BASIRU MOHAMMED v. THE STATE
(2010)LCN/3814(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of May, 2010
CA/S/155/C/2009
RATIO
EVIDENCE: MEANING OF CONFESSIONAL STATEMENT AND EFFECT OF ITS ADMISSIBILITY
Section 27 (1) of the Evidence Act, defines confessional statement as an admission made at anytime by a person charged with commission of a crime, stating or suggesting the inference that he committed the crime in question. It could be an extra judicial statement made by the accused person to the police containing an assertion or admission of guilt and showing that he participated in and is culpable for the commission of the offence for which he has been charged. See Gira v. The State (1996) 4 NWLR (Pt. 443) 374; Liya v. The State (1998) 2 NWLR (Pt. 538) 397; Saidu v. The State (1982) 4 SC 41. Once a confessional statement is admitted in evidence and it is unchallenged, it forms part of the case for the prosecution and the trial court is bound to consider its weight and probative value to be attached thereto. See Nwangbomu v. The State (1994) 2 NWLR (Pt. 327) 380; Ekpe v. The State (1994) 9 NWLR (Pt. 368) 263. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
CRIMINAL LAW: WHAT CONSTITUTES THE OBJECT OF A CHARGE
The object of a charge in a criminal proceeding includes making an accused person to be fully aware of the case he is confronting in court and entails specification or particularization of the essential ingredients of the offence in question. Thus, if the charge states that “A” was the victim of a violent crime and in the course of trial, “B” surfaces as the victim, then something, is surely amiss. It should also be realized that, there is more to a name than it’s being a mere cognomen. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
WORDS AND PHRASES: MEANING OF A NAME
Name means, “a word or phrase identifying or designating a person or thing and distinguishing that person or others.” See Black’s Law Dictionary 8th Edition P.1048. It depicts the epicenter and essence of an individual’s being. Thus, the unmistaken identity of a man, in addition to his physiognomy, is depicted and embedded in his name, among others. It further differentiates one human being from the other and also affords ready identification and recognition. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
EVIDENCE: WHETHER BRIEF OF ARGUMENT CAN REPLACE EVIDENCE
The position is settled that written address or brief of argument cannot and should not be used as a medium to supply missing links or evidence which ought to have been properly adduced and placed before the trial court by the prosecution. Thus, the attempt by the learned counsel for the Respondent to do this and also challenge the record of appeal in a manner other than the one stipulated by law, is worrisome, unhelpful and uncalled for. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
BASIRU MOHAMMED Appellant(s)
AND
THE STATE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was convicted and sentenced to death by the High Court, Sokoto, Sokoto State, whereat he was arraigned on a two count charge of conspiracy and armed robbery.
The said charge reads thus :-
“That you Basiru Mohammed on or about the 7th day of March, 2006 at about 20:30hrs at Gidan Dare, along Western By-pass in Sokoto South Local Government Area, within the Sokoto Judicial Division, agreed to do an illegal act, to wit attacking and robbing one Mansur Altine of Kwanni Area and you thereby committed an offence punishable under Section 5(b) of the Robbery and Firearms (Special Provisions) Act Cap. 398 LFN, 1990.
That you Basiru Mohammed on or about the 7h day of March, 2006 at about 20:30hrs at Gidan Dare along Western Bypass in Sokoto South Local Government Area within the Sokoto Judicial Division, did commit the offence of armed robbery to wit; you attacked one Mansur Altine with a knife, cut his throat and forcefully collected his motorcycle (Honda Super Cub with Reg. No. AF 454 SKK valued at N90,000.00) from him, and thereby committed an offence punishable under Section 1(2) of the Robbery and Firearms (Special Provisions) Act Cap. 398 LFN, 1990.
The Appellant pleaded not guilty to the charge. The Respondent as the prosecution in a bid to prove its case, called four prosecution witnesses and tendered three exhibits, namely; Exhibit A- Suzuki Super Cub Motorcycle with Chassis No.050/9781273. Exhibit B – Appellant’s written statement under caution in Hausa Language dated 10th March, 2006 and Exhibit Bl – English Language translation of Exhibit B.
The charge/case against the Appellant was that on 7th March, 2006, he conspired, and while armed with a knife – an offensive weapon, attacked and robbed, “one Mansur Altine” and “forcefully” snatched his motorcycle, “Honda Super Cub with Reg. No. AF 454 SKK valued at N90,000.00”. Exhibit A, was tendered and admitted in evidence through PW1 – Sgt. Ahmed Bala, Force No. 151432, Police Exhibit Keeper. PW2 who gave his name as Mansur Muhammed narrated how the Appellant attacked him, inflicted injury on his neck with a knife and stole his Honda dark green motor cycle with Reg. No. QF 454 SKK. PW3 – Cpl. Fredrick Agbu, Force No. 209572 testified regarding how he took one Mansur Altine to the hospital for treatment and also recorded the statement of the Appellant under caution. PW4 – Sgt. Ibrahim Shuaibu, Force No. 146091 gave his testimony on the roles which he played in the course of his investigation into the case against the Appellant and how he also recorded another statement under caution from the Appellant. Exhibits B and B1 were tendered through PW4.
At the close of trial, learned counsel for the parties addressed the trial court. The learned trial judge, Hon. Justice M.U. Dogon Daji, in his judgment delivered on 28th January, 2008, found the Appellant guilty on both counts as charged, convicted and sentenced him to death by hanging. The Appellant was aggrieved by this decision and hence the instant appeal to this Court, filed on 15th February, 2008 with a sole ground of appeal. The Appellant with leave of this Court, sought and obtained on 6th October, 2009 also filed an amended notice containing two additional grounds of appeal.
In compliance with requisite rules of court, briefs of arguments were duly filed and exchanged. In the Appellant’s brief, prepared by Ebenezer Obeya Esq., the sole issue proposed for determination of this appeal was, “whether the charge of conspiracy and armed robbery was proved beyond reasonable doubt.” In the Respondent’s brief, prepared by Mrs. Aisha Mohammed Dantsoho, State Counsel 1, Ministry of Justice, Sokoto, two issues were formulated as arising for determination in this appeal. They are:-
1. Whether the court erred in law in holding the charge of conspiracy as proved beyond reasonable doubt
2. Whether from totality evidence, the charge of armed robbery was proved beyond reasonable doubt, (sic)
From my end, the issues formulated by the Appellant and Respondent, more or less raised the same point – whether or not, the prosecution proved its case beyond reasonable doubt. Howbeit, after I have given a thorough look at the complaints in Appellant’s grounds of appeal inclusive of the particulars, I am of the humble viewpoint that the gravamen of the complaints in this appeal can be encapsulated thus:-
“Whether the trial court properly evaluated the evidence adduced before it and rightly regarded Exhibit B1 as confessional, before finding and holding that the Respondent proved its case beyond reasonable doubt and subsequently convicting the Appellant thereon.”
Arguing the issue as reframed above, the learned counsel for the Appellant contended that the counts of conspiracy to commit robbery and committing armed robbery were not proved beyond reasonable doubt as required by law. It was recalled that the learned defence counsel submitted before the trial court that the charge of conspiracy was not proved and the prosecution conceded the point. Referring to Section 11(1) and (2) of the Evidence Act and citing Abdullahi v. The State (2008) 17 NWLR (Pt. 1115) 203, it was then submitted that the learned trial judge was wrong when he accepted, placed heavy reliance on Exhibit B1 and found the Appellant guilty as charged. According to the learned Appellant’s counsel, this is moreso, when the evidence of PW2 – Mansur Muhammed, the alleged victim and only eye witness to the robbery is grossly at variance with Exhibit B1 and testimony of the Appellant as DW1. It was exemplified that, while PW2 maintained that he was attacked and robbed by one attacker, Exhibit B1 stated that there were two attackers. Furthermore, that in Exhibit B1, the involvement of the so – called co – conspirator was very physical at the point of the alleged robbery and as such there was no way, the alleged victim would have forgotten such an involvement. Again, that if the evidence of the victim contradicts the facts of the robbery itself as stated in Exhibit B1, then less reliance should have been placed on it by the trial court as it relates to the planning of the alleged robbery. It was added that the doubt raised ought to have been resolved in favour of the Appellant.
On the second count of armed robbery, reference was made by the learned counsel for the Appellant to the ingredients of the offence as restated in Abdullahi v. The State, (supra) with the submission that nothing in the gamut of evidence adduced by the prosecution, established any of the ingredients, talk less of the same, having been done beyond reasonable doubt. It was argued by the learned counsel for the Appellant in another submission, that there was no credible evidence outside the confessional statement which linked the Appellant to the offences charged and as such, Exhibit B1 failed the tests laid down in Isah v. The State (2007) 12 NWLR (Pt. 1049) 582/591, in assessing the quality of a confessional statement, be it retracted or otherwise.
We were invited in the given circumstances and facts of this appeal, to re-evaluate the evidence and urged to hold that the Respondent herein failed to prove beyond reasonable doubt that the offences alleged in Charge No. SS/50C/06 were committed by the Appellant. We were then urged to allow the appeal and quash the conviction and sentence imposed on the Appellant by the trial court.
On this issue, learned State Counsel 1 for the Respondent submitted that it is now established that common intention in criminal law need not be provable only by agreement of the accused persons, as it may be inferred from circumstances described in the evidence led before the court and that once the execution of common intention or design is established, the court would be right in finding that it did not matter on such facts, what each of the accused persons did. The cases of Jimoh Michael v. The State (2008) 3 NCC 669; Ubeirho v. The State (2005) 1 NCC 148 and Oyakhire v. The State (2006) 15 NWLR (Pt. 1001) 162 were cited in support of the submission being made. It was then countered that Section 11 of the Evidence Act, referred to and relied upon by the Appellant’s counsel is inapplicable in this case, as Exhibit B1 binds only the Appellant who is the maker and none other.
Citing the cases of Bolanle v. The State (2005) 1 NCC 345 and Fatai Olayinka v. The State (2007) 2 NCC 512, learned counsel for the Respondent stated that the ingredients of the offence of armed robbery are:-
“1. That there must be a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was one of those who took part in the armed robbery.”
Also, citing Fatai Olayinka v. The State (supra); Saburi Adebayo v. Attorney-General Ogun State (2008) 3 NCC 309 and Abduliahi v. The State (2008) 3 NCC 551, learned Respondent’s counsel submitted that the first ingredient of the offence charged was established through the evidence of PW2, the victim, “and the only eye witness, who saw and suffered from it and whose evidence need no corroboration to secure conviction.” It was further submitted that the Respondent also established the second and third ingredients through the evidence of PW2, PW3, PW4 and Exhibit B1, and despite Appellant’s retraction therefrom, that reliance can still be placed thereon by the trial court. Again the cases of Nwachukwu v. The State (2008) 3 NCC 109; Ubeirho v. The State (supra) and Dibie v. The State (2008) 2 NCC 482 were cited in support of this submission. Furthermore, that the contention of Appellant’s counsel that Exhibit B1 failed the tests in Haruna Isah v. The State (2008) 3 NCC 482 is misconceived. Learned Respondent’s counsel answered in the affirmative to the question: “if Exhibit B1 is expunged can the conviction stand?”
In another vein, the learned counsel for the Respondent submitted with regards to Exhibit A, the motor cycle that, the prosecution tendered a Honda Super Cub, (dark green) and not a Suzuki Super Cub. That it should be noted that the particular brand of Honda is only known as a Super Cub and there is no brand of Super Cub for the Suzuki brand. It was further submitted that the use of Suzuki is a recording defect of the trial court or the typist as there are many errors in the record of proceedings and this is one of them. Again, that the Court used Suzuki at pages 19, 45 and 53 of the record of appeal, instead of a Honda Super Cub. Reference was made to the case of Oyakhire v. State (supra) where it was held that:-
“Where there are defects in a trial Court recording of its proceedings, it would only be fatal to the trial and its subsequent decision if it leads to a miscarriage of justice.”
And as such, that Exhibit A did not lead to a miscarriage of justice in this matter.
It was then submitted in conclusion that from the facts inferred from the circumstances and facts of this case, the charge of conspiracy was rightly proved and that the prosecution has proved its case beyond reasonable doubt. We were also urged to dismiss the appeal and uphold the judgment of the trial court convicting the Appellant on the charges of conspiracy and armed robbery contrary to Section 5(b) and Section 2(1) of the Robbery and Firearms Act, Cap 398 Laws of Federation of Nigeria, 1990.
Learned counsel for the Appellant referred to the position of this Court in Chukwu v. Nneji (1990) 6 NWLR (Pt.156) 363/368 on the rule governing re-evaluation of evidence by an appellate court and more or less invited us to do exactly that in this appeal. Basically, the assessment of the credibility of a witness and ascription of probative value to the evidence adduced, are matters within the province of the learned trial judge, since he has the singular advantage of seeing, watching and observing the demeanour of the witnesses in the witness box. Howbeit, where the learned trial judge has made an imperfect or improper use of this golden opportunity or where the question to be determined by an appellate court is the necessary inference to be drawn from admitted or uncontested facts, an appellate court can also evaluate evidence from the printed record.
It is to be noted that evaluation of evidence demands that the evidence adduced by both parties be assessed and weighed so as to give probative value or quality to it. Hence, the mere recital of the evidence adduced without more is inadequate and not in tandem with assessment and evaluation of such evidence. Expressions such as, “I believe,” “I do not believe” or that a witness is, “a witness of truth” without the record showing how the court arrived at its conclusion and preferring one piece of evidence to the other will definitely fall short of the required procedural standard and requirement in this regard. See Alake v. The State (1992) 9 NWLR (Pt. 265) 260.
Consequently, when evidence has been wrongly admitted, it does not qualify as a legal evidence and the court has a duty to expunge it from the record. Such evidence should be regarded as if it had not been adduced or tendered and admitted. The court cannot rely on it in reaching its ultimate decision. Indeed, any finding or decision based on such inadmissible evidence would be perverse and an appellate court faced with such a situation has a duty to intervene. See Agbaje v. Adigun (1993) 1 NWLR (Pt. 269) 261/272. Thus, the law is settled that when a finding of fact is predicated on inadmissible evidence, be it oral or documentary, that an appellate court has a duty to intervene therewith and set it aside. See Asanya v. The State (1991) NWLR (Pt. 180) 422; The State v. Emine (1992) 7 NWLR (Pt. 256) 658.
Now, what is the position in the instant appeal, wherein the Appellant was convicted and sentenced to death for conspiracy and armed robbery? Firstly, Section 5 (a) and (b) of the Robbery and Firearms (Special Provisions) Act provides as follows:-
“5. Any person who –
(a) aids, counsels, abets or procures any person to commit an offence under section 1, 2, 3, or 4 of this Act; or
(b) conspires with any person to commit such an offence, whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act”
Similarly, Section 1 (1) and (2), (a) and (b) of the same provides as follows:
“1. (1) Any person who commits the offence of robbery shall upon trial and conviction under this Act, be sentenced to imprisonment for not less than twenty – one years.
(2) If-
(a) any offender mentioned in subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed; or
(b) at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person,
the offender shall be liable upon conviction under this Act to be sentenced to death.”
The questions inter alia in the instant appeal are whether there was a robbery? If there was one, the next question will be to determine who was robbed and by whom? Put differently, can it be rightly said that the Appellant herein robbed or participated in the robbery in which PW2 was the victim? If the identity of PW2 is ascertained and the Appellant committed or participated in the robbery, that is enough to make him culpable therefor.
In this case, the learned trial judge, in addition to the testimony of witnesses adduced before him, placed much reliance on Exhibit B1 in convicting the Appellant on the first count of conspiracy. Regarding Exhibit B1 – Appellant’s confessional statement, the learned trial judge accepted it as such and stated at pages 53 and 54 of the record as follows :-
The confessional statement of the accused person to the police was admitted in evidence in this case as exhibit B and B1. It is the accused person himself in his confessional statement exhibit B and B1 that made mention of his co-accused is:
Yahaya Maiwake whom now at Large. The accused person described how is concern with the said Yahaya Maiwake used actual violence against PW2 the complainant in this case and forcefully collected his motorcycle. Suzuki super cub by injuring PW2 on his neck with a knife. I’m of the opinion that the confessional statement of the accused is very direct and positive and can use convict him even in the absence of any corroborative evidence. See the case Adebayo v. Attorney-General Ogun State (2006) 39 WRN 84….
On the issue of conspiracy this court is of the view that based on the confessional statement of the accused person contained in Exhibit B and B1 after corroborative evidence like the testimony of PW3 and exhibit A the charge of conspiracy to commit armed robbery in prove beyond reasonable doubt against the accused person and I so hold, (sic)
I will say my piece on Exhibit B1 anon.
On the first ingredient of the offence of armed robbery and whether it has been proved beyond reasonable doubt, vis-a-vis the discrepancy in the name of PW2 as contained in the charge and in his testimony before the trial court, the learned trial judge reasoned and found at pages 55 and 56 of the record as follows :-
“…now coming back to the 1st ingredient of the offence of armed robbery, we have the evidence of PW2 who gave his evidence as Mansur Muhammed even though his name appeared in the charge as Mansur Altine. PW2 is the victim of the alleged armed robbery. He narrated to this court in sequence how the robbery took place, he equally identified the accused person as his assailant PW2 stated in his evidence in chief that he knew the accused person before the incident only that at that time he don’t know his name. I observed PW2 while testifying before this court and I’m satisfied that he is a witness of truth and I entirely agreed with his evidence as the true account of what happened on the 7th of March, 2006. As to the discrepancy in the name of PW2 I’m of the opinion that is a mere discrepancy which does not touch on the substance of the charge against the accused person. The fact that PW2 gave his name to the police when writing his statement as Mansur Altine and gave his name Mansur Muh’d while testifying in court did not make his evidence unreliable. The disparity in the names to my mind is not as to create doubt in the mind of this court as to the identity of the witness PW2. PW2 gave his name to the police as Mansur Altine, the name that was used in the charge in this case and while testifying before this court still maintained his first name by stating to the court that his name is Mansur Muh’d. …. I’m of the view that going by the evidence of PW2, PW3 and exhibits A, B and B1 a robbery against PW2 can clearly be said to be committed on the 7th of March 2006 at Gidan Dare near Bafarawa flour Mill The 1st ingredient. The offence is therefore proved beyond reasonable doubt, (sic)
Similarly, on the second ingredient, the learned trial judge reasoned and stated at pages 56 – 57 of the record thus :-
On the second ingredient i.e. that the robbery was an armed robbery. On this I will resort to the evidence or PW2 the victim of the alleged offence, PW2 in his evidence before this court stated how the accused person snatched his motorcycle after a struggle and how he later found out he sustained injuries on his neck…From the evidence of PW2 it is clear that the accused person was armed with a knife at the time of the commission of the offences.
He was not only in possession of the knife he even used it to inflict injury on the neck of PW2. This is bone out from the evidence of PW3, the police officer who took PW2 to hospital for treatment after the incident. This fact is also strengthened by the confessional statement of the accused person who stated in exhibit B and B1 how his accomplice used a knife on the neck of PW2. It is therefore the finding of this court that based on the evidence of PW2, PW3 and exhibit B and B1 the 2nd ingredient of the offence of armed robbery i.e. the robbery was an armed robbery is proved beyond reasonable doubt by the prosecution and I so hold.” (sic)
Again, on the third ingredient, the learned trial judge also found and pronounced at pages 58 – 59 of the record thus:-
On the 3rd Ingredient of the offence i.e. that the accused was one of those who took part in the armed robbery. Looking clearly at the evidence of PW2 which is lucid and credible and which is not even subjected to any cross-examination by the defence counsel, the evidence of PW3, the police officer who effected the arrest of the accused person at Tunga Village and also the confessional statement of the accused person, one will be less with no doubt that accused person Bashiru Muh’d participated in the robbery against PW2 on the 7th of March, 2006. PW2 stated in his evidence how the accused person requested him to convey him to a village called Bakin Kusu along Bafarawa flour Mill and how on their way back from that village the accused pushed him down used a knife to inflict injury on his neck and went away with his motorcycle Honda super cub admitted in evidence as exhibit A. This fact is corroborated by exhibit B and B1 the confessional statement of the accused person. Based on the above findings I’m satisfied that the accused person was one of those that participated in the armed robbery against PW2 and I so hold.
Therefore the 3rd ingredient of the offence of armed robbery is proved beyond reasonable doubt by the prosecution against the accused person.”(sic)
And the learned trial judge concluded at page 62 of the record thus :-
“After carefully considering the evidence of the accused in court, the evidence of PW2 and of PW3, Exhibit A, B and B1, I’m satisfied that the accused person made the confessional statement exhibit B and B1 respectively and this court can convict on it however it is desirable to have some evidence outside the confession which will make it probable that it is true. In the present case the evidence of PW2, PW3 provided just that” (sic)
It needs no restating that in criminal proceedings, the prosecution has the bounden duty which invariably does not shift, to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. Additionally, the standard of proof remains one which is beyond reasonable doubt. Thus, if there is any element of doubt with regards to any of the ingredients; then the law is settled that the doubt will be resolved in favour of the accused person. Every single fact which constitutes the offence with which the accused person was charged, must be proved beyond reasonable doubt. See Nweke v. The State (2001) 4 NWLR (Pt.704) 588 and Hassan v. The State (2001) 6 NWLR (Pt. 709) 286.
Indeed, where doubt has been created or raised in the case of the prosecution and the same has not been dislodged, dispelled, explained, rationalized or reconciled by the prosecution and the trial court failed to resolve this issue, the doubt has to be resolved in favour of the accused person. See Akpan v. The State (1994) 9 NWLR (Pt. 368) 347 and Oguntoba v. The State (1996) 2 NWLR (Pt.432) 503.
Ingredients of the offence of conspiracy are well established. They are :-
(i) That there is an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means.
(ii) That the accused person participated in the conspiracy at any point in time.
There can be no conspiracy unless it is established that at least two persons conspire. See Wambai v. Kano N.A. (1965) NWLR 15. An offence of conspiracy can be committed where persons have acted either by agreement or in concert. Thus, bare agreement to commit an offence is sufficient, while the actual commission of the offence is not essential. Invariably, evidence of conspiracy is usually obtained from one of the co-conspirators or from necessary inferences drawn from things done towards a common goal or by the carrying out of planned and premeditated common purpose, intention or set out goals. See Njovens & Ors. v. The State (1973) NNLR 76.
It can be seen from Section 5(b) of the Robbery and Firearms (Special Provisions) Act quoted above, that the conspiracy must be with “any person” and it is obvious that this must be expressly stated in the charge laid against the accused person, even if the coconspirator is not known, once he is/was in existence at the time the conspiracy plan was hatched. In the instant case, the conspiracy count in the charge as laid against the Appellant is ominously silent about the person or persons, known or unknown and with whom the Appellant must have conspired. This was not so stated or stated at all in the charge, reproduced above. What sort of conspiracy was that? A one man conspiracy is unknown to criminal jurisprudence. No man is an island entirely unto himself. Thus, no man conspires alone with himself as the sole conspirator. In this case, the big question is, “agreed” or “conspired” with who? The obvious answer is, “no one” has been mentioned stated or referred to in the charge as the “one”. In the instant appeal, the Appellant’s learned counsel contended that no agreement constituting conspiracy to commit robbery with arms has been shown, proved or could be inferred from the circumstances of the case and as such the Appellant is entitled to an order of discharge and acquittal. The Respondent herein as prosecution, charged the Appellant with the offence of conspiracy without specifying any co-conspirator(s), known or unknown. The Respondent later conceded in its address before the trial court, albeit for the wrong reason that, “the charge of conspiracy could not be proved”. Yet, the trial court went ahead and convicted the Appellant on the count of conspiracy with insufficient particulars. It is thus, rather surprising that the said learned counsel for the Respondent changed gear and reversed herself before us on this point. The law is settled that it is not the duty of the court to make a case for the parties. The court must act only on the case presented by the parties before it and not otherwise. In this case, the charge as laid against the Appellant is incurably defective, misleading and cannot sustain conviction thereon as gross miscarriage of justice will be occasioned thereby. Enough on this for now.
The essential ingredients of armed robbery which the prosecution must prove beyond reasonable doubt in the instant case in order to secure conviction of the Appellant are:-
(1) that there was a robbery.
(2) that the robber was armed with firearms or offensive weapons.
(3) that the accused person/appellant was the robber or participated in the robbery.
See Bozin v. The State (1985) 2 NWLR (Pt. 8) 465; Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561. The offence of robbery with firearms is committed where at the time of the commission of the robbery, the accused is proved to have been armed with “firearms” or “offensive weapons” within the meaning of the law. Consequently, any person who is knowingly in the company of a person so armed or aiding and abetting in the commission of the offence is equally guilty. Now, what do we have in this case, inclusive of the charge which serves as the harbinger of Appellant’s fate?
Back to the confessional statement. Section 27 (1) of the Evidence Act, defines confessional statement as an admission made at anytime by a person charged with commission of a crime, stating or suggesting the inference that he committed the crime in question. It could be an extra judicial statement made by the accused person to the police containing an assertion or admission of guilt and showing that he participated in and is culpable for the commission of the offence for which he has been charged. See Gira v. The State (1996) 4 NWLR (Pt. 443) 374; Liya v. The State (1998) 2 NWLR (Pt. 538) 397; Saidu v. The State (1982) 4 SC 41. Once a confessional statement is admitted in evidence and it is unchallenged, it forms part of the case for the prosecution and the trial court is bound to consider its weight and probative value to be attached thereto. See Nwangbomu v. The State (1994) 2 NWLR (Pt. 327) 380; Ekpe v. The State (1994) 9 NWLR (Pt. 368) 263.
The Appellant complained that Exhibit B1 – his written statement made under caution, was not voluntary as it was obtained under threat and torture. The learned counsel for the Appellant made reference to this retraction. Also, the learned counsel for the Respondent cited a host of cases and submitted that a retracted confession can be relied upon by the trial court. This complaint by the Appellant is utterly misconceived. The statement was tendered and admitted in evidence at the trial without objection by the defence counsel who represented the Appellant before the trial court. The law is settled that a voluntary confession which is admissible against an accused person does not become inadmissible on the mere basis that the accused person who made it has resiled from or retracted it. See Ikpasa v. The State (1981) 9 SC 7. Thus, an accused person can be convicted on his confessional statement alone, regardless of whether it has been retracted or not, provided it was made voluntarily. Additionally, the confession must be consistent with other material facts which have been duly established. It is thus, a requirement of the law that it is desirable to have outside the confessional statement, some evidence of circumstances which make it probable that the confession is true and further reinforce the case for the prosecution. The truth of the confession must be examined in the light of other known facts or credible evidence before the trial court, however slight, which lends credence to the truthfulness or probability of the confession, before it can be used and relied upon by the trial court. See Ntaba v. The State (1972) 4 SC 1; Paul Onochie & Ors. v. The Republic (1966) NMLR 307; Solala v. The State (2005) 11 NWLR (Pt. 937) 460′; Akinmoju v. The State (2000) 4 SC (Pt. 1) 64; Nwaeze v. The State (1996) 2 NWLR (Pt.428) 1; Alarape v. The State (2001) 5 NWLR (Pt. 205) 79, (2001) 2 SCNJ 162.
Questions arising in this case include, whether corroborative or substantiating evidence exists in the proceedings to justify the heavy reliance placed by the trial court on Exhibit B1 as a confessional statement. Additionally, of what help, immense or otherwise is the testimony of PW2 to the case of the Respondent herein. Appellant stated in Exhibit B1 that he had a co-conspirator or accomplice in the person of Yahaya Maiwake who participated actively in the commission of the alleged offence. This assertion did not tally at all with the version of the sequences of events as narrated by PW2 – the victim. The direct evidence of PW2 did not provide positive direct evidence outside the Appellant’s confessional statement which makes it really and readily probable that the facts stated therein are true.
It is trite law that a trial court should not act on a supposedly confessional statement without subjecting and testing the truth thereof by seeking other evidence outside the confession and no matter how slight which makes it probable and true. In Dawa v. The State (1980) 8-11 SC 236, the Supreme Court approved and applied the six tests enunciated in R.V. Sykes (1913) 8 CR APP. 233, which still remain sound and golden. The tests are :-
“1. Is there anything outside the confession to show that it is true?
2. Is it corroborated in anyway?
3. Are the relevant statements of facts made therein true as far as they can be tested?
4. Was the accused person someone who had the opportunity of committing the offence?
5. Is the confession probable? and
6. Is the confession consistent with other facts which have been ascertained, established and or proved?
If the confessional statement fails to pass the tests, conviction cannot be properly founded on it and if is founded on it, it will be hard to sustain it on appeal. See Onochie & Ors. V. The Republic (1966)
NMLR 307; Yesufu v. The State (1976) 6 SC 167 and Okonkwo v. The State (1998) 8 NWLR (Pt. 561) 210.
In this case, the Respondent tendered Exhibit B1 and it was admitted in evidence without objection as the voluntary statement of the Appellant. It thereby formed part of the evidence on which the prosecution relied. To make the confessional statement plausible, reliable and dependable, particularly where it has been retracted, it is highly desirable that it should have been tested against other ascertained and established facts or circumstances no matter how slight which are proved and consistent therewith, showing that it is true and without leaving lingering vestiges of doubt whatsoever. See Madjemu v. The State (2001) 9 NWLR (Pt. 718) 349; Hassan v. The State (2001) 15 NWLR (Pt.735) 184. Indeed, a trial court must be wary of convicting and sentencing an accused person on the basis of a retracted confessional statement without subjecting the same to the established tests. Confessional statement or confession should be positive and unequivocal. It must be consistent with other established facts and relate to the particular charge preferred against the accused person and not a similar one. In view of the difference or disparity between the evidence of PW2 and contents of Exhibit B1 regarding the robbery incident and without other external inculpatory circumstances to buttress and substantiate the same, the latter can rightly be regarded as hanging in limbo, swinging like a pendulum with jerky motions and without precision.
Learned counsel for the Appellant also complained about conflicts and contradictions in the evidence adduced by the Respondent and the failure of the trial court to resolve them as required by law. Some of the obvious ones referred to are:-
(1) Whereas PW2 testified before the trial court that the Appellant was the only attacker who attacked and inflicted a knife cut on his neck and snatched his motorcycle, Exhibit B1 maintained that this was done by one Yahaya Maiwake in concert with the Appellant.
However it is to be noted that both PW3 and PW4 testified that they both recorded the statements of the Appellant under caution and separately too. The former recorded it in English Language and thereafter translated it to Hausa Language, while the latter did the same in reverse order.
(2) The charge in respect of which the Appellant’s plea was taken, alleged that he attacked one “Mansur Altine” with a knife and “forcefully” collected his motorcycle, but the evidence revealed that the person alleged to have been attacked was one “Mansur Muh’d” and there was no linkage or explanation from the Respondent in respect thereof.
(3) While the charge stated that the motorcycle that was forcefully snatched was a “Honda Super Cub with Reg. No. AF 454 SKK; what PW1 tendered and was admitted in evidence as Exhibit A, was “motorcycle Suzuki Super Cub with Chassis No.050/9781273”. Additionally, the said Exhibit A was not identified by PW2 at any point in time during the trial as the one forcibly snatched from him. What is more, PW2 in his evidence in chief stated that; “The machine I was riding is a Honda Dark green in colour and it has No. QF 454 SKK as registration.”
It is trite law, that for contradictions to be regarded as material, substantial and fundamental, such contradictions must be fatal and somewhat decisive in the determination of the guilt of the accused person. Put differently, contradictions or inconsistencies in the evidence proffered by the prosecution can only be useful and helpful to an accused person, if they affect live issues in the matter, such as essential ingredients of the offence charged. Karibi-White JSC in Ikemson & Ors. v. The State (1989) 6 SC 91/98; (1989) 3 NWLR (Pt.110) 455/474 enunciated thus:-
“…that material evidence is such evidence which on account of its logical nexus with the issue, tends to influence decisively the establishment of the fact in issue.”
Indeed, the contradictions or conflicts must create doubts in the mind of the court to such an extent or magnitude, that the court believes and is inclined to resolve the doubts in favour of the accused person. See Awopejo & Ors. v. The State (2001) 18 NWLR (Pt. 745) 430; Namsoh v. the state (1993) 5 NWLR (Pt. 292) 129. It is thus, firmly established that if there are contradictions in the evidence of the prosecution and the contradictions materially affect the charge, doubt would have been created and the benefit of such a doubt must enure to the accused person. Such an accused person will be entitled to a discharge. Again, what is material will depend on the set of facts of each particular case. See Nasamu v. The State (1979) 6 SC 153/158-159 and Onubogu & Anor. v. The State (1979) 9-12 SC 1/20.
In a criminal trial, where there are inconsistencies, contradictions or conflicts in the case presented by the prosecution, it is not the function of the trial court to rationalize or offer explanation. Rather, it is for the prosecution to provide an explanation regarding the circumstances of the contradictions since it has the duty to prove its case beyond reasonable doubt and failure to do this, will inevitably lead to the discharge of the accused person. See Stephen v. The State (1986) 3 NWLR (Pt.61) 538.
The object of a charge in a criminal proceeding includes making an accused person to be fully aware of the case he is confronting in court and entails specification or particularization of the essential ingredients of the offence in question. Thus, if the charge states that “A” was the victim of a violent crime and in the course of trial, “B” surfaces as the victim, then something, is surely amiss. It should also be realized that, there is more to a name than it’s being a mere cognomen. Name means, “a word or phrase identifying or designating a person or thing and distinguishing that person or others.” See Black’s Law Dictionary 8th Edition P.1048. It depicts the epicenter and essence of an individual’s being. Thus, the unmistaken identity of a man, in addition to his physiognomy, is depicted and embedded in his name, among others. It further differentiates one human being from the other and also affords ready identification and recognition.
In the instant case, the charge states that one “Mansur Altine” was attacked, robbed and his motor cycle was “forcefully collected.” It transpired as disclosed in the evidence adduced by the Respondent before the trial court, that the person who claimed to have been robbed was one “Mansur Muh’d.” No explanation was offered by the Respondent regarding the discrepancy in the name of the victim as contained in the said charge. PW2 who gave his name as “Mansur Muh’d, persistently maintained the said name as his, while under vigorous cross examination by the learned counsel for the Appellant during the hearing before the trial court. It is to be noted, that there is nowhere in the proceedings before the trial court, where PW2 made the necessary link that he is also known as “Mansur Altine,” the person or victim who was specifically named in the charge as having been forcibly robbed by this particular Appellant.
Similarly, there is a material difference between the description of the motor cycle as stated in the charge and the evidence adduced by the Respondent. PW2 testified that he was, “riding a Honda dark green in colour and it has No. QF 454 SKK as registration number.” Additionally, as pointed out by the learned counsel for the Appellant, Exhibit A is at variance with the testimony of PW2. Furthermore, that despite the fact that Exhibit A was already in evidence yet PW2 did not personally, physically and positively identified it as his motor cycle which was forcibly snatched from him.
It is obvious that there are two different versions of the same event: so to say. If both are believed as the learned trial judge did, both accounts are irreconcilable with the facts in issue and as such ought to have been rejected. The learned trial judge did not give serious considerations to the issue of the name of the victim as contained in the two count charge vis-a-vis the evidence of PW2. Furthermore, there was no explanatory evidence whatsoever by the Respondent regarding the inconsistencies between Exhibit A – Suzuki Super Cub with Chassis No.050/9781273″ without Registration. No. and “Honda Super Cub with Registration No. AF 454 SKK”, without specification of chassis number being stated in the charge with the testimony of PVV2 thereon. The position is settled that written address or brief of argument cannot and should not be used as a medium to supply missing links or evidence which ought to have been properly adduced and placed before the trial court by the prosecution. Thus, the attempt by the learned counsel for the Respondent to do this and also challenge the record of appeal in a manner other than the one stipulated by law, is worrisome, unhelpful and uncalled for.
It is correct to say that, there is no better evidence than that of an eye witness who is the victim of an armed robbery and the accused person who confessed to the commission of the crime. Howbeit, where there is a sharp and staggering difference between the eye witness account of the robbery incident by the victim and the confession to the said robbery, then it is improbable that both accounts relate to the same robbery incident or that both accounts could be regarded as the gospel truth. It is illogical to accept, believe and rely on two pieces of divergent pieces of evidence which gave two different and irreconcilable conflicting accounts of a supposedly same incident or situation. In the instant case, among others, PW2 gave an account which is poles apart from the one contained in Exhibit B1. The former maintained that the Appellant was the only armed robber who attacked him. The latter stated otherwise. The trial court believed both. The truth must be somewhere else.
From all these, it is obvious that the complaints made by the learned counsel for the Appellant, that the trial court failed to consider the various contradictions, conflicts and inconsistencies in the evidence adduced by the Respondent and that the case against the Appellant has not been proved beyond reasonable doubt as required by law; appear to me to be availing, unassailable and unanswerable. It is the duty of an appellate court to carefully look at the whole evidence and make up its mind regarding whether the finding of the trial court is correct and sound. If it comes to the conclusion that the finding in question is unsound or perverse, such an appellate, court is duty bound to set the said finding aside. See Lawal v. Dawodu & Ors. (1972) 1 All NLR (Pt. 2) 270/286.
The law is firmly established that the standard of proof required in criminal cases is one which is beyond reasonable doubt. Hence, any doubt in the mind of the court should be resolved in favour of the accused person. See Idemudia v. The State (1999) 7 NWLR (Pt. 610) 202; Esangbedo v. The State (1983) 4 NWLR (Pt.113) 57. In the instant: case, the Respondent’s case failed to meet the standard of proof beyond reasonable doubt and the doubts raised therein ought to have been resolved in favour of the Appellant. Thus, the Respondent’s case has not been proved beyond reasonable doubt as required by law.
It is of utmost importance, that before the life of an accused person is to be taken for the commission of a capital offence, there must be convincing and resoundingly reliable evidence beyond reasonable doubt in justification thereof. In essence, the only issue reframed by me for resolution in this appeal is hereby resolved in the negative and in favour of the Appellant. I can thus safely conclude that I am unable to support and uphold the trial court’s conviction of the Appellant.
In reaching this conclusion, I took to heart and got my bearings from the exhortation by Aniagolu JSC in Nwosu v. The State (1986) 4 NWLR (Pt. 35) 359 referred to by the learned counsel for the Appellant wherein the erudite jurist said that:-
“A judgment sending a man to the gallows must be seen to be the product of logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found, and the legal deductions therefrom carefully made. It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases and particularly so in capital offences.”
In the premise, this appeal has merit and it accordingly succeeds.. The judgment, conviction and sentence passed on the Appellant by the trial court on 28th January, 2008 are hereby set aside. The Appellant is hereby discharged and acquitted with regards to the offences for which he stood trial before the trial court. Ordered accordingly.
MUSA DATTIJO MUHAMMAD, J.C.A.: I have read in draft the lead judgment of my learned brother Oredola J.C.A. I cannot improve upon the thorough judgment but emphasize the point it succinctly contains that in criminal cases convictions are upheld if they had proceeded on the basis of evidence proving the guilt of the convict beyond reasonable doubt. His Lordship has adroitly journeyed through the facts of the instant appeal exhibiting most glaringly the doubt that lingers on as to the Appellant’s guilt. I agree with his Lordship that a conviction that proceeded inspite of such a doubt cannot endure. See Nweke v. The State (2001) 4 NWLR (Pt 704) 588 Oguntola v. The State (1996) 2 NWLR (Pt 432) 503 and Akpan v. The State (1994) 9 NWLR (Pt 368) 347 Abadom v State (1997) 1 NWLR (Pt 479) 11 and Mohammed v State (1997) 11 NWLR (Pt 528) 339. For this particular reason and more so the fuller reasons articulated in the lead judgment I find merit in this appeal and allow same. I abide by the consequential order made in the lead judgment.
AHMAD OLAREWAJU BELGORE, J.C.A.: I had a preview of the judgment just delivered by my learned brother, MASSOUD ABDULRAHMAN OREDOLA, J.C.A, and am in complete agreement with him that this appeal is meritorious and should be allowed.
I allow the appeal and abide by the consequential orders contained in lead judgment of my learned brother.
Appearances
Ebenezer Obeya Esq.For Appellant
AND
Aisha Mohammed Dantsoho, State Counsel 1, Ministry of Justice, Sokoto StateFor Respondent
