ALIYU v. STATE (2022)

ALIYU v. STATE

(2022)LCN/16194(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, February 18, 2022

CA/K/471/C/2018

Before Our Lordships:

Fatima Omoro Akinbami Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

Between

ABDUSSALAM ALIYU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

THE DEFINITION OF “CONFESSION” AND RELEVANCE OF A CONFESSIONAL STATEMENT

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 an acknowledgment of crime by an accused person and includes any statement made by an accused person admitting or acknowledging the fact that he committed the offence for which he is charged. The statement must be clear, precise and unequivocal. See Section 28 of the Evidence Act 2011; Akpan v. The State (1990) NWLR (Pt. 160) 101; Gbadamosi v. The State (1991) 6 NWLR (Pt. 196) 182; Nweze v. The State (2017) LPELR – 42344 (SC).

A confessional statement is however relevant and admissible against the maker if it was voluntarily given and where its voluntariness is challenged, the prosecution has the onus of proving beyond reasonable doubt in a mini-trial called “Trial within Trial”, that it was voluntarily given.
Invariably, once an accused person challenges the voluntariness of a confessional statement the burden of proving affirmatively beyond reasonable doubt that it was given or made voluntarily is on the prosecution. See Auta v. State (1975) NWLR 60; Oseni v. The State (2012) LPELR–7833 (SC) Nwangbomu v. The State (1994) 2 SCNJ 107.
Except the prosecution discharges this duty the confessional statement cannot be admitted in evidence and the burden can only be discharged if the Court is satisfied beyond reasonable doubt that the confession was voluntarily made. See Nwangbomu v. The State(supra); Ojegele v. State (1988) 1 NWLR (Pt. 71) 414 Kure v. The State (2014) LPELR–23467 (CA). PER TALBA, J.C.A.

THE TEST FOR DETERMINING THE VERACITY OF A CONFESSIONAL STATEMENT

THE POSITION OF LAW ON THE EVALUTION OF EVIDENCE

In the course of evaluation of evidence, it is the totality of the evidence that has to be evaluated and assessed together. The trial Court cannot pick and choose the evidence to be assessed. Like in this instant case, the learned trial Judge assessed only the evidence elicited during cross-examination and he left the evidence of the Appellant during examination in Chief and that of PWA.
It is settled law that evaluation of evidence is within the exclusive competence of the trial Court. See Okoli Dim v. Isaac Enemuo (2009) 4 SC (Pt. 111) 48 Military Government of Lagos State & 4 Ors v. Adeyiga & 6 Ors (2012) 2 SC (Pt. 1) 68; Chief T. Okeowo v. Att-Gen of Ogun State (2010) 5-7 SC (Pt. 11)129 where a trial Court abdicates the sacred duty of evaluation of evidence and approbation of weight thereto after having the advantage of seeing and hearing the witness testify, then the burden shifts to the appellate Court to evaluate the evidence. In such situation, the appellate Court is in good position as the trial Court. Except where the credibility of the witness who testified is in issue. See Kamaldeen Toyin Fagbenro v. Ganyiyewhe Arobadi & Ors (2006) 2 SCNJ 326 and Osho v. Ade (1998) 6 SCNJ 150. PER TALBA, J.C.A.

THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

In the case of Israel Amos v. The State (2019) 1 NWLR (Pt. 1653) P. 206. The Supreme Court stated the ingredients of the offence of armed robbery. The Court held thus;
“By virtue of Section 2(1) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of the Nigeria 2004, the ingredients of armed robbery as established by numerous decided authorities of this Court are:-
1. There was a robbery or series of robberies
2. Each robbery was an armed robbery;
3. The accused committed or was one of those who took part in the robbery.
These elements have to co-exist and be established beyond reasonable doubt.” PER TALBA, J.C.A.
It is settled law that in criminal trials the burden of proving the guilt of an accused person rest on the prosecution which has to prove the case beyond reasonable doubt. Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubts or proof to the hilt. Therefore, if the evidence is strong against a person as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible” the case is proved beyond reasonable doubt. See Akinlolu v. State (2016) 2 NWLR (Pt. 1497) 503; Oseni v. State (2012) 5 NWLR (Pt. 1293) 35; Shehu v. State (2010) 8 NWLR (Pt. 1195 112; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395 at 413. But where there is any iota of doubt it must be resolved in favour of an accused. PER TALBA, J.C.A.

THE WAYS THE PROSECUTION CAN ESTABLISH THE GUILT OF AN ACCUSED PERSON
In order for an accused person to be entitled to the benefit of doubt, the doubt must be genuine and reasonable, arising from evidence before the Court. See The State v. Aibangbee (1988) 7 SC (Pt. 1) 96 at 132-133.

The commission of a crime can be proved by any of the following three ways thus;
1. By direct evidence of an eye witness
2. By confessional statement of the accused or
3. By circumstantial evidence
See State v. Gwangwan (2015) 63 NSCQR 1 at 45; Adeyemo v. State (2015) 62 NSCQR 176. PER TALBA, J.C.A.

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Katsina State High Court of Justice in charge No: KTH/DM/6C/2014 delivered on the 26th of January, 2017 Coram Hon. Justice I.B. Ahmed. The Appellant was convicted of armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act LFN 2010. He was sentenced to death by hanging. Being aggrieved by the decision, the Appellant appealed to this Court vide the Original notice of appeal filed on the 20th of November, 2017 pursuant to the leave granted by this Court on the 8th November, 2017. An amended Notice of appeal was filed on the 27th February, 2019 and deemed properly filed on 8th March, 2021. The amended notice of appeal contains eight (8) grounds of appeal.

The summary of the facts of the case is that on or about the 25th of July, 2013 the Appellant in company of three other suspects now at large, attacked one Abubakar Rabo with dane guns and sticks at a farm in Yantumaki town and robbed him of Forty-Seven (47) Cows belonging to the Chief Imam of Yantumaki Alhaji Ya’u Mamuda. At the trial Court, the Respondent called four (4) witnesses and tendered one (1) exhibit, the statement of the Appellant recorded in Hausa and the English version, admitted and marked as exhibits 1A and 1B respectively. Only the Appellant testified in his own defence. At the close of evidence and after adoption of final written address of counsel, the learned trial Judge in a considered judgment found the Appellant guilty as charged. He was convicted and sentenced to death by hanging hence this appeal.

At the hearing of this appeal on the 25th of November, 2021 Habeeb A. Oredola Esq. of counsel adopted the Appellants brief of argument filed on the 5th of September, 2019 and was deemed on the 8th of March, 2021. He also adopted the Appellants reply brief filed on the 12th of March, 2021. He urged the Court to allow the appeal and set aside the judgment of the lower Court. Equally A. A. Ibrahim the Director of Civil Litigation, Ministry of Justice, Katsina State, adopted the Respondent’s brief of argument filed on the 23rd of October, 2019 and it was deemed on the 8th of March, 2021. He urged the Court to dismiss the appeal and affirm the judgment of the lower Court.

From the eight (8) grounds of appeal the Appellant distilled six (6) issues for the determination of this appeal. These are:-
(1) Whether the lower Court applied the wrong principle of law when it admitted the confessional statements as a retracted extra-judicial confessional statement on one hand, and subsequently held in the final judgment that the retracted extra-judicial confessional statements are free and voluntary? (Ground 1).
(2) Whether the learned trial Judge breached the Appellant’s fundamental rights to fair hearing when he held that the confessional statements (Exhibits 1A & 1B) are voluntary without inviting the parties to address the Court before unilaterally resolving the issue in the judgment? (Ground 2)
(3) Whether the lower Court was right in holding that the retracted confessional statements is voluntary, without providing the reasons or evaluation of evidence in the judgment? (Ground 3).
(4) Whether the Extra-Judicial Statements in Exhibits 1A and 1B were properly admitted in evidence and utilized for the conviction and sentence of the Appellant in view of the failure of the learned trial Judge to apply the laid down test to determine the evidential weight to be attached to the confessional statements? (Ground 4 and 5).
(5) The lower Court held that the Prosecution failed to prove that the robbery was armed. Whether the lower Court occasioned a severe miscarriage of justice when the lower Court proceeded to convict the Appellant of “armed robbery” despite the unequivocal findings of the lower Court that the prosecution failed to prove that the robbery was armed. (Ground 6 and 7).
(6) Whether the decision of the trial Court ought to be set aside in view of the failure of the trial Court to properly evaluate the defence of the Appellant. (Ground 8).

The Respondent adopted the six (6) issues as formulated by the Appellant. This Court is at liberty and posses the power to accept, reject, or modify all or any of the issues formulated by the parties and frame its own issues or reframe the issues formulated by the parties if, in its view such issues will not lead to a proper determination of the appeal. The purpose of formulating issues for determination is to narrow the issues in controversy between the parties in the interest of accuracy, clarity and brevity to lead to more judicious and proper determination of an appeal.

It is in the light of the above settled principle of law that I will frame two issues upon which I shall determine this appeal thus:
(1) Whether in the circumstances of this case, exhibits 1A and 1B 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.

The submissions of counsel on the issues are contained in their respective briefs which forms part of the records in this appeal. It therefore obviate the need to reproduce the submissions verbatim. However, reference would be made where its found necessary.

The Appellants counsel contended that the lower Court erred fundamentally in law when in one breath it classified Exhibits 1A and 1B as retracted statements at the conclusion of trial within trial and in another breath the learned trial Judge referred to Exhibits 1A and 1B as being voluntary and true. He submitted that the rules governing admissibility of confessional statements has been established by the appellate Courts in a plethora of authorities. It is the standard practice that where a confessional statement is retracted, the question of voluntariness is not an issue for determination, rather the retracted confessional statement is to be admitted in evidence and the Court is only expected to determine the weight to be attached to such retracted statement. And where the voluntariness of a statement is challenged, the Court is under an obligation to conduct a trial within trial to determine if the confessional statement was made voluntarily. See Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395.

The learned counsel further submitted that consequent upon the erroneous holding by the lower Court that Exhibit 1A and 1B were retracted statement, the only question or issue to be determined by the lower Court at the end of the trial is the weight to be attached to the statement and not the issue of voluntariness. But the learned trial Judge suo moto raised the issue of voluntariness of the Exhibits and decided on the issue without evaluating or considering the circumstances in which the said Exhibits 1A and 1B were obtained from the Appellant. And that the decision of the trial Court was in breach of the Appellant’s fundamental rights to fair hearing and occasioned him gross miscarriage of justice.

The Respondent’s counsel submitted that the lower Court was right in holding that Exhibits 1A and 1B are free and voluntary same having been admitted after a trial within trial. And that the Appellant did not retract his statement at the point of tendering to warrant it to be out righty admitted for the Court to determine its weight at the final judgment, but the Appellant denied its voluntariness which called for trial within trial at the conclusion of which the statement was admitted in evidence. Learned counsel further submitted that the allegation of breach of fair hearing by the lower Court for holding that Exhibits 1A and 1B to be free and voluntary is bereft of any substance hence it was the Appellant that raised the issue of voluntariness when he objected to the admissibility of his statement for being involuntarily obtained against the provision of Section 29 of the Evidence Act and this called for a trial within trial.

Now it is crystal clear that at page 16 of the records line 3–4, the learned defence counsel objected to the admissibility of the statement wherein he stated thus: “I object to the admissibility of this statement as its contrary to Section 29 of the Evidence Act, 2011 and reject the statement in Evidence”. Consequently, the learned Prosecution counsel applied for a trial within trial.

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 an acknowledgment of crime by an accused person and includes any statement made by an accused person admitting or acknowledging the fact that he committed the offence for which he is charged. The statement must be clear, precise and unequivocal. See Section 28 of the Evidence Act 2011; Akpan v. The State (1990) NWLR (Pt. 160) 101; Gbadamosi v. The State (1991) 6 NWLR (Pt. 196) 182; Nweze v. The State (2017) LPELR – 42344 (SC).

A confessional statement is however relevant and admissible against the maker if it was voluntarily given and where its voluntariness is challenged, the prosecution has the onus of proving beyond reasonable doubt in a mini-trial called “Trial within Trial”, that it was voluntarily given.
Invariably, once an accused person challenges the voluntariness of a confessional statement the burden of proving affirmatively beyond reasonable doubt that it was given or made voluntarily is on the prosecution. See Auta v. State (1975) NWLR 60; Oseni v. The State (2012) LPELR–7833 (SC) Nwangbomu v. The State (1994) 2 SCNJ 107.
Except the prosecution discharges this duty the confessional statement cannot be admitted in evidence and the burden can only be discharged if the Court is satisfied beyond reasonable doubt that the confession was voluntarily made. See Nwangbomu v. The State(supra); Ojegele v. State (1988) 1 NWLR (Pt. 71) 414 Kure v. The State (2014) LPELR–23467 (CA).

After the close of evidence adduced by both parties at the trial within trial, the learned trial Judge admitted both the Hausa and the English translated version of the Appellants statement as Exhibits 1A and 1B respectively. The learned Appellant’s counsel contended that the learned trial Judge held that the Appellant’s alleged confessional statement were obtained voluntarily without relying on any shred of evidence or any justification. Admittedly, the law is that a Court of law, upon the review of the evidence placed before it, must make specific findings and give reasons for its decision. The Court has legal obligation in the determination of any issue canvassed before it or any evidence placed before it by disputing parties to expressly and clearly state the reasons for its views, findings or decisions on the issues without leaving its decision thereon to speculation or conjuncture. See Halilu Mohammad v. IGP (1970) NWLR 98; Stephen v. State (1986) 5 NWLR (Pt. 46) 978; Agbanelo v. UBN (2000) 7 NWLR (Pt. 666) 540; Ogboru & Anor v. Uduaghan & Ors (2012) LPELR–8287 (SC).

Undoubtedly the ruling of the learned trial Judge at pages 25–28 of the records is bereft of a sound reason for accepting that the statement is voluntary and true. The Appellants evidence in the trial within trial is that:
“… They then began to beat me while I was giving them the statement. They then forced me thumb to thumbprint the statement. As a result of the beating I confessed to the allegation. I was beaten on my head, toe and my back. That is all I know. It is not true that I gave my statement voluntarily as I was beaten by the police that is all I know”

However, the Appellant’s later evidence during cross-examination and re-examination that the statement is not his statement, would be better appreciated if it’s critically analysed. It reads thus:
“Cross-examination by Prosecution
Q: Where were you beaten?
Ans: I was beaten at the State CID.
Q: Who beat you?
Ans: It was one Samaila but do not know his rank
Q: Do you have any witness
Ans: I do not have any witness
Q: Your statement you gave to the police was to the effect that you and one Darda’u beat and robbed some of his cows is that correct?
Ans: That is not correct as I did not give that statement
Q: Would you then agree with me that the statement was not your statement?
Ans: Yes that is correct
11/2/2016
Re-examination
Q: What do you mean by saying that is not your statement?
Ans: I mean I did not give them the statement”
11/2/2016

Premised on the above questions and answer during cross-examination and re-examination the learned trial Judge held thus:

“Having gone through the proceedings in the TWT and having taken a closer look at the statement sought to be tendered, I have observed that the statement is a confessional statement bearing the Accused person name and that the statement was made at the State CID. The Prosecution in the cause of the TWT brought two witnesses who told the Court that the Statement was not only given by the Accused person but that it was voluntarily given. While the defence through their only witness and mentioned that the statement even though that of the Accused person was given under duress. The defence witness was the Accused person and when cross-examined at the end of the testimony as to whether he would agree that the statement sought to be tendered was not his statement he said that it was not his statement. Re-examined by his counsel what he meant by what he told the Court that by saying that it was not his statement witness told the Court that he meant that he did not give them the statement.
In view of the above and as the position of the law, the statement could still be tendered despite the objection and this Court would determine what weight to attach to same later in the Court judgment in the circumstance therefore the statement bearing the Accused person name and thumbprint in Hausa language and its English translation are accordingly admitted in evidence and same marked as Exhibit 1A and 1B respectively”

With due respect, the learned trial Judge failed to properly evaluate the evidence adduced before him at the trial within trial. And the situation has been compounded when in his judgment the learned trial Judge held thus:
“The proof of the third and final ingredient is from, the Accused person’s confessional statement which I hold to be free and voluntary since it went through a trial within trial prior to admitting same in evidence”

In this circumstance, I am in agreement with the submission of the Appellant’s counsel that the learned trial Judge had the obligation to have carefully considered the evidence adduced by the Appellant during the trial within trial before he can reach a far reaching conclusion that the confessional statements are free and voluntary, the lower Court refused to consider the testimony of the Appellant before it hurriedly reached a wrong conclusion that the statements were retracted, only for him to later summersault and hold that the alleged confessional statements are voluntary without providing any reason for his change of mind”.

It is crystal clear that in his ruling after the trial within trial, the learned trial Judge concluded that the Appellant retracted the confessional statement and so he admitted same in evidence with a view to determine what weight to attach to it later in the judgment. But at the conclusion of his judgment, the learned trial Judge held that the confessional statement is free and voluntary since it went through a trial within trial prior to admitting same in evidence. The learned trial Judge failed to test the veracity of the confessional statement. What the Appellant told the Court during trial within trial is that he was beaten by the police before he made the confessional statement. He was beaten at the State CID and that it was one Samaila who beat him but he does not know his rank. During cross-examination, the prosecution counsel specifically ask the Appellant thus; your statement you gave to the police was to the effect that you and one Darda’u beat and robbed some of his cows is that correct” and the Appellant answered thus; “that is not correct as I did not give that statement”. The learned prosecution counsel further asked the Appellant thus; “would you then agree with me that the statement was not your statement” and the Appellant answered thus; yes that is correct”. This cannot be said to be a retraction of the confessional statement. The Appellant had earlier stated that he made a confessional statement after he was beaten. Considering the circumstances of the fact that the Appellant being an illiterate he could not have retracted his confessional statement when he was emphatic that he was beaten to make a confessional statement.

The proper thing for the learned trial Judge to do was to test the veracity of the confessional statement. Now during trial within trial, PW4 Inspector Idris Ismaila who is PWA in the trial within trial, he told the Court that he recorded the statement of the Appellant. He said he was not alone when he recorded the statement as Inspector but now ASP Bala Adamu was around. See page 18 of the record. During cross-examination, he was asked by the defence counsel thus; “you were not the one that brought him from the cell” and he answered thus; “it was Bala Adamu that brought him from the cell to the investigation room”. He was further asked “what was Bala Adamu doing in the investigation room” and he answered thus; “he was only watching”. And when he was asked thus; “the presence of Bala Adamu was to ensure that you obtained confessional statement” (underline mine) and he answered thus; “yes that is correct”.

The learned trial Judge had an obligation to consider the Appellant’s objection to the admissibility of the confessional statement based on involuntariness and not a denial of making the confessional statement. Therefore he should have tested the voluntariness of the confessional statement. But instead, the learned trial Judge made a U-turn and admitted the confessional statement at the end of the trial within trial believing that the Appellant had denied the confessional statement during cross-examination and re-examination. If the learned trial Judge had properly evaluated the evidence adduced before him as a whole during the trial within trial, he would not have reached a wrong conclusion that the Appellant had denied the confessional statement. See COP v. Alozie (2017) LPELR – 41983 (SC). The Appellant clearly stated that he was forced to thumbprint. And the thumbprint of the Appellant is an acknowledgment of the fact that he is the author of the statement. But where the thumbprint is obtained by force, beating, inducement, threat or promise, it cannot be said that the statement was made voluntarily. See Saidu v. State (1982) 4 SC (Reprint) P. 26 One crucial point which the learned trial Judge should have considered is the fact that at the trial within trial PWA Inspector Idris Ismaila who recorded the statement, he was told during cross-examination that the presence of Bala Adamu was to ensure that he (PWA) obtained confessional statement. And PWA answered, yes that is correct. Therefore what it means is that the presence of Bala Adamu was to ensure that he (PWA) obtained not just a statement but a confessional statement. This singular fact is enough to agitate the mind of the learned trial Judge to subject the statement to the test of voluntariness.

The test for determining the truth or otherwise of a confessional statement is to seek for any other evidence be it slight of circumstances which make it probable that the confession is true. In doing so, the Court would consider the following:
(a) Whether the statement made in the confessional statement of fact so far as can be tested, is true.
(b) Whether the statement is corroborated.
(c) Whether the accused had the opportunity of committing the offence charged.
(e) Whether the confession of the accused person was possible and
(f) Whether the confession is consistent with other facts which have been ascertained and which have been proved.
See Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 at 460 (SC); Ikpasa v. A. G. Bendel State (1981) 9 SC 7.

In the course of evaluation of evidence, it is the totality of the evidence that has to be evaluated and assessed together. The trial Court cannot pick and choose the evidence to be assessed. Like in this instant case, the learned trial Judge assessed only the evidence elicited during cross-examination and he left the evidence of the Appellant during examination in Chief and that of PWA.
It is settled law that evaluation of evidence is within the exclusive competence of the trial Court. See Okoli Dim v. Isaac Enemuo (2009) 4 SC (Pt. 111) 48 Military Government of Lagos State & 4 Ors v. Adeyiga & 6 Ors (2012) 2 SC (Pt. 1) 68; Chief T. Okeowo v. Att-Gen of Ogun State (2010) 5-7 SC (Pt. 11)129 where a trial Court abdicates the sacred duty of evaluation of evidence and approbation of weight thereto after having the advantage of seeing and hearing the witness testify, then the burden shifts to the appellate Court to evaluate the evidence. In such situation, the appellate Court is in good position as the trial Court. Except where the credibility of the witness who testified is in issue. See Kamaldeen Toyin Fagbenro v. Ganyiyewhe Arobadi & Ors (2006) 2 SCNJ 326 and Osho v. Ade (1998) 6 SCNJ 150.

After a review of the totality of the evidence adduced at the trial within trial. I am of the view that Exhibits 1A and 1B were not properly admitted in evidence. Accordingly, therefore, issue one is resolved in favour of the Appellant.

The second issue is whether the learned trial Judge was right in holding that the Respondent proved its case beyond reasonable doubt against the Appellant. In the case of Israel Amos v. The State (2019) 1 NWLR (Pt. 1653) P. 206. The Supreme Court stated the ingredients of the offence of armed robbery. The Court held thus;
“By virtue of Section 2(1) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of the Nigeria 2004, the ingredients of armed robbery as established by numerous decided authorities of this Court are:-
1. There was a robbery or series of robberies
2. Each robbery was an armed robbery;
3. The accused committed or was one of those who took part in the robbery.
These elements have to co-exist and be established beyond reasonable doubt.”

It is settled law that in criminal trials the burden of proving the guilt of an accused person rest on the prosecution which has to prove the case beyond reasonable doubt. Proof beyond reasonable doubt means establishing the guilt of an accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubts or proof to the hilt. Therefore, if the evidence is strong against a person as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible” the case is proved beyond reasonable doubt. See Akinlolu v. State (2016) 2 NWLR (Pt. 1497) 503; Oseni v. State (2012) 5 NWLR (Pt. 1293) 35; Shehu v. State (2010) 8 NWLR (Pt. 1195 112; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395 at 413. But where there is any iota of doubt it must be resolved in favour of an accused.

In order for an accused person to be entitled to the benefit of doubt, the doubt must be genuine and reasonable, arising from evidence before the Court. See The State v. Aibangbee (1988) 7 SC (Pt. 1) 96 at 132-133.

The commission of a crime can be proved by any of the following three ways thus;
1. By direct evidence of an eye witness
2. By confessional statement of the accused or
3. By circumstantial evidence
See State v. Gwangwan (2015) 63 NSCQR 1 at 45; Adeyemo v. State (2015) 62 NSCQR 176. In this instant case, the prosecution called four witnesses to prove its case against the Appellant. And also tendered Exhibits 1A and 1B in evidence, the alleged confessional statement of the Appellant. Issue one was resolved in favour of the Appellant that Exhibits 1A and 1B were not properly admitted in evidence. Consequently, there is no confessional statement which the trial Court could rely on to convict the Appellant. The evidence of PW1 to PW4 is neither a direct evidence of an eye witness nor circumstantial evidence.

PW1 Alhaji Yaú Mamuda, 83 years old, he lives at Yantumaki. He is the Chief Imam of Yantumaki. He told the Court that:
“In July last year I was relaxing in my house when the caretaker of my cows came and informed me that my cows had been robbed from him. The name of the caretaker/rearer is Abu. 36 cows were robbed…”

Clearly, the evidence of PW1 is not a direct evidence of an eye witness and it does not qualify as circumstantial evidence. At best it is hearsay evidence.

PW2, Jamilu Yau, 26 years old, he is the son of PW1. He told the Court that;
“.. I can recall in July last year in the early hours of the morning when we wanted to take our sahur we discovered that our cows had been stolen and so I told my father that after morning prayers we would trace the foot prints of the cows and locate them..”
Similarly, PW2 is not an eye witness and his evidence does not qualify as circumstantial evidence. In fact, it is not even hearsay evidence, hence he only discovered in the morning that their cows had been stolen.

PW3, Abubakar Rabo, 40 years old. He lives at Yantumaki. He is the caretaker/rearer of the stolen cows that belong to PW1. The Appellant is also his neighbour and the son of his elder brother. He told the Court that:
“sometime last year thieves came to our place and took away our cows, warning me that if I shout they would shoot me. They then took away the cows. I was inside my room when it happened. Later I went to Abdulsalam (Accused) and informed him that our cows had been stolen. The accused is my neighbour but living in a different house. When I told the Accused person about the missing cows he did not say anything. I immediately informed the accused person because he is my immediate neighbour. That is all I know I and the accused person later informed the owner in the person of Alhaji Ya’u. I do not know the thieves who threatened to shoot me. When I informed the owner nothing happened”

During cross-examination, PW3 told the Court that it was in the night the thieves went and drove away the cows. And it was in the night he informed the accused person about the theft. Now, PW4 was in his room when the alleged robbery took place and he never saw the robbers. And immediately after the alleged robbery he informed the Appellant who is his immediate neighbour.

In his judgment while reviewing evidence of PW3, the learned trial judge held thus:
“On the second ingredient that the robbery was an armed robbery, I refer to the testimony of PW3 who told the Court that a group of five persons met him and threatened to shoot him if he resisted them to take away the cows he was rearing and under his custody. Here the witness did not say he saw the gun with which he was threatened who among the robbers held the gun and finally whether the said gun or any other weapon was recovered and if so tender same before the Court. A witness cannot come to Court and say something for nothing and expect the Court to believe in what he said. PW3 told the Court that he was threatened with a gun but did not say he saw the gun and who among the robbers was holding the gun or where the robbers or any of the robbers was caught with the gun. Finally, on this ingredient the gun or the weapon was not tendered before the Court. In the circumstance therefore I hold the view that this ingredient (2nd ingredient) has not been proved.”

Now even though the learned trial judge held that the second ingredient of the offence of armed robbery could not be proved on the strength of the evidence of PW3. Yet it is necessary to state that a trial Court must rely on the evidence adduced before the Court. The Court must deal with the evidence of the witness verbatim. The Court cannot change the evidence by stating what is not contained therein or by giving a different interpretation to what the witness said in open Court. The evidence of PW3 is contained at page 11 of the printed record, which I had earlier reproduced. For the sake of emphasis I will reproduce some relevant portion wherein he stated thus:
“Sometime last year thieves came our place and took away our cows, warming me that if I shouted they would shoot me, they then took away the cows. I was inside my room when it happened. Later I went to Abdulsalam (Accused) and informed him that our cows had been stolen…”

It is crystal clear that PW3 never said that a group of five persons met him and threatened to shoot him if he resisted them to take away the cows. And he did not mention anything like a gun or any similar weapon. He just said thieves came to our place and took away our cows warning me that if I shouted they would shoot me, they then took away the cows. He even said he was inside his room when it happened. There is nothing like a group of five persons or a gun used to threaten PW3. At page 61 lines 10-12 of the printed record, the learned trial Judge stated that “I still refer to the testimony of PW3 who once again told the Court that he was threatened with a gun and the cows were carted away from him…”

The learned trial Judge either he imported this statement or it could be his own imagination. PW4 is the investigating police officer, he recorded the statement of the Appellant and he told the Court that apart from recording the statement of the accused person he did not do any other thing. See page 30 lines 6-8 of the printed record.

In this instant case after concluding that the second ingredient of the offence of armed robbery could not be proved, the learned trial Judge summersaulted relying on Exhibits 1A and 1B and he held that the Appellant participated in the robbery and was armed thereby proving the 3rd ingredient. And he found the Appellant guilty of the offence charged. The learned trial Judge failed to evaluate and asses the respective versions of the evidence led by the prosecution and he erroneously in my view concluded that the ingredients of armed robbery have been proved. There was no evidence before the learned trial Judge which could enable him to reach such a conclusion. It is settled law that it is better to set one hundred guilty persons free than to convict one innocent person. A judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence which the facts lead to conviction as clearly found and the legal deductions there upon carefully made. It must not be allowed to stand if it is founded upon scraggy reasoning or perfunctory. It is so in all cases and more so in capital offences such as armed robbery or culpable homicide.

See Anekwe v. State (2014) 10 NWLR (Pt. 1415) 353.

Upon a careful perusal of the entire judgment, I could not find where the learned trial Judge made a finding that the prosecution had proved its case beyond reasonable doubt. I do believe that the failure to make such a mandatory finding before conviction is due to the quality of evidence presented before the trial Court.

The second issue is equally resolved in favour of the Appellant. The conclusion is inescapable that the appeal is meritorious. And consequently, the judgment of Katsina State High Court delivered on the 26th of January, 2017 is hereby set aside. The conviction and sentence of the Appellant is quashed. The Appellant is discharged and acquitted.

FATIMA OMORO AKINBAMI, J.C.A.: I had the privilege of reading in advance, the judgment of my learned brother Abubakar Mahmud Talba, JCA. He has dealt in great detail with all the issues raised in the appeal, and I agree with his reasoning and conclusions in the lead judgment. I have nothing useful to add, therefore adopt the judgment as mine.

PETER OYINKENIMIEMI AFFEN, J.C.A.: My learned brother, ABUBAKAR MAHMUD TALBA, JCA obliged me with a draft of the leading judgment just delivered, and I had the advantage of reading it before now.

Following the Appellant’s objection to the voluntariness of his extrajudicial statement, the trial Court conducted a trial within trial whereat the Appellant testified: “…They then began to beat me while I was giving them the statement. They then forced me thumb to thumbprint the statement. As a result of the beating I confessed to the allegation. I was beaten on my head, toe and my back. That is all I know. It is not true that I gave my statement voluntarily as I was beaten by the police that is all I know”. Under cross-examination, the Appellant identified one Samaila as the beater; and when asked if he would then agree that the statement was not his own, the Appellant answered: “That is correct”. Based on the foregoing, the lower Court admitted the Hausa and English versions of the statement as Exhibits 1A/1B, insisting that “the statement could still be tendered despite the objection and this Court would determine what weight to attach to same later in the Court judgment.”

Curiously however, the lower Court held in its final judgment that: “The proof of the third and final ingredient is from, the Accused persons confessional statement which I hold to be free and voluntary since if went through a trial within trial prior to admitting same in evidence”. I reckon that since the extra judicial statement was not admitted because it was found to have been made voluntarily but because the Appellant disowned it under cross-examination, the lower Court cannot validly rely on the said statement as establishing the third ingredient of armed robbery without first subjecting the statement to evaluation with a view to determining what weight (if any) to attach to it. This is particularly disturbing as the lower Court had earlier found that the second ingredient of the offence charged (i.e. that the robbery was an armed robbery) could not be proved on the strength of the testimonial evidence of PW3.

There is no gainsaying that a confessional statement is a potent tool in the arsenal of a prosecutor for proving a charge. A free and voluntary confession of guilt made by an accused person, if direct and positive, is sufficient to warrant his conviction without any corroborative evidence insofar as the Court has no reservations as to the truth of the confession. See YESUFU v STATE (1976) 6 SC 167 at 173, IDOWU v STATE (2000) 7 SC (PT II) 50 at 62 – 63, NSOFOR v STATE [2004] 18 NWLR (PT 905) 292, NWACHUKWU v STATE [2004] 17 NWLR (PT. 902) 262, OGOALA v STATE (1991) 3 SC 80 at 88, ADEYEMI v STATE (1991) 7 SC (PT II) 1 at 48, AKPAN v STATE [1990] 7 NWLR (PT 160) 701 and OMOJU v F. R. N. [2008] 7 NWLR (PT. 1085) 38 amongst a host of other cases.

The law is equally settled beyond peradventure that the retraction of a confessional statement or denial by an accused person that he made the statement does not ipso facto render the statement inadmissible in evidence. See ALARAPE v STATE [2007] 14 WRN 1 at 20, KAREEM v FRN [2001] 49 WRN 97 at 111, OBISI v CHIEF OF NAVAL STAFF [2002] 19 WRN 26 at 38 – 39 and EGBOGHONOME v THE STATE [1993] 7 NWLR (PT 306) 383 at 341.

The mere fact that a confessional statement is retracted by an accused person does not preclude the Court from acting on the basis of the retracted statement. See IKEMSON v THE STATE supra at 455 at 468-469, NWACHUKWU v THE STATE (2007) 12 SCM 447 at 455 and SHANDE v STATE (2005) 22 NSCQR (PT. 2) 756. The Court can convict on the basis of a retracted confessional statement: MANU GALADIMA v THE STATE (2013) 14 MRSCJ at 81 & 82. It is for the trial Court to take the retraction into consideration in determining the forensic utility of, or weight to be attached to, the confessional statement.

The test to be applied in this regard, as laid down in the case of R v SYKES (1913) 8 Cr. App. R. 233 which was approved by the West African Court of Appeal in KANU v THE KING (1952/55) 14 WACA 30 and followed in a long line of cases, is that a trial Judge confronted with a retracted confessional statement should ask himself the following pertinent queries: (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 crime? (v) Is his confession possible? and (vi) Is it consistent with other facts which have been ascertained and proved? See AKPAN v THE STATE [1992] 6 NWLR (PT. 248) 439 at 460 (SC) and IKPASA v ATTORNEY-GENERAL, BENDEL STATE (1981) 9 SC 7. If the confessional statement passes these tests satisfactorily, a conviction founded on it would invariably be upheld unless other grounds of objection exist; but if the confessional statement fails these tests, no conviction can properly be founded on it. See IKPO v STATE (2016) LPELR-40114 (SC), ACHABUA v STATE (1976) NSCC 74 and GABRIEL v STATE [2010] 6 NWLR (PT. 1190) 280 at 290.

Too often however, some trial Courts are quick to act upon retracted confessional statements admitted in evidence after aborting a trial-within-trial (on the basis that accused persons denied making them) without subjecting such statements to evaluation and merciless scrutiny along with other documentary and testimonial evidence put forward by the parties to ascertain the weight to ascribe to it. The proposition that ‘admissibility of an extrajudicial statement is one thing and the forensic utility or weight it attracts is another thing’ is often lost in many a criminal trial, thereby occasioning miscarriage of justice. That is the ugly scenario we are confronted with in the trial that generated the instant appeal. The Appellant’s conviction ought not to be allowed to stand.

In the light of the foregoing and the fuller reasons articulated in the leading judgment, this appeal is merit-laden and ought to be allowed. I allow it. The judgment of the High Court of Katsina State delivered on 26th January 2017 (embodying the Appellant’s conviction and sentence of the offence of armed robbery) is set aside. The Appellant, ABDULSALAM ALIYU is hereby discharged and acquitted.

Appearances:

Habeeb A. Oredola, Esq., with him, Abdul Hakeem Audu and S. D. Fabong, Esq. For Appellant(s)

A. A. Ibrahim DCL, Esq., with him, I. D. Baked SC (MOJ), Katsina State. For Respondent(s)