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DABO v. STATE (2022)

DABO v. STATE

(2022)LCN/16311(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, October 20, 2022

CA/ABJ/CR/914/2021

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

BitrusGyarazama Sanga Justice of the Court of Appeal

Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal

 

Between

IBRAHIM DABO APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

EVERY OFFENCE HAS INGREDIENTS WHICH A PROSECUTOR MUST ESTABLISH BEFORE THE COURT

The law is trite that every offence has ingredients which a prosecutor must establish before the Court will find that proof beyond reasonable doubt has been attained. In the case of Dibia v. State (2017) 12 NWLR (p.196) at 221 – 222, paras G-B, Eko, JSC sets out the ingredients of the offence of armed robbery as follows; “This provision of Section 11 has to be read with Section 1(2) (b) of the Act which is the punishment provided for the offence of armed robbery the Appellant was charged with. To prove this offence, the prosecution must establish:
1. The intention to steal
2. Stealing which means taking or converting to one’s use another person’s moveable property, with the intention to permanently deprive the owner of the use of this thing.
3. That at the time of the robbery, the accused person was armed with a gun or a firearm, or was in company with any person so armed.” MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

THE LAW RECOGNISES PROSECUTION’S RIGHT TO CALL ANY WITNESSES IT DECIDEDES

The law actually recognises prosecution’s right to call any witnesses it decides as a prerogative and not a mere privilege. See Samuel Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139 at 151.
Thus, there is no duty on the prosecution to call any particular number of witnesses, as one credible or qualitative witness can establish a criminal accusation beyond reasonable doubt. See the cases of Adaje v. State (1979) 6 – 9 SC 1; Okonofua v. State (1981) 6 – 7 SC 1; Alabi v. State (1993) 7 NWLR (Pt. 307) 511;AlewoAbogede v. The State (1996) 5 NWLR (Pt. 448) 270; Basil Akalezi v. State (1993) 2 NWLR (Pt. 273) 1; N.O. Okere v. The State (2001) 2 NWLR (Pt. 697) 397 Fatai Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561; Alhaji Muazu Ali v. The State (2015) 10 NWLR (Pt. 1466) 1 and Chibuike Ofordike v. The State (2019) 5 NWLR (Pt. 1666) 395. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

A COMPLETE RECORD OF APPEAL IS BINDING ON A COURT OF APPEAL

By way of a preamble, it is a settled principle of law that a complete record of appeal is binding on a Court of appeal and the parties to the appeal. See Joseph Agbon Ojeme v. Prince Mark Jimoh Mamodu(1994) 1 NWLR (Pt. 323) 685 and Monday Okpokpo v. Nnana Akpan Uko (1997) 11 NWLR (Pt. 527) 94. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

AN APPELLATE COURT IS PERMITTED BY LAW TO TAKE JUDICIAL NOTICE OF ALL RELEVANT INFORMATION IN A RECORD OF APPEAL

It is also trite that an appellate Court is permitted by law to take judicial notice of all relevant information, contained in a record of appeal, which can assist the Court in doing substantial justice in the determination of the appeal. See, for example, the cases of S.B.M. Services (Nig.) Ltd. v. Catherine Sede Okon (2004) 9 NWLR (Pt. 879) 529; Alhaji Mohammed Sanusi Daggash v. Hajia Fati Ibrahim Bulama (2004) 14 NWLR (Pt. 892) 144; Alhaji Muhammadu Maigari Dingyadi v. Independent National Electoral Commission (2011) 10 NWLR (Pt. 1255) 347 and Military Governor of Lagos State &Ors. v. Adebayo Adeyiga & Ors. (2012) 5 NWLR (Pt. 1293) 291. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

THE DOCTRINE OF BINDINGNESS OF JUDICIAL PRECEDENT

Any learned counsel can deliberately align his arguments with some principles of law, settled by some other cases, for the purposes of invoking the time-honoured doctrine of bindingness of judicial precedent, but it should be noted that no matter how articulate, brilliant, illuminating or interesting the arguments of learned counsel may be, they cannot be replacement or substitute for the evidence on record. See Onu Obekpa v. Commissioner of Police (1981) NCLR 420; Bernard Ugorji v. Nathaniel Onwuka (1994) 4 NWLR (Pt. 337) 226; Mallam Yusuf Olagunju v. Chief E. O. Adeoye Adesanya (2014) 12 NWLR (Pt. 1422) 521; Nigerian Telecommunications Ltd. v. Engr. Emmanuel C. Okeke (2017) 9 NWLR (Pt. 1571) 439; Chukwuemeka Agugua v. State (2017) 10 NWLR (Pt. 1573) 254 and Karimu Sunday v. The State (2018) 1 NWLR (Pt. 1600) 252. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

THE EFFECT OF RETRACTING A CONFESSIONAL STATEMENT

A confession may be retracted but the law accords no sacredness or sacrosantness to retraction of a confession. Where the confession of a defendant is free and voluntary and it is direct, positive and properly established, it can sustain a conviction, so long as the Court is satisfied with its truth. See Arthur Onyejekwe v. The State (1992) 3 NWLR (Pt. 230) 444; Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt. 343) 138; Nkwuda Edamine v. The State (1996) 3 NWLR (Pt. 438) 530; Akpan Ben Akpan v. The State (2001) 15 NWLR (Pt. 737) 745; Golden Dibie& 2 Ors. v. The State (2007) 9 NWLR (Pt. 1038) 30; Wole Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470; Legi Mohammed v. The State (2019) 6 NWLR (Pt. 1668) 203 and Nura Aliyu v. The State (2021) 17 NWLR (Pt. 1805) 197. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

THE SETTLED LAW ON THE ISSUE OF IDENTITY OR IDENTIFICATION OF AN ACCUSED PERSON

It is settled law that whereby a defendant’s confession, the Court accepts his guilt, it would be preposterous, pretentious and superfluous for the issue of identity or identification of the defendant to be further interrogated or entertained. See Shina Akinrinlola v. The State (2016) 16 NWLR (Pt. 1537) 73 at 97, per Okoro, JSC; where the Supreme Court held that:
“As we held in Adeyemi v. State (supra), it is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. An accused person who has made a confessional statement which is accepted by the Court has indeed identified himself. To talk about any further identification is, to say the least, superfluous”. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

THE BURDEN OF PROOF LIES ON THE PROSECUTION

I wish to state the well known principle of law that in criminal prosecution, the burden of proof lies squarely on the prosecution and the standard required is proof beyond reasonable doubt. See Section 135 (3) of the Evidence Act, 2011 and the cases of Yusuf Sani v. The State (2021) 5 NWLR (Pt. 1770) 502; Rev. Jolly TevoruNyame v. Federal Republic of Nigeria (2021) 6 NWLR (Pt. 1772) 289; Asiya Bala Orubo v. The State (2021) 16 NWLR (Pt. 1803) 549 and Nura Aliyu v. The State (2021) 17 NWLR (Pt. 1805) 197. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

PROOF BEYOND REASONABLE DOUBT IS NOT PROVE BEYOND THE SHADOW OF DOUBT

On the meaning of “proof beyond reasonable doubt”, the Supreme Court, per Peter-Odili, JSC; in Nura Aliyu v. The State (supra) at 225 – 226, held thus:
“In a long line, of judicial authorities of the apex Court, proof beyond reasonable doubt means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. I shall cite just one, Oseni v. The State (2012) 5 NWLR (Pt. 1293) 351 at 388.
The appellant had confessed to the commission of the offence in exhibit A and A1 and there is no evidence stronger than a person’s own admission or confession. See Ikpo v. The State (2016) 10 NWLR (Pt. 1521) 501 at 530.
The burden on the prosecution to prove the offence against the appellant beyond reasonable doubt does not translate to proof beyond the shadow of all doubt or proof to the hilt. Clearly, the prosecution has discharged the burden of proof beyond reasonable doubt as expected by the law. See Bolanle v. State (2009) 15 NWLR (Pt. 1172) 1 at 10-11; Jua v. State (2010) 9 NWLR (Pt. 1184) 217 at 243”. MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

A CONFESSIONAL STATEMENT CANNOT BE REGARDED AS UNRELIABLE BY MERE DENIAL OR RETRACTION

This principle is now settled and there are a plethora of cases to this effect.
In Dau vs. State (2015) LPLER – 40410 (CA) this Court held thus:
“It is trite law that a confessional statement to the Police does not become inadmissible simply because the accused who made it denies over making it or retract the confession on Oath.
The confessional statement cannot be regarded as unreliable by mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to determine the weight to be attached to it. See Oche Vs. State (2007)5 NWLR (Pt. 1027) 214; Oguno vs. State (2011)7 NWLR (Pt. 1246) 314; Awo, Idowu vs. State (2000) 12 NWLR (Pt 680) 48.” MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was the second defendant in suit No. NSHC/MN/30C/2017 filed in the High Court of Niger State, holden at Minna, where he and two other persons were arraigned and charged, in an amended charge, as follows:
​”That you Babuga Umaru, Ibrahim Dabo and Barau Umaru in company of the following persons now at large Goodluck alias Jaye, shamadara, Lawali, Doka, Dangi, Bareri Umaru on or about the 11th day of March 2016 at Angwan Makeri village via Sarkinpawa within the jurisdiction of this Honourable Court, while armed with offensive weapons to wit; gun, sticks & cutlasses, robbed one Lawal Dabo of his cattle comprising 85 cows and 57 sheeps. You thereby committed the offence of armed robbery punishable under Section 1 (2) (a) & (b) of the Robbery and Fire Arms (Special Provisions) Act Cap. R11. LFN 2010″.

​At the trial, the prosecution fielded two witnesses – PW1 (the victim of the alleged crime) and PW2 (the investigating police officer) and the statements of each of the three defendants were tendered and admitted in evidence as exhibits “A”, “B” and “c”, respectively.
The appellant testified in his own defence and did not call any witness.

After taking the evidence of the witnesses, who testified before it, and the addresses of the learned counsel for the parties, the trial Court delivered a reserved judgment on the 22nd day of September, 2021 whereby the appellant and his co-defendants were each found guilty of the offence of armed robbery, punishable with death, and sentenced to death by hanging.

Being dissatisfied with the judgment of the trial Court, the appellant lodged an appeal to this Court and the appeal was heard on the following:
(i) the record of appeal compiled and transmitted to the Court on 26/11/2021;
(ii) the notice of appeal filed on 14/12/2021;
(iii) the appellant’s brief filed on 14/12/2021;
(iv) the respondent’s brief filed on 01/02/2022; and
(v) the appellant’s reply brief filed on 18/02/2022.

​In the appellant’s brief, settled by Oluwagbemileke Kehinde, Esq., a sole issue was isolated for determination as follows:
“Whether the evidence proffered by the Respondent before the trial Court proved the guilt of the appellant beyond reasonable doubt”.

The respondent’s brief was settled by Eloka J. Okoye, Esq. and in it, the issue identified for determination by the appellant was adopted.

From the lone issue adopted by the parties, the live issue which calls for the resolution of this appeal is:
Whether or not the crime allegedly committed by the appellant was proved beyond reasonable doubt.

Learned counsel for the appellant referred to the case of Matthias v. State (2020) 14 NWLR (Pt. 1498) 351 at 362 and submitted that the prosecution still had a duty to prove the appellant’s guilt beyond reasonable, despite the fact that “the respondent tendered a confessional statement (that was retracted) made by the appellant to the Police”. Counsel contended further that:
“- The failure of the respondent to tender the appellant’s non-confessional statement raised sufficient doubt about the respondent’s case.
– The accuracy and credibility of the appellant retracted confessional statement is tainted by the failure of the respondent to tender the Hausa version of the appellant’s statement.
– There is no cogent and credible corroborative evidence outside the appellant’s retracted confessional statement that makes it probable that the confession was true.
– The failure of PW1 to reveal the identity of the appellant at the earliest opportunity raises doubts about the credibility and accuracy of PW1’s evidence that he recognised the appellant by his voice.
– The failure of the respondent to tender the statements made by PW1 to the Police raises the presumption of withholding evidence, and this presumption ought to be resolved in favour of the appellant”.

Relying on the cases of Samuel v. State (2020) 6 NWLR (Pt. 1721) 557 and Ugwu v. State 7 NWLR (Pt. 1723) 259; learned counsel argued that “in order to ensure the integrity of the appellant’s statement, the statement ought to have been recorded in the language in which it was made, before being translated into English”.

It was submitted that the appellant’s statement in Hausa and its English version ought to have been tendered before the trial Court and, on this submission, reliance was placed on the case of Adamu v. State (2019) 8 NWLR (Pt. 1675) 478 at 493.

​Mr. Kehinde submitted further that:
“Assuming the failure of the respondent to tender the Hausa version of the appellant’s statement is overlooked, the law is trite that before a conviction can be properly based on such a retracted confessional statement, there should be some corroborative evidence outside the confessional statement which would make it probable that the confession was true. Please see the case of Joseph Daniel Uwa v. State (2015) NWLR (Pt. 1450) 438 at 465, paras. B-C.
My Lords, the case of Oyinye v. State (2012) 14 NWLR (PT. 1324) 586 at 619, paras D-G has firmly established the questions a trial Court faced with a retracted confessional statement should ask. They are: (a) Whether there is anything outside the confession to show that it is true. (b) Whether there is corroborated. (c) Whether the statement made in it are true as far as they can be tested. (d) Whether the accused had opportunity of committing the crime. (e) Whether the confession is possible. (f) Whether it is consistent with other facts which has been ascertained and have been proved.
Before going on to apply the tests in Oyinye v. State (supra), it is humbly submitted that the pertinent questions to ask at this juncture are:
i. What is corroborative evidence?
ii. What is the nature of corroborative evidence that can ground a conviction?”
On the meaning and nature of corroborative evidence required for a conviction, the learned counsel referred the Court to the cases of Natasha v. State (2017) 18 NWLR (Pt. 1596) 38 at 64 – 65; Sambo v. The State (1993) 6 NWLR (Pt. 100) 399 at 416 – 417 and Upahar v. State (2003) 6 NWLR (Pt. 816) 230 at 257, respectively.
Counsel contended that, in this case, the victim of the alleged crime (PW1) did not mention the name of the appellant as one of the persons who committed the armed robbery at the earliest opportunity.
To be brief, the learned counsel for the appellant urged the Court to allow the appeal and set aside the judgment of the trial Court for the following reasons:
“- The failure of the respondent to tender the appellant’s non-confessional statement raised sufficient doubts about the respondent’s case.
– The accuracy and credibility of the appellant’s retracted confessional statement is tainted by the failure of the respondent to tender the Hausa version of the appellant’s statement.
-There is no cogent and credible corroborative evidence outside the appellant’s retraced confessional statement that makes it probable that the confession was true.
– The failure of PW1 to reveal the identity of the appellant at the earliest opportunity raises doubts about the credibility and accuracy of PW1’s evidence that he recognised the appellant by his voice.
– The failure of the respondent to tender the statements made by the PW1 to the Police raises the presumption of withholding evidence, and this presumption ought to be resolved in favour of the appellant”.

In response, the learned counsel for the respondent stated, inter alia, that “once the prosecution proves the guilt of an accused person beyond reasonable doubt, the Court is commanded by the law to convict the accused person and sentence him to the prescribed punishment under the law.” On the meaning of proof beyond reasonable doubt, counsel cited and relied on the cases of Osetola & Anor. v. State (2012) 6 SC (Pt. IV) 148; (2012) 17 NWLR (Pt. 1329) 251; Adewunmi v. State (2016) 1 – 3 SC (Pt. 11) 123; (2016) 10 NWLR (Pt. 1521) 614 and Agu v. State (2017) 10 NWLR (Pt. 1573)171.

The learned counsel for the respondent proceeds to submit as follows:
“Now the next question is: How does a prosecutor prove an accused person’s guilt beyond reasonable doubt? The law is trite that every offence has ingredients which a prosecutor must establish before the Court will find that proof beyond reasonable doubt has been attained. In the case of Dibia v. State (2017) 12 NWLR (p.196) at 221 – 222, paras G-B, Eko, JSC sets out the ingredients of the offence of armed robbery as follows; “This provision of Section 11 has to be read with Section 1(2) (b) of the Act which is the punishment provided for the offence of armed robbery the Appellant was charged with. To prove this offence, the prosecution must establish:
1. The intention to steal
2. Stealing which means taking or converting to one’s use another person’s moveable property, with the intention to permanently deprive the owner of the use of this thing.
3. That at the time of the robbery, the accused person was armed with a gun or a firearm, or was in company with any person so armed.”
Also in the case of Simon V. State (2017) 8 NWLR (pt. 1566) p. 119 at136, paras E-G, Rhodes-Vivour JSC again states thus: “To succeed, the prosecution must prove beyond reasonable doubt that
1. There was a robbery or a series of robberies
2. The robbery or each robbery was an armed robbery, and
3. The accused was one of those who took part in the armed robbery. See Bozin v. State (1985) 5 SC, P.166; (1985) 2 NWLR (Pt. 109) 352; Okosi v. Attorney General of Bendel State (1989) 2 SC (Pt. 1) P.126; (1989) 1 NWLR (Pt. 100) 642; Martins v. State (1997) 1 NWLR (Pt. 481) P. 355; Osuagwu v. State (2013) 1 – 2 SC (Pt. 1) P. 37; (2013) 5 NWLR (Pt. 1347) 360, Emeka v. State (2014) 6-7 SC (Pt.1) P. 64, (2014) 13 NWLR (pt. 1425)14.”
The Appellant herein was charged with the offence of armed robbery punishable under Section 1(2) (a) and (b) of the Robbery and Firearms (Special Provision) Act Cap R11, Laws of the Federation of Nigeria 2010. It is therefore submitted that to prove the guilt of the accused herein beyond reasonable doubt, the Respondent is expected to have proved all the essential ingredients identified by the Court as listed in plethora of cases including the case of Dibia v. State (supra) and Simon v. State (supra).”Counsel contended that all the ingredients of the offence were proved beyond reasonable doubt by “the evidence of the PWI who is the victim of the armed robbery and the confessional statements of the appellant and his co-accused persons.”
Relying on the cases of Amos v. State (2020) LPELR – 49663 (CA); Jimoh v. State (2014) 3 SCNJ 27 andOlalekan v. State (2001) LPELR- 2561 (SC), learned counsel argued that “the statement of an accused person need not necessarily be recorded in the language of the accused person”
Learned counsel for the respondent contended that, throughout the trial, the identity of the appellant was not in dispute and he was sufficiently identified by PW1 and his confessional statement.
After proffering copious arguments and citing numerous judicial authorities, learned counsel submitted that “the trial Court was thorough in the evaluation of the evidence before him and he came to the right conclusion convicting the appellant.”
I have read, very carefully, the record of appeal – including the proceedings and judgment of the trial Court, the briefs of the contending parties and the legalauthorities referred to and relied upon by them.

Without any rigmarole, I wish to say that the alleged failure by the prosecution to tender “the non-confessional statement” of the appellant has no legal foundation upon which the fate of this appeal can be founded. The law actually recognises prosecution’s right to call any witnesses it decides as a prerogative and not a mere privilege. See Samuel Theophilus v. The State (1996) 1 NWLR (Pt. 423) 139 at 151.
Thus, there is no duty on the prosecution to call any particular number of witnesses, as one credible or qualitative witness can establish a criminal accusation beyond reasonable doubt. See the cases of Adaje v. State (1979) 6 – 9 SC 1; Okonofua v. State (1981) 6 – 7 SC 1; Alabi v. State (1993) 7 NWLR (Pt. 307) 511;AlewoAbogede v. The State (1996) 5 NWLR (Pt. 448) 270; Basil Akalezi v. State (1993) 2 NWLR (Pt. 273) 1; N.O. Okere v. The State (2001) 2 NWLR (Pt. 697) 397 Fatai Olayinka v. The State (2007) 9 NWLR (Pt. 1040) 561; Alhaji Muazu Ali v. The State (2015) 10 NWLR (Pt. 1466) 1 and Chibuike Ofordike v. The State (2019) 5 NWLR (Pt. 1666) 395.

​In the case of Fred Dapere Gira v. The State (1996) 4 NWLR (Pt. 443) 375 at 382; ​it was held that:
“…the credibility of evidence does not ordinarily depend on the number of witnesses that testify on a particular point. The crucial question is whether the evidence of one credible witness, on a particular point, is believed and accepted.
If the answer is in the affirmative, then it is sufficient to justify a conviction. See Ali v. The State (1988) 1 NWLR (Pt. 68) 1.”

The duty on the prosecution is to prove the commission of a crime beyond reasonable doubt. It has no duty to lead evidence which it considers not helpful or useful to its case.

By way of a preamble, it is a settled principle of law that a complete record of appeal is binding on a Court of appeal and the parties to the appeal. See Joseph Agbon Ojeme v. Prince Mark Jimoh Mamodu(1994) 1 NWLR (Pt. 323) 685 and Monday Okpokpo v. Nnana Akpan Uko (1997) 11 NWLR (Pt. 527) 94.

​It is also trite that an appellate Court is permitted by law to take judicial notice of all relevant information, contained in a record of appeal, which can assist the Court in doing substantial justice in the determination of the appeal. See, for example, the cases of S.B.M. Services (Nig.) Ltd. v. Catherine Sede Okon (2004) 9 NWLR (Pt. 879) 529; Alhaji Mohammed Sanusi Daggash v. Hajia Fati Ibrahim Bulama (2004) 14 NWLR (Pt. 892) 144; Alhaji Muhammadu Maigari Dingyadi v. Independent National Electoral Commission (2011) 10 NWLR (Pt. 1255) 347 and Military Governor of Lagos State &Ors. v. Adebayo Adeyiga & Ors. (2012) 5 NWLR (Pt. 1293) 291.

​As stated earlier, I have read the record of appeal and taken judicial notice of the facts and information therein, including the evidence of Lawal Dabo, the victim of the alleged offence, whose evidence or testimony spans pages 52, 53 and 54 of the record. Thereafter, the investigating police officer – Sgt. Obide Bitrus, commenced his evidence-in-chief as PW2 from page 56 of the record. On pages 56 – 57 of the record, PW2 testified thus:
“My names are Sgt. Obide Bitrus Sgt. of the NPF No. 249088 attached to Force Criminal and Intelligent Investigation Department Area 10 Garki Abuja as an Intelligent Officer Operative.
On 15/03/2016 at about 06:00 hrs to 18:00 hrs while I was on duty at the State CIIB Minna attached to Special Anti Kidnapping and Violent Crime Unit, Minna as an investigating Police Officer (IPO) a Case of Criminal Conspiracy Armed Robbery, and Theft of cows was transferred from SarkinPawa Police Division and same referred to my unit for investigation along with the case file and the suspects now the accused persons before this Court. Myself and Sgt. Zaiyanu Abubakar our team Inspt. Mohammedu Gana were detailed to investigate.
I was detailed to record the accused statements. The accused came with 2 suspects to the SCIIB Minna name Babuga Umar and Ibrahim Dabo on 15/03/2016. one of which I took to the investigation room and one at the counter.
Babuga Umar which I took to the investigation room, I cautioned in English language interpreted it to him in Hausa language which he said he understood and thumb printed. He then volunteer his statement in Hausa language which I wrote in English language read it over to him in Hausa language he said it to be correct and thumb printed and I countersigned as the IPO and recorder. I returned him to the counter”.

​On page 58, PW2 sought to tender the statements of the three defendants and there was an objection by the learned defence counsel. The relevant record is hereby reproduced:
“I can identify the statement of each of the accuseds, I recorded through each of their names, my handwriting and my signature at the end of each as the IPO (witness shown a documents). This is statement of Babuga Umaru the 1st accused before the Court, this is that of Ibrahim Dabo the 2nd accused before the Court and this is that of Barau Umar the 3rd accused before the Court.
Chiroma: We seek to tender same in evidence.
Isah: I object to admissibility of the accused’s statements in evidence on the ground of being obtained through torture in human and degrading treatment.
Chiroma: In the circumstance, we apply for Trial within Trial in respect of the statements.
Court: Trial within Trial is hereby ordered into the statements of the accuseds.
SGD
HON. JUSTICE AISHA A. L. B. BWARI
JUDGE
19/09/2018”

​As can be seen from the record of appeal, as contained on pages 56, 57 and 58 reproduced above, the appellant’s statement was not initially recorded in Hausa language and later translated into English language. It was actually recorded in English language, even though it was volunteered in Hausa language but PW2 recorded same in English language and interpreted the statement to the appellant in Hausa language, which the appellant accepted to be correct and he thumb printed thereon before PW2 countersigned.

Having regard to the facts on record, the issue of the vernacular version of the appellant’s statement to the police does not arise. Therefore, the cases cited and heavily relied upon by the learned counsel for the appellant are outrightly inapplicable to this case. It is now settled, under legal theory or jurisprudence, that “cases are only authorities for what they actually decided in the context of the prevailing facts” – per Nweze, JSC in Interdrill Nigeria Ltd. v. United Bank for Africa Plc. (2017) 13 NWLR (Pt. 1581) 52 at 66.
​Therefore, each case has to be considered within its peculiar circumstances and facts, since the affairs of humankind are regarded as a kaleidoscope in view of uncertainty and amorphousness of circumstances, events, facts, situations, etc. of human endeavours. This has been recognized for several centuries. For example, Kay, J., stated in Conventry Case (1890), L. R. I. C. D. (1891), P. 207 that:
“Human affairs are wonderfully like a kaleidoscope, with its combination of colours constantly changing”.

Any learned counsel can deliberately align his arguments with some principles of law, settled by some other cases, for the purposes of invoking the time-honoured doctrine of bindingness of judicial precedent, but it should be noted that no matter how articulate, brilliant, illuminating or interesting the arguments of learned counsel may be, they cannot be replacement or substitute for the evidence on record. See Onu Obekpa v. Commissioner of Police (1981) NCLR 420; Bernard Ugorji v. Nathaniel Onwuka (1994) 4 NWLR (Pt. 337) 226; Mallam Yusuf Olagunju v. Chief E. O. Adeoye Adesanya (2014) 12 NWLR (Pt. 1422) 521; Nigerian Telecommunications Ltd. v. Engr. Emmanuel C. Okeke (2017) 9 NWLR (Pt. 1571) 439; Chukwuemeka Agugua v. State (2017) 10 NWLR (Pt. 1573) 254 and Karimu Sunday v. The State (2018) 1 NWLR (Pt. 1600) 252.

​As can be seen from the record, reproduced earlier in this judgment, the appellant’s objection to the admissibility of his statement to the police was that it was “obtained through torture inhuman and degrading treatment”. This is completely different from the case the appellant is making in this Court. The law is that a party must be consistent in the prosecution or defence of a case and should not be allowed or even encouraged to approbate and reprobate over an issue. See Iliyasu Suberu v. The State (2010) 1 NWLR (Pt. 1176) 494.

The trial Court, based on the appellant’s objection to the admissibility of his statement to the police, conducted a trial-within-trial in which it rendered a reserved ruling at the conclusion thereof, whereby the objection was overruled and the appellant’s statement was admitted in evidence as exhibit “A”.

​There is no appeal against the ruling of the trial Court on the trial-within-trial, which it conducted on the basis of the appellant’s objection. The law is that any finding or decision not appealed against is deemed to be accepted and correct and it is binding on the parties and the Court. See Ukariwo Obasi v. Eke Onwuka (1987) 3 NWLR (Pt. 61) 364; Michael Ndiwe v. Anthony Chuma Okocha (1992) 7 NWLR (Pt. 252) 129; Madam Adunola Adejumo v. Mr. Oludayo Olawaiye (2014) 12 NWLR(Pt. 1421) 252; Wike E. Nyesom v. Dakuku A. Peterside (2016) 1 NWLR (Pt. 1492) 71; Col. Mohammed Sambo Dasuki v. Federal Republic of Nigeria (2018) 10 NWLR (Pt. 1627) 320 and Yusuf Sani v. The State (2021) 5 NWLR (Pt. 1770) 502.

Learned counsel for the appellant contended strongly that the appellant’s evidence in the trial Court amounted to a retraction of his confession. A confession may be retracted but the law accords no sacredness or sacrosantness to retraction of a confession. Where the confession of a defendant is free and voluntary and it is direct, positive and properly established, it can sustain a conviction, so long as the Court is satisfied with its truth. See Arthur Onyejekwe v. The State (1992) 3 NWLR (Pt. 230) 444; Emmanuel Nwaebonyi v. The State (1994) 5 NWLR (Pt. 343) 138; Nkwuda Edamine v. The State (1996) 3 NWLR (Pt. 438) 530; Akpan Ben Akpan v. The State (2001) 15 NWLR (Pt. 737) 745; Golden Dibie& 2 Ors. v. The State (2007) 9 NWLR (Pt. 1038) 30; Wole Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470; Legi Mohammed v. The State (2019) 6 NWLR (Pt. 1668) 203 and Nura Aliyu v. The State (2021) 17 NWLR (Pt. 1805) 197.

​By the trial Court’s ruling on the trial-within-trial, it has been established that the appellant’s statement was freely and voluntarily made. The question, now, is whether or not it is direct and positive.

​The trial Court, in its judgment, reproduced the appellant’s confessional statement, from pages 128 to 129 of the record, as follows:
“Exhibit B is the statement of the 2nd accused person Ibrahim Dabo at the CID Police Station Minna on 15/03/2016 wherein he stated inter alia after the cautionary words:
“…I did not go to school sometimes in June 2015 left Yantumaki and came to Makeri Tunga Sarkin Pawa with my family I am a cattle rearers to farmer. I don’t have any cow apart from that am a cattle rustler. I steal cows to make a living. Sometimes in 2015; I and Goodluck targeted of stealing Dabo’s cows who lives at Tungan Makeri at Kaduna. We meet with Goodluck ‘aye, Lawali, Doka, Shamadara, Dangi and Babuga last year and Abdullahi younger brother to Barau all of us are members of the same gang. I was promised 5 heads of cows, but I have not collected it yet after the cows were stolen all my members moved to Doroyi. They have twoAK47 and AK49 and one pump gun. Goodluck and Dangi are the one with the Ak. This is the first time life pushed me and Barau said we should give them the target Barau live at Anguwan Makera Kaduna.
CPL Bitrus Obida
15/03/2016
R.T.P of Ibrahim Dabo
15/03/2016”

In the appellant’s confession, he directly and positively confessed that he was one of the persons – a gang which had two AK 47 rifles – who robbed the victim – Lawal Dabo (PW1) of his cows and sheep; that he was the person who even shot the victim with a pump action gun; and that he got his share of the proceeds of the armed robbery. This confession amply supports the evidence of the victim – Lawal Dabo (PW1) who testified, amongst other things, that he was shot with a gun and robbed of his cattle and sheep by the appellant, and the appellant’s co-defendants and others.

The trial Court, in its judgment, referred to the cases of Nwachukwu v. The State (2007) 17 NWLR (Pt. 1062) 31; Shodiya v. The State (2013) 14 NWLR (Pt. 1373) 147 and Chiekwu v. State (2013) 15 NWLR (Pt. 134) 205 and stated as follows:
“Thus the Court finds and holds that Exhibits A, B and C have satisfied the rules governing weight to be attached to confessional statement whether retracted or not which are herein stated here under:
a. Is there anything outside the confessional statement to show that it is true?
b. Is it corroborated?
c. Are there relevant statements made in it of fact true as far as they can be tested?
d. Was the accused one who had the opportunity of committing the offence?
e. Is his confession possible?”

After applying the above tests, the trial Court held that the appellant’s confession was corroborated by the evidence of PW1 – the victim of the crime.

The evidence on record conclusively shows that:
(a) there was a robbery;
(b) the robbery was an armed robbery; and
(c) the defendant/appellant was the robber or one of the robbers.
​These are the ingredients required to be proved in an offence of armed robbery. See the cases of Bozin v. State (1985) 2 NWLR (Pt. 8) 465; Okosi v. A.-G; Bendel State (1989) 1 NWLR (Pt. 100) 642; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Osetola v. State (2012) 17 NWLR (Pt. 1329) 251; Osuagwu v. State(2013) 5 NWLR (Pt. 1347) 360; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614; The State v. Yusuf Usman(2021) 16 NWLR (Pt. 1801) 73; Luqman Kushimo v. The State (2021) 16 NWLR (Pt. 1801) 147 and Oliver Sunday v. The State (2021) 17 NWLR (Pt. 1804) 115.

The learned counsel for the appellant also complained about the alleged failure by the prosecution to lead credible evidence on the identity of the appellant. I think that this complaint is obviously baseless, in view of the appellant’s self-implication in the commission of the crime by his confession to the police.

It is settled law that whereby a defendant’s confession, the Court accepts his guilt, it would be preposterous, pretentious and superfluous for the issue of identity or identification of the defendant to be further interrogated or entertained. See Shina Akinrinlola v. The State (2016) 16 NWLR (Pt. 1537) 73 at 97, per Okoro, JSC; where the Supreme Court held that:
“As we held in Adeyemi v. State (supra), it is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. An accused person who has made a confessional statement which is accepted by the Court has indeed identified himself. To talk about any further identification is, to say the least, superfluous”.

In Luqman Kushimo v. The State (supra) at 172 – 173, per Saulawa, JSC; the Supreme Court has held on the meaning of “identification” in criminal thus:
“Instructively, the term ‘identification’ in criminal, denotes the act or process of proving that a person charged with an offence and arraigned before a Court of law or Tribunal is the same person who actually committed that offence.
The term ‘identification’ is varied and ubiquitous:
(i) Dock identification: refer to an in-Court declaration by an eye witness to a crime that the defendant (accused person) in the dock was the person who committed the crime or was present at the scene of the crime. Also termed ‘in-Court identification’;
(ii) Eye witness identification: This type of identification denotes a naming or description by which a person has witnessed (seen) testifies from memory about the person or persons involved”.

​The eyewitness, in this case, Lawal Dabo (PW1) testified in the trial Court, inter alia, as follows:”I observed six of them at the front of my house. I was able to identify some of them. They are the accused persons in the Court which include Babuga, Ibrahim and Barau … The 1st accused before the Court is Babuga …”

Therefore, apart from the appellant’s self-identification in his confessional statement, he was positively identified in the trial Court by an eyewitness (PWI) via dock-identification, in-Court identification, or eyewitness identification as recognized and required by law.

Under criminal litigation in Nigeria, three means, methods or ways of proving a crime are accepted and duly recognized and they are:
(i) the direct evidence of an eyewitness or eyewitnesses;
(ii) the confession of the accused defendant; and
(iii) circumstantial evidence.
See for example, the cases of Adeniyi Adekoya v. The State (2012) 9 NWLR (Pt. 1306) 539; The State v. Usman Isah (2012) 16 NWLR (Pt. 1327) 613; Ekpo Obongha Mbang v. The State (2013) 7 NWLR (Pt. 1352) 48; Michael Adeyemo v. The State (2015) 16 NWLR (Pt. 1485) 311; Anthony Itu v. The State (2016) 5 NWLR (Pt. 1506) 443; Joseph Bille v. The State (2016) 15NWLR (Pt. 1536) 363; Ifeanyichukwu Akwuobi v. The State (2017) 2 NWLR (Pt. 1550) 421; Wahab Alao v. The State (2019) 17 NWLR (Pt. 1702) 501 and Andrew KoyeFekolomoh v. The State (2021) 6 NWLR (Pt. 1773) 461.

I wish to state the well known principle of law that in criminal prosecution, the burden of proof lies squarely on the prosecution and the standard required is proof beyond reasonable doubt. See Section 135 (3) of the Evidence Act, 2011 and the cases of Yusuf Sani v. The State (2021) 5 NWLR (Pt. 1770) 502; Rev. Jolly Tevoru Nyame v. Federal Republic of Nigeria (2021) 6 NWLR (Pt. 1772) 289; Asiya Bala Orubo v. The State (2021) 16 NWLR (Pt. 1803) 549 and Nura Aliyu v. The State (2021) 17 NWLR (Pt. 1805) 197.

On the meaning of “proof beyond reasonable doubt”, the Supreme Court, per Peter-Odili, JSC; in Nura Aliyu v. The State (supra) at 225 – 226, held thus:
“In a long line, of judicial authorities of the apex Court, proof beyond reasonable doubt means the prosecution establishing the guilt of an accused person with compelling and conclusive evidence. I shall cite just one, Oseni v. The State (2012) 5 NWLR (Pt. 1293) 351 at 388.
The appellant had confessed to the commission of the offence in exhibit A and A1 and there is no evidence stronger than a person’s own admission or confession. See Ikpo v. The State (2016) 10 NWLR (Pt. 1521) 501 at 530.
The burden on the prosecution to prove the offence against the appellant beyond reasonable doubt does not translate to proof beyond the shadow of all doubt or proof to the hilt. Clearly, the prosecution has discharged the burden of proof beyond reasonable doubt as expected by the law. See Bolanle v. State (2009) 15 NWLR (Pt. 1172) 1 at 10-11; Jua v. State (2010) 9 NWLR (Pt. 1184) 217 at 243”.

In this case, by the combination of the evidence of the prosecution witnesses, especially that of PW1, and the appellant’s confession, the crime or offence with which the appellant was charged was proved beyond any reasonable doubt.

It is for all the foregoing reasons that I resolve the live and lone issue in this appeal against the appellant.
This appeal is bereft of any merit and it is hereby dismissed.

​The judgment of the trial Court, per Hon. Justice Aisha A. L. B. Bwari, delivered on the 22nd day of September, 2021 in Suit No. NSHC/MN/30C/2017 is hereby affirmed.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading in draft form, the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA. My brother dexterously waded through the maze of judicial and statutory authorities cited and relied upon by learned counsel to the parties in this appeal in their respective briefs of argument. He also considered the evidence adduced before the lower Court, weighed it on the imaginary scale of justice and reached the inevitable decision that this appeal lacks merit and dismissed same.

I agree with and adopt as mine the finding and conclusion reached by my brother in the leading judgment. I also dismiss this appeal for lacking in merit and affirm the decision reached by the learned trial Judge in Suit No. NSHC/MN/30C/2017 delivered on 22nd September, 2021 wherein the Appellant was found guilty of the offence of Armed Robbery punishable under Section 1 (2) (a) & (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2010.

​OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have been availed of the lead copy of the judgment delivered by Hon. Justice Moore Aseimo Abraham Adumien, JCA.

I entirely align with his lordship’s reasoning and pronouncements on the sole issue for determination in this appeal. I however consider it needful to stress that a confessional statement is not rendered inadmissible simply because the accused person retracted or denied making it.

This principle is now settled and there are a plethora of cases to this effect.
In Dau vs. State (2015) LPLER – 40410 (CA) this Court held thus:
“It is trite law that a confessional statement to the Police does not become inadmissible simply because the accused who made it denies over making it or retract the confession on Oath.
The confessional statement cannot be regarded as unreliable by mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to determine the weight to be attached to it. See Oche Vs. State (2007)5 NWLR (Pt. 1027) 214; Oguno vs. State (2011)7 NWLR (Pt. 1246) 314; Awo, Idowu vs. State (2000) 12 NWLR (Pt 680) 48.”
​In the instant case, since the retraction was made during the Appellant’s testimony inchief, the trial Court was right to have ascertained from other pieces of evidence to determine whether the confessional statement was true, voluntary, direct and positive had been found to be true, it is admissible and the Appellant’s retraction is immaterial. See Effiong Vs. State (1998)5 SCNJ 160;Uluebeka vs. The State (2007) 7 NWLR (Pt. 665) 404; Alarape vs. State (2001) 2 SC 114; and Okoro vs State (1998)3 NWLR (Pt. 88) 214 Per Abba Aji, JCA (Pp. 29-30, para D-D)
Similarly in the case of Dau vs. State LPELR-40410 CA Pg. 29-30 para A-D this Court held that: “It is trite law that, confessional statement to the Police does not become inadmissible simply because the accused who made it denies ever making it or retract the confession of Oath. The confessional statement cannot be regarded as unreliable by mere denial or retraction. However, the denial or retraction is a matter to be taken into consideration to determine the weight to be attached to it.” See Oche vs. State (2007) 5 NWLR (Pt. 1027) 217; Oguno vs. State (2011)7 NWLR (Pt. 1246) 314 and Idowu vs. State (2000) 12 NWLR (Pt. 680) 48.

The trial Judge’s decision to admit and rely on the confessional statement of the accused was clearly in order and I am unable to fault his erudite decision.

It must be recounted that the Appellant sought to impugn the admissibility of the confessional statement which led to a trial within trial at the end of which the trial Court rightly admitted the Appellant’s confessional statement in evidence. The Appellant directly and positively admitted that he was amongst the gang who robbed and opened fire against the victim, PW1.

Aside from this, the trial Court rightly relied on the testimony of PW1 who asserted that he was shot by the Appellant and robbed of his cattle. Notwithstanding the fact that the Appellant retracted his confessional statement, the evidence outside the confessional statement further gave credence to Exhibits A, B and C, the confessional statements of the Appellant and his fellow cattle rustlers. I am therefore unable to flaw the seasoned decision of the trial Court.

It is for foregoing considerations and the fuller reasoning espoused in the lead judgment, that I find this appeal unmeritorious.

​It is accordingly dismissed. The judgment of the trial Court is hereby affirmed.

Appearances:

O. S. Kehinde, Esq. For Appellant(s)

Eloka J. Okoye, Esq. (by fiat) For Respondent(s)