HUSSEINI v. STATE & ORS (2020)

HUSSEINI v. STATE & ORS

(2020)LCN/14456(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, July 28, 2020

CA/G/72/C/2019

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

SADIQ HUSSEINI APPELANT(S)

And

1. THE STATE 2. ISAH USMAN 3. BABAN NANA ABUBAKAR MOHAMMED RESPONDENT(S)

RATIO

WHETHER OR NOT AN ACCUSED CAN BE CONVICTED SOLEY ON HIS CONFESSIONAL STATEMENT WITHOUT CORROBORATION

The general principle of law is that an accused can be convicted solely on his confessional statement without corroboration once it is satisfied of the truth of the confession – Blessing V FRN (2015) LPELR-24689(SC) per Ogunbiyi, JSC. When a confession is made, an accused person is hook, line and sinker admitting to all the ingredients of the offence(s) he has confessed to, and in the course of this, he usually reveals other facts which the prosecution and the world may not even know in respect of the crime, except for the culprit. This is more so where the confessional statement is unequivocal, clear and voluntary without any evidence of interference to taint it, such as threat, violence, etc. Thus, it follows that a confessional statement is the best, most direct and potent weapon in the hand of the prosecution against an accused person upon which a trial Court can legitimately act – Oyem V FRN (2019) 12-13, A-C, per Abba-Aji, JSC. PER SANKEY, J.C.A.

WHETHER OR NOT A CONFESSIONAL STATEMENT IS THE BEST FORM OF EVIDENCE

It is the settled position of law that a confessional statement is the best form of evidence. A confession binds the maker and is sufficient to ground a conviction once it is unequivocal and believed by the Court to be true – Oyem V FRN (2019) 24, D-F, & 25, A, per Okoro, JSC; Igri V State (2012) 16 NWLR (Pt. 1327) 522, 532; Okewu V FRN (2012) 9 NWLR (Pt. 1305) 327, 352; Amanchukwu V FRN (2009) 8 NWLR (Pt. 1144) 475.
Thus, the principle of law is that an accused person who retracts his confessional statement may still be convicted of the offence(s) charged if the confessional statement is direct, positive and unequivocal, and there is some evidence outside the confession, no matter how little, which tends to show that the confession is true – Kamila V State (2018) LPELR-43603(SC) 40, D-E, per MD Muhammad, JSC. PER SANKEY, J.C.A.

STANDARD OF PROOF IN CRIMINAL TRIALS

Instead, the law is that when the prosecution has attained such a degree of proof that leads only to the remote possibility in favour of the accused, the case is proved beyond reasonable doubt. In Miller V Minister of Pensions (1947) All ER 322, 373, Denny, J. (as he then was), stated that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. Proof beyond reasonable doubt does not mean proof to a mathematical certainty. Were it to be so, then no case could ever be proved – Oyem V FRN (2019) LPELR-47392(SC) 15-16, B-E, per Onnoghen, CJN.PER SANKEY, J.C.A.

DEFINITION OF A “CONFESSIONAL STATEMENT”

A Confessional Statement is an admission by an accused person that he committed the crime of which he is alleged to have committed or suggesting the inference that he committed the crime. See Section 28 of the Evidence Act, 2011. The Supreme Court in the case of Ifeanyichukwu Akwuobi vs. The State (2016) LPELR-41389 (SC) held:
“It is trite law and already settled that a free and voluntary confession of guilt by an accused person, if direct and positive, duly made and satisfactorily proved before the trial Court is alone sufficient to warrant a conviction even if there is no corroborative evidence. Therefore, a conviction based on such a Confessional Statement will not be quashed on appeal, merely because it is based entirely on the evidence of confession by the Appellant. What is important is that the Court must be satisfied with the facts and circumstances in which the confession was made. See R. V. Ajayi Omakaro (1941) 146, Anthony Ejinima vs. The State (1991) 6 NWLR (Pt. 200) 627, (1991) 7 SCNJ 318 (1991) 7 SC (Pt. 11) 1.” per Ariwoola, JSC (pp. 39 – 40, paras F – D). PER ABUNDAGA, J.C.A

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is a sister Appeal to the following two (2) Appeals:
A. Appeal No. CA/G/71/C/2019, between Isah Usman V (1) The State, (2) Sadiq Hussaini and (3) Baban Nana Abubakar Mohammed; and
B. Appeal No. CA/G/11C/2020, between Baban Nana Abubakar Mohammed V State.

The trio of the Appellant, Isah Usman and Baban Nana Abubakar Mohammed were charged before the High Court of Gombe State in Case No. GM/14C/2017 for the same offences in respect of the same incident. They were tried together before the same Court, represented by the same Counsel and at the end of the trial, they were both found guilty and sentenced to death. Dissatisfied with the Judgment, both accused person filed separate Appeals to this Court with identical grounds of Appeal. The Records of Appeal transmitted to this Court for both Appeals are the same. In addition, the issues crafted for determination by the parties are the same, as well as the submissions of learned Counsel on both sides. The differences in the two Appeals lies mainly in the names of the parties, the respective Appeal numbers and the

fact that the confessional statements of the Appellant, Exhibits A, B, F and F1 in this Appeal, are Exhibits E, E1, H and H1 in the sister Appeal.

This Appeal is against the Judgment of the High Court of Justice of Gombe State delivered on November 2, 2018 by Pindiga, J., wherein the Appellant was convicted on a three-count charge of criminal conspiracy contrary to Section 97 of the Penal Code, culpable homicide punishable with death contrary to Section 221 of the Penal Code and Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended). As a result, he was sentenced to death by hanging.

The facts leading to the Appeal are briefly set out hereunder:
By an Amended Charge dated June 30, 2017 the Appellant was charged along with the 2nd and 3rd Respondents with three counts of offences as follows:
1) Criminal conspiracy to commit armed robbery and culpable homicide punishable with death contrary to Section 5(b) and punishable under Section 1(2) (b) of the Robbery and Firearms Special Provisions Act, 1990 (as amended) and Section 97 of the Penal Code;
2) Culpable homicide

punishable with death contrary to Section 221 of the Penal Code; and
3) Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions)Act, 1990 (as amended).

The substance of the allegations in the charge against the Appellant was that on June 24, 2016, the Appellant alongside the co-accused persons conspired together and while armed with knives and cutlasses, robbed one Tijjani Mohammed of his Samsung handset and money to the tune of N1800.00. They also stabbed him on his chest and stomach which ultimately led to his death. Upon being arraigned, the Appellant pleaded not guilty to the charge. The case proceeded to trial and the prosecution in proof of the charge adduced evidence through seven (7) witnesses and thirteen (13) Exhibits. Some of the exhibits which were considered crucial are the medical report – Exhibit C, the Hausa confessional statements of the Appellant and their English translations made at the Pantami Police Division and subsequently at the Gombe State CID NPF – E, E1, H and H1. In his defence, the Appellant and the co-accused persons testified for themselves and the 1st accused person’s

brother, DW4, testified for him.

On November 2, 2018 the learned trial Judge delivered its Judgment wherein he found the Appellant and his co-accused persons guilty of the offences charged, convicted them and sentenced them to death by hanging. Dissatisfied, the Appellant filed his Notice of Appeal on January 21, 2019 wherein he complained on 13 grounds.

At the hearing of the Appeal on June 23, 2020, Adedayo Adesina Esq. adopted the Appellant’s Brief of argument filed on 21-10-19, deemed filed on 02-06-20 and settled by Adedayo Adesina, Esq. in urging the Court to allow the Appeal. On his part, Abdussalam Muhammad Esq., Acting DPP with the Ministry of Justice, Gombe State adopted the 1st Respondent’s Brief of argument filed on 17-06-20 and settled by him, Abdussalam Muhammad Esq., in urging the Court to dismiss the Appeal. Both learned Counsel made brief submissions in adumbration of their respective Briefs of argument as contained in the Record.

The Appellant in his Brief of argument distilled three issues from his thirteen grounds of Appeal for the determination of the Court. They are as follows:

1) “Whether the lower Court was right to have convicted the Appellant for the three counts of offences viz: (i) Criminal Conspiracy to Commit Armed Robbery and Culpable Homicide punishable with death contrary to Section 5(b) and punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) and Section 97 of the Penal Code; (ii) Culpable Homicide punishable with death contrary to Section 221 of the Penal Code; and (iii) Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) based on the retracted confessional statements of the Appellant. (Grounds 1, 2, 4, 7, 9 and 11)
2) Whether having regards to the totality of the evidence placed before the trial Court and the position of the law, the 1st Respondent proved beyond reasonable doubt all the offences for which the Appellant was convicted by the lower Court. (Grounds 3, 5, 6, 10 and 12)
3) Whether the failure of the lower Court to properly evaluate the evidence adduced by the 1st Respondent (Prosecution) and the Appellant in his defence and make clear findings on same occasioned a miscarriage of justice against the

Appellant. (Grounds 8 and 13)”

For the 1st Respondent, three issues were also framed for the determination of the Court as follows:
1. “Whether the trial Court was right to hold that the respondent has proved its case of conspiracy, armed robbery and culpable homicide punishable with death based on the evidence adduced by the prosecution. (Grounds 3, 5, 6, 10 and 12)
2. Whether the trial Court was right in according probative evidential value on the retracted confessional statements of the Appellant in its Judgment. (Grounds 1, 2, 4, 7, 9 and 11)
3. Whether the learned trial Court has rightly evaluated the evidence adduced by the prosecution and defence witnesses before making clear findings on same and whether the appellant’s right to fair hearing was breached thereby occasioning a miscarriage of justice against the appellant.”

The 2nd and 3rd Respondents, even though duly served all the processes of Court in this Appeal, inclusive of the respective Briefs of argument of the Appellant and the 1st Respondent, did not file any Brief of argument in response. They did not therefore contest the Appeal. It must

however be mentioned that they filed their separate Appeals against the Judgment as indicated at the onset of the Judgment.

Of the two sets of issues submitted for determination by the parties, I adopt the issues framed by the Appellant, much as they a tad bit verbose. However, they essentially capture the issues arising from the Appellant’s complaints in his 13 Grounds of appeal. Issue 2 of the 1st Respondent comes within the ambit of issue 1 of the Appellant; while the 1st Respondent’s issues 1 and 3 fit snugly into the Appellant’s issues 2 and 3. I therefore adopt the Appellant’s issues in considering the Appeal. However, the issues shall be addressed in this order: issue one shall be taken first and taken alone, while issues two and three shall be taken together.

ARGUMENTS
Issue one – Whether the lower Court was right to have convicted the Appellant for the three counts of offences viz: (i) Criminal Conspiracy to Commit Armed Robbery and Culpable Homicide punishable with death contrary to Section 5(b) and punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) and

Section 97 of the Penal Code; (ii) Culpable Homicide punishable with death contrary to Section 221 of the Penal Code; and (iii) Armed Robbery punishable under Section 1(2) (b) of the Robbery and Firearms (Special Provisions) Act, 1990 (as amended) based on the retracted confessional statements of the Appellant. (Emphasis supplied)

The crux of the submission of learned Counsel for the Appellant here issue is that, whereas the learned trial Judge relied on only the confessional statements of the Appellant, Exhibits A, B, F and F1, to convict the Appellant of the offences charged, the statements were subsequently retracted and their veracity was not tested in line with the decisions of the Court in Edhigere V State (1996) 8 NWLR (Pt. 464) 1, 10; Ogudo V State (2011) 18 NWLR (Pt. 1278) 1, 26; and Okoh V State (2014) 8 NWLR (Pt. 1410) 502, 526.

Counsel also contends that Exhibits A and B, the confessional statements made at the State CID Gombe were not thumb printed by the Appellant and so creates doubt on their veracity, correctness and accuracy, as well as the veracity of Exhibits F and F1, the confessional statements made by him at Pantami Division –

Nweze V State (2017) LPELR-42344 (SC). Counsel therefore submits that the doubts created around the veracity and reliability of these confessional statements should be resolved in the Appellant’s favour as it was unsafe for the lower Court to have ascribed weight and probative value to the statements and convicted him placing reliance on them. Counsel also takes up issues with the fact that the confessional statements, Exhibits A and B, and Exhibits F and F1 were recorded and translated by the the same Police officers, I.e. PW3 and PW5. He contends that this violated the constitutional right to fair hearing of the Appellant – Queen V Nnana Okoro (1960) NSCC 93, 94; State V Eze (1972) 2 ECSLR (Pt. 2) 7, per Araka, J. Consequently, he urged the Court to expunge the confessional statements or in the alternative, not to attach any probative weight to them.

In response, learned Counsel for the Respondent submits that the Appellant failed to challenge the confessional statements at the point in which they were tendered and only did so when testifying in his defence.

Secondly, Counsel submits that a free and voluntary confession alone is sufficient

to ground a conviction without further corroboration so long as the Court is satisfied with the truth of the confession. The fact that the Appellant retracted his confessional statement does not mean that the Court cannot act on it to convict him because in criminal trials a confession is the strongest evidence of guilt, stronger than the evidence of an eyewitness because it comes from the horse’s mouth – Bawa V State (1998) 8-11 SC 230, 267; Akpan V State (2010) 8 LRCNC 70, 73; Osung V State (2012) 11 SCM 176, 178; Gabriel V State (2011) 6 NWLR (Pt. 1190) 280, 290; Osung V State (2011) 11 SCM 176, 178.

Counsel further submits that the Court can act on a confessional statement and convict on it so long as there is some corroboration, no matter how slight, where it is retracted – Gabriel V State (supra). In the instant case, the confessional statement met all the basic fundamentals of a valid statement as set down in Ogudo V State (2011) 202 LRCN 11. The confessional statements, Exhibits A, B, F and F1, adhered to all these criteria and were duly signed by the Appellant.

Counsel also submits that the Appellant was given adequate facilities to prepare

for his defence because before his arraignment, he was served the proofs of evidence, and this is in line with the requirement under Section 36(6) (b) of the 1999 Constitution.

On the issue of the translation of the confessional statements by an alleged interpreter who did not testify, Counsel submits that the statements were recorded and translated by the same officers, PW3 and PW5, and the two sets of statements were tendered through them. A separate interpreter was not used for this purpose. Therefore, this procedure did not contravene the principle of fair hearing enshrined in Section 36(1) of the Constitution (supra).

RESOLUTION OF ISSUE ONE
In considering this issue, I have given close attention to the competing submissions of both learned Counsel and the authorities relied upon and referred to. Before addressing the specific issues raised, it is pertinent to state the baseline on the manner of proof of criminal cases in a Court of law. There are three modes of proof of criminal cases and they are as follows: (a) by the testimonies of eyewitnesses who witnessed the commission of the crime(s) by the accused person(s), which is referred to

as direct proof; (b) through the confessional statement(s) voluntarily made by the accused person(s); and (c) through circumstantial evidence, which clearly points to the fact that the accused person, and no other, committed the offence, i.e. indirect proof – Emeka V State (2001) 6 SCNJ 267.

A confessional statement can simply be defined as an admission by a person accused of committing a crime anywhere and at anytime, stating or suggesting the inference that he committed the crime – Section 28 of the Evidence Act, 2011. A free and voluntary confession of guilt by an accused person, provided it is direct and positive and it was made voluntarily, is sufficient to ground a conviction since a confession always remains the best proof of what he had done – Fabiyi V State (2015) 6-7 SC (Pt. I) 83; Dogo V State (2013) 2-3 SC (Pt. II) 75, 92-94; Osetola V State (2012) 6 SCNJ 321.

It is also settled law, of which I am mindful, that before a Court convicts an accused person on his confessional statement alone, it must ascertain whether such a confessional statement was made voluntarily; and also that it was direct, positive, cogent and consistent with other

facts proved – Jimoh V State (2014) 10 NWLR (Pt. 1414) 105.
In addition, the Supreme Court has over the years evolved some requirements which a confessional statement must meet in order to be relied on by trial Courts. Some of these requirements are: (i) It must contain the words of caution; (ii) The words of caution must have been administered in the language understood by the accused person; (iii) The confessional statement was duly signed/thumb-printed by the accused person; (iv) The statement was recorded in the language understood by the accused person; and (v) The statement was thereafter read over and interpreted to the maker in the language it was recorded.

In the instant case, the complaint of the Appellant is that the trial Court convicted him on his confessional statements, Exhibits A, B, F and F1 which were retracted in Court. Also according to him, the trial Court relied solely on these confessional statements to convict him of the three offences charged of criminal conspiracy, culpable homicide punishable with death and armed robbery. In the first place, it must be emphasized that the confession of an accused person to the commission

of an offence plays a vital role in the determination of his guilt. Therefore, a trial Court is empowered to convict an accused person on his confessional statement alone once it is convinced that the confession was voluntary.

In the instant case, the initial confessional statements of the Appellant and the 2nd and 3rd accused persons made at Pantami Division Gombe State Police Command were tendered through PW5, the first Investigating Police Officer (IPO), Cpl. Isa Salestina. Even though Counsel for the Appellant and the other two co-accused persons denied that they made the statements, they were rightly received in evidence as Exhibits E, E1, F, F1 and G, G1 respectively, as there was no challenge to their voluntariness or the relevance of the statements to the proceedings (page 102 of the Record). The documents were certainly both relevant and admissible in evidence. Therefore, they could be acted upon by the trial Court without reservation. What was left was the weight to be attached to the documents at the close of trial having been retracted. It is the law that even if the process of admission of such statements was irregular (which is not the case

in the instant Appeal), where no objection is raised at the point of tendering, it would be taken to have been waived and cannot be made the subject of a complaint on appeal.

After the investigations at Pantami Division of the Police Command, the case was transferred to the State CID Gombe State Command NPF. PW3, Cpl Abdiel Arami, the second Investigating Police Officer (IPO), was assigned to investigate and receive the statement of the Appellant in respect of the allegations against him. Page 94 of the Record discloses that he diligently went through the laid down procedure for receiving a statement from a person accused of criminal offences. When the prosecution applied to tender the statement, which was confessional in nature, in evidence, Counsel for the Appellant had no reservations whatsoever and so it was admitted in evidence as Exhibits A and B – pages 94-95 of the Record.

The Appellant in both sets of confessional statements was consistently informed of his rights to either make or refrain from making a statement. He duly signed the words of caution after being cautioned in Hausa, the language which he understands, about his rights to

either make a statement or not in respect of the allegations. Thereafter, he volunteered his statements in Hausa language which was recorded by PW3 and later by PW5 at the Pantami Division and at the State CID Gombe Command. These were later translated into English language by the same officers. In these confessional statements, Exhibits A, B, F and F1, the Appellant freely and repeatedly admitted his criminal responsibility with regard to his agreement and the plan hatched with the co-accused persons, including two others at large. He also admitted his participation in the physical aspects of the offences of armed robbery and culpable homicide, forming the actus reus, to wit: the attack and stabbing of the deceased with knives and cutlasses; as well as the intention behind his action forming the mens rea, to wit: the decision to kill the deceased since he and the other co-conspirators had recognized him as one “Yaya Tijjani” and therefore were afraid that he would identify them – Okeke V State (2003) 15 NWLR (Pt. 842) 25. For ease of reference, the relevant portions of this confessional statement in Exhibit F (the Hausa statement) and Exhibit F1

(its English translation) are reproduced hereunder:
“… On 24/6/2016 at about 2100 hours, myself, Isa Usman, Sadiq Husseini, Baban Nana, Bayee and Baffa, we were going from Bolori near Salim Chinie through the entrance of Bolori at the other side, our intention was whoever we met on the road we will collect his or her property. We then met with Mallam Tijjani, I then flashed his face with torch light. Isa Usman then said he knows him. I also know him because we leave (sic) in the same area, at that Bayee attacked him asking him to give him his handset, he removed it but he did not want to give him. Bayee then stabbed him with a knife on his ribs, we then collected his Samsung handset, his money cash sum of N1,800.00k We shared N300 300 among ourselves. While the handset we kept it to Baban Nana with the intention that when the case is calm we will sell it and share the money. We left him, on our way going Isa Usman then said since we knew him, he may identify us if we did (sic) kill him, we went back to kill him. Bayee then stabbed him again and we left him, after two (sic) I heard that he was dead, and is because of what we did to him that cause

his dead… I know conspiracy to collect person property is not good. Yes I know to kill somebody is not good, is an offence and I have committed the offence. Yes I am Kalere member.”

Again in his second confessional statement, Exhibits A and B, which he made when he was transferred to the State CID Gombe State Command NPF, the Appellant again restated his nefarious role in the incident inter alia as follows:
“… On 24/6/2016 at about 2100hrs I Sadiq Husseini, Isah Usman and Bappa all ‘m’ of Bolari quarters Gombe, and Baban Nana ‘m’ of Gabbukka quarters and Baiyi ‘m’ of Pantami quarters, Gombe. We decided to go and attack people to collect valuable items, in our possession was one small knife, two cutlass and one touch light. We went to Bolori Secondary School behind the fence, We met one Mallam Tijjani together with one lady standing and gisting, then we approached Mallam Tijjani. Baiyi stabbed him on his chest and also his stomach. then we collected his handset samsung and the sum of N1,800-00k we move a little and we decided to come back and finish him so that we cannot be identify by any one.

We came back and Baiyi stabbed him again for the third time while Baban Nana used cutlass on his leg. We finally left. We ran through Bolori Secondary School back to out various homes. After two days we were caught through our friend because we told him Abdullahi Tangul ‘m’ of Bolori quarter about the crime we committed, the vigilante came to my house and I was taken away by the vigilante boys at the same process. Isah Usman was also caught but Baiyi, Baban Nana and Bappa were at large. Babangida went with the handset while we share the N1,800.00k among our selves.”

It is be noted that at the point of again tendering this second statement in evidence, no manner of objection was raised by Counsel.
At this stage, it bears emphasis that the law is settled that the mere retraction of a voluntary confessional statement by an accused person, as in the instant case, neither renders the confessional statement inadmissible or worthless or untrue, in relation to his guilt. Instead, the Court is merely enjoined to find some evidence, no matter how slight that makes it likely that the confession is true – Idowu V State (2000) 7 SC (Pt. II) 50;

Silas V State (1996) 1 NWLR 59.

On the issue of corroborative evidence, contrary to the submission of Counsel for the Appellant, the learned trial Judge did not convict the Appellant solely on his confessional statements. From the printed Record of the trial Court, the learned trial Judge took pains to examine other pieces of evidence offered by the prosecution with a view to determining if the confessional statements were true, notwithstanding that they were direct, positive and unequivocal. The trial Judge made several references to the evidence of PW1, Rashida Saleh, the young lady who was with the deceased and was attacked along with him by the Appellant and his co-assailants. In her evidence, she graphically described in considerable detail how, on the fateful day, they were attacked with knives and cutlasses dispossessed of their possessions and even recounted the conversation among the assailants conveying the decision to kill the deceased for fear that he had recognized them. PW1 was honest enough to say that she was unable to identify any of their attackers because they flashed their torchlight in her eyes. Since this is eyewitness testimony, I

will reproduce a few relevant portions of it for ease of reference. At pages 84-85 of the Record, she testifies as follows:
“On 24 day of June 2016 I was sent to take food to my Aunty’s house. I then called my fiancee by flashing we then talked, then he came and we meet (sic)… we greeted then came five young men, then they were about to pass us but came back and flashed us with their torchlight, then asked us to bring money and our phones. He did not argue he removed and gave it to them, they also collected my own. I don’t know how much they collected from him. As they were about to go they came back and one of them said it is our elder brother Yaya Tijjani he recognize us so we should stab him. They told one “A chaka a chaka masa wuka” he then stabbed him. I did not see their faces when they were stabbing him because it was only moonlight and they flashed our eyes so that we cannot recognize them. After they stabbed him they left.”

Again, the learned trial Judge considered the statement of complaint made to the Police by the deceased himself soon after the attack, Exhibit D. Therein, the deceased described

the vicious attack on him and PW1 on the night of 24-06-16 by the assailants with lethal weapons and how they dispossessed him of his Samsung Galaxy Handset and the sum of N1,800.00. The relevant portions of the statement are set out hereunder as follows:
“Today 24/6/2016 at about 2100hrs I was standing on the road near Dr. Ishaya Clinic, unknown person(s) suddenly came in that same road, they were many. One of them then asked for my handset and I gave them the handset is Samsung Galaxy valued at N27, 000.00k and they also collected my money cash N1,800.00k. After giving them the property one among them stabbed me with knife on my ribs. Immediately they left. I don’t have problem with anybody. I can’t recognize them.”

PW5, the first IPO in her evidence, corroborated the report lodged by the deceased, his physical condition and how she rushed him to the hospital, where he subsequently died on 26-06-16. In addition, the trial Judge referred to and relied on the medical evidence presented by the prosecution in the form of the medical report, Exhibit C, wherein the medical doctor who examined the corpse, PW4 – Dr. Bello

Abdulshaheed Aminu, described the injuries, stab wounds, etc, on the body of the deceased, which evidence was consistent with the other pieces of evidence contained in the confessional statements, the evidence of PW1 and the statement of the deceased, himself, Exhibit D. Again, its contents are reproduced as follows:
“The above named patient was admitted into the Emergency room on 25th June 2016 with stab wound to the left hypochondrium, and was managed as a case of penetrating abdominal injury and haemoperotoneum.
The patient was being planned for emergency exploratory laparatomy, but he ceased breathing and was declared clinically dead at 2.05am on 26th July, 2016.”

One last important factor considered by the trial Judge was the uncontroverted evidence adduced by the other prosecution witnesses of how the Appellant and his co-travelers fled the scene of crime as well as the town and went into hiding until they were fished out by the vigilantes who handed them over to the Police. By a combination of all the above facts, the learned trial Judge was convinced that the confessional statements of the Appellant, Exhibits A, B, F and F1,

were true and that they served as adequate corroboration sufficient upon which to convict the Appellant. I cannot fault this. Nonetheless, I must reiterate that generally a confessional statement which is made voluntarily and is direct, cogent, credible and positive, is enough to ground a conviction even without corroboration of any sort. That is the law – Kamila V State (2018) 18, per Amiru Sanusi, JSC; Akinfe V State (1988) 7 SCNJ (Pt. II) 226; Yahaya V State (1986) 12 SC 282, 290.

On the quality of the evidence of the investigating Police officers (IPOs), PW3, PW5 and PW7, investigating Police officers narrate to the Court the nature of their investigations and the outcome of such investigations, as well as items recovered, discovered and/or observed during the course of such investigations. In addition, IPOs give narrations of when and how accused persons made their extra-judicial statements to the Police, confessional or otherwise, and the circumstances thereof. Thus, it is incumbent upon trial Courts to put into consideration such vital pieces of evidence discovered in the course of investigations in order to arrive at a just decision, one way or

the other. Consequently, it is not stricto senso considered hearsay – Kamila V State (supra) 22-23, D-A.

The totality of the evidence adduced before the trial Court discloses that the Appellant, after having been arrested and confronted with the allegations, confessed to having committed the offences at the earliest opportunity. It is significant also that Counsel did not at all cross-examine the two IPOs from Pantami Police Division and the State CID Headquarters Gombe, i.e. PW5 and PW3 respectively, on the allegations of torture later made by the Appellant when he testified as DW2 in his defence. In his defence, the Appellant alleged that the statements were not voluntary that he did not make them. The law is that where an accused person has failed to raise an objection to the tendering of evidence during trial, he cannot raise that objection on Appeal -Oyem V FRN (2019) LPELR-47392(SC) 25, A, per Okoro, JSC.

It has also been contended by Counsel that the learned trial Judge should not have acted on these free and voluntary confessions made twice by the Appellant, namely, first at the Pantami Police Division and secondly at the State CID Command

Gombe just because he subsequently retracted them while testifying in his defence. The general principle of law is that an accused can be convicted solely on his confessional statement without corroboration once it is satisfied of the truth of the confession – Blessing V FRN (2015) LPELR-24689(SC) per Ogunbiyi, JSC. When a confession is made, an accused person is hook, line and sinker admitting to all the ingredients of the offence(s) he has confessed to, and in the course of this, he usually reveals other facts which the prosecution and the world may not even know in respect of the crime, except for the culprit. This is more so where the confessional statement is unequivocal, clear and voluntary without any evidence of interference to taint it, such as threat, violence, etc. Thus, it follows that a confessional statement is the best, most direct and potent weapon in the hand of the prosecution against an accused person upon which a trial Court can legitimately act – Oyem V FRN (2019) 12-13, A-C, per Abba-Aji, JSC.
It is the settled position of law that a confessional statement is the best form of evidence. A confession binds the maker and is sufficient

to ground a conviction once it is unequivocal and believed by the Court to be true – Oyem V FRN (2019) 24, D-F, & 25, A, per Okoro, JSC; Igri V State (2012) 16 NWLR (Pt. 1327) 522, 532; Okewu V FRN (2012) 9 NWLR (Pt. 1305) 327, 352; Amanchukwu V FRN (2009) 8 NWLR (Pt. 1144) 475.
Thus, the principle of law is that an accused person who retracts his confessional statement may still be convicted of the offence(s) charged if the confessional statement is direct, positive and unequivocal, and there is some evidence outside the confession, no matter how little, which tends to show that the confession is true – Kamila V State (2018) LPELR-43603(SC) 40, D-E, per MD Muhammad, JSC. Therefore, with or without the testimonies of PW1, the eyewitness and the other 6 prosecution witnesses, the trial Court was right to convict the Appellant based on his unequivocal confessional statements, notwithstanding his latter day retraction. Thus, based on all the above, I answer issue one in the affirmative and resolve it against the Appellant.

Issues two and three taken together:
Issue two – Whether having regards to the totality of the evidence placed before the

trial Court and the position of the law, the 1st Respondent proved beyond reasonable doubt all the offences for which the Appellant was convicted by the lower Court.
Issue three – Whether the failure of the lower Court to properly evaluate the evidence adduced by the 1st Respondent (Prosecution) and the Appellant in his defence and make clear findings on same occasioned a miscarriage of justice against the Appellant.

Under issue two which is, whether the 1st Respondent proved the offences charged beyond reasonable doubt, in respect of count one for the offence of criminal conspiracy to commit armed robbery and culpable homicide, Counsel submits that the 1st Respondent failed to discharge the burden placed on it. His main reason is that the trial Court relied solely on the retracted confessional statements of the Appellant to convict him. He therefore adopted his arguments offered under issue one above and submits that the confessional statements, Exhibits A, B, F and F1 were unreliable, equivocal, indirect and doubtful and so no weight should have been attached to them. He contends that the trial Court drew an inference of conspiracy from the

confessional statements without testing their veracity or analyzing the details of the facts proved by applying the six steps laid down inR V Sykes (1913) 8 CAR 233 is fatal to the conviction of the Appellant – Bako V State (2018) LPELR-44479(CA).

On count two of the charge, which is culpable homicide punishable with death, Counsel again submits that the trial Judge relied solely on the confessional statements to convict the Appellant, while attempting to find corroborative evidence outside the confessional statements. He however contends that the evidence relied upon as corroborative evidence does not qualify as such because the evidence of PW2, PW3, PW4, PW5, PW6 and PW7 was all hearsay as they were not at the scene of crime -Uwa V State (2015) 4 NWLR (Pt. 1450) 438, 471-472. He submits that corroborative evidence is evidence given by an independent witness which confirms in material particulars that a crime has been committed and that it was committed by the accused person – Adeleye V State (2015) 3 NWLR (Pt. 1446) 229, 247, 249; State V Gwangwan (2015) 13 NWLR (Pt. 1477) 600, 626. In respect of the evidence of the PW1, the only eyewitness to the

crimes, Counsel submits that she did not identify the Appellant as the assailant who stabbed and killed the deceased, thus her evidence does not qualify as independent evidence connecting the Appellant with the offences charged.

On count three of the charge for armed robbery, Counsel submits that the trial Court again only relied on the retracted confessional statements of the Appellant to convict him. He therefore relied and adopted his earlier submissions to submit that the said confessional statements were unreliable, equivocal, indirect and doubtful and so no weight should have been attached to them. In addition, that the trial Court failed to look for other independent evidence outside the confessional statements to corroborate them.

Furthermore, while conceding that the first two ingredients of the offence of armed robbery were proved, i.e. that there was a robbery and that it was carried out with the use of offensive weapons, Counsel submits that the prosecution failed to prove the third ingredient which was that the accused person, now Appellant, participated in the robbery. For this, he relied on Exhibit D, the statement of the deceased as

well as the evidence of PW1, the sole eyewitness, both of whom stated that they could not identify their attackers. He contends that the evidence of PW2 to PW7 was all hearsay as they were not eyewitnesses. Counsel relies on Alor V State (1997) 4 NWLR (Pt. 505) 511 to submit that in criminal cases, conviction can only be based on legal proof and not on suspicion or speculation. He submits that the trial Court was in error when it grounded the conviction of the Appellant solely on Exhibits A, B, F and F1 without corroboration. Thus, he urged the Court to resolve issue two in favour of the Appellant.

In respect of issue three, Counsel submits that the lower Court failed to evaluate the evidence adduced by the Appellant and to make clear findings. He contends that contrary to the finding of the trial Court, the Appellant retracted his confessional statements during his evidence as DW1 and also at the point when they were being tendered in evidence. Counsel submits that the failure of the trial Court to therefore properly evaluate the evidence of the Appellant constitutes a denial and breach of the right to fair hearing of the Appellant, and this has

occasioned a miscarriage of justice – Karibo V Grend (1992) 3 NWLR (Pt. 230) 426; Moronkeji V Adegbosin (2003) 8 WLR (Pt. 823) 612; Kalio V Woluchem (1985) 1 NWLR (Pt. 4) 610, 622.

Counsel submits that this failure has rendered his conviction unreasonable, unwarranted and cannot be supported by the evidence placed before the trial Court. He therefore urged the Court to hold that the findings of the trial Court were perverse, have occasioned a miscarriage of justice and so to resolve issue three in favour of the Appellant. He also urged the Court to allow the Appeal, quash the conviction of the Appellant and acquit him of the offences convicted.

In response, learned Counsel for the Respondent submits that the prosecution adduced ample evidence to prove the offences of conspiracy, armed robbery and culpable homicide charged against the Appellant. He referred to the confessional statements of the Appellant, Exhibits A, B, F and F1 as well as the confessional statement of the 3rd accused person (Baban Nana) Exhibits A1 and B1. He contends that the statements corroborated each other in establishing a meeting of minds. The subsequent acts of the

Appellants and his co-accused persons in actually attacking the victims, robbing them of their phones and stabbing the deceased to death provided evidence upon which conspiracy can be inferred. Such evidence of common intention renders all the accused persons culpable for the offence of conspiracy – Sule V State (2009) 7 LRCNCC 1.

In respect of the offence of armed robbery, Counsel submits that the prosecution adduced sufficient evidence through PW1, PW5 and PW6 to show that on June 24, 2016, Tijjani Mohammed (the deceased) and Rashida Saleh (PW1) were robbed, and this evidence corroborates the Appellant’s confessional statements, Exhibits A, B, F and F1. Again, the evidence from PW1, PW5, PW6 and PW4 in conjunction with Exhibits A, B, F and F1 proves that the robbery was carried out with arms being knives, cutlasses and a torchlight. On the participation of the Appellant in the armed robbery, Counsel relies on the contents of his confessional statements, Exhibits A, B, F and F1 which were direct, positive and unequivocal pointing to the guilt of the Appellant – FRN V Iweka (2013) 3NWLR (Pt. 1341) 285; Ikemson V State (1989) 3 NWLR (Pt. 110) 455.

In respect of the conviction of the Appellant for culpable homicide, Counsel submits that all three ingredients of the offence were proved. For the first ingredient, which is that the death of a human being took place, he relied on the evidence of PW1, PW3, PW4 which corroborates Exhibits A, B, F and F1 wherein the Appellant admits to attending the funeral of the deceased, Tijjani Mohammed. In proof of the second ingredient, that the death was caused by the Appellant, again reliance was placed on the evidence of PW1, PW2, PW6 and Exhibits A, B F and F1 which established that the Appellant and his co-accused persons attacked the deceased and stabbed him on his chest and stomach which ultimately led to his death. On the third ingredient, which is that the Appellant carried out the acts with the intention to cause death or he knew that death would be the probable result, Counsel relied on the surrounding circumstances of the attack such as the nature of the weapon used, being a deadly and lethal weapon, the part of the body stabbed, i.e. the chest and stomach being delicate parts of the body, the degree of force applied or the injuries sustained, which was

deep and wide, and the proximity of the victim to the lethal weapon used – Iden V State (1994) 8 NWLR (Pt. 365) 719; Ejeka V State (2003) 7 NWLR (Pt. 819) 408. Counsel also submits there was no doubt as to the identity of the Appellant based on the evidence of PW1, PW2, PW5, PW6 and the Appellant’s confessional statements, Exhibits A, B, F and F1. Counsel finally submits that the finding of the trial Court that the 1st Respondent proved the three-count charge was right based on the evidence adduced before it. He therefore urged the Court to dismiss the Appeal and affirm the conviction and sentence of the Appellant.

RESOLUTION OF ISSUES TWO AND THREE
The starting point to a consideration of these issues must be a reminder that proof beyond reasonable doubt is not intended to be a magic wand for the benefit of an accused person. Instead, the law is that when the prosecution has attained such a degree of proof that leads only to the remote possibility in favour of the accused, the case is proved beyond reasonable doubt. In Miller V Minister of Pensions (1947) All ER 322, 373, Denny, J. (as he then was), stated that proof beyond reasonable doubt

does not mean proof beyond the shadow of doubt. Proof beyond reasonable doubt does not mean proof to a mathematical certainty. Were it to be so, then no case could ever be proved – Oyem V FRN (2019) LPELR-47392(SC) 15-16, B-E, per Onnoghen, CJN.

In the instant case, by a combination of the evidence of (1) PW1, the only eyewitness who gave in riveting detail an account of the attack on her and the deceased by five young men; (2) the report/statement of the deceased himself (Exhibit D) made to the first Police IPO (PW5) before he died, wherein he gave details of the attack in writing, which report may actually serve as a dying declaration but for the fact that he did not identify his attackers; (3) the confessional statements of the Appellant, Exhibits A, B, F and F1; (4) as well as those of the 2nd and 3rd accused persons which corroborated the evidence of PW1 in every material particular; (5) the medical report Exhibit D and evidence of PW3 (the medical Doctor), which further corroborated the manner and cause of death of the deceased; and (6) in conjunction with the evidence of the other witnesses (PW2 and PW6) and the Police investigators (IPOs) PW3,

PW5 and PW7, a water-tight case was made out against the Appellant and his cohorts by the prosecution. Thus, the learned trial Judge acted rightly in relying on the retracted confessional statements amply corroborated by the above pieces of evidence to convict the Appellant as charged.

Furthermore, as has been well articulated by the 1st Respondent in his submissions, the evidence of conspiracy to commit armed robbery and culpable homicide in count one of the charge, can be found in the confessional statements of the Appellant and the 2nd and 3rd accused persons, i.e. Exhibits A1, B1, E, E1, H and H1 wherein they all confessed to how they planned and agreed to carry out the armed robbery.

In furtherance of this agreement, the Appellant, 1st and 3rd accused persons and others still at large, activated their plan and carried out the attack on the hapless and defenceless duo of the deceased, Tijjani Mohammed and his girlfriend, PW1 – Rashidah Saleh, on the roadside where they innocently stood waiting for public transport.

From the confessional statements of the accused persons, inclusive of those of the Appellant, amply corroborated by the

evidence in Court of PW1 and Exhibit D, the statement of the deceased, speaking as it were from beyond the grave, the Appellant, and his co-accused flashed their torchlight into the eyes of their victims which prevented the accused persons from being identified, and proceeded to attack them with lethal weapons and beat them up. In addition, they collected the GSM Handset of the deceased victim as well as the sum of N1, 800.00. Still not satiated, they proceeded to stab the deceased in the chest and abdomen with knives and slashed his head and leg with cutlasses, all aimed at killing him so that he would not identify them as, from their confessional statements, they had recognized him as Yaya Tijjani who was from their neighbourhood and they were afraid that he would identify them. It is a cruel irony that from the written complaint/statement of the deceased lodged at the Pantami Police Station immediately after the attack and shortly before he died, he had not even recognized any of his attackers and so he was unable to tell the Police their identities when he was asked by PW5, the IPO. The Appellant and the co-accused persons therefore viciously snuffed out

his life unnecessarily even after brutalizing him and forcefully dispossessing him of his property.

In the same vein, the PW1 who was with the deceased during the brutal attack, also sincerely testified that she had not been able to identify any of the attackers due to the flashlight which they shone in her face. However, the Appellant, 1st and 2nd accused persons in their own confessional statements gave graphic accounts of their actions that fateful night, which accounts were eerily in tandem with the accounts of the attack given by their victims, i.e. the deceased and PW1. This therefore established the truth and veracity of both the confessions as well as the evidence of the prosecution witnesses.

From the nature and character of the evidence adduced by the prosecution, the learned trial Judge properly evaluated the evidence and ascribed probative value thereto in his Judgment contained at pages 128-179 of the Record, but specifically at pages 171 to 178 thereof. As aforesaid, far from relying solely on the confessional statements of the Appellant, which he was entitled to do since they were direct, positive and cogent, the learned trial Judge

still found ample corroboration in other pieces of evidence. He enumerated such corroborative evidence as being found in the evidence of PW1 (eyewitness) and PW7, who was present when the Appellant confessed to the crime and identified his co-conspirators after he was caught, (page 177) as well as PW3, PW4 and PW5, the other IPOs to whom the confessional statements were made (page 176 of the Record) the medical doctor who certified the deceased dead and issued the medical report – Exhibit C, and the evidence of PW2, the brother of the deceased who was with him until he died two days after the attack.

Based on the mammoth evidence adduced by the prosecution as opposed to the lame and weak evidence adduced by the Appellant in his defence as DW2, which comprised mainly of a mere denial and retraction of his confessional statements voluntarily made, the learned trial Judge acted rightly, in my view, in his findings and conclusion that the prosecution proved the three-count charge against the Appellant. The trial Judge evaluated the evidence and came to a correct conclusion. I therefore decline the Appellant’s invitation to interfere with these findings.

For these reasons, I resolve issues two and three against the Appellant.
Having resolved all three issues against the Appellant, I find the Appeal sorely lacking in merit. It fails and is dismissed.

Accordingly, I affirm the Judgment of the High Court of Justice, Gombe State in Case No. GM/14C/2017 between The State V (1) Isah Usman, (2) Sadiq Hussaini and (3) Baban Nana Abubakar Mohammed, delivered on November 2, 2018 by Pindiga, J., as well as the conviction and sentence of death.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege and opportunity to preview the draft of the lead Judgment delivered my learned brother, JUMMAI HANNATU SANKEY, JCA and I am in complete agreement with the reasoning and conclusion arrived at therein.

The issue raised that the Court ought not to have convicted on the retracted confessional statements of the Appellant, Exhibit A, B, F and F1 cannot fly given the settled position of the law in that regard and as elaborately explained in the lead Judgment. Mere denial of making or signing a confessional statement by an accused person is not sufficient ground on which to reject it particularly

where it was properly tendered. See the cases of AKWUOBI vs. THE STATE 2016 LPELR-SC 379/2011 and OKWESI vs. STATE 1995 NWLR 119. A free and voluntary confession of guilt by an accused person, if direct and positive, duly made and satisfactorily proved before the trial Court, alone, is sufficient to warrant a conviction as in the instant appeal. There was also no objection whatsoever at the time of tendering the statements.

The Court below took cognizance of the corroborative evidence of the PW1, PW4, PW5, the complaint of the deceased himself immediately after the attack, Exhibit D and the medical report of the medical doctor who attended to him, Exhibit C, all of which were admitted without objection as sufficient corroboration to warrant a conviction. It is however necessary to note that the Court could properly convict on the said confessional statements without corroboration.

For the fuller reasons lucidly put in the lead Judgment, I also dismiss the appeal and affirm the Judgment of the High Court of Justice, Gombe State in Case No. GM/14C/2017 between The State vs. (1) Isah Usman, (2) Sadiq Hussaini and (3) Baban Nana Abubakar Mohammed,

delivered on November 2, 2018 by Pindiga J. as well as the conviction and sentence of death.

JAMES GAMBO ABUNDAGA, J.C.A.: I read in draft the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA.
I adopt the reasoning and conclusion reached therein that the appeal is lacking in merit, and thus fails and is hereby dismissed.

However, to reiterate my agreement with the conclusion reached in the Judgment, I will make a few remarks on the following prominent issues in the appeal.

The contention of the Appellant’s Counsel that the learned trial Judge was in error in acting on the Confessional Statement of the Appellant in convicting him does not reflect the facts and evidence adduced at the trial and the settled position of the law on the role of Confessional Statement with a criminal trial.
A Confessional Statement is an admission by an accused person that he committed the crime of which he is alleged to have committed or suggesting the inference that he committed the crime. See Section 28 of the Evidence Act, 2011. The Supreme Court in the case of Ifeanyichukwu Akwuobi vs. The State (2016)

LPELR-41389 (SC) held:
“It is trite law and already settled that a free and voluntary confession of guilt by an accused person, if direct and positive, duly made and satisfactorily proved before the trial Court is alone sufficient to warrant a conviction even if there is no corroborative evidence. Therefore, a conviction based on such a Confessional Statement will not be quashed on appeal, merely because it is based entirely on the evidence of confession by the Appellant. What is important is that the Court must be satisfied with the facts and circumstances in which the confession was made. See R. V. Ajayi Omakaro (1941) 146, Anthony Ejinima vs. The State (1991) 6 NWLR (Pt. 200) 627, (1991) 7 SCNJ 318 (1991) 7 SC (Pt. 11) 1.” per Ariwoola, JSC (pp. 39 – 40, paras F – D).

In this case, the trial Judge did not convict the Appellant solely on his Confessional Statements. Notwithstanding that the Confessional Statements were direct, positive and unequivocal, the trial Judge took pains to examine other pieces of evidence produced by the prosecution, with a view to ascertaining that the Confession was indeed made. The prosecution

evidence examined by the trial Judge include the evidence of PW1, Rashida Saleh who was with the deceased and was also attacked along with him by the Appellant and his co-assailants. In her evidence she narrated to the Court how they were attacked with knives and cutlasses, and dispossessed of their properties. She was however honest enough to state that she could not identify any of the attackers because they flashed their torchlight in her eyes. The trial Judge also considered the statement of the deceased (complainant) made to the police soon after the attack as contained in Exhibit “D”. Also considered is the evidence of the first IPO (PW5) and the medical report. Indeed, there was abundant evidence outside the Confessional Statements to establish the guilt of the Appellant beyond reasonable doubt.

Apart from the foregoing issue which his Lordship considered in scintillating details, his Lordship’s Judgment is also laced with articulate discourse of other arguments canvassed by Appellant’s Counsel culminating in the resolution of same against the Appellant that cannot be faulted.
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In consequence, I too find no merit in this appeal and dismiss it.
Therefore, the Judgment of the trial Court delivered by his Lordship Pindiga, J. on 2nd November, 2018 as well as the conviction and sentence of death is hereby affirmed.

Appearances:

Adedayo Adesina, Esq., with him, T.J.J. Danjuma, Esq. For Appellant(s)

Abdussalam Muhammad, Esq., Ag. Director Public Prosecutions with him, A.M. Hassan, Esq., Principal State Counsel and Hafsat Aliyu, Esq. Principal State Counsel for the 1st Respondent

No legal representation for the 2nd and 3rd Respondents. For Respondent(s)