CHUKWU v. STATE
(2022)LCN/16276(CA)
In The Court Of Appeal
(SOKOTO JUDICIAL DIVISION)
On Thursday, March 10, 2022
CA/S/100C/2019
Before Our Lordships:
Frederick Oziakpono Oho Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Mohammed Danjuma Justice of the Court of Appeal
Between
DAHIRU MOH’D CHUKWU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
A GROUND OF APPEAL IS DEEMED ABANDONED IF NO ISSUE IS RAISED FROM A GROUND OF APPEAL
It is noteworthy to observe that the Appellant did not distill any issue from Ground 1. It is firmly settled that where no issue is distilled or raised from a ground of appeal, such ground is deemed abandoned and should be struck out. See OGBE V ASADE (2009) 18 NWLR, PT 1172, 106; NZENWATA & ORS V NZENWATA (2016) LPELR – 41089 (CA) and SALIHU V WASIU (2016) 5 NWLR, PT 1506, 423. The effect of the appellant not formulating any issue from Ground 1 of his grounds of appeal therefore is that the said ground 1 is deemed abandoned. It is hereby struck out. This is how it should be as Ground 1 is not a competent ground of appeal. This is because proof is beyond reasonable doubt in criminal cases so a ground of appeal that interrogates the evidence for being unsupportable, unreasonable and unwarranted appears to be a challenge against the weight of evidence which is applicable to civil cases where there is proof on the balance of evidence as opposed to criminal cases where the burden is static on the prosecution and never shifts and the standard is beyond reasonable doubt. In any event, I do not see the issue that can be distilled from Ground 1 of the grounds of appeal that would not be appropriately covered by Ground 5.
CONVICTION ON RETRACTED CONFESSIONAL STATEMENT
There is no allegation of involuntariness in the making of Exhibit A. To my mind, it will be a travesty of justice to hold that because a desired but not a mandatory rule has not been followed a conviction based on a positive, direct and unequivocal confession as in Exhibit A should be set aside. This is especially so as confession is said to be the best form of evidence. See NWACHUKWU V STATE (2007) 17 NWLR, PT 1062, 31 and SANI V STATE (2020) LPELR – 1002 (SC). I however find refuge in the recent decision of the Apex Court in MINDI V STATE (2020) LPELR – 52897 (SC) where Okoro, JSC, settled this issue when he held as follows:
“…that an accused can be safely convicted on his retracted confessional statement if the trial Court is satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. Be that as it may, it is desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confessions which would make it probable that the confession is true. See ULUEBEKA V STATE (2000) 7 NWLR (PT 665) 404, ADAMU SALIU V THE STATE (2014) 12 NWLR (PT 1420) 65. Let me state clearly that although corroboration is desirable as I have stated above, there is no law which makes it mandatory as an accused person can be convicted solely on his conviction (sic) alone where it is found to be direct, positive and unequivocal.” (Underlining provided for emphasis) PATRICIA AJUMA MAHMOUD, J.C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Justice Kulu Aliyu of the Zamfara State High Court sitting in Gusau and delivered on the 14th December, 2018 in which she convicted and sentenced the accused person for conspiracy to commit armed robbery and armed robbery contrary to and punishable under Sections 6(b) and 1(2) (a) (b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, LFN, 2004.
The accused/appellant, Dahiru Muhammed Chukwu was charged and tried on a two count charge of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Sections 6(b) and 1 (2) (a) & (b) of the Robbery and Firearms (Special Provisions) Act, Cap R 11, LFN, 2004. In proof of its cases, the prosecution called two witnesses and tendered one exhibit, marked as Exhibit A, the statement of the accused. The case of the prosecution was that the accused/appellant on or about the 16th December, 2012 along with one Hashimu Mohammed, alias Barde (still at large) and Salisu Musa alias Babawo (deceased) at a mosque opposite Karma Guest Inn along Gusau – Sokoto bye pass conspired to commit armed robbery and committed armed robbery by attacking and killing one Alhaji Ibrahim Sani Bakura with a gun and robbed him of his Hyundai Sonata Motor vehicle, 2012 Model with registration No. HU342ABC (Abuja).
In his own defence, the accused/appellant testified on his own behalf and called no other witness.
At the conclusion of hearing and adoption of Written addresses, the Hon. Chief Judge in his judgment convicted and sentenced the accused/appellant to death.
It is against this judgment that the appellant by a Notice of Appeal filed on the 21st December, 2018 appealed to this Court on the omnibus ground alone. This appeal was however argued on the amended Notice of Appeal filed on the 22nd February, 2021 and deemed as properly filed and served on the 23rd September, 2012. In it the Appellant formulated five grounds of appeal with their particulars for the determination of Court as follows:
1. The decision of the trial Court is manifestly unsupportable, unreasonable and unwarranted having regards to the evidence adduced at the trial.
2. The learned trial Judge erred in law when he held as follows: “There is no doubt that from the above reproduced statement of the accused person this Court can draw an inference that the accused person conspired with the said Hamisu Moh’d Barde (at large) and Salisu Musa alias Babawo (now Deceased).” Pages 90 paras. 18 – 22.
PARTICULARS
A. Exhibit A does not provide any information upon which an inference could be drawn that the accused conspired with the co-accused persons or with anyone at all in committing the crimes charged or any crime at all.
B. There is nothing in Exhibit A that shows the Appellant had any prior knowledge of any plans by his co-accused persons to engage in any illegal activities.
C. The ingredients of the offence of conspiracy were not proved.
3. The learned trial Judge erred in law when after coming to the conclusion that the Appellant resiled from the confessional statement and after correctly setting out the rules in R v Sykes (1913) 8 CAC p. 233, failed to apply the rules to the facts of this case.
PARTICULARS
The learned trial Judge improperly relied on the Accused person’s confessional statement without following the 6 – step rules laid down in R V SYKES (supra).
4. The learned trial Judge erred in law when he held thus:
“In Exhibit A the accused person narrated how the robbery was carried out. He clearly explained how the victim was shot and the Honda car was carried away.”
Page 94 paras. 4 – 6.
PARTICULARS
A. There is nothing in exhibit A that supports the finding that the Appellant “clearly explained how the victim was shot and the Honda car carried away.”
5. The prosecution did not prove the case against the appellant beyond reasonable doubt.
The Appellant’s brief was settled by Chief Oluwole Afolabi on the 22nd February, 2021 and deemed on the 23rd September, 2021. In it, counsel distilled a sole issue from grounds 2, 3, 4 and 5 thus:
“Whether the Respondent proved its case against the Appellant beyond reasonable doubt, especially considering the fact that in convicting the Appellant, the learned trial Judge relied exclusively on Exhibit A (confessional statement) which, without subjecting it to the six-way test Rule.
It is noteworthy to observe that the Appellant did not distill any issue from Ground 1. It is firmly settled that where no issue is distilled or raised from a ground of appeal, such ground is deemed abandoned and should be struck out. See OGBE V ASADE (2009) 18 NWLR, PT 1172, 106; NZENWATA & ORS V NZENWATA (2016) LPELR – 41089 (CA) and SALIHU V WASIU (2016) 5 NWLR, PT 1506, 423. The effect of the appellant not formulating any issue from Ground 1 of his grounds of appeal therefore is that the said ground 1 is deemed abandoned. It is hereby struck out. This is how it should be as Ground 1 is not a competent ground of appeal. This is because proof is beyond reasonable doubt in criminal cases so a ground of appeal that interrogates the evidence for being unsupportable, unreasonable and unwarranted appears to be a challenge against the weight of evidence which is applicable to civil cases where there is proof on the balance of evidence as opposed to criminal cases where the burden is static on the prosecution and never shifts and the standard is beyond reasonable doubt. In any event, I do not see the issue that can be distilled from Ground 1 of the grounds of appeal that would not be appropriately covered by Ground 5.
This is why I feel that it would have been more professionally ethical for counsel to have withdrawn Ground 1 rather than abandon it in the manner done. For the avoidance of doubt and for the sake of emphasis, Ground 1 of the grounds of appeal is hereby struck out having been abandoned.
This takes us then to the sole issue raised for determination. In arguing the appeal, MR. Oluwole Afolabi of counsel for the appellant adopted the brief as their oral arguments in support of the appeal. The crux of counsel’s argument is that the trial Judge relied heavily on Exhibit A, the retracted confessional statement without subjecting same to the proverbial six-way test as set down in R V. SYKES (1913) 8 CAR, 233. Counsel therefore urged the Court to resolve this issue in favour of the appellant, allow the appeal, set aside the conviction and sentence and discharge and acquit the appellant.
In adopting their brief filed and deemed as properly filed on the 18th January, 2022 as their legal arguments in opposition to the appeal, Mr. Sirajo Abdullahi, Director Civil Litigation (DCL), Ministry of Justice, Zamfara State also raised a sole issue thus: “Whether having regard to the circumstances and from the totality of the evidence adduced thereof, the prosecution has proved its case as required by law?”
Mr. Abdullahi conceded that the onus of proof which is static is on the prosecution and it never shifts and the burden is beyond reasonable doubt.
On conspiracy to commit armed robbery, counsel referred to the case of OKOH V STATE (2014) 8 NWLR, PT 1410, 502 AT 523, PARAS E – H to spell out the three ingredients that the prosecution is required to prove beyond reasonable doubt to establish the offence. Counsel also submitted that the prosecution can prove an offence by one of three ways: direct or eye witness evidence, confessional statement or by circumstantial evidence. Counsel further submitted that Exhibit A though a retracted confession was not only admissible but the Court rightly acted upon it having satisfied itself of the truth of the confession. Counsel contended that the lower Court was right and did not err in law in convicting the Appellant on Exhibit A along with other relevant evidence. Counsel urged the Court to dismiss the appeal and affirm the decision of the lower Court.
The Appellant filed a reply brief on the 25th January, 2022. I have gone through same. It is not a reply to new issues raised in the respondent’s brief. Indeed, it was the Appellant that raised the issue of the application of the rule in R V Sykes (SUPRA).
A reply brief is not an opportunity to beef up the appellant’s arguments. It is rather a chance to respond to only new/fresh issues raised in the respondent’s brief. This not being a new/fresh point renders this reply brief offensive to ORDER 19(5) (1) and therefore incompetent. This is because as the Supreme Court expressed it most appropriately in the case of SALIHU V WASIU (2016) LPELR – 26062, a reply brief is not a “repair kit to put right any lacuna or error in the appellant’s brief of argument.”
As it is properly stated, a reply brief is not a means to afford the appellant a second bite at the cherry. It is therefore most improper to use the reply brief to extend the scope of arguments in the appellant’s brief of argument filed prior. Consequently, the appellant’s reply brief filed on the 25th January, is hereby discountenanced.
The sole issue raised by each of the parties speaks to the same point. However, the issue raised by the respondent is more concise and better structured. I will therefore determine this appeal on the issue raised by the respondent.
Both parties are in agreement on a number of issues. For instance, they both agree that Exhibit A, a confessional statement was properly admitted and its voluntariness was not in dispute. It is also not in dispute that the prosecution’s case is predicated largely if not solely on Exhibit A, the confessional statement of the appellant which has been retracted.
The only sore point in the contention of both counsel as I understand it is whether the trial Court in convicting the Appellant largely or solely on Exhibit A, the retracted confessional statement complied with the six- way test as laid down in R V Sykes (SUPRA). In other words, this remains the only live issue in this appeal.
What then is this six-way test? The appellant’s counsel in his submissions on this issue in relying on R V SYKES (SUPRA) which he referred to as a seminal case, stressed that a trial Judge must answer these six questions in the affirmative before he can safely convict on a retracted confessional statement:
1. Is there anything outside the confession which shows that it may be true?
2. Is it corroborated?
3. Are the relevant statements of fact made in it true as far as can be tested?
4. Was the accused one who had the opportunity to commit the offence?
5. Is the confession possible?
6. Is it consistent with the facts which have been ascertained?
The grouse of counsel to the Appellant to my mind is more about form rather than substance. He spent the greater part of the time on the alleged failure of the trial Judge to ask and answer these six magic questions before convicting the Appellant on Exhibit A alone. This is no error or even if it is, it is one which is easily curable by this Court looking at the evidence and considering if the questions can be answered affirmatively or not. What is more, a case is determined on its peculiar circumstances. The finding of the trial Court in the instant case remains unimpeachable. Exhibit A was proved to be made voluntarily and was admitted without objection. Exhibit A was reproduced in the judgment of the trial Court at pages 86 – 90 of the printed records. It is direct, positive and unequivocal. It gave the history of how the Appellant met with the co-accused (still at large), Hashimu Mohammed alias Barde, who introduced him into different crimes like sale of indian hemp, stolen cars etc. before ending up together in the armed robbery for which the appellant was convicted. Exhibit A is very detailed and admits to all the ingredients of the offence. The information contained therein is one only within the knowledge of the appellant. There is no allegation of involuntariness in the making of Exhibit A. To my mind, it will be a travesty of justice to hold that because a desired but not a mandatory rule has not been followed a conviction based on a positive, direct and unequivocal confession as in Exhibit A should be set aside. This is especially so as confession is said to be the best form of evidence. See NWACHUKWU V STATE (2007) 17 NWLR, PT 1062, 31 and SANI V STATE (2020) LPELR – 1002 (SC). I however find refuge in the recent decision of the Apex Court in MINDI V STATE (2020) LPELR – 52897 (SC) where Okoro, JSC, settled this issue when he held as follows:
“…that an accused can be safely convicted on his retracted confessional statement if the trial Court is satisfied that the accused made that statement and as to the circumstances which gave credibility to the contents of the confession. Be that as it may, it is desirable that before a conviction can be properly based on such retracted confessional statement, there should be some corroborative evidence outside the confessions which would make it probable that the confession is true. See ULUEBEKA V STATE (2000) 7 NWLR (PT 665) 404, ADAMU SALIU V THE STATE (2014) 12 NWLR (PT 1420) 65. Let me state clearly that although corroboration is desirable as I have stated above, there is no law which makes it mandatory as an accused person can be convicted solely on his conviction (sic) alone where it is found to be direct, positive and unequivocal.” (Underlining provided for emphasis)
Or as Sanusi, JSC, puts it differently in AKPAKPAN V STATE (2019) LPELR – 53132 (SC), a Court can base a conviction on a confessional statement retracted at the trial if it is satisfied that the accused made the statement in circumstances which gave credibility to the contents of the confession. See also TOPE V STATE (2019) LPELR – 47837 (SC) and AWOSIKA V STATE (2018) LPELR – 44351.
In summary and having gone through Exhibit A and the judgment of the trial lower Court very carefully, I hold that the findings of the Court below on the admissibility and reliance on Exhibit A to convict the appellant is unimpeachable in the circumstances of this case. Consequently, I dismiss this appeal for being unmeritorious. The judgment of Justice Kulu Aliyu, Chief Judge, delivered on the 14th December, 2018 is hereby affirmed.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned Brother, PATRICIA AJUMA MAHMOUD, JCA and I am in agreement with the reasoning and conclusions reached in dismissing the Appeal as unmeritorious. I abide by the consequential orders made thereto.
MOHAMMED DANJUMA, J.C.A.: I have had the privilege of reading in draft, the lead judgment just delivered by my learned brother PATRICIA AJUMA MAHMOUD JCA. I agree with the reasons therein for the conclusion that the appeal is unmeritorious and should be dismissed.
I hereby dismiss the appeal and adopt the consequential orders made in the lead judgment.
Appearances:
MR. OLUWOLE AFOLABI, with him, MR. U. N IBEKWE For Appellant(s)
MR. SIRAJO ABDULLAHI, Director Civil Litigation (DCL), Ministry of Justice Zamfara State, with him, MR. U. Y ABDULKARIM, Senior State Counsel (SSC) For Respondent(s)