AFOLABI v. STATE (2021)

AFOLABI v. STATE

(2021)LCN/15170(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Tuesday, March 30, 2021

CA/IB/286c/2017

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

BABATUNDE AFOLABI APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING THE STANDARD OF PROOF REQUIRED IN A CRIMINAL CASE

By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean that the prosecution must prove the case with mathematical exactitude: ADEBOYE vs. THE STATE (2011) LPELR (9091) 1. It does not mean proof beyond all shadow of doubt; so, where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt. In the words of Oputa, J.S.C. (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12 – 13: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: – ‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.’” Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. More often than not in criminal trials, the crux of the disceptation is not whether the offence was committed, but whether it was the accused person that committed the offence: NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WAYS OR METHODS BY WHICH THE PROSECUTION MAY PROVE THE GUILT OF AN ACCUSED PERSON

There are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are: 1. By reliance on a confessional statement of an accused person voluntarily made; 2. By circumstantial evidence; and 3. By the evidence of eyewitnesses. See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and EZE vs. FRN (2017) 15 NWLR (PT 1589) 433 at 490. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

EFFECT OF AN UNAPPEALLED FINDING OF THE LOWER COURT

There is no appeal against this finding of the lower Court that the prosecution failed in two of the three ways or methods of proving the commission of a crime. The said finding not having been appealed against remains subsisting and binding: ESANGBEDO vs. THE STATE (1989) 4 NWLR (PT 113) 57, DURUGO vs. THE STATE (1992) 9 SCNJ 46 at 54 and IDIOK vs. THE STATE (2008) LPELR (1423) 1 at 10-11. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHETHER WHERE A STATEMENT HAS NOT BEEN VOLUNTEERED IN ENGLISH LANGUAGE, THEN THE ORIGINAL LANGUAGE AND THE TRANSLATION MUST BE TENDERED IN EVIDENCE

Exhibits M and N are English language translations of the statements said to have been volunteered by the Appellant at the State Criminal Investigation Department. The original language in which the statements were volunteered is Yoruba language. The Yoruba language version of the statements were not tendered in evidence. It is trite law that where a statement is volunteered in a language other than English language and then translated into English language, the two statements must be tendered in evidence in order for the onus of proof beyond reasonable doubt to be discharged. Where, as in the instance case, only the English language translation of the statements made at the State Criminal Investigation Department was tendered, the same has no probative value. Accordingly, the said Exhibits M and N are inadmissible and they are hereby expunged from the evidence. See ADAMU vs. THE STATE (2019) LPELR (46902) 1 at 38-48, OLANIPEKUN vs. THE STATE (2016) 13 NWLR (PT 1528) 100 at 117 and ODERINDE vs. THE STATE (2018) LPELR (43661) 1 at 16-17. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

WHETHER THE DENIAL OF A CONFESSIONAL STATEMENT WILL RENDER SUCH STATEMENT INADMISSIBLE IN EVIDENCE; WHETHER A COURT CAN ACT ON A RETRACTED CONFESSIONAL STATEMENT

…the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20, KAREEM vs. FRN (2001) 49 WRN 97 at 111, EHOT vs. THE STATE (1993) 5 SCNJ 65, EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 385 at 431 and OBISI vs. CHIEF OF NAVAL STAFF (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement: HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93. However, a Court cannot act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases including IFEANYI vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192, NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJ.S.C. 168 at 188-189 and ALARAPE vs. THE STATE (supra) to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether: 1. There is anything outside the confession to show that it is true. 2. It is corroborated. 3. The facts stated in the confession are true as far as can be tested. 4. The accused person had the opportunity of committing the offence. 5. The accused person’s confession is possible. 6. The confession is consistent with the other facts ascertained and proved. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ogun State, Coram Judice: Dipeolu, J. (later CJ) in CHARGE NO. AB/5R/2013: THE STATE vs. BABATUNDE AFOLABI, delivered on 2nd April 2015. The Appellant was charged on an Information preferring two counts of conspiracy to commit armed robbery and armed robbery contrary to Section 6 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.

In proof of the offences charged, the Prosecution called two witnesses who adduced testimonial and documentary evidence. The Appellant testified in his defence and did not call any other witness. At the end of the trial, the lower Court convicted the Appellant as charged and sentenced him to death. The judgment of the lower Court is at pages 89-107 of the Records. The Appellant was dissatisfied with the judgment and appealed against the same by Notice of Appeal filed on 5th June 2015 which is at page 108 of the Records. The extant Notice of Appeal on which the appeal was argued is the Amended Notice of Appeal

filed on 11th March 2019 but deemed as properly filed on 23rd June 2020.

The Records of Appeal were compiled and transmitted on 21st July 2017, but deemed as properly transmitted on 18th November 2018. In prosecution and defence of the appeal, the parties filed and exchanged briefs of argument. The Appellant’s brief of argument was filed on 29th May 2020 and Appellant’s Reply Brief was filed on 7th July 2020. The Respondent filed its brief of argument on 23rd June 2020. All the briefs were deemed as properly filed on 18th November 2020. At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant formulated two issues for determination, videlicet:
1. Whether, the learned trial Judge was right in law to have relied on the Exhibits H, H1, M and N (alleged confessional statements of the Appellant) to convict the Appellant of offences of conspiracy to commit armed robbery and armed robbery, when there was no corroborative evidence showing that the alleged confession was true or that the Appellant had the opportunity of

committing the crimes contained in the Charge Sheet dated 4th of April, 2013. (Ground 2); and
2. Whether, in view of the evidence led by the Prosecution and answers elicited from the prosecution witnesses in the course of cross-examination, the Respondent discharged the burden on it to prove all the essential ingredients of the offences of conspiracy to commit armed robbery and armed robbery as provided for in Sections 6(b) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act and Armed Robbery, [sic] Cap R11 Laws of the Federation of Nigeria, 2004 respectively against the Appellant to ground the conviction of the Appellant by the lower Court for the offences of conspiracy to commit armed robbery and armed robbery as alleged in Counts 1 and 2 of the Charge Sheet dated 4th April, 2013. (Grounds 1, 3 and 4).

On its part, the Respondent distilled a sole issue for determination, scilicet:
“Whether the admission and the reliance on the Appellant’s confessional statements by the trial Court was wrong having regard to Exhibits H, H1, M, N when convicting the Appellant for the offences of Conspiracy to Commit Armed Robbery and

Armed Robbery.

I will review the submissions of learned counsel as argued under the issues they crafted and thereafter seamlessly resolve the appeal en bloc.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the Complainants, who reported the commission of the offence to the Police did not testify, and so the Prosecution only called the hearsay evidence of the Investigating Police Officers. It was contended that there was no direct evidence and also no circumstantial evidence to prove the ingredients of the offence of armed robbery. It was opined that the lower Court relied on the confessional statements of the Appellant to convict, when the said confessional statements were not properly admitted in evidence and satisfactorily proved as required by law vide JIMOH YESUFU vs. THE STATE (1976) 6 SC 167 at 173.

It was submitted that an objection was taken to the admissibility of the Yoruba language statement said to have been volunteered by the Appellant; consequent upon which a trial within trial was conducted, in the course of which the prosecution also sought to tender the English language translation which was never

mentioned in the main trial before the trial within trial commenced. The lower Court, it was posited speculated that the English language version was the translation of the statement made in Yoruba language and admitted the same in evidence. It was stated that a Court is not to engage in speculation and conjecture. The cases of GALADIMA vs. THE STATE (2012) 18 NWLR (PT 1333) 610 and EJEZIE vs. ANUWU (2008) 4 SC 167 at 173-174 were referred to. It was maintained that the lower Court should not have countenanced the English language translation to convict the Appellant as there was no evidence that it was the translation of the statement made in Yoruba language.

The Appellant further contended that Exhibits M and N were English language translation of statements said to have been volunteered in Yoruba language, which statements would only be admissible when tendered with the Yoruba language version from which it was translated. The cases of ORJIAKOR vs. THE STATE (2017) LPELR-42739 (CA) and THE STATE vs. MUSA (2018) LPELR-46318 (CA) were relied upon. The Court was consequently urged to discountenance the confessional statements for not being admissible

evidence on which a Court can convict.

Without conceding that the statements were admissible in evidence, the Appellant submitted that there was nothing outside the statements which give credibility to the statements when the six tests laid down in OKPAKO vs. THE STATE (2018) 9 NWLR (PT 1624) 213 at 326 [sic] are applied. It was asserted that there was nothing else in the evidence corroborating the statements. The cases of DAGAYYA vs. THE STATE (2006) 7 NWLR (PT 980) 637 and OKABICHI vs. THE STATE (1975) 1 ALL NLR 17 were referred to on the meaning of corroboration.

It was further contended that the statements of the Complainants and any other person, which were tendered in evidence, when they were not called as witnesses, were of no probative value and cannot be used to ascertain the truth of the confessional statements. The case of HAUSA vs. THE STATE (1994) 6 NWLR (PT 350) 281 at 301 and 344 was relied upon. It was maintained that there was nothing on the record on which the truth or otherwise of the confessional statements can be tested. The case of DAIRO vs. THE STATE (2018) 7 NWLR (PT 1619) 399 at 415 was called in aid.

Arguing the second issue he nominated for determination, the Appellant referred to the case of UDO vs. THE STATE (2018) 8 NWLR (PT 1622) 462 at 475 and 480 on the three methods or ways of proving the commission of a crime. It was opined that the essential ingredients of the offence of armed robbery were not proved and that the confessional statements relied upon by the lower Court were not direct and positive. The case of CHIANUGO vs. THE STATE (2002) 2 NWLR (PT 750) 225 at 236 was called in aid on the definition of conspiracy and it was submitted that there is no evidence that the Appellant conspired with anyone to commit armed robbery. It was therefore asserted that conspiracy was not proved by credible evidence vide BUKOLA vs. THE STATE (2017) LPELR-43747 (CA) and OLADEJO vs. THE STATE (1994) 6 NWLR (PT 348) 101 at 127.

It was further submitted that the evidence did not establish that there was an armed robbery and that the Appellant was one of the robbers. It was posited that the lower Court was wrong to have dismissed the Appellant’s alibi on the ground that it was not raised at the earliest opportunity, since the evidence is that the Appellant did no more than

thumbprint the statement written for him by the Investigating Police Officer, who did not record what the Appellant told him about his whereabouts. It was conclusively submitted that there was nothing in the evidence linking the Appellant with the commission of the offences charged and so the lower Court ought to have discharged and acquitted the Appellant. The case of OGBAGA vs. THE STATE (2016) LPELR-40950 (CA) was relied upon.

SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the onus on the prosecution is to prove the offences charged beyond reasonable doubt, not beyond every shadow of doubt. The cases of ABIRIFON vs. THE STATE (2013) 9 SCM 1 at 5 and NWATURUOCHA vs. THE STATE (2011) 12 SCM (PT 2) 265 at 269 were cited in support. The ingredients of the offence of armed robbery and the three ways of proving the commission of a crime as laid down in the cases of OSUAGWU vs. THE STATE (2013) LPELR-19823 (SC), ABIRIFON vs. THE STATE (supra) and ITU vs. THE STATE (2016) 5 NWLR (PT 1506) 443 were referred to. It was posited that the statements of the complainants were tendered in evidence pursuant to the provisions of

Section 39 of the Evidence Act, as a result of the difficulty in getting them to testify, and that their statements formed part of the prosecution case which the lower Court was bound to consider.

It was contended that a Court can convict on the evidence of a sole credible witness where corroboration is not required vide NKEBISI vs. THE STATE (2010) 3 SCM 170 at 174. It was opined that Exhibits I, J, K, L, O and P corroborate the Appellant’s confessional statements and that the said confessional statements satisfy the burden of proof on the prosecution. The case of OLALEKAN vs. THE STATE (2001) 18 NWLR (PT 746) 793 was relied upon. Sections 28 and 29 of the Evidence Act were referred to on the definition of confession and it was stated that a confession, where relevant and admissible, may be given in evidence against a defendant and that a Court can rely solely on the confessional statement to convict, where it is direct, positive and proved. The case of AKPA vs. THE STATE (2008) 8 SCM 68 at 70 was called in aid.

It was asserted that the confessional statements establish the offences charged and that the Appellant was also apprehended by the

Complainant a few days after the incident. It was stated that a confessional statement is the best evidence and that a Court is to apply the relevant test to ascertain the weight to attach to the confessional statement. The case of OSENI vs. THE STATE (2012) 4 SCM 150 at 153 and 166 was referred to. It was maintained that the Appellant’s confessional statements were properly admitted in evidence after a trial within trial. The cases of OGUDO vs. THE STATE (2011) 11-12 SCM (PT 1) 209 at 212, LASISI vs. THE STATE (2013) 6 SCM 97 at 113 and AKPA vs. THE STATE (supra) were relied upon.

It was further submitted that evidence which is discovered by the Investigating Police Officer in the course of investigation is positive and direct evidence vide KAMILA vs. THE STATE (2018) 8 NWLR (PT 1621) 252. The lower Court, it was maintained, having found that the Appellant’s statement was made voluntarily was right to consider the same in convicting. The cases of IBEME vs. THE STATE (2013) LPELR-20138 (SC), LASISI vs. THE STATE (supra) and NWACHUKWU vs. THE STATE (2007) 12 SCM (PT 2) 447 at 455 were cited in support.

It was insisted that the identity of

the Appellant as one of the robbers was not in issue as the Complainants identified the Appellant a few days after the incident, apprehended him and took him to the Police Station. The cases of ADEBAYO vs. THE STATE (2014) 8 SCM 34 at 53 and ISAH vs. THE STATE (2017) LPELR-43472 (SC) were called in aid for the contention that identification by visual identification was the best form of identification in a criminal case. The Respondent maintained that the Appellant’s confessional statement admitting complicity in the crime, completely destroyed any doubt as to his identity and involvement in the crime. The cases of OKASHETU vs. THE STATE (2016) LPELR-40611 (SC), OSUAGWU vs. THE STATE (supra) at 182 and ADEYEMI vs. THE STATE (2014) 8 SCM 34 at 55 were referred to.

It was contended that the circumstantial evidence strongly points to the commission of the crime by the Appellant based on the items recovered from the search at his house. The cases of ADESHINA vs. THE STATE [no reference supplied] at 95-96, MOHAMMED vs. THE STATE (2007) 5 SCM 96 and NWEKE vs. THE STATE (2001) 4 NWLR (PT 704) 588 were relied upon. On the conviction for conspiracy, it was

stated that conspiracy can be inferred from and proved by the confessional statements. The cases of UPAHAR vs. THE STATE (2003) 6 NWLR [no part stated] 230 at 239, NGUMA vs. A-G IMO STATE (2014) 3 SCM 137 at 160-161, AJULUCHUKWU vs. THE STATE (2014) 10 SCM 43 at 56 and YAKUBU vs. THE STATE (2014) 3 SCM 254 at 265 were cited in support.

APPELLANT’S REPLY ON LAW
The Appellant contends in the Reply Brief that no evidence was adduced on the basis of which the statements of the complainants can be admitted pursuant to Section 39 of the Evidence Act. It was stated that since the complainants are vital witnesses, the presumption is that since they were served witness summons and they failed to attend Court to testify, that their evidence would have been unfavourable to the prosecution vide OMOTAYO vs. THE STATE (2013) 2 NWLR (PT 1338) 235 at 255 and 256-257.

It was posited that the prosecution witnesses did not witness the robbery and did not apprehend the Appellant and so their testimony could not have proved the offences charged. Consequently, it was asserted, that the evidence of the prosecution witnesses was hearsay. Section 126 of the Evidence Act

was referred to. It was stated that the statements made by the complainants cannot be used to corroborate the Appellant’s confessional statement. The case of UWA vs. THE STATE (2015) 4 NWLR (PT 1450) 438 at 471-472 was relied upon.

The Appellant iterated that the complainants were vital witnesses and that since they failed to testify, the lower Court should have held that the prosecution failed to prove its case beyond reasonable doubt. The Appellant conclusively doubled down on his submission that there was no corroborative evidence, no matter how slight outside the confessions, which link the Appellant to the offences charged.

RESOLUTION
The case of the prosecution is that the complainants reported a case of armed robbery stating that in the course of the robbery, two of the complainants were raped. A few days after the report was made, the complainants brought the Appellant to the Police Station, stating that he was one of the robbers. The PW1, then recorded the statement of the Appellant which was volunteered in Yoruba language and translated into English language. The said statements were admitted in evidence after a

trial within trial as Exhibits H and H1. Thereafter, the PW1 executed a search warrant at the residence of the Appellant where some items were recovered and then transferred the case file and the exhibits to the State Criminal Investigation Department for further investigation. The PW2 was the Investigating Police Officer at the State Criminal Investigation Department. He tendered the English language translation of the statements volunteered by the Appellant at the State Criminal Investigation Department as Exhibits M and N. He further testified that the Appellant took him to someone who he sold the stolen jewelries to. The complainants did not testify at the trial and the person who allegedly bought the stolen jewelries was also not called as a witness. The evidence adduced by the Prosecution was the testimony of the two prosecution witnesses, the Investigating Police Officers.

The Appellant’s defence at the trial is that on the date of the alleged robbery incident, that while working as a loader, he had loaded charcoal in a vehicle which they took from Abeokuta to Lagos where the charcoal was offloaded, after which they returned to Abeokuta and

that thereafter, when he was going to buy food to eat, he was accosted by some boys who accused him of stealing and took him to the Police Station. He retracted the statements relied upon by the Prosecution and maintained that the exhibits tendered by the Prosecution were not the items that were recovered from his house when it was searched. The Appellant’s alibi about having gone to Lagos from Abeokuta as a loader, to offload charcoal is not contained in any of the statements he made to the Police.

In convicting the Appellant, the lower Court relied entirely on the confessional statements of the Appellant which it held to be “voluntary, direct, consistent and positive” and “properly proved the prosecution’s case” (page 105 of the Records). In relying on the said retracted confessional statements of the Appellant, to arrive at a conviction, the lower Court after applying the requisite six-way test to ascertain the veracity of the confessional statements held that it was inclined to answer the questions in the six-way test in the positive, without stating what informed the inclination (page 104 of the Records).

I have insightfully considered the submissions of learned counsel and adequately comprehended the Records of Appeal. Under our adversarial criminal justice system, the Prosecution has the onus of proving the commission of the offence charged. By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean that the prosecution must prove the case with mathematical exactitude: ADEBOYE vs. THE STATE (2011) LPELR (9091) 1. It does not mean proof beyond all shadow of doubt; so, where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt. In the words of Oputa, J.S.C. (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12 – 13:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is

guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: –
‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.’”
Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. More often than not in criminal

trials, the crux of the disceptation is not whether the offence was committed, but whether it was the accused person that committed the offence: NDIDI vs. THE STATE (2007) 13 NWLR (PT 1052) 633 at 651.

There are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See EMEKA vs. THE STATE (2001) 32 WRN 37 at 49, OKUDO vs. THE STATE (2011) 3 NWLR (PT 1234) 209 at 236 and EZE vs. FRN (2017) 15 NWLR (PT 1589) 433 at 490.

In its judgment, the lower Court expressly held as follows at page 104 of the Records:
“Thus, the prosecution has failed to prove essential ingredients of the offence of armed robbery by direct/eye witness or circumstantial evidence.”

(1989) 4 NWLR (PT 113) 57, DURUGO vs. THE STATE (1992) 9 SCNJ 46 at 54 and IDIOK vs. THE STATE (2008) LPELR (1423) 1 at 10-11.

I iterate that the lower Court convicted entirely on the basis of the confessional statements which the Appellant retracted and resiled from at the trial. It is settled law that a Court has a duty to act on only admissible evidence. See ONAH vs. THE STATE (1985) LPELR (2668) 1 at 14-15, and BUKOLA vs. THE STATE (2017) LPELR (43747) 1 at 46. Apropos the foregoing, it is pertinent to interrogate and examine the Appellant’s submission that the confessional statements Exhibits H, H1, M and N were wrongly admitted in evidence and should not have been acted upon by the lower Court in arriving at its decision.

translated into English language, the two statements must be tendered in evidence in order for the onus of proof beyond reasonable doubt to be discharged. Where, as in the instance case, only the English language translation of the statements made at the State Criminal Investigation Department was tendered, the same has no probative value. Accordingly, the said Exhibits M and N are inadmissible and they are hereby expunged from the evidence. See ADAMU vs. THE STATE (2019) LPELR (46902) 1 at 38-48, OLANIPEKUN vs. THE STATE (2016) 13 NWLR (PT 1528) 100 at 117 and ODERINDE vs. THE STATE (2018) LPELR (43661) 1 at 16-17.
The Appellant further argued that it was the Yoruba language version of the statement which the PW1 sought to tender that led to the trial within trial, in the course of which the prosecution tendered the English language translation of the statement. I am unable to fathom the Appellant’s grouch in this regard. The law remains that where a statement has not been volunteered in English language, then the original language and the translation must be tendered in evidence. This is precisely what transpired in the trial within trial when

Exhibits H and H1 were admitted in evidence. It was at the point in the main trial when the Prosecution sought to tender the Yoruba language version of the statement that the objection was raised, necessitating the trial within trial. Any reference to the English language translation of the statement could not have been reached at that stage of the main trial when the objection was raised. The said Exhibits H and H1 were therefore properly admitted in evidence.

Now, the pertinent question in the diacritical circumstances of this matter is whether the lower Court was correct in its decision that the confessional statement of the Appellant proved the offences charged beyond reasonable doubt. The Appellant retracted the said confessional statement; howbeit, the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE vs. THE STATE (2001) 14 WRN 1 at 20, KAREEM vs. FRN (2001) 49 WRN 97 at 111, EHOT vs. THE STATE (1993) 5 SCNJ 65, EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 385 at 431 and OBISI vs. CHIEF OF NAVAL STAFF

(2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement: HASSAN vs. THE STATE (2001) 7 SC (PT II) 85 at 93.
However, a Court cannot act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 has been applied in numerous cases including IFEANYI vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192, NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJ.S.C. 168 at 188-189 and ALARAPE vs. THE STATE (supra) to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether:
1. There is anything outside the

confession to show that it is true.
2. It is corroborated.
3. The facts stated in the confession are true as far as can be tested.
4. The accused person had the opportunity of committing the offence.
5. The accused person’s confession is possible.
6. The confession is consistent with the other facts ascertained and proved.
The lower Court duly referred to these tests at page 104 of the Records and proceeded to hold that it was inclined to answer the questions in the positive. I iterate that the lower Court did not state what informed its inclination, but could the questions, based on the evidence on record and the findings made by the lower Court, have been answered in the positive? It is pertinent to emphasise that the law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true in order for the Court to convict on the said retracted confessional statement. This is what the lower Court found and held at page 104 of the Records in respect of the evidence adduced by the Prosecution:
“It is my view and I so hold that there is no evidence

before the Court establishing the fact that there was a robbery, that it was armed robbery and/or that the accused person was one of the armed robbers. There is no evidence before the Court establishing the fact that the accused was found or caught at the scene with any weapon. He was allegedly arrested few days after the alleged crime was committed; however, there is no evidence of how and why he was arrested. Thus, the prosecution has failed to prove essential ingredients of the offence of armed robbery by direct/eye witness or circumstantial evidence…
It is trite that a voluntary confession of guilt, if fully consistent and probable and is coupled with a clear proof that a crime has been committed by some persons, is usually accepted as satisfactory evidence on which the Court can convict.”
(Emphasis supplied)

It is effulgent from the above pericope from the decision of the lower Court that it expressly found and held that there is nothing in the evidence, outside the confessional statement, on which it can be held that an offence was committed. Where then is the other credible evidence on which the lower Court could have

ascertained the veracity of the confessional statement on the basis of which it arrived at the inclination to answer the questions in the positive? Absolutely no evidence. Zilch. Nada.

I do not lose sight of the fact that the lower Court held that the fact that incriminating items were recovered from the Appellant’s house was a fact outside the confession to show that it is true. Now, quite apart from the fact that the Appellant denied that the said items were what were recovered from his house, the complainants never testified to identify the said items as their property that was stolen during the robbery. In refusing to accord any credence to the extra-judicial statements of the complainants pursuant to Section 39 of the Evidence Act, 2011, the lower Court assertively concluded and held as follows at pages 100-101 of the Records:
“It is the evidence of the prosecution that the accused person was seen days after the incident and arrested him. They visited the house of the accused person in company with the I.P.O. and the accused person to execute search. During the search the victims identified some items allegedly stolen from their

house. It seems to me that the evidence of the victims would be necessary evidence to prove the guilt of the accused person. In the circumstance, I hold that failure of the prosecution to call the victims or any of them as witnesses is fatal to the prosecution’s case.”
(Emphasis supplied).

The Prosecution did not appeal against the finding that the failure to call the victims to testify was fatal to its case; so, it remains binding: IDIOK vs. THE STATE (supra), DURUGO vs. THE STATE (supra) and ESANGBEDO vs. THE STATE (supra). This being so, how then could the purportedly recovered items, which the victims did not testify to identify as items that were stolen from them, afford evidence to show that the Appellant’s confession is true? I am unable to fathom how! Even though the extra-judicial statements of the complainants and the person who allegedly bought the stolen jewelries from the Appellant were admitted in evidence, it is abecedarian law that the extra-judicial statement of a prosecution witness who did not testify is of no evidential value: IKE vs. STATE OF LAGOS (2019) LPELR (47712) 1 at 42-46, PAUL vs. COP (2021)

LPELR (52489) 1 at 93 and KASA vs. THE STATE (1994) LPELR (1671) 1 at 18.

Accordingly, upon a proper application of the six-way test, the confessional statement, Exhibits H and H1 and even arguendo, Exhibits M and N, which I have held are inadmissible, were not available to the prosecution as a means of proving the offences charged and the lower Court was in error to have held that it proved the offences charged. Concomitantly, the prosecution was not able to prove the offences charged even by reliance on the purported confessional statements of the Appellant.

At the outset, I stated that proof beyond reasonable doubt is accomplished by proving the essential elements of the offence charged. The conjunctive ingredients which the prosecution has to establish beyond reasonable doubt in order to secure a conviction for armed robbery are as follows:
1. That there was a robbery.
2. That the robbery was an armed robbery.
3. That the accused person was one of the armed robbers.
See BOZIN vs. THE STATE (1985) 2 NWLR (PT 8) 465, IKPO vs. THE STATE (2016) LPELR (40114) 1 at 17-18 and ADEWUNMI vs. THE STATE (2016) LPELR (40106) 1 at 10.

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Critical in the proof of the commission of an offence is proof that it is the person charged with the offence that committed the offence. It does not suffice to prove that there was an armed robbery, which was not even proved on account of the failure of the complainants to testify. More importantly, the evidence must clearly establish that it is the accused person in the dock that is the culprit. The evidence adduced by the prosecution in this matter did not establish any of the ingredients of the offences charged by direct or circumstantial evidence, as rightly found by the lower Court, which finding the Respondent did not appeal against. The lower Court wrongly relied on the purported confessional statements of the Appellant when there was nothing in the evidence, no matter how slight, outside the confession, on which the veracity of the confession could be ascertained.

The lower Court inferred and held conspiracy to commit armed robbery proved from the purported confessional statements of the Appellant. The concomitance of the finding that there is nothing outside the confession authenticating its veracity necessarily implies that it cannot ground

the conviction for conspiracy to commit armed robbery.

As I begin to wind up this judgment, I must observe that there is this penchant for police investigation in criminal cases to consist of no more than obtaining confessional statements from the suspects. Without a doubt, the easiest way to establish the offence charged against an accused person and solve the crime is to get a confession. This is especially so because a confession, if voluntary is a relevant fact against the person confessing. See IKEMSON vs. THE STATE (1989) 3 NWLR (PT 110) 455 at 476 and IHUEBEKA vs. THE STATE (2000) 13 WRN 150 at 176.
However, I daresay that this penchant for the easy way out should not obviate the need for proper investigation to be conducted in criminal cases. As stated by Kazeem, J.S.C. in ONAH vs. THE STATE (1985) LPELR (2668) 1 at 18:
“The need to investigate criminal cases properly particularly those attracting capital punishment cannot be over-emphasized.”
The investigation carried out by the Police in this matter was nothing to write home about. The Police could not even assist the Prosecution secure the attendance of the

complainants to testify. The Police seemed content to procure a confessional statement as the beginning and end of their investigation. The foibles in the case arising from the poor investigation have been such that their trusted “confessional statement” is not the silver bullet they intended it to be, as there is nothing else outside the confession on which the veracity of the confession can be ascertained. I lend my voice to the exhortation of my learned brother, Omoleye, J.C.A. who stated as follows in ADAMU vs. THE STATE (2013) LPELR (20770) 1 at 36-37:
“Before I end this judgment, I must not fail to chide the Police the umpteenth time, for the very shoddy manner in which they discharge their constitutional duty of crime investigation in this matter. Indeed, I venture to even state that, they did not investigate this matter at all. This being a capital offence, one would have expected the Police to be very diligent especially, in the gathering of evidence they planned to use in establishing the offence with which the Appellant was charged. I am always amazed at the trend and style of the Police in this country, it is only in this

nation that, most people accused of committing crimes end up ‘confessing’ to the commission of crimes vide the so-called ‘confessional statements’. This is very ridiculous and laughable. Therefore, I am using this occasion again to appeal to the Police to please step up and keep pace with the high standards of crime investigation which obtains in all civilized countries of the world and always ensure that they perform their constitutional duty creditably well. They owe Nigeria and Nigerians this duty of care.”
Perhaps, if a proper investigation had been conducted by the Police, the quality of the prosecution of this matter may have been better. Definitely so! Verbum sap.

CONCLUSION
The offences for which the Appellant was convicted attract capital punishment and the lower Court imposed the supreme punishment of the death penalty. It has been held that a judgment which imposes the capital punishment must be arrived at based on analytical reasoning that attracts confidence. The apex Court stated as follows in NDIDI vs. THE STATE (2007) ALL FWLR (PT 381) 1617 at 1650-1651:

“In criminal trials, particularly in capital offences, the trial Court must arrive at its decision through a process of reasoning which is analytical and commands confidence. A judgment which sends a man to the gallows and await the hangman to execute him at any single minute, must be punctuated by logical thinking and based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inference carefully drawn. It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance.”
See also EBRI vs. THE STATE (2004) 11 NWLR (PT 885) 589 at 605.
Additionally, it would appear as though the lower Court did not adequately advert to the consideration which ought to affect the mind of a trial Court when it comes to weigh the effect of evidence in a charge attracting capital punishment. In NWOSU vs. THE STATE (1986) LPELR (2134) 1 at 21, Aniagolu, J.S.C. referred to the case of EGBE vs. THE KING (1950) 13 WACA 105 where a passage in the 10th Ed. of Best on Evidence was referred to and stated:
“The serious consequences of an erroneous condemnation, both to the accused and society, the

immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilised nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, such a moral certainty as convinces the minds of the tribunal; as reasonable men, beyond all reasonable doubt.”
The persuasion of guilt from the evidence adduced in this matter did not amount to a moral certainty as the evidence relied on by the lower Court was not cogent and compelling. The law is now firmly settled by a plethora of authorities that it is better for nine guilty persons to escape than for one innocent person to suffer. More pungently, it is better to acquit nine guilty men than to convict an innocent man: UKORAH vs. THE STATE (1977) 4 SC 167 at 177, OLAKAIBE vs. THE STATE (1990) 1 NWLR (PT 129) 632 at 644 and SHEHU vs. THE STATE (2010) LPELR (3041) 1 at 10.
In SAIDU vs. THE STATE (1982) 4 SC 41 at 69-70, Obaseki, J.S.C. stated:
“It does not give the Court any joy to see offenders escape the penalty they richly

deserve but until they are proved guilty under the appropriate law in our law Courts, they are entitled to walk about in the streets and tread the Nigerian soil and breathe the Nigeria air as free and innocent men and women.”
That shall be the Appellant’s lot.

From the evidence on record, the Prosecution did not prove the offences charged beyond reasonable doubt and the Appellant deserves the full benefit of that doubt (see OMOPUPA vs. THE STATE (2007) LPELR (8571) 1 at 45), by a resolution of this appeal in his favour. Paucis verbis, the Prosecution did not prove the offences charged against the Appellant beyond reasonable doubt in order to warrant the conviction of the Appellant by the lower Court for the offences of conspiracy to commit armed robbery and armed robbery.

The conflation and concatenation of all that has been said thus far is that this appeal is meritorious and it succeeds. The decision of the lower Court delivered on 2nd April 2015 embodying the conviction of the Appellant and the sentence of death imposed upon him is hereby set aside. A verdict of discharge and acquittal is hereby returned in respect of the two-count

charge preferred against the Appellant.

JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my Learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A. just delivered. My Learned brother has dealt with the issue in this appeal in a lucid manner and I agree with the reasons given as well as the conclusion reached.

I have read the record of appeal as well as the briefs filed on behalf of the parties. I am also of the view that in order to secure a conviction for armed robbery the following ingredients must be proved: –
(a) That there was a robbery/robberies
(b) That the robbery was an armed robbery.
(c) That the accused person was one of the armed robbers.

The lower Court found and held among others on page 104 of the record as follows:
“It is my view and I so hold that there is no evidence before the Court establishing the fact that there was a robbery, that it was armed robbery and/or that the accused person was one of the armed robbers. There is no evidence before the Court establishing the fact that the accused was found or caught at the scene with any weapon. He was allegedly arrested few days after

the alleged crime was committed, however there is no evidence of how and why he was arrested. Thus, the Prosecution has failed to prove essential ingredients of offence of armed robbery by direct/eye witness or circumstantial evidence on which the Court can convict …”

I am of the view that with the above finding by the trial Court, the bottom of the charge against the Appellant has been knocked off. The Prosecution did not prove the offence of armed robbery beyond reasonable doubt against the Appellant.

Consequent upon the foregoing and for the fuller reasons ably set out in the lead Judgment, I am also of the view that this appeal is meritorious and it is allowed by me.

The Judgment of the trial Court delivered on 2/4/2015 which convicted and sentenced the Appellant to death is hereby set aside. In its place, the Appellant is hereby discharged and acquitted in respect of the two-count charge brought against him.

FOLASADE AYODEJI OJO, J.C.A.: I was privileged to have read the draft of the

lead judgment just delivered by my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A. and I agree with him that the Police did not do a proper investigation of the allegations against the Appellant before his arraignment at the lower Court which resulted in the inability of the prosecution to prove the ingredients of the offences for which he was charged. This again brings to fore the shoddy manner in which men of the Nigerian Police Force carry out investigation of criminal cases. There is the need to re-energise the Nigerian Police Force in this regard for better justice delivery. The only form of investigation carried out by the Police these days is recording of statement of accused persons. They need to do more.

I agree with my learned brother that the Prosecution failed to prove the offences for which the Appellant was charged. He is therefore entitled to a verdict of discharge and acquittal. I too, find merit in this appeal and it is also allowed by me. I abide by the consequential orders in the lead Judgment.

Appearances:

Z. Katung, Esq. For Appellant(s)

Mrs. F. E. Bolarinwa-Adebowale, Chief State Counsel, Ministry of Justice, Ogun State For Respondent(s)