AHMADU v. STATE
(2022)LCN/16114(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Friday, October 07, 2022
CA/K/104C/C/2005
Before Our Lordships:
Ita George Mbaba Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
MOHAMMED AHMADU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW WHEN AN OBJECTION CAN BE TAKEN TO THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT
We have stated several times, how and when an objection can be taken to the admissibility of a confessional statement. See the case of Muhammad Vs The State (2017) LPELR – 42098 SC:
“This Court has repeatedly stated that the appropriate time to object to the admissibility of a statement said to be a confession is when the statement is sought to be tendered – see Oseni V State (2012) LPELR-7833(SC). Wherein I.T. Muhammad JSC observed – There was no objection to the admissibility of the Appellants confessional statement. It is rather too late to raise such an issue on appeal. – It {is} regrettable that Appellant’s counsel at the trial stage did not object to the admissibility of [this] confessional statement, yet he went on to blame the trial Court in not treating Appellant’s confessional statement with utmost caution. It will appear to be too late in the day to seek to supply a remedy to a dented or a crucified matter, which can hardly be revived… It is too late to seek to retract such confessional statement after its admission without objection from the defence. It is always taken as an afterthought, which Courts are not ready to accommodate.” Per AUGIE, JSC. PER MBABA, J.C.A.
THE POSITION OF LAW WHERE A TRIAL WITHIN TRIAL IS NECESSARY
I agree entirely with the position taken by the Court below because, as I have stated above, a trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person or his counsel. Where an accused person admits making the statement but contends or asserts that he did not make it voluntarily, but under duress or some other alleged influence, then a trial with trial will be conducted. Where however as in this case, the objection to the admissibility in accused confessional statement is based on the grounds that it was not read over to him and that he did not make it, the statement is treated as a voluntary statement and is admissible without the Court holding a trial within trial which is necessary only where the issue of involuntariness is raised. See Onyenye v The State (2012) 15 NWLR (pt 1324) 586 at 619 paragraphs A-C where this Court set out the circumstances and effect of confessional statements obtained by duress and those merely retracted as follows:- 1. Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks or undue influence or any non-recognizable legal ways, there would be need for a trial within trial. 2. Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable…” As stated earlier in the case of Yamusa Vs The State (supra): “Where an accused person denies making a confessional statement at all to the Police, that amounts to a blind plunge into the dark, as is an ill-advised self-delusion, as he cannot therefore contest the content of the Statement Produced and credited to him. And where the said statement contains the personal profile of the accused person, which could only (sic) have been gotten from him, and/or one in possession of such details, the denial of making the statement becomes, silly! PER MBABA, J.C.A.
WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON BASED ON A RETRACTED CONFESSIONAL STATEMENT
The law is trite that even where a Confessional Statement is denied or retracted at the trial, the Court can still use it to found conviction where the same is plausible…” See also GURUMA Vs The State: CA/K/544B/C/2019 of 18/3/2022 and Okon Vs The State (2014) LPELR- 24018 CA, where this Court held: “Of course, even where the accused person retracts his earlier confessional statement at the trial, that does not prevent the Court from using it to convict the accused person, if the Court finds the statement relevant and credible, after passing it through the acceptability test, as stated in the case of Haruna vs A.G. Fed. (2012) 2009 LRCN 70: “A Court can convict on the retracted confessional statement of an accused person. But before this is properly done, the trial Judge should evaluate the confession and the testimony of the accused person and all the evidence available. These entail the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the Judge asking himself the following questions: a. Is there anything outside the confession to show it is true? b. Is it corroborated? c. Are the relevant statements made in it, of facts true as far as they can be tested? d. Did the accused person have the opportunity of committing the offence? e. Is the confession possible? f. Is the confession consistent with the other facts which have been ascertained and have been proved?” PER MBABA, J.C.A.
WHETHER OR NOT THE COURT CAN CONVICT AN ACCUSED PERSON SOLEY ON A CONFESSIONAL STATEMENT
The law is trite, that a Court can still convict an accused person even on the basis of his confessional statement, alone, though the statement is denied or retracted at the trial, once the Courts adjudges same to have been given, voluntarily. Also, where there are other pieces of evidence at the trial to corroborate said the confessional statement, the Court can convict on the same.
The authorities on this are replete. See the case of Sani Vs State (2020) LPELR – 53905 (SC), where it was held:
“It is certainly not the law that a Court cannot convict an accused solely on his confessional statement if found to be a clear, positive and direct admission of the commission of the offence with which the accused is charged. This Court has endlessly held that where, as in the case at hand, an accused resiles from his extra-judicial statement, he may still be convicted on the basis of the very voluntary statement if same is corroborated and shown to have indeed been made freely by the accused. The Court has, over the years, imbibed the tests laid in R v. Sykes (1913) 8 CAR. 233 at 238 and admonished trial Courts to obey the rules outlined therein before convicting an accused. See Afolabi v. State (2016) 4 SC 86 at 90, (2016) 11 NWLR (Pt. 1524) 497, Sahalatu Shazali v. State (1988) LPELR – 3040 (SC) (1988) 5 NWLR (Pt. 93) 164 and Rasheed Lasisi v. The State (2013) LPELR – 20183 (SC); (2013) 9 NWLR (Pt. 1358) 74.” Per MUHAMMAD, JSC. PER MBABA, J.C.A.
THE POSITION OF LAW WHERE AN ACCUSED PERSON INCRIMINATES A CO-ACCUSED IN HIS STATEMENT TO THE POLICE
Of course, the evidence of the co-accused, naming the Appellant as one of them must be taken with caution, as the law warns against relying on such evidence. See the case of Hassan Vs The State (2016) LPELR – 42554 (SC):
“It is elementary that in a criminal trial, where an accused person incriminates a co-accused in his statement to the police, the statement is evidence only against the maker and not against the co-accused. But if the prosecution, police decides to use the statement against a co-accused, then the prosecution is bound to make the incriminating statement available to the co-accused. See R v. Afose (1934) 2 WACA p. 115.” Per RHODES-VIVOUR, JSC
See also the case of Awo Vs The State (2020) LPELR – 50619 CA, Ajomayan Vs The State (2020) LPELR – 49598 CA and Obinna Vs The State (2021) LPELR – 55847 CA, which states that:
A confessional statement of an accused person, implicating or seeking to implicate a co-accused should always be taken with suspicion, as such confessional statement of a co-accused is no evidence against an accused (Appellant) who has not adopted the statement. See OZAKI & ANOR VS STATE (1990) LPELR-2888 SC, YUSUF & ANOR VS STATE (2019) LPELR 46945 (SC). And such evidence remains against the person who made the confessional statement. See MBANG VS THE STATE (2009) 18 NWLR (Pt. 1172) 157, ALARAPE VS STATE (2001) 2 SC 114; 2001 5 NWLR (Pt. 705).” PER MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant filed this appeal against the judgment of Jigawa State High Court in Charge No. JUD/20C/2000, delivered on 30th August, 2004 by Hon. Justice Tiljani Abdullahi, wherein the learned trial Judge convicted the Appellant, together with other accused persons, for offence of Criminal Conspiracy and Armed Robbery, and sentenced him (with the others) to death, by hanging.
At the lower Court, Appellant (as 8th Accused person) was charged, with 8 other Accused persons, as follows:
FIRST HEAD OF CHARGE:
“That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu/Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa State Judicial Division agreed to do an illegal act to wit: mounting a road block with logs of wood, attacking one Abdullahi Daiyabu Sara and one Dr. Umar Hamman and robbing them of the sum of thirty thousand, six hundred naira (N30,600.00), 2 sets of big gowns, 3 long gowns, five caps and a bed sheet in-their vehicle with Registration No. AA 159 GRM and you thereby committed an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended by Decree No.9 of 1991.”
2ND HEAD OF CHARGE:
“That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu/Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa State Judicial Division agreed to do an illegal act, to wit: robbing a lorry Driver one Ali Doctor and his Conductor, one Balarabe Ibrahim in their vehicle with registration No. XC 191 GME, the sum of thirty-nine thousand Naira (N39,000.00) and other valuable properties and you thereby committed an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended by Decree No. 9 of 1991”
3RD HEAD OF CHARGE:
“That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa Judicial Division did an illegal act to wit: committing armed robbery by blocking the road with logs of wood among yourselves with sticks, a dane gun and matchets and other dangerous weapons and attacking and robbing one Abdullahi Daiyabu Sara and one Dr. Umar Hamman of the sum “of thirty thousand, six hundred Naira (N30,600.00), 2 sets of big gowns, 3 long gowns, five caps and a bed sheet in their vehicle with Registration No. A.A. 150 GRM and you thereby committed an offence punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended to Decree No. 9 of 1991.”
4TH HEAD OF CHARGE:
“That you, Muhammed Usman, Muhammed Adamu, Musa Sale, Abdullahi Muhammed, Ya’u Sale, Adamu Muhammed, Muhammed Rabi’u, Muhammadu Adamu, Dahiru Buba Kiyawa on or about 1st day of September, 1998 at about 0200 hours at Kwanar Dogaji Village along B/Kudu Kano Highway in B/Kudu Local Government Area of Jigawa State within the Jigawa Judicial Division did an illegal act to wit: committing armed robbery robbing a lorry Driver one Ali Doctor and his Conductor, one Balarabe Ibrahim in their vehicle with registration No. XC 191 GME, the sum of thirty nine thousand Naira (N39,000.00) and other valuable properties and you thereby committed an offence punishable under Section 1 (2)(b) of the Robbery and Firearms (Special Provisions) Act (Cap 398) 1990 as amended by Decree No. 9 of 1991.” (See Pages 57 and 58 of the Records)
After hearing the case and considering the evidence and the addresses of Counsel, the trial Court held, as follows:
“In the light of the foregoing, I hold, without any hesitation, that all the accused persons, having confessed the commission of the offence can be convicted, their retraction notwithstanding.
It is pertinent at this stage to pause and state that, apart from the confessional statements of the accused persons, there is the evidence of PW1 and PW6. PW1 gave a graphic details of how he and his friend were robbed. The evidence of PW1 that he was able to see and identify those who robbed them, because the full light of the headlamps of his car was on, is further confirmed or corroborated by the evidence of PW6, DSP Asuquo who led the team of Policemen who went to the scene of the offence. Both the two witnesses strike me as truthful witnesses and I believe their testimonies.
In the final analysis and in the light of the totality of the evidence adduced by the prosecution, I make the following findings of facts:
(1) That on 31st day of August, 1998, the accused persons met at Gadar Maiwa Market and the purpose of their meeting was to arrange where they would go and mount a road block so as to rob people of their belongings.
(2) That the meeting at Gadar Maiwa where the accused agreed among themselves to commit the offence of armed robbery had the following people in attendance:- (1) Ahmadu Oga; (2) Ahmadu Miya; (3) Dahiru Kiyawa; (4) Mohammed Adamu (alias Baba Duppukel); (5) Ya’u Sale (alias Doctor); (6) Adamu Mohammed; (7) Musa Sale (8) Mamman Rabi’u (alias Doctor) (9) Abdullahi Mohammed Dagaje; (10) Mamuda; (11) Sule and (12) Ahmadu.
(3) That in furtherance of their agreement, the accused persons went to Birnin Kudu – Kano High Way at a Village called Dagaje and mounted a road block.
(4) That the vehicle in which PW1 and his friend were inside came to the roadblock mounted by the accused persons and could not pass through it.
(5) That the vehicle of PW1 stopped at the said road block and that some of the accused persons rushed to the said vehicle and demanded (sic) money from PW1 and his friend.
(6) That when PWI stopped at the roadblock he put the full light of his car on in order to see clearly what was the position of the place.
(7) That through the beam light of his car he saw a lot of people ranging from 15 to 20 dressed in tattered rags holding dangerous weapons such as guns, daggers and sticks.
(8) That PW1 was brought out of the car by some of the accused persons and was also slapped.
(9) That when he was dragging not to come out of the car 2nd accused fired a shot at the windscreen of his car.
(10) That the 3rd accused struck him with a dagger on the head and he (PW1) sustained injuries on the head.
(11) That the accused persons forcibly took away the sum of N30,000.00 from him in N50, denomination. They also took away N600 and £1,500 pounds sterling.
(12) The accused also robbed PW1, his friend and other victims of the robbery, their clothings including two sets of big gowns and three sets of Kaptans, a pair of shoes and about four or five caps.
(13) That when the accused persons were robbing their victims, policemen in a pick up came and fired some shots in the air and the accused persons took to their heels.
(14) That as the victims were trying to make statement at B/Kudu Police station, the first accused who was arrested with the briefcase of one of the victims whilst trying to board a vehicle at Kwanar Babaldu was brought to the Police Station.
(15) That it was the 1st accused who led the police to the places where the other accused persons were arrested, except the 9th accused person who was arrested some months later.
(16) I therefore find as a fact that the prosecution has proved all the ingredients of the four heads of charge against all the accused persons. I therefore find all the accused persons guilty as charged and convict them accordingly. (See Pages 78 to 80 of the Records of Appeal).
Dissatisfied with that decision, Appellant filed this appeal, as per the Amended Notice of Appeal, filed on 8/11/2021, (deemed filed on 20/9/2022) which formulated 6 grounds of appeal. Appellant filed his brief arguments on 8/12/21, which was deemed duly filed on 20/9/2022 – the date this Appeal was heard.
He donated three Issues for the determination of the appeal, as follows:
(1) Whether the learned trial Judge was right when he convicted and sentenced the Appellant to death upon a confessional statement that was translated from Hausa to English Language and which translation was neither tendered by the translator nor signed for the name and rank of the translator indicated. (Ground 1)
(2) Whether the learned trial Judge was right when he convicted and sentenced the Appellant to death upon an alleged confessional statement that was not corroborated. (Ground 2)
(3) Whether the judgment was not against the weight of evidence. (Grounds 3, 4, 5 and 6)
The Respondent filed its brief on 20/9/2022 (which was also deemed duly filed on same date, 20/9/2022). Respondent distilled 2 Issues for determination, namely:
(1) Whether from the totality of the evidence of the Prosecution, the State proved its case beyond reasonable doubt?
(2) Whether the trial Court was right in admitting the confessional statement of the Appellant?
Arguing the appeal, learned Counsel for the Appellant, Okechukwu Nwaeze, Esq., on issues 1 and 2 (which he argued together) said that purported confessional statement of Appellant was recorded in Hausa language and a mark, purporting to be Appellant’s thumbprint, was inscribed at the end of the said Statement; that the same was allegedly translated into English language by a faceless person, whose name was not indicated and never signed the document; that both documents were tendered as Exhibits 11 & 12; that one Sgt. Lere was the Officer who recorded the statement of Appellant in Hausa, but it was DW5, Inspector Abduhameed Ibrahim, who tendered the documents. Thus, the recorder and the person who tendered the statement were different; he also said that the translated version was not signed by the translator, nor by the Appellant.
Counsel further argued that the alleged statement of Appellant was certified by an unnamed ASP, who claimed that Appellant had accepted the confessional statement as being made, voluntarily.
Counsel said all those defects made the purported confessional statement not admissible. He argued on the legal effect of the unsigned document and said that it amounts to nothing, as it was worthless. He relied on Omega Bank Nig. Plc Vs OBC Ltd (2005) ALL FWLR (Pt.249) 1964 at 1994 (among other cases). He also relied on State Vs Usman (2021) 16 NWLR (Pt.1801) 78, on the need for a Police Officer, who interpreted an extra-judicial statement, to tender it, so that he may be cross-examined on what he did. He added that the translated version, having not been tendered by the translator, becomes hearsay.
Counsel also argued that even if the alleged confessional statement were admissible, that there was no other evidence, outside the alleged confession, to corroborate it. He relied on the case of State Vs Ibrahim (2019) ALL FWLR (Pt.1018) 809. He added that Appellant had denied making the confessional statement, and had retracted it at the trial. He relied on Oladejo Vs State (1987) 2 NSCC on the effect of a confessional statement that is at variance with accused’s evidence in Court; that such statement is unreliable.
Counsel also said that the investigation of the case was inchoate and marred by irregularities.
On issue 3, whether the judgment was not against the weight of evidence, Counsel answered in the affirmative. Counsel said the Prosecution did not discharge the burden of proof to warrant Appellant’s conviction. He said that the evidence of PW1 and PW6 were contradictory and should have been resolved in favour of Appellant. Counsel wondered whether PW1 would have been in the right frame of mind to have recorded or taken note of the accused persons and the roles they played at the time of the robbery, considering the fact that he was under spell of fear! He relied on Asanya Vs The State (1991) 3 NWLR (Pt.180) 442.
Counsel urged us to resolve the Issues for the Appellant and to allow the appeal.
The Respondent’s Counsel, A.H. Hassan Esq., (PSC Jigawa State), arguing their issue 1, submitted that the lower Court was right in convicting the Appellant on all the four Counts of the charge, relying on the confessional statement he made. Counsel noted that Appellant did not object to the tendering of the said confessional statement. He relied on the case Sabi Vs State (2011) 14 NWLR (Pt.1268) 421, on the essential elements of offence of armed robbery. He also relied on many cases, on the fact that a confessional statement is enough to lie conviction, once it is adjudged free and voluntary. See Mbang Vs State (2010) 7 NWLR (Pt.1194) 431, Ahmed Vs Nigerian Army (2011) 1 NWLR (Pt.1227) 89.
He argued that proof beyond reasonable doubt did not mean proof beyond all iota of doubt; he said that the Court was bound to accept evidence which was strong against the Appellant; that PW1’s evidence, clearly, identified the Appellant and pinned him to the offence.
On issue 2, Counsel said it is for accused person who desires to impeach his statement to the Police to establish that his earlier confessional statement cannot be true. He relied on Hassan Vs The State (2001) 15 NWLR (Pt.735) 184, Osetola Vs State (2012) 17 NWLR (Pt.1329) 251 to the effect that “it is not enough for an accused defendant to merely give oral evidence inconsistent with the contents of his confessional statement; he must directly impeach the confessional statement.” See Gabriel Vs State (1989) 5 NWLR (Pt.122) 457, Ogoala Vs State (1991) 2 NWLR (Pt.175) 509… FRN Vs Iweka (2013) 3 NWLR (Pt.1341) 285
Counsel urged us to resolve the issues against Appellant and urged us to dismiss the appeal.
RESOLUTION OF THE ISSUE
I shall consider this appeal on the 3 issues donated by the Appellant, which I think could be summarized into one, namely:
“Whether the trial Court was right to convict the Appellant of involvement in the conspiracy to rob and the armed robbery, relying on the retracted confessional statement, and the evidence of PW1 and PW6.”
The above issue tends to agree with the text of the two issues, donated by the Respondent.
Appellant did not raise any objection to or against the tendering of the Exhibits 11 & 12 (confessional statement) and seems to be fighting the admission of his said confessional statement in this Court, as an afterthought.
On page 25 of the Records of Appeal, the prosecution had applied to tender the statements of the 7th and 8th accused persons, as exhibits and their Counsel (Mr. Alim) said: “I have no objection.”
The trial Judge held:
“…The statement of Mohammed Ahmadu in Hausa language is admitted in evidence and marked as Exhibit 11 and its translated English version is Exhibit 12…”
We have stated several times, how and when an objection can be taken to the admissibility of a confessional statement. See the case of Muhammad Vs The State (2017) LPELR – 42098 SC:
“This Court has repeatedly stated that the appropriate time to object to the admissibility of a statement said to be a confession is when the statement is sought to be tendered – see Oseni V State (2012) LPELR-7833(SC). Wherein I.T. Muhammad JSC observed – There was no objection to the admissibility of the Appellants confessional statement. It is rather too late to raise such an issue on appeal. – It {is} regrettable that Appellant’s counsel at the trial stage did not object to the admissibility of [this] confessional statement, yet he went on to blame the trial Court in not treating Appellant’s confessional statement with utmost caution. It will appear to be too late in the day to seek to supply a remedy to a dented or a crucified matter, which can hardly be revived… It is too late to seek to retract such confessional statement after its admission without objection from the defence. It is always taken as an afterthought, which Courts are not ready to accommodate.” Per AUGIE, JSC. See also the case of Hamza Vs Kano State (2022) LPELR – 58165 (CA), where we held: “In the case of Bala Vs Kano State (2022) LPELR – 57475 (CA), we discussed extensively, when Appellant can raise objection to tendering of confessional statement, as follows: “The law is trite, that upon denying making the confessional statement (Exhibit A1-A2), the Appellant lacked the vires to contest the facts and content of the document, as to whether, or not it was properly recorded, signed and/or admitted. Having denied making the statement, Appellant had distanced himself from it (the document) and it should not therefore bother him what the Court does with it. But the Court is competent to look at it (the statement) and admit it, if relevant to the case, and where the Court finds cause to believe that Appellant made the statement, then that would defeat the entire pretentious defence. In the recent case of YAMUSA Vs THE STATE (2022) LPELR-57094 (CA), delivered on 18/3/2022, we said: “One who asserts that he did not make any confessional statement to the Police is therefore not contesting the voluntariness of the statement produced by the Prosecution as made by him, and so there cannot be any call for trial-within-trial on the status or voluntariness of the statement.” See also Akwuobi Vs The State (2016) LPELR-41389 (SC), where it was held: “In this instant appeal, there is a confessional statement made by the appellant voluntarily which was tendered and admitted in evidence at the trial and marked Exhibit 4. Although the appellant denied making such statement or signing same, the trial Court rightfully in my view, did not bother to conduct a trial within trial since the appellant did not say that he made it under duress, torture, promise or any influence. This is because mere denial of making or signing a confessional statement by accused persons is not sufficient ground on which to reject its admissibility in evidence when properly tendered. See Okwesi vs. State (1995) NWLR 119, Igago vs. The State (1999) 14 NWLR (pt.637)1. Also where an accused person merely disputes the correctness of a confessional statement or states that he made no statement at all, it is not necessary to conduct a trial within trial. See Madejemesi v The State (2001) 5 SCNJ 59.” Per SANUSI, JSC. See also Ofordike Vs The State (2019) LPELR-46411(SC), where my Lord Okoro JSC said: “The learned counsel for the Respondent made it clear that denial of making a confessional statement is not synonymous with alleging that it was involuntarily made which I agree totally. This much was held by the Court below in its judgment as found on page 139 of the record as follows:- “In this appeal under consideration, it is clear on record that the appellant did not through his counsel and during the trial, particularly at the point when the prosecution applied to tender the said confessional statement object to its admissibility on the grounds that it was involuntarily made or obtained from him with coercion or as a result of threat to his life or promise of any advantage. In view of the foregoing, a trial within trial is unnecessary and the trial Court was right in its judgment.” I agree entirely with the position taken by the Court below because, as I have stated above, a trial within trial is necessary where the voluntariness of the making of a confessional statement by an accused person is in issue or raised by an accused person or his counsel. Where an accused person admits making the statement but contends or asserts that he did not make it voluntarily, but under duress or some other alleged influence, then a trial with trial will be conducted. Where however as in this case, the objection to the admissibility in accused confessional statement is based on the grounds that it was not read over to him and that he did not make it, the statement is treated as a voluntary statement and is admissible without the Court holding a trial within trial which is necessary only where the issue of involuntariness is raised. See Onyenye v The State (2012) 15 NWLR (pt 1324) 586 at 619 paragraphs A-C where this Court set out the circumstances and effect of confessional statements obtained by duress and those merely retracted as follows:- 1. Where the accused has clearly expressed his ordeal in the process of obtaining the statement accredited to him in effect that it was obtained by force, tricks or undue influence or any non-recognizable legal ways, there would be need for a trial within trial. 2. Where the accused retracted his confessional statement on the ground that it was not read to him before he signed it or that he never made it at all, the requirement of a trial within trial is not applicable…” As stated earlier in the case of Yamusa Vs The State (supra): “Where an accused person denies making a confessional statement at all to the Police, that amounts to a blind plunge into the dark, as is an ill-advised self-delusion, as he cannot therefore contest the content of the Statement Produced and credited to him. And where the said statement contains the personal profile of the accused person, which could only (sic) have been gotten from him, and/or one in possession of such details, the denial of making the statement becomes, silly! The law is trite that even where a Confessional Statement is denied or retracted at the trial, the Court can still use it to found conviction where the same is plausible…” See also GURUMA Vs The State: CA/K/544B/C/2019 of 18/3/2022 and Okon Vs The State (2014) LPELR- 24018 CA, where this Court held: “Of course, even where the accused person retracts his earlier confessional statement at the trial, that does not prevent the Court from using it to convict the accused person, if the Court finds the statement relevant and credible, after passing it through the acceptability test, as stated in the case of Haruna vs A.G. Fed. (2012) 2009 LRCN 70: “A Court can convict on the retracted confessional statement of an accused person. But before this is properly done, the trial Judge should evaluate the confession and the testimony of the accused person and all the evidence available. These entail the trial Judge examining the new version of events presented by the accused person which is different from his retracted confession and the Judge asking himself the following questions: a. Is there anything outside the confession to show it is true? b. Is it corroborated? c. Are the relevant statements made in it, of facts true as far as they can be tested? d. Did the accused person have the opportunity of committing the offence? e. Is the confession possible? f. Is the confession consistent with the other facts which have been ascertained and have been proved?”
There was no doubt that there was a robbery on or about 1st September, 1998 on Birnin Kudu – Kano Highway, at Kwanar Dogaji Village in Birnin Kudu Local Government, whereof the robbers, who were armed with dangerous weapons, robbed victims, including PW1, of their valuables. The question whether the Appellant was one of the robbers, was answered in the affirmative by the learned trial Judge, who founded Appellant’s conviction on the confessional statement he made to the Police, as well as on the evidence of the eyewitness – PW1 and PW6, particular.
Appellant, in this appeal, had faulted the reliance of the Court on the said confessional statement (which he denied making and also said was wrongly admitted, having not been properly tendered and or signed). Appellant’s Counsel also argued that the evidence of PW1 and PW6 were contradictory and could not sustain the conviction of Appellant for the offence of armed robbery.
I have already held that the said submission amounted to nothing since Appellant never raised objection to the tendering of the confessional statement at the trial. Moreover, the retraction of a confessional statement does not stop the use of same by the Court, if adjudged relevant to the case and the trial.
I cannot also see any conflict or contradiction in the evidence of the two witnesses, listed above. But I shall, nevertheless, subject the evidence to some scrutiny.
PW1 (Abdullahi Daniyabu) had said at the trial:
“… the 6th accused person struck my head with a sword and the 8th accused person, Mohammed Ahmadu, beat me with a stick… The 5th accused on the charge sheet was “compassionate”, he was the person who led us to the roadside to lay (sic) down and was asked to look after us so that we did or could not escape and he pleaded with them to leave us alone…
“The 4th accused, I did not see him at the scene of the incident. There were other people by the roadside, but I could not catch a glimpse of the 4th accused person. It was the 1st accused person who was arrested at Babaldu and brought to B/Kudu Police Station while we were writing our statements when he was brought to the station, he had with him N13,000 in N50 Notes… and based on interrogation and in my presence he was able to tell us that he was part of that Robbery incidence (sic) and he was given a share of N13,000 and he was asked of the pound sterlings was taken away by his colleague. When he was asked who was his colleague, he said it was Dahiru… (9th accused) person… later on, was invited to the Police Headquarters, Dutse, and the accused persons where (sic) brought out and I identified them as those who robbed me on the day of the incident.” (Underlining mine) (See Page 14 (lines 13 to 27) of the Records)
Under cross-examination PW1 said:
“Yes, I gave a graphic story of what happened on the day of the Robbery. I saw an army of people ranging between 15 and 20, but I did not specifically state their number. After I was beaten I was asked to lie down. It was after I was lying down that they removed these things from my car, after one of them had destroyed the windscreen of the car…
Though I was lying down my eyes were not on the ground. Was watching to see what they were doing… The house for which the things were asked to be taken by their conversation must be on the western side of road… I immediately identified him (1st accused) as one of those who robbed me. And also identified the arrest (sic) of the accused persons when they were subsequently arrested. They were brought out and I was asked to identify them.” (Page 17 of the Records)
I think the above evidence of the PW1 were consistent.
I had earlier delivered judgment, a sister sppeal, which was taken out by the 5th accused person in the same case, and confirmed the conviction of the said 5th accused, as per the evidence of the PW1. I cannot see any difference between the case of Appellant in this appeal and that of the 5th accused person. See the judgment in Appeal No. CA/K/104B/C/2005, delivered today.
PW6, a Senior Police Officer, Effiong Asuquo (DSP) had told the Court:
“Policemen at Babaldu Police Post brought the 1st accused to the Police Station with one black briefcase (handbag). He was arrested while boarding a vehicle to Ningi, when the briefcase was identified by the conductor of the lorry that was robbed… The former Chairman, and the Driver of the lorry, identified the 1st accused as one of those that robbed them… We questioned (him) about the others who took part in the robbery, and he said they all ran away, and we asked him how we could get them. He informed us that some would go to Sara Market that day… We went to that Market with the 1st accused and we disguised his appearance so that they would not recognize him… he saw three of them who he identified as members of the gang. We arrested them… At the park, he saw one of them and we arrested him… We brought all of them (5) to the Police Station and they all made statements owning up the crime… We were able to arrest four of them as pointed to us by the 1st accused…” See Pages 26 to 27 of the Records.
Apparently, PW6, also a witness of the robbery, as he led a team of Policemen that trailed and eventually dislodged the robbers. He had earlier, in his evidence in chief, given account of how they monitored the robbers, under cover and shot in the air to scare them away from the victims, as it was dangerous to open fire at them, for fear of hitting the victims!
Under cross-examination, PW6 said:
“A Driver who was able to escape the attack of the armed bandits informed my men at the counter. He took 9 of my men in the Land Rover to the scene.
The Ex-Chairman was able to identify all the accused persons. We did not conduct an identification parade because the event in this did not call for that. I based my opinion based on their statements and the identification by the Ex-Chairman as well as Driver of Lorry and the conductor. We were close to them. The Robbery happened between 2.00am – 3.00am. When we went to the scene, the two head lamps of Honda Car were on. There was sufficient light in the placed to enable the accused being identified.” (Page 28)
Like the other accused persons, the Appellant made confessional statement to the Police, (which he later retracted).
The law is trite, that a Court can still convict an accused person even on the basis of his confessional statement, alone, though the statement is denied or retracted at the trial, once the Courts adjudges same to have been given, voluntarily. Also, where there are other pieces of evidence at the trial to corroborate said the confessional statement, the Court can convict on the same.
The authorities on this are replete. See the case of Sani Vs State (2020) LPELR – 53905 (SC), where it was held:
“It is certainly not the law that a Court cannot convict an accused solely on his confessional statement if found to be a clear, positive and direct admission of the commission of the offence with which the accused is charged. This Court has endlessly held that where, as in the case at hand, an accused resiles from his extra-judicial statement, he may still be convicted on the basis of the very voluntary statement if same is corroborated and shown to have indeed been made freely by the accused. The Court has, over the years, imbibed the tests laid in R v. Sykes (1913) 8 CAR. 233 at 238 and admonished trial Courts to obey the rules outlined therein before convicting an accused. See Afolabi v. State (2016) 4 SC 86 at 90, (2016) 11 NWLR (Pt. 1524) 497, Sahalatu Shazali v. State (1988) LPELR – 3040 (SC) (1988) 5 NWLR (Pt. 93) 164 and Rasheed Lasisi v. The State (2013) LPELR – 20183 (SC); (2013) 9 NWLR (Pt. 1358) 74.” Per MUHAMMAD, JSC
In the recent decision of this Court in the case of Gambo Sule Vs Kano State (2022) LPELR – 57642 CA, we held as follows:
By law, a confessional statement is sufficient to lie a conviction, even if retracted by Appellant, once the Court find substance in it, and same is corroborated by other pieces of evidence. The evidence of the eye witness account (PW1 and PW6) were strong to corroborate the confession of Appellant to robbery against the Appellant and were even alone, capable of establishing the offence, in my opinion. See the case of Hussein Vs The State (2022) LPELR-57021 (CA), where we held: “Only recently, we had course to restate the law in the case Kabiru Bala v The State (2022) LPELR-56936, on confessional statement as the best evidence to work with and to convict on, once the statement is adjudged credible and made voluntarily by the accused person. We held thus: “By law, a confessional statement is enough evidence, and, in fact the best evidence, to establish commission of offence, coming from the accused person himself where the confession is adjudged voluntarily made. See the case of Uhara Vs The State (2021) LPELR- 55512 (CA): “We have held several times that a confessional statement alone is a conclusive and sufficient evidence to establish conviction, and, in fact, the best evidence of the commission of the offence, coming directly from the accused person himself, and closing every door of defence against him, except where the issue/defence of provocation can be invoked. See FRN Vs Iweka (2011) LPELR-9350 SC, where it was held that confessional statement is the best evidence of proof of crime and can be accepted as satisfactory evidence, upon which alone the accused can be convicted. See also Ogoala Vs The State (1991) 2 NWLR (Pt.175) 509 at 534.”
Appellant’s statement was admitted as Exhibits 11 and 12 (Hausa and English versions) without any objection.
Under cross-examination, he said he was not even told the place or time of the robbery; that he did not know the other suspects and did not know any of the co-accused, before his arrest! (See Pages 48 to 50 of the Records)
Of course, the trial Court did not believe the denial by Appellant. The confessional statements of the other accused persons had also implicated him (Appellant) as they mentioned him as one of them!
The 9th accused (Dahiru Buba Kiyawa) had said:
“… We got some log of wood and block the express way along Birnin Kudu – Kano. Immediately we block the road a small vehicle… came and could not be able to pass. The driver then stop and some of our people asked the two men inside the vehicle to come out of their vehicle and lay (sic) down by the roadside and our people started searching the Peugeot vehicle a lorry came along and could not get way to pass he then hit the Peugeot vehicle and fell down. We ran to search the lorry inside bush… All the people so far arrested in connection to this robbery actually took part, exception of one-man name (sic) Abdullahi.” (Underlining mine) See Page 77 of the Records
PW1, in his evidence-in-chief had stated what each accused did at the scene of crime, as follows:
“If I see those who attacked me that time, I would recognize them. They are now in the Courtroom. I can identify each of them.” (Page 13 of the Records)
PW1 was permitted to get close to the dock to identify the accused persons, and he did, as follows:
“Pointed the 9th accused person, he is the person who dipped his hand inside my car, held my collar, slapped me and brought me out of the car. In the process of coming out of the car, the 1st accused person shot a pistol gun on front windscreen of my car. The 6th accused person struck my head with a sword and the 8th accused person, Muhammed Ahmadu, beat me with a stick. The 3rd accused person on the charge sheet took a very big stone and threw it on the rear glass of the car which led to the destruction of the glass and that gave him the opportunity to remove all our belongings from boot (sic) of the car. The 5th accused on the charge sheet was “compassionate” he was the person who led us to a roadside to lay (sic) down and was asked to look after us so that we did or could not escape, and he pleaded with them to leave us alone. The 7th accused person along with the 2nd accused were commanding officers of the team and they were sitting by the side of the road giving commands. The 4th accused, I did not see him at the scene of the incident. There were other people by the roadside, but I could not catch a glimpse of the 4th accused person. It was the 1st accused person who was arrested at Banaldu and brought to B/Kudu Police Station while we were writing our statements when he was brought to the station, he had with him N13,000 in N50 Notes.” (Underlining mine) See Pages 13 and 14 of the Records.
There was sufficient evidence from the prosecution which directly linked Appellant to the scene of the armed robbery and the commission of the offence. The PW6, had supported the evidence of PW1 on the identification of the accused persons, including Appellant, based his testimony on the identification made by the PW1.
Of course, the evidence of the co-accused, naming the Appellant as one of them must be taken with caution, as the law warns against relying on such evidence. See the case of Hassan Vs The State (2016) LPELR – 42554 (SC):
“It is elementary that in a criminal trial, where an accused person incriminates a co-accused in his statement to the police, the statement is evidence only against the maker and not against the co-accused. But if the prosecution, police decides to use the statement against a co-accused, then the prosecution is bound to make the incriminating statement available to the co-accused. See R v. Afose (1934) 2 WACA p. 115.” Per RHODES-VIVOUR, JSC
See also the case of Awo Vs The State (2020) LPELR – 50619 CA, Ajomayan Vs The State (2020) LPELR – 49598 CA and Obinna Vs The State (2021) LPELR – 55847 CA, which states that:
A confessional statement of an accused person, implicating or seeking to implicate a co-accused should always be taken with suspicion, as such confessional statement of a co-accused is no evidence against an accused (Appellant) who has not adopted the statement. See OZAKI & ANOR VS STATE (1990) LPELR-2888 SC, YUSUF & ANOR VS STATE (2019) LPELR 46945 (SC). And such evidence remains against the person who made the confessional statement. See MBANG VS THE STATE (2009) 18 NWLR (Pt. 1172) 157, ALARAPE VS STATE (2001) 2 SC 114; 2001 5 NWLR (Pt. 705).”
Even then, the confessional statement of one of the Accused persons (9th Accused) had exonerated only the 4th Accused person, when he said:
“All the people so far arrested in connection with this robbery took part, exception of one-man, name (sic) Abdullahi.” (Page 77 of the Records of Appeal)
I had earlier held that the law permits a trial judge to convict an accused person on the basis of a confessional statement alone, provided the same was made voluntarily and not induced. See Bala Vs State (2022) LPELR-56737 (CA).
In this case, I do think Appellant’s confessional statement was properly admitted by the trial Judge, and that the Court was right to rely on it, the retraction, notwithstanding.
The law is also to the effect that a confessional statement can still be used to convict an accused person, even if retracted or resiled, provided there is/are some evidence before the Court to corroborate the said confessional statement. See Uhara Vs The State (2021) LPELR – 55512 (CA), FRN Vs Iweka (2011) LPELR – 9350 (SC), Hussein Vs The State (2022) LPELR – 57021 CA, Sule Vs Kano State (2022) LPELR – 57642 CA; Sani Vs State (2020) LPELR – 53905 (SC). The evidence of PW1, who clearly identified the Appellant and explained his role at the Robbery, sufficiently corroborated the confessional statement of the Appellant.
The offence was therefore proved beyond reasonable doubt against Appellant, in my opinion, just as the learned trial Court held.
I can therefore see no merit in this appeal, and so resolve the issue against Appellant and dismiss the appeal. The decision of the trial Court, delivered on 31/8/2004, is therefore affirmed, in respect of the 8th accused person (Appellant herein).
BOLOUKUROMO MOSES UGO, J.C.A.: I have earlier read in draft the leading judgment of my learned brother, I. G. MBABA, P. J. C. A. and I am in complete agreement with his Lordship’s reasoning and conclusion that this appeal is unmeritorious, accordingly, I also dismiss it. I have nothing useful to add.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: My learned brother, ITA GEORGE MBABA, JCA obliged me a copy of his judgment. I have gone through same and agree with the reasoning and conclusion that there is no merit in the appeal. I adopt same as mine and have nothing more to add. For the same reasons, I also dismiss the appeal and abide by all the consequential orders as contained in the lead judgment.
Appearances:
OKECHUKWU NWAEZE, ESQ. For Appellant(s)
A.H. HASSAN, PSC, JIGAWA STATE. For Respondent(s)
