that any robbery took place on the 05/03/2015 as stated in the Charge sheet and that the testimonies of all prosecution witnesses which point to a robbery allegedly committed on the 04/03/2015 go to no issue. He cited the cases of AKINLEMI BOLA VS. COMMISSIONER OF POLICE (1976) 6 SC 135 and ARUNA VS. THE STATE (1990) 9 – 10 S.C. 87 in urging us to hold that since no robbery was

committed in the manner stated in the Charge (on 05/03/2015), the Respondent failed to prove its case and to accordingly discharge and acquit the Appellant.

In addition, Counsel submitted that there is no positive evidence identifying the Appellant as one of the persons who participated in the robbery as the hearsay evidence of PW’s 2, 3, 4 and 5 who are not eye witnesses have no probative value linking the Appellant with the Mobile Phone that was recovered from the scene of crime. That neither PW4 nor PW5 who were Police investigators who ought to have investigated the hearsay evidence of PW5 the Village Head who informed him (PW5) that the phone belonged to the Appellant, took no step to investigate the assertion, the Appellant having denied ownership of the phone.

He also faulted the PW1’s identification of the Appellant whose evidence he said is riddled with inconsistencies, is insufficient and incredible that it is impossible for the PW1 to identify the Appellant under the circumstances in which the Appellant was identified. He referred to excepts of the evidence of PW1 wherein he stated that the incident happened in the night; PW1

did not know the Appellant before the incident; and there was no electricity on the way in addition to the fact that throughout the trip the assailant sat at the back of the motor-cycle, (behind PW1) thereby barring PW1 from close observation of the features of the Appellant. He contended that had the lower Court taken into consideration the guidelines laid down by the Supreme Court in the case of SUNDAY NDIDI VS. THE STATE (2007) 5 SC P. 175 for identification of criminals to guard against cases of mistaken identity, the Court would have reached a conclusion that it is impossible under such circumstances for the PW1 to have correctly identified the Appellant. Thus, according to him, in the absence of any forceful evidence directly linking the Appellant to the alleged robbery the culpability and participation of the Appellant in the alleged robbery is completely in doubt. Premised on these, he submitted that it was in the circumstance of this case necessary to conduct an identification parade but the lower Court wrongly held to the contrary without taking cognisance of the entire circumstances of the alleged robbery where the victim did not know the accused

before nor had opportunity of seeing and observing the features of the attacker during the trip apart from the short period he might have seen him when he picked him up at 8:00pm. He referred to IDOWU VS. THE STATE (2011) LPELR – 3597 (CA); AFOLALU VS. THE STATE (2007) LPELR – 8692 (CA).

He argued that all the questions and doubts would have been dispelled had the lower Court adopted the best parameters to conduct an identification parade but the Appellant was only shown to the PW1 for identification without being placed among other persons of similar heights, size, marks or any basis for the identification. This he contended is fatal to the identification of the Appellant, and created serious doubts on the identification evidence of PW1, reliance on which by the lower Court, he submitted is perverse. The case of OLUWASEGUN VS. THE STATE (2017) LPELR – 43705 (CA) was cited in support of this submission urging us to resolve the doubt in favour of the Appellant and set aside the perverse finding.

Counsel’s further complaint against the judgment of the lower Court as encapsulated in his Issue No. 5 is that contrary to the

obligation imposed on the Court to dispassionately consider and evaluate the case of each party before arriving at its decision, the lower Court did not consider and evaluate the Appellant’s evidence but merely and summarily dismissed the Appellant’s defence and his case that he denied both before the Village Head and the Police being the ownership or the knowledge of the owner of the Mobile phone, which Counsel he argued, occasioned a miscarriage of justice. See ADESAKIN VS. THE STATE (2013) ALL FWLR (PT. 700) 1308.

Learned Counsel posited that the whole allegation of robbery against the Appellant is founded on an unproved ownership of the Mobile phone which is speculative and has no place in criminal trial MILLAR VS. THE STATE (2005) 8 NWLR (PT. 927) 237, contending that had the lower Court appraised the uncontroverted evidence of the Appellant vis-à-vis the Respondent’s unsubstantiated case, it would have reached a conclusion that the Respondent did not prove the charge against the Appellant beyond reasonable doubt. Citing the case of EBRE VS. THE STATE (2001) 12 NWLR (PT. 729) 636, in urging us to quash the Appellant’s

conviction and substitute same with an order of discharge and acquittal.

RESPONDENT’S SUBMISSION
In his response on this issue, the learned Hon. Attorney General restated the trite principle of law that the standard of proof is not prove beyond iota or shadow of doubt but simply that of proof beyond reasonable doubt and Respondent is only expected to prove by compelling evidence the commission of the offences charged. He cited the cases of EKE VS. THE STATE (2011) ALL FWLR (PT. 566) 430; KOLAWOLE VS. THE STATE (2015) LPELR 242200 AT P. 38 PARAS A – B. per Galadima JSC among others.

He submitted that the guilt of accused can be proved either by the confessional statement of the accused, circumstantial evidence or evidence of an eye witness.

For the offence of robbery, Counsel listed the ingredients under Section 298 (1) (b) of the Penal Code, which the prosecution must prove and referred to the cases of OKON OSUNG VS. THE STATE (2011) 2 – 3 SC (PT. 1111) among others for the said ingredients judicially set out and that in proof of robbery, the Respondent tendered Exhibits A & A1 which are voluntary confessional

statements wherein the Appellant confessed the commission of the offence and narrated what he and one Abdullahi Baba (now at large) did in the commission of the offence, how the motor-cycle belonging to PW1 was forcefully taken away from him and how the PW1 was assaulted. He reiterated that the Appellant can be convicted merely on the basis of Exhibits A & A1 even without corroboration notwithstanding his attempt to retract same, citing in support of that position the cases of ISHAYAKU HABIBU VS. THE STATE Appeal No. CA/K/411C/2014 delivered on 13/04/2018 per U.M. Abba Aji JCA (now JSC) and KAMILA VS. THE STATE (2018) LPELR – 43603 SC per Sanusi JSC. That even if it be assumed that corroboration is required, the evidence of the co-accused Mohammed Idris elicited in cross-examination that he was given the motor-cycle by one Abdullahi Baba whose name Appellant stated in Exhibits A& A1, supplied the needed corroboration. He cited the case of KOMOLAFE VS. GUARDIAN PRESS LTD. (PRINTERS) (2010) ALL FWLR (PT. 517) 773 at 784 on significance of evidence elucidated in cross examination.

He submitted that additional to the confession is also the direct

evidence of the victim (PW1) narrating how his motor-cycle was taken away by force and how he was assaulted and submitted that the Appellant’s contention that there was no sufficient identification of the Appellant by PW1 is highly misconceived as a proper appraisal of the case shows, as properly found by the lower Court based on the evidence on record, that PW1 identified the Appellant as one of the persons who robbed him having been with the Appellant for two hours, and the lightning was bright enough to afford him opportunity to recognize the Appellant, thus, the case of SUNDAY NDIDI VS. THE STATE (supra) relied upon by the Appellant whose facts are different from the facts herein, is inapplicable. He maintained that an identification parade is unnecessary in the circumstance of this case and that insisting on conducting one will be turning the law on its head since PW1 identified the Appellant as corroborated by the uncontroverted evidence before the Court and the Appellant’s confession to his complicity in the commission of the crime. He relied on the case of IFEDAYO VS. THE STATE (2017) LPELR – 44374 SC per Augie JSC for this submission.

Further to the confessional statements of the Appellant also and the direct eye witness evidence of PW1 who identified the Appellant, learned Attorney General submitted, is the circumstantial evidence which linked the Appellant with the robbery, through a Mobile phone left at the scene of crime by the Appellant and found by PW2 who handed it to her husband, (PW3) who in turn submitted it to the Police. These pieces of surrounding circumstantial evidence he argued, have connected the Appellant to the crime, citing the cases of ODOGWU VS.THE STATE (2013) LPELR – 42892 SC and R. VS. TAYLOR & ORS. (1928) 21 CAR 20 AT 21.

On conspiracy, the Hon Attorney General also listed the ingredients that constitute the offence as captured by the apex Court in the cases of KOLAWOLE VS. THE STATE (SUPRA) AT PARA 28 – 29 B – C, and KAZA VS. THE STATE (2008) 7 NWLR (PT. 1085) 125, 176 E – F, to wit:-
a. that there must be agreement of two or more persons;
b. that the persons must plan to carry out an unlawful or illegal act, which is an offence; and
c. that bare agreement to commit an offence is sufficient<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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and submitted that the evidence of the PW1 that he picked the Appellant as a passenger on his motor-cycle; the Appellant and another person robbed him of the motor-cycle and caused him injury, in addition to the contents of Exhibits A & A1 of how the Appellant hatched a plan amounts to admission against interest which add up to prove the offence of criminal conspiracy. He cited the cases of ONISAODU VS. ELEWUJU (2006) 13 NWLR (PT. 998) 12 AT 532; ATA INDUSTRIES NIG. LTD. VS. N.B.C.L. (1998) 4 NWLR (PT. 546) 357 AT 408; OJEOHERE VS. ALAKIJA (2011) 34 WRN 4654 74 LINES 5 – 25.

In replying to the other issues raised in the Appellant’s brief of argument, the learned Counsel’s response on the issue of a wrong date stated in the charge as the date of the commission of the offence, is that a discrepancy in stating the date of the commission of the offence is not fatal as the Appellant was not misled and PWs 1, 2, & 3 all in agreement stated that the offence was committed on 04/03/2015. Moreover, the Appellant’s contention has since been settled by the apex Court in the case of ANKPEGHER VS. THE STATE (2018) LPELR – 43906

SC per Okoro JSC that such a discrepancy as to date of commission of offence is not fatal and does not occasion a miscarriage of justice.

On the Appellant’s submission that the lower Court failed to evaluate the Appellant’s evidence, the response is that the issue of torture had been considered by the learned trial judge in the trial within trial (TWT) and found to be untrue. On the general denial of the commission of the offence, he submitted that the Court properly evaluated the entire evidence before coming to a conclusion that the denial was an afterthought. Learned Attorney General quoted in extenso the judgment of the lower Court where the Court evaluated the evidence and argued that the lower Court having done that, there is no basis for this Court to interfere with the decision of the lower Court and cited the cases of ATTAH VS. THE STATE (2009) 13 NWLR (PT. 1164) SC P. 284; KAZEEM VS. MOSAKA (2007) 17 NWLR (PT. 1061) 523 and AJAYI VS. S.E.C. (2009) 13 NWLR (PT. 1157) CA 1 AT 33 to support his contention supra urging us further to hold that the prosecution (Respondent) proved with credible evidence the commission of the offences of

criminal conspiracy and robbery contrary to Sections 97 and 398 (c) of the Penal Code respectively against the Appellant and accordingly resolve the issue in favour of the Respondent against the Appellant to dismiss the appeal.

In his reply brief, learned Counsel for the Appellant drew a distinction between the case of EKE VS STATE (2011) ALL FWLR (PT. 566) 430 relied upon by the Respondents’ Counsel to argue that proof beyond reasonable doubt is not proof beyond iota of doubt as in the case at hand where the prosecution woefully failed to satisfactorily prove the ingredients of the offence.

Counsel also commented on the effect of the Respondent’s sole issue not responding to some aspects of the Appellants’ issues, as amounting to an admission of the Appellant’s arguments on those issues. NWANKWO VS YAR’ADUA & ORS (2010) PELR – 2109 (SC) was cited.

On the Respondents’ submission that the Appellant’s confessional statements alone are sufficient to ground his conviction even without any corroborative evidence, Counsel replied that the Supreme Court has always held, and he cited among others the cases

of KAMILA VS STATE (2018) ALL FWLR (PT 965) 1 and IKO VS STATE (2001) 14 NWLR (PT. 732) 221 that it is always desirable to corroborate a retracted confession with some evidence outside the confession.

He argued that the case of ARTA INDUSTRY NIG. LTD. VS NBCI (SUPRA) relied upon by the lower Court in placing reliance on Exhibits A & A1 is in opposite, and faulted the reliance placed on the Nokia mobile phone found at the scene of crime as circumstantial evidence.

On the non-conduct of an identification parade which the Respondents’ Counsel submitted is unnecessary on the authority of IFEDAYO VS STATE (2017) LPELR- 44374 (SC), Counsel distinguished the facts therein from those of this appeal in that in that case, the mobile hand set was found with the Appellant and the co-accused person.

Counsel also reiterated that the Respondents’ brief failed to point at any where that the lower Court evaluated the evidence of the defence and cited the case of MUSA VS STATE (2006) LPELR – 5661 (CA) why this Court must interfere.

RESOLUTION OF ISSUE NO. 2
The offences for which the Appellant was convicted are those of criminal

conspiracy and robbery contrary to Sections 97 and 298 of the Jigawa State Penal Code Law, CAP P. 3, 2012.

The elementary and settled position of law in criminal trials is that for the prosecution to secure the conviction of an accused person, it must prove conjunctively all the ingredients of the offence beyond reasonable doubt and a failure to prove any of the ingredients means a failure to establish the entire case which can only result in the discharge and acquittal of the accused person. See UBANI VS. THE STATE (2003) 18 NWLR (PT. 851); DANBABA VS. THE STATE (2018) NWLR (PT. 1631) 426; UGURU VS. THE STATE (2002) 9 NWLR (PT. 771) 90.
Also settled is that the guilt of an accused person may be proved either by relying on a confessional statement of the accused, by circumstantial evidence or direct evidence of an eye witness. See OKUDO VS. THE STATE (2011) 3 NWLR (PT. 1234) 209, 236 PARA D; AKWUOBI VS. THE STATE (2016) LPELR – 41389 (SC).

Now the ingredients of robbery under Section 298 of the Penal Code are that:
1. the accused committed theft;
2. that while committing the theft or in order to commit the theft or to carry

away or attempting to carry away the property obtained by the theft;
3. he caused or attempted to cause to some one,
i. Death, hurt or wrongful restraint or
ii. Fear of instant death or instant hurt or instant wrongful restraint.
Therefore, the offence of robbery will be said to be proved when the prosecution establishes beyond reasonable doubt that (i) the accused committed theft; and in the process of or immediately before or after the theft he threatened to cause death, or hurt etc or fear of death or instant hurt or restraint to any persons to commit the theft or to take away the stolen property. In other words, that the accused threatened to use violence or actually used violence in committing the theft or to take away the stolen property. See ADELEKE VS. THE STATE (2013) LPELR – 20971 (SC).

It is apt to first deal with the contention of the Appellant’s Counsel that there is no evidence that any robbery took place on the date stated on the Charge.
This agreement, with respect to learned Counsel is a display of the old fashioned but now jettisoned attachment many a Counsel have to technicalities at the expense of substantial justice.

It is obvious from the record of appeal that the 5th March, 2015 stated in the Charge sheet as the date of the commission of the offence is a mere mistake which did not misled the parties. Neither the prosecution nor the defence in particular was misled by the wrong or mistaken date inserted in the Charge. That error notwithstanding, all the prosecution witnesses in unison testified that the incident took place on the 4th March, 2015. That was also the evidence of the Appellant in Exhibits A and A1. Therein, the Appellant stated inter alia:
“I could remember on the 04/03/2015 … when I deceived the Okada man to carried me to Dankoshe …”
The only indicator of this is that the appellant was not misled by the error in his defence to the Charge against him. It is now settled law that a discrepancy between the date stated in the Charge as the date of the commission of the offence and the actual date of the commission of the offence as testified to by the witnesses, is a mere error which would be fatal only where the accused can show that he was misled by the error and a miscarriage of justice

occasioned. See GARBA VS. THE STATE (1999) 11 NWLR (PT. 1195) 112; MICHAEL ANKPEGHER VS. THE STATE(2018) LPELR – 43906 per Okoro JSC at PP. 15 – 18 Paras D – E.
The Appellant herein was not in any way misled by the error of the date on the Charge and no miscarriage of justice was occasioned.
Furthermore, by Section 206 of the Criminal Procedure Code, no error in stating an offence or the particulars required to be stated in a charge shall be regarded as material at any stage of the case unless the accused was in fact misled by such error or omission.
Instructive also is the fact that the phrase used in the Charge concerning the date of the commission of the offence is “on or about the 05/03/2015…”. “It is trite that whenever such a phrase is used in a Charge. It only means that the date stated for the commission of the offence is not exact. The prosecution is not bound to prove a particular date. The date of the offence could be on the date written in the Charge or about that date”. The offence could have been committed either on the stated date or almost or nearly on or close to the stated

date. In such case, all that the prosecution is required to do is to be consistent with the particular date, as done in this case.
On these premises, therefore we find the argument of the Counsel for the Appellant misconceived, and agree with the Respondent’s Counsel that the error in stating the correct date in the Charge which did not mislead the Appellant, cannot vitiate the conviction of the Appellant.

In proof of the offence the prosecution relied on the 3 methods of proof. It relied on the direct eye witness evidence of PW1, the victim of the offence; it also relied on the confessional statement of the Appellant and on circumstantial evidence.

Counsel for the Appellant has posited that contrary to the contents of the charge, there is no evidence that any robbery took place on the 5th March, 2015 as the evidence of the prosecution witnesses 1, 2, 3, and 5 which is to the effect that the alleged robbery took place on the 4th March, 2015 is at variance with the date stated in the Charge.

It is clear from the record that the lower Court relied among other forms of proof, on the confessional statement of the Appellant. The said

reliance placed on the confessional statements by the lower Court is the meet of the Appellant’s complaint in issue No. 1 already resolved against the Appellant. Flowing from this resolution, the Appellant’s grudge that Exhibit A & A1 are inadmissible for being involuntary has been put to rest, this Court having found that the said confessional statements, Exhibit A & A1 were voluntarily made by the Appellant. That being so, the lower Court was entitled and right to rely on their contents same having been admitted after the conduct of trial within trial at the end of which the lower Court rejected the Appellant’s contention of involuntariness and admitted the statements as voluntary statements.
In Exhibit A1, the Appellant stated:
“I could remember on 04/03/2015 at about 1900hrs one of my long friend Abdullahi Baba ‘m’ came to met at my house we discussed on how to get money where we advice on how to get money where we advice ourselves that the said Abdullahi will go and hide inside bush outskirt of Dankoshe village. That he should wait one man with his motor-cycle we will collect the motor-cycle from him as a

result I came to Babaldu town at about 200 hrs, when I deceived the Okada man to carried me to Dankoshe village.”

The confessional statement (Exhibit A) was attested to by a superior Police Officer ASP Sani Garba (PWB in the TWT) who endorsed same after it was read in his presence to the Appellant who agreed with the contents.

These are substantially the same contents with Exhibits A & A1 recorded at the Bamaina Police Division.

Clearly, the Appellant admitted against his interest, his involvement and participation in the offences of criminal conspiracy and robbery. The utilitarian value of a confessional statement of an accused person in a criminal trial cannot be over emphasized. It’s eminence in evidential value and its prime place derives from the fact that there is no stronger evidence than a man’s own admission or confession. It is considered as the best evidence which the Court can rely upon to convict. It is therefore no longer debatable that a man may be convicted on his confessional statement alone which is voluntary, direct, and positive once the Court is satisfied of its truth. See IDOWU VS. THE STATE (2017) 9

NWLR (PT. 1038 30; OZANA UBIERHO VS. THE STATE (2005) 4 NWLR (PT. 919) 644 AT 655; KAMAILA VS. THE STATE (2018) ALL FWLR (PT. 965); OSENI VS. THE STATE. Also HABIBU VS THE STATE appeal No. CA/K/411/C/2014 delivered on 13/04/2018 per Uwani JCA (as he then was now JSC) cited by the learned Respondent’s Counsel.
In KAMILA VS. THE STATE (SUPRA) where the complaint was that the Appellant was convicted on an uncorroborated and inadmissible evidence, the Supreme Court reaffirmed that the trial Court is empowered to convict an accused person on the basis of his confession alone.
In the case at hand, the Appellant’s contention that the trial Court did not subject the retracted confessional statements to the six veracity test is not requirement of the law in all cases as herein before stated. Though it is desirable and often is the practice of the appellate Courts to look for corroborative evidence outside a retracted confession no matter how slight, where a confessional statement is admitted after a trial within trial, it will be unnecessary to subject the statement to the six veracity tests to look for evidence outside the confession the lower Court

having found same to be voluntary.

The said Ruling of the lower Court admitting the statements as voluntary having been affirmed by this Court and decided against the Appellant, there is no basis to interfere with the reliance placed by the Court on the confessional statements and its findings and conclusions thereon.

We accept the finding of the lower Court that the Appellant voluntarily confessed to the commission of the offences charged, that he robbed PW1 of his motor-cycle.

Quite aside of the confessional statement relied upon the Respondent also relied upon the direct evidence of an eye witness and circumstantial evidence.

The learned trial judge after evaluating the evidence came to the conclusion that:
“the victim also identified the 1st accused (now Appellant) as the person that conspired and robbed him on the fateful day.”

In reaching that conclusion, the lower Court made specific finding:
However in the present case, the 1st accused person was seen at Babaldu by the PW1 at Babaldu around 7.00pm and it was in evidence that at that time there was electricity light for which the PW1 had the opportunity to

recognize the 1st accused from 7 – 9pm therefore the meeting of the 1st accused and PW1 was not for every short period of time.

The learned Counsel for the Appellant has picked hole with the above finding and conclusion by the lower Court contending that the finding did not take into account that in the circumstances in which the alleged robbery was committed, it would be impossible for PW1 to identify the Appellant, in that PW1 had no previous acquaintance with the Appellant; the offence was committed in the night between 8:00pm to 9:00pm; there was no light on the way during the trip, and the PW1 had no opportunity of closely observing the assailant’s features since the assailant sat at the back of the motor-cycle behind PW1 and argued that in such circumstance, it was necessary to conduct an identification parade.

The real question to answer as between the stand of the lower Court and the position of the Appellant’s Counsel is whether the prosecution, that is PW1 correctly identified the Appellant as the person who hired him (PW1) to take him (the assailant) to Dankoshe village and one of the robbers who robbed PW1 of his

motor-cycle. In other words, whether the prosecution proved beyond reasonable doubt that the Appellant identified by PW1 and charged for the offence is the same person who committed the offence.

The need for proper identification of an accused person as the person who actually committed an alleged offence cannot be overemphasized to ensure that a wrong person is not made to suffer for a crime he has not committed. The necessity is even more and in fact compelling where the conviction of the accused depends solely on his identity as the culprit. The necessity in such a case will be absolute in order to dispel any doubt in the mind of the Court that the person been identified by the identification evidence is the one and the same person who was seen at the scene of crime committing the offence, FAMUYIWA VS STATE(2018) 15 NWLR (PT. 1613) 515.
This is of utmost importance in the administration of Criminal Justice, if Justice is to be achieved since it is the identification of the accused that creates a link between the accused and the offence. See STATE VS SANI (2018) LPELR – 43598 (SC).
Therefore wherever the case against the accused depends

wholly on the correctness of his identification and he alleges, as is been alleged here, that the identification is mistaken, the Court must closely examine the evidence before acting on it and any weakness in the evidence must go to the benefit of the accused per UKPABI VS STATE (2004) 11 NWLR (PT. 884) 439.
This is why the trial Court is enjoined to be guided by the considerations laid down in several cases including the case of SUNDAY NDIDI VS THE STATE (SUPRA) cited by the Appellant’s Counsel. These are:
1. Circumstances in which the eyewitness saw the suspect or defendant.
2. The length of time the witness saw the subject or defendant
3. The lighting conditions
4. The opportunity of close observation.
However, the law is that the question of whether an accused person is properly identified as the one who committed the offence or was a party to the commission of the offence is a question of fact to be considered by the trial Court on the evidence placed before the Court and this depends on the facts and circumstances of each case. UDUKWU VS THE STATE (2009) NWLR (PT 1139) 43. So when a trial Court is faced with

identification evidence, all it needs to do is to be satisfied that the identification evidence has sufficiently established the guilt of the accused person beyond reasonable doubt DAIRO VS STATE (2018) 7 NWLR (PT. 1619) 399 UKPABI VS STATE (2004) 6 – 7 SC 27.
In the instant case when PW1 picked his passenger at Babaldu village at about 8.00pm, there was light to afford him the opportunity of seeing and recognising the passenger he picked. PW1 was together with his passenger turned assailant for about one or two hours before the incident happened. Though the assailant sat behind the motorcycle during the trip the following day the Appellant was arrested and when asked if he could recognise his assailant, PW1 immediately recognised the Appellant as the passenger/assailant he picked.
It is now an accepted and well established law that the visual spontaneous evidence of identification is not only acceptable but in some instances, it is even more reliable than an identification parade, if believed by the Court. See OCHIBA VS STATE (2011) LPELR 8245 (SC) also reported as (2011) 17 NWLR (PT. 1277) 663 where Adekeye JSC stated:-

“It is well established that recognition, visual spontaneous evidence of identification in most instances is more reliable than an identification parade and is acceptable in murder trial if believed by the Court.”
The learned trial Judge believed the identification evidence of PW1 that the Appellant was the same person who engaged his service to take him (the Appellant) to Dankoshe on his motorcycle and later robbed him of the motorcycle.
Inspite of this, Appellants’ Counsel insists that the lower Court ought to have conducted an identification parade in this case. It is trite as conceded by the Appellants’ Counsel that identification parade is only one of the means of identifying the perpetrator of a crime. It is not the only means. Where an accused person is arrested at the scene of crime or spontaneously identified shortly after its commission by the victim or one of the victims of the crime, or where the accused confesses to the commission of the crime, identification parade is not required. OGU VS COP (2018) 8 NWLR (PT. 1620) 134.
It needs to be emphasized that an identification parade is not conducted for the fun of it or as a ritual

or for a cosmetic purpose. It is conducted only where the identity of the perpetrator of the crime is seriously, in doubt and the eye witness evidence is shaky, weak and doubtful and the accused has not confessed to the commission of the offence. In IFEDAYO VS STATE (2017) LPELR – 44374, Augie JSC stated the real situation that should call for the circular of an identification parade in these words:
“Identification parade should never be conducted for purely cosmetic reason; it should be limited to cases of real doubt or dispute as to the identity of an Accused or his connection with the offence charged. To insist that it must be conducted as in (this) case, in which the identity is clear and corroborated by other uncontroverted evidence, and the Accused confesses to his complicity in the crime, is to make a mockery of justice.”
In the case at hand as earlier found in this judgment, the Appellant was spontaneously recognised by PW1 merely a day after the commission of the crime.
Furthermore, in Exhibit A1 the Appellant also identified himself as the person who asked and paid the PW1 to take him (Appellant) to Dankoshe

village and one of the persons who robbed PW1 of his motorcycle. What further identification is required to verify the identification evidence of PW1 of the Appellant or to ascertain that the Appellant was one of the robbers? None. There is no need for further identification parade to fish out a person who has already identified himself. Thus, the case of SUNDAY NDIDI VS. THE STATE (supra) heavily relied upon by the Appellant’s Counsel does not apply here. We therefore have no reason to fault the finding and conclusion of the lower Court in this regard that PW1 identified the Appellant as one of the robbers who beat him and took away his motor-cycle.

The learned trial judge also made a finding that the Appellant was linked to the commission of the offence by the recovery of the Nokia handset and at page 101 of the record, summed up the connecting evidence this way:
It is to be noted that the evidence of the prosecution witnesses were left unchallenged and by they both add up to provide a clear view of how the offence was committed. The evidence of the PW1 is that of an eye-witness while the evidence of PW2 and PW3 is that of evidence of

circumstance while Exhibit A and B were the evidence of the 1st and 2nd accused persons narrating the way and manner they conspired and robbed their victim.

The above finding is based on the circumstantial evidence of PW2 and PW3 who recovered a Mobile phone at the scene of crime a few hours after the robbery and took the phone to the village head and was subsequently handed over to the Police. Linking the recovered handset to the Appellant, the Appellant himself in Exhibit A1, admitted that he left the Nokia phone at the scene (see page 57 of the record – last line). In his statement, he stated that they took away the motor-cycle from the owner and he left his phone at the scene (Exhibit A at C.I.D.), or as in A1 at Bamaina Police Division that he lost the phone on his way. In addition, the recovered motor-cycle from the 2nd accused and the recovered phone at the scene provide the corroboration.

Furthermore, PW1 identified the Appellant as the person who engaged his service to convey him to Dankoshe but on their way, after Wurno, together with another person robbed him of his motor-cycle.

I think it will be antithetical in the

circumstance to require an identification parade to be conducted to pick out the Appellant who has identified himself as the person who committed the offence. To insist on identification parade will be to turn the law on its head.

In proof of the other vital ingredient of robbery that in committing or in order to commit the theft or in carrying away or attempting to carry away the property obtained by theft the accused person caused or attempted to cause to some one death or hurt or wrongful restraint or put that other in fear of death or instant hurt or instant wrongful restraint, the unchallenged evidence of PW1 that the Appellant and the other attacker beat him and he fell down bleeding as a result of the beating and they took away the motor-cycle supports that ingredient and completes the offence.

On the second count of criminal conspiracy, conspiracy is simply an agreement between two or more persons to commit an unlawful act coupled with intent to achieve the object of the agreement; HARUNA VS. STATE (1972) 8 – 9 SC 174.
Put differently the offence is complete, once there is a formation of a scheme between the parties before the actual

commission of the act for which the conspiracy is formed.
The mere agreement to do or cause to be done an illegal act or a legal act by illegal means constitutes the offence and it is not necessary that the substantive offence itself be committed or be proved. The offence is complete once there is an agreement between the parties who share a common criminal intention or purpose; See NJOVENS VS. STATE (1973) 5 SC 17, OSETOLA VS. THE STATE L.P.E.L.R – 9348 (SC). Thus, conspiracy is a separate and independent offence from the crime that is the object of the conspiracy and failure to prove a substantive offence does not make conviction for conspiracy inappropriate. See OSONDU VS. F.R.N (2000) 12 N.W.L.R (pt. 682) 483. OSETOLA VS. THE STATE (SUPRA).
Proof of conspiracy or the agreement is generally a matter of plausible inference deduced from certain criminal acts of the accused persons done in pursuance of a criminal purpose common between the conspirators. It is rarely proved by direct evidence and understandably so, because of the secrecy by which it is planned and executed to the exclusion of every other person who is a stranger to the scheme.

It is therefore difficult to have direct witnesses to prove the offence. Consequently, the Courts have held that conspiracy can be proved either by leading direct evidence in proof of common criminal design or by inference deduced from the commission of the offence; EGUNJOBI VS. F.R.N (2001) 53 W.L.R.N 20 at 54; LAWSON VS. STATE (1975) 4 SC 115 AT 123. NWOSU VS. THE STATE (2004) 15 NWLR (pt 897) 466.
The agreement can be inferred from what each person does or does not do in furtherance of the common purpose and it is immaterial that the persons have not met each other. JIMOH VS. STATE (2014) 10 NWLR (pt. 1414) 105. Once there is evidence to commit the substantive offence, it does not matter what any of the conspirators did or who did what; SULE VS. STATE (2009) 17 NWLR (pt 1169) 33.

In the instant case, the Appellant stated in Exhibit A1 that one Abdullahi Baba (now at large) and himself advised themselves how to get money. On what they did, he stated inter alia “I could remember on 04/03/2015 at about 1900hrs one of my long friend Abdullahi Baba ‘m, came to met at my house we discussed on how to get money where we advice ourselves that the said

Abdullahi will go and hide inside bush outskirt of Dankoshe village. That he should wait one man with his motor-cycle we will collect the motor-cycle from him as a result I came to Babaldu town at about 200 hrs, when I deceived the Okada man to carried me to Dankoshe village.”

With this evidence in addition to the recovery of the motor-cycle from the 2nd accused, the lower Court also rightly found the offence of conspiracy in addition to offence of robbery, proved beyond reasonable doubt against the Appellant.

In the circumstance, this issue is also resolved against the Appellant. We find no merit in this appeal and it is accordingly dismissed. Ruling delivered on 04/04/2016 admitting Exhibits A & A1 as well as the conviction and sentence imposed on the Appellant by Hon. Justice Umar M. Sadiq on 8th November, 2016 are hereby affirmed.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have read before now, the leading Judgment of my learned brother Wambai JCA just delivered. I agree that the trial Court was right when it found the offences of conspiracy and robbery proved against the Appellant. Consequently, this appeal has no merit and I dismiss it.

I affirm the Ruling of the trial Court on the 4th April, 2016 and the Judgment delivered on 8th November, 2016 in Charge No. JDU/72C/2015.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. I have had the privilege of reading before now the lead judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein. I only wish to comment on one aspect of the case.

In the course of trial, the Respondent tendered two confessional statements made by the Appellant at two different police stations in proof of its case. The first confessional statement tendered was that made at the State Criminal Investigation Department. The Appellant objected to the tendering of the confessional statement on the ground of involuntariness and consequent on which the lower Court conducted a trial within trial. The parties led evidence in the trial within trial and at the conclusion of which the lower Court found that the confessional statement was voluntarily made and it admitted the Hausa and the English versions of the statement as

Exhibits A and A1. In this appeal, the Appellant contended against the Ruling of the lower Court on the trial within trial and the contention was roundly and correctly dismissed in the lead judgment. Findings of fact made by a trial Court in a trial within trial are based on the credibility of witnesses after watching their demeanour and an appellate Court should not upset such findings -Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360, Abiodun Vs State (2013) 9 NWLR (Pt 1358) 138.

The second confessional statement was the statement made by the Appellant at Bamaina Police Division. The Police Officer who recorded the confessional statement gave evidence that the Appellant made the statement in Hausa Language and that he recorded the statement in Hausa language and that he thereafter translated it into English language. The witness testified that he read the translated version to the Appellant and that the Appellant confirmed that it was a true reflection of his statement and signed and he counter signed. The Appellant objected to the rendering of the statement on the ground that he did not make the statement and the lower Court admitted the English versions

of the statement and an additional statement as Exhibit A and A1.

Counsel to the Appellant contended that the lower Court was in error in relying on the first confessional statement tendered as Exhibits A and A1 without looking for evidence outside it in convicting the Appellant. I consider it necessary to make a clarification on this point. It is settled law that during trial, an accused defendant who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan Vs State (2001) 15 NWLR (Pt. 735) 184, Kazeem Vs State (2009) WRN 43 and Osetola Vs State (2012) 17 NWLR (Pt. 1329) 251.
In other words, the accused defendant must show either (i) that he did not make the statement at all; that it was make-believe or (ii) that he made the statement, but that the making of the statement was involuntary. An accused defendant cannot rely on

both situations in impeaching his extra judicial statement to the Police because they are mutually exclusive. Where the accused defendant contends that he did not make the statement, a trial Court will admit the statement and postpone the use to be made of the statement to the stage of evaluation of evidence, at the conclusion of hearing, and it is obliged to subject the statement to the six-way test at that stage to determine its probative value. Where the accused defendant contends involuntariness in the making of the statement, the trial Court must conduct a trial within trial at that stage to determine the issue of voluntariness and would only admit the statement into evidence where it finds that it was voluntarily made – Onyenye Vs State (2012) LPELR 7866 (SC), Ofordike Vs State (2019) LPELR 46411(SC), State Vs Ibrahim (2019) LPELR 47548(SC), Sale Vs State (2020) 1 NWLR (Pt 1705) 205. It is trite law that if a confessional statement is admitted after a trial-within-trial, an accused person cannot argue that he did not make the confession voluntarily without first impugning the trial-within-trial – Bouwor Vs State (2016) 4 NWLR (Pt 1502) 295,

Lalapu Vs Commissioner of Police (2019) 16 NWLR (Pt 1699) 476, Sale Vs State (2020) 1 NWLR (Pt 1705) 205. This Court, in the lead judgment has rightly rejected the attempt by the Appellant to impugn the trial within trial.

It is trite law that a Court is entitled to convict an accused defendant solely on the basis of his direct, positive and unequivocal confession so long as it is satisfied of its truth, even without corroboration. In such circumstances, there is no need for a trial Court to look for evidence outside the confessional statement – Stephen Vs State (1986) 5 NWLR (Pt 46) 978, Yahaya Vs State (1986) 12 SC 282, Oseni Vs State (2012) 5 NWLR (Pt 1293) 351, Oladipupo Vs State (2013) 1 NWLR (Pt 1334) 68, Abdullahi Vs State (2013) 11 NWLR (Pt 1366) 435, Idoko Vs State (2018) 6 NWLR (Pt 1614) 117, State Vs Ahmed (2020) LPELR 49497(SC). This is premised on the reasoning that what an accused person says against his interest without police influence is most likely to be true – Ikemson Vs State (1989) 3 NWLR (Pt 110) 455, Ike Vs State (2010) 5 NWLR (Pt 1186) 41, Shurumo Vs State (2010) 19 NWLR (Pt 1226) 73, Bassey Vs State (2012) 12 NWLR (Pt 1314) 209, Alao Vs State

(2019) 17 NWLR (Pt 1702) 501.
A read through the reproduced contents of the confessional statement of the Appellant in the lead judgment shows that they are direct, positive and unequivocal on the part the Appellant played in the robbery of the motorcycle. There was thus no obligation on the lower Court to look for evidence outside the confessional statement. It could safely convict the Appellant solely on the basis of the confession. The need to look for evidence outside a confessional statement is of no much relevance where an accused person admits that he voluntarily made a confessional statement and the confession is direct, positive and unequivocal as to his guilt – Igba Vs State (2018) 6 NWLR (Pt 1614) 44, Essien Vs State (2018) 6 NWLR (Pt. 1614) 167, Fulani Vs State (2018) LPELR 45195(SC), Hamza Vs State (2019) LPELR 47858(SC) or (2019) 16 NWLR (Pt. 1699) 418. In Ogu Vs Commissioner of Police (2018) 8 NWLR (Pt. 1620) 134, the Supreme Court made the point thus:
‘Of all methods of proving the guilt of an accused person beyond reasonable doubt, a confessional statement, which is voluntarily made and which is direct, positive and satisfactory

proved, is the most potent of all coming as it were, “from the horse’s mouth”. A free and voluntary confession of an accused person, if it is direct and positive and satisfactorily proved, should occupy the highest place of authenticity when it comes to proof beyond reasonable doubt. This is why such a confession by itself is sufficient without further corroboration to warrant a conviction …‘

Counsel to the Appellant similarly contested the reliance placed on the English versions of the second confessional statement and additional statement made at Bamaina Police Division and also tendered as Exhibits A and A1 and this was on the ground of the failure of the Respondent to tender the Hausa versions along with them. This goes to the veracity of the confessional statements. Serious as the ground of contention may appear, the sting is totally taken out of it by the fact that the contents of the confessional statements are the same in context and very similar to the contents of Exhibits A and A1 made by the Appellant at the State Criminal Investigation Department and which the trial Court found was voluntarily made. The two sets of

statements were made and recorded at different times on different days in different police stations by different Police men. The Appellant did not suggest that there was collusion between the recorders of the two sets of statements. The contents of the first set of Exhibits A and A1 proved the veracity of the contents of second set of Exhibits A and A1. The failure to tender the Hausa versions of the second set of statements thus pales into insignificance.

It is for these reasons and the fuller exposition of the law in the lead judgment that I too find no merit in this appeal and I hereby dismiss same. I affirm the judgment of the High Court of Jigawa State delivered in Charge No JDU/72C/201 5 by Honorable Justice Umar M. Sadiq on the 8th of November, 2016 as well as the conviction of and sentences passed on the Appellant therein.

Appearances:

HABEEB A. OREDOLA, ESQ. For Appellant(s)

MUSA DAMU ALIYU (HON. ATTORNEY GENERAL/ COMMISSIONER FOR JUSTICE, JIGAWA STATE For Respondent(s)