GARBA v. STATE
(2022)LCN/16720(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Thursday, March 10, 2022
CA/K/380/C/2017
Before Our Lordships:
Abubakar Mahmud Talba Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
LAWAL GARBA APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT IT IS IN ALL CASES THAT A CONFESSIONAL STATEMENT MUST BE CORROBORATED
I will like to state here that it is not in all cases that a confessional statement must be corroborated. In SANI ABDULLAHI & ORS VS. THE STATE (2013) LPELR – 20644 (SC), the Supreme Court held that:
“I am in complete agreement with learned respondent’s counsel that it is not the law that confessional statement of an accused person must, in all cases, be corroborated to entitle the trial Court convict the accused for the offences the accused admitted having committed. This Court in numerous of its decisions has been emphatic, and the Court below has in its decision towed the line, that a conviction may be based solely on a confessional statement once the confessional statement is direct, positive and unequivocal….”
However, the usual practice of Courts is to look for some other evidence outside the statement, no matter how slight, which makes the confession probable or true. In OKOH VS. STATE (2014) LPELR – 22589 (SC), the Supreme Court held:
“It was held in: Salawu v. State (1971) NMLR 249 AT 252 that while it is the law that the Court can act on the confessional statement of an accused person to sustain a conviction, where the statement is retracted in Court, independent corroboration, however slight must be sought. See also Akinfe v The State (1988) 3 NWLR (Pt. 85) 729 AT 746…” PER IDRIS, J.C.A.
WHETHER OR NOT A RETRACTION FROM A CONFESSIONAL STATEMENT AFFECTS ITS ADMISSIBILITY
Again, I will state that the law is well settled that a retraction from a confessional statement does not affect its admissibility but goes to the weight to be attached to the confessional statement considering other evidence led at the trial. See GALADIMA VS. THE STATE (2013) ALL FWLR (PT. 667) 630 SC. However, it is desirable and prudent to employ the test by Ridley J. inR. VS. SYKES (Supra), which has been approved by the Supreme Court in several cases. PER IDRIS, J.C.A.
THE POSITION OF LAW ON THE BEST TIME TO RAISE THE DEFENCE OF ALIBI
The law is trite that it is the duty of the accused to raise the defence of alibi promptly and properly. It is also the duty of the accused to give details of the alibi he has set up to ensure that the prosecution or the police investigate it properly. The accused person is therefore duty bound to furnish the necessary information from which his whereabouts at the crucial time can be checked. PER IDRIS, J.C.A.
THE POSITION OF LAW ON THE DEFENCE OF “ALIBI”
In MATTHEW VS. STATE (2020) LPELR – 51083 (CA), the Court of Appeal held:
“The law as related to plea of alibi is very simple. Alibi simply means elsewhere. This means that the appellant was saying he was not at the scene of crime. See Eke v. State (2011) LPELR – 1133 SC, Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112, Okolo Ochemaje v. The State (2008) LPELR – 2198 (SC) and Idemudia v. State (2015) 17 NWLR (Pt. 1488) 375.”
In KOLADE VS. STATE (2017) LPELR – 42362 (SC), the Supreme Court held that:
“The defence of alibi is based on the physical impossibility of an accused person being guilty by placing him in another location at the relevant time. It also means – “the fact or state of having been elsewhere when an offence was committed”. See Black’s Law Dictionary, 8th Ed., Shehu v. State (2010) 8 NWLR (Pt. 1195)… Once the defence is properly raised by an accused during investigations, it is the duty of the police to investigate it and for the prosecution to disprove it. But it is not in all cases that failure to investigate an alibi will be fatal to the case of the prosecution… It is also settled that a defence of alibi, to be worthy of investigation, must be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time. See Shehu v. State (supra) and Ochemaje v. State (supra), where Tobi, JSC expatiated as follows –
It is not the law that the police should be involved in a wild goose chase for the whereabouts of the accused person at the time the crime was committed. No. That is not the function or role of the Police. The accused must give specific particulars of where he was at the time of the material time to enable the Police move straight to that place to carry out the investigation required by law… Investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination of the accused or his witness…” PER IDRIS, J.C.A.
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): The Appellant herein appealed against the decision of the Katsina State High Court in Case No. KTH/22C/2013 delivered on the 27th day of February, 2017 by Honorable Justice I. B. Ahmed wherein the Court found the Appellant guilty of the offences charged and sentenced him to death.
The facts of the case leading to this appeal as adduced from the record before the trial Court are to the effect that the Appellant and another accused person were jointly charged with culpable homicide and armed robbery. In the three count charge, the Appellant and the other accused person were alleged to have killed Mallam Maisamari Maigadi and Usman Maigadi on the 13th day of March, 2012 at Magamar Jibia, Jibia Local Government Area of Katsina State and on the 2nd day of March, 2012 at Magamar Jibia they beat a night watchman, broke into the shop of one Adda’u Isma’il took valuable items and the sum of N500, 000. The three counts are reproduced hereunder as follows:
“COUNT ONE:
That you, (1) Lawal Garba of Rafindadi Quarters, Katsina and (2) Sani Abdullahi of Magamar Jibia, Jibia Local Government Area of Katsina State, on or about the 13th day of March, 2012 while in company of one other now at large at Jibia Motor Park did commit culpable homicide punishable with death in that you caused the death of Mallam Maisamari Maigadi by hitting him with iron rod with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code.
COUNT TWO:
That you, (1) Lawal Garba of Rafindadi Quarters, Katsina and (2) Sani Abdullahi of Magamar Jibia, Jibia Local Government Area of Katsina State, on or about the 13th day of March, 2012 while in company of one other now at large at Jibia Motor Park did commit culpable homicide punishable with death in that you caused the death of Usman Maigadi by hitting him with iron rod with the intention of causing his death and thereby committed an offence punishable under Section 221 of the Penal Code.
COUNT THREE:
That you, (1) Lawal Garba of Rafindadi Quarters, Katsina and (2) Sani Abdullahi of Magamar Jibia, Jibia Local Government Area of Katsina State, on or about the 2nd day of March, 2012 while in company of one other now at large at Magama Jibia, beat the night watchman and broke into the shop of one Adda’u Ismail and took away valuable properties which included wrappers of different types, Shadda, bags and boxes valued at the sum of about N500,000 and you thereby committed the offence of Armed Robbery punishable under Section 1(2)(b) of the Robbery and Firearms (special provisions) Act Cap R11 Laws of Federation 2004.
The prosecution called 8 witnesses and tendered several documents marked as Exhibits 5A, 5B, 6A, 6B, 7A, 7B, 8A, 8B, 9A, 9B, 10A, 10B, 11A, 11B, 12A, 12B, 13A, 13B, 14A and 14B. While the Appellant on the other hand testified as DW2. The learned trial judge found the Appellant guilty of all three counts of the charge and sentenced him to death.
Dissatisfied with the decision of the trial Court, the Appellant appealed to this Court and the parties to this appeal filed their respective briefs of arguments.
The Appellant’s brief is dated the 4th day of May, 2021 and settled by D. D. Killi, Esq. In the said Appellant’s brief, the following 3 (three) issues were raised for determination thus:
1) Whether the trial Court properly evaluated the retracted and uncorroborated confessional statements of the Appellant before relying on them to convict the Appellant for the offences of culpable homicide punishable with death and armed robbery. (Distilled from Grounds 2 and 3 of the Further Amended Notice of Appeal)
2) Whether the prosecution’s evidence was sufficient in law, credible enough and properly relied upon by the trial Court to warrant the Appellant’s conviction for the offences of culpable homicide punishable with death and armed robbery. (Distilled from Grounds 1 and 5 of the Further Amended Notice of Appeal)
3) Whether the trial Court properly considered and appraised the legal defence of alibi raised by the Appellant before convicting him. (Distilled from Ground 4 the Further Amended Notice of Appeal)
On issue one, Counsel for the Appellant submitted that despite the rule that confessional statement by itself can sustain a conviction, where the statement is denied or retracted there must be some evidence outside it to make the confession probable and show that it is true. Counsel further submitted that in the instant case, the Appellant did not object to the admissibility or retract the statement in Exhibit 5A and 5B, 6A and 6B but that the Appellant clearly objected to making or signing of Exhibits 8A and 8B, 9A and 9B, 10A and 10B, 11A and 11B. Counsel also submitted that the Appellant objected to the admissibility of Exhibits 8A and 8B, 9A and 9B, 10A and 10B, 11A and 11B but that the Court overruled the objection and admitted the statements on the basis that it will determine the weight to attach to them later in its judgment but the Court after admitting that there is no direct or eye witness account as well as circumstantial evidence still relied on the said confessional statements to convict the Appellant.
Counsel then argued that when a confessional statement is sought to be tendered, an accused person may deny, retract or resile from the confessional statement. The case of UWA VS. THE STATE (2015) 4 NWLR (PT. 1405) 438 was relied on. It was further submitted that where an accused person retracts his statement a trial Court must be wary of convicting on the same without some other compelling corroborative evidence that is consistent with the confessional statement. Additionally, Counsel maintained that in determining the weight to be attached to a confessional statement the Court is expected to apply the test established in R V SYKES 18 CR App 233. The cases of FRIDAY UZIM VS. THE STATE (2019) LPELR – 48983 (SC) and SABI VS. THE STATE (2011) 4 NWLR (PT. 1268) 421 were referred to in support.
Counsel also submitted that a cursory comparison of the statements that were admitted without objection (Exhibits 5A – 6B) with the denied confessional statements (Exhibits 8A – 11B) will support the Appellant’s case that he did not make or sign the statements. Counsel further submitted that whereas the first set of exhibits were thumb printed, the second set of statement inexplicably bear a signature which should have prompted the trial Court to believe the Appellant did not make them.
Additionally, it was submitted that from the evidence led by PW1 – PW8, the trial Court rightly found that there was no eye-witness, direct account or circumstantial evidence and as such it is clear that the rest of the evidence do not give credibility to the retracted confessional statement to make it a sufficient ground for a conviction.
Counsel further submitted that the retracted confessional statements were not corroborated because there was no eye-witness, direct account or circumstantial evidence (see pages 74 – 75 of the Record of Appeal) and that the first set of statements (5A – 6B) contradicted the second set of statements (8A – 11B). Secondly counsel submitted that the statements of fact made in the retracted statements are mostly likely untrue as the contents of the retracted statement contradict themselves. Furthermore, Counsel submitted that the Appellant did not have the opportunity to commit the offences and that the confession is not possible. Finally, Counsel argued that the confession is not consistent with other ascertained and established facts.
Under issue two, Counsel to the Appellant submitted that it is trite law that for the prosecution to prove a criminal case the proof must be beyond reasonable doubt which could be done by way of direct evidence of an eye-witness, or by positive and compelling circumstantial evidence that point only to the accused or through voluntary confessional statement of the accused. The cases of ILODIGIWE VS. STATE (2012) 18 NWLR (PT. 1331) 1 at 29 – 30 PARAS. G – B and ADIO & ANOR VS. STATE (1986) 17 N.S.C.C. (PT. 1) 525 AT 535 were relied on. It was further submitted that to rightly convict an accused of the offence of culpable homicide punishable with death the prosecution must not only discharge the burden of proof beyond reasonable doubt but also prove that the death occurred as a result of the accused person’s action which he knew would result in death. The case of ELIZABETH OGUNDIYAN VS. THE STATE (1991) 4 S.C.N.J. 44 AT 53.
It was then argued that a cursory look at the prosecution’s witnesses’ evidence i.e. PW1 – PW8 show that the prosecution only proved the death of the deceased persons and that a robbery took place without more. It was also argued that the prosecution did not prove the other ingredients required in law to ground a conviction for the offence of homicide. So also with the charge of robbery the prosecution did not tender evidence or proof of stolen items and weapons recovered from the Appellant during the investigation by the Police.
In conclusion, it was submitted that from the entire evidence there was nothing to prove the commission of armed robbery by the accused as all the trial Court relied on as with the case of the conviction of culpable homicide punishable with death was the Appellant’s retracted confessional statements.
As it relates to issue three, it was argued that the onus of proof is not on an accused person who pleads an alibi as the onus shifts to the prosecution to investigate. The cases of TIJJANI VS. COP (1994) 3 NWLR (PT. 335) 692 AT 700 and ABDULLAHI VS. THE STATE (2005) 8 NWLR (PT. 927) 313 AT 324 were relied on.
Counsel submitted further that the position of law is settled that where evidence placed before the Court clearly demonstrates that the accused person seeks to rely on an alibi that defence cannot be denied to the accused person. The case of EBRE VS. STATE (2001) 12 NWLR (PT. 728) 617 AT 635. It was then argued that in spite of the glaring evidence that the Appellant raised the defence timeously, the trial Court held that the defence of alibi was not raised at the earliest opportunity in the statement of the Appellant to the police and thus shows that the trial Court did not properly evaluate the evidence.
The Respondent on its part filed a Respondent’s brief dated the 23rd day of November, 2021 which was settled by A. A. Ibrahim, Esq. In its brief of argument, the Respondents adopted the issues for determination formulated by the Appellant in his brief of argument and the said issues are reproduced hereunder again as follows:
1) Whether the trial Court properly evaluated the retracted and uncorroborated confessional statements of the Appellant before relying on them to convict the Appellant for the offences of culpable homicide punishable with death and armed robbery.
2) Whether the prosecution’s evidence was sufficient in law, credible enough and properly relied upon by the trial Court to warrant the Appellant’s conviction for the offences of culpable homicide punishable with death and armed robbery.
3) Whether the trial Court properly considered and appraised the legal defence of alibi raised by the Appellant before convicting him.
In relation to issue one, Counsel for the Respondent submitted that the lower Court adequately followed all the tests and criteria for ascertaining that veracity of the confessional statements before convicting the Appellant. Counsel submitted that in addition to the confessional statement, the trial Court referred to testimonies of witnesses and exhibits before convicting the Appellant. It was also argued that a statement made by an accused person and properly admitted in law is the best guide to the truth of the role played by him and the Court can convict on that alone. Additionally, it was further submitted that a confession alone is sufficient without corroboration as there is no evidence stronger than a person’s own admission. The cases of OLABODE VS. STATE (2009) 5 MJSC (PT. 11) PG 83 AT 104 – 105; IKPO VS. STATE (2016) 10 NWLR (PT. 1521) SC 501 AT 530 and SALIU VS. STATE were cited in support.
Counsel then argued as it relates to the Appellant’s contention in paragraph 24 where it was stated that the first set of Statement (Exhibits 5A – 6B) were thumb printed while the other set of Statements (Exhibits 8A – 11B) bear a signature, that the two set of statements were recorded by different police stations and both investigating police officers testified but the issue was never raised at the trial Court and as such the issue was an afterthought. Additionally, with regard to the contradictions in the testimonies of PW7 and PW8 Counsel for the Respondent contended that the Appellant failed to point out such contradictions which relate to the substance of the matter as the Court cannot speculate. The cases of OGUNYE VS. STATE (1999) 5 NWLR (PT. 604) PG 548 AT PARA D – E and SHAIBU VS. STATE (2017) 16 NWLR (PT. 1592) PG 396 AT 421 PARA A – C were cited in support.
On issue two, Counsel for the Respondent submitted that the Prosecution through the Appellant’s Confessional Statement particularly Exhibit 10, directly linked the Appellant to the death of the deceased persons. It was submitted that the confessional statements particularly Exhibits 10 and 11 are direct, positive and unequivocal on the commission of the offences of Culpable Homicide and Armed Robbery. Counsel further submitted that the trial Court evaluated the evidence properly and that failure to tender the weapons used in commission of an offence is not fatal to the case of the prosecution contrary to the submission of the Appellant in paragraph 45 its brief. The case of MICHEAL ALOR VS. THE STATE (1996) 4 NWLR (PT. 445) PG 726 AT 742 – 743 was relied on in support.
On issue three, Counsel for the Respondent submitted that the trial Court contrary to the contention of the Appellant, considered and pronounced on the defence of alibi raised by the Appellant in page 77 of the Record of Appeal. It was further argued that the law is trite that an alibi should be very detailed on where the accused was at the time the offence was committed and give names of people he was with and their addresses to show he was indeed with them. The cases of ADEWUNMI VS. STATE (2016) 10 NWLR (PT. 1521) PG 614 AT 630 PARAS E – G and WISDOM VS. STATE (2017) 14 NWLR (PT. 1586) PG 446 AT 465 PARA B – D.
The Appellant also filed a reply brief dated the 7th day of December, 2021. Counsel replied to the Respondent’s argument in paragraph 4.8 that the Appellant’s argument relating to the discrepancies in signatures ought to have prompted the trial Court to believe the Appellant and is therefore not an afterthought. Counsel then argued that contrary to the Respondent’s argument in paragraph 4.9 and 4.10 that they actually pointed out the contradiction in PW7 and PW8’s testimonies. Additionally, it was argued that contrary to the Respondent’s assertions under issue 2 the extrajudicial statements were not direct, positive and unequivocal proof of the Appellant’s guilt. Finally, Counsel contended that the Appellant’s defence of alibi was detailed and contained details but the Police chose to present their own version of events.
RESOLUTION OF THE ISSUES
Upon a review of the brief of arguments filed by the parties herein, I shall adopt the Appellant’s issues for determination as it captures all the issues formulated in this appeal. The said issues again are reproduced hereunder thus:
ISSUE ONE
Whether the trial Court properly evaluated the retracted and uncorroborated confessional statements of the Appellant before relying on them to convict the Appellant for the offences of culpable homicide punishable with death and armed robbery.
The law is trite that a confessional statement which is denied by an accused person should be admitted into evidence and the weight to be attached to it should be decided at the end of the trial when the trial judge has taken into consideration all other circumstances surrounding the case. Therefore, it is at the judgment stage that the judge decides the weight to be attached to the statement that is whether or not the accused person made the statement.
In the instant case, Counsel for the Appellant had argued that where an accused person has retracted his confessional statement the Court must be wary of convicting the accused without some other compelling corroborative evidence. Counsel also argued that the trial Court itself on page 74 of the record of appeal held that there was no direct or eye-witness account as well as circumstantial evidence for which the Appellant is standing trial. Counsel then went ahead to use the test in R V SYKES 18 CR App R 233 to show that the Appellant did not make the confessional statements (Exhibit 8A – 11B). While Counsel for the Respondent on the other hand, argued that the lower Court followed all the tests and criteria for ascertaining the veracity of the confessional statements. The test in R V SYKES 18 CR App R 233 was relied on by the Supreme Court in DAWA VS. STATE (1980) 8 – 11 S.C. 236, and the six tests for the authentication of the truth of a confessional statement before any evidential weight can be attached to it were stated as follows:
“(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated in any way?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the accused one who had the opportunity of committing the offence?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and established?”
It is trite that from the 6 questions in the test above the most important question is: whether the confessional statement is corroborated in any way?
I will like to state here that it is not in all cases that a confessional statement must be corroborated. In SANI ABDULLAHI & ORS VS. THE STATE (2013) LPELR – 20644 (SC), the Supreme Court held that:
“I am in complete agreement with learned respondent’s counsel that it is not the law that confessional statement of an accused person must, in all cases, be corroborated to entitle the trial Court convict the accused for the offences the accused admitted having committed. This Court in numerous of its decisions has been emphatic, and the Court below has in its decision towed the line, that a conviction may be based solely on a confessional statement once the confessional statement is direct, positive and unequivocal….”
However, the usual practice of Courts is to look for some other evidence outside the statement, no matter how slight, which makes the confession probable or true. In OKOH VS. STATE (2014) LPELR – 22589 (SC), the Supreme Court held:
“It was held in: Salawu v. State (1971) NMLR 249 AT 252 that while it is the law that the Court can act on the confessional statement of an accused person to sustain a conviction, where the statement is retracted in Court, independent corroboration, however slight must be sought. See also Akinfe v The State (1988) 3 NWLR (Pt. 85) 729 AT 746…”
I have looked at the evidence in this case and the judgment of the lower Court and I agree with the counsel to the Appellant’s arguments on this issue. The learned trial judge in his judgment as it relates to culpable homicide held on page 74 of the record of appeal that:
“On the 2nd ingredient that the death was caused by the accused person’s, absence of any direct or eyewitness account of the incident as well as any circumstantial evidence, this Court has to rely on the accused person’s confessional statement which the Court had earlier ruled as voluntary and unequivocal and therefore admissible…”
While the learned trial judge as it relates to armed robbery, held on page 75 of the record of appeal that:
“As in the case of the first two counts, there was equally no direct or circumstantial evidence in proof of the third ingredient of this offence except that there was an armed robbery in which the night watchman of the shop of PW2 was attacked, injured with arms and valuable goods carted away from the shop… In the circumstance, the Court has to fall back on the accused persons’ confessional statement earlier cited and relied upon in proof of the third and final ingredient of the offence in the 3rd count of armed robbery.”
From the above judgment, it can be seen that there was in fact no other evidence to corroborate the confessional statement even though the Appellant retracted the confessional statements as the trial Court has deemed that the confessional statements were “voluntary and unequivocal”. As I have mentioned in the earlier part of this judgment the most important question to answer when testing the authenticity of a confessional statement as set out in the case of R V SYKES 18 CR App R 233 which has been adopted by a plethora Nigerian cases is: whether the confessional statement is corroborated in anyway?
From the evidence in this case, it is glaring that there is no evidence to corroborate the confessional statement. This in my opinion, means that the said confessional statements were not unequivocal as they were not corroborated. In a nutshell, after evaluating the first set of confessional statements i.e. Exhibit 5A – 6B and the second set of confessional statements i.e. Exhibits 8A – 11B, I find that the confessional statements, in this case, fail the test of credibility. Therefore, the learned trial judge did not properly evaluate the retracted and uncorroborated confessional statements before relying on them to convict the Appellant.
This issue is therefore resolved in favour of the Appellant against the Respondent.
ISSUE TWO
Whether the prosecution’s evidence was sufficient in law, credible enough and properly relied upon by the trial Court to warrant the Appellant’s conviction for the offences of culpable homicide punishable with death and armed robbery.
In answering this issue, I will use the ingredients established by law for proving each of the two offences. I will begin with the first offence which is culpable homicide punishable with death. The trial Court in pages 73 – 74 established that the prosecution proved its case using the following criteria:
1) Death of a human being has occurred
2) That the death was caused by the accused persons
3) That the act was done with the intention of causing death or such bodily injury as was likely to cause death.
On the first ingredient, the trial Court held on page 74 of the record of appeal that:
“On the first ingredient, in addition to the testimony of a number of prosecution witnesses 3, 4, 5, 6 and 7 and the presence of the Exhibit 1A, 1B, 2A and 2B which were the photographs of the deceased victims of the murder and Exhibits 3 and 4 which were the post-mortem examination results of the victims, not even the Defence Counsel had challenged the proof of this ingredient of the offence, thereby proving the 1st ingredient.”
I am in total agreement with the trial Court on this ingredient. I however, as it relates to the second ingredient, do not agree with the trial Court. The trial Court in the same page 74 of the record of appeal held as it relates to the second ingredient as follows:
“On the 2nd ingredient that the death was caused by the accused person’s, absence of any direct or eyewitness account of the incident as well as any circumstantial evidence, this Court has to rely on the accused person’s confessional statement which the Court had earlier ruled as voluntary and unequivocal and therefore admissible. The confessional statements were admitted as Exhibits 5A and 5B, 6A and 6B, 8A and 8B, 9A and 9B, 10A and 10B, 11A and 11B in respect of the 1st accused person…”
I have already established in issue one above, that the confessional statements in this case which were retracted failed the test of authenticity as they were not corroborated in any way. Thus the trial Court was in error when it relied solely on such confessional statements which were not corroborated in anyway.
With regards to the offence of armed robbery, the trial Court used the following criteria:
1. That there was robbery or series of robberies
2. That each robbery was an armed robbery
3. That each accused was one of those who participated in the armed robbery.
The trial Court then went on to hold at page 74 of the record as follows:
“As in the case of the first two counts, there was equally no direct or circumstantial evidence in proof of the third ingredient of this offence except that there was an armed robbery in which the night watchman of the shop of PW2 was attacked, injured with arms and valuable goods carted away from the shop… In the circumstance, the Court has to fall back on the accused persons’ confessional statement earlier cited and relied upon in proof of the third and final ingredient of the offence in the 3rd count of armed robbery.”
Again, I will state that the law is well settled that a retraction from a confessional statement does not affect its admissibility but goes to the weight to be attached to the confessional statement considering other evidence led at the trial. See GALADIMA VS. THE STATE (2013) ALL FWLR (PT. 667) 630 SC. However, it is desirable and prudent to employ the test by Ridley J. inR. VS. SYKES (Supra), which has been approved by the Supreme Court in several cases.
As I have decided on the issue of culpable homicide punishable with death, the confessional statement relied on by the trial Court failed the test of credibility as it was not corroborated. The third ingredient for the offence of armed robbery was therefore not established. In conclusion, I find that the prosecution’s evidence was not sufficient and credible enough to warrant the conviction of the Appellant.
I therefore resolve this issue in favour of the Appellant against Respondent.
ISSUE THREE
Whether the trial Court properly considered and appraised the legal defence of alibi raised by the Appellant before convicting him.
The law is trite that it is the duty of the accused to raise the defence of alibi promptly and properly. It is also the duty of the accused to give details of the alibi he has set up to ensure that the prosecution or the police investigate it properly. The accused person is therefore duty bound to furnish the necessary information from which his whereabouts at the crucial time can be checked.
In MATTHEW VS. STATE (2020) LPELR – 51083 (CA), the Court of Appeal held:
“The law as related to plea of alibi is very simple. Alibi simply means elsewhere. This means that the appellant was saying he was not at the scene of crime. See Eke v. State (2011) LPELR – 1133 SC, Shehu v. The State (2010) 8 NWLR (Pt. 1195) 112, Okolo Ochemaje v. The State (2008) LPELR – 2198 (SC) and Idemudia v. State (2015) 17 NWLR (Pt. 1488) 375.”
In KOLADE VS. STATE (2017) LPELR – 42362 (SC), the Supreme Court held that:
“The defence of alibi is based on the physical impossibility of an accused person being guilty by placing him in another location at the relevant time. It also means – “the fact or state of having been elsewhere when an offence was committed”. See Black’s Law Dictionary, 8th Ed., Shehu v. State (2010) 8 NWLR (Pt. 1195)… Once the defence is properly raised by an accused during investigations, it is the duty of the police to investigate it and for the prosecution to disprove it. But it is not in all cases that failure to investigate an alibi will be fatal to the case of the prosecution… It is also settled that a defence of alibi, to be worthy of investigation, must be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time. See Shehu v. State (supra) and Ochemaje v. State (supra), where Tobi, JSC expatiated as follows –
It is not the law that the police should be involved in a wild goose chase for the whereabouts of the accused person at the time the crime was committed. No. That is not the function or role of the Police. The accused must give specific particulars of where he was at the time of the material time to enable the Police move straight to that place to carry out the investigation required by law… Investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination of the accused or his witness…”
In the instant case, the trial Court held on page 77 of the record of appeal thus:
“Also the Defence Counsel cannot be heard to complain on their purported defence of alibi as the defence was not raised at the earliest opportunity in the statements of the accused persons to police to enable them investigate and disprove them. In that respect full particulars of the whereabouts of the accused and the persons with whom they were together at the time of commission of the offence should have been given to the police to enable them investigate…”
The Appellant raised his defence of alibi in his confessional statement thus:
“I don’t know anything about the killing of that three watchmen… when the incident occur I was at Abuja where (I am doing my labour) I was conducting my business labourer.”
From the forgoing analysis, it is clear that the trial Court correctly pronounced on the issue of alibi. Though it cannot be said that the Appellant did not raise the issue of alibi timeously, however the trial Court was right when it held that the Appellant did not furnish full particulars of his whereabouts and with whom they were together at the time of the commission of the offence for the Police to investigate. Indeed, the police cannot go on a “wild goose chase” in the name of investigating alibi.
I therefore resolve this issue in favour of the Respondent against the Appellant.
This appeal succeeds in part. The judgment of the trial Court delivered on the 27th February, 2017 is hereby set aside.
ABUBAKAR MAHMUD TALBA, J.C.A.: I had the opportunity of reading in draft the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA and I entirely agree with his reasoning and conclusion that the appeal succeeds in part. I abide by the consequential order in the lead judgment.
KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, MOHAMMED BABA IDRIS, JCA. I agree with my Lord that the purported confessional statement relied upon by the trial Court failed the test of credibility. I also allow this appeal and set aside the conviction and sentence of the Appellant as contained in the judgment of the lower Court.
Appearances:
D. D. Killi, Esq. For Appellant(s)
A. A. Ibrahim, Esq., with him, M. O. J. Katsina, Esq. For Respondent(s)
