ALI SA’IDU v. THE STATE (2016)

ALI SA’IDU v. THE STATE

(2016)LCN/8194(CA)

In The Court of Appeal of Nigeria

On Friday, the 19th day of February, 2016

CA/K/285/C/2014

RATIO

COURT: DUTY OF THE TRIAL COURT; THE DUTY OF THE TRIAL COURT TO EVALUATDENCE BEFORE IT AND WHAT EVALUATION ENTAILS

The firmly settled and appreciable principle of our Law is that evaluation of evidence and findings of facts are within the province of the trial Court which has exclusively been bestowed with that primary responsibility. It is the exclusive preserve of the trial Court to evaluate evidence presented before it and ascribe probative value to the evidence. The trial Judge does this by receiving all the evidence presented and then assesses the received evidence to ascribe value to it. Explaining this duty of the trial Court, Oputa JSC in OLUFOSOYE V. OLUFEMI (1989) 1 SC (pt. 1) 29 said:-
“There is a duty on a trial Court to receive all available evidence on an issue. This is perception of evidence. After that, there is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence.”Evaluation of evidence entails and demands that the evidence adduced by both parties be assessed and weighed so as to give probative value or quality to it, and there must be on record how the Court arrived at its choice of preference of one piece of evidence to the other. ALAKE V. STATE (1992) 9 NWLR (Pt. 265) 260 SC, ATTAH V. STATE (2009) 15 NWLR (Pt. 1164) 284 (CA).
Evaluation involves reviewing and criticising as well as estimating the evidence BASIL V. FAJEBE (2001) 11 NWLR (Pt. 725) 592, MOGAJI V. ODOFIN (1978) 4 SC 91. It is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve or a reasoned preference of one piece or version of evidence to the other. It is settled law that when the trial Court has unquestionably performed its function and has satisfactorily evaluated the evidence before it, it is not for the appellate Court to evaluate the same evidence and come to its own decision except where the findings or conclusions arrived at are perverse or wrong inferences were drawn or made on accepted facts or wrong principles have been applied to the facts. OSUJI v. EKEOCHA (2009) 16 NWLR (pt. 1166) 81 SC, THOMPSON V. AROWOLO (2003) 7 NWLR (pt. 818) 163. per. AMINA AUDI WAMBAI, J.C.A.

PRACTICE AND PROCEDURE: WHEN IS THE FINDING OF FACT OR DECISION OF COURT SAID TO BE PERVERSE

A finding of fact or decision of Court is said to be perverse when it runs counter to the evidence and pleadings or the trial Court took into account matters which it ought not to have taken into account (extraneous matters) or shuts its eyes to the obvious or when the decision has occasioned a miscarriage of justice. MINI LODGE LTD & ANOR V. NGEI & ANOR (2009) 18 NWLR (pt. 1173) 254, NEPA v. J. A. OSOSANYA & ORS (2004) LPELR 1960 (SC). per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: BURDEN OF PROOF: WHICH OF THE PARTIES HAS THE BURDEN OF PROOF IN A CRIMINAL CASE

EVIDENCE: THE IMPLICATION OF THE FAILURE OF THE PROSECUTION TO PROVE ANY OF THE INGREDIENT OF THE ALLEGED OFFENCE BEYOND REASONABLE DOUBT
Where the prosecution fails to prove any of the ingredients beyond reasonable doubt, the accused is entitled to an acquittal. AFOLABI V. STATE (2010) 6-7 MTSC 187, 220, ABIODUN v. FRN (2009) 7 NWLR (Pt. 114) 489, 509, GABRIEL V. STATE (Supra). per. AMINA AUDI WAMBAI, J.C.A.

CRIMINAL LAW: THE OFFENCE OF ARMED ROBBERY; THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY WHICH THE PROSECUTION MUST PROVE BEYOND REASONABLE DOUBT
The indispensable ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt have been set out in a number of cases to be:-
(a) That there was a robbery or series of robberies;
(b) That the robbery was an armed robbery; and
(c) That the accused person was the robber or took part in the robbery or robberies. All these 3 ingredients must co-exist before an accused person can be found guilty of the offence.
Olayinka v. State (2007) All FWLR (Pt. 373) 163, Bello v. State (2011) 18 NWLR (Pt. 1278) 353, Eke v. State (2017) LPELR-1133 (SC), Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 SC, Bozin v. State (1985) 2 NWLR (pt. 8) 465. “Robbery” means:-
“Stealing anything and at or immediately before or after the time of stealing, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.” The word “arm” refers to any article made or adopted for causing injury to any person having it for such use by him and includes even a piece of wood, metal or stone capable of being used as an offensive weapon. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: WAYS IN WHICH THE GUILT OF AN ACCUSED PERSON MAY BE PROVED

It is now firmly settled that the guilt of an accused person may be proved either by the evidence of a person who witnessed the commission of the offence (eye witness), confession of the accused or by circumstantial evidence. IGIRI v. STATE (2012) 16 NWLR (PT. 1327) 522, 541 B, HARUNA V. A.C.F. (2012) LPELR ? 7821 (SC). per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: CONFESSIONAL STATEMENT: THE TEST CONFESSIONAL STATEMENT MUST BE SUBJECTED TO BEFORE THE COURT WOULD BELIEVE AND ACT UPON THE CONFESSION

It is therefore desirable that before the Court would believe and act upon the confession, same must be credible and there should be outside the confession, some evidence however slight to make it probable that the confession was true. It should thus be subjected to the following acceptability tests:-
“i. Is there anything outside the confession to show that it is true?
ii. Is it corroborated?
iii. Are the relevant statements made in it of facts true as far as they can be tested?
iv. Was the prisoner one who had the opportunity of committing the murder?
v. Is his confession possible?
vi. Is it consistent with other facts which have been ascertained and have been proved? per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: CIRCUMSTANTIAL EVIDECE: WHETHER THE PROSECUTION MUST PRODUCE CIRCUMSTANTIAL EVIDENCE WHERE AN ACCUSED PERSON RETRACTS HIS CONFESSIONAL STATEMENT

The Law is that where an accused person who is not arrested at the scene of crime denies the commission of the offence or retracts his confessional statement and there is no direct evidence of an eye witness, the prosecution must produce cogent, compelling and irresistible circumstantial evidence, to secure a conviction.
Such circumstantial evidence which may inure the prosecution is any number of circumstances which are accepted and make a complete and unbroken chain of evidence pointing strongly to the commission of the crime by the accused person. Ukorah v. State (1977) 4 SC 111, @ 115-116, Adie v. State (1980) 1-2 SC, 116, Omotola v. State (2009) 2-3 SC 7, Adesina & Anor. V. State (2012) LPELR 9722, Ubani v. State (2013) 18 NWLR (Pt. 851) 22. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: CONFESSIONAL SUBJECT; THE EFFECT OF THE FAILURE OF A CONFESSIONAL STATEMENT SUBJECT TO THE ACID ACCEPTABILITY TEST TO PASS THE TEST

Where a confessional statement subjected to the acid acceptability tests fails to pass the test, a doubt should be created in the mind of the Court as to the truth of the confession as to make it unsafe to convict solely upon the confession.
In the English celebrated case of Woolmington v. DPP (Supra) Lord Sankly said:-
“Where at the close of the case for both the prosecution and the defence there is doubt as to whether the evidence elicited by the parties can sustain the charge against the accused person, such doubt should be resolved in his favour.”
Our Courts have adopted this statement of the Law by Lord Sankly and have been consistent in applying same in a plethora of decisions.
Thus, the Law has become trite that where there is doubt in the mind of the Court as in the instant case, the doubt should be resolved in favour of the accused/Appellant. MUHAMMED & ORS V. THE STATE (2013 LPELR – 22352 (CA), SOLOLA V. STATE (Supra), KALU v. STATE (1988) 4 NWLR (Pt. 90) 503 after all, as Rhodes-Vivour JSC in Ogudo v. State (Supra) put it, the adage that it is better for nine guilty persons to go free than one innocent person to be sent to his grave holds very true to this day. per. AMINA AUDI WAMBAI, J.C.A.

EVIDENCE: STANDARD OF PROOF; HOW A CASE CAN BE PROVED BEYOND REASONABLE DOUBT

It is settled law that a case can be proved beyond reasonable doubt either by direct eye witness account or by circumstantial evidence from which the guilt of a defendant can be inferred or by a free and voluntary confessional statement of guilt which is direct and positive or by a combination of any of the three modes – Emeka Vs State (2001) 14 NWLR (pt. 734) 666, Nigerian Navy V. Lambert (2007) 18 NWLR (Pt 1066) 300, Ilodigwe V. State (2012) 18 NWLR (Pt 1331) 1, Oguno V. State (2013) 15 NWLR (Pt. 1376) 1 and Babatunde V. State (2014) 2 NWLR (Pt 1391) 298, Umar V. State (2014) 13 NWLR (pt. 1425) 497. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

EVIDENCE: CONFESSIONAL STATEMENTS; WHAT AN ACCUSED PERSON WHO DESIRES TO IMPEACH HIS STATEMENT MUST SHOW

The law is that an accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true by showing any of the following (i) that he did not in fact make any such statement as presented; or (ii) that he was not correctly recorded; or (iii) that he was unsettled in mind at the time he made the statement; or (iv) that he was induced to make the statement – Hassan V. State (2001) 15 NWLR (Pt 735) 184, Kazeem V. State (2009) WRN 43 and Osetola V. State (2012) 17 NWLR (pt 1,329) 257. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

EVIDENCE: CORROBORATIVE EVIDENCE: WHETHER CORROBORATIVE EVIDENCE NEEDS TO BE DIRECT EVIDENCE THAT THE ACCUSED PERSON COMMITTED THE OFFENCE

Now, corroborative evidence required to verify the contents of a confessional statement does not need to be direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given by the accused defendant in the statement and that it is sufficient even if it is only circumstantially connecting or tending to connect him with its commission Queen Vs Obiasa (1962) 2 SCNLR 402, Achabua V. The State (1.976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt 255) 525. Corroborative evidence is evidence given by an independent witness which confirms in some material particular, not merely that the crime was committed, but that the crime was committed by the accused person – Omisade V. The Queen (1964) NSCC 170, Okabichi Vs State (1975) 3 SC 96, Ogugu Vs State (1994) 9 NWLR (pt 366) 1, Ogunbayo Vs The State (2007) 8 NWLR (pt 1035) 157. Thus, to amount to corroborative evidence, the independent evidence must corroborate the evidence in some respects material to the charge in question – Ezigbo Vs The State (2012) LPELR-7855 (SC). Per. Per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A

PRACTICE AND PROCEDURE: THE EFFECT OF DOUBT IN THE CASE OF THE PROSECUTION

It is trite that where there exists any doubt in the case of the prosecution, such doubt must be resolved in favour of the Appellant. See Igabele v. State (2006) 6 NWLR Part 975 P. 100 at 127 Para E – G per Oguntade JSC. Per. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.

JUSTICES

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

ALI SA’IDU Appellant(s)

AND

THE STATE Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): At the Katsina State High Court of Justice in charge No. KTH/27/C/2002, dated 24th December, 2002, the Appellant as the 4th accused person was charged along with five (5) other persons on a one count charge of the offence of armed robbery punishable under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act, in that the Appellant along with the 5 other accused persons on or about the 22nd day of February, 2001 at about 0230hrs at Sabuwar Kasa village in Kafur Local Government Area of Katsina State attacked Alhaji Ummaru Masanawa (the village head of Sabuwar Kasa) with a gun and dispossessed him of the sum, of about N30,000.00 cash and thereafter shot him with the said gun which led to his death.

The Appellant pleaded not guilty to the charge consequent upon which the prosecution called 8 witnesses and tendered several exhibits including Exhibits 9A and 9B, Appellant’s statements to the Police, the voluntariness of which the Appellant denied.

In defence of the charge, the Appellant who testified as DW4 but tendered no exhibit or called any other

witness, denied any involvement in the commission of the offence.

At the conclusion of the trial, both the defence and prosecuting Counsel filed their respective final written addresses and adopted same. The learned trial Judge in a considered Judgment delivered on 27th April, 2012, found that the prosecution proved its case beyond reasonable doubt against the Appellant and accordingly convicted and sentenced him to death under Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act CAP 398 LFN 1990 as amended.

Aggrieved by the conviction and sentence, the Appellant commenced this appeal through a notice of appeal filed on 03/02/2014 predicated upon 6 grounds, pursuant to the order of this Court granted the Appellant on the 22nd January, 2014, to appeal out of time.
?
The brief facts of the case are that on the 22nd February, 2001 (22/02/2001) at about 2:00 am some people went to the house of Alhaji Ummaru Masanawa, the village head of Sabuwar Kasa village in Kafur Local Government Area of Katsina State, now deceased, and demanded him to give them money and upon saying that he had no money, they beat him with sticks and then shot

him with a gun. He later became unconscious and subsequently died from the gun shots.

Eight persons, including the Appellant were later arrested in connection with the robbery. Only six of the eight arrested persons, were charged, the Appellant being the 4th accused person.

In the prosecution of the appeal, and in compliance with the Rules of Court, briefs of argument were exchanged and adopted at the hearing of the appeal. The Appellant’s brief of argument filed on 04/07/2014 and the reply brief filed on 11/05/2015 were settled by Tuduru Ede Esq. (and assisted by Eric Apia Esq.) while the Respondent’s brief of argument dated 24/02/2015 and filed on 27/02/2015 but deemed properly filed on 27/04/2015 was settled by Abu Umar Esq., Senior State Counsel, Ministry of Justice Katsina State.

In ventilating his grievance with the said decision, learned Counsel for the Appellant distilled 2 issues for determination, thus:-
“(a) Whether the learned trial Judge was not wrong in holding that Exhibits 8A and 8B were admissible against the Appellant? Grounds 1 and 2.
(b) Whether the learned trial Judge was not wrong in holding that the prosecution

proved its case against the Appellant beyond reasonable doubt? Ground 3-6”.

The learned Counsel for the Respondent on his part raised 3 issues for determination, these are:-
“(a) Whether the failure of learned trial Judge to evaluate the evidence adduced by the Respondent and the Appellant in the Trial within Trial in respect of the Appellant could render Exhibits 8A and 8B inadmissible.
(b) Whether going by the evidence led by the Respondent before the Lower Court the Respondent had proved its case beyond reasonable doubt against the Appellant
(c) Whether the Defence of Alibi raised by the Appellant could avail him”.

The 1st two issues formulated by the Respondent’s Counsel are substantially the same as the two issues raised by the Appellant’s Counsel. I adopt the two issues formulated by the Appellant’s Counsel as sufficient to determine this appeal. In adopting the Appellant’s issues, I should at the outset comment on the 3rd issue raised by the Respondent’s Counsel, the issue of alibi. Though covered by ground 5 of the grounds of appeal, the Appellant neither raised an issue from that ground nor canvassed any argument in support

of same. It is now too elementary that appeals are not argued on the basis of the grounds of appeal but on issues formulated therefrom and where no issue is formulated from a ground or grounds of appeal, the ground or the grounds is or are deemed abandoned and entitled to be struck out. BHOJ SONS PLC V. DAMIEL KALIO (2006) 5 NWLR (Pt. 973) 330, UKIRI V. GELO-PRAKIA (NIG) LTD (2010) VOL. 43 NSCQR 268, @ 278-279, AMADI V. NNPC (2000) 6 SC (Pt 1) 66, ADEYERI V. ATANDA (1995) 5 NWLR (pt. 397) 512 @ 518.
The Appellant’s Counsel, herein, did not raise any issue from ground 5, and did not in his brief canvass any argument in support of or in relation to the defence of alibi therein contained. The necessary implication is that he has abandoned the ground and it is not open for the Respondent to canvass or proffer any arguments thereon. The Respondent’s 3rd issue is hereby struck out.

This appeal will therefore be determined on 2 issues as rephrased thus:-
“(1) Whether in the circumstances of this case, Exhibits 8A and 8B were properly admitted in evidence.
(2) Whether the learned trial Judge was right in holding that the Respondent proved its case

beyond reasonable doubt against the Appellant”.
ISSUE NO. I
WHETHER IN THE CIRCUMSTANCES OF THE CASE, EXHIBITS 8A and 8B WERE PROPERLY ADMITTED IN EVIDENCE.

The learned Counsel for the Appellant complained that the learned trial Judge did not, as required by Law, consider and evaluate the strength of the evidence adduced in the “Trial Within Trial” for the Respondent on one hand and in particular, that adduced by the Appellant on the other, on the voluntariness of the statements before admitting them in evidence as Exhibits 8A and 8B.

It was submitted for the Appellant that the “Trial Within Trial” (now simply referred to as TWT) being a separate and distinct proceedings of its own, ruling on same must comply with the requirements of Section 264 (1) of the Criminal Procedure Code by stating the point or points for determination, summarizing the case of each party, reviewing the evidence and making specific findings thereon and also stating the reasons for the decision. He referred to Ogunsee v. State (1998) 4 SC 110, 118-119.

Learned Counsel contended that the short ruling delivered by the learned trial Judge, to wit:-
“Having

gone through the testimonies of all the witnesses for the prosecution in the trial within trial and that of the defence. And having listened to the submissions of Counsel on both sides in their respective addresses along with the plethora of cases cited and relied upon. I have no option but to admit same so tendered in evidence as Exhibits 8A and 8B for the 4th accused…..”
is devoid of any such consideration, and evaluation of evidence or any findings of facts on the disputed evidence or reasons for the decision and is thus prejudicial to the Appellant and occasioned a miscarriage of Justice Onuaha v. State (1988) 3 NWLR (pt. 83) 460, 475 C-E, Abdullahi Disu v. Kano N. A. (1968) SCOPE 190, Stephen v. State (1986) 5 NWLR (Pt. 46) 978 were referred to.

It was argued that in his Ruling, the learned trial Judge abandoned his primary duty of evaluating and ascribing probative value to the evidence adduced at the “TWT” and having not set out the case of each party stating what he believed and what he did not believe and the reasons thereon, he had no reasonable ground to hold that he had no option but to admit the statements (Exhibits 8A and 8B) except

to convey the impression that he had already made up his mind to admit them. Exhibits 8A and 8B having been wrongfully admitted and heavily relied upon by the trial Court, learned Counsel urged that they be expunged as done by the Supreme Court in Obidiozo v. State (1987) 11-72 SCNJ 103, 121-122, and Okonji v. State (1987) 3 SCNJ 38.

Counsel further contended that the learned trial Judge ought not to have admitted or relied on the exhibits 8A and 8B without either the Respondent or the Court re-calling the 4 named prosecution witnesses who testified in the “TWT” to clarify the doubts created on their evidence about the voluntariness of the statements arising from the new issues raised “ex-improviso” by the uncontested and unchallenged evidence of the Appellant in the “Trial Within Trial” as to how they took the Appellant upstairs, beat him, and threatened to shoot him in the night. On this submission, the learned Counsel cited the cases of Akinfe v. State (1988) 3 NWLR (pt. 85) 729, 744 C and Onuaha v. State (1989) 2 NWLR (Pt. 101) 23, 36 F-G.
?
According to him, the learned trial Judge committed another procedural error not only by lumping the “Trial

Within Trial” in respect of the statement of the Appellant with those of other co-accused persons in a single “Trial Within Trial”, but more importantly, by his failure to first determine the issue of the voluntariness of the statements which is an issue of Law, before proceeding with the substantive trial which resulted in miscarriage of Justice. Obidiozo v. State (Supra), Gbadamosi v. State (1992) 9 NWLR (Pt. 266) 465, 495, Ibeme v. State (2013) 10 NWLR (pt. 1362) 333, 358 A-B and Adeyemi v. State (2012) All FWLR (pt. 606) 492 were referred to.

Exhibits 8A and 8B, it was posited, are not admissible documents for though Exhibit 8A said to be recorded in Hausa Language, it is not exclusively written in Hausa Language in that it contains some English words and figures, Exhibit 8B written in English Language, the language of the Court, is worthless being undated and unsigned by both the translator and the Appellant, especially the voluntariness of same having being denied by the Appellant, citing the cases of Ogunge v. State (1999) 5 NWLR (Pt. 604) 548, and Ogudo v. State (2011) 12 JC (Pt. 1) 71 @ 95-96 Per Rhodes Vivour JSC.

?Still on the worthlessness

of Exhibits 8A and 8B learned Counsel contended that the confessional statements are neither corroborated by any other evidence nor is there any evidence outside the confession showing that they are true just as there is nothing against which the confession can be tested there being nothing that links the Appellant to the alleged offence. Also that the confessional statement is not consistent with the facts in the appeal. He referred to Ojegele v. State (1998) 1 NWLR (Pt. 71) 414, Nwangbomu v. State (1994) 2 SCNJ 1107, 1175. We were urged to expunge the said Exhibits 8A and 8B from the record.

In response to these arguments, the learned Counsel to the Respondent submitted that the evidence of PW7 in the main trial who was PWC in the “Trial Within Trial” that he cautioned the Appellant and the Appellant voluntarily made the statement in Hausa Language in the presence of PWE which was endorsed by PWD having not been impeached by the Appellant in cross-examination, the Respondent had proved the voluntariness of the Appellant’s statement.

?On the failure of the learned trial Judge to evaluate the evidence adduced at the ?Trial Within Trial?,

Counsel contended that the Appellant having denied making the statement, it is unnecessary for the learned trial Judge to evaluate the evidence before admitting same, citing Ibeme v. State (2013) 2 SCNJ 1012, @ 1044. Such a failure to evaluate the evidence, Counsel argued, is not fatal, as this Court is entitled to interfere and re-evaluate same, Tukur v. UBA (2012) 7 SCNJ 328 @ 363-364 was referred to.

It was also submitted on the authority of the cases of Hassan v. State (2001) 15 NWLR (Pt. 735) 184 @ 1999 – 202 F-C, Osakwe v. The State (1994) 2 SCNJ 57 @ 71 that the retraction of a confessional statement is neither a ground to conduct a “trial within trial” nor to preclude the conviction of an accused person solely on the retracted confession.

On the failure to re-call prosecution witnesses to clarify the allegation of violence and torture made against them which was raised in the Appellant’s evidence, it was contended that the prosecution having made out a prima facie case, it was the duty of the Appellant to adduce evidence that would make a Court find in his favour. Citing Onafowokan v. State (1987) 3 NWLR (pt. 61) 538 and that Section 237

(1)(2) of the Criminal Procedure Code was not violated as the Appellant was also at liberty to re-call any witness considered vital not called or re-called by the prosecution. Aliyu v. State (2013) 12 NWLR (Pt. 1368) 403 @ 420 Para E was referred to.

On the submission that the failure of the learned trial Judge to first determine and conclude the Trial Within Trial before continuing with the substantive trial was unfair to the Appellant and occasioned a miscarriage of justice, it was argued in response, that unless same was proved to have occasioned a miscarriage of justice, which the Appellant failed to do, such a mere procedural irregularity or error cannot be fatal to the prosecution’s case or avail the Appellant a discharge and acquittal, as technicalities should not becloud the doing of substantial justice, the Appellant being charged with a capital offence.
Sharfal v. State (1992) 7 NWLR (Pt. 255) 510, 523, Solola v. State (2005) 2 NWLR (Pt. 937) 460, 485 C-D were cited in support.

The Appellant’s reply brief deserves no consideration in this appeal as it is merely an adumbration and re-argument of his brief of argument.

The purpose of reply brief is not to afford the Appellant another or further bite at the cherry or opportunity to provide argue additional arguments in support of the appeal, but only to answer, reply or respond to any fresh points raised in the Respondent’s brief. BASINCO MOTORS LTD V. WOERMANN LINE & ANOR (2009) 13 NWLR (pt. 1157) 140 SC. It is therefore discountenanced.

Now, a confession is an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the crime. It is usually an extra-judicial statement made by an accused person to the Police containing assertion of admission showing or indicating that he participated in the commission of the offence for which he stands charged. Once the statement admits the charge or creates the impression that he, the accused, committed the offence charged, the statement becomes confessional. See ORE-OFE ADESINA (AKA ALHAJI) & ANOR V. THE STATE (2012) LPELR 9722 (SC), SAIDU V. THE STATE (1990) 7 NWLR (pt. 160) 101, 109, MOHAMMED V. STATE (2007) ALL FWLR (pt. 384) 46, and Section 28 (1) of the Evidence Act, 2011.?
By virtue of Section 29(1) of the Evidence

Act, such a confession is relevant only against the maker where it is made voluntarily SAM V. THE STATE (1991) 2 NWLR (pt. 176) 699, 706, FRN V. FAITH IWEKA (2011) LPELR-9350 (SC).

The burden of proving affirmatively beyond reasonable doubt that the confession was made voluntarily, it is settled law, rests squarely on the prosecution OSENI V. STATE (2012) LPELR-7833 (SC), AUTA v. STATE (1975) NWLR 60, 65 (SC), ADEKANBI V. A.G.W.N. (1961 ALL NLR 47, and except the prosecution discharges this burden beyond reasonable doubt, the confessional statement cannot be admitted in evidence. NWANGBONU V. STATE (1994) 2 SCNJ 107, OJEGELE V. STATE (1988) 1 NWLR (pt. 71) 414, 421, KURE V. STATE (2014) LPELR-23467 (CA).

It is also firmly settled that where a confessional statement is tendered in evidence by the prosecution and its voluntariness is challenged by the accused person, the proper procedure is for the trial Court to conduct a Trial within Trial (TWT). Several authorities abound on this principle of Law. These include FRN V. Daino (2015) LPELR-24309 (SC), Obidiozo v. State (Supra) Dega v. State (2014) LPELR-24197 (CA), Adisa v. The State (2013) LPELR 20684

(CA) Ogudo v. State (Supra).

In the instant case when the prosecutor (Respondent) applied to tender the Appellant’s statement in evidence through PW7 who testified that he recorded same voluntarily from the Appellant, Counsel to the Appellant took objection to its admissibility on ground of involuntariness that the Appellant was beaten, which led to the conduct of the “Trial within Trial” whereat the Respondent called three witnesses, who denied beating or torturing the Appellant and maintained that the statement was voluntarily made by the Appellant. The Appellant testified in his defence as DWC and narrated how he was chained at both hands and legs and beaten by the PWC, PWE and others.

He stated his evidence in chief that:-
“I never gave any statement to Police only that they forced me, after beating me (Muntari Alasan, Abu Musa, Yusuf Maiwada and Yunusa Adamu)….Yunusa Adamu brought paper and biro to write, which I did, but Muntari Alasan Said this is not what he wants…..He then said he would do what wanted….” (Pages 112-113 of the record)
“I?m not the maker of the statement which I thumb printed.”
?See pages 78-79, 84-86

and 123 of the record)

At the end of the ?Trial within Trial” the learned trial Judge overruled the Appellant’s objection and admitted the Hausa version of the statement and its English translation as Exhibits 8A and 8B respectively. The Appellant’s grievance against the Ruling is that the learned trial Judge failed to outline his reasons for preferring the evidence of the Respondent to that of the Appellant. The said Ruling earlier reproduced in this Judgment is at page 128 of the record of Appeal.

Undoubtedly, a trial within trial is a separate and distinct trial from the main trial, conducted primarily to determine the voluntariness or involuntariness of an alleged confessional statement wherein evidence is adduced for both parties, Counsel on both sides address the Court and the Court delivers its Ruling on the objection. Auta v. State (1975) 4 SC 125, Nsofor v. State (2004) 18 NWLR (Pt. 905) 92, Lateef v. FRN (2010) 37 WRN 85, Ogunzee v. State (1998) 4 SC 118-119, Obidiozo v. State (Supra). Like in every trial, the Court or Tribunal charged with the performance of judicial function is by law required not only to review and evaluate the

evidence adduced at the trial before deciding on any matter, but also to make specific findings therefrom to enable an appeal Court to which an appeal lies, decide whether the finding was, on the evidence before it, valid. Halilu Mohamman v. IGP (1970) NNLR 98, Stephen v. State (1986) 5 NWLR (Pt. 46) 978. This is also the only way the Court will be seen to have given open and even handed justice as against arbitrariness. Otherwise parties will be left to grope in darkness as to how the Court arrived at its decision. Thus, to allow Courts to decide cases without clearly stating the reasons for their decision, is to send an open invitation to arbitrariness which may lead to judicial anarchy. Agbanelo v. UBA (2000) 7 NWLR (Pt. 666) 540, Ogboru & Anor v. Uduaghan & Ors. (2012) LPELR – 8287 (SC).

The said Ruling of the trial Judge clearly is devoid of any evaluation of the evidence of the witnesses, and reasons for the decision. The necessary question is whether the defect in the Ruling renders Exhibits 8A and 8B inadmissible.
?I answer this question in the negative in view of the retraction of the confessional statement by the Appellant in his

defence for the Trial within Trial, wherein the Appellant at page 123 of the record said in cross-examination that
“I never gave any statement to the Police…”
It is now firmly settled that a “trial within trial” is necessary only where the accused admits making the statement but denies its voluntariness and not where he denies making any or resiles from the confession. Where therefore, as in this appeal, the initial objection is predicated on the usual ground of involuntariness but the accused subsequently at the “Trial within Trial” completely denies making the statement or contends that he was forced to sign or thumb print on an already prepared statement by the Police, the objection has become a complete denial of the statement and rendering it unnecessary to conduct or continue with a trial within trial. IGWE V. STATE (1960) 5 FSC 55, IBEME V. STATE (2013) 2 SCNJ 1012, OSAKWE V. STATE (1994) 2 SCNJ 57.
It is therefore proper for the trial Judge to admit the statement as retracted confession without evaluating the evidence for and against its admission, and to determine at the appropriate stage, the probative value to ascribe to same. See OGUDO V.

STATE (2011) 12 SC (pt. 1) 71.
In this wise, the failure of the learned trial Judge to evaluate the evidence adduced at the “Trial within Trial” before admitting Exhibits 8A and 8B, the making of which the Appellant had denied and had resiled from, did not occasion a miscarriage of justice nor breached the Appellant’s right to fair hearing.

Appellant’s Counsel also contended that Exhibit 8B is inadmissible because same was neither signed by the Appellant nor the translator. A look at Exhibit 8B however reveals that it was signed by Sgt. Muntari Alasan, as its translator and recorder but not signed by the Appellant.

On the absence of the signature of the Appellant on exhibit 8B, the Law is that the statement of an accused does not become inadmissible in evidence merely because it is unsigned by the accused, the issue of admissibility being different from that of probative value to be ascribed to the statement. In Chukwuka Ogudo v. State (Supra) Rhodes Vivour JSC aptly stated the Law in the following phrase:-
“…Where on the other hand, the accused person says he did not sign the statement, the statement should be admitted in evidence,

thereafter, the question of what weight should be attached to such statement becomes an issue for the Judge to decide at the end of the trial….”

Additionally, having not raised the issue when Exhibit 8B was tendered in evidence, it is now too late to complain that same was not signed by the Appellant.

In the light of all the afore stated reasons, I hold that Exhibits 8A and 8B were properly admitted in evidence thereby resolving this issue against the Appellant. The issue of the proper probative value of the exhibits will be considered anon in the 2nd issue for determination.

ISSUE NO. 2
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE RESPONDENT PROVED ITS CASE BEYOND REASONABLE DOUBT AGAINST THE APPELLANT”.
Counsel for the Appellant contended that apart from exhibits 8A and 8B which were wrongly admitted and should be expunged, the Respondent did not adduce any evidence linking the Appellant with the crime. To secure a conviction for the alleged offence of armed robbery, he argued, the prosecution must prove beyond reasonable doubt each of the ingredients of the offence, to wit:-
(a) There was a robbery

The robbery was with arms or violence
(c) The accused took part in the robbery, Bozin v. The State (1985) 2 NWLR (Pt. 8) 465, Nwomukoro v. The State (1995) 1 NWLR (Pt. 372) 432, Onyenye v. State (2012) 6 SC (pt. IV) 1, Alabi v. State (1993) 7 NMLR (Pt. 307) 511.

?While learned Counsel conceded that the evidence of PWs 1-8 proved the 1st and 2nd ingredients of the offence, he contended that the Respondent woefully failed to prove the 3rd ingredient that the Appellant took part in the robbery as none of the eye witnesses identified the Appellant nor was he arrested at the scene of crime or the weapons or the vehicle used in the commission of the crime linked to the Appellant. That the Appellant was arrested only on the basis of being one of the 16 names of suspected armed robbers operating within Kaduna and Katsina States given by one Idris Abdullahi, an accomplice, who was not called as a witness. Counsel opined that both Idris Abdullahi and Danbuzu the owner of the Ford Bus allegedly used for the commission of the offence were vital witnesses whose evidence could have settled the matter one way or the other and who ought to have been called especially

PW5 (one of the IPOs) having testified that he did not suspect that the vehicle was used in the commission of any offence and Idris Abdullahi (an accomplice) having initially been arrested for the same offence but not charged and tried along with the Appellant nor called as a witness.
Failure to call the two witnesses Counsel argued, is not only prejudicial to the Appellant but also made the evidence of PW3 as worthless hearsay evidence and fatal to the Respondent’s case. Citing Ijofor v. The State (2001) 9 NWLR (Pt. 718) 371, @ 382, Opolo V. The State (1977) All NLR 372, 376, Achora v. A. G. Bendel State (1990) 7 NWLR (pt. 160) 92.

It was also submitted that proof of the identity of an accused person becomes mandatory where as in this case the Appellant denied committing the offence and was not arrested at the scene of crime or linked to any of the Exhibits 2A-D and C2 or identified by any eye witness, which burden as placed by Section 137 of the Evidence Act, he argued, the Respondent failed to discharge thereby entitling the Appellant to an acquitted. Alonge v. I.G.P. (1959) SCNL 516 was relied upon.

It was further argued that the Respondent

failed to prove any cogent, compelling and irresistible circumstantial evidence linking the Appellant to the offence with any exactitude upon which the learned trial Judge could have held that the Appellant committed the offence and for convicting and sentencing the Appellant to death. Adie v. The State (1980) 1-2 SC 73, Ukorah v. The State (1977) 4 SC 167, Ebre v. The State (2001) 12 NWLR (Pt 728) 617 per Achike JSC among others, were relied upon.

Counsel finally in his summoning up, urged that the conviction and sentence of the Appellant be set aside because:-
“(a) Appellant has no established connections or links with any or all of the exhibits tendered in Court save Exhibits 8A and 8B.
(b) Appellant denied voluntarily making Exhibits 8A and 8B and have urged its being expunged from the records.
(c) Appellant has not been linked with the robbery at all.
(d) None of the PWs 1-8 established the presence of the Appellant at the scene of crime.
(e) The Appellant was only arrested and charged because one Idris Abdullahi wrote his name in the list of 16 names said to be armed robbers operating in Katsina and Kaduna States.

(f) Idris Abdullahi was never called.
(g) Ado Danbuzu the owner of the Ford Bus was not called,
(h) PW1 said “I do not know the accused person” “I was not able to recognize them” “I don’t know whom those people are”.
(i) PW4 said “neither do I know the owners of the riffles” “I did not suspect that the vehicle was used in the commission of any offence”.

Reacting to these arguments and contention that each and every ingredient of the offence of armed robbery as listed by the Appellant’s Counsel was proved beyond reasonable doubt against the Appellant, Respondent’s counsel posited on the authority of IGIRI v. STATE (2012) 16 NWLR (Pt. 1327) 522, 541 B that the prosecution’s case can be proved by any of these three ways, to wit:-
(a) Evidence by eye witness;
(b) The confession of the accused;
(c) Circumstantial evidence.

?It was the argument of Counsel that the evidence of PWI that she saw one of the people asking her husband for money, that she heard gun shots three times, of PW2 that he was woken by gunshots, of PW6 that she saw them shooting the deceased and removing money and that she recognized the last one, light in

complexion (not the Appellant) as well as the contents of the Exhibit 8B proved that there was robbery, that it was an armed robbery and that the Appellant was one of the robbers.

It was also posited that a confession, such as Exhibit 8B, is the best evidence in proof of a crime and where available, relieves the prosecution of any further proof – FRN V. IWEKA (2011) 12 SCNJ 1, 809. The nature of corroboration required according to Counsel, is any evidence even if circumstantial that connects the accused to the commission of the crime which in this case is present in the evidence of PW1, 2 and 6. He referred to DURUGO V. STATE (1992) 7 NWLR (pt. 255) 525, C-D, SOLOLA V. STATE (2005) 2 NWLR (pt. 937) 460, 485 C-D.

Counsel finally submitted that the Respondent proved its case beyond reasonable doubt and the learned trial Judge properly evaluated the evidence and urged upon us to affirm the decision of the trial Court.

It is clear from the argument canvassed by the Appellant’s Counsel that the Appellant’s central complaint under this issue is against the evaluation of the evidence by the learned trial Judge.

The firmly settled and appreciable

principle of our Law is that evaluation of evidence and findings of facts are within the province of the trial Court which has exclusively been bestowed with that primary responsibility. It is the exclusive preserve of the trial Court to evaluate evidence presented before it and ascribe probative value to the evidence. The trial Judge does this by receiving all the evidence presented and then assesses the received evidence to ascribe value to it. Explaining this duty of the trial Court, Oputa JSC in OLUFOSOYE V. OLUFEMI (1989) 1 SC (pt. 1) 29 said:-
“There is a duty on a trial Court to receive all available evidence on an issue. This is perception of evidence. After that, there is another duty to weigh that evidence in the con of the surrounding circumstances of the case. This is evaluation of evidence.” Evaluation of evidence entails and demands that the evidence adduced by both parties be assessed and weighed so as to give probative value or quality to it, and there must be on record how the Court arrived at its choice of preference of one piece of evidence to the other. ALAKE V. STATE (1992) 9 NWLR (Pt. 265) 260 SC, ATTAH V. STATE (2009) 15

NWLR (Pt. 1164) 284 (CA).
Evaluation involves reviewing and criticising as well as estimating the evidence BASIL V. FAJEBE (2001) 11 NWLR (Pt. 725) 592, MOGAJI V. ODOFIN (1978) 4 SC 91. It is by this process of assessment of evidence and ascription of value to same that the Court can arrive at the proper decision of who to believe and who to disbelieve or a reasoned preference of one piece or version of evidence to the other.

It is settled law that when the trial Court has unquestionably performed its function and has satisfactorily evaluated the evidence before it, it is not for the appellate Court to evaluate the same evidence and come to its own decision except where the findings or conclusions arrived at are perverse or wrong inferences were drawn or made on accepted facts or wrong principles have been applied to the facts.
OSUJI v. EKEOCHA (2009) 16 NWLR (pt. 1166) 81 SC, THOMPSON V. AROWOLO (2003) 7 NWLR (pt. 818) 163.

?A finding of fact or decision of Court is said to be perverse when it runs counter to the evidence and pleadings or the trial Court took into account matters which it ought not to have taken into account (extraneous

matters) or shuts its eyes to the obvious or when the decision has occasioned a miscarriage of justice. MINI LODGE LTD & ANOR V. NGEI & ANOR (2009) 18 NWLR (pt. 1173) 254, NEPA v. J. A. OSOSANYA & ORS (2004) LPELR 1960 (SC).

The Appellant therefore has the duty to show that the trial Court did not properly evaluate the evidence or its evaluation was perverse or a wrong conclusion was drawn therefrom resulting in a miscarriage of justice.

It is an indispensable feature of our criminal jurisprudence and procedure that the burden of proving that any person has committed an offence rests squarely and rigidly on the prosecution which burden by virtue of Section 138 of the Evidence Act the prosecution can discharge only if it successfully proves each and every ingredient of the alleged offence beyond reasonable doubt – KAYODE V. STATE (Supra).
Where the prosecution fails to prove any of the ingredients beyond reasonable doubt, the accused is entitled to an acquittal. AFOLABI V. STATE (2010) 6-7 MTSC 187, 220, ABIODUN v. FRN (2009) 7 NWLR (Pt. 114) 489, 509, GABRIEL V. STATE (Supra).

?The Appellant in this appeal was charged with the

offence of armed robbery contrary to Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act.
The indispensable ingredients of the offence of armed robbery which the prosecution must prove beyond reasonable doubt have been set out in a number of cases to be:-
(a) That there was a robbery or series of robberies;
(b) That the robbery was an armed robbery; and
(c) That the accused person was the robber or took part in the robbery or robberies. All these 3 ingredients must co-exist before an accused person can be found guilty of the offence.
Olayinka v. State (2007) All FWLR (Pt. 373) 163, Bello v. State (2011) 18 NWLR (Pt. 1278) 353, Eke v. State (2017) LPELR-1133 (SC), Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584 SC, Bozin v. State (1985) 2 NWLR (pt. 8) 465. “Robbery” means:-
“Stealing anything and at or immediately before or after the time of stealing, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.” The word “arm” refers to any article made or adopted for causing

injury to any person having it for such use by him and includes even a piece of wood, metal or stone capable of being used as an offensive weapon.

On the 1st and 2nd ingredients of the offence that there was a robbery and the robbery was with arms the graphic evidence of PW1, that she saw about seven people one of who demanded money from her and from the deceased that she heard gun shots 3 times and saw blood gushing out from her husband’s arm, the evidence of PW2 who was woken by gun shots and saw his father shot, and that of PW6 who saw the persons beating her husband with sticks, and later shot him with gun and which evidence remain unchallenged, clearly support the finding of the Lower Court at page 207 lines 12-17 of the record, and proved these two ingredients of the offence. The trial Judge cannot be faulted.<br< p=””

</br<

However, the real bone of contention is with the 3rd ingredient, that the Appellant was one of the robbers and with all seriousness, this is the crux of the issue upon which this appeal was vigorously argued. It is the contention of the Respondent’s Counsel that the Appellant confessed in the Exhibits 8A and 8B that he was one of the robbers and was also physically fixed at the scene of crime by PW6.
Exhibits 8A and 8B as found earlier in this Judgment were retracted by the Appellant. It is therefore desirable that before the Court would believe and act upon the confession, same must be credible and there should be outside the confession, some evidence however slight to make it probable that the confession was true. It should thus be subjected to the following acceptability tests:-
“i. Is there anything outside the confession to show that it is true?
ii. Is it corroborated?
iii. Are the relevant statements made in it of facts true as far as they can be tested?
iv. Was the prisoner one who had the opportunity of committing the murder?
v. Is his confession possible?
vi. Is it consistent with other facts which have been

ascertained and have been proved?

On this requirement, the learned trial Judge held at pages 208-209 of the record that:-
“The confession of all the accused persons is quite direct and positive and there is ample evidence outside their Confessional statement which is quite credible and corroborative which make it probable that the confession is true and correct taking cognizance of the testimony of PW1, 2 and 6. Thus this has also satisfied the requirements in the decision of Ikpe v. State (1995) 9 NWLR (Pt 421) 540 at 555”.

The question is whether the learned trial Judge was right in this finding and conclusion.

It is apt to consider the evidence offered by the prosecution witnesses outside the said retracted confession (Exhibit 8A and 8B).
?
The evidence of PWs 1, 2 and 6 who were the eye witnesses to the commission of the crime only narrate how the armed robbery took place but did not link the Appellant to its commission. PW3 was one of the IPOs and his evidence was that the case was transferred to them for investigation along with one Golf vehicle Registration No. AG 822 MKA (red in colour). They were informed that at the time of

arresting the Golf vehicle, another vehicle, a Ford Bus Registration No. AE 53 KAR escaped with people inside. He led a team of investigators to Kaduna to trace the owner of the vehicle which eventually led them to the house of one Idris Abdullahi at Rigasa who was the person that introduced the buyer of the vehicle. He (Idris Abdullahi) was arrested. PW3 stated inter alia that:-
“It was the same Idris Abdullahi who confirmed to us and gave us the names of about 16 armed robbers who are operating in Katsina and Kaduna States, including the names of the accused persons…………and confirmed to assist us in arresting the Robbers”. (Page 48 of the record)

The evidence of PW4 is that upon the receipt of a signal that a gang of armed robbers had been apprehended in Kaduna, a team led by A. S. P. Bola Badewale O/C Anti-Robbery left for Kaduna to take over the accused persons.

Cpl. Daniel Ado, (formerly) of the Dutsinma Division was PW5. His testimony in cross-examination is that:-
?I did not suspect that the vehicle was used in the commission of any offence.
We took the vehicle for safe keeping.
We did not search the vehicle at the

scene.
The vehicle was not locked.
I cannot say, who put the rifles or Cartridges in the car.
Neither do I know the owner of the rifles”,

The evidence of PW7 is that he recorded the statement of 1st and 4th accused persons.

PW8 was the exhibit keeper who registered and kept custody of the exhibits.

From the foregoing evidence of PWs1-8 it is clear as rightly submitted by the learned Counsel for the Appellant that:-
(1) The Appellant was not identified by any of the 3 eye witnesses to the commission of the crime.
(2) The Appellant was not arrested at the scene of the crime
(3) None of the above witnesses adduced any positive and direct evidence linking the Appellant with any of the exhibits save Exhibits 8A and BB.

of circumstances which are accepted and make a complete and unbroken chain of evidence pointing strongly to the commission of the crime by the accused person. Ukorah v. State (1977) 4 SC 111, @ 115-116, Adie v. State (1980) 1-2 SC, 116, Omotola v. State (2009) 2-3 SC 7, Adesina & Anor. V. State (2012) LPELR 9722, Ubani v. State (2013) 18 NWLR (Pt. 851) 22.

In the instant appeal, there are no such circumstantial evidence pointing to the Appellant or even to corroborate the retracted confession. There is no direct and clear evidence from any of the prosecution witnesses linking the Appellant with or tieing the exhibits to the Appellant. Indeed the evidence of PW5 is far from linking the Appellant to any of the exhibits. He said in cross-examination that he did not know any of the accused persons and did not suspect that the vehicle was used in the commission of any offence and cannot say who put the rifles or cartridges in the car, neither did he know the owners of the rifles. According to PW3, the Appellant was arrested because his name was one of the 16 suspected armed robbers mentioned by Idris Abdullahi.

?There was not a single witness with any

positive evidence of an atom’s weight or any other scintilla of evidence linking the Appellant to those exhibits which the IPO also admitted he could not link to any accused person.

In this wise, it cannot be said that there is any credible evidence outside the retracted confession corroborating or consistent with any ascertained and proved facts nor is there anything against which to test the truth of the confession as to qualify it pass the tests of acceptability that would warrant conviction of the Appellant solely upon it.

That is not all, I have thoroughly examined the confessional statement written in English, Exhibit 8B and I have to agree with the Appellant’s Counsel that it is unsigned by the Appellant. Nowhere on the statement did the Appellant append his thumb print. The said retracted Exhibit 8B can thus be best described as a worthless document which calls for the greatest caution before a conviction for a capital offence can be placed upon it. In Ogudo v. State (Supra) the facts of which are not dissimilar with the facts of this appeal at hand, Rhodes-Vivour JSC had this to say inter alia:-
“When a trial Judge decides in his wisdom

to sentence an Accused person to death solely on a retracted confessional statement the statement must satisfy the basic fundamentals of valid statement, to wit:-
(1) …
(2) …
(3) The statement must be endorsed by a superior police officer and signed by the accused person.
Relying on an unsigned retracted confessional statement calls for extreme caution and very little or no weight should be attached to such a statement. After all an unsigned document is worthless. See Section 91 of the Evidence Act.
I am firmly of the view that the Courts below were clearly in the wrong to sentence the Appellant to death solely on an unsigned retracted confessional statement. If ever the need arose to find some independent evidence, outside Exhibit 1, this is the case, sadly there is no evidence other than Exhibit 1.”

What this means is that the retracted confessional statement of the Appellant, Exhibit 8B has failed to pass both the external and the internal tests of acceptability to qualify it as evidence upon which to base the conviction of the Appellant. The learned trial Judge was in the wrong to have held in respect of the Appellant,

that there was ample credible and cogent evidence outside the confession, same not being supported by the evidence on record. All the identified lapses in the evidence of the prosecution which fails to link the Appellant to the crime and the absence of the Appellant’s signature or thumb print on the retracted confession creates a doubt as to the truth of the confession.
This brings to the fore the need for thorough investigation of cases especially of offences of this nature which carry the death penalty, rather than relying only on confessional statements of accused persons.
The prosecutor must go further to tie all the knots and pass the thread through the pieces of evidence so as tie all the loose ends. In other words, the investigator must not rest its investigation solely on securing confessional statement of the accused, but must go beyond that to find other evidence in support of the confession. This is so because in criminal trials, the onus that lies throughout on the prosecution to establish the guilt of the accused beyond reasonable doubt is not relieved even where the accused in his statement to the police, admits the commission of the

offence – Busari v. State (2015) All FWLR (Pt. 777) 715, Aigbadion v. State (2000) 7 NWLR (pt. 666) 705.

put it, the adage that it is better for nine guilty persons to go free than one innocent person to be sent to his grave holds very true to this day.

In the circumstance, I give the benefit of my doubt in favour of the Appellant. The result is that there is merit in this appeal and it is hereby allowed. The decision of the Lower Court delivered on 27/04/2012, convicting and sentencing the Appellant to death is set aside. The Appellant is accordingly discharged and acquitted.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the leading judgment delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein. I wish to add a few comments.

?The Appellant was charged, along with five other persons, with one count of armed robbery contrary to the provisions of Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap R11 Laws of Federation 2004. The Appellant was the fourth accused person. It is axiomatic in our jurisprudence

that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. Where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts.
Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal – Sabi V. State (2011) 14 NWLR (pt. 1268) 421, Iwunze V. Federal Republic of Nigeria (2013) 1 NWLR (pt. 1324) 119, Njoku V. State (2013) 2 NWLR (pt 1339) 548, Osuagwu V. State (2013) 5 NWLR (pt 1347) 360, Ajayi V. State (2013) 9 NWLR (pt 1360) 589.

Section 1 (2) of the Robbery and Firearms (Special Provisions) Act 1990 states that armed robbery occurs where at the time of a robbery, the offender is armed with any firearms or any offensive weapon or is

in company with any person so armed or at or immediately before or immediately after the robbery, the said offender wounds or uses any personal violence to any person. The Courts have held that the essential ingredients that the prosecution must prove in order to secure a conviction for armed robbery are (i) that there was indeed a robbery or series of robbery; (ii) that the robbers were armed with dangerous weapons; and (iii) that the accused defendant was the robber or one of the robbers – Osetola V. State (2012) 17 NWLR (pt. 1329) 251, Osuagwu V. State supra, Abiodun V. State (2013) 9 NWLR (pt. 1358) 138, Ajayi V. State supra.

(2014) 2 NWLR (Pt 1391) 298, Umar V. State (2014) 13 NWLR (pt. 1425) 497.

?A read through records of appeal shows that the Respondent relied on a confessional statement, the Hausa and English versions of which were tendered as Exhibits 8a and 8b, in proving the case against the Appellant and the Appellant was said to have made the confessional statement at the State CID. The records also show that the lower Court placed reliance on the said confessional statement to convict and sentence the Appellant. The records of appeal show that when the Respondent made to tender the confessional statement in the course of trial, Counsel to the Appellant objected to its admissibility on the ground of involuntariness and consequent on which the lower Court conducted a trial within trial. In his testimony in the trial within trial, the Appellant stated that he was subjected to serious beatings by the policemen at the State CID and he was forced to make the statement and what he told the policemen was not true and that on re-examination the Appellant stated that he did not give any statement to the Police at State CID. Again, in his oral testimony as the fourth defence

witness, the Appellant stated that he was forced to thumbprint the statement and that he did not know the contents of the statement.

The Appellant in the instant case denied ever making the statement, both when the statement was being tendered and in his oral evidence in his defence. The Appellant thus retracted the said confessional statement. It is settled law that where an accused person retracts his confessional statement, as the Appellant did in this case, what is required is that before a trial Court would believe and act on the confession it should subject the confessional statement to the following tests:<br< p=””

</br<

i. whether there is anything outside the confession which shows that it may be true:
ii. whether it is corroborated in any way;
iii. whether the relevant statements of facts made in it are mostly true as far as they can be tested;
iv. whether the defendant had the opportunity of committing the offence;
v. whether the confession is possible; and
vi. whether the alleged confession is consistent with other facts that have been ascertained and established.
See the cases of Osuagwu V. State (2009) 1 NWLR (Pt. 1123) 523, Kabiru V. Attorney General, Ogun State (2009) 5 NWLR (Pt 1134) 209, Nwokearu V. State (2010) 15 NWLR (pt 1215) 1 and Galadima V. State (2012) 18 NWLR (pt 1333) 610.

V. The State (1.976) 12 SC 63, Durugo Vs State (1992) 7 NWLR (Pt 255) 525. Corroborative evidence is evidence given by an independent witness which confirms in some material particular, not merely that the crime was committed, but that the crime was committed by the accused person – Omisade V. The Queen (1964) NSCC 170, Okabichi Vs State (1975) 3 SC 96, Ogugu Vs State (1994) 9 NWLR (pt 366) 1, Ogunbayo Vs The State (2007) 8 NWLR (pt 1035) 157. Thus, to amount to corroborative evidence, the independent evidence must corroborate the evidence in some respects material to the charge in question – Ezigbo Vs The State (2012) LPELR-7855 (SC).

Reading through the testimonies of all the prosecution witnesses, none of them led any independent evidence, outside the confessional statement, showing that the Appellant committed or participated in the commission of the crime leading up to the charge against him. The Appellant was not arrested at the scene of the crime and none of the eye witnesses positively identified him as one of the persons who took part in the robbery. None of the Investigating Police Officers also gave evidence outside the tendering of the

confessional statement implicating the Appellant in the commission of the offence.

There being no independent evidence outside the retracted confessional statement of the Appellant to verify the contents of the statement, the lower Court was wrong to have relied on it to convict and sentence the Appellant. It is for this reason that I too find merit in this appeal and hereby allow it. I hereby set aside the judgment of the High Court of Katsina State in Charge No KTH /27C/2002 delivered by Honorable Justice Sanusi Tukur on the 27th of April, 2012 and the sentenced passed thereon on the Appellant. I too order the discharge and acquittal of the Appellant.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: My learned brother Amina Audi Wambai JCA has extensively set out the facts and dealt with the issues that arise in this appeal. I am in total agreement with the reasonings and conclusion.

The doubts

thrown up in the prosecution’s case, I hold, should be resolved in favour of the Appellant.
?
I too find merit in this appeal, the conviction and sentence of death passed on the Appellant are accordingly set aside and the Appellant discharged and acquitted.

Appearances

Tundure U. Ede with him, Eric C. ApiaFor Appellant

AND

Abu Umar, SSC with him, M. S. Sheka, SC and M. U. Abdullahi, SCFor Respondent